author: RAINEY, C. J.

text:
    MISSOURI, K. & T. RY. CO. v. CRADDOCK.
    (No. 7259.)

    (Court of Civil Appeals of Texas. Dallas.
    Feb. 27, 1915.
    Rehearing Denied April 3, 1915.)
    1. Courts <§=37 — Jurisdiction — Transitory Action.
    Where jurisdiction of defendant can be obtained, a resident of New Mexico may sue in this state for malicious prosecution arising out of an alleged theft in Kansas; since the action is transitory in its nature.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 14, 16, 22-31; Dec. Dig. ®=»7.].
    2. Limitation of Actions <§=342 — Limitations Applicable.
    In an action which, in so far as it alleged that plaintiff had been charged by defendant with burglary and theft, and thereby damaged in his reputation, partook of the nature of an action for libel and slander, it was permissible to join charges for malicious prosecution, false imprisonment, and assault, growing out of one continuous transaction, upon which'the action would be governed by the law as to limitations, etc., governing actions for false imprisonment, etc.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 216; Dec. Dig. <§=342.]
    3. Malicious Prosecution <§=358 — Evidence —Relevancy.
    In an action for malicious prosecution of plaintiff, a switchman, on the charge of breaking open a car and stealing therefrom, evidence as to what extent, prior to that occasion, there had been thefts of property from defendant’s cars by unknown persons was irrelevant and inadmissible.
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 117-124;’ Dec. Dig. <§=>58.]
    4. Appeal and Error <§=>1058 — Harmless Error — Exclusion op Evidence.
    In such action the exclusion of evidence that plaintiff had broken into and stolen from a car was harmless, where the same witness was allowed afterwards to testify to that effect.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dec. Dig. <§=31058.]
    5. Witnesses <g=^370 — Impeachment — Hostility op Witnesses.
    In an action for malicious prosecution, false imprisonment and assault growing out of plaintiff’s alleged breaking into defendant’s freight ears and stealing therefrom, where a witness testified that plaintiff had confessed that he and one B. had burglarized a car, and that B., a witness for plaintiff, had discharged him, B.’s testimony that he had discharged the former witness, who had threatened to get even with him, was admissible to show the first witness’ animosity against both B. and the plaintiff.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. § 1189; Dee. Dig. <§=o370.]
    6. Witnesses <§=3361 — Credibility — Good Character.
    In an action for malicious prosecution, wherein plaintiff alleged that he had always borne a good reputation, and that by defendant’s charge of burglary and theft he had been damaged, and in which he testified that he had never taken anything from defendant’s cars, the admission of evidence for defendant, not only contradicting plaintiff, but also impeaching his reputation for truth and honesty, permitted plaintiff to offer witnesses as to such reputation, though the mere contradiction of plaintiff’s testimony would not have permitted such proof.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1167-1175; Dee. Dig. <§=>361.]
    7. Malicious Prosecution <§=355 — Evidence —Issues and Variance.
    In an action for malicious prosecution, where it appeared that a complaint had been filed against plaintiff by defendant’s watchman, charging- a breaking and entering of a certain car, and that afterwards defendant’s special agent filed another complaint charging the identical offense on which a second information was based, proof of plaintiff’s acquittal upon such second information was not a variance from the allegation, and was admissible.
    [Ed. Note.- — For other cases, see Malicious Prosecution, Cent. Dig. §§ 106-110; Dec. Dig. <§=355.]
    8. Principal and Agent <§=3123 — Agency op Complaining Witness — Sufficiency of Evidence.
    Evidence in an action for malicious prosecution of plaintiff for having broken and entered defendant’s cars and stolen property therefrom held sufficient to show that the one making the arrest and prosecuting the charge acted within the scope óf his authority as an employé or agent of defendant railroad.
    [Ed. Note. — For other eases, see Principal and Agent, Cent. Dig. §§ 429-429; Dee. Dig. <§=> 123.]
    9. Malicious Prosecution <§=369 — Damages —Excessiveness.
    A verdict of $14,500 for malicious prosecution of a switchman on a charge of breaking open defendant’s cars and stealing therefrom, together with allegations of false imprisonment and a shooting and wounding of plaintiff in the foot, in consequence of all of which his reputation was injured, his earning capacity impaired, and he expended $250 in employing attorneys for Ms defense and $100 for doctors’ bills, was not excessive.
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. § 158; Dec. Dig. <§=3 69.]
    Appeal from District Court, Grayson County; W. J. Mathis, Judge.
    Action by B. W. Craddock against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant- appeals.
    Affirmed.
    C. C. Huff, of Dallas, and Head, Dillard, Smith, Maxey & Head, of Sherman, for appellant. Wolfe & Wood, of Sherman, for ap-pellee.

       Writ of error pending in Supreme Court.

   RAINEY, C. J.

Appellee sued appellant to recover damages for malicious prosecution alleged to have been made by an agent of appellant at Parsons, Kan. Appellant presented a plea in abatement, denied generally the allegations in plaintiff’s petition, denied the agency of the party inflicting the alleged wrongs, pleaded limitation, the existence of probable cause, and advice of counsel. The ease was submitted to the jury on special issues, and, upon return of answers thereto, the court entered a verdict for plaintiff for $14,500, from which this appeal is taken.

Appellee’s amended petition alleges that he is a resident citizen of the state of New Mexico, and that appellant is a private eor-poration incorporated under the laws of Kansas, and states his cause of action as follows:

“Plaintiff shows to the court that heretofore, to wit, on or about the 7th day of March, 1911, he was in the employ of said defendant in the said city of Parsons, in the state of Kansas, working in the capacity of a switchman; that at said time and place defendant also had in its employ one A. W. Hufford, who was working for said defendant as a special officer, and it was a part of his duty to guard the property of defendant, and particularly cars of merchandise intrusted to said defendant for transportation, and to detect, apprehend, and prosecute persons caught in the act of, or who were guilty of, any trespass against the property of said defendant and which were in violation of the criminal laws of said state; that on the date aforesaid said special officer; while acting within the scope of his employment, did accuse this plaintiff of the crime of theft and burglary, in that he accused him of breaking the seai on one' of its freight cars and of entering said car and of stealing therefrom certain merchandise which was alleged to be contained therein; that plaintiff was detained and charged by said defendant before the civil officers of Labette county, in the state of Kansas, of said crimes, and was bound over for trial to the district court of said county, in which court he had a trial in November, 1911, and was found not guilty of said charges. Plaintiff shows to the court that said prosecution is now finally terminated, and plaintiff has been by the proper courts of said county and state duly acquitted of any and all charges preferred against him and on account of which he was arrested, as aforesaid. Plaintiff further shows to the court that he was subjected to .many indignities, in that at the time of his arrest he was cruelly and unmercifully treated, in that he was openly and publicly charged with crime of theft, and also of the crime of burglary, and was struck and beaten, and forcibly detained, and shot in one of his feet, and deprived of his liberty. ⅜ ⅜ * Plaintiff shows to the court that he was not guilty of said charges or any of them, but that he had always lived an honest, honorable, upright life, and had always borne a good reputation for honesty and fair dealing among all his acquaintances; that, by reason of said charge so brought against him, and by reason of such treatment of him by defendant, plaintiff was greatly damaged in his reputation, character, and fair name, not only among his friends and acquaintances, but with strangers and the public generally. Plaintiff shows to the court that all of the actions of said defendant hereinbefore charged were recklessly, carelessly, willfully, wantonly, and maliciously done, without probable or sufficient cause of believing plaintiff guilty of the charge preferred against him. Plaintiff further shows to the court that he had a good position with said defendant at said time, and was earning the sum of, and his time was worth, $100 per month, .and but for such accusation and treatment here-inbefoz'e alleged he would have continued to have earned said sum, and more; that, on account of the. wound received, as hereinbefore alleged, plaintiff’s time was wholly lost for the space of about 15 months, and he was so crippled and wounded that he was not only unable to work during said time, but his capacity to labor and earn money in the future has been greatly depreciated thereby; that said wound occasioned him much physical pain and mental anguish, and that he will so suffer as long as he may live; that said wounded member has become diseased, in that the same refuses to heal, and, since receiving said gunshot wound, plaintiff has been troubled with rheumatism, from which he had never suffered theretofore, and he alleges and charges that such condition was produced and brought about by said injury so inflicted upon him by said special officer in the employment of defendant as aforesaid. - He further shows to the court that on account of said charge so preferred against him, and on account of the prosecution of him, for such offense, he has been occasioned and caused to suffer much mental anguish and humiliation, and that he will always suffe* in mind on account thereof. Plaintiff further shows to the court that it was necessary for him to employ counsel to defend himself against said charge, and to employ physicians for the purpose of attending his wounds, and that for such attorneys’ fees he has paid out and expended the sum of $250, and for doctors’ bills necessarily incurred, the further sum of $100.”

The evidence substantially established the allegations of the petition.

Appellant complains: First, on the ground that the court overruled its plea in abatement, and presents the following proposition:

“Comity does not require and the courts of Texas will not exercise jurisdiction over a civil suit of a citizen of a foreign state, arising in a foreign state, out of a violation of the criminal laws of a-foreign state, by a corporation of such foreign state, when the exercise of. such jurisdiction will deprive the foreign corporation of defenses it would have in the state of its residence, when no good reason exists for pros-, ecuting the suit in this state instead of the state in which it arose, and where the courts of the state where the cause of action arose would decline to entertain jurisdiction of the suit of a citizen of Texas under like circumstances.”

Appellee’s petition alleged that he was a citizen of New Mexico, and that defendant was “duly incorporated under the laws of the state of Kansas, owning and operating many lines of railway, some of which entered into the state of Texas, where it has a local agent, to wit, W. A. King, residing and representing it in Grayson county.” Appellant’s agent was duly served in Grayson county, and “there is nothing in the record of this case calling in question the sufficiency of the service of citation on appellant to require it to appear and answer this suit.”

The action pleaded by appellee is transitory in its nature, and can be prosecuted in any court obtaining jurisdiction of the defendant. Railway Co. v. Godair, 39 Tex. Civ. App. 298, 87 S. W. 871; Railway Co. v. Keller, 33 Tex. Civ. App. 358, 76 S. W. 801; Railway Co. v. Smith, 34 Tex. Civ. App. 612, 79 S. W. 340; Banco Minero v. Ross, 172 S. W. 711.

In this case the district court of Grayson county, Tex., had jurisdiction. The appellant had a local agent residing in said county, upon whom service was duly had, and, having jurisdiction, it properly proceeded to adjudicate the same. In Railway Co. v. Godair, supra, the court said:

“We think it a correct proposition of law that liability in a transitory action may be enforced, and the right of action pursued, in the courts of any state which can obtain jurisdiction of the defendant, without regard to where the wrongdoer or the person injured resided, or where the injury was inflicted; and it has been practically so held.”

In Banco Minero v. Ross, supra, lately decided by our Supreme Court, it is said, in speaking of the action:

“ít was accordingly transitory in its nature, and could be prosecuted in any court properly obtaining jurisdiction of the person of the defendant. Stone v. United States, 167 U. S. 178, 17 Sup. Ct. 778, 42 D. Ed. 127; 2 'Wharton on Conflict of Laws, § 478a.”

There is no such dissimilarity between the laws of Kansas and the laws of Texas that trying the case in Texas would deprive appellant of any substantial right.

The plea in abatement was properly overruled.

The second assignment of error is that the court erred in overruling defendant’s special exception, which was, in effect, that the petition showed it to be an action for libel, and was barred by one year’s limitation. The exception was leveled at that part of the petition which alleged, in effect, that he had been charged by defendant with burglary and theft, etc.; that he was damaged in reputation, character and fair name, etc., thereby. These allegations partake of a cause of action for libel and slander, but, when the acts charged are joined with charges for malicious prosecution, false imprisonment, and assault as growing out of one continuous transaction, they are permissible, and are controlled by the law governing actions for malicious, false imprisonment, etc. Kleinsmith v. Hamlin, 60 S. W. 994; Railway Co. v. Griffin, 48 S. W. 542. The petitions show appellee to have been acquitted of the charges in the prosecution by the Kansas court, and within 12 months thereafter he filed his suit to recover damages for malicious prosecution; hence limitation had not run, and there was no error in overruling the exception.

The third and fourth assignments of error complain of the exclusion of the testimony of witnesses E. A. Smith and A. W. Hosford. These witnesses, who were yardmaster and night watchman, respectively, of and in defendant’s yards at Parsons, Kan., in March, 1911, stated that said yards in the nighttime were lighted with electric lights, ■when defendant propounded to them the following question:

“Q. To what extent prior to March, 1911, had theft of property from cars been continuing in the yards at Parsons in the daytime and nighttime?”

To which question and answer expected plaintiff objected on the ground that same was irrelevant and immaterial. Witnesses would have answered, in substance, that for a number of months prior to the arrest of appellee on March 7, 1911, the box cars of defendant in its yards at Parsons were broken and entered, and merchandise taken therefrom, both in the day and night time, but as ■to who the perpetrators of said thefts were they had no knowledge. The court sustained said -objection, and defendant excepted. We think the court properly excluded the testimony of these two witnesses. The facts sought to be proved did not tend to show that the .appellee was connected with any of such, robberies, nor did the defendant attempt to connect him with any of them. This evidence, not tending to connect appellee with the burglary of March 7, 1911, of which he was charged, was irrelevant, and not admissible. Bearing upon this principle, we cite Wolf v. Perryman, 82 Tex. 112, 17 S. W. 772, and Ryburn v. Moore, 72 Tex. 85, 10 S. W. 393.

The fifth assignment complains of the exclusion of the testimony of G. E. Clowse, wherein he stated:

“But I was with them when they told me they had taken some whisky from the cars, and at the same time they showed it to me.”

This witness had reference to appellee and one Bean. The rejection of this testimony was harmless, as the court afterwards admitted evidence to the same effect by this witness.

The sixth and seventh assignments relate to the admission of the testimony of C. E. Clowse and Ben S. Bean over the objections of appellant. The testimony of both these witnesses was by deposition in rebuttal, and that of Clowse was to the effect that Bean, a witness for appellee, had caused his discharge from the railroad service, and that of Bean was to the effect that Clowse had assisted as yardmaster and helped him on the coach engine, that he was a sorry helper, and that he (Bean) had turned him in, and he was discharged, and came to his engine and “told me he would get even with me if he had to shoot it out with me; .he didn’t speak to me.” Clowse, prior to this, had testified that appellee had confessed to him that ap-pellee and Bean had burglarized a ear. Ap-pellee and Bean had denied guilt of burglary. Appellant grouped the sixth and seventh assignments of error. The evidence was introduced for the purpose of showing hostility to appellee and Bean, and we think the testimony was legitimate to show Clowse’s animosity against Bean in testifying, and, as Bean was implicated in the criminal charge against appellee, the testimony vras competent to show Clowse’s feeling against both parties.

Appellant by its eighth assignment complains of the admission of the depositions of some 12 witnesses as to the good reputation of appellee for truth and veracity, some of the witnesses being in Iowa, who testified as to their knowledge of appellee being five or six years prior to the time of the prosecution, and those in New Mexico testifying to a time subsequent to and before his arrest, etc.

Appellee alleged in his petition that he had always lived an honest, upright life, had borne a good reputation for honesty, and that by reason of the charge of burglary and theft publicly preferred against him he had beer damaged in his reputation and name, etc He testified that this was the first crime ever charged against him. ‘T have never taken anything out of the cars there in the vards at Parsons at this time or any other time.” After this testimony dowse was introduced by appellant, and testified to a confession by Oraddock that he (Oraddock) had, prior to the time of Oraddock’s arrest, burglarized a car and taken whisky therefrom, and further testified that Craddock had confessed to him that he (Oraddock) and Bean had burglarized the car on the occasion of the arrest, and taken merchandise therefrom. Appellant recalled appellee for further cross-examination, and, in answer to questions, testified:

“I know a man by the name of Ben Bean. Ben Bean and I did not go over in the yards there and show Olowse some whisky and tell him we got it out of some cars. Nothing of that kind has ever occurred.”

We understand that:

“Contradictions between witnesses in their testimony given upon the trial of a cause does not authorize the introduction of testimony to sustain the contradicted witness by proof of general character for truth and veracity.”

But, when matter is drawn out by the defendant that is irrelevant to the main issue, and not only contradicts plaintiff, but tends to attack his character for truth and honesty, as was the case here, we think it was intended to impeach his character for truth, and the testimony was relevant. Railway Co. v. Raney, 86 Tex. 363-367, 25 S. W. 11; Railway Co. v. Adams, 42 Tex. Civ. App. 274, 114 S. W. 453; Railway Co. v. Williams, 111 S. W. 196,

The tenth assignment is:

“The court erred in overruling defendant’s motion to strike out the judgment of acquittal introduced in evidence by plaintiff.”

The proposition submitted by appellant is:

“In a suit for malicious prosecution, where plaintiff alleges a criminal charge preferred by one person against him, and an acquittance of the same, he will not be permitted to show a judgment of acquittal of a charge preferred by another person not alleged; - the allegation and proof not corresponding.”

It appears from the record that a complaint was filed against appellee in the justice court by A. W. Hufford, charging him with feloniously and burglariously breaking and entering a certain car of appellant’s numbered 16540 on the night of March 7, 1911. It does appear that this complaint, with the proceedings in the justice court, were certified to the district court, and that the county attorney filed an information on this complaint; that subsequently the cause was remanded by the district court .to the justice court, and J. W. Evans filed another complaint in said justice court, charging the identical offense on the same date against appellee; that thereafter the county attorney filed a second information based on this complaint; and that appellee was prosecuted on this information, and the verdict and judgment of not guilty rendered thereon. Each complaint and each information charged the same offense; that is, charged that appellee did, on the 7th day of March, 1911, in the county of Labette, state of Kansas, unlawfully, feloniously, and bur-glariously, in the nighttime, break and enter freight car No. 16540 of the Missouri, Kansas & Texas Railway Company, in which car at the time was situated certain personal property, with the unlawful, willful, and felonious intent to take and carry away from said car said merchandise, and charging that ap-pellee did unlawfully, willfully, and felo-niously steal, take, and carry away from said car No. 10540 certain personal property of and in the possession of the railway company. The petition does not allege that Huf-ford prosecuted him, nor that Evans prosecuted him, but it alleges:

“That plaintiff was detained and charged by said defendant before the civil officers of Labette county, in the state of Kansas, of said crime, and was bound over for trial at the district court of said county, in which court he had a trial in November, 1911, and was found not guilty of said charge.”

The evidence shows that Evans was a special agent of appellant, and was the head of that department. We think there was no variance between the allegations and proof. The evidence shows that the two complaints related to the same transaction, and there was no error in the admission of the judgment of acquittal.

What has just been said disposed of the eleventh assignment adversely to the appellant.

The thirteenth and fourteenth assignments attack the answers of the jury to questions Nos. 1 and 3, on the ground that they are not supported by the evidence, in that Hufford, in making the arrest and prosecuting the charge of burglary against appellee, was acting in Ms official capacity as deputy constable, and not as employs of appellant. We do not concur in this contention of appellant. The evidence shows that Hufford was in the employ of appellant as watchman; that at the solicitation of appellant he was appointed deputy constable, that he might be enabled to more effectually discharge his duties as watchman; and that, under his employment by appellant, he was authorized to arrest and prosecute persons guilty of trespass against its property when the same were in violation of the laws of the state of Kansas. We think the finding of the jury was justified. J. W. Sears, for plaintiff, testified that:

“In March 1911, he was constable at Parsons, Kan., and that A. W. Hufford held a commission under him as deputy constable; that he appointed Hufford deputy constable at the instance of the Missouri, Kansas & Texas Railway Company; that he paid Hufford no salary, but always gave one-half gf his fees for any work which deputies did; he did not remember that Hufford ever did any work; his instructions were to Hufford that if he got a case to bring it to court, and what he got out of it Hufford would get half; Hufford would earn in the Craddock case 35 cents; Hufford is a watchman in the Missouri, Kansas & Texas yards at Parsons, Kan.; he gave Hufford the appointment with the understanding that Huf-ford was in the employ of the railway company; Hufford was appointed deputy constable for the purpose of watching and protecting the property in the Missouri, Kansas & Texas yards at Larsons. I knew the officials of the Missouri, Kansas & Texas wanted liufford deputized as constable in order to serve its interests. I knew that liufford wanted this position in order to use it in serving the railway company; that was what it was given him for. Of course, I-Iufford could have watched without a gun, but he could not carry a gun without a commission. I appointed Hufford to protect the yards, but told him if he saw a crime committed in the county to arrest the man. It would be his duty to do it. I know the railway company had this appointment made. It was done at their instance and request.”

Ilufford’s testimony shows that he had been working in the capacity of watchman for about five months before the time of arrest, and that he worked at night, and there is no evidence that he ever made an arrest before this occasion or used his commission as deputy constable, except in performing his duty as watchman for the railway company. Railway Co. v. Warner, 19 Tex. Civ. App. 463, 49 S. W. 254; Railway Co. v. Griffin, 20 Tex. Civ. App. 91, 48 S. W. 543; Railway Co. v. James, 73 Tex. 12, 10 S. W. 744, 15 Am. St. Rep. 743; Railway Co. v. Parsons, 102 Tex. 157, 113 S. W. 914, 132 Am. St. Rep. S57.

Appellant’s assignments 15 to 27, inclusive, attack the findings of the jury on the ground that they are not supported by the evidence. 'The evidence was conflicting; that of appellee showing that the agents of appellant, acting within the scope of their authority, committed the wrongs upon appellee, and was sufficient to warrant the jury’s finding. Said assignments are therefore overruled.

The amount of the verdict is attacked as excessive. The amount thereof is $14,-800, and, while large, we cannot say that the jury acted from passion or prejudice, and the judgment will not be disturbed.

All assignments not herein discussed have been considered, but we find no reversible error therein, and they are overruled.

The judgment is affirmed.
      <§s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    BUICK AUTOMOBILE CO. v. O’KEEFE et al.
    (No. 8121.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 6, 1915.)
    Appeal and Error «5=5773 — Failure to File Briefs in Trial Court — Agreements.
    Where defendant sued out a writ of error to review a judgment for plaintiff and for a third person made a party by defendant, but filed no briefs in the trial court, and there was no agreement between defendant and the third person for the filing of briefs in the Court of Appeals, but an agreement between defendant and plaintiff for the filing of briefs, the writ of error would, on motion of the third person, be dismissed as to him.
    [E(l. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. «5=773.]
    Error from Tarrant County Court; Chas. T. Prewitt, Judge.
    Action by C. A. O’Keefe against the Buick Automobile Company, in which the Motor Car Specialty Company was made a party. There was a judgment for plaintiff and' the Motor Car Specialty Company, and defendant brings error.
    Affirmed as to plaintiff, and dismissed as to the Motor Car Specialty Company.
    C. T. Rowland and Theodore Mack, both of Ft. Worth, for plaintiff in error. Bryan, Stone & Wade, of Ft. Worth, and MeMurray & Gettys, of Decatur, for defendants in error.
   BUCK, J.

This was a suit, filed originally in the justice court, by C. A. O’Keefe against the Buick Automobile Company, for rent in the sum of $125. The Motor Car Specialty Company was made by the Buick Automobile Company a party defendant. In the county court, the court instructed a verdict for plaintiff against defendant Buick Automobile Company for $130.60, $125 and interest, and also in favor of the Motor Car Specialty Company as to the claim of the Buick Automobile Company over against it. From a judgment based on such verdict, the Buick Automobile •Company appeals.

There was a rental contract between the plaintiff and the appellant, and appellant alleged that the appellee Motor Car Specialty Company had assumed such contract and its liabilities, and that in no event would the Buick Automobile Company be primarily liable for said rent, but only secondarily so, if at all.

The judgment in the trial court was rendered May 31, 1913. The appellant made its application for writ of error May 31, 1914, on which day it filed its supersedeas bond. So that it will be seen that the writ of error was sued out on the last day allowed by law. No briefs were filed in the court below, and, so far as the appellee Motor Car Specialty Company is concerned, there is no agreement for the filing of such briefs in this court. There is, however, an agreement by and between appellant and appellee C. A. O’Keefe that plaintiff in error may file such briefs. Appellee Motor Oar Specialty Company has filed its motion to dismiss the writ of error, which motion, in so far as the appellant and the appellee Motor Car Specialty Company are concerned, is granted.

The first assignment urged by appellant is as follows:

“The court erred in peremptorily instructing a verdict for the following reasons, to wit: (1) Because the evidence showed that the plaintiff had accepted the Motor Car Specialty Company as a substitute tenant for the Buick Automobile Company; (2) because the evidence, at least, was sufficient to require the submission to the jury of the issue as to whether or not the plaintiff had accepted the Motor Car Specialty Company as a substitute tenant for the Buick Automobile Company; (3) because there was a question for the jury to determine as to whether or not the liability of the Buick Automobile Company to the plaintiff was primary or secondary.”

In disposing of this assignment, it is sufficient to say that we are able to find no evidence that the plaintiff ever acknowledged or accepted the Motor Car Specialty Company as his tenant. On the contrary, every time the matter was mentioned, Mr. Uigon, the agent of Mr. O’Keefe, specifically and clearly refused to accept such substitution or to release the appellant, and therefore this assignment is overruled.

Since the second assignment complains of alleged error relating only to the contention and issues arising between the Buick Automobile Company and the Motor Car Specialty .Company, and the appeal as between these parties being dismissed, we cannot consider such assignment.

These being the only assignments presented, and finding no error, and it appearing to this court that this appeal by writ of error was only made for delay, the court grants appellee O’Keefe motion to affirm, with 10 per cent, damages; and it is so ordered.
      <í£=5For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    BAKER v. STEPHENSON et al.
    (No. 5448.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 24, 1915.)
    1. Judgment <§=>486 — Collateral Attack— Divorce — Division oe Property.
    A judgment approving the partition made of property in a divorce suit is conclusive on collateral attack in a subsequent action in trespass to try title, where, though voidable, it is not void.
    [Ed. Note. — For other eases, see Judgment, Cent. Dig. §§ 919, 920-923; Dec. Dig. <§=>486.}
    2. Divorce <§=>83 — Validity — Death op Party — Eppect—Validity op Decree.
    Where the husband died before commissioners appointed in a divorce suit to partition community property made their report, a decree entered thereafter approving their report, without legal representatives of the deceased being made parties, was voidable but not void;
    [Ed. Note — For other cases, see Divorce, Cent. Dig. §§ 269-272; Dec. Dig. <®=>83.]
    3. Divorce <§=>255 — Judgment — Recitals— Conclusiveness.
    A recital of the judgment confirming the report of commissioners, appointed in a divorce suit to partition property, that the parties had agreed on the disposition as made, was conclusive in a subsequent proceeding in trespass to try title to recover land allotted to the wife.
    [Ed.- Note. — For other cases, see Divorce, Cent. Dig. §§ 722-724; Dec. Dig. <§=>255.]
    Appeal from District Court, Leon County; S. W. Dean, Judge.
    Action by T. F. Baker against Johnie J. Stephenson and others. From the judgment, plaintiff appeals.
    Affirmed.
    Wm. Watson, of Centerville, for appellant.
   CARL, J.

Appellant sued Johnie J. Stephenson and her husband in trespass to try title to recover 154 acres of land in Leon county and being a part of Leander Burns survey, and alleged that J. T. Boykin was common source of title. The trial was before the court, and judgment was in favor of appellant for an undivided one-fifth, and four-fifths in favor of appellees.

A. D. Keils conveyed the land to J. T. Boy-kin June 25, I860. J. T. Boykin and his wife, Mary L. Boykin, were divorced on the 24th day of November, A. D. 1870, in the district court of Leon county. The paragraph in that decree touching the property matter is as follows:

“And it is further ordered by the court that the sum of $322.60 be and the same is adjudged due from plaintiff to defendant as her alimony, being one-half of the property now owned by plaintiff, and, if not paid to the said defendant by 1st of January next, T. J. Oden and F. M. Eldridge are hereby appointed to partition and divide the property in question between the said plaintiff and defendant equally, and that costs of said suit be equally divided between the said plaintiff and defendant, for which let execution issue.”

The date when J. T. Boykin and Mary L. Boykin were married does not appear. He was killed about the 25th or 26th of December, 1870, or about one month following the divorce. The plaintiff (appellant) deraigns title through Mattie Boykin, the only child of J. T. and Mary L. Boykin, while appellees deraign title through Mary L. Boykin and her four children by J. M. Purvis, her second husband. These children by the second marriage are William, Albert, Sam, and G. C. Purvis.

On July 18, 1871, the commissioners, appointed at the November term, 1870, in the divorce decree, filed in court the following report, which, it seems, was adopted by the court:

“J. T. Boykin v. Mary Boykin.
“District Court, Leon County, July Term, 1871.
“July 28, 1871.
“The commissioners appointed at a former term of this court to partition the property heretofore owned by the said Boykin and wife during their marriage, between the said J. T. Boykin and the said Mary Boykin equally, having filed their report, the same is approved, and ordered to be entered of record as the judgment of the court:
“ ‘The 'State of Texas, County of Leon.
“ ‘To the Judge of the District Court in and for Said County:
. “ ‘We, the undersigned, commissioners appointed by this honorable court at the November term thereof, 1870, to partition the community property belonging to J. T. Boykin and Mary Boykin, formerly his wife, would beg leave to report as follows: That by and with the consent of the parties interested in said estate we have assigned and set apart to said Mary L. Boykin their homestead in said tract, containing one hundred and fifty-four acres of land, situated in the northwest corner of a grant to Leander Burns of 1,280 acres of land on the" waters of Buffalo creek, commencing at the N. W. corner of said grant and running east on the northern line far enough to include the said J. T. Boykin’s premises; thence south far enough to include the said 154 acres. The remainder of said estate is set apart to said J. T. Boykin. All of which is respectfully submitted, this 31st day of January, A. D. 1871.
“ ‘[Signed] T. J. Oden,
“ ‘E. jVT. Eldridge, Com.
“ ‘Filed the 18th July, 1871.
“ ‘Walter A. Patrick, Clk. D. C. L. C.’ ”

No limitation title is shown on either side of the controversy. Mattie Boykin married Robert Harrell, and appellant acquired whatever interest he has by his deed through mesne conveyance from Mattie and Robert Harrell. Mary L. Boykin died about 1895.

If the land was the separate property of J. T. Boykin, then upon his death it would all descend and pass to his daughter, Mattie Boykin-Harrell. Rev. Stats, art. 2461 (P. D. 3419). But, if it was community property, then upon the death of J. T. Boykin his one half would pass to Mattie, his daughter, and the other to his wife. And when Mrs. Boy-kin, afterwards Purvis, died in 1895, her interest would pass to the four Purvis children and Mattie Boykin-Harrell in equal shares. In other words, if the land was community property, and the orders of the district court of Leon county did not dispose of same, then Mattie Harrell would have been entitled to one-half, or her father’s interest, plus one-fifth of her mother’s half, or in all she would then be entitled to six-tenths of the whole. But, if the order of the court vesting title to all the 154 acres was valid and binding, the appellant would be entitled to an undivided one-fifth in the whole tract, and the court’s judgment in this ease would be correct.

Unless the judgment of the court awarding the land to Mrs. Boykin, in confirmation of the commissioners’ report, is void, then it cannot be collaterally attacked, and the trial court’s judgment in this case is correct.

Our examination of the authorities shows that it is the rule that, where the suit was filed after the death of a party, the judgment would he void; but where the death occurs subsequent to the filing and service, but before final judgment, the decree would not be void but merely voidable. This matter was fully discussed by Judge Williams in M. T. Jones Lumber Co. v. Rhoades, 17 Tex. Civ. App. 665, 41 S. W. 102, as well as in authorities therein cited. And Judge Fly so held in Campbell v. Upson, 81 S. W. 358, and in Lutcher v. Allen, 43 Tex. Civ. App. 102, 95 S. W. 576. The Jones v. Rhoades Case, supra, was by the Galveston Court of Civil Appeals, but the Supreme Court refused a writ of error. It is there held that the judgment of the court is conclusive proof of the jurisdiction of the court and cannot be impeached by proof of the death of the party before judgment, as was done in this case. See, also, Mills v. Alexander, 21 Tex. 154; Ledbetter v. Higbee, 13 Tex. Civ. App. 271, 35 S. W. 801; Kager v. Vickery, 49 L. R. A. 156, note.

The writer confesses that he is not able to see the logic or justice of the rule, for it seems that death ,/ught to stay even the strong arm of the law until the legal representatives of the deceased are made parties. But such is the law.

judgment confirming the report of the commissioners recites that the parties had agreed on the disposition so made of the property, and that judgment is conclusive. For aught this court knows, J. T. Boykin may have been unable to pay the moneyed judg-judgrendered in the divorce proceeding and agreed in writing to the disposition made by the court. Every presumption will be indulg-indulgin favor of that judgment.

This being true, the land became the property of Mary L. Boykin, and on her death her five children inherited it in equal parts. Therefore the judgment, giving the appellant a one-fifth undivided interest in the land, is correct.

The judgment is affirmed.
      <Scs>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, O. J.

text:
    BONE v. BLACK et al.
    (No. 780.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 27, 1915.
    Rehearing Denied March 27, 1915.)
    1. Schools and School Districts <©=380 —
    Public Schools — Contracts.
    Const, art. 7, § 3, provides that the Legislature may authorize an additional ad valorem tax to be collected within all school districts for the erection of school buildings, provided a majority ,of the taxpaying voters shall vote for such tax. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2839, provides that, on the vote of a majority of the taxpayers voting, bonds may be issued by the district and sold to the highest bidder; the purchase money being placed in the county treasury to the credit of the school district. Article 2843 provides that the funds arising from the sale shall be apportioned after they are placed in the treasury. Article 2853 invests the trustees of independent school districts with the powers of taxation conferred by law upon the council or board of aldermen of incorporated cities. Held, that as, until the bonds are sold, the voters might discontinue the tax, the directors of an independent school district cannot until the sale of the bonds enter into a valid contract for the erection of the building.
    [Ed. Note. — Eor other eases, see Schools and School Districts, Cent. Dig. §§ 191-194; Dec. Dig. <©=>80.]
    2. Schools and School Districts <©==>82 —
    Buildin gs — Erection—Contracts.
    A contract for the erection of a school building cannot be enforced, where it did not appear that the plans and specifications provided for the lighting, heating, and sanitation of the building as required by Acts 33d Leg. e. 120 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 2904b-2904q).
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 197, 198; Dec. Dig. <©=382.]
    Appeal from District Court, Motley County; Jo. A. P. Dickson, Judge.
    Action by Fred Bone against H. R. Black and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.

      Jones & Miller, of Amarillo, and T. T. Bouldin, of Matador (A. M. Mood, of Amarillo, of counsel), for appellant. G. E. Hamilton, of Matador, and D. E. Decker, of Quan-ah, for appellees.
   HUFF, O. J.

The appellant, Fred Bone, presented a petition to Hon. J. A. P. 'Dickson, judge of the Fiftieth judicial district, against H. R. Black and six others, as trustees of the Roaring Springs school district, also making the Maxwell-Stewart Construction Company a party defendant, praying for a mandatory injunction, requiring the school board to comply with the terms of a contract alleged to have been made between the trustees and Bone. Upon the presentation of the petition to the district judge, he set the case for rehearing in chambers for December 29, 1914. On that date the Maxwell-Stewart Construction Company was dismissed, and the court heard the evidence on the issues between Bone and the trustees, the judge hearing the case refused the prayer for injunction, and the appellant appeals to this court from that order.

As pertinently suggested by appellant, this record presents the issue: “Can a school board contract for a building after bonds therefor are issued, and prior to their sale, the work to commence when the funds are available?” We will later on suggest another issue not raised by either party.

A short statement of the facts will sufficiently present the issues without setting out the pleadings. There appears to be no controversy over the organization of the Roaring Springs district for school purposes under the statutes, or that H. R. Black and the six other named parties properly constituted the trustees of that district and were acting as the school board therefor; that the school district voted for an issue of §17,000 worth of bonds for the purpose of erecting a public school building for that district; that they were issued, and counsel agreed in the court below “that the bonds described in the plaintiff’s petition' were approved by the Attorney General of the state of Texas, July 8, 1914, and were registered in the comptroller’s department of the state of Texas, on July 11, 1914.” It appears the board advertised for bids, and appellant, among others, submitted a bid for the building of the schoolhouse according to certain plans and specifications, and that thereafter his bid was accepted. On the 10th day of July, 1914, a contract in writing was signed by Bone and the president and secretary of the board of trustees, whereby Bone agreed to erect and complete a three-story brick building in Roaring Springs, “work to begin when parties are notified the money is available,” and to be completed and ready for occupancy in 90 working days, according to the plans; etc. The price to be paid was $13,947.80. The trustees, it appears, in good faith made every effort to sell the bonds through the board of education at Austin and others. The authorities at Austin refused to take or buy the bonds. The trustees sent two men to Austin in order to effect the sale, but their efforts were fruitless. They advertised the bonds in the New Vork papers, and tried in several markets and cities to sell them. Owing to the depression in the money market, occasioned by the recent European war, a sale by the board could not be effected. The trustees proposed to appellant that he try to use the bonds or sell them. Appellant undertook to find a buyer, but was unable to place the bonds or sell them. The board was anxious that Bone should build the house, and desired that he should do so, and the district was badly in need of the building. It appears that, owing to the fact .that a railroad had recently been constructed into and had terminated at Roaring Springs, the population had rapidly increased, and the buildings in the place were unsuited for school purposes, and the children were scattered in different houses. The need for the building was pressing.

After the failure to sell the bonds as above set out, two construction companies thought, if they could get the contract to. build the house, they could sell the bonds. Various negotiations were had, unnecessary to set out. It finally resulted, on or about the 5th day of December, 1914, in about this situation: Judge Decker, who is in some way interested in the town of Roaring Springs, desirous with clients of his in having the building erected, undertook to aid the board in effecting a sale of the bonds, made a trip to Austin in the interest of the sale, but was unable to effect one. He was given authority by the board to procure the bonds while in Austin and take possession of1 them. Through his instrumentality, and that of others, Maxwell &. Stewart, as a copartnership, agreed to erect the building for $15,-300, and to sell the bonds and place the money in the bank to the credit of the district. There was a contract drawn up and signed between Maxwell & Stewart and the board of trustees with reference to the building. Both the contract and the bonds were placed in the hands of Judge Decker, and when the money was paid on the bonds — that is, their face value, plus the accrued interest, in the bank to the credit of the district — he (Decker) was to deliver the contract, and the contractors are then to proceed to the construction and to receive their payment according to the terms of the contract, by warrants drawn as required by law- We believe this is about the situation when the injunction was sought, as shown by the record.

Art. 7, § 3, of the Constitution, now provides that:

The “Legislature may authorize an additional ad valorem tax to be levied and collected within all school districts, heretofore formed or hereafter formed, for the * * * maintenance of public free schools, and the erection and equipment of school buildings therein: Provided, that a majority of the * * * property tax paying voters of the district, voting at an election to be held for that purpose, shall vote such tax, not to exceed in any one year fifty cents on the $100.00 valuation,” etc.

In conformity therewith, the Legislature, by article 2858, Vernon’s Sayles’ Civil Statutes, provided that a petition may be presented to the board of trustees by 20 or more of the qualified taxpaying voters of a school district, to determine whether the qualified voters desire the issuance of bonds mentioned in the petition. Then follow the articles prescribing the method of holding the election, etc. Article 2857 provides for the levy of taxes to pay the bonds. Article 2839, if a majority of the votes cast are in favor of the bonds, bonds may be issued on the faith and credit of such district. The bonds shall be examined by the Attorney General and registered by the comptroller. “They shall be sold to the highest bidder, and the purchase money shall be placed in the county treasury to the credit of said school district, and the money shall be disbursed upon warrants issued by the trustees of said district, approved by the county superintendent, in payment of accounts legally contracted in buying, building, equipping or repairing the schoolhouse * * * for such district, or in the purchase of sites therefor.” Article 2842 provides, after the bonds have been issued and sold and the tax levied, it is declared unlawful to hold an election to determine whether the tax shall be discontinued or lowered until the bonds are fully paid. Article 2843 provides that funds arising from the sale shall be apportioned after it is placed in the treasury for the purpose of building after the manner provided by law for the division of the funds for the maintenance of public schools therein. Article 2853 invests the board of trustees in independent districts with the rights and duties in regard to the establishing and maintaining free schools, including the powers and manner of taxation conferred by law upon the council or board of aldermen of incorporated cities and towns. Article 2856 declares that school districts in certain instances shall be governed in the general administration of their schools by the laws which apply to common school districts, and funds of such districts should be kept in the county depositories and paid out on the order of the trustees, approved by the county superintendent. We are not informed in this case whether the district had fewer than 150 scholastics according to the last census. Article 2871, and other portions of the general school laws, evidence the fact that independent school districts and cities and towns having charge of the common schools are subject to the general laws with reference to common schools.

The scope and meaning of article 2853, with reference to the powers of trustees in the management of public schools in the district and the power to contract with reference to buildings therein, is discussed in Peck-Smead Co. v. City of Sherman, 26 Tex. Civ. App. 208, 63 S. W. 340, and Hamilton v. Bowers, 146 S. W. 629. They may issue bonds to obtain money to build. A tax must be levied to pay the bonds in order to make them valid. If the money is not and cannot be obtained on the bonds, the obligation of a contract to pay the price of the house is void, for the reason there is no fund out of which it can be paid.

“It is clearly contemplated in the law cited that the contract shall be made after the bonds shall have been issued and sold, and that the money arising from such sale shall be disbursed only to satisfy and meet such contracts.” Board of Trustees, Alpine District, v. Jacob, 170 S. W. 795.

Appellant urges that the above expression of the court is dicta. It may be that it was not necessary to hold in that case that the bonds must be sold, inasmuch as the issuance of the bonds in that case was illegal. We nevertheless think the proposition stated is a correct one. It is manifest from a reading of the statutes that it was the intention of the Legislature not to confer any power upon the trustees to contract and to create an obligation against the district until funds are available. At what point, if this is not a correct proposition, will the trustees be vested with power? Certainly not before the petition presented for an election, or before a vote authorizing the tax. It could not be before the bonds are approved and registered by the comptroller. It takes all these to make a valid bond. When this is done, there is nothing to pay the amount due' on the contract. The bonds must be sold, and the money in the treasury. When that is done, the trustees may contract. Up to that time they are not vested with authority to contract for the building.

Article 2842 indicates that until the bonds are sold the taxes levied to pay them may be discontinued by vote. If before they are sold the tax should be discontinued, the bond will be valueless. Hence a contract before they are sold does not bind the fund. There is no power in the trustees to give bonds for the building. They must be sold, and the money placed in the treasury, and drawn out upon the proper order. The trustees have no power or authority over these bonds until they are sold. No discretion is vested in them when they shall contract. It must be done when the money is in the treasury for that purpose, or is available; otherwise, they can create no obligation against the district. We think it is a general rule “that such contract can be entered into, only to the extent of funds provided and available for that purpose,” by trustees. 35 Gyc. 951, '952 (A) note 97.

As we understand, our Supreme Court limits the power to common school trustees to contract with a teacher to such funds only as are available for that year. True, the statute then under investigation expressly stated they could not create a deficiency debt against the district. Collier v. Peacock, 93 Tex. 255, 54 S. W. 1025; Bank v. March, 51 S. W. 266. The statute in this instance does not expressly provide that the trustees shall not create a deficiency debt, but the Constitution and the statutes clearly imply such a prohibition. True, provisions were made to obtain funds to build the house. This the trustees had no power over, but these funds were unavailable, and the power of the trustees, until so available, was not vested in them to contract. Peck-Smead Co. v. City of Sherman, 26 Tex. Civ. App. 208, 63 S. W. 340.

We see no equity in behalf of the appellant. He contracted when he knew there were no available funds, and stipulated that he was not to begin work until the funds were available. We do not think the board had the right at such time to bind the district indefi•nitely on the contract. Times change; the price of material fluctuates. It should not be, and we do not believe it is, the policy of the law to so permit the board to burden the probable future available funds of the district upon an indefinite contract- This case is an illustration of a hardship on the district, should such contract be permitted. The state would not buy the bonds. The money markets were so demoralized on account of the European war that the bonds could not be sold. Appellant himself could not sell or place the bonds. For nearly five months the children were out of a schoolhouse, the taxpayers taxed to pay the interest and sinking fund, and when the first opportunity is presented to sell the bonds, and to parties who are willing to place them and get the money, provided they can get the contract to build, appellant, setting up his purported equities, seeks to enjoin the board from so selling the bonds and entering into the contract. He could not either buy or sell the bonds, could not comply with the contract to construct, but he is unwilling that any other should do so. We do not think the trustees have the power to place the district in such a situation, and that their purported act in attempting to contract with appellant was ultra vires.

The appellant shows no equity in his bill or by the evidence, for the further reason that he does not show that the plans and specifications of the building provided for the lights, heating, sanitation, etc., of the building, such as the act of the Thirty-Third Legislature requires. Chapter 120, p. 244, Acts 1913. He does not show that the board had a permit to erect such a building as he contracted to build. Section 13 of the act provides that as to buildings to be erected for school buildings for common school districts the county superintendent of the county, and in independent school districts the superintendent of public schools in that district, shall issue a permit showing that the plans, etc., conform to the requirements of the act. Section 14 of the act provides that no person whose duty it is to distribute funds shall pay or authorize payment of public money for the construction of any school building until the board of trustees has secured a legal permit for such work. A disbursing officer, who so pays out such funds, is made personally liable for the money so paid. See Vernon’s Sayles’ Civil Statutes, arts. 2904b to 2904q, inclusive. If there was no such permit, as provided for by the above law, to erect the building, which appellant claims he had a contract to erect, then the contract is void for that reason. There is no allegation that there was such a permit, nor was there any proof to that effect.

We think the trial court properly refused the injunction, and the case will be affirmed.
      @=»For other cases see same topic and KEY-NUMBER in all Key-Nambered Digests and Indexes


author: HENDRICKS, J.

text:
    NORTHCUTT et ux. v. HUME et al.
    (No. 716.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 30, 1915.
    Rehearing Denied March 27, 1915.)
    1. Covenants <&wkey;130 — Damages for Breach —Partial Failure of Title.
    A purchaser of land, title to a part of which fails, is entitled to recover damages bearing the same proportion to the whole purchase money as the value of the part to which the title fails bears to the whole premises, estimated at the price paid.
    [Ed. Note. — For other eases, see Covenants, Cent. Dig. §§ 245-253, 255-257; Dec. Dig. &wkey; 130.]
    2. Covenants <&wkey;122 — Actions for Breach— Sufficiency of Evidence.
    In an action for damages from the failure of title to a part of one of two tracts of land conveyed to plaintiff with a warranty of title, where, though the number of acres the title to which failed was shown, it appeared that the sale was not by the acre, but that the two tracts, aggregating 320 acres, were sold for the gross sum of $8,000, and plaintiff did not show the value of the land lost or of the rest of the land, or that it was of uniform value, he could not recover substantial damages.
    [Ed. Note. — For’ other cases, see Covenants, Cent. Dig. § 224; Dec. Dig. &wkey;>122.]
    3. Appeal and Error <®=»1171 — Reversal — Nominal Damages.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1327, providing, relative to counterclaims, that if defendant shall establish a demand against plaintiff exceeding that established against him by plaintiff, the court shall render judgment for defendant for such excess, and article 1328, providing that when a counterclaim is pleaded the party in whose favor final judgment is rendered shall recover his costs, unless the counterclaim was acquired after the commencement of the suit, in an action by a purchaser of land, title to a part of which failed, against the vendor and the holder of notes secured by a deed of trust on the land to restrain a sale under the deed of trust and to recover on the warranty of title, in which the holder of the deed of trust set up his demand on the notes and it was agreed in open court that whatever judg- . ment might be rendered in favor of plaintiff against the vendor might he credited on the notes and judgment for the balance due rendered in favor of the holder of the notes, a judgment against plaintiff would not be reversed because of the error in denying a recovery of nominal damages, as against the holder of the deed of trust, since a recovery of nominal damages would not have entitled plaintiff to the costs as against such holder.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4546-4554; Dec. Dig. <§=> 1171.]
    4. Appeal and Error <&wkey;117S — Reversal — Nominal Damages.
    The judgment would not be reversed as against the vendor, as the holder of the deed of trust would have no right to join him in defending the case, and to reverse the case as to the vendor and the purchaser with the holder of the deed of trust eliminated would not be fair to such holder, and would require the elimination of the agreement to credit any recovery on the secured notes.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4562-4572, 4656; Dee. Dig. &wkey;1173.]
    Appeal from District Court, Potter County; Jas. N. Browning, Judge.
    Action by Z. T. Northcutt and wife against H. E. Hume and others. From a judgment
    for defendants, plaintiffs appeal.
    Affirmed.
    X. W. Holmes, of Plainview, and Synnott & Underwood, of Amarillo, for appellants. John W. Yeale and W. A. Davidson, both of Amarillo, for appellees.
   HENDRICKS, J.

In July, 1912, the appellant Northcutt, traded a half section of improved 'land near Wildorado, in Oldham county, Tex., and also some cattle and hogs to the appellee Hume, for two different tracts of land in Hale county, Tex., one of which was known as the Stringfellow preemption survey and the other designated in this record as the tract “near Hale Center.” Hume deeded both tracts, of 160 acres each, in the same instrument to the said North-cutt, for the recited consideration of the aggregate sum of $8,000, said deed containing a clause of general warranty. As part of the consideration of the exchange of this land, Hume assumed $4,500 upon the North-cutt land, and also loaned Northcutt the sum of $2,600, which was used by the latter in paying off certain indebtedness, including a mortgage upon the cattle. As a part of the same trade, Northcutt executed two deeds of trust to J. S. Stringfellow, as trustee, in favor of Hume, one upon the Stringfellow pre-emption survey, to secure a promissory note for $1,000, and the other deed of trust upon the tract near Hale Center, for the purpose of securing a note for $1,600. Appellant says:

“The record fairly supports the statement that the property of each was in full payment of the property of the other in this exchange, and that the notes given were to secure Hume in the repayment to Hume of money actually advanced by him to pay Northcutt’s indebtedness above reí ferred to.”

The notes were transferred to the Canadian Oil & Gas Company, by the appellee Hume, and the latter was proceeding to advertise for the purpose of effectuating a sale of the Stringfellow pre-emption survey, for the purpose of realizing on the $1,000 note, and this suit was brought by Northcutt and wife against said Canadian Oil & Gas Company by injunction to restrain said sale, joining H. E. Hume as a party defendant, alleging a failure of title to 89.2 acres of the Stringfellow pre-emption survey, declaring upon a general warranty and praying judgment against defendant Hume for the sum of $2,230, alleged to be the purchase price of the tract of land to which the title had failed. Upon close of the case, the district judge peremptorily instructed the jury against the appellant, which action is vigorously assailed in this court as error.

The deeds are not in the record, but we infer that the one upon which the action is based, was a conveyance from Hume to Northcutt of the two tracts of land for the recited consideration in gross of the sum of $8,000.

Appellant- pleads that the two notes of $1,000 and $1,600, respectively, were a balance of a consideration for the purchase price of the land, which, in accordance with the statement quoted from his brief, is a mistaken allegation. We also infer from the record that these two notes, secured by a lien upon the respective tracts of land embraced in the deed from Hume, represented a loan, and were not a part of the purchase money. Appellant’s petition also contains the following allegation:

“That the price [paid] therefor by plaintiffs and agreed to be paid to the defendant Hume was $25 per acre, or a total of $2,230. [Meaning the price paid for the land to which the title failed.] That by reason of the premises the defendant Hume is thus indebted to plaintiffs for and on account of said breach of warranty in the sum of $2,230, * * * an(j that ¡s the measure of plaintiffs’ damage for and on account of said breach, and all that plaintiffs can recover therefor, no matter how much more they may lose by and on account therefor.”

There is no allegation of the value of any of the land embraced in Hume’s deed to Northcutt; there is also a lack of averment that the land is of uniform character or of average valuation, and the record is devoid of any suggestion of the value of said land, or any part of same, unless the description of the tract to which the title is good, “near Hale Center,” would afford a surmise or suggestion that it is not of the same value as the Stringfellow pre-emption tract on account of being “near Hale Center”; the latter as to quality or character not being described in any manner.

In the case of Hynes v. Packard, 45 S. W. 562, 92 Tex. 44, Justice Brown said:

“If the title had failed to all the land conveyed by. Hynes to Packard, the measure of damages would be the purchase money, with interest, from the date of payment. The failure, however, being partial, and of a definite part of two of tbe many surveys that were conveyed, the rule by which to ascertdin the grantor’s liability under the warranty is * * * stated thus: ‘The damages will bear the same proportion to the whole purchase money as the value of the part to which the title fails bears to the whole premises estimated at the prices paid.’ ”

This rule as to the measure of damages, enunciated, by the Supreme Court, where there has been a partial failure of title, is practically universal. Appellant introduced proof of the value of the 320 acres conveyed to Hume and of the hogs and cattle transferred as additional consideration to the land for the two tracts received by him in exchange, however, as stated, without the introduction of any testimony as to the value of any of the land embraced in the Hume deed to him, nor of any testimony as to uniformity of condition or quality of said land. Northcutt says: '

“Plaintiffs having proved that the defendant Hume’s warranty to part of the land conveyed had failed, and having adduced evidence upon which the jury could have found the price per acre paid by plaintiff to the defendant Hume for such land, the court should have submitted said cause to the jury. * * ⅜ ”

Appellant’s trouble is, upon a .thorough consideration of his argument, even assuming that there is a recited consideration in the deed, which would bind the appellee at an agreed price, this is á sale of a tract (or two tracts) of land for a gross sum. We do not think the assumption, logically speaking, is justified, because a man pays $8,000 for 32Q acres of land, that he is paying or has paid $25 per acre for said land. It may be true, mathematically speaking, that the average price per acre is $25, but in a case of this character, the whole amount is conveyed as one tract and for the consideration of one sum of money. Of course where the whole land is lost, you conclusively presume the value of the whole is the estimated value; but in case of a conveyance of a whole tract for an estimated sum in gross for the whole, when you sue for loss of a part, the value of that partial deficiency is the true criterion, measured in accordance with the rule announced in Hynes v. Packard, supra, and practically all other courts.

“The rule, as established in most of the states of this Republic, and, in fact, of most civilized countries, is that the measure of damages for a breach of such a covenant is what the party ao tually lost by such breach; and if the title has wholly failed, then the whole of the purchase price, with interest, is the measure of damages, and if the title has partially failed, and the consideration was paid as a whole, then the measure of damages is the proportion in value that the land to which the title failed .bore to the whole land; or if the consideration was sever-able as to the various tracts, and the title failed as to one of these tracts, then the measure of damages was the price paid for the particular tract, with interest. 8 Am. & Eng. Ency. of Law (2d Ed.) 183, 184; King v. Ginson’s Adm’x, 32 Ill. 348, 83 Am. Dec. 269; Weber .v. Anderson, 73 Ill. 439; Frazer v. Peoria County, 74 Ill. 282; Tone v. Wilson, 81 Ill. 529. The authorities usually agree, and in this state (Illinois) the rule is established, that in estimating the extent of the damages, where there is a partial failure, the value of the property at the time of the conveyance shall form the basis.” Lloyd v. Sandusky, 203 Ill. 621, 68 N. E. 157.

Also see White v. Street, 67 Tex. 177, 2 S. W. 529.

The consideration in the instant ease is not severable until the proof severs it — the contract has not severed the consideration.

The Supreme Court of Ohio, in the case of Conklin v. Hancock, 67 Ohio St. 463, 66 N. E. 520, after announcing the law, in consonance with known principles, exhibits a severable case, saying:

“When the contract of sale * * ⅜ is read in connection with the deed, we ascertain beyond cavil that the vendor conveyed 266 acres of land * ⅜ * for t]je prigg 0f $500 for each and every acre without exception, aggregating the gross, amount of $133,000 as expressed in the deed. Therefore the consideration which was actually paid for the 3.24 acres deficient is conclusively shown to be $1,620, for which * * the plaintiff was entitled to judgment.”

The Court of Civil Appeals of the Third District reversed the judgment of the trial court in the cause of White v. Holley, 3 Tex. Civ. App. 591, 24 S. W. 833, solely upon the ground of a lack of proof where there was a partial loss of the land, saying:

“But because the conflict is only a partial conflict, and because we are not informed as to whether the part not in conflict is worthless or not, we conclude that the judgment of the lower court should be reversed, and remanded.”

The Supreme Court of Iowa said, in the case of Mischke v. Baughn, 52 Iowa, 530, 3 N. W. 545:

“Appellee insists, however, that the burden is upon the defendant to establish the relative value of the part of the lot conveyed to plaintiff, and that, as no such proof was introduced, the court properly charged the defendant with the consideration received for the entire lot. This position is not correct. The plaintiff asks relief, and the burden of proof is upon him to establislf * ⅜ * the facts showing that he is entitled to relief, and to what extent.”

While the judgment of the trial court in that cause was evidently erroneous on account of being excessive, the opinion, however, of the court was more far reaching, in enunciating the burden of proof.

The Supreme Court of Wisconsin said:

“The deed was at least prima facie evidence of the consideration, and it was for this purpose properly received. Thereupon, the plaintiff submitted the question of damages without further proof, upon the mere presumption that the 35 acres were of the same value as that of the 60 acres, and that therefore the damages were as $35 to $60 of the $1,900. It is very doubtful whether any such presumption is raised by the deed alone, and whether the plaintiff, on such evidence alone, was entitled to recover anything more than nominal damages. It is certainly a very violent presumption that two tracts of land are of equal value without any other proof than the-number of acres of each tract.” Bartlett v. Braunsdorf, 57 Wis. 1, 14 N. W. 869.

The language there is only persuasive, as the point was not distinctly decided.

The case of Griffin v. Reynolds, 17 How. 610, 15 L. Ed. 230, decided by the Supreme Court of the United States, discloses this condition :

“The court was requested by the plaintiffs” in error “ ‘to instruct the jury that this is an action for damages, and that the plaintiff can only recover the value of the part lost, if a part only was lost, at the time of the eviction, in proportion to the amount * * * paid,’ which charge was refused; and the jury was instructed that if the plaintiff had not lost all the land conveyed to him by the defendant, then the jury might allow him the average value of the part lost, in proportion to the price paid for the whole.”

The Supreme Court further said, in commenting upon this latter charge:

“Tire measure of damages is the loss actually sustained by the eviction from the land for which the title has failed, and that damage would not usually be ascertained by taking the average value, though the recovery could not exceed the consideration paid, interest and expenses of suit.”

tVe assume that in that ease there was no testimony of the value of the land lost; Otherwise the charge requested by the plaintiff in error in consonance with the known law on that subject, would have been given if the proof had been made; and not the charge of an average value of the part lost in proportion to the price paid; siieh a charge must have been based on the lack of proof which the Supreme Court said was error.

It is noted that the appellant in this cause alleges that it paid $25 per acre for the land, but a deed of this character, where an entire tract is sold for a gross amount, is not an agreement that each acre of land was of the value of $25, and that the vendee was paying that price per acre for said land. You cannot read into this character of contract, where the consideration is not sever-able by agreement, that Northcutt gave Hume, and that Hume received, $25 per acre for the 89Vio acres lost, if it were lost; you, of course, may read into it, if a part is lost, that Hume has agreed to pay the value of the land lost in proportion to the whole price. If that only be true, then to say that this value is 320 acres into $8,000, bfe-cause it is a mathematical average, when the land was not sold per acre, but in an entire body for a gross sum, and without any proof of value of uniformity, is not proof of proportionate value. See Mengel Box Co. v. Ferguson, 124 Tenn. 433, 137 S. W. 104; Major v. Dunnavant, 25 Ill. 262. The proportionate relative value of the part referable to the estimated value is the measure; and where the allegation is that he paid a gross amount, which is proven, an additional allegation that he then paid $25 per acre, which is not proven, with an absence entirely of any value of the land lost, or the land preserved, or the land “near Hale Center,” is not sufficient to put the ease to the jury on substantial damages. The pleader in this cause as to value does not even place the status of his case as to pleading within the purview of the dictum of the Supreme Court, in the case of Hynes v. Packard, supra; and it is a different case from that decided by Justice Stephens (Gass v. Sanger, 30 S. W. 503), where uniformity was shown and the court was able to deduce the value of each acre proportionately to the price paid, and which the facts of different tracts makes the burden harder.

Appellant asserts that he established a breach of the contract of warranty, and therefore was entitled to nominal damages, and that the same should have been submitted to the jury for the establishment of such damages, which would have carried the costs.

“Nominal damages mean no damage at all. They exist only in name, and not in amount. In the quaint language of an old writer, they are ‘a mere peg to hang costs on.’ They are such as are to be awarded in a case where there has been a breach of a contract and no actual damages whatever have been or can be shown.” Stanton v. Railway Co., 59 Conn. 282, 22 Atl. 303, 21 Am. St. Rep. 116.

In this cause, as stated, appellant, as plaintiff in the court btelow, sued to restrain the Canadian Gas & Oil Company from selling the land under deed of trust, making appellee Hume a party defendant to the suit on the warranty. The Canadian Gas & Oil Company set up its demand with reference to the notes, and the following agreement was entered into between all the parties in open court:

“It was agreed in open court that the same defense could be made to the notes in the hands of Canadian Gas & Oil Company as if they were in the hands of H. E. Hume; so that whatever judgment might be rendered in favor of plaintiffs against defendant Hume might be credited on the notes, and judgment for the balance due to be rendered in favor of the Canadian Gas & Oil Co.” v

We think it clear, after the Canadian Oil & Gas Company, as a defendant, had set up its demand on the notes, that a nominal judgment against Hume, credited upon the notes, would not have carried the costs against the Canadian Oil & Gas Company. “On the trial of such issue, if the defendant shall establish a demand against the plaintiff exceeding that established against him by the plaintiff, the court shall render judgment for the defendant for such excess.” Article 1327, Vernon’s Sayles’ Civil Statutes. And under article 1328 costs are adjudged against appellant. In this cause we are clear that the judgment should not be reversed as against the Canadian Oil & Gas Company, and to affirm the judgment against it, then to return the litigation for the reframing of issues, and the retrying of same between Hume and Northcutt, would not equitably work out, bearing in mind the rights of the Canadian Oii & Gas Company. It would have no right to join Hume in fighting the cause, the case against it would be closed; and we think it would not be fair to the Canadian Oil & Gas Company to reverse the case as to North-cutt and Hume and permit them to fight the issues and the lawsuit over again, with the Canadian Oil & Gas Company eliminated. To do that, the agreement above quoted should also be eliminated, which we do not feel like asserting on this appeal, and on the whole, we think the cause should be affirmed; and it is so ordered.

Affirmed.

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