author: LANE, J.

text:
    BAILEY v. BURKITT.
    (No. 7503.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 15, 1918.)
    1. Vendor and Purchaser <&wkey;46 — Contracts — Construction — Ascertainment oe Intention.
    In construing a contract for the sale of land, the court must look to all parts of the instrument and the surrounding circumstances to ascertain the intention of the parties in making use of the particular words and phrases and in making the contract as a whole.

      2. Vendor and Purchaser <&wkey;79 —Statute of Limitations — (Right to Recover Real-tv— “Deed of Conveyance” — “Vendor’s Lien Notes.”
    A contract for the sale or lease of land, whereby the seller promised he would make a deed and convey to the buyer only on the buyer’s making specified payments, which in fact were never made, was not a “deed of conveyance,” and the conditional obligations of the buyer to pay the sums mentioned were not “vendor’s lien notes,” within Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 5-694, providing that the right to recover any real estate by virtue of a superior title retained in any deed of conveyance or in any vendor’s lien notes given for the purchase money of such real estate shall be barred after four years from the maturity of the indebtedness.
    3. Appeal and Error <&wkey;907(3)— Presumptions Favoring Trial Court — Sufficiency of Facts to Support Judgment.
    In the absence of a finding of facts or a statement of facts, the Court of Civil Appeals must presume that the trial court had sufficient facts before it whereon to render the judgment it did render.
    4. Vendor and Purchaser <&wkey;79 — Vendor’s Right to Declare Contract Void — Notice in Writing.
    Where a contract for the sale or lease of land provided that the seller, on the buyer’s failure to perform, should have the right to declare it null and void, in so far as it obligated him to convey the land, without any declaration of forfeiture, and also provided that the seller should have the right to demand possession after notice in writing to the buyer that he had already declared the contract null and void, etc., the contract did not require that the seller should give the buyer notice in writing as a prerequisite to his right to declare the contract null and void.
    Appeal from District Court, Anderson County; John S. Prince, Judge.
    Suit by George W. Burkitt against Charles E. Bailey and another. From a judgment for plaintiff, the named defendant appeals.
    Affirmed.
    B. H. Gardner, of Palestine, for appellant. Thos. B. Greenwood, of. Palestine, for appel-lee.
   LANE, J.

This suit was instituted in the district court of Anderson county, Tex., on the 20th day of September, 1916, by George W. Burkitt against appellant Charles E. Bailey and his tenant, R. M. Kennedy, in the ordinary form of trespass to try title to certain land described in plaintiff’s petition. Judgment was rendered for Burkitt against both defendants for the land. Charles E. Bailey alone appealed.

The following statement is deemed sufficient for an understanding of the nature of the suit and result of the trial.

On the 20th day of March, 1904, George W. Burkitt and Charles E. Bailey jointly executed in duplicate a contract in writing whereby Burkitt agreed to either sell or lease to Bailey certain land in said contract described, conditioned: That Bailey would pay Burkitt $100 cash and would pay Burkitt the further sum of $15 and interest there- ■ on, on the 20th day of April, 1904, and $15 on the 20th day of each and every month thereafter, and interest thereon at the rate of 10 per cent, per annum, up to and including the month of March, 1909, a total sum of $1,0.00, exclusive of interest; that Bailey would pay said sums of money punctually as each of said sums became due, and would pay all taxes due on said land. It was further conditioned that in case Bailey should punctually pay. the several sums of money at the several times above mentioned, and strictly and literally perform all and singular the agreements and stipulations in said contract above mentioned, then Burkitt would make him a deed, conveying to him said land, upon a request of Bailey so to do- and upon surrender by Bailey of his contract; but that should Bailey fail to make the aforesaid payments, or any of them, punctually within the time limited, or failed to otherwise fully perform his part of the-contract, Burkitt should have the right to declare the contract null and void in so far as it obligated him to convey said land, and all rights and interest created by said contract in favor of Bailey should cease and terminate, and that said premises should revert to and vest in Burkitt without any declaration of forfeiture, or without any other act upon the part of Burkitt, and without any right of Bailey for reclamation or compensation for moneys paid or improvements-made on said land, as absolutely, fully, and perfectly as if said contract had never been made.

It was further conditioned that should Bailey fail to make said payments, or any part of them, or fail to perform his other obligations under the contract, and Burkitt should exercise his right to refuse to convey said land to Bailey, all payments made by Bailey should be applied as payments of rent for the use of the premises, and that upon-notice in writing from Burkitt to Bailey that he (Burkitt) had declared the contract null and void in so far as it obligated him to convey said lands, said Bailey should be regarded as willfully holding over said land after the termination of the time for which said land was leased; that is to say, that said contract should be construed to be a lease to terminate upon the failure of Bailey to comply with the terms thereof, and that Burkitt should then have the right to demand possession of the land and premises;- and should Bailey fail to deliver up such possession Burkitt should have the right to proceed to recover such possession by an action of forcible entry and detainer.

Appellant answered setting up the terms of the contract; averred that the last sum to-be paid by the terms of the contract had been due and payable more than six years-prior to the filing of plaintiff’s petFj.on; no-extension of the time of payment of said. sum had heen made in any manner, and that therefore appellee’s cause of action was barred by the four-year statute of limitation as provided by articles 5694 and 5695, Vernon's Sayles’ Civil Statutes of Texas.N

The undisputed evidence shows that Charles E. Bailey paid the $100 cash payment called for by said contract on the day of the execution thereof, to wit, March 20, 1904; that he took possession of the land under the provisions of the contract and has held possession thereof ever since, either in person or by tenants; that Bailey made irregular payments during the years from 1904 to 1913, inclusive, except the years 1908, 1911, and 1912, but during these years he made no payments whatever, nor were the payments made by him during the other years mentioned in accordance with the terms of the contract; that after deducting all payments made by Bailey from the amount specified in the contract to be paid to Burkitt with the agreed interest thereon, there remained unpaid of same the sum of $1,099.44.

The foregoing statement is substantially the facts as found by the trial court. As conclusions of law, the court said:

“(1) I find that the written instrument of date March 20, 1904, set out above, is a mere executory contract for a deed, and that defendant Bailey has failed to perform his obligations thereunder, and that hence plaintiff, as the owner of the title to the land, is entitled to judgment.
“(2) I find that since plaintiff’s right to recover does not depend upon any superior title retained in any deed of conveyance or in any vendor’s lien note, but is based upon the ownership of title to land, of which he has never been divested, therefore articles 5694 and 5695 ■of Vernon’s Sayles’ Texas Civil Statutes do not bar plaintiff’s right to recover, and judgment will he entered in his favor for the title and possession of the land in controversy.’’

Appellant’s first assignment of error is as follows:

“The court erred in rendering judgment for the appellee instead of for appellant, the conclusion of fact filed by the court showing thali appellee’s cause of action was barred by limitation under articles 5694 and 5695 of Vernon’s Civil Statutes of Texas.”

Article 5694 referred to in the assignment reads as follows:

“The right to recover any real estate by virtue of a superior title retained in any deed of conveyance heretofore or hereafter executed, or in any vendor’s lien notes heretofore or hereafter executed, given for the purchase money of such real estate, shall be barred after the expiration of four years from the maturity of such indebtedness, and if suit is not brought for recovery of such real estate, or for the foreclosure of the lien to secure such note or notes within four years from the date of the maturity of such indebtedness, or if suit is not brought within such time for the recovery of the land by the original vendor, or his transferee, or for the foreclosure of the lien given to secure such notes, the purchase money therefor shall be conclusively presumed to have been paid in any suit to recover such land or to enforce a lien thereon, and the lien reserved in any such notes and deeds conveying the land shall cease to exist four years after the note •or notes have matured, provided the lien- reserved in such note or notes may be extended as provided in section 5695 of this chapter and provided, if several obligations are secured by said deed of conveyance, the same may be enforced at any time prior to four years after the note or obligation, last maturing has matured and may be enforced as to all notes not then barred by the four years statute of limitations.”

There is no contention on the part of appellant that there was any extension of any obligations assumed by either party to the contract, as provided by article 5695, and therefore it is unnecessary to notice or discuss the provisions of that article.

The contention of appellant succinctly stated is, that the instrument in question must he construed to constitute a “deed of conveyance,” such as mentioned in article 5694 above cited, and that the conditional obligations for the payments of the sums mentioned in the instrument must be construed as being vendor’s lien notes, though not strictly such; and that as the last of the sums mentioned in the instrument was to be paid on the 20th day of March, 1909, and this suit was not filed until the 20th day of September, 1916, more than six years after the last sum mentioned in the contract was to be paid, and as no extension of the time of payment had been made, the right of appel-lee to recover the land involved in this suit was barred by the statute of limitation of four years at the time of filing said suit.

It is stated in appellant’s brief that he does not contend that the instrument in this case is an absolute deed of conveyance, or that the conditional promise to pay the same mentioned therein constitutes a promissory note, “but that he does contend that the instrument is an executory contract of sale, and, in legal effect, is that kind of a deed of conveyance wherein the superior title is retained in the vendor until the purchase money is paid, or until such time has elapsed after maturity that the law conclusively presumes payment.” This contention is based, he says, upon the use of some expressions therein, such as, “The party of the first part agrees to lease or sell unto the second party” ; “the lot herein conveyed”; “the consideration being $1,000”; “the same being part of the purchase money,” etc.

In construing the contract, we must look to all parts of the same and the surrounding circumstances to ascertain the intention of the parties in making use of the words and phrases therein, and in making the same as a whole. When this is done it is manifest that appellee did not convey, or intend, by the instrument, to convey to appellant either a legal or equitable title to the land in question. It is also manifest that the only promise made by appellee in the instrument was that he would make a deed and convey the land to appellant only upon the performance by appellant of certain things specified in the instrument, and which the undisputed evidence shows were never performed.

We think appellee did his best to have the contract in question so worded as to show that he did not intend thereby to pass any sort of title to the land to appellant, and that he would not do so unless, and only in the event, appellant fully complied with his part of the contract, and he is unfortunate, indeed, if he could not find language to express such intention, but we have no sort of doubt that he has clearly expressed his intention by the language of the contract. It is provided in the contract that:

“Should the party of the second part fail to make the payments aforesaid, or any part of them, punctually and upon the strict terms and time above limited, and likewise to perform and complete all and each of the agreements, and stipulations aforesaid strictly and literally, without any failure or default, then the party of the first part shall have the right to declare this contract null and void in so far as it obligates him to convey said land to the party of the second part, and all rights and interest hereby created, or then existing, in favor of the said party of the second part, or derived under this contract, shall cease and determine, and the premises hereby contracted shall revert to and revest in party of the first part (without any declaration or forfeiture, or without any other act by said party of the first part to be performed, and without any right on the part of the party of the second part for reclamation or compensation for moneys paid or improvements made) as absolutely fully and perfectly as if this contract had never been made.”

We do not think that either the statute or the decisions cited by appellant to sustain his contention have any application to the suit of appellee, nor do they tend to support his defense. It is unnecessary to cite authorities in support of the conclusions reached or to prolong this discussion. The assignment is overruled.

It is insisted by the second and last assignment that:

“The court erred in rendering judgment for appellee because under the contract between appellant and appellee the appellee had no right to possession until he had notified appellant in writing_ that he had declared said contract null and void in so far as it obligates him to convey said land to appellee, and there was no such notice given.”

We overrule the assignment. Appellant does not seek by his answer to avoid the rescission of the contract by reason of the fact, if it be a fact, that appellee did not notify him in writing that he (appellee) had declared the contract null and void, and, besides, there is neither a finding of fact on this point, nor statement of facts in the record, and in the absence of either a finding of facts or statement of facts we must presume that the court had sufficient facts before it to render the judgment it did render.

Again, we do not think that the contract required that appellee should give appellant notice in writing as a prerequisite to his right to declare the contract null and void. The contract specially provides that appellee, upon the failure of appellant to comply with his part of said contract, should have the right to declare the contract null and void—

“in so far as it obligates him to convey said land to the party of the second part, and all rights and interests hereby created, or then existing, in favor of the said party of the second part, or derived under this contract, shall cease and determine, * * * (without any declaration of forfeiture, or without any other act by said party of the first part to be performed, and without any right of the party of the second part for reclamation or compensation for moneys paid or improvements made) as absolutely fully and perfectly as if this contract had never been made.”

That part of the contract providing for a notice in writing was to the effect that ap-pellee should have the right to demand possession of the land and premises after notice in writing to appellant that he had already declared the contract null and void, and that, if after' the receipt of such notice by appellant he should fail to deliver such possession, then appellee should have the right to recover such possession by an action of forcible entry and detainer.

Appellant does not seek by pleading or otherwise to have the right extended to him to hold the land through compliance with his contract. He stands only upon his claim of right to acquire title by limitation.

The judgment of the trial court is affirmed.

Affirmed.
      &wkey;3For other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes

      <§r^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    REEVES v. AVINA.
    (No. 806.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 28, 1918.)
    1. SEQUESTRATION <&wkey; 16 — FINDING OF VALUE of Chattel — Necessity.
    In suit to recover title and possession of an automobile and in the alternative for the purchase price thereof, with foreclosure of lien, plaintiff suing out writ of sequestration under which the automobile was seized, but later re-plevied by defendant, the failure of verdict and judgment for plaintiff against defendant and the sureties on the replevin bond to find the value of the automobile was reversible error.
    2. Appeal anp Error <&wkey;301 — Questions in Trial Couri^-New Trial — Apparent Error.
    Such failure was an error in law apparent on the face of the record requiring reversal, though not raised in the motion for new trial.
    3. Payment <&wkey;12(%) — Remedy of Seller-Payment of Price — Invalid Medium.
    The purchaser of an automobile for $550, who engaged to pay with “Constitutionalists’ money” at the rate of 20 cents on the dollar, impliedly warranted that the money paid by him was valid currency of the particular sort, and in the seller’s action to recover title and possession of the car, and in the alternative for the price with foreclosure of lien, it is immaterial whether there were any representations as to the genuineness of the money.
    4. Trial <&wkey;13ih~JuRY Question — Issue of Fact.
    If an issue of fact is raised as to any material question in the case, it must be submitted to the jury.
    5. Sequestration <&wkey;>16 — Payment in Counterfeit Currency — Exchange by Agent for Valid Money — Rights of Buyer.
    Where the sale of an automobile was negotiated by an agent, and the buyer paid in counterfeit currency, and the seller paid his agent $100 therein, which the agent exchanged for an amount of United States currency, the buyer, when sued by the seller, can predicate no rights on the amount of United States currency received by the agent, since it is the duty of the seller to redeem the spurious money he delivered to the agent, who must likewise redeem the money from the party to whom he exchanged it.
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    Suit by I. Z. Avina against J. O. Reeves and others. From judgment for plaintiff, the named defendant appeals.
    Reversed and remanded.
    C. W. Croom and Moore & Harris, all of El Paso, for appellant. W. M. C'oldwell and Jos. U. Sweeney, both of El Paso, for appel-lee.
   HIGGINS, J.

Appellee, Avina, sued Reeves to recover the title and possession of an automobile, and in the alternative for the-purchase price thereof with foreclosure of lien. It was alleged that plaintiff was the owner of the automobile, and sold same to defendant for the sum of $550, but it was agreed that defendant, instead of paying current money of the United States, should pay what was known as Constitutionalists’ money at the rate of 20 cents on the dollar; that the automobile was delivered to defendant, and defendant delivered to plaintiff certain bills purporting to be Constitutionalists’ money of the face value of $2,750, which defendant represented to be Constitutionalists’ money; that plaintiff believed said representations, and, so believing, delivered the automobile to defendant; that said bills were counterfeit and of no value. Plaintiff sued out a writ of sequestration under which the automobile was seized, and the same was thereafter replevied by defendant. Upon trial a verdict was instructed in plaintiff’s favor against the defendant and the sureties on the replevin bond in the sum of $550. In accordance with such instruction a verdict was returned, and judgment rendered in plaintiff’s favor, and the defendant Reeves appeals. The verdict and judgment fails to find the value of the automobile which constitutes reversible error. Article 7107, Rev. Civ. St. 1911; Avery v. Dickson, 49 S. W. 662; Herrera v. Marquez, 182 S. W. 1143.

This is an error in law apparent on the face of the record requiring a reversal, though not raised in the motion for a new trial. Hayes v. Furniture Co., 180 S. W. 149; Coward v. Sutfin, 185 S. W. 378; Banking Company v. Hamilton, 173 S. W. 1012. The next assignment complains of the instructed verdict upon the ground that there was a conflict in the evidence as to whether or not defendant made any representations concerning the genuineness of the Constitutionalists’ money which he delivered to plaintiff in payment for the automobile. It makes no difference whether' or not there were any representation's made as to the genuineness of the money. The validity thereof was impliedly warranted. Kottwitz v. Bagby, 16 Tex. 656. The allegations concerning such representations should have been treated as surplusage, and it was not necessary to prove same. Another assignment complains of the peremptory instruction upon the ground that it was an issue of fact whether or not all of the money was counterfeit, and that as to such money, concerning which there was an issue, the matter should have been submitted' to the jury. In view of a new trial we make no comment upon the probative force of the evidence. Of course, if an issue of fact is raised as to any material question in the case, the same must be submitted to the jury.

It appears from the evidence that the sale of Avina’s car was negotiated by an agent, and, in payment of the agent’s commission, Avina paid the agent $100 of the spurious money, and the agent exchanged the money so received for $20 of United States currency. It is contended that it thus appears that Avina, to this extent, has sustained no injury by reason of the payment of the counterfeit money. This overlooks the fact that it is the duty of Avina to redeem the spurious money which he delivered to the agent, and that it is the duty of the agent to likewise redeem the money from the party to whom he exchanged the same. The agent is liable to the party to whom he delivered the spurious money, and Avina in like manner is liable to the agent. We take it that no rights can be predicated in defendant’s favor upon any part of this spurious money which he delivered in payment of the automobile. It would be a strange doctrine that would permit the circulator of counterfeit currency to in any wise profit by his action.

Reversed and remanded.
      ■&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRAVES, J.

text:
    TEXAS, & N. O. R. CO. v. GRASS et al.
    (No. 7476.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 21, 1918.
    Rehearing Denied Feb. 14, 1918.)
    1. Master and Servant <&wkey;168(l) — Duty to Furnish Skilled Coservants.
    It is the duty of a railroad to furnish an engineer of at least ordinary skill to operate a crane on a wrecker, and it is liable for damages for injury caused by an act of an inexperienced one where an engineer of ordinary skill and experience would have foreseen the result of such act or manner of operating the crane.
    2. New Trial <S&wkey;3 — Grounds—False Testimony.
    It was not an buse of discretion to deny a new trial for newly discovered evidence on an affidavit that after trial a witness admitted that he lied on the stand, where the witness denied the statement under oath, and where the affiant was a contradictory witness and the admissions were made, if at all, in a barroom imbroglio between the two contradicting witnesses.
    3. Death <&wkey;81 — Damages—Elements—Care and Counsel.
    In an action for death of father and husband, damages may be allowed for loss of services about the house out of work hours, and for care and counsel.
    4. Death <&wkey;99(4) — Damages — Excessiveness.
    Where wife was allowed $10,000 damages for death of husband 62 years of age earning $60 per month, the further allowance of $5,000 each to two daughters 17 and 22 years of age was excessive, and will be reduced to $2,500’ each.
    Appeal from District Court, Harris County ; J. D. Harvey, Judge.
    Suit by Mrs. Sallie Glass and others against the Texas & New Orleans Railroad Company. Judgment for plaintiffs, and defendant appeals.
    Reversed, unless remit-titurs be filed.
    Baker, Botts, Parker & Garwood and Me-Means, Garrison & Pollard, all of Houston, for appellant. Presley K. Ewing, of Houston, and Ewing Werlein, of New Orleans, La., for appellees.
   GRAVES, J.

By this appeal the Texas & New Orleans Railroad Company seeks revision of a judgment against it below for $20,-000 in favor of Mrs. Sallie Glass and her two daughters, apportioned $10,000 to Mrs. Glass, and $5,000 each' to the daughters.

These- amounts were so awarded them by a jury as actual damages for the death of their husband and father, A. M. Glass, Sr.; he, while in th'e course of his employment as foreman of a wrecking crew for appellant, had been hit on the head and killed by a truss rod, pulled from underneath a car the company was wrecking or dismantling in its yards at Houston.

On this occasion the truss rod was pulled wi(h a wrecker, that is, a stationary steam engine placed upon a steel flat car, equipped with a movable crane or boom about 25 feet long, and a steel cable thereon of th'e same length; the crane being operated by the power of the engine; this wrecker was stationed on an adjoining track in such position that the truss rods in the car they were dismantling could be reached with the crane, and in this instance was operated by appellant’s engineer, Coghlan, and his assistant, Lamb.

In their petition the appellees alleged that this engineer had exclusive control, direction, and management of the engine, and of the power and energy thereof, and that he was guilty of negligence in causing one of the truss rods to be pulled and swung out with unnecessary force and violence, and in an improper manner and direction, suddenly and unawares to A. M. Glass, Sr., whereby it struck and killed him.

In response to special issues submitted to them the jury, among other facts, found: (1) That appellant’s engineer, Coghlan, in charge of the engine at the time, caused the truss rod in question to be pulled and swung out with unnecessary force, or in an improper manner or direction; (2) that such act on the part of th'e engineer was negligence as defined in the charge towards deceased; (3) that such negligence was the proximate cause of the injury and death of A. M. Glass, Sr.; (4) that Glass was neither guilty of contributory negligence in anything he did, or failed to do, nor would he in the exercise of ordinary care have known in time to have avoided injury that the engineer would cause the truss rod to be pulled and swung out in the manner he did.

As these findings indicate, two directly opposing theories of the case had been threshed out by the litigants before the jury, the full benefit of which had been given to each in the issues submitted by the court, so that, since the jury in the findings quoted so found, we must assume that appellant, through its engineer, Coghlan, was guilty of negligence in the respects charged by appel-lees, that is, that he caused th'e truss rod to be pulled out with unnecessary force, and sidewise, instead of straight up, as would have been the proper manner.

In contest of the theory of appellees thus upheld by the jury, the railroad company had contended that Glass was foreman over the entire force of men engaged in the process of dismantling the car from which the truss rod was pulled, including the engineer, Coghlan, and his assistant, Lamb, and as such had himself directed the manner of pulling the rod and given th'e signals to Cogh-lan, not only when and how to pull, but in what direction. But, as stated, the jury found otherwise, and that largely, if not wholly, upon the testimony of Coghlan’s assistant, Lamb, that the engineer had exclusive control and management of the wrecker, and of the manner of applying the power therefrom to the truss rod; that he (Lamb) was there for that purpose and gave the signals to Coghlan when to pull on the rod, and when so signaled Coghlan had jerked the rod out sidewise, too suddenly and with too much force, and killed Glass; that Glass had nothing to do with that part of the work, nor any control over Lamb and Coghlan in doing it, but was only in immediate charge of a crew of six negroes, some of whom merely fastened the crane to the truss rod with a chain preparatory to the pulling. There was also other testimony to the effect that it was improper to pull a truss rod sidewise in the manner here shown, but that it should have been pulled straight up by the use of the cable only, and without moving the crane to one Side.

While no attempt has been made to state in full detail the facts of the case, what has been and will be hereafter given furnishes an adequate basis, we think, for determining th'e questions presented by this appeal, which are only three in number: (1) It is claimed that appellees wholly failed to show any actionable negligence on the part of the railroad company; (2) that the trial court should have granted a new trial on account of alleged newly discovered evidence subsequent to the entry of judgment; (3) that the verdict is excessive in amount. These will be disposed of in the order given.

Upon the first question we are unable to accept appellant’s view as to what would not constitute actionable negligence under the conceded facts here; succinctly stated it is this: That the engineer, Coghlan, being shown to be wholly inexperienced in pulling truss rods from underneath a car by means of a crane, never having seen it done or done it himself before, did just what any other inexperienced man would have done under the same circumstances, namely, pulled the rod out sidewise, or with an outward swing of th'e crane, instead of straight up by leaving the crane stationary and using the cable only; and though in so doing he also jerked the rod out too suddenly and with more power than was necessary or proper, he was not negligent in these acts, nor could negligence be imputed to appellant on account of them, because he could not reasonably have contemplated or anticipated that the injury to Mr. Glass would result. In support of the principle invoked, the following authorities are cited: Sjogren v. Hall, 53 Mich. 274, 18 N. W. 812; Railway v. Story, 26 Tex. Civ. App.. 23, 62 S. W. 132; Railway v. Kieff, 94 Tex. 338, 60 S. W. 543; Railway v. Cocke, 64 Tex. 157; Railway v. Barry, 98 Tex. 251, 83 S. W. 5; Railway v. Reiden, 48 Tex. Civ. App. 401, 107 S. W. 666; Railway v. Bigham, 90 Tex. 226, 38 S. W. 162; citing Milwaukee v. Kellogg, 94 U. S. 469, 24 L. Ed. 256; Smith v. Railway, L. R. 6 C. P. 14; Railway v. Mussette, 86 Tex. 708, 26 S. W. 1075, 24 L. R. A. 642; Motey v. Marble, 74 Fed. 157, 20 C. O. A. 366; Railway v. Elliott, 55 Fed. 949, 5 C. C. A. 347, 20 L. R. A. 582.

As we understand them, the general and well-settled'doctrine elaborated in these cases is that an act causing injury is not negligence, unless under all the circumstances of the particular case it might reasonably have been anticipated that the injury would have resulted as a probable consequence; but we do not think under that principle a railroad company could escape liability for a concededly negligent act resulting from its having put in charge of the work an einployé so lacking in experience and skill as to be unable to reasonably anticipate injury, when one having ordinary skill and care would have done so; the law places no such premium upon a master’s carelessness and indifference to the safety of its employés; upon the contrary, it was the railroad company’s obvious duty here to place in charge of- the engine upon that wrecker an employs possessed of and capable of exercising at least ordinary care and skill for that particular work.

If it had done so, the evidence is undisputed that no injury to Mr. Glass would have occurred, because the uncontroverted proof is abundant, being the testimony of two experienced men in that line of work, that a person of ordinary skill and care in doing the work at which Coghlan was engaged, would necessarily, from his act in sending the truss rod with the force and in the direction he did, have not only foreseen from the attendant circumstances that the truss rod would strike and injure Glass, but would have known that it must inevitably do so in direct and immediate consequence. Indeed, such must by inference be the logical effect of appellant’s position, since it seeks to excuse Coghlan from the duty of anticipating the injury solely because he was without such care and skill, thereby impliedly conceding that he could and should have known, the injury woupd follow such acts, had he been a man of ordinary experience in that kind of work.

If, then, it was the bounden duty of appellant to put in charge of the engine a servant having ordinary care and skill for that kind of work, as has been above stated, it seems to us that no difference remains between the view we have expressed and the position of appellant; that such was its plain duty is well settled. Railway Co. v. Hays, 40 Tex. Civ. App. 162, 89 S. W. 29; Railway Co. v. Smith, 50 Tex. Civ. App. 10, 108 S. W. 988.

In the second place, it is urged that the trial court abused its discretion in refusing a new trial on account of affidavits made by the engineer Coghlan,i and another, to the effect that appellees’ witness L. Lamb had subsequent to the trial admitted to Coghlan that he had told some lies in his testimony upon the trial; these affidavits were attached to appellant’s motion for new trial, and the court considered them, together with counter affidavits of Lamb himself and two others, filed by appellees in reply to the motion; Coghlan in. his affidavit verified the statement of one Cartwright that Lamib- made this admission one night in a saloon in I-Ioustbn when asked as to why he had told all those lies upon the Glass trial; in his answering affidavit, Lamb pointedly denied ever making any such statement, but said that if he ever had, he was drunk at the time and did not know what he was saying, and vigorously reiterated that what he had sworn to on the trial was the truth; in others of the answering affidavits mentioned, it was stated that, while an honest and industrious man, Lamb was unfortunate enough to occasionally become so drunk as not to know what he was doing for days at a time, and was found in this condition about the time, or very shortly after the date, of the alleged admission to Coghlan, and taken home; and, further, that Coghlan had confessed to a Houston attorney, not shown to have had any connection with the case, that he had spent either $20 or $60 on a witness in the Glass case to produce intoxication and secure from him statements contradictory of his testimony upon the trial.

If the testimony thus offered may be classed as newly discovered evidence, rather than as matter merely tending to discredit that previously given during the trial, we think it falls far short of indicating with any degree of promise that its admission upon another trial would have brought about a different result, and that the court below would have been fully justified in so concluding. Under such conditions, refusal of a new trial would not constitute an abuse of discretion. Scranton v. Tilley, 16 Tex. 183; Houston & T. C. Ry. Co. v. Forsyth, 49 Tex. 171; Houston City St. Ry. Co. v. Sciocca, 80 Tex. 356,16 S. W. 31; Fitzgerald v. Compton, 28 Tex. Civ. App. 202, 67 S. W. 131; S. A. & A. P. Ry. Co. v. Moore, 31 Tex. Civ. App. 371, 72 S. W. 226; Crigler v. Newman (Ky.) 91 S. W. 706.

At most and best, these affidavits but reflected a subsequent barroom imbroglio between the same two witnesses who had so directly contradicted each other when testifying upon the trial over whether or not any such admission as was charged by the one and denied by the other had been made; in such circumstances the trial court was warranted in finding, either that Lamb did not make the statement attributed to him, or, if he did, that it was made in unknowing drunkenness and was not probably true; that court having resolved a conflict over an issue of fact one way, its action will not be revised on appeal, unless clearly an abuse of discretion, which we do not think it was. Railway Co. v. Marcelles, 59 Tex. 337.

The judgment is last assailed as being excessive. As to the award of $5,000 each to the two daughters of Mrs. Glass, after some hesitation, we have concluded that it is. Their father was 62 years old when killed; his expectancy being accordingly quite limited; and he had been for some years only earning about $60 per month, with no expectation, so far as the evidence shows, of any increase, rather the contrary according to the usual course of advancing age; one of the daughters was then 17, the other 22; their ages at the time of the trial being respectively 20 and 25; the former remained single, while the latter married shortly after her father’s death, but only lived with her husband about four months, was divorced, and returned to again become a member of her mother’s family; up to the time of the trial the younger daughter had been entirely dependent upon the family; the older one had also been so until her marriage, but seems to have been working, and at least partly supporting herself, subsequent to returning home after separation from her husband.

It is quite plain, we think, that in all human probability Mr. Glass, with his advanced age and small earning capacity, would never have lived long enough to earn anything like $10,000 for his wife and $5,000 each for his two daughters; hence the excess in these allowances must find justification if at all, in the pecuniary value to them of his services about the house, and his care and counsel; while this latter is a recoverable element of damages, and the jury had, under the facts of this case, a rather broad field for the exercise of their discretion in appraising it, still pecuniary benefit was the sole basis on which it could be estimated and allowed, and, under the evidence here, we think the award to the daughters manifests, to some extent at least, the influence of sympathy or prejudice rather than the idea of compensation only, and must be accordingly reduced.

The substance of the testimony concerning Mr. Glass’ services, counsel, and protection to his family is thus stated by his wife:

“Mr. Glass was accustomed to spend Ms time at home out of work hours, and, when he would come home, he always helped me to do services about the home. He was a good man in affording protection and advice to me and tho girls; he was a good man in all respects. He was accustomed to give advice to me and my daughters; he was our protection in the home.”

This is all. How much work he performed around the house, and its value, what advice he gave, and how much it was needed by his good wife, then 52 years old, and his daughters, then aged 17 and 22 years, respectively, what protection was needed and afforded, and from what or whom, the record does not disclose.

If the larger part of the evident excess in amount over what he would reasonably have earned during the remainder of a natural life be considered as more properly accruing to his wife because of the more direct value to her of his services about the home, and the $10,000 awarded her be allowed to stand, there is the more reason for concluding that a larger sum than just compensation was given the daughters.

From the conclusions reached, it follows that all of appellant’s assignments must be overruled, except the fourth and fifth, raising the issue of excessiveness in the awards to Annie J. and Allie May Glass, but that these two must be sustained, and the judgment reversed and remanded, unless these two last-named appellees each file in this court remittiturs of $2,500 within 15 days from this date; if such remittiturs are filed, the judgment will then be affirmed.

Reversed and remanded, unless remittiturs are filed.
      <§zs>For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, O. J.

text:
    FOSTER v. IOWA CITY STATE BANK.
    (No. 5970.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 20, 1918.
    Rehearing Denied March 20, 1918.)
    1. Alteration of Instruments &wkey;>12 — Detaching Note from Order — Consent op Maker.
    Where a contract for the sale of perfume gave the seller absolute authority to detach from the order for the goods the note signed by the buyer, when the seller approved the order and shipped the goods, the buyor was not released from liability on the note by seller’s so doing.
    2. Bills and Notes <&wkey;378~Holder in Due Course — Defenses.
    Where an order for perfume was given, and the Buyer signed the note attached to the order, and the seller detached such note before the goods were shipped, contrary to his agreement that it should not be detached until the goods were shipped and accepted, and sold the note to a purchaser for value without notice, the purchaser of the note was not prevented from being an innocent purchaser, even if the order was changed after execution.
    3. Alteration of Instruments <&wkey;9 — Order for Goods — Entry on Margin.
    Where perfumes were sold, and the seller’s agent entered on the margin of the order, “One oak showcase free,” such words did not alter the written order, to which the buyer’s note was attached, because the showcase was not a part of the order, and did not purport to be any part of it.
    Appeal from Bexar County Court for Civil Cases; Jno. H. Clark, Judge.
    Suit by the Iowa City State Bank against M. E. Foster. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Wm. H. Russell, of San Antonio, for plaintiff in error. C. A. Davies and Frank H. Sweet, both of San Antonio, for defendant in error.
   FLY, O. J.

This is a suit by appellee on a promissory note for $148 executed by the Foster Company, owned by appellant, in favor of the Donald-Richard Company of Iowa City. Iowa, and transferred by the payee to appellee. The defense was that the note was given for goods ordered by appellant which were to be accompanied by a mahogany showcase, but that the showcase sent was one which would not harmonize in color with the mahogany finished fixtures in her store, and she refused to accept the same, and that the Donald-Richard Company detached her note from the order of which it was an “integral part,” without her knowledge or consent, and sold it to appellee, who was not an innocent purchaser of the note. The justice’s court rendered judgment for appellant, but on appeal to the county court the jury that heard the case was instructed to return a verdict for appellee in the sum sued for, which was done, and judgment rendered in accordance therewith.

The evidence shows that appellee ordered certain perfumes and toilet articles, and gave a note for $148, payable in installments of $37 each, due in three, six, nine, and twelve months, nonpayment of any installment maturing the whole note, at the option of the holder. She swore that an inducement to the order was the gift of a mahogany showcase. When it came it was oak. The note was purchased for value, without notice, before maturity, by appellee. The contract or order, which was accompanied by the note, gave authority to the seller of the goods to detach it therefrom when the order of the agent was “approved and shipped.” It was so detached by the seller of the goods and sold to appellee. There was evidence that the oak showcase was described in the order when it reached the seller of the goods. There is no evidence tending to show that the order was changed after it was signed. There was no inducement to change from mahogany finish to oak finish because the latter was higher than the former. But if the order was changed there is not one word of evidence tending to show that appellee knew it, or had any reason to suspect it when it bought the note before maturity for value. The note did not give any information as to any kind of a showcase.

The first assignment is without merit. The contract gave absolute authority to the seller of the goods to detach the note when he approved and shipped the goods. If, as contended by appellant, a nonnegotiable note was changed into a negotiable note by being detached from the order for the goods, she had authorized such act on the part of the seller. If the order had been shown to appel-lee even as appellant said it' was, it would not have shown anything about a mahogany showcase.

The note was never altered in any respect, even if the order was, and propositions and authorities on alteration of notes have no applicability to the facts of this case. Suppose the order was changed, suppose that the note was detached before the goods ordered were shipped, and then the note was sold to a purchaser for value without notice; would that prevent the purchaser from being an innocent purchaser? We think not. The bank did not deal with a special agent of the seller, but with the seller himself.

Appellant testified that nothing was mentioned in the order about a showcase so that, if that order had accompanied the note, it would not have given appellee notice that a showcase should have been shipped with the other articles, and if the words “One oak showcase free” had been on the margin of the order, it would not have been an alteration of the contract, and would only indicate to any one that a gift had been made of an oak showcase. The words entered on the margin did not alter the written order, the only one sent to the seller by the agent, because the showcase was not a part of the order, and did not purport to be any part of it.

The evidence fails to show that there was anything in or on the note which would give notice that it had been attached to an order for goods, but it was like any other negotiable note.

The judgment is affirmed.
      cgrt^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MILLER v. P. W. EZELL MERCANTILE CO.
    (No. 7512.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 5, 1918.)
    1. Appeal and Error <S=>731(1) — Assignment op Error.
    An assignment of error, “The verdict was contrary to the law and evidence,” is too general and indefinite, within the condemnation of Court of Civil Appeals rule 26 (142 8. W. xii).
    2. Appeal and Error ¡§=>260(1) — Necessity of Exception — Ruling on Evidence.
    Admission or rejection of evidence cannot be reviewed, in the absence of bill of exceptions reserved thereto.
    3. Appeal and Error <⅜=544(1) — Bill oe Exceptions — Refusal of Charge.
    Refusal of reguested charge cannot be reviewed, in absence of formal bill of exceptions required by statute at time of trial. ,
    Appeal from. District Court, Anderson County; John S. Prince, Judge.
    Action by Mrs. Y. E. Miller against the P. W. Ezell Mercantile Company. From? an adverse judgment, plaintiff appeals.
    Affirmed.
    J. W„ Stitt, of Ft. Worth, for appellant. Thomas B. Greenwood, of Palestine, for ap-pellee.
   LANE, J.

This suit was instituted by Mrs. V. F. Miller against the Ezell Mercantile Company to recover the sum of $3,500 for the breach1 of an alleged contract. Judgment was for the defendant mercantile company.

Plaintiff in the court below alleged that the Ezell Mercantile Company had contracted with her to sell her peach crop for the year 1913 at the highest market price, on commission; that her peach crop for that year sold by appellee amounted to 1,093 bushels and 97 crates; that said peaches so sold by appellee were sold for $1 per bushel, while the best market price for that year was $3.-75 per bushel, a loss to her of $2.75 per bushel, or, in the aggregate, $3,500.

Defendant answered by general denial and by special plea—

“that aupellant, Mrs. V. F. Miller, on or about June 30, 1913, acting by her agent duly authorized, joined other peach growers of Neches in a written contract for the sale of all their peaches, including those belonging to appellant, Mrs. V. F. Miller, unto Dublin Bros, at $1 per bushel; that afterwards Mrs. Miller adopted the contract and performed her obligations thereunder by delivering her peach crop, consisting of 1,093 bushels and 97 crates, to Dublin Bros, at $1 per bushel, aggregating $1,160.90, all of which she received and accepted and retained; and that the only connection between appellee and Mrs. Miller’s peach crop was for its cashier and secretary to act for Mrs. Miller "in selling and delivering and collecting for the peaches, all with the utmost fidelity and without compensation, and to her great profit and advantage.”

The issues joined were submitted to a jury under a general charge, and th'e jury returned a general verdict for appellee Ezell Mercantile Company. From this judgment Mrs. Miller has appealed.

Appellant’s first assignment in her motion for new trial is as follows: “The verdict was contrary to the law and the evidence.” Such assignment is condemned by rule 26 for the Courts of Civil Appeals (142 S. W. xii) and by an unbroken line of decisions of this state (Wetz v. Wetz, 27 Tex. Civ. App. 597, 66 S. W. 869; Modern Brotherhood v. Chandler, 146 S. W. 626; Wright v. Wright, 155 S. W. 1015; Groesbeck v. Wiest, 157 S. W. 258; Goodwin & McFarland v. Burton, 54 Tex. Civ. App. 586, 118 S. W. 587). The assignment is too general and indefinite and will not be considered by this court.

The second assignment complains of the admission of certain evidence over the objection of appellant. If any exception was reserved to the admission of the testimony complained of in the assignment it is not shown by the record. In the absence of a bill of exception reserved to the admission or rejection of evidence, such! admission or rejection cannot be reviewed. Ford v. Cowan, 64 Tex. 129; Morgan v. Oliver, 80 8. W. 111; Ellis v. Marshall Car Wheel Co., 41 Tex. Civ. App. 501, 95 S. W. 689; Railway Co. v. Pingenot, 142 S. W. 93; Royal Casualty Co. v. Nelson, 153 S. W. 674; Carter-Mullaly Transfer Co. v. Robertson, 198 S. W. 791.

The third and fourth assignments complain of the refusal of the court to submit to the jury certain special charges requested by appellant. The record does not disclose any formal bill of exception reserved to the action of the court in refusing the special requested charges. Rulings upon special requested charges cannot be reviewed where the exceptions thereto are not supported by a formal bill of exceptions as required by the statutes in force at the time of the trial. Handly v. Adams, 195 S. W. 888; Gulf, T. & W. Ry. Co. v. Diclcey, 187 S. W. 184

In view of the fact that none of the matters complained of by the assignments in appellant’s brief can be reviewed, and as no fundamental error is pointed out by appellant, or apparent of record, the judgment of the trial court is affirmed.

Affirmed.
      <3=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: 'FLY, C. J.

text:
    TORNO v. COCHRAN.
    (No. 5985.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 27, 1918.
    Rehearing Denied March 20, 1918.)
    1. Venue &wkey;>32(2) — Change—Plea ox Special Privilege — Continuance.
    Where a plea of privilege to be sued in another county, filed in tho county court, was continued by agreement, the order reciting “without prejudice to” defendant’s right to such plea, the continuance was not a waiver of the plea.
    2. Venue <&wkey;32(2) — Plea os' Revealments— Waiver — Rule eor Costs.
    Where, after plea of privilege was filed, the court entered on his docket, “Rule for costs invoked by defendant,” which was not carried into the minutes, but at a later term, at which the plea was sustained, was entered nunc pro tunc, such rule was a waiver of such plea.
    Appeal from San Patricio County Court; M. A. Childers, Judge.
    Suit by C. J. Torno against John D. Cochran. From an order granting defendant’s plea of privilege, plaintiff appeals.
    Reversed and remanded.
    Jno. A. Jones, of Sinton, for appellant. James G. Cook, of Sinton, for appellee.
   'FLY, C. J.

Appellant sued appellee in San Patricio county to recover damages arising from a failure to properly “grub” certain land as- he had contracted to do. A plea of privilege to be sued in Bexar county was sustained by the court, and the cause ordered to be transferred to that county.

The plea of privilege was filed at the February term/ of the county court, and was continued by agreement to the May term of the court; the order of the court reciting that the continuance was had “without prejudice to right of defendant to plea of privilege to be sued in Bexar county, Texas.” This action did not constitute a waiver of the plea of privilege, and it was sustained at the May term. In a case in which was an order almost identical with the one stated, this court held that the agreement to continue was not a waiver. Dorroh v. McKay, 56 S. W. 611. The opinion was approved by the Supreme Court. There are other decisions to the same effect. Blum v. Strong, 71 Tex. 322, 6 S. W. 167; Aldridge v. Webb, 92 Tex. 122, 46 S. W. 224; Johnson v. Wag-goner, 190 S. W. 835. The first assignment of error is overruled.

On the day after the plea of privilege was filed, the court entered on ?iis docket, “Rule for costs invoked by defendant,” which was not carried into the minutes; but at the August term of the court, succeeding the May term at which the plea of privilege was sustained, a motion was made by appellant for an entry on the minutes nunc pro tunc of the. entry of the court on his docket as to the rule for costs being invoked, and the motion was granted by the court. It is contended by appellant that the act of appellee in invoking the rule for costs was a waiver of the plea of privilege. It is so held in the case of Brown v. Reed, 62 S. W. 73, and we will follow the decision, although as an original proposition we might not have so held. The fact that the request was entered on the docket of the court was sufficient to show that it had been asked for, and the nunc pro tunc order placing it in the minutes was properly granted.

If the ruling in Brown v. Reed was justifiable under the old law as to pleas of privilege, it is justifiable under the present law. Under either law, the rule for costs invoked the general jurisdiction of the court, and obtained a general order. The reasoning applying to a case under the old law would apply with equal force to one under the present law.

The judgment is reversed, and the cause remanded.
      <S^3For other cases see same to£ic and KEY-NUMBER in all Key-Nümbered Digests and Indexes


author: HARPER, C. J.

text:
    BAINES v. KOHLER & CAMPBELL.
    (No. 802.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 28, 1918.)
    Evidence &wkey;s420(7) — Bills and Notes — Defenses — Varying Written Instruments.
    In an action on promissory notes, defendant’s allegations that the parties orally agreed the notes should not become effective, unless plaintiff advanced certain credit to one of the defendants, and that plaintiff had failed to do so, present a good defense, since it does not seek to vary the written notes, but only to postpone their effective date.
    Appeal from El Paso County Court; E. B. McClintock, Judge.
    Suit by Kohler & Campbell against George W. Baines, Jr., and others. Judgment for plaintiff, and named defendant appeals.
    Reversed and remanded.
    J. C. Brooke and R. H. Crews, both of El Paso, for appellant. F. E. Hunter and R. B. Redie, both of El Paso, for appellee.
   HARPER, C. J.

This suit was instituted by Kohler & Campbell, a corporation, against H. T. Luthy, George W. Baines, Jr., H. S. Wigle, and J. IT. Derrick, upon three promissory notes for $250 each, with interest and .attorney's fees. The defendants, for defense, alleged:

That Luthy was indebted to plaintiffs upon open account in the sum of $1,000, or near that sum. That George W. Gittins, as agent of plaintiff, proposed that the account should he evidenced by promissory notes, with security. That said Luthy was then and now insolvent, which was well known to plaintiffs. That it was further proposed by said agent that if he would execute the notes with security, that as a consideration therefor plaintiffs would ship to Luthy a player piano. That by a parol contemporaneous agreement it was further agreed “that plaintiffs would furnish to defendant Luthy (principal on said notes) pianos of any and ail varieties as they might be ordered and requested by said Luthy after he (said Luthy) should find and procure purchasers therefor upon terms of cash or credit, or partially in cash and on credit, and if on credit terms to be satisfactory to and with plaintiffs, and, further, to open to, and confer upon, defendant Luthy a general line of credit with, plaintiffs (plaintiffs being piano dealers of a wholesale nature) which would, it was then and there agreed, enable said Luthy to deliver pianos to purchasers after sale thereof upon terms of cash or credit, or partially cash and credit, as the cases might be, and that all profits so made by said Luthy should be, it was then and there agreed, credited upon said notes. That it was furthermore understood and expressly agreed then and there by and between all defendants and plaintiffs (plaintiffs acting through their said agent) that said notes and none of them should in any manner or in any respect be or become effective or binding until the conditions named above were met by plaintiffs, to wit, until the extension of credit in accordance with the agreement had been actually made to defendant Luthy, and opened to him by plaintiffs, as before alleged.
“Sixth. Defendants Baines, Wigle, and Derrick aver that prior to delivery and execution of the notes mentioned unto plaintiffs on said day and as an express condition precedent thereto which they and each of them agreed and understood with plaintiffs, and to which plaintiffs then and there agreed, they, the said defendants, relied upon and were moved solely by the dependent collateral agreement, mentioned in the preceding paragraph hereof, as well as the further agreement that said notes should not be effective or binding until said agreement was met by plaintiffs; that the material fact constituting the basis on which said three defendants signed said notes as sureties was the parol contemporaneous agreement mentioned in the preceding paragraph thereof, and that plaintiffs, through their said agent, then and there expressly promised defendants and represented unto them that said agreement would be in all things met and carried out on plaintiffs’ part, further representing to defendants that they had always extended a line of credit to said Luthy, principal, as their salesman, and would do so as per the agreement herein, he being their salesman at such time.”

That Luthy procured purchasers as provided by the agreement, but plaintiff refused to comply with the said agreement and ship the pianos ordered, etc.

The plaintiff filed demurrers to this petition upon the ground that the matters alleged were in the nature of confession and avoidance and constituted ho grounds of defense to the notes, which was sustained, and judgment was entered for the balance due upon the notes, interest, and attorney’s fees, from which judgment George A. Baines, Jr., appeals.

The proposition which is asserted by appellant and denied by appellee is:

“Where notes were made and delivered under a parol contemporaneous agreement that they should not become binding except on certain conditions, to allege and prove the conditions is a good defense to the notes sued upon.”

In Watson v. Rice, 166 S. W. 108, the rule applicable is clearly stated as follows (Quoting Elliott on Contracts, § 1636):

“The general rule which excludes parol evidence, when offered to contradict or vary the terms, provisions, or legal effects of a written instrument, is subject to many qualifications. Among these qualifications is one to the effect that conditions relating_ to conditions precedent may be shown by extrinsic evidence. A party who concedes that the instrument evidencing the contract was placed in the possession of the party seeking relief, but claims that the latter took it with the understanding that it was not to go into effect until the happening of some other or further event, and that such event has not transpired, is not considered as one seeking to vary or contradict a written contract, but is one endeavoring to show that no contract between the parties ever in fact came into existence. Eor this reason evidence of such conditions precedent is held admissible. The cases which so hold merely give recognition to the well-settled rule that an instrument may be delivered by one party to another to take effect on the happening of a contingency, and that, by such collateral agreement, the legal operation of the writing is merely postponed until the happening of the contingency. ⅞ * ’? We think the court did not err in admitting the testimony and in overruling the exceptions and submitting the question to the jury. Merchants’ Nat. Bank v. McAnulty, 31 S. W. 1091; Id. 89 Tex. 124, 33 S. W. 963; Downey v. Hatter, 48 S. W. 32; Pope v. Taliaferro [51 Tex. Civ. App. 217] 115 S. W. 309: Mfg. Co. v. Powell, 78 Tex. 53, 14 S. W. 245; I. & G. N. Ry. Co. v. Dawson, 62 Tex. 262.”

See cases there cited; also Burke v. Dulaney, 153 U. S. 228, 14 Sup. Ct. 816, 38 L. Ed. 698. It will be noted that the allegation is:

“That it was expressly agreed and understood then and there by and between all defendants and the plaintiff that said notes and none of them should in any manner or in any respect be or become effective or binding until the conditions named above were met by plaintiff, to wit, until the extension of credit in accordance with the agreement had been actually made to defendant and opened to him as hereinbefore stated.”

This does not tend to vary the terms of the writing, but to postpone its legal operation until the happening of the contingency, so it presents a good defense to the notes. Therefore it was error for the court to sustain the demurrer.

The cause is therefore reversed and remanded for a rehearing.


author: MORROW, J.

text:
    LOWE v. STATE.
    (No. 4810.)
    (Court of Criminal Appeals of Texas.
    March 6, 1918.)
    1. Judges <&wkey;25(2) — Special Judges — Appointment — Validity.
    Where the regular judge became an officer of the National Guard, and the bar elected a special judge, and the regular judge thereafter went into the federal service, the special judge had power, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1678, as to election of special judges, to continue the term already begun in spite of Const, art. 5, § 28, requiring vacancies in judgeships to be filled by the Governor, and article 16, § 17, providing that all officers shall continue' their duties until their successors are qualified, since article 16, § 12, prohibits one holding office under the United States from holding office under the state.
    2. Officers <&wkey;55(2) — Holding Other Office — Judges Entering Military Service of United States — Right of Election.
    When one accepts an incompatible office with the one he holds, he may elect which to abandon, but when a judge accepts an office in the military service of the United States, his tenure as judge, ceases by direct provision of Const, art. Í6, § 12.
    3. Judges &wkey;>26- — Powers — De Facto Judges.
    The acts of a judge- elected in the absence of the regular judge by the bar of a county are valid on the principle that he was a de facto officer, since he had possession of a legally constituted office under color of authority.
    4. Homicide i&wkey;169(3) — Evidence—Admissibility.
    In a prosecution for homicide, testimony of a prior difficulty during which accused had a knife in his hand was admissible as tending to show the state of mind of accused.
    5. Criminal Law <&wkey;368(l) — Evidence—Res Gestae.
    In a prosecution for murder, testimony of a witness as to what deceased’s father said, about 60 yards from the killing, while a fight was going on, to the effect that they were killing his boy, was admissible as res gestas.
    6. Criminal Law &wkey;>598(6) — Continuance-Diligence.
    Where the homicide occurred in August, 1916, the indictment was returned January 5, 1917, a subpoena for an absent witness was not applied for until July 6th, and a new subpoena issued on July 24th, and returned on the 2d of August, there was no sufficient showing of diligence to warrant’ a continuance when the trial was called for August 1st.
    7. Homicide <&wkey;286(l) —(Instructions—Intent.
    In prosecution for homicide alleged to have been committed with a hoe and a stick of wood, since the weapon was not per se a deadly weapon, a charge that the intent to kill was not to be presumed except from the manner in which the weapon was used should have been given as required by Pen. Code 1911, art. 1147.
    8. Homicide «&wkey;325 — Appeal and Error-Scope.
    In prosecution for murder with a weapon not per se deadly, failure to charge that intent to kill could not be presumed from the use of the weapon was an omission not reviewable in the absence of specific exception, or of request for and refusal of the charge.
    Appeal from District Court, San Augustine County; Garland Smith, Special Judge.
    Dinke Lowe was convicted of murder, and he appeals.
    Affirmed.
    Wm. McDonald, of San Augustine, for appellant. E. B. I-Iendrieks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of murder. After verdict he raised the point that it should be set aside because of the illegality of the election of the special judge who tried the case.

It appears that the regular judge became an officer in the National Guard on the 19th day of July, 1917, and went on the payroll of the federal government as an officer in the military service August 4, 1917. It appears that on the 16th of July, 1917, at a regular term of court, they elected Hon. Garland Smith special judge, and that on August 1, 1917, while the special judge was presiding, the appellant was tried. He makes the point that the office of district judge became vacant upon the entry of the regular judge into military service, and that the tenure of the special judge depended upon the continuance in office of the regular judge, and that when the latter vacated his office his act in doing so operated to terminate the authority of the special judge.

-Section 28, art. 5,'of the Constitution provides that vacancies in the office of district judge shall be filled by the Governor until the next succeeding election. Section 17 of article 16 of the Constitution provides:

“All officers within this 'state shall continue to perform the duties of their offices until their successors shall be duly qualified.”

Construing this section, it has been held that a public officer could not arbitrarily divest himself of the obligation and authority to perform the duties of his office until his successor qualified, and that although he resigned, and his resignation be accepted, that notwithstanding, the provision of the Constitution mentioned would operate to-continue him in office until his successor qualified. McGhee v. Dickey, 4 Tex. Civ. App. 104, 23 S. W. 405, and cases cited;. Harris’ Constitution, p. 745, and cases listed.

It is believed, however, that when a judge of one of the courts of the state becomes an officer in the United States army that the matter of vacancy is not controlled by section 17 of article 16 of the Constitution, but is controlled by section 12 of said article which provides, in substance, that no person holding or exercising any office of profit or trust under the United States shall be eligible to hold or exercise any office of profit or trust under this state. This conclusion is supported by the decision of the Supreme Court of this state in State v. De Gross, 53 Tex. 400. Other cases bearing on the subject are Bishop v. State, 149 Ind. 223, 48 N. E. 1038, 39 L. R. A. 278, 63 Am. St. Rep. 279; Oliver v. Jersey City, 63 N. J. Law, 104, 42 Atl. 784. See, also, notes in 83 Am. Dec. 375; 12 L. R. A. 125.

It seems that when one accepts an incompatible office with the one he holds he has the right of election to abandon one of them (Cyc. vol. 23, p. 518; Webb v. Reynolds [Civ. App.] 160 S. W. 153), hut that, when an officer of the state accepts an office of profit in the military service of the United States, his tenure as judge ceases by virtue of the constitutional provision contained in article 16, § 12, supra.

Applying this view to the facts of the present case, it appears that on the date following the election of the special judge the regular judge vacated his office. Section 7 ■of article 5 of the Constitution contains the following provision:

“The Legislature shall also provide for the holding of district court when the judge thereof is absent, or is from any cause disabled or disqualified from presiding.”

Article 1678, Vernon’s Texas Civil Statutes, is as follows:

“Whenever, on the day appointed for a term of the district court, or at any time before the expiration of the term, or the completion of all the business of the court, the judge thereof shall be absent, or shall be unable or unwilling to hold the court, there shall thereby be no failure of the term, and no failure to proceed with the business of the court, but the practicing lawyers of such court present thereat may proceed to elect from among their number a special judge of said court, who shall proceed to hold said court and conduct the business thereof, and shall have all the power and authority of the judge of said court, during such continued absence or inability, and until the completion of any business begun before such special judge.”

This statute was held, by this court authorized by section 7 of article 5 of the Constitution in the case of Greer v. State, 65 S. W. 1077. The case of Wynn v. Edmondson (Civ. App.) 150 S. W. 310, touches the same subject.

The question presented then is: Did the term of court continue in session after the regular judge vacated his office and was the special judge, elected before the office was vacated by the regular judge, authorized to continue to preside and continue business of the court.

It seems to us that the proper construction of the statute (article 1678) answers this question in the affirmative. The same question was before the court of Civil Appeals in the case of Glover v. Albrecht, reported in 173 S. W. 505, in which the facts were that after the election of the special judge the regular judge during the term of court died, and the holding was that the term of court continued in session, and the authority of the special judge did not cease upon the death of the regular judge. The court in deciding the case says it does not find the identical question passed upon, but cites as analogous Ellis v. State, 56 Tex. Cr. R. 14, 117 S. W. 978, 133 Am. St. Rep. 953; Edwards v. James, 13 Tex. 53; Harris v. Musgrave, 72 Tex. 20, 9 S. W. 90; Montgomery v. Viers, 130 ICy. 694, 114 S. W. 251; Franklin v. Vandervort, 50 W. Va. 412, 40 S. E. 375. Another case throwing light on the subject is Ford v. Simmons (Civ.App.) 171 S. W. 1077; Cyc. vol. 23, p. 611.

In addition to the view that by virtue of the statute under the facts of the case the special judge could continue to hold the term of court, it would seem his acts as judge would be valid against the attack made upon the principle that he was a de facto officer. There was an office, and his possession of it was under color of. authority, name^ ly, the statute, and even if the conditions were such that he was not a judge de jure, we discern no reason why he would not have been such de facto. See Ruling Case Law, vol. 8, p. 518; Cyc. vol. 29, p. 1391; 23 Cyc. p. 618.

The deceased was killed by a blow or blows inflicted with a missile of some kind. The indictment charged a hoe and a stick of wood, and there was evidence supporting these allegations. Appellant, his brother, mother, and sister were together at church' and after church, on the road, fell in with the deceased, Leon Lee, Franklin Lee, and other members of the Lee family. All the parties were negroes. A quarrel took place, growing out of an accusation, or supposed accusation, against appellant of stealing chickens, made by Franklin Lee. A fight ensued in which several members of the party took part and culminating in deceased receiving a blow on the head from which he died.

One of the witnesses testified that at the request of Franklin Lee he went to Franklin Lee’s house to trace some chicken thieves, beginning at the chicken house, which had been broken open, and while he and Franklin Lee were tracing some tracks which' he says were 200 or 300 yards from old Jake Lowe’s house appellant approached them and asxed Franklin Lee what he was doing, appellant having a knife in his hand; that he did not hear Lee’s reply, but heard appellant say, “My God, I don’t like for anybody to accuse me of stealing chickens,” and Lee replied, “Ain’t anybody accusing you of stealing chickens; we are, just tracking these tracks to see where they went;” that appellant followed along, and other conversations took place which witness did not understand. This was objected to as tending to prove an independent disconnected crime. Neither the statement of facts nor bill of exceptions disclosed at just what time with reference to the homicide this conversation took place. There was an issue of self-defense and a controversy and conflicting evidence as to who began the difficulty in which deceased lost his life,, and there was evidence that the difficulty arose over the accusation of appellant of chicken stealing made by Franklin Lee.

Testimony of the character disclosed in the bill, as we understand, is admissible under such circumstances as tending to show the state of mind of the accused. Such was the holding of the Supreme Court in an opinion of Chief Justice Roberts in Carr’s Case, 41 Tex. 545, which was adhered to by this court in Water’s Case, 54 Tex. Cr. R. 327, 114 S. W. 628, and in Howard’s Case, 25 Tex. App. 602, 8 S. W. 806; also Hamblin v. State, 41 Tex. Cr. R. 140, 50 S. W. 1019, 51 S. W. 1111. For other cases see Branch’s P. C. §§ 1881 and 1882.

A bill asserts that the court erred in admitting evidence of a witness who claimed that on the night of the difficulty, about 60 yards from where it occurred, he met Franklin Lee running; that at the time there was a racket going on at Canton’s house (the place of the homicide), and Lee seemed to be coming from there, and remarked, “Go on down there; they are killing my boy.” This was objected to as hearsay.

The record shows that Franklin Lee was one of the parties engaged in the difficulty, and there is testimony that during its continuance he ran. The - witness whose testimony is objected to said that when he met Lee that a fuss was going on; they were talking loud, and Lee was running. This occurred within a short distance, 50 or 60 yards, of the homicide. We think this testimony was admissible as res gestae. Cases in point are Black v. State, 8 Tex. App. 329 ; Fleming v. State, 54 Tex. Cr. R. 342, 114 S. W. 383; Shumate v. State, 38 Tex. Cr. R. 266, 42 S. W. 600; Phelps v. State, 15 Tex. App. 45; Jeffries v. State, 9 Tex. App. 603; McPhail v. State, 9 Tex. App. 165.

Appellant made application for a continuance because of the absence of a witness by whom it was claimed proof could be made that he saw deceased at the church a short time before the difficulty, and that the deceased sought to borrow a pistol from the witness, declaring that he was going to have a reckoning with the Lowe negroes about stealing chickens the night before. The appellant contends that the trial court abused his discretion in overruling the application. It appears that the homicide took place in August, 1916; that the indictment was returned on January 5, 1917; that a subpoena was applied for on July 6, 1917, stating that the residence of the witness was unknown, and the subpoena was issued to Sabine county and returned with the indorsement that the witness was not found; that his residence was unknown; that the date of the return is not shown but on the 24th day of July a subpoena was obtained to Gass county which was issued on the 28th day of July and returned on the 2d of August not executed because witness not found in Cass county. The case was tried on the 1st day of August, 1917. The failure to apply for a subpoena at an earlier date is not, we think, explained in a manner that would justify this court in holding that the trial court abused its discretion in refusing the application. See Hunter v. State, 59 Tex. Or. R. 439, 129 S. W. 125; Trinkle v. State, 59 Tex. Cr. R. 257, 127 S. W. 1060; Vernon’s C. 0. P. p. 319, note 32, and cases cited. The application shows that at the time the subpoena was applied "for, July 6th, the residence of the witness was unknown. It appears that he was in the county where the homicide took place on the night of the homicide; that the subpoena was not applied for for more than six months after the indictment was hied. When he ceased to abide in the county, what efforts were made to ascertain his whereabouts in the meantime, whether the appellant knew of his departure or not, are matters upon which the application is silent, and upon which there should have been averments setting up the facts upon which appellant relied as excusing delay. Yelton v. State, 170 S. W. 318, and cases listed in Vernon’s C. C. P. p. 307, note 4.

There were no exceptions filed to the court’s charge, which, with the special charges given, fairly submitted the Issues with the exception of an omission to charge the law touching intent to be drawn from the use of the weapon. The weapon used was not per se a deadly weapon, and, if requested, a charge embodying the proposition that the intent to kill was not to be presumed unless from the manner in which the weapon was used such intention evidently appeared should have been given. Pen. Code, art. 1147; Vernon’s C. C. P. p. 716. The failure to give such a charge was an omission which cannot be reviewed by this court in the absence of a specific exception calling the trial court’s attention to the matter, filed in a timely manner or an exception to the refusal of a special charge. C. C. P. art. 737a; Crossett v. State, 168 S. W. 548; Wright v. State. 73 Tex. Cr. R. 179, 163 S. W. 976; Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112; Frazier v. State, 62 Tex. Cr. R. 640, 138 S. W. 620; Dowling v. State, 63 Tex. Cr. R. 366, 140 S. W. 224; Vernon’s C. C. P. art 743, and cases listed on page 525.

Finding no errors presented for review, the judgment of the lower court is affirmed.
      <S=^For other eases see same topic ana KEY- NUMBER in all Key-Numbered Digests and Indexes

      @=»For other oases see same top ,c and KEY- NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    WATSON v. STATE.
    (No. 4812.)
    (Court of Criminal Appeals of Texas.
    March 6, 1918.)
    1. CRIMINAL Law <&wkey;598(6) — Continuance-Absent Witness — Diligence.
    Under indictment returned January 4th, when case was called for trial July 20 th, issuance of process for witness on June 26th did not show sufficient diligence to warrant continuance, where accused knew of the testimony and the witness’ absence at an earlier date.
    2. Homicibe &wkey;332(3) — Appeal—Question op Fact.
    In prosecution for murder, where the testimony conflicted, and that as to self-defense might' have warranted acquittal, the jury’s verdict convicting accused could not be set aside.
    3. Judges <&wkey;25(2) — Special Judges — POWERS.
    Where regular judge formed National Guard company, and the bar elected a special judge, and the regular judge, inducted into federal service, resigned as judge, the special judge had power to finish the work of the then unfinished term.
    Appeal from District Court, San Augustine County; Garland Smith, Special Judge.
    John Watson was convicted of manslaughter, and he appeals.
    Affirmed.
    Wm. McDonald, of San Augustine, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

   DAVIDSON, P. J.

Appellant was convicted of manslaughter and allotted five years in the penitentiary.

The indictment was returned on the 4th day of January, 1916. Appellant filed an application for a continuance when his case was called for trial on the 20th of July, 1917, alleging that process was issued on the 26th day of June, 1917. There is nothing in the record to show why process was not issued at an earlier date. The testimony of the absent witnesses was evidently known, and no excuse is given why process was not issued at an earlier date. On the question of diligence some reason should have been assigned why the process had not been so issued explaining or exousing the delay. The absent testimony was expected to show communicated threats of the deceased against appellant. We are of opinion that the diligence is not sufficient to require a reversal in view of this record.

It is contended the evidence is not sufficient to support the verdict and judgment. Wé are not prepared to assent to this proposition. The state’s case shows sufficient evidence to justify the jury in their conclusion as well as the refusal of the court to grant a new trial. The testimony of appellant raises the question of self-defense. There was a sharp issue on this question. The jury could have believed appellant’s theory and acquitted, but they solved this matter adversely, and in view of the testimony we would not be justified in setting aside the judgment for this reason.

There ivas a question raised with reference to the authority of the trial judge to try the case. The regular judge was not present. Upon convening the court the attorneys selected a member of the bar, Hon. Garland Smith, to preside over the court during the term, and as such special judge he tried appellant’s case. In the motion for a new- trial it is alleged that Judge Blaekshear, the regular judge, had raised a company for National Guard ■ Service, and thereby became a federal officer as its captain. There is also a contention in the motion for new trial that Judge Blaekshear ceased to be judge by virtue of his military office at the time of the trial of appellant. The facts with reference to that matter are the same in this ease as in the case of Lowe v. State, 201 S. W. 986. this day decided in an opinion written by Judge Morrow, where the facts are set out and the matter discussed at some length. We are of opinion that the conclusion in that case was correctly reached, and the trial judge was authorized to try this case and finish the work of that particular term, although Judge Blaekshear may have been sworn into service before the end of the term for which Judge Smith was elected special judge. It is not deemed necessary to go into the reasonings in this case as those have been given in the opinion by Judge Morrow in the case above mentioned.

The judgment herein will therefore be affirmed.
      <§t=>Fot other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDER.GAST, J.

text:
    PHILLIPS v. STATE.
    (No. 4827.)
    (Court of Criminal Appeals of Texas.
    March 6, 1918.)
    Criminal Law <&wkey;1091(4) — Appeal—Bill op Exceptions — Qualification.
    Bill to admission of physician’s testimony as to what accused said very, soon after the murder, on ground that he was then under arrest, qualified by judge’s statement that he was not then under arrest, and contradicted by accused’s own testimony, showed no error.
    Appeal from District Court, Henderson County; John S. Prince, Judge.
    Alexander Phillips was convicted of murder, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDER.GAST, J.

Upon a trial for murder, appellant was convicted, and the lowest punishment assessed.

There were no objections to the court’s charge in any particular. Every issue raised by the testimony was properly submitted in the charge.

The only questions presented are by three bills to the admission of testimony. The first was to the testimony of Dr. Pully, who testified, among other things, to some statements by the appellant to him very soon after he cut and killed deceased. This testimony was objected to on the ground that appellant was under arrest at the time. The bill quotes the whole of the testimony of Dr. Pully, not only of what the appellant told him, but of other material testimony on other points as well. Appellant’s objection that he was under arrest at the time is a mere objection. It was not approved as a fact by the judge. In fact, the judge qualified his bill by stating that the defendant was not under arrest, as disclosed by the testimony of the witness, and that appellant himself swore that Chapman and Cartledge arrested laim. They were deputy sheriff and constable, respectively, and this was some time after he had made the statements to Dr. Phlly. This bill shows no reversible error.

Another bill was to the testimony of Nannie White. I-Ier testimony is also quoted in full in the bill. She testified to some statements made by the deceased to her which the court admitted, it seems, either as dying declarations or a res gestae statement, or both.

His other bill is to the testimony of Maggie Mays and is gotten up in the same way. Her testimony was admitted by the court both as a res gestae statement and a dying declaration as shown by his qualification of tne bill. In addition to what the bill shows, the court told the jury in his charge that before they could consider the testimony of either of these witnesses they must find that the requisites for the admission of dying declarations were shown. The testimony of Nannie White was perhaps also a res gestee statement of the deceased. At least the bill by no means excludes any such idea.

The record was sufficient to show that the testimony of both of these witnesses was admissible as testifying to the dying declaration of deceased. Neither of these bills show reversible error.

There is nothing else for review.

The judgment is affirmed.


text:
    JOHNSON v. STATE.
    (No. 4797.)
    (Court of Criminal Appeals of Texas.
    Feb. 20, 1918.)
    1. Prostitution &wkey;>l — Pandering — Evidence.
    Though defendant may have assisted a common prostitute to ply her vocation, yet, where she did so in the woods away from any place of habitation, defendant does not fall within Vernon’s Ann. Pen. Code 1916, art. 506a, denouncing the offense of pandering by inducing or procuring a female to resort to or remain in a house of prostitution, but was within article 498.
    2. Prostitution <&wkey;4^-PANDERiNG — Evidence.
    Evidence held insufficient to sustain conviction of pandering under Vernon’s Ann. Pen. Code 1916, art. 506a.
    8. Prostitution <&wkey;5 — Oeeenses—Charge.
    In a prosecution for pandering in violation of Pen. Code, art. 506a, where it was doubtful whether the houses involved were houses of prostitution or where prostitution was encouraged or allowed within the meaning of the law, those terms should be defined in the charge.
    Appeal from District Court, Eastland County; Joe Burkett, Judge.
    Lewis Johnson was convicted of pandering, and he appeals.
    Reversed and remanded.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction was for pandering, and the punishment fixed at ten years’ confinement in the state penitentiary.

The Assistant Attorney General, in his brief, has subdivided the provisions of the statute (Vernon’s Ann. Pen. Code 1916, art. 500a), giving to each subdivision a number as follows:

“(1) Any person who shall procure or attempt to procure or be concerned in procuring, with or without her consent, a female inmate for a house of prostitution.
“(2) Or who, by promises, threats, violence or by any device or schemes, shall cause, induce, persuade or encourage a female to become an inmate of a-house of prostitution,
“(3) Or shall procure a place as inmate in a house of prostitution for a female person,
“(4) Or any person who shall, by promises, threats, violence or by any device or scheme, cause, induce, persuade or encourage an inmate of a house of prostitution to remain therein as such inmate,
“(5) Or any person who shall, by fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, procure any female person to become or remain an inmate of a house of ill fame, or to enter any place in which prostitution is encouraged or allowed in this state.
“(6) Or to come into this state or leave this state for the purpose of prostitution, or who shall procure any female person to become an inmate of a house of ill fame within this state,
“(7) Or to come into this state or to leave this state for the purpose of prostitution,
“(8) Or who shall give or agree to receive or give any money or thing of value for procuring, or attempting to procure, any female person to become an inmate of a house of ill fame within this state,
■ “(9) Or to come into this state or leave this state for the purpose of prostitution, shall be guilty of pandering, and, upon conviction for any offense under this act, shall be deemed guilty of a felony and shall be punished by confinement in the penitentiary for any term of years, not less than five.”

All of these subdivisions of the statute, except subdivisions 6, 7, and 9, which relate to coming into or going out of the state, make an element of the offense the entry of a house of prostitution or remaining in a house of prostitution. Subdivision 5 as numbered above uses the term “house of ill fame,” and also the term “to enter any place in which prostitution is encouraged or allowed.”

The evidence in the case shows that Lucile Warren was a common prostitute, and that appellant accompanied her or followed her to various places; that he had sexual intercourse with her in a hotel in Ft. Worth and at Gorman; and that he was cognizant of and probably interested in her plying her vocation as a common prostitute, but the place at which the proof shows it to have been done with his knowledge was not at a house of prostitution or ill fame. They stopped at a hotel in Gorman, and the woman on her own initiative, as she says, made arrangements with a man to go out in the woods in a buggy and have sexual intercourse, and that appellant and a number of others followed them on foot, and that while appellant was present in the party she did have sexual intercourse with a number of these men. There is no indication from the evidence that the hotel at Gorman was a house of ill fame or a house of prostitution. The conviction appears to he based upon the idea that the transaction at Gorman, and possibly the same kind of transaction at Cisco, in which the prostitute, with the knowledge and aid of appellant, plied her vocation at a place out in the woods and in a pasture, neither of which were, shown to be a house of prostitution, tent, or any kind of attempted inclosure, but simply in the open country sheltered by the darkness, was a violation of the terms of the act touching the entry of a “place” in which prostitution is encouraged.

The use of the word “place” in the first paragraph of the court’s charge suggests the idea that such was the view of the trial court. The indictment, it occurs to us, should have been under article 498 of the statute, which makes it a penal offense to procure a female for the purpose of having sexual intercourse with any male; the words being as follows:

“It shall be unlawful for any person to invite, solicit, procure, allure or use any means for the purpose of alluring or procuring any female to visit and be at any particular house, room or place for the purpose of meeting and having unlawful sexual intercourse with any male person.”

There is no evidence of fraud, duress, or abuse of position of confidence or authority. At all events, we do not think the evidence supports the necessary element of the prosecution charging appellant’s acts to have been in connection with bringing or keeping of the female named in a “house of prostitution.” There is evidence that he went with her to a house of a man in Cisco with whom neither of them were acquainted; her mission being, as we understand it, to get work in connection with a restaurant or work of some kind. She stayed at the house mentioned for a day or two, and subsequently returned there on her own accord, and on one of the occasions she had intercourse with the owner of the house, so far as evident, without any arrangement or knowledge on the part of appellant. She also says that she had sexual intercourse with a man in the hotel at which she stopped, but this was when she had gone there without appellant accompanying her.

That the evidence raised an issue as to either of these houses being a house of prostitution is doubtful. If, however, it did raise such issue, or the evidence does upon another trial, the special charges requested by appellant or similar special charges defining a house of prostitution should be given.

It has been held that, where the evidence is undisputed that a certain house is a house of prostitution and the issue in the case is not the character of the house but the acts of the accused with reference to it, no instruction defining a house of prostitution is necessary. Clark v. State, 76 Tex. Or. R. 348, 174 S. YV. 354. In this case, however,. there is no exclusive proof that either of the houses mentioned were houses of prostitution or where prostitution was encouraged or allowed within the meaning of the law, under which circumstances the charges mentioned were necessary. I-Iewitt v. State, 71 Tex. Cr. R. 243, 158 S. W. 1120.

The judgment of the lower court is reversed, and the cause remanded.
      ®=5For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes