author: McMEANS, J.

text:
    ST. LOUIS, B. & M. RY. CO. v. ROBERTS.

    (No. 7222.)
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 31, 1916.)
    1. Conteacts <&wkey;>247 — Modification—Sufficiency 0^ Evidence.
    In an action for the contract price for digging a well, evidence held, to show that the contract as modified by parol required plaintiff to procure water of a quality equal to that from another well in the same town.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1139, 1787; Dec. Dig. &wkey;247.]
    2. Conteacts <&wkey;322(3) — Actions—Sufficiency oe Evidence.
    In an action for the contract price for digging a well, evidence held to show that the water from the well dug by plaintiff was not equal in quality to that of another well, as required by the contract.
    [Ed. Note. — For other eases, see Contracts, Cent. Dig. § 1534; Dec. Dig. &wkey;322(3).]
    3. Conteacts &wkey;>304(l) — Peefoehance — Acceptance.
    Where the well dug by plaintiff under contract with defendant failed to produce the quality of water called for by the contract, plaintiff is not entitled to recover the contract price therefor, unless the well was accepted by defendant as being in full compliance with the contract.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1457; Dee. Dig. <&wkey;304(l).]
    4. Conteacts <&wkey;304(2) — Peefoehance — Acceptance.
    A direction by defendant to plaintiff to remove his well-digging apparatus to another locality, on being informed that the well in question was producing the quantity of water required by the contract, is insufficient to show an acceptance of the well as full compliance with the contract as to the quality of water, where plaintiff could not have produced better water by continuing his well-digging operations further.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1458-1464; Dec. Dig. &wkey;304(2)J
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by John E. Roberts against the St. Louis, Brownsville. & Mexico Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Andrews, Streetman, Burns & Logue, R. C. Fulbright, and W. L. Cook, all of Houston, for appellant. Meek & Kahn, of Houston, for appellee.

      Application for writ of error pending in Supreme Court.

   McMEANS, J.

John E. Roberts brought ■this suit against the St. Louis, Brownsville & Mexico Railway Company and Frank Andrews, as its receiver, to recover $5,586, with interest, alleging that said sum was the contract price -which defendants agreed to pay him for drilling two wells, one at Sinton, .and the other at Robstown.

Upon the trial of the case the plaintiff voluntarily dismissed his suit as against the receiver, and the court peremptorily instructed the jury to return a verdict for the defendant railway company for the claimed contract price of drilling a well at Robstown, and submitted special issues to plaintiff’s claim for drilling the well at Sinton, and upon the answers of the jury to such special issues, the court entered judgment for plaintiff in the sum of $2,802, with interest from May 1, 1913, from which the defendant has appealed.

When the introduction of the evidence had been concluded the defendant requested the court to peremptorily instruct the jury to return a verdict for it as against the plaintiff’s claim for drilling the well at Sinton; and several of appellant’s assignments of error are predicated upon the refusal of the court to instruct the jury as requested.

Appellant’s main contention in substance is that as plaintiff’s cause of action is predicated upon a contract, it is essential to entitle him to recover that he bring evidence at least tending to show a performance on his part of the provisions of the contract before he can exact performance from the defendant, and that as there is no evidence whatsoever that plaintiff performed the Sinton contract with respect to the quality of the water called for, he cannot recover.

The contract declared upon by plaintiff was in writing. In the first paragraph it is provided the manner in which the well should be sunk and finished. The second paragraph is as follows:

“The contractor agrees to sink two 8-incli tubular wells to a depth of not less than 120 feet, or to such a depth as may be necessary and proper to develop the best supply of water, provided that said wells shall not be drilled more than 850 feet in depth, and in the event said wells do not develop 100,000 gallons of fresh water per day upon reasonable and proper test, then the said contractor agrees to bore or sink a third tubular 8-inch well to a similar depth, and hereby guarantees to said company an annual supply of fresh water from said three wells, equalling not less than 100,000 gallons per diem of 24 hours, and in the event said three wells do not furnish upon reasonable and proper test a supply equal-ling 100,000 gallons per diem of 24 hours as per this guaranty, the said contractor further agrees to continue with the drilling of said third well and sink same to what is commonly known as the ‘700-foot stratum,’ or to a depth not to exceed 850 feet, and said contractor guarantees to said company an annual supply of fresh water from said deeper well equalling not less than 100,000 gallons per diem of 24 hours; and in the event said deeper well does not develop upon reasonable and proper test a supply of water as herein guaranteed, no compensation will be required by the said contractor of and from the company for labor performed or materials furnished in the development of any of said wells, save and except transportation for four men and materials and tools as herein provided for from Danbury or Blessing to Odem and return from Odem to Houston. * * * ”

The fifth paragraph provides for tests as to the producing capacity of the well, and the seventh provides the amount of plaintiff’s compensation for doing the work and the time of payment. The contract was signed on behalf of the defendant by J. S. Pyeatt, its vice president, who acted for it in making the contract.

Before plaintiff had done anything toward drilling the well at Odem the contract was changed so as to apply at Sinton instead of at Odem. After the drilling of the well at Sinton had begun plaintiff noticed for the first time thát the contract called for fresh water. Upon making this discovery plaintiff called upon Mr. Pyeatt, and called his attention to the stipulation for fresh water, and informed him that fresh water could not be obtained in that locality, whereupon the contract in that regard was modified, and as showing the extent of modification we must resort largely to the language of the persons who testified in respect thereto. Plaintiff testified that after he told Mr. Pyeatt that fresh water could not be obtained in that locality, as none was there, further testified:

“Well, Mr. Pyeatt said, ‘You will have to go to the courthouse strata and get that water, and that will be satisfactory with us; we know it is not fresh water, but it will be satisfactory with us.’ That is what is called the 940-foot strata.”

Further on he testified:

“The contract which has been introduced in evidence here calls for fresh water, and, as I have testified, I went to Mr. Pyeatt about that particular matter, and we had a conversation about it, and I told Mr. Pyeatt that I did not understand it, and he knew it too. My understanding of the matter at the time I discussed the matter with Mr. Pyeatt was, that we were to get the courthouse water. I considered fresh water to mean water like we get here in Houston and ¿round here and as far down as Oollegeport. You do get good fresh water down as far as Ool-legeport. I explained to Mr. Pyeatt,. according to my testimony already given here, that I couldn’t get that water down at Sinton, and he agreed then to modify it so as not to bind me to fresh water, and as to the quality of water to be produced, it was to be the same as the courthouse well at Sinton, and they are about three blocks apart. So that it was understood that the requirement as to quality, in the contract, should be changed from fresh water to water the same quality as the courthouse well at Sinton; therefore we changed the depth from 850 feet to 940 feet; that was not after we had made the change as to depth; they made the change then — that is, they made the change at the same time. In other words, I was to produce water as good in quality as the courthouse well at Sinton. When the quality of water was mentioned at any time in these negotiations between Mr. Pyeatt and I, or any other representative of the company, I knew that the quality had reference to boiler purposes.”

Upon the same subject the witness Pyeatt, defendant’s vice president, testified:

“In the negotiations leading up to the contracts for the drilling of those other wells and for the drilling of these particular wells, I in person discussed the matters with Mr. Roberts. In reaching conclusions about the drilling of wells with reference to the material points in it, that is, as to how about the local conditions down there, etc., I left it entirely with Mr. Roberts ; that is, as to the depth that he would go to get the water that we were seeking for the purpose for which we wished to use it. T did tell Mr. Roberts-the kind of water we were seeking. _ In talking to Mr. Roberts about it, I was talking to him as a man familiar with the different strata down there, and familiar with the probabilities of securing a given water at a given depth, for he assured me that he was familiar with it, and I relied more on his judgment than on any information that we had about the sort of water in the different strata. It was understood that the water was to be used for a definite and specific purpose; it was understood that the water was required for locomotive purposes.
“I executed the Sinton well contract and the Robstown well contract, on behalf of the defendant railway company, jointly with Mr. Roberts, the plaintiff in this case. I recall the fresh water terminology in those contracts. I also recall a conversation I had with Mr. Roberts subsequent to the execution of the Sinton contract relating to the fresh water terminology in that contract. I had a conversation with Mr. Roberts in regard to fresh water with reference to both the Sinton and Robstown contracts, but not at the same time; the conversation about the Sinton contract was prior to the other, and, with reference to that, Mr. Roberts wanted to know what we meant by ‘fresh water,’ whether it was absolutely pure water, or whether it meant water fit for steaming purposes in a locomotive boiler; I told him that we didn’t expect better water than had been obtained in that locality, or water that we had no right to expect in that locality, that we had tested the Sinton deep well water before we decided to put a well at Sinton, and knew that we could use it in our locomotive boilers, that we knew the depth of that well, and that we would accept water equal to the Sinton well water, and we would accept that as fresh water and as a complete fulfillment of the contract so far as the quality of the water was concerned, and he said that was entirely satisfactory. The Sinton courthouse deep well was mentioned in that conversation for the standard for test, and the comparison was ultimately reached by analysis.”

We think that but one conclusion can be drawn from the foregoing testimony, and that is, that under the contract as modified the plaintiff contracted and agreed to produce a supply of water of quality equal to the courthouse well at Sinton.

There is no question that in the manner of sinking and finishing the well and the depth to which it was sunk the plaintiff complied with the contract. Also there is no-question that the well after its completion produced the quantity of water called for in the contract, viz., 100,000 gallons in each 24 hours. The decision of this case, therefore, hinges largely upon the question of whether the water obtained from it was of equal quality to that of the courthouse well at Sin-ton. The well in question was sunk about 1,000 feet distant from the courthouse well. In the drilling operations wafer from a nearby well, producing salt water, was used in great quantities; the salt water being pumped into the well in the course of drilling. The well after it was completed produced by natural flow about 3,500 gallons per day. A suction pump was used for several days to increase the flow, and thereafter an air compressor was used, and by its use the flow was increased until it amounted to more per day than called for in the contract. The well was completed about March 28, 1918. On the 24th of April, 1913, a sample was obtained for analysis, and turned over to P. S. Tilson, a chemist. Afterwards, about June 9, 1913, another sample taken from the well was also turned over to Mr. Tilson for the same purpose. It is undisputed that from the time of its completion to the time of taking the samples the well had a continuous natural flow of about 3,500 gallons per day, and that the well had not only been pumped to develop its greatest capacity, but that for the 24 hours preceding the taking of the samples for analysis the well had been pumped. It is hardly conceivable, therefore, that any of the salt wate“r pumped into the well during drilling operations still remained in it at the time the last sample was procured for analysis. According to the testimony of the chemist, Tilson, the samples showed the water to be salty and wholly unfit for use in locomotive boilers, and was not of the same quality as the courthouse well. The analysis of the samples showed the presence respectively of 342.115 and 354.771 grains of sodium chloride or common salt in each gallon, while samples taken from the courthouse well on August 5, 1912, and May 31, 1913, respectively, showed the presence of only 69.608 and 76.914 grains of sodium chloride per gallon. In this connection the plaintiff testified:

“Water was taken from that well I drilled at Sinton for the purpose of a test; they finally took some to analyze it. I think my men shipped a jug of it to Houston for the railroad company, or Mr. Heyser did. * * * We kept the pump on the well for a couple of days, and pumped water; I guess you would call it salty water. * * * I did know that there was salt stratum underneath there; I knew all the time we were pumping there that I was pumping out salt water of the same grade as that salt stratum. I knew that it was not the same grade of water as would be accepted by the company; it was not as good as the courthouse water at that time.”

He further testified:

“I knew, of course, that if I didn’t get the quality of water at that depth that I couldn’t perform the contract, because I couldn’t go deeper; so that if you take it the way you put it, that is, in so far as the depth was concerned and everything, if I didn’t in fact get the water at that depth (934 feet) the contract absolutely fell, I guess it is right.”

It was shown that while the water in the courthouse well was not good for use in locomotive boilers, still it could be so used, while according to the testimony of the witness Tilson the water in the well drilled by plaintiff was four times as bad as that in the courthouse well, and wholly unfit for such use.

The witness Pyeatt testified that after he received the chemist’s report of the water first taken from the well, he rejected the ■well; that he personally advised the plaintiff and showed him the report upon the difference between the quality of the water in the courthouse well and the new well. He testified in that connection:

“In that conversation Mr. Roberts said they had used salt water out of the ice company’s well across the track to wash that well, and he believed that a good deal of that water still remained in the well possibly when we got this sample, and asked us to wait for two or three weeks and take another sample and have it analyzed; I told him we would wait as long as they asked us to, and take the sample of it. We took the sample— I don’t know just how long, but some time after —and had it analyzed, and it showed practically no change.”

The chemist’s report on the first sample was dated April 28, 1913, and his report on the second was dated June 9, 1913.

The foregoing testimony, which is without dispute, conclusively shows, we think, that the water from the well in question was not of the quality of that in the courthouse well, but was greatly inferior and wholly unfit for use in locomotive boilers; and that while the plaintiff complied with his contract as to the quantity of daily production, he wholly failed to comply with his agreement to produce the quality of water called for in the contract. This being true plaintiff was not entitled to recover unless the defendant received the well and accepted the same as being in full compliance by plaintiff with his contract as to the» quality of the water produced; and as to this question we now direct our inquiry.

Special issue No. 2, submitted by the court to the jury, is as follows:

“Did the defendant’s general water superintendent, E. B. Brown, accept said well from the plaintiff?”

This question was answered in the affirmative. Appellant by its sixth assignment of error asserts that there is no evidence in the record from which the jury could have answered this special issue in the affirmative. The material testimony introduced upon this issue is substantially as follows:

Plaintiff testified:

“After we got the amount of water that I have just testified about, I waited two or three days for Mr. Brown to come and accept the well, and Mr. Heyser telegraphed that the well was finished and ready to be accepted, and Mr. Brown finally came, and' we met him at the train, but he wouldn’t get off the train; he was sitting on the back of the train; and he asked Mr. Heyser about the well, and Mr. Hey-ser told him the well was finished and producing over 100,000 gallons of water per day, and that he had measured the depth, etc., and Mr. Brown says: ‘Well, you tear your rig down and go to Robstown,’ and I said, T have no contract at Robstown, but I have one at Blessing signed up, to go over to Blessing.’ ‘Why,’ he said, ‘You go on and tear it down, and go there, and by the time you get back to Houston, you will have a contract for you to sign.’ So I came back to Houston and found there was a contract for me to sign, and I then went down to Robstown with the rig and set it up there.
“The conversation that I told you about was not between Mr. Brown and I; it was between Mr. Brown and Mr. Heyser, in my presence. The well was all right wh.en I left there. I do not claim to be an expert on this water proposition; I leave that to somebody else. What I said Mr. Brown told me was to pull up my rig and go to Robstown. X told Mr. Brown, in response to that, that I didn’t have a contract to drill at Robstown, and he then told me to go ahead, that there would be a contract for me here for it, and he said he was? in a hurry because the water down there was short, and he said, ‘hurry up.’ That is substantially what Mr. Brown told me, just like I said a while ago; that is the substance of it.”

He further testified:

“Mr. Heyser stayed on the job at Sinton all the while the wells were being drilled. When they stopped at the depth they did, Mr. Heyser was there. Mr. Heyser was connected with the railroad company in the water service department. All the wells that appellee drilled for the Brownsville Railroad Company, Mr. Heyser was present representing the railroad company. When the wells were completed Mr. Heyser reported the completion. Mr. Heyser would make his reports on those wells, and Mr. Brown would come and accept them, and we would tear down our rigging and go to another job. When this well at Sinton was completed, Mr. Heyser told Mr. Brown what it was producing, the depth of it, and Mr. Brown told me to tear down our rigging and go to Robstown. Mr. Brown did not get off the train to see the well himself at all.”

The witness Heyser testified:

“Was in the employ of the defendant company at the time the well in question was drilled; quit the service of the company when said well was finished; was inspector for defendant; was at the well practically all the time; was present there as inspector for the company; was working directly under Mr. Brown’s instructions; my duties were to see that they got the contract amount of water, 100,000 gallons in 24 hours, and see how much casing was used; recall the depth of the well. After Mr. Roberts and his crew washed the well and pumped it, and ascertained it had a flow of more than 100,000 gallons per day, Mr. Brown was out there; we told him we had 108,000 gallons in 24 hours; Mr. Brown was on the rear end of the platform while the train stopped there; I was waiting there to see Mr. Brown, to see what was the next move. My duties there other than to inspect the well as to quantity and perform the other matters I have testified about here were to see that they got the proper amount of water, and to see how much casing was used in the depth.
“I was sent there as representative of the company, to see that the contract was carried out. When this contract was completed, and Mr. Roberts and I had satisfied ourselves that we had this flow of water, Mr. Roberts was present with myself, and I met Mr. Brown and told him the quantity of water. In the conversation had between Mr. Brown and I with Mr. Roberts on that particular day, after I had stated to him what I had there, and Mr. Roberts had stated what he had, Mr. Brown told Mr. Roberts to tear down the machinery and go on up to Robstown.
“Mr. Roberts and I were present and told Mr. Brown of the flow of the water we had. He told Mr. Roberts to tear down his rigging and go on up to this other place, Robstown. There was nothing said about salt water then, and after this well had been drilled and we had tested it with air compressor, I informed Mr. Brown that the contract had been performed so far as I was concerned. I had been on three wells that Mr. Roberts had drilled prior to the one in question; those three wells were accepted on my recommendation, with instructions from Mr. Brown, of course. I would always wire or write Mr. Brown the quantity of water we had. During the time I was with them there was no well that Roberts drilled accepted on any other statement save and except through Mr. Brown. There was no one except myself who was connected with the road who accepted them except Mr. Brown. During all my service there with them there was no well accepted by Mr. Brown save and except by myself; not that I know of.”

The witness Brown, who, at the time of the drilling of the well in question, was in charge of buildings, bridges, and water service of the defendant, testified:

“I heard the testimony this morning of Mr. Roberts concerning the conversation which he said took place when we were on the rear end of a Brownsville train, at the station of Sin-ton, and in the presence of Mr. Heyser; I recall that conversation, and it was about as Mr. Roberts spoke it. At the time that conversation was had, Mr. Heyser was standing on the steps on the back end of the train. In that conversation Mr. Heyser told me that they had developed 108,000 gallons with the air compressor, and that the well was practically clear of sand. I do not know that Mr. Roberts made any statement to me on that occasion other than that they had 108,000 gallons; he confirmed what Mr. Heyser had just told me. In response to what both these men told me, I told Mr. Roberts to go ahead and move to Robstown. I do not recall stating to him any reason for going to Robstown. The reason I told him to go to Robstown is we were short of water supply at that point at that time, and were very anxious to have the well started. I had understood that Mr. Roberts had the matter of Robstown up with Mr. Pyeatt. The quality of the water was not discussed at the time I had that talk with them. There was nothing else that I remember that was discussed at that time except the report of the quantity, and me telling him to go to Robstown.
“I had instructed some one to get a sample of the water out of this well before I saw Mr. Roberts and Mr. Heyser; I usually instructed Mr. Heyser to get such sample. It was on the 26th day of April, 1913, that I saw Mr. Roberts and Mr. Heyser at Sinton; it was prior to that time that'I had requested a sample of water, about two days, I think, prior to that time, that I had requested the sample. I requested the sample of Mr. Heyser. Mr. Heyser reported and took instructions from me. At the time I was talking to Mr. Roberts, and about which I have testified, I had been advised that the sample of water had gone off for analysis. I had not had a report as to the analysis on it.
“I had Mr. Heyser on the job when those wells were drilled, and he reported to me,'and of course when Mr. Roberts finished up a well in the natural course of things he would move. Mr. Heyser would report to me on each well after they had gone down so many feet, and that they had gotten a certain amount of water. Heretofore when Mr. Heyser would report to me when any of these wells were completed and everything was satisfactory, then I would report to my boss, and Roberts was moved ahead, and for that reason I never came in contact with him before this time in Sinton; that is a fact. I was just passing Sinton the time I had that conversation I told you about; I was not going there; I was going South. If I had not been going South I would have taken Heyser’s statement again as to the depth of the well and the amount of water.”

Plaintiff testified:

“I reached the stratum called for in the contract. I do understand that this contract called for a certain quality of water. And I understood that I went to the stratum that was in line with it. I also understand that if I had tried to go any further I wouldn’t have gotten the water called for; it would have been salty. In other words, if I had not already gotten it there was no opportunity to get it by going 'deeper; not that kind of water.”

Again lie says:

“We never went deeper than that (940 feet) in that country. Prom my knowledge of that country, I have an idea that the stratum underneath that depth would be salt water. I know it to be a fact that wells in that vicinity dug beyond what we call the 940-foot stratum actually produce salt water. * * * ”

Again le says:

“As in the Sinton contract it is also true with reference to the Robstown contract that I knew that there was a definite quality of water to be produced. You ask me if it is not a fact that I also knew that if I didn’t get it at the 940-foot stratum or the 928-foot stratum when I reached that stratum that I could not go any further, and that there was no chance to perform the contract; but I did get the water. I know, of course, that if I didn’t get the quality of water at that depth that I couldn’t perform the contract because I couldn’t go any deeper.”

We think that the testimony above detailed falls far short of any proof of acceptance of the well by defendant as a compliance by plaintiff of his contract in so far as the quality of the water is concerned, and that therefore the answer of the jury 'to the special issue quoted was wholly unwarranted. There is no doubt that the well produced the quantity called for in the contract, and it is quite clear that at the time Mr. Brown told the plaintiff to pull down his rig and go to Robstown, that neither he, nor his agent Heyser, nor the plaintiff knew whether the quality of the water was equal to that of the courthouse well. All they knew at that time was that the quantity called for was being produced, and they further knew that if the water was not of the quality called for in the contract that nothing further could be done by plaintiff to produce water of that quality. As the plaintiff himself says:

“I knew, of course, that if I didn’t get the quality of water at that depth I couldn’t perform the contract because I couldn’t go any deeper.”

In such circumstances there was nothing left for plaintiff to do but to pull down his rig and move to the next place where he was under contract to sink a well, for it would have availed him nothing to have kept his machinery there; it being impossible for him to have gotten a different..quality of water by means of its further use. The mere fact, therefore, that Mr. Brown told him to take down his rig and move,- at a time when none of them knew whether the water was of the quality called for, and at a time before an analysis of it had been made, cannot, by any sort of construction be held as an acceptance as to quality which would bind the defendant to pay plaintiff the contract price for his work. The contract requiring plaintiff to produce water of a given quality may seem harsh, but the parties so contracted, and the courts can only enforce the .contract as made, and are not at liberty to make a contract for them.

It follows from the views herein expressed that it is our opinion that plaintiff is not entitled to recover, and that the judgment of the court below should be reversed, and judgment herd rendered for the appellant; and it has been so ordered.

Reversed and rendered.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BROOKE, J.

license: Public Domain

text:
    POWELL v. ERWIN.
    (No. 133.)

    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 26, 1916.)
    Bills and Notes t&wkey;518(l) — -Consideration —Evidence—Sufficiency.
    In an action on a note against the administrator of the maker, where the defense was that the note was given as consideration for a fraudulent sale of plaintiff’s stock of goods, and that it was not the intention of the parties that title to the goods should pass or that the note should be paid, evidence held to support a verdict for defendant.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1816, 1817, 1819, 1820; Dec. Dig. 4=3518(1).]
    Appeal from District Court, Jasper County; A. E. Davis, Judge.
    Action by B. Z. Powell against W. C. Erwin, administrator of the estate of J. W. Erwin, deceased. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Wightman & Hancock, of Newton, and Powell & Huffman, of Jasper, for appellant. H. C. Howell and John H. Seale, both of Jasper, for appellee.

      Application for writ of error pending in Supreme Court.

   BROOKE, J.

This action was brought by B. Z. Powell against W. C. Erwin, administrator of the estate of J. W. Erwin, deceased, said estate being in process of administration in the probate court of Jasper county, Tex., upon a promissory note in the sum of $2,500, with 8 per cent, interest from date thereof, August 18, 1910, together with 10 per cent, attorneys’ fees. The action was defended by the administrator by a plea of non est factum, failure of consideration, and the following plea:

“This defendant further alleges that, if mistaken in his allegations in the foregoing plea of non est factum, and that in truth and in fact the said J. W. Erwin did make and execute the said note or instrument in writing, then that the same was made and executed by the said J. W. Erwin at the request of said B. Z. Powell, at a pretended consideration for a fraudulent sale by the said B. Z. Powell to the said J. W. Erwin of a stock of goods, wares, and merchandise located at Farrsville, Newton county, Tex., belonging to the said B. Z. Powell, the purpose of which transaction having been to enable the said B. Z. Powell to defraud his creditors; that no title to or interest in said stock of goods or anything else of value ever, in fact, passed from the said B. Z. Powell to the said J. W. Erwin by said transaction, nor was it the intention of the parties that any such should pass thereby; that no part of the pretended consideration expressed in said note has ever been paid, nor was it the intention of the parties thereto that the same should ever be paid.”

Trial was had before a jury on December 8, 1915, the case having been submitted on special issues as follows:

Question No. 1: “Did J. W. Erwin execute and deliver to B. Z. Powell liis note on the 18th day of August, A. D. 1910, for the sum of $2,500, and payable 12 months after date, and being the note sued on in this case? You will answer this question ‘Yes’ or ‘No’ as you may determine the fact to be.”
To this question the jury answered “Yes.”
Question No. 2: “Did J. W. Erwin execute and deliver to B. Z. Powell the note sued on in this case as the purchase price or a part of the pui'chase price of a mercantile business at Earrsville, Tex.? You will answer this question ‘Yes’ or ‘No,’ as you may determine the fact to be.”
To this question the jury answered “Yes.”
Question No. 3: “Did J. W. Erwin and B. Z. Powell enter into an agreement that J. W. Erwin was to execute and deliver, to B. Z. Powell the note here sued on, as a fictitious purchase of mercantile business of B. Z. Powell at Farrsville, in order to assist or attempt to assist B. Z. Powell in defrauding his creditors? You will answer this question ‘Yes’ or ‘No,’ as you may find the fact to be.”
To this question the jury answered “Yes.”
Question No. 4: “Was it the intention of J. W. Erwin and B. Z. Powell, at the time of the execution of the note here sued on, that no consideration was to pass for said note? You will answer this question ‘Yes’ or ‘No,’ as you may find the fact to be.”
To this question the jury answered “Yes.”
Question No. 5: “Was it the intention of B. Z. Powell and J. W. Erwin, at the time when the note was executed that the same should be paid? You will answer this question ‘Yes’ or ‘No.’ ”
To this question the jury answered “No.”
Question No. 6: “Was it the intention of B. Z. Powell and J. W. Erwin, at the time the note was executed, that the title to the goods, wares, and merchandise should pass from the said B. Z. Powell to the said J. W. Erwin? You will answer this question ‘Yes’ or ‘No.’ ”
To this question the jury answered “No.”

The verdict of the jury is assailed as being contrary to the evidence by appellant in his assignments, and the action of the court is called in question in overruling plaintiff’s special exception to a part of defendant’s answer heretofore set out, which failed to set forth the names of the alleged creditors of B. Z. Powell. It is strenuously insisted that there is no testimony in the record upon which the jury could base their verdict. An examination of the record discloses as follows:

J. L. Reese testified:

“I was acquainted with J. W. Erwin during his lifetime. I was acquainted with him about as long as I could remember back, since I was a small boy. I have had business with Mr. Erwin, and I have lived close to him, and I suppose could say we were pretty intimate. He was an illiterate man; couldn’t read or write. Since I have been knowing him he had been a farmer and stock raiser all the while. Of course, he was a man made pretty good money. He would loan his money to people around, and I think his name was used at Farrsville in the business 'down there for a good long while, since about 1902; I think it was about 1002 that I went down there, and Mr. Erwin’s name was there then. As to what I mean by his name was used at Farrsville, will say I went there at one time to go into business with Mr. Powell. J. W. Erwin’s name was used in connection with a dry goods business store. Mr. B. Z. Powell, the plaintiff in this cause, was associated with Mr. Erwin. I say that Mr. Erwin’s name was used at Farrsville. His name was used in connection with the store, mercantile business. Mr. B. Z. Powell was associated with Mr. Erwin. When I say Mr. J. W. Erwin’s name was used there, I mean Mr. Powell signed name to ■ all the business, and the goods boxes all showed that the goods come there in Erwin’s name. I went there to go into business with Mr. Powell — Mr. B. Z. Powell. That was in 1902, as well as I remember, and when I went there Mr. Powell and I -were to go into business together. He was to clear Mr. Erwin’s name up, give Mr. Erwin’s name back, what he had put up for goods and clear up the business, and I was to go in with Mr. Powell in the outfit, and I left, and Mr. Powell didn’t come across. We bought the gin together. I paid Mr. I-Iorger my part, and he didn’t pay his, and I finally got my money out of it and hiked ’em. That is about the size of it, about all that I know. I know just what I told you about this transaction. He held onto Etwin, and he and I didn’t go into business. He and Erwin went ahead with the business. I said that Mr. Powell was to clear up Mr. Erwin’s name. That is what he said; that he was to get Erwin’s land back and go into business. I was to put $1,250 in it, and he was to put $1,-250 in it, and that would make $2,500 the way he explained it to me, and we would have a $5,-000 credit, and we were to buy the gin and one run the gin and the other the store. As to whether or not I knew the true relation that was existing there at that time between B. Z. Powell and J. W. Erwin with reference to that business, will say I did from Mr. Powell’s talk. I never had any dealings with Mr. Erwin at all. As to what Mr. Powell told me with reference to that, will say I was to come in there as a partner, and Erwin was to go out, and I don’t see why that didn’t kinder clear up the situation. He didn’t have anything to do with the business, the way I understood it, but-1 didn’t hear him say that Erwin didn’t have anything to do with it. He was to clear up Mr. Erwin’s name and give him his land back. He had been using Mr. Erwin’s name purchasing goods, and had his land Up in purchasing goods, and I have heard Mr. Erwin say himself. * * *
“Well, I signed some kind of document for Mr. Powell when I left there. I couldn’t tell you to save my life what it was. It was a sale to the stuff I didn’t own, to the store. He wrote up the document, and he gave me my money back that he had shipped my cotton for, and I signed him a document for the sale. I couldn’t tell the amount it was, and I never got any pay for it. It was just a document, sale of some kind. I got my money back. I stated that Mr. Powell was to clear up the land and give Erwin his name and land back. As to whether or not there was anything said there by Mr. Powell as to whether or not Mr. Erwin really owned any interest in the business, will say, by me selling it to Mr. Powell, I don’t think Mr. Erwin owned it. I sold Mr. Erwin Mr. Powell’s stuff, or I sold Mr. Powell Mr. Erwin’s stuff, I don’t remember that he said it belonged to him or whether it belonged to Erwin; it shows clean enough right there. As to whether or not I was in partnership there awhile with Mr. Powell, will say I went there to go into business with him. I stayed in the store there awhile. I did not recognize Mr. Erwin as connected with that business at that time. I never did see Mr. Erwin there, although the business had been run in his name. As to whether or not Mr. Powell ever gave back Mr. Erwin his name within my knowledge, will say it kinder seems to me at one time the business was run in Mr. Powell’s name later on after that, while I am not sure. I was in and out, and paid no more attention after I got out from there. I had business somewhere else, and I hardly ever visited there. I don’t know whether Mr. Powell ever gave Mr. Erwin his land back or not. If that business was run in J. W. Erwin’s name while I was away, it was run in his name up until his death. I was in Oklahoma, you know, and stayed a year os two at a time, and I don’t know just what happened while I was gone. It was run in J. W. Erwin’s name all the time that I know about. I came back here the last time about seven, years ago. As to whether or not it was being run in J. W. Erwin’s name at that time, will say. I am sure it was, but to say positively I can’t, because I didn’t go there, but I know a little,later on it was because me and Mr. Erwin were talking about it. I think it was a little after the burn down there I was talking to Mr. Erwin. I am talking about the last burn that happened at Earrsville. I think more than one happened.
“I stated a while ago that it was run in J. W. Erwin’s name a little later on after I' came back here. I visited Farrsville after I came back. I have bought goods there. I ‘don’t, believe I bought any there since I came back. As to whether or not I ever noticed the name of J. W. Erwin on any goods boxes, anything of that kind since I came back, will say my- business wasn’t at the store when I would go there, and I never paid that attention. I couldn’t say that I saw any goods boxes. I did not see J. W. Erwin in the store, managing the store, taking any part in it. Mr. Powell and Mr. Jim Powell was clerking in the store when I was there, some later years of the store’s life. Mr. B. Z. Powell was clerk there at the time I proposed to go in partnership. Mr. J. T. Powell first began work there as a salesman maybe a year, something like that, before it burned up; it seems to me he was salesman there that long. He was there a year or so, something like that; I am not positive about that.
“I never heard B. Z. Powell say anything about the note that is being sued on here. I never did hear J. W. Erwin say anything about this note, J. W. Erwin was not present there at Fai'rsville when I proposed to go into partnership there. My dealings were altogether with B. Z. Powell. I never made any proposition to Mr. Erwin to go into partnership with him, and he never made any proposition to me to go into partnership with him; yet-'his name was being used there in that business. I did not consult him about the business at all. Mr. B. Z. Powell was assuming to act there and to sell me an interest in that business, and he did agree to sell me an interest in it. 1/ he mentioned the fact that Mr. Erwin had any interest, any real interest, in the store, it is out of my recollection. If he ever mentioned Mr. Erwin owning any interest in it, I don’<t remember it. I don’t think he stated to me whether or not he did. If he did, it is out of my memory. Mr. Powell was acting alone in the transaction with me. I never saw Mr. Erwin, I don’t think, while I was at Farrsville, and I was there some couple of months, I reckon, something like that.
“I have heard J. W. Erwin make declarations or admissions with reference to that mercantile business out there at Farrsville. I have heard him talk about the business. One occasion very fresh on my memory was since I came back from Oklahoma. He came to my house. We had a little business together, and that was the time that I remember so well about hearing him talk about it. That was the year before Gilmer built this mill here. I worked here , the year they built that, and that was the year before. I am not certain about the time. I remember the time the store was burned the last time. I will tell you; it was after the land .was lost, because that is what he was talking about.
“This matter that I have testified about with reference to my buying an interest in the store there happened along about 1902, I think. It was somewhere in that neighborhood.* If that business ther’e was run in the name of J. W. Erwin & Co. at that time, I never knew anything about it. I will tell you that over. Now, you talk about me buying. I didn’t buy. Tes; I went there to go into business with Mr. Powell. Mr. Powell had my money in his possession. It was cotton money, and I was going to let that go in as my part of the business when we bought goods. Mr. Powell and I were going into business at that time together. As to whether or not Mr. Powell was trying to put his 'business in my name to hide it from anybody, will say he was to clear Mr. Erwin up. Mr. Powell and I were going into business together. TVe hadn’t selected any name. Mr. Powell paid me the money back, and I withdrew and had nothing else to do with the business.
“These transactions that I have been testifying about were all prior to 1910. I said that Mr. Jim Powell, along about a year before the store burned, was in there. I have seen him in the store, and at that time I suppose the business was conducted in the name of J. W. Erwin. I wasn’t in the store. That was my understanding.
“I stated a while ago that Erwin wasn’t mentioned in the transactions between Mr. Powell and myself at all. My transactions were with Mr. Powell. I had nothing to do with Erwin, and if the other was admissible, I could tell you what I asked Erwin afterwards. I don’t know how much money I had let Mr. Powell have. I haven’t got it counted up. It was quite a little sum, though. I think I had about $1,000 or $1,300 tied up down there. I had about $1,700 tied up with Powell and Horger together. The reason I didn’t go into partnership with Mr. Powell was because Mr. Powell never did come up with his part. He put me off from time to time until he could sell the cotton and get straight. That was what he was working at, to get money enough to pay him out of debt, to get Mr. Erwin’s name and land back, and we would go into business. We were to be equal partners.”

J. B. Howell testifies:

“My name is J. B. Howell, and I live here at East Jasper. I have been in the merchandise business nearly all the time since 1901 or 1902. During that time I merchandised part of the time at Rogan and part of the time here. I think I started to merchandising at Rogan in 1901. I am not sure of that now; it might have been in the spring of 1902, but I think it was in 1901. I did not move my business from Rogan to Jasper. I sold out that business and bought one here. That was in 1903. I have been in the business most all the time since. I have sold goods to the mercantile concern at Farrsville that was running in the name of J. W. Erwin. My recollection is that we sold some goods to J. W. Erwin at Roganville. I don’t know how often. I sold some goods to that concern since I came to Jasper. As to whether I dealt with J. W. Erwin or with B. Z. Powell, will say J. W. Erwin was the style of tne firm, I think. I don’t know anything about whether he was the real owner of the business or not. I think B. Z. Powell paid me for those goods. As to whether my dealings were with B. Z. Powell or with J. W. Erwin, will say I done business with B. Z. Powell in J. W. Erwin’s name, is the way I understood it. That was while I was in business out here at East Jasper. I understood that B. Z. Powell was running the business. The way I understood it, Mr. B. Z. Powell made the purchases in the name of J. W. Erwin for the J. W. Erwin business out at Farrsville. I understood that Mr. Powell was running the business. As to whether or not I remember the time that Mr. Erwin’s business at Farrsville was destroyed by fire, will say I understood that they got burned out there. I don’t believe I remember the circumstances of Mr. Erwin attempting to collect his fire insurance and having me to make some duplicate invoices for goods purchased from me in order to make his proof of loss with the insurance company. It seems like there was something done, but I couldn’t say about that. As to whether or not I have any recollection of B. Z. Powell making application to me for any invoices or any evidence in a claim for insurance for destruction of that business out there by fire, will say I remember B. Z. Powell was out there, and we had some conversation about it, but I don’t know what was done; I don’t remember. That was with reference to that fire insurance. I heard him say something about the insurance business, about his trying to collect insurance from somebody; I suppose it was from the fire insurance company; but, if he got any papers from me, I don’t remember it. Mr. J. W. Erwin never called on me for any papers or any information in a claim for fire insurance that he had that I remember of. I continued to sell that concern goods after I moved to Jasper. I don’t remember when was the last time that I sold them any goods. My recollection is I sold them goods as long as they were in business out there. I think I sold them goods up until the time the store was destroyed by fire. B. Z. Powell paid me for the last goods I sold them. I think B. Z. Powell was running the business out there. I don’t think I ever sold J. W. Erwin any goods on a credit out there. He didn’t do business with me at all, I don’t think. I didn’t run any account with him, I am pretty sure, that is, private account. I done business with B. Z. Powell in the name of J. W. Erwin, is the way I understood it. As to whether or not J. W. Erwin ever purchased from me in person goods for the store at Farrsville, will say all the goods that was sold to J. W. Erwin, I think, went to Farrsville. I never did sell J. W. Erwin in person any goods for the Farrs-ville _ store. _ I don’t know whether in the mercantile business it is a custom in some places that clerks in charge of the business, who don’t own the business, purchase goods for that business and transact the business of the concern or not. I don’t know about that.”

Jack Bisiiop testified as follows;

“I live about 11 miles northeast of here at what they call Harrisburg. * * * I have been living in Jasper county about 54 years. * * * I was acquainted with J. W. Erwin, who is now dead. I have been raised with him. I was intimately acquainted with him. We lived within about two miles and a half of each other. Mr. Erwin died this past April was a year ago, sometime along in April, 1914. A short time before Mr. Erwin’s death I saw him and B. Z. Powell talking together at Farrs-ville. I saw them together about a month or six weeks, or maybe two months, before his death, at Farrsville. I went there to mill, and I stopped at the end of them old logs where they rolled them in to saw up and took off my meal, or some of the rest of them got it. I don’t know whether I carried it in or some of the rest of them. And Julius come there and set down by me. I set down there on them logs. When I say ‘Julius,’ I mean Mr. Erwin. Julius Erwin set down there by me and was gritting his teeth. As to whether or not I had seen Mr. Erwin and Mr. Powell talking together before he came there, will say I don’t know whether they were talking or not, but they were together; they were out a piece, 40 or 50 yards, and I couldn’t hear anything. They didn’t remain at that place but a little bit before Mr. Erwin came and sat down by me. I just had rode up and set down there on a log. I don’t know whether I carried my corn in or whether some of them did, I don’t remember about that, but it wasn’t more than two or three minutes until Julius came and set down by me on that log. Mr. Powell was talking to some of them out there, some of the black ones or some of them; I never noticed who he was talking to. I didn’t see Mr. Powell and Mr. Erwin together but two or three minutes before Julius came and sat down by me. I just had come and got down and taken off my sack of corn. They were standing talking right out in front of the store. I reckon they were talking to one another; they were standing there. I say that Mr. Erwin came and sat down by me on a log right in front of the old grist mill. As to what Mi’. Erwin’s appearance was when he came and sat down by me on that log, will say he was gritting his teeth, and I sorter pushed from him. I didn’t know what was the matter. I thought he was mad or something; he was gritting his teeth; and I asked him what was the matter, and he said. * * * At that time Mr. Powell walked right along by the end of the log going into the grist, and Julius grabbed his knife. Mr. Powell was at the end of the log, 15 or 20 feet away. I don’t know whether he heard it or not. Anyhow, Julius got his knife, and I caught it, and said, ‘You are old and wore out anyhow,’ and he said. * * * Well, he come and set down by me on a log, and was gritting his teeth, and I asked him what was the matter. Well, he opened his knife, and I grabbed it, and I says, ‘That won’t do, you are too old to be fighting now,’ and I just took his knife and shut up, and I gave it back jto him after a while. That was the end of it. He started to go in the millhouse with his knife, and I wouldn’t let him. He started to go right on in the millhouse with his knife open, and I wouldn’t let him. I took it away from him. Mr. Powell had gone into the mill-house. He was in the millhouse at that time. As to whether or not Mr. Erwin had the appearance of a man who was angry, will say he was gritting his teeth and cursing. Mr. Erwin and I then went on back together up to the forks of the road. He went home when I did. When I got my meal, I went on home. He didn’t have any meal. I got Mr. Erwin’s knife away from him right there. I took it out of his hand. It was just half open. When I got hold of it, I didn’t let him open it. I shut it back. I took it away from him before he got it entirely open. I just grabbed his hand and shut it back, and took it out of his hand. I gave it back to him when we separated at the forks of the road. I forgot it, and had to come back about 100 yards and give it to him. I liked to have carried it on home with me. At the time Mr. Erwin put his hand in his pocket and got his knife he was sitting down on a log right by me, with his feet hanging off. He got up on his feet then and started straight towards the millhouse door. Mr. Erwin did not get red in the face. He was kind of pale just before he died. He never was as red as I am now. I don’t know whether there was anybody else there besides me and Mr. Erwin and Mr. Powell on this occasion I am testifying about or not. I didn’t notice anybody else there except us three. I said that might have been six weeks or two months before Mr. Erwin died. I saw him once after that before he died. I saw him after that over there at the crossroads between here and home. We met where the roads cross. I don’t recollect whether I bought anything that day while I was out there at Farrsville or not. That was after the store was burned there at Farrsville. There was two stores there, though, then. Westbrooks had one, and there was a little one there that Bloodsworth put up or some old man. I am not in the habit of trading at Farrsville. Sometimes I would get a little tobacco or something there, going to mill. I used to trade with B. Z. Powell there a long time ago. I haven’t traded with him though in the last eight or ten years. I generally go whenever the meal would give out, not every time then; I don’t know; maybe once a month, or hardly that often, and I hauled my cotton there in the fall. I never had a conversation with Mr. Powell about what occurred when Julius Erwin and I were sitting on the log. I never did tell him anything about it, and he never said anything to me about it. I don’t know that I saw him after that until I saw him while Julius was dead. I was not present when Mr. Erwin died. Mr. Mattox and I were the first two white people there after he died. Mr. B. Z. Powell came there after I got there. I don’t know how long he remained there. I don’t know when he left. I might have left before he did; I don’t remember. It was early in the morning when I got there. I reckon maybe 8 o’clock. I don’t remember what time of day it was when Mr. Powell arrived there. It is 6 or 7 miles from where Mr. Powell lived to where Mr. Erwin died. He was just there bumming around. As to whether or not I saw him in the house, will say I think he was the first one that asked me to shave Julius. I think that was about the first I noticed of him. I don’t know what time I left there. It was sometime in the evening. I don’t know what time Mr. Powell left. Old man Kinsaw, Mr. Mattox, myself, Mr. Powell, B. Z., Hancock, Mr. Seale, and Mr. Steward were in and around Mr. Erwin’s house the day that I was there. I don’t know who else was there. There were several. * * * There was an inquest held over his body that day. It was held by Mr. Steward. I don’t know how long it was after that before I went to Mr. Erwin’s house again. I think Mr. Erwin was buried the next day I didn’t go to the burying. I reckon they buried him next day over about Burkeville somewhere. I didn’t go to the funeral, and I don’t know who was present on that day.”

George Stephenson testified:

“I live down near Deweyville, in Newton county. I have lived in this county. I held the sheriff’s office in this county. I was acquainted with Mr. J. W. Erwin, who is now dead. I don’t know when I first became acquainted with him. I was acquainted with him a good long time, but I don’t remember just the exact time that I met Mr. Erwin. ' I remember being at Earrsville during the year 1907 or 1908; I won’t say for sure which. I did not get acquainted with Mr. Erwin during that year. I was acquainted with him before then. The first time that I remember meeting Mr. Erwin I think I met him here at court during the time that I was working for Mr. Jim Brown as deputy sheriff. That was the first time I ever met him. I couldn’t tell you what year that was. I can’t remember just exactly when it was. It was along about that time or a little before, possibly a year before. I know Mr. B. Z. Powell. I have known Mr. Powell a long time, that is, just knowing him when I see him, possibly as long as I have Mr. Erwin or longer. I remember the first time I ever went to Mr. Erwin’s house. That was either in 1907 or 1908; my recollection is it was along the last days of April or the first of May, in 1907 or 1908. My business there was buying cattle. I bought some .cattle from Mr. Erwin on that occasion. Joe Powell went with me on that occasion. I suppose Joe Powell is related to B. Z. Powell; I don’t know. I am not positive whether I stayed all night at Mr. Erwin’s house on that trip or not. I either stayed all night at his house or at Mr. George Bishop’s; I am not positive which. As to when I was next there, will say I went from there on to Burkeville, and then to his house. I can’t remember the dates that I was there after that. I had a conversation somewhat with Mr. B. Z. Powell in reference to that business at Earrsville, his connection with J. W. Erwin, or J. W. Erwin’s connection with that business. About all the conversation I ever had with Mr. Powell was when I came there to gather the cattle out here at the old Erwin place. Mr. Powell came there to see me. That is the place where they told me Mr. Erwin died. It was the place where J. W. Erwin was living when he died. I don’t remember the exact date that was. It was after Mr. Erwin’s death, but I don’t remember the exact date. It was a week or two weeks after his death. Mr. Curtis Erwin, and I think Pole Erwin, a colored boy, were present on that occasion; that is, they were there about the place. I don’t know that I remember any one else that was there. I said Mr. Curtis Erwin was there. I mean W. C. Erwin, the defendant in this case. Understand, they were present there at the place. They were not present when we were talking. That conversation occurred out there in front of the house, about the wagon shed. As to how long Mr. Powell and I were engaged in that conversation, will say I guess we sat and talked possibly four or five hours, something like that. It would be hard for me to say exactly how long we talked. I wasn’t paying special attention at the time. We were sitting down reasonably close together. I believe we were in a wagon part of the time, and part of the time we were sitting down right on the ground. As to who began that conversation, will say Mr. Powell came out there to see me." There was some things said about the business connections between him and Mr. J. W. Erwin. It has 'been two years ago, and it would be a hard matter for me to say just what was said in that conversation. It would be sorter hard for me to say just how it commenced and how it ended. Mr. Powell came out there to see me in regard to the cattle that I went there to gather, and made some suggestions to me in regard to the Erwin business in general. About the substance of it was that he wanted me to assist him or lot him assist me in arranging the business. He said he would go in with me and assist me, that he saw where we could make some money out of it. I suppose he had reference to the cattle of the Erwin estate. That was what I was interested in. Mr. Powell and I were a short distance away from the other parties who were there when we had this conversation. He made the suggestion to me that he would go in with me and skin the Erwin estate for all the money and stuff we could. He said he thought we could do it very easily. He did not state to me directly how he thought we could do it. It would be a hard matter for me to go into details of all that was said, for I can’t remember exactly. Of course, he explained some incidents of the business transactions heretofore, and their insurance business, and burn-outs, and. one thing and another. He said he had some insurance on the store when it burned out there, and he had got $500 of the insurance, and would have got all of it if Mr. Westbrooks hadn’t reported him. He said he didn’t treat him right, and reported him. It hadn’t been over a year, possibly two years, before that that the store had been burned. I don’t remember exactly. In fact, I don’t know anything about when the store burned. All I know is what I heard about the store burning.
“Another thing that Mr. Powell mentioned in that conversation was in regard to the land, some land that he said he and Mr. Erwin had had up as collateral for merchandise. He said he had the land back, or his son, Mr. Will Powell, had it back. He did not say that he had the land back for his son. My understanding of the conversation was that the land belonged to him and Mr. Will Powell. There was something said about the land having belonged to Mr. Erwin. He told me the land belonged to Mr. Erwin that they had had up as collateral for merchandise. There was nothing, said in the course of that conversation about this note that is being sued on here. He never intimated to me that he had the note or anything. Mr. Powell never said anything to me about having any note. He said that, if I didn’t assist him, that was the only shot that he had to get anything out of the Erwin estate. I did not assist him, and he didn’t assist me. I don’t remember just exactly what I did tell Mm, but I never did tell him that I would assist Mm in his proposition to clean up the Erwin estate. When he left me, he asked me if he had better come back the next day, and I told him I didn’t know that it was really necessary. Then he insisted on my going to see him; asked me if I was going to come out there. My recollection is that I told him I might come the next day. When I told him that I didn’t have any idea of going, and didn’t go. I never did go. Mr. Powell did not say anything to me on that occasion about J. W. Erwin being indebted to Mm. The nature of his conversation was that the indebtedness was considerably the other way. Well, he told me that Mr. Erwin had furnished Mm the land to put up for merchandise, and that he had lost Mr. Erwin’s land; that is, Erwin had lost it, but he hadn’t; that he and his son, Mr. Will Powell, had it. I couldn’t hardly tell you whether there was anything said about his owing Mr. Erwin anything outside of that or not, because I had been talked to by other parties, at least by Mr. Erwin, until X understood the situation thoroughly myself, and I don’t remember that he said how much he owed Mr. Erwin or anything to that effect. As to whether or not he said that he owed Mr. Erwin anything, will say he left the impression with me that he did. Well, that is my understanding. Well, he told me of the land, and mentioned other things that he got from Mr. Erwin that he never returned. Of course, he never said he directly owed it to Mr. Erwin. I would consider, if I had got this stuff and hadn’t returned it, that I owed it. He didn’t come right out and tell me that he owed Mr. Erwin. He said that Mr. Erwin did not owe him. He said Mr. Erwin never owed him anything, and the only shot he had to get anything more out of the Erwin estate was through me and through the cattle proposition. I said this conversation occurred shortly after Mr. Erwin’s death at the place there. That was when I went there to gather the cattle. I said a while ago that Mr. Powell suggested to me or tried to get me to co-operate with him in skinning the Erwin estate. He told me how he wanted to do that. Of course, I held a bill of sale to the cattle, and he said if I would divide up with him he would come in with me and we would get that much out of it; in other words, he was trying to get me to give him some of my cattle. As to whether or not that wouldn’t skin the Erwin estate very much, will say that is the way I figured it. He talked sorter like he had something else in sight besides the cattle. In a way he was trying to get me to divide up the cattle with him. I would consider that I would have been skinned to a certain extent. X cjon’t know what else he had in sight that belonged to the Erwins. If I had given up the cattle, that would have come from me, and not from. Erwin. There was so much said in regard to notes and transactions until it would be a hard matter for me to tell you exactly what he said about it. As to whether or not he had a mighty weak excuse for his claim against the Erwin estate from the conversation he had with me, will say that is the way it appeared to me. I couldn’t tell you whether the Erwin estate has got much assets on hand or not; I don’t know. I had bought these cattle from Erwin before he died, and I was up there to gather them. It is a fact that Mr. Powell afterwards sued me for these cattle, and I got judgment for them in the district court of Newton county. The suit is now on appeal. I had paid Mr. J. W. Erwin for those cattle at that time. I paid him all I owed him. I did not pay W. O. Erwin afterwards. I did not owe anything to Mr. Erwin or to the estate for these cattle. I paid J. W. Erwin for the cattle, I paid him all I owed him.”

Ad Wilson testified:

“I now reside four miles south of the town of Newton, in Newton county, Tex. I moved to this place about a year ago from the town of Newton. I moved from Farrsville to Newton about two years ago. I resided in Farrs-ville from some time in 1884 to 1913, when I moved to the town of Newton. Yes; I was acquainted with Julius W. Erwin. I have been acquainted with him about 34 years before his-death. He resided about seven miles west of Farrsville, on Mellins creek. Yes; I am acquainted with B. Z. Powell. I have been acquainted with him about 40 years, and he resided in Farrsville during this time. During this time, or during my acquaintance with B. Z. Powell, he has been engaged in the mercantile business and mill business at Farrsville, Tex. I cannot say whether B. Z. Powell is engaged in the mercantile business at the present or not. But he told me that he had discontinued the mercantile business because he got burnt, or got burnt out and went broke. As to whether or not the said B. Z. Powell and the said J. W. Erwin ever had any connections or relations with each other in a mercantile business at Farrsville, Tex., will say all I know about their business relations is what Mr. B. Z. Powell told me. He stated to me that he went broke and turned over his mercantile business to Mr. Julius Erwin, and Mr. Erwin hired him to clerk and run the business for him, and he continued to run the store on for about ■a year after that. Then is when the store was burned.”

J. T. Powell, being recalled, testified:

“I first began working in that store out there as salesman along about 1907 or 1908. It was 1907, I believe. I reckon I was acquainted with that business. I stayed there until the time that he sold out to Mr. Erwin in 1910. I was in there at least two or three years. That concern was not considerably in debt, that I know of. I stated a wMle ago that I was familiar with the business. I meant with the goods in there, what was in the store, but then the outside business there and at Galveston I wasn’t. I didn’t know what it owed, anything about it that way. I didn’t know anything about the indebtedness of the store. As to whether or not I knew that that business was heavily involved in debt, will say I know that any business is more or less in debt one way or the other, but I didn’t know how much. I did not know at the time that B. Z. Powell sold out to J. W. Erwin that that business was considerably in debt; that they owed considerable sums of money in Galveston and other places for goods. They might have owed some. As to whether or not I know that they owed the Galveston Dry Goods Company a large amount, will say I think they owed some. I don’t know how much they owed. I didn’t try to keep up with that part of the business at all. I don’t know how much it was claimed they owed the Galveston Dry Goods Company. I don’t know as I have ever heard how much they owed. If I have, I have forgotten it. I didn’t try to recollect it at all. I do not know that they owed something like $1,500. I do not know that the business owed the Galveston Shoe & Hat Company between $600 and $700. If I ever heard of it, I didn’t make any note of it. I might have known more about it at that time, but, not making any more of it, I don’t recollect it. I didn’t try to recollect anything like that. I didn’t try to keep up with the business at all. I might have heard something about it, but it wasn’t concerning my part of the business, and I didn’t pay any particular attention to it. I don’t say that that concern didn’t owe these debts, and I don’t say they did; I don’t know. I think I signed J. W. Erwin’s name to those notes of the Galveston Dry Goods Company. I know that I did. As to why I didn’t say that a while ago, will say you didn’t ask me if I signed them. I don’t recollect the amount of them notes. I do not remember that they amounted in the aggregate to something between $1,000 and $1,-500. As to whether or not I signed J. W. Erwin’s name to two notes to the Galveston Shoe & Hat Company in 1910, amounting in the aggregate to something over $600, will say I don’t recollect the amount. I think I signed his name to such notes. I did not know that it was for debts. I knew that the notes of the Galveston Dry Goods Company that I signed was for debts of that concern. I signed Mr. Erwin’s name to notes for Mr. Erwin’s debts. The notes that I signed was for goods that Mr. Erwin had bought and had in the store. It is a fact that some of those goods were goods in transit at the time Mr. Erwin bought the store from Mr. Powell. The way I understood it, those notes were for goods that Mr. Erwin received for Mr. Erwin’s own store. As to whether or not it is a fact that when Mr. Erwin bought that store there was about $700 or $800 worth of goods that was in transit that had never been open when Mr. Erwin took charge, will say there was two boxes, but I told you I don’t recollect the amount. There was goods in transit that Mr. Erwin took over and assumed the indebtedness. That is the way I understood it. Mr. Powell had been in business there prior to the time he sold to Mr. Erwin in 1910. He had been in business in his own name. Mr. Erwin did not have anything to do with that business prior to 1910; It was run in B. Z. Powell’s name. I had been clerking there for Mr. Powell two or three years, and the business had been running in the name of B. Z. Powell. All the goods were bought and sold in B. Z. Powell’s name up until about 1910. I signed those notes that Mr. Howell just asked me about to those Galveston people at J. W. Erwin’s request. He requested me himself to sign those notes. Mr. B. Z. Powell was not sued at that time that I know of. He was not being threatened with a suit or anything of the kind that I knew of. I was familiar with the business. I don’t remember whether Mr. Powell himself signed those notes as surety with Mr. Erwin or not. Anyhow, Mr. Erwin requested me to sign those notes. When Mr. Erwin bought that business, as I testified, from Mr. Powell in August, 1910, I witnessed that note at Mr. Erwin’s request.”

He further testified:

“At the time that Mr. Erwin bought this store from Mr. Powell in 1910, there was an inventory taken of the stock of goods. I helped take that inventory. Mr. Erwin helped take it, and B. Z. Powell helped take it. I stated awhile ago that I worked there for Mr. B. Z. Powell as clerk for two or three years before he sold out to Erwin. I went to work there in 1907 or 1908. Then I worked for Mr. Erwin.after that. As to whether or not I stated in answer to Mr. Hancock’s questions that that business there was never run in the name of J. W. Erwin before the year 1910, will say I said I worked for B. Z. Powell up until 1910. I went to work in the store for B. Z. Powell in 1907 or 1908, and I worked up until 1910 for B. Z. Then I worked for Mr. Erwin from August, as well as I recollect, 1910, up until February, 1911. If I stated a while ago that that business was never run in the name of J. W. Erwin, but was run in the name of B. Z. Powell all the time until 1910, I didn’t aim to. I don’t know whose name it was run in from 1900 to 1910. As to whether.or not I know that it was run in the name of J. W. Erwin, will say it was run a while back in J. W. Erwin’s name, but I wasn’t living up there then, and I don’t know anything about it. I moved to Oklahoma. Then I came from Oklahoma in 1907, and then I went to work for B. Z. Powell. I hired to B. Z., and I worked for B. Z. then until up until 1910. Then he sold out to Mr. J. W. Erwin and I hired to him, and I worked for him until February, 1911, as well as I recollect. I have got no memorandum of it, and it has been a long time, but that is the way it was. These notes of the Galveston Dry Goods Company and the Galveston Shoe & Hat Company were executed by me under a power of attorney from J. W. Erwin. I got that power of attorney because Mr. Erwin had asked me to sign his name. He said, ‘Jimmie, I am in. business now, and there is a whole lot of things coming up and my name has got to be signed to them, and I want you to sign my name to them.’ I says, ‘Julius, suppose you are not here, what about it?’ I says, ‘You must fix me up some way.’ I declare I don’t recollect who was present when he executed that power of attorney. As to whether or not it is a fact that H. Kempner sued B. Z. Powell and Erwin both about that time, will say I heard something of it, but I never charged my mind with it, and I don’t know anything at all about it. There was a suit brought, but I don’t know what it was for. I didn’t ask any questions. As to whether or not that happened about the time that B. Z. Powell sold out to J. W. Erwin, will say it has been a long time since then, and I . can’t hardly recollect without I had something to go by. I said I went to work for J. W. Erwin at $20 a month. As to whether or not that is a mighty little salary, will say that is about all I was worth. He did not pay me the money, but then I ate it; it was all the same. I just ate it out of the store. He let me have what things I used out of the store at cost. B. Z. Powell did the same thing when I was working for him; that is, I got my $20 a month. J. W. Erwin wouldn’t be there all the time when I was getting those things. If I wanted a sack of flour I would go and get it and set it down on the books, and if I wanted a piece of meat I would set it down on the books. I couldn’t tell you where those books are. I was there when that fire occurred. There was nothing saved out of the store. I couldn’t tell you who was there when the fire occurred.”

Quite a lot of testimony is in the record with reference to the fire insurance on the storehouse building and its contents and the efforts of the parties to collect the same. The statement of facts shows that the note sued on had been presented to W. 0. Erwin, the administrator, for payment, and rejected by him.

Appellant, B. Z. Powell, did not testify in the case. If the transaction was not bona fide,, if no title to the goods passed, and if it was not the intention that the note should be paid, in either event the defendant was entitled to a judgment, for the foundation of the defense was that the consideration for the note failed.

It was contended by the appellant with much force that, if there were no debts existing against the mercantile business, and Powell was transacting a flourishing business and receiving the profits thereof, there was no cause shown why he should sell the business to another, who would receive the profits, and he assume the. subordinate position of a mere salesman. However this may be, a jury has passed upon the facts of this case, and we have carefully considered all the assignments of error presented by appellant, and are of the opinion that there is evidence to support the verdict of the jury, and that no reversible error is pointed out, in any of the assignments.

We conclude that the judgment of the court should be affirmed; and it is so ordered.
      iteoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes