author: HAWKINS, J.

text:
    COULTRESS v. CITY OF SAN ANTONIO et al.
    (No. 2743.)
    (Supreme Court of Texas.
    Oct. 27, 1915.)
    1. Mandamus <&wkey;10 — When - Applicable — Plain Duty.
    Mandamus will not lie to compel action by the courts, unless the duty to act is plain.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 37; Dec. Dig. <§¿310.]
    2. Courts <&wkey;247 — Certification to Supreme Court — Conflict.
    Rev. St. 1911, art. 1623, providing that where a Court of Civil Appeals arrives at a decision in conflict with a prior decision of another Court of Civil Appeals, it shall certify the question of- law with the record to the Supreme Court for adjudication, requires the certificate to be made only when the decision is in direct conflict with a prior decision; the test being whether “one would operate to overrule the other if both were rendered by the same court,” and the cases must be the same as to facts, pleading, and evidence, to require the certificate.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749. 751-754, 757, 759, 760, 762-764; Dec. Dig. <&wkey;>247.]-
    3. Courts <&wkey;247 — Certification to Supreme Court — Previous Conflicting Decisions —Construction.
    A decision of a Court of Civil Appeals, holding that a policeman, wrongfully discharged, could not recover salary subsequently accruing, held, under the pleadings, issues, and evidence, and the peculiar provisions of the San Antonio city charter, not in conflict with the Cabiness and the Albers Cases, in which similar relief was granted, but under different charter provisions, so as to require certification to the the Supreme Court.”
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. &wkey;>247; Appeal and Error, Cent. Dig. § 1773.]
    Action by James Coultress against the City of San Antonio and others. Original application for mandamus.
    Writ denied.
    D. A. McAskill, Joseph Ryan, and Theo. E. Simmang, all of San Antonio, for relator. George R. Gillette and Robt. G. Harris, both of San Antonio, for respondents.
   HAWKINS, J.

This action grows out of City of San Antonio v. Coultress (Civ. App.) 169 S. W. 917. Therein the county court for civil cases rendered judgment in favor of Coultress, but the Court of Civil Appeals for the Fourth Supreme Judicial District reversed that judgment and rendered judgment in favor of the city. Thereupon Coultress filed therein an application for a writ of error, which application we dismissed for want of jurisdiction, pursuant to the views of a majority of this court as enunciatel in Cole v. State ex rel. Cobolini, 170 S. W. 1036, the case having originated in a county court. Subsequently, by motion in said Court ’of Civil Appeals, Coultress sought to have that court certify to. this court certain questions of law which, said motion urged, had been decided differently by other Courts of Civil Appeals of this state; but said motion was overruled, and those questions have not been certified. Following said refusal to certify relator instituted here this original proceeding, under article 1623, R. S. 1911, praying for a writ of mandamus directed to said Court of Civil Appeals, and the Justices tnereof, requiring them to certify, for our determination, those questions, which, for convenience, may be divided, as follows:

(1) “Whether the petition in this case is good on general demurrer.”
(2) “And, if appellee, under the allegations of said petition, was an officer under the state law, charter and ordinances of the city of San Antonio, regularly appointed and qualified.”
(3) “And the further question- whether, under the allegations of said petition, the removal of appellee (Coultress) by the city marshal is'in compliance with section 17 of the city’s charter, providing that only the mayor can legally so remove, and therefore if it is material whether appellee was an officer or only an employé or servant of the city, in a suit for'recovery of salary, so long as he was not removed by the may- or in accordance with said section 17.”

' As grounds for mandamus relator alleges that said .decision of said Court of Civil Appeals in the Coultress Case is in conflict with the decision of the Court of Civil Appeals for the Fifth District in City of Paris v. Cabiness, 44 Tex. Civ. App. 587, 98 S. W. 925, and with the decision of the Court of. Civil Appeals for the First District in City of Houston v. Albers; 32 Tex. Civ. App. 70, 73 S. W. 1085. The city of San Antonio has not answered, but the Chief Justice and the Associate Justices, respondents, answered, jointly! by general demurrer and special exceptions, and by general and special denial of the existence of such conflict upon any question of law.

It is well settled, under our decisions, and generally, that unless the duty is plain, mandamus will not lie. Glasscock v. Commissioner, 3 Tex. 51, and cases cited; Arberry v. Beavers, 6 Tex. 457, 55 Am. Dec. 791; Durrett v. Crosby, 28 Tex. 688; Tabor v. Commissioner, 29 Tex. 508; Railway v. Jarvis, 80 Tex. 456, 15 S. W. 1089; Teat v. McGaughey, 85 Tex. 478, 22 S. W. 302; De Poyster v. Baker, 89 Tex. 155, 34 S. W. 106; Erp v. Robison, 155 S. W. 180, decided April 2, 1913, not yet officially reported.

Assuming, in favor of relator, the sufficiency of his petition for mandamus, we come directly to the vital issue as to whether, within the meaning of article 1623, R. S., any such “conflict” really exists. If such conflict does exist, mandamus should be awarded; otherwise the writ should be denied. Article 1623 is as follows:

“Wherever, in any cause at any time pending in any of the Courts -of Civil Appeals of the several supreme judicial districts of the state of Texas, any one of said courts may arrive at an opinion in the decision of any such cause that may be -in conflict with the opinion heretofore rendered, or hereafter rendered, by some other Court of Civil Appeals in this state on any question of law, and such Court of Civil Appeals refuses to concur with the opinion so rendered by such other Court of Civil Appeals, it shall be the duty of such court failing to concur with the opinion in conflict with the opinion so arrived at by such court through its clerk, to transmit the question of law, duly certified to, involved in the cause wherein said conflict of opinion has arisen, together with the record or transcript in such cause, to the Supreme Court of the state of Texas for adjudication by the Supreme Court.”

Whatever difficulties may arise, in a particular instance, in applying this article of the statute, we regard its meaning and legal effect as plain and well settled. The sole duty which it imposes upon a Court of Civil Appeals arises only when a decision of that court upon a question of law, actually involved in a cause before it, is in direct conflict with the decision of another Court of Civil Appeals upon that very question of law, arising upon an issue actually involved in a cause before.it; the test being whether “one would operate to overrule the other in case they were both rendered by the same court.”

As long ago as 1896, upon an application for a writ of error, in construing article 941, R. S. 1895, afterward article 1522, R. S. 1911, which was amended by Acts 1913, p. 107 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1522), this court said:

“In this case the judgment of the district court was reversed and the cause remanded. Although the cause is sent back with instructions, the decision of the Court of Civil Appeals does not settle the case; nor is it so averred in the petition for the writ of error. But in order to show jurisdiction in this court it is alleged that the decision of the Court of Civil Appeals is in conflict with certain decisions of this court on two propositions announced in the opinion. We have examined the cases cited in support of the averment; and, while we find that there may be some apparent inconsistency between the propositions stated in the opinion in the present case and those announced in the cases referred to in the petition, we think that the present case is distinguishable from either of those cited, and that there is not that well-defined conflict between them which is necessary to give this court jurisdiction of a remanded cause. Therefore the application is dismissed for want of jurisdiction.” Bassett v. Sherrod, 90 Tex. 32, 36 S. W. 400.

A few months afterward, in passing upon an application for writ of error, this court said:

“It is sought to give this court jurisdiction of the application under article 941, Revised Statutes, which reads as follows:
“ ‘All causes shall be carried up to the Supreme Court by writs of error upon final judgment, not on judgments reversing and remanding causes, except in the following cases, to wit:
“ ‘5. Cases in which a Court of Civil Appeals' overrules its own decisions or the decision of another Court of Civil Appeals or of the Supreme Court.’
“Under this statute the conflict between the decision of the court in question and that with which it is claimed to be in conflict must be of such a nature that one would operate to overrule the other in case they were both rendered by the same court. In other words, the decisions must be based practically upon the same state of facts and announce antagonistic conclusions. It is not sufficient to give jurisdiction that a Court of Civil Appeals may have misapplied a principle of law announced by a decision of another Court of Civil Appeals or of this court. In the two cases cited as being in conflict with the decision in the present case, the question of waiver arose upon exceptions to pleading, and in the course of the opinion a general proposition was laid down upon that question which might be considered as in conflict with the decision of the court in the case presented by this application, but the facts of the cases are so different that we do not consider the conflict to be such as under the statute gives us jurisdiction to grant a writ of error.” Sun Mutual Insurance Co. v. Roberts, 90 Tex. 78, 37 S. W. 311.

We think that the same rule of construction should be applied to said article 1023. And in 1902, some five years after the two decisions last cited, this court did apply to that statute the same rule of construction which, previously, had been applied in the two cases mentioned, saying:

“We have held that in order to give this court jurisdiction of a reversed and remanded case on the ground of a conflict of decisions, there must be a well-defined conflict (Bassett v. Sherrod, 90 Tex. 32 136 S. W. 400]); and we think the same rule should apply to the construction of the statute which requires a Court of Civil Appeals to certify a question upon which its opinion conflicts with that of another Court of Civil Appeals.’ McCurdy v. Conner, 95 Tex. 246, 66 S. W. 664.

And during the same term this court denied a petition for mandamus upon the ground that the decision of the Court of Civil Appeals for the Fifth District, in Kidd v. Truett, County Attorney, 28 Tex. Civ. App. 618, 68 S. W. 310, to the effect that an election on prohibition of the sale of intoxicating liquors could not be held in a school district lying partly in a justice precinct in which prohibition had already been adopted did not present such “conflict” with certain previous decisions of another Court of Civil Appeals as to require such certification, saying:

“The cases relied upon by the relator are State v. Harvey [11 Tex. Civ. App. 691] 33 S. W. 885, and Adams v. Kelley [17 Tex. Civ. App. 479] 44 S. W. 530. Both decisions were by the Court of Civil Appeals for the Second Supreme Judicial District. In the former it was held that where an election had been held in the entire county, and as a result thereof prohibition had been adopted, another election in a precinct of the county, while prohibition was still in force in the entire county, was invalid. In the latter the ruling was in principle the same. There it was held that after an election under the local option law held for a county had resulted in favor of prohibition, the commissioners’ court could not be compelled to order an election for a city in the county, although the result of the county election had not been declared. Clearly the decisions in these two cases, and the decision of the Court of Civil Appeals for the Fifth District, were upon very different questions. Because a local option election cannot be held in a subdivision of a large territory in which prohibition already exists is no conclusive argument against the validity of such an election in a certain district in a part of which only the sale of intoxicating liquors is already prohibited. AYhere the decision in a case is not necessarily conclusive of the decision in another, there can be no conflict.” Kidd v. Rainey, 95 Tex. 556, 68 S. W. 507.

Again, in 1908, this court said:

“AVhen one court decides a question one way, and another court makes a contrary ruling upon the same question, there is a conflict. Hence unless the question be the same, there can be no conflict. But counsel have labored in argument strenuously to show that the principles announced in the cases cited necessarily lead to a conclusion adverse to that arrived at by the Court of Civil Appeals in the present case. But we do not think that such is the fact. Besides, we are of opinion that the conflict must be upon the very question decided, and not in the reasoning by which the conclusion is reached.” McKay v. Conner, 101 Tex. 313, 107 S. W. 45.

See, also, Railway v. Willson, 101 Tex. 269, 106 S. W. 325; Railway v. Conner,. 100 Tex. 407, 100 S. W. 367; Welch v. Weiss, 99 Tex. 356, 90 S. W. 160; Elder Dempster & Co. v. Railway, 105 Tex. 628, 154 S. W. 977; Booker-Jones Oil Co. v. Refining Co. (Civ. App.) 132 S. W. 815.

Applying the foregoing established principles, which so long and so often have been laid down by this court, what, if any, precise question of law which was decided in the Coultress Case was decided differently in the Cabiness Case or in the Albers Case, supra?

Said original suit of Coultress was for salary and allowance for a period of time subsequent to his attempted discharge, to which amounts he claimed to be entitled as a de jure officer. - His contention throughout that such was his status appears to be based upon what may he treated as two counts: (1) That the police force, embracing the office of patrolman, or policeman, was duly established by the city council, by ordinance, in compliance with the requirements of the special city charter, and that he was duly appointed to that office, took the oath, gave bond, and entered upon the discharge of the duties thereof. (2) That after his discharge, and after his name was dropped from the pay roll, the city council continued to make, for the support of the police force generally, although not for any particular office or person, monthly appropriations, in lump sums, of various amounts, which appropriations were based upon the pay rolls, and that about one month after he was discharged and his name dropped from the pay roll, the city council made an appropriation, in a lump sum, to pay for a new uniform for each member of the police .department, said appropriation being on the basis of $22.50 each for patrolmen or policemen therein. His petition alleged tender of his services from and after his discharge, although he did not thereafter actually serve upon the force.

The following extracts give the gist of the opinion of the Court of Civil Appeals in that case:

“Before the emoluments of an office may be recovered, it is necessary that the claimant therefor should show: First, that the office has been created and is in existence; and, second, his legal right thereto. He must show that he is an officer de jure. * * *
“Article 2 of the charter deals with the powers and duties of the' city, council, and the first section thereunder says, in part:
“ ‘Sec. 51. The city council * * * shall have power, by ordinance: * * *
“ ‘Sec. 65. To establish a police force and regulate the same. * * *
“ ‘Sec. 56. To create any office or agent deemed necessary for the good government and interest of the city. * * * ’
“Turn then back to section 20, and it reads:
“ ‘The city council, or a majority thereof, may act by resolution in all cases except where an ordinance is by this act required. * * * ’
“It is clearly stated that the council shall have power by ordinance to establish its police force. That means, and can only mean, that the council has that power when exercised in the manner prescribed, which is by ordinance. Section 20, giving the council power to act by resolution in all cases not otherwise required to be done by ordinance, must mean that where an. ordinance is required, a resolution would be insufficient. The ordinance of the council of date March 2, 1903, wherein it was ordained that ‘the police force of the city of San Antonio shall consist of one chief marshal and two assistant marshals, one police matron, and such detectives and mounted and unmounted patrolmen as the mayor and city council may deem necessary,’ did not create the office of patrolman or policeman. * * * The only limitation is such number as the mayor and city council ‘may deem proper.’ The only logical result or inference from this is that the mayor may appoint, and the council, by a simple resolution ratifying the same, may confirm, as many patrolmen as may be desired; and this in the face of the charter provision that it shall be done by ordinance.”

In the opinion overruling Coultress’ motion for a rehearing that court considered the contention that the above-mentioned ordinance of March 2, 1903, and an earlier ordinance which provided that “the police force of the city of San Antonio will consist of the following grades: City marshal (ex officio chief of police), assistant marshal or marshals and patrolmen,” both of which ordinances were continued in force by the special charter of 1903, were not founded upon it, but upon the city’s charter of 1870, and upon that point said: “But these ordinances would be in conflict with the charter of 1870 almost, if not entirely, as much as with the present charter or the charter of 1903,” because it found that the charter of 1870 likewise required that the power of the city council “to establish, regulate and support night watch and police, and define the duties thereof,” should be exercised “by ordinance” only. And the court added:

“So, whether we look at the proposition from the standpoint of the 1870 charter or the present one, there is practically no difference. The whole matter summed up is that the department must be established by an ordinance, and the office of policeman cannot be created by resolution.”

In passing upon what we treat as the second count in plaintiff’s petition, relating to appropriations, the court, in its original opinion, said:

“But the charter of the city was granted for the public good, and the powers of the council are defined in and circumscribed by that document. The city can only act as it is permitted to act in that legislative grant. That instrument says that the council shall act by ordinance in matters of this kind, and this it has not done. The doctrine of estoppel and ratification cannot aid that which never had a legal existence.”

Briefly stated, the material holdings of of that court were:

(1) That neither the police force nor the office of patrolman, or policeman, had been created by the city council, “by ordinance,” in compliance with the mandatory requirements of the city’s special charter, and, consequently, Coultress’ appointment as patrolman, or policeman, made by the mayor, even when confirmed, according to custom in that city, as it was, by the city council, in the absence of a valid ordinance defining and limiting the number of patrolmen or policemen, was invalid; wherefore Coultress was never, de jure, a patrolman or policeman of said city, and therefore was not entitled to recover compensation covering salary and allowance for a period of time during which he was not actually engaged in the performance of the duties of such patrolman or policeman.

(2) The fact that, after Coultress was discharged and his name dropped from the pay roll, the city council continued to make monthly, in lump sums, in varying amounts, the usual appropriations for the support of the police department, but without making any specific appropriation for him, or for any particular office or person, would not control Coultress’ status or establish his claim for compensation.

Really, the principal question of law there decided was this: Was that portion of the ordinance which relates to patrolmen, or policemen, in compliance with the requirements of the city charter, and therefore valid and effectual to create that office, although it failed to fix the number of patrolmen or policemen, but left the number to be determined otherwise than “by ordinance”? And that part of the decision goes no further than the determination of the legal effect or sufficiency of the ordinance for that purpose, holding, as a consequence of the decision that it was not legally sufficient therefor, that Coultress was not a de jure officer, and therefore could not recover.

It is true that, incidentally, and as indicated by the last foregoing excerpt from its original opinion, the Court of Civil Appeals seems to have considered and treated as insufficient to support Coultress’ cause of action, under what we treat as his second count, his allegations relative to appropriations; but upon that phase of the case it should be noted and remembered: (a) That his petition in the trial court, as appears from the record before us, did not even allege that his name appeared upon any of the pay rolls upon which such appropriations were made, but, on the contrary, as pointed out in the opinion on rehearing, did allege that his name was dropped from the pay rolls at date of his discharge; and (b) that said holding upon said second count was evidently based upon the finding of fact set out in the original opinion that Coultress’ name was upon the pay rolls when said appropriations were made, and that, after said finding of fact was corrected on rehearing, that court seems not to have considered that phase of plaintiff’s case as of any further consequence, making no reference to it in the opinion on motion for rehearing. Under these circumstances, it seems that there is little, if any, necessity for further considering the holding on said second count as a possible basis of conflict, even if it be treated as fairly embraced by said question 2.

An essential difference between the decision in the Coultress Case and each of the other two decisions mentioned by relator as a' basis of “conflict” lies in the "fact that neither of the above-mentioned issues or holdings in the Coultress Case — one relating to the validity, or at least the sufficiency, of a portion of a particular ordinance affecting the creation of the office when tested by the peculiar provisions of a particular special city charter, and the other relating to the effect of appropriations made by the city council under certain peculiar circumstances —was involved in either of said other decisions. It seems clear, therefore, that there was no statutory conflict between the Coul-tress decision and either of the other decisions.

And here it seems we might properly suspend consideration of the three decisions and deny the writ sought. However, we consider it advisable tx> consider and treat further, and somewhat in detail, the contentions of relator, and certain phases of each of said other decisions.

From the report of the Cabiness Case, it appears that the general demurrer was overruled by the trial court, but the report of the Albers Case does not state what, if any, action was taken by the trial court on the general demurrer. However, we will assume herein that in each instance, as claimed by relator, it was overruled. On appeal of the Cabiness Case it was distinctly held that the trial court did not err in overruling it, but if that point was decided on appeal in the Albers Case, that fact is not disclosed by the report. It is plain that, if it was not, on that point at least there was no conflict between the decision in the Coultress Case and that in the Albers Case; but again will we assume that the claim of relator is correct, and that in the Albers Case, also, it was held, on appeal, that the trial court did not err in overruling the general demurrer.

The three questions will be considered seri-atim:

First. The alleged conflict involved in question (1), above, relates solely to the sufficient cy of the petitions when tested by general demurrer. Applied in comparing the Coul-tress decision with the Cabiness decision, that question relates to petitions under widely variant charter provisions which, in each case, controlled the decision; wherefore, the cases presented by the petitions being essentially different, the opposite holdings as to the sufficiency of the respective petitions on the issue whether, as a consequence, plaintiff was or was not a de jure officer cannot fairly be considered a statutory “conflict.”

The charter in the Coultress Case was one of which by its terms the courts are required to take judicial notice, and was pleaded in plaintiff’s petition. The charter in the Cabiness Case, it seems, was one of which the courts are not required to take judicial notice, but the report does not state that it was not specially pleaded in plaintiff’s petition, and does show that the defendant pleaded certain sections of that charter, and that both the trial and the appellate court held said petition good against a general demurrer. Under these circumstances, we feel justified in assuming herein, as we do, that, along with the plaintiff’s petition, the Paris charter was properly considered by both courts in the Cabiness Case, as the San Antonio charter undoubtedly was in the Coul-tress Case.

The nature of the petition in the Coultress Case we have sufficiently indicated. In the Cabiness Case, as in the Coultress Case, the suit was, indeed, by one claiming to be a policeman de jure, for compensation for a period of time subsequent to his attempted discharge, and there as in the Coultress Case, the principal question of law involved was as to whether plaintiff had ever become a policeman de jure; but there that issue hung, not, as in the Coultress Case, upon the sufficiency or insufficiency of an ordinance under the terms of a special charter requiring that the establishment of the police force by the city should be “by ordinance,” but upon the construction to be given to a provision of a different charter, which might justly be construed and treated as creating the office of policeman, and which expressly conferred upon the city council power and authority “to appoint watchmen and policemen, and prescribe their duties and powers and compensation,” without expressly providing that such powers should be exercised by ordinance, which quoted provision was held to be self-executing, requiring no resolution or ordinance of the city council to make it effective, from which analysis it clearly appears that the common question as to whether plaintiff ever became an officer de jure depended, in the respective eases, upon essentially different facts; in consequence of which difference the decisions in those cases upon that point, although announcing diametrically opposite conclusions as to the sufficiency of otherwise substantially similar petitions, do not present a “conflict” within contemplation of said article 1623.

Turning, under question 1, to the Albers Case, we find: The opinion in that case embodies no specific holding as to the sufficiency or effectiveness of any ordinance creating, at attempting to create, the office of policeman of the city of Houston. Nothing in the report of the case indicates that it was therein contended that any ordinance failed to comply with charter requirements. The decision therein justly may be said to have assumed the legal existence of that office, and, evidently, it was merely as a logical consequence of that assumption that it was held that, under the plaintiff’s allegations, his tenure of office was valid, entitling him, as a de jure officer, to his full term, which, upon a construction of the charter and the applicable provisions of .our state Constitution, was held to be “during efficient service and good behavior, for two years,” and no longer; and it seems to have been in consequence of that latter holding, coupled with the fact that “there was neither allegation nor proof that he was ever reappointed to such office,” that it was held that with the expiration of that original term Albers ceased to be a policeman de jure, and that thereupon the liability of the city for his salary as such de jure officer terminated. And, under the facts of that case, as disclosed by said opinion, Albers having been paid in full for all services rendered during said two years and afterwards down to date of his discharge, it was really immaterial, on appeal, whether Albers, during that period, had been an officer de jure or an officer de facto; and, inasmuch as he had not been reappointed after the expiration of his original term, it was likewise immaterial whether that office had any legal existence since, in any event, after the expiration of that term, he was therefore not an officer de jure, and consequently was not entitled to recover for services not actually rendered.

Prom a comparison of the opinion in the Albers Case with that in the Coultress Case, and although in each instance the number of policemen had not been fixed by charter or ordinance, and in each instance the suit was by one claiming to be a policeman de jure for salary for a period of time subsequent to his discharge (the Albers suit being also for salary covering a period of suspension embracing 15 days prior to such discharge, but subsequent to expiration of his original two years’ term of office), it seems too clear for argument that between them there is no statutory conflict upon any holding by the Court of Civil Appeals upon the general demurrer.

Second. Question 2 may be treated as including both counts of plaintiff’s petition in the Coultress Case, the first as presenting the theory of a de jure status resting upon allegations of compliance with all requirements of law, including charter and ordinances, coupled with regular appointment and qualification and with service in office, and the second as presenting the theory of a de jure status resting upon allegations of appointment and qualification and service as policeman down to date of discharge, coupled with subsequent recognition by the city, through its city council, of his status as a policeman, even though it be held that a strict compliance with law and charter provisions, including the establishment of the police force by the city council by an ordinance fixing its number, was lacking.

Upon the first branch of question 2 our views have been sufficiently expressed above in treating question No. 1, and a portion of what we said there applies to the second branch thereof. The second branch of that question rests, apparently, upon the idea that plaintiff’s status was affected by action of the city authorities recognizing and treating him as a de jure officer. Applying it to the Oabiness Case, we are unable to find that plaintiff there contended, or that it was held, that, even , though it should be decided that the office of policeman had not been properly created, of that his appointment was invalid, the other facts of the case were such as to constitute him a policeman de jure, or entitle him to recover for services which he never rendered. In that opinion, referring to Oabiness, the court did, indeed say:

“He was recognized under the appointment made, and his salary paid by appellant for three months without objection, and without any question being raised concerning the legality of ■his appointment so far as disclosed by the record. Under these facts it seems clear that he became an officer de jure, and entitled to hold the office to which he had been appointed for two years, unless lawfully ousted.”

But that portion cannot fairly be wrenched from its place in the context and considered separately as a basis of conflict in decisions. In considering the meaning and force of said excerpt, it must be remembered that the court was then dealing with the third assignment of error, which complained of the action of the trial court in sustaining special exceptions to and striking out portions of defendant’s original answer, which set up the following defenses: (a) That the city council had never passed any ordinance or resolution making effective the charter powers relating to the creation of a police department or the appointment of policemen, and that neither the term of office nor the duties of policemen had been prescribed, and that policemen were subject to removal at will and without notice; (b) that, pursuant to said charter, the city council had adopted for its government rules which had been disregarded in the appointment of plaintiff to said office; (c) that, in consideration of his appointment as policeman, plaintiff contracted with defendant that either the city marshal or the city council might discharge plaintiff, at any time, with or without notice or cause. The actual viewpoint and conclusions of that court as to the merits of said pleas are more clearly shown as follows:

“We are of the opinion, however, that neither of the alleged grounds of defense mentioned constituted any sufficient reason for denying to appellee a recovery. Section 27 of appellant’s charter conferred upon its city council the power and authority ‘to appoint watchmen and policemen, and prescribe their duties and powers and compensation.’ This provision of the charter was self-executing and required no resolution or ordinance of the city council to make it effective. Nor do we think mere irregularities in the proceedings by which appellee was appointed, if any, can be taken advantage of by the city and urged as distinct grounds upon which to defeat his otherwise right to recover the salary incident to said office. Besides, it does not appear that his discharge was based upon any such ground. He qualified and entered upon the discharge of his duties. ITe was recognized under the appointment made, and his salary paid by appellant for three months without objection, and without any question being raised concerning the legality of his appointment, so far as disclosed by the record. Under these facts it seems clear that he became an officer de jure, and entitled to hold the office to which he had been appointed for two years, unless lawfully ousted”; citing cases.

Undue stress should not be laid upon the statement that Oabiness was recognized under his appointment as a policeman, and received his salary for three months without objection or question concerning the legality of his appointment. Evidently it was made in disposing of the city’s contention (b) above, under the third assignment, which contention, in effect, assailed Cabiness’ status as a de jure officer upon the ground that the irregularities there urged rendered his election to the office of policeman invalid, even though it should be held that the office had been duly created or recognized by the charter, that instrument being self-executing, and no ordinance being necessary to the existence of that office. And it was probably with that thought in mind, as well as with reference to the duration of Cabiness’ term as a de jure officer, that the court cited City of Houston v. Estes, 35 Tex. Civ. App. 99, 79 S. W. 848, wherein Estes was held to have been an officer de jure despite certain irregularities in the giving of a bond, concerning which complaint was not seasonably made. In other words, it seems to us that the immediate purpose of the court there was merely to apply to said plea (b), concerning irregularities in the election or appointment of Cabiness, the principle which, in that cited case, bad, been applied to the qualification of Estes, that principle being that where the office exists legally, such mere irregularities, when acquiesced in, will not reduce to the status of a merely de facto officer the incumbent who, but for such irregularities, would be a de jure officer.

furthermore, in considering the effect of the language found in said first excerpt, it should be constantly borne in mind that it followed the holding upon the city’s contention (a), above, to the effect that the charter provision relating to the appointment of policemen was seif-executing, requiring no resolution or ordinance by the city council to make it effective — a holding which, under the uncontradicted evidence, resulted in the further conclusions and holdings that “appel-lee was duly appointed or elected policeman * * * on the 27th day of April, 1903,'by its city council and * * * qualified,” which holdings together, and without regard to whether the city did or did not pay his salary for three months, constituted a reasonable and adequate predicate for the ultimate conclusion there announced by the court that, under the facts of the case, Cabiness clearly—

“became an officer de jure, and.entitled to hold the office to which he had been appointed for two years, unless lawfully ousted.”

Certainly the words, “became an officer de jure,” would seem strangely inappropriate in defining the status of the incumbent of an alleged office which had no legal existence, and the words, “the office to which he had been appointed,” would have been palpably inappropriate in that connection, and those expressions would hardly have been used by that learned court had its purpose been to there declare and hold that, in the absence of the legal existence of the office and an appointment thereto, .which was at least substantially effectual although somewhat irregular, the recited facts that he was recognized and paid by the city as a policeman would constitute him an officer de jure, and entitle him to the emoluments of that office during its term.

Plainly, we conclude, the legal effect of the above quoted portion of said opinion, treating said third assignment and embracing said first excerpt, is to hold, merely: (a) That the three defenses therein mentioned had not been abandoned by failure to replead them, and were properly up for review, the city having seasonably made and duly brought up its exceptions to the action of the trial court in sustaining special exceptions to said defenses; but (b) that none of the three pleas was meritorious. The citation of cases was such, we think, as to support our conclusion. Consequently, so far as we have discovered, the decision in the Cabiness Case involves no holding whatever upon the point embraced by the second branch of question 2; wherefore it seems impossible for “conflict” to exist between that decision and that portion of the opinion in the Coultress Case which'we have treated as involving that point.

Nor does this second branch of question 2 seem to have been involved in the Albers Case, except in connection with the action of the city council upon Albers’ appeal from the order discharging him, whereby that body—

“determined, by a vote of 10 to 2, that plaintiff had been wrongfully discharged from the service of the city, and it was recommended that he be. reinstated in his former position and be paid in full for the time lost by him.”

In that connection it must be remembered that Albers’ allegations, relating to his appointment and confirmation, taking the oath of office, giving bond and approval thereof, referred, primarily, to his original term of office, which was held to be two years, and that upon the view that, under the charter and ordinances, there was no succession in the office of policeman pursuant to which he might continue in office until his successor qualified, coupled with the finding of fact that he was never reappointed, it was held that after the expiration of his term of office he was no longer an officer de jure.

Upon the effect, if any, of the above-mentioned action of the city council concerning Albers’ discharge, no specific holding seems to have been made; but the plain purport of the decision seems to be that such action by the council, whether considered separately or in conjunction with the antecedent facts and circumstances of. the case, including his. declaredly valid appointment, qualification, and service for two years, was insufficient to make his status, after the expiration of that term, that of a de jure officer. Under the opinion in the Albers . Case there is certainly no room to contend that therein it was held, that action by the city authorities, even when considered in connection with the other facts of this case, constituted him an officer de jure, after expiration of the two years; hence, upon that feature, there is no conflict between that decision and the decision in the Coultress Case. On the contrary, and even upon relator’s assumption that Coultress’ petition alleged, and that the facts showed, the making by the city council, after date of his discharge, of specific appropriations for his salary, an assumption directly in the face of the final findings of fact, the effect of the decision in the Coultress Case was that, nevertheless, he was not thereby, nor in connection with the other facts of that case, including his attempted appointment and qualification and service, constituted an officer de jure; and that holding as to the legal effect of the facts and circumstances upon Coultress, status during the period of time covered by his claim for compensation was not' in conflict, but was in strict harmony, with the decision upon the corresponding feature of the Albers Case.

Third. Coming, finally, to question 3, we find in the Coultress appeal no holding on any question involving the legality of plaintiff’s discharge common to that in either of the other two cases mentioned by relator; consequently there can be no conflict thereon. Question 3, as framed, involves, or assumes, a construction in the Coultress Case of the legal effect of section 17 of the San Antonio special city charter. Manifestly that question of construction was not involved in the Cabiness Case, which arose under the Paris charter, nor in the Albers Case, which arose under the Houston charter, neither of which is shown to have contained an identical or even a similar provision. And it seems that the opinion in the Coul-tress Case does not even attempt to construe said section 17; and, indeed, under the view which prevailed in that decision, and under the holding there made, which, as we have seen, was to the effect that Coultress never became an officer de jure, the question of whether his attempted discharge was legal or not became and was wholly immaterial in that cause, just as the corresponding question was held to be immaterial in the Albers Case, the court having there held, as was held in the Coultress Case, that plaintiff was not an officer de jure during the period of time covered by his claim for compensation, the plaintiff in each instance having received full pay for all services actually rendered. Indeed, in each of those cases, under the holdings made therein, respectively, any decision or holding therein as to the legality or illegality of plaintiff’s discharge would have been dictum, upon which conflict under said article 1623 could not be predicated. In the Albers Case, said holding of immateriality was the only one relating to discharge.

The appeal in the Cabiness Case involved three, and only three, issues relating to plaintiff’s discharge: (a) Discharge pursuant to his said contract with the city therefor, which was held void as against public policy; (b) discharge by the city marshal, which the court found to have been without a hearing or trial, and held to have been without authority of law; (c) an incidental question as to whether the city had notice that plaintiff had been discharged by its city marshal, upon which it was held that the city had sufficient notice and adopted and ratified said act of discharge. Evidently none of those three questions, relating to discharge, was involved in the Coultress Case; consequently there was no conflict thereon.

We deem it proper to suggest that, in the event of the filing of such actions in the future, the time of this court may be conserved by more definite and specific statements by relators, alleging conflict.

Because, in our opinion, relator’s claim of conflict is without merit, the writ of mandamus is denied.
      &wkey;jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    A. A. FIELDER LUMBER CO. v. GAMBLE.
    (No. 7403.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 16, 1915.)
    Appeal and Error <&wkey;781 — Determination of Moot Case.
    Where the controversy between the parties has been settled pending appeal, the appeal will be dismissed, the question being moot.
    ■[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 63-4S0, 3122; Dec. Dig. <&wkey;781J
    Appeal from District Court, Grayson County; James P. Haven, Judge.
    Action between the A A. Fielder Lumber Company and J. R. Gamble. From a judgment for the latter, the former appeals.
    Appeal dismissed.
    Webb & Webb, of Sherman, for appellant.
   RAINEY, C. J.

The subject-matter in controversy having been settled and determined by the parties since this appeal was perfected, there remains nothing but a moot question for this court to decide; such being the situation the court will not occupy its time by investigating the question raised for the mere purpose of determining who was right in the litigation.

Where parties have settled their controversies this court will not pass upon matters which have been settled by agreement. The subject-matter having ceased to exist, the case will be dismissed, and it is so ordered. Ansley v. State, 175 S. W. 470, decided by this court April 3, 1915.
      <j&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    SAN ANTONIO, U. & G. RY. CO. et al. v. YARBROUGH.
    (No. 5503.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 13, 1915.)
    1. Appeal and Error <&wkey;569 — Assignments of Error — Statement of Fact — Approval.
    Without a statement of facts approved by the trial judge, assignments of error cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2530-2545; Dec. Dig. &wkey; 569.]
    2. Trial &wkey;>331 — Verdict—Disposition of Cross-Action.
    In an action Cor conversion against a railroad and another to recover the value of property, with a cross-action setting up plaintiff's indebtedness to defendants, a verdict for plaintiff for $600, construed in the light of a charge that the jury should find for plaintiff if he was not indebted to defendants or if his indebtedness was less than the amount of their indebtedness to him, removed all objections to the verdict on the ground of uncertainty and that it did not dispose of the cross-action.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. § 783; Dec. Dig. &wkey;331.]
    3. Judgment <@=240 — Verdict — Joint and Several Liability.
    _ Where the verdict found a joint liability against defendants, there was no error in a judgment decreeing a joint and several liability.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 423-425; Dec. Dig. <@=240J
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Action by J. W. Yarbrough against the San Antonio, Uvalde & Gulf Railway Company and another, with cross-action by defendants. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Williams & Hartman, of San Antonio, for appellanís. Don A. Bliss, of San Antonio, for appellee.
   FLY, C. J.

Appellee instituted this suit to recover of the railway company and J. E. Franklin the value of certain tools and implements, which constituted a railroad contractor’s outfit, which, it was alleged, had been converted to their use by appellants. The property was alleged to be worth the sum of $2,700 and appellee also sought the recovery of $1,000 as exemplary damages. The jury returned a verdict for $600, and judgment was accordingly so rendered.

The first assignment of error assails the verdict on the ground that the value of the property was not shown to be more than $600, and that appellee was indebted to Franklin in a sum equal to that amount. The statement of facts filed in this case is not approved by the trial judge, and consequently cannot be considered by this court. In every instance the statement of facts must be approved by the trial judge. Rivers v. Campbell, 51 Tex. Civ. App. 103, 111 S. W. 190. Without a statement of facts, the assignment of error cannot be considered. The second, fourth, fifth, and eighth assignments are also based on the evidence and must be overruled.

The seventh assignment of error assails the verdict because it did. not dispose of the cross-action of appellants. The verdict must be construed in the light of the charge which instructed the jury that they should find for appellee, if they found he was not indebted to appellants, or if the amount in which he was indebted was less than the amount in which appellants were indebted to him. That charge removes all objections to the verdict and makes it certain. The jury must necessarily have found that appellee was not indebted to appellants, or that, if he was, they owed him $600 more than he owed them. Garrett v. Robinson, 93 Tex. 406, 55 S. W. 564; Bemus v. Donigan, 18 Tex. Civ. App. 125, 43 S. W. 1052; Cameron v. Lubbock, 147 S. W. 717.

The judgment does not provide for a double recovery. Although the verdict found a joint liability against appellants, there was no error in the judgment decreeing a joint and several liability. Kuykendall v. Coulter, 7 Tex. Civ. App. 399, 26 S. W. 748; Railway v. Crump, 32 Tex. Civ. App. 222, 74 S. W. 335.

The judgment is affirmed.


author: TALBOT, J.

text:
    OCCIDENT FIRE INS. CO. v. LINN.
    (No. 7406.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 16, 1915.)
    1. Appeal and Error) <&wkey;770 — Review — Briefs.
    Under court rule 40 (142 S. W. xiv) an appellant’s brief may be accepted as a proper presentation of the case, without examination of the record contained in the transcript, where appellee files no brief.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3106, 3107; Dee. Dig. <&wkey;>770.]
    2. Insurance <&wkey;069 —Fire Insurance — Actions — Evidence.
    Where there was testimony by a secondhand piano dealer that he had examined the instrument insured for $400, and considered its market value in the neighborhood from $150 to $200, and it did not appear whether the time referred to was before or after the fire, a requested charge that, the market value of the instrument not having been shown, plaintiff could not recover, was properly denied; it being as fair to assume that the testimony referred to the condition of the instrument after the fire as before.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1556, 1771-1784; Dec. Dig. &wkey; 669.]
    3. Insurance <&wkey;658 — Fire Insurance — Actions — Evidence.
    Testimony as to the condition of the insured property, more than 8Yz months after the fire is inadmissible in an action on a fire policy, without a showing that the condition was the same then as immediately after the fire.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1689, 1690, 1694; Dec. Dig. <&wkey;> 658.]

      4. Appeal and Error <©=1067 — Trial <©= 208 — Refusal of Instructions.
    Where the court erroneously denied a motion to rstrike incompetent evidence, th,e refusal of a charge to disregard such evidence was reversible error.
    [Ed. Note. — For other 'cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. <©=51067 ; Trial, Cent. Dig. § 504; Dec. Dig. <©=208.]
    5. Insurance <©=658 —-Fire Policies — Actions — Evidence.
    Where a piano was insured against fire, evidence in an action on the policy as to the cost of repairing its internal mechanism1 was improperly received, where there was no showing of that sort of damage.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. §§ 1689, 1690, 1694; Dec. Dig. <©= 658.]
    Appeal from Grayson County Court; J. Q. Adamson, Judge.
    Action by W. C. Linn against the Occident Fire Insurance Company, begun in justice court, and appealed by defendant to county court. ÍTom a judgment there for plaintiff, defendant appeals.
    Reversed and remanded.
    Crane & Crane, of Dallas, for appellant.
   TALBOT, J.

The appellee has filed no brief in this case, and we copy from appellant’s brief the following statement of the nature and result thereof: W. C. Linn, appel-lee, as plaintiff, instituted a suit against appellant, the Occidental Fire Insurance Company, of Albuquerque, N. M\, In the justice court, precinct No. 1, Grayson county, Tex., upon a policy of insurance in the sum of $400, issued by appellant to his wife, Mrs. W. C. Linn, covering an upright Ellington piano located in appellee’s residence in Sherman, Tex. 1-Ie prayed for judgment for $165' damages alleged to haye been caused by fire and water to the piano in a fire which occurred on August 1, 1913, together with attorney’s fees. Appellant admitted that the policy was issued' and that a fire occurred, but denied that the damages sustained to the piano amounted to $165. Trial before a jury in the justice’s court resulted in judgment on April 21, 1914, for appellee in the sum of $125, and attorney’s fees, to which appellant excepted, and gave notice of appeal to the county court of Grayson county, Tex. Appeal bond was duly filed within the time allowed by law. In the county court the pleadings of the parties were the same as in justice’s court, plaintiff praying for $165 damages and attorney’s fees, and defendant denying the amount of damage. The cause was tried before a jury, and resulted in a verdict for plaintiff in the sum of $134, and the court entered judgment accordingly. . Motion and .amended motion for a new trial were filed within the time required by law, which were by the court in all things overruled, to which the defendant excepted, and gave notice of appeal to this court.

Appellee having failed to file in this <court any brief, we are authorized to regard appellant’s brief, under rule 40 prescribed by the Supreme Court (142 S. W. xiv), as a proper presentation of the case without an examination of the record as contained in the transcript.

The first assignment of error presented in appellant’s brief complains that the trial court erred in refusing to give the following special charge requested by it:

“The undisputed evidence shows that the piano covered by the policy sued on had a market value at Sherman, Tex., at the time the fire occurred. Plaintiff’s measure of damages therefore is the difference between the market value of the piano immediately before the fire and immediately after it was damaged. There being no evidence as to what the market value of the piano was immediately after the fire, you are instructed that plaintiff has failed to prove the amount of his damage. You will therefore find a verdict for the defendant.”

The assignment asserts the refusal of this charge was error:

“Because the undisputed evidence showed that the piano in controversy had a market value in Sherman, Tex., at the time the fire occurred, and the plaintiff’s measure of damages was the difference between the market value of same immediately before the fire and immediately after the fire, which is more fully set out in defendant’s bill of exception No. 5.”

The evidence quoted in the statement under this assignment in support of the contention that there was no testimony showing what the market value of the piano was immediately after the fire is as follows: J. F. Kohler testified:

“I am in the piano business, tuning and selling, and have been for about ¿0 years at Sherman. I buy and sell and trade pianos, and handle secondhand pianos. ■ * * * I examined the piano in Mr. Linn’s house. It was an Ellington piano, made by the Baldwin Company, of Cincinnati. * * * I considered the market value of that piano in the neighborhood of $150 'or $200. That is what would be a fair price for it.”

The testimony of the witness Kohler, as thus quoted in appellant’s brief, does not show at what time he regarded the market value of the piano in question to be $150 or $200. It will be observé 1 that he says he examined the piano in Mr. Linn’s house, but it does not appear whether this was before or after the fire which is charged to have damaged the piano; neither does it appear that in speaking of the market value of the piano he had reference to its market value before or after the fire. For aught the statement shows, he may have had reference to the market value of the piano immediately after the fire which the plaintiff claims damaged it. It is certainly just as reasonable to conclude that he was speaking of the value of the piano after the fire as that he was speaking of it before the fire. Indeed, the inference is stronger, we think, that he was speaking of the value of the piano after the fire. In this attitude of the testimony the appellant has not sustained its assignment asserting that there was no evidence showing the market value of the piano immediately after tlie fire. In view of the condition of the evidence as thus pointed out, we would not be authorized to say, as against the ruling of the court, that there was no evidence showing the market value of the piano immediately after the fire, and the assignment must be overruled.

Appellant’s second assignment of error is as follows:

“Tlie court erred in overruling and in refusing to sustain defendant’s motion to exclude from the consideration of the jury all the testimony of the witness William Weiss as to the condition of tlie piano involved on the date of his examination of same, and the amount it would take to replace same in the condition it was before the fire, because the evidence clearly showed that such examination was made some 8% months after the fire which damaged the piano, and there was no evidence in the record that the condition of the piano at the time of such examination was the same as it was immediately after the fire, because the evidence of such condition at the time of such examination was too remote to be evidence of the condition of said piano immediately after the fire; all of which is more specifically set out in defendant’s bill of exception No. 1.”

The proposition advanced under this assignment is that:

“The testimony as to the condition of a chattel of a witness who made an examination of same 8% months after it had been damaged by fire is not admissible upon the issue of the amount of damage occasioned by the fire to show its condition immediately after the fire, in the absence of proof that its condition at the time of such examination was the same as it was immediately after the fire.”

This assignment must be sustained. Appellant states a correct proposition of law under it, and purports to set forth in support of the assignment all the testimony bearing upon the question raised. This testimony shows that the witness Weiss made an examination of the piano 8 or sy2 months after the fire which damaged it, and there appears no evidence whatever showing or tending to show that the piano was in the same condition at the time of such examination as it was immediately after the fire. Without such evidence proof of the condition of the piano at the remote period of 8 or 8% months after the alleged date of its injury for the purpose of showing the extent of the injury to it and the amount of plaintiff’s damages in consequence thereof was inadmissible. In this connection, based upon the condition the piano was in when examined, the witness was permitted to state that it would cost $75 to repolish and place the piano in first-class condition. It not appearing that the condition of the piano at the time it was examined by this witness was the same as it was immediately after the fire, the testimony complained of by appellant should have been excluded.

In addition to its motion to have this testimony excluded, appellant sought by a requested special charge to have it withdrawn from the consideration of the jury. This charge was refused by the court, and its refusal is made the basis of appellant’s third assignment. Having refused to exclude the testimony upon appellant’s motion made for that purpose, the denial of this charge was material error.

It is also assigned that the court erred in permitting the witness O. L. Guinn to testify that it would cost $25 to $50 to buy or replace the inner action Of upright grand Ellington pianos, and that it would cost about $45 to restring an upright grand Ellington piano, and in refusing to sustain appellant’s motion to exclude the testimony of said witness that it would cost “about $5 extra to put in new tuning pins in an upright Ellington piano.” Appellant contends and asserts, as propositions under the several assignments of error complaining of the foregoing rulings of the court, that there was no evidence showing.that either the inner action or the strings or the tuning pins of the piano was damaged by the fire in question. The assignments complaining of the foregoing rulings of the court should, in our opinion, be sustained. Taking the statements of appellant as correctly presenting the evidence offered, there was, as contended by appellant, no evidence showing that either of the parts of the l>iano to which the testimony objected to related was damaged by the fire alleged to have caused injury to it. There being no such evidence, the admission of the testimony complained of was prejudicial error, and requires a reversal of the case. To correct the errors here referred to the appellant requested the court to charge the jury as follows:

“There being no evidence in the record in this cause as to what particular parts of the interior of the piano covered by the policy in suit were damaged, you are instructed that the court erred in permitting the witness O. L. Guinn to testify as to what the cost of replacing the ‘action,’ the cost of restringing same, and the cost of replacing the tuning pins of said piano would be, and you will disregard said testimony in arriving at your verdict.”

The court refused this charge, and its refusal is assigned as error, upon the ground that there was no evidence in the record that the inner action, strings, or tuning pins were damaged by the fire. There being no such evidence, and the court having erred in admitting the testimony complained of, and having refused to strike it out upon motion of' appellant, it was error to refuse the charge.

The judgment is reversed, and the cause remanded.
      <@=For other cases see same topic and KK Y -N UMiiKH in all Key-Numbered Digests and Indexes

      <J=»For other oases see same topic and KEY-NUMBER in.all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    POSTAL TELEGRAPH CABLE CO. OF TEXAS v. DE KREKKO.
    (No. 5504.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 13, 1915.)
    1. Evidence <&wkey;471 — Opinion — Cube by Context.
    In an action for rent, where the answer of a witness, although a portion of it, considered alone, appeared to be bis opinion as to the meaning of certain statements made by a third person, when considered as a whole merely stated what such person had said, its admission was proper.
    LEd. Note. — For other cases, see Evidence, Cent. Dig. J§ 2149-2185; Dec. Dig. &wkey;471; Witnesses, Cent. Dig. § 834.]
    2. Landlord and Tenant <&wkey;231 — Subletting — Contract — Sufficiency of Evidence.
    In an action for rent, evidence held to show that defendant, through its agent, made a contract to subrent the premises for one month, with an option to extend the contract to cover the term of plaintiff’s lease.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 926-934; Deo. Dig. <&wkey;> 231.]
    3. Landlord and Tenant &wkey;>80 — Option to Sublet — Performance.
    Where premises were sublet for one month, with the option, if satisfactory to extend the time of occupancy to one year, the term of the tenant’s lease, the sublessee, by retaining the space longer than a month, signified its satisfaction, and abandoned its right to limit the contract to such period.
    lEd. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 254-257; Dec. Dig. <&=» 80.]
    4. Judgment &wkey;?199 — Judgment Non Ob-stante Veredicto.
    The court had no power to render judgment in disregard of the jury’s findings; its power being limited to setting aside the verdict and granting new trial.
    [Ed. Note. — For other eases, see Judgment, Cent. Dig. §§ 367-375; Dee. Dig. &wkey;199.]
    Appeal from Bexar County Court for Civil Cases; John II. Clark, Judge.
    Action by George De Krekko against the Postal Telegraph Cable Company of Texas. .Judgment for plaintiff, and defendant appeals.
    Affirmed.
    A. P. Wozencraft, of Dallas, and Cobbs, Eskridge & Cobbs, of San Antonio, for appellant. Engelking & James, of San Antonio, for appellee.
   MOURSUND, J.

Appellee sued appellant in justice’s court, alleging that appellant, through its agent, W. E. Herring, leased certain premises from appellee for 11 months, agreeing to pay $15 per month for the use thereof, and that it only paid the sum of $60. Judgment was rendered in favor of plaintiff for $105. An appeal was taken, and the trial resulted in a verdict and judgment in favor of plaintiff for $105, with interest from March 1, 1914. No written pleadings were filed.

Appellant complains of the admission of a portion of an answer of the witness G. De Krekko to a cross-interrogatory. When considered alone, this portion of the answer appears to be the opinion of the witness .with regard to the meaning pf certain statements made by Herring; but, when the entire answer is considered, it is obvious that the witness merely stated what Herring had said, namely, that they (meaning appellant company) would try the lease one month, and I if they remained over and above that month it would mean for them to stay for the year. The first assignment of error is overruled.

By the second assignment of error complaint is máde of the overruling of defendant’s' motion for an instructed verdict; the contention being that the undisputed evidence showed that defendant was to take the space in plaintiff’s store for a substation for one month, and that if it paid the first month then defendant was to take such space for the life of plaintiff’s lease, ana that the evidence showed that the business' did not pay for the first month. Defendant’s witness Herring did not undertake to testify regarding the terms of the contract made by him with plaintiff. Plaintiff testified on direct examination that Herring said, “1 want to take that space for one month with the privilege of one year;” that Herring asked him how long his lease ran, and he told Herring one year, and that Herring then said, ‘‘That is satisfactory, and we will take it the same as your lease, if it is satisfactory at the end of the first month.” Plaintiff’s brother testified that Herring said they would try for one month, and if they continued over and above that month it meant for them to stay for the year. Defendant used and paid for the space for four months, without undertaking to make any other contract.

It is true that upon cross-examination plaintiff testified that he understood Herring was trying the business, and that he would take the space for the rest of the lease if the business paid. Upon redirect examination he again testified to the actual language used by Herring, which was in' substance that, if the business was satisfactory and they did a good business, he would keep the space during the term of plaintiff’s lease. This. evidence clearly shows1 a contract to rent for one month, with an option to extend the contract to cover the term of plaintiff’s lease. It shows clearly that defendant coulc( abandon the premises at the end of the month, and the contract would be at an end; but it does not show that it could stay for four months, and then say that it had never become bound, except for one month, but had secretly been a tenant at will. It was never the intention of the parties that, if the business was unsatisfactory, or did not pay, defendant could act as if it was satisfactory, continue its possession, apparently exercise its option to lease for the remainder of plaintiff’s term; and then, after four months, say it had never made a contract, except for one month. Under the terms of the contract, by exercising its option to retain the space longer than the month, defendant signified its satisfaction with the business done, and abandoned its right to limit the contract to one month. The court did not err in overruling defendant’s motion for an instructed verdict, and the assignment is overruled.

The third assignment complains of the refusal of a motion for judgment in favor of defendant notwithstanding the verdict. The court did not err in overruling the motion. If the undisputed evidence had shown the facts set out in the motion, the jury having made findings on the points relied upon by defendant, the court had no power to render judgment in disregard of such findings; its power being limited to setting aside the verdict and granting a new trial. Fant v. Sullivan, 152 S. W. 515.

The judgment is affirmed.
      <@=»For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes

      Other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ABLON v. WHEELER & MOTTER MERCANTILE CO.
    (No. 7396.)

    (Court of Civil Appeals of Texas. Dallas.
    June 19, 1915.
    On Motion to Certify to Supreme Court, Oct. 23, 1915.)
    1. Pleading &wkey;>258 — Amendment of Answee at Trial.
    There was no error in refusing to permit defendant during the trial to amend his answer by setting up a deed of trust and introducing a new defense based thereon, which would necessitate a continuance to enable plaintiff to meet it ; all the facts and circumstances, showing that defendant was put on inquiry and had sufficient time to have ascertained the exact condition of affairs, and that if he did not know it it was due to his negligence.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 765-782; Dee. Dig. &wkey;258.J
    2. Trial <&wkey;250 — Instructions — Conformity to Issues.
    An instruction presenting an issue unauthorized by any pleading, or even by the evidence, is properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 584-586; Dee. Dig. &wkey;250.]
    3. New Trial <&wkey;102 — Newly Discovered Evidence — Diligence.
    Defendant is not entitled to a new trial on the ground of newly discovered evidence, a deed of trust, of which the circumstances put him on inquiry.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 207, 210-214; Dec. Dig. &wkey;102.]
    Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.
    Action by the Wheeler & Motter Mercantile Company against Ben Ablon. Judgment for plaintiff, and defendant appeals.
    Affirmed, and motion to certify questions overruled.
    Carden, Starling, Carden, Hemphill & Wallace, Towne Young, Victor H. Hexter, and A. B. Lacy, all of Dallas, for appellant. Short & Feild, of Dallas, for appellee.

      Application ior writ of error pending in Supreme Court.

   RAINEY, C. J.

In June, 1907, J. W. Tob-olowsky was engaged in the mercantile business at McAlester, Okl. Being financially involved, a petition in bankruptcy was filed against him. Tootle, Wheeler & Motter Mercantile Company, one of his creditors, agreed to help him. A convention of the creditors was had, who agreed to take 40 per cent, of their indebtedness in settlement, and said mercantile company agreed to advance the money to pay the other creditors, if the full amount of its claim was secured. Said mercantile company advanced the money, and said creditors were paid their 40 per cent., and J. W. Tobolowsky executed to said mercantile company his two promissory notes, one for $1,315 and the other for $1,500, the latter signed by Ben Ablon, and the stock of goods of said Tobolowsky was placed in the hands of a trustee for sale to pay off said indebtedness. The note first falling due, $1,315, was paid off, and the other was reduced in amount by payments to about $900, when on October 30,1911, appellee, successors to Tootle, Wheeler & Motter Mercantile Company, brought this suit against J. W. Tobo-lowsky and Ben Ablon to recover the balance due on the $1,500 note. Tobolowsky was dismissed from the suit, and of which there is no question raised, and Ben Ablon is the only defendant He pleaded that he signed the note as surety and that he did so with the understanding that the proceeds arising from the sale of the goods placed in the hands of the trustee should be first applied to the payment of the $1,500 note, which was not done; that the note was procured by duress and fraud on the part of the mercantile company, in that they agreed to accept 40 per cent, of their indebtedness, as did the other creditors, but after the meeting of the creditors, and before they would advance the money to pay the other creditors, they required Tobolowsky to secure them in the full amount of their debt, which he did to prevent being forced into bankruptcy. A trial resulted in a judgment against Ablon, and he appeals.

1. On the trial, after the plaintiff and defendant had both introduced their direct testimony, plaintiff in rebuttal offered in evidence a deed of trust executed by J. W. Tobolowsky to J. J. Tuehy, agent of the mercantile company, conveying the entire stock of merchandise, fixtures, etc., to be held 'in trust, with power of sale in the usual course, to keep the property insured, to replenish the stock, to pay expenses of running the business, and balance of the proceeds arising from the sales to be applied on said indebtedness. At this point in the trial defendant claimed that he knew nothing of said deed of trust, and asked leave of the court to amend his answer that he might set up in effect said deed of trust, that it was a security for said note, that the value of said security was in excess of said indebtedness, and that the same had been negligently dissipated by said mercantile company, but for which said note would have been paid off and discharged. The plaintiff objected to the filing of said amendment:

“Because said defendant had ample opportunity to obtain said deed of trust if he desired. J. W. Tobolowsky was his codefendant in this action and resided at McAlester, in the state of Oklahoma, as defendant well knew when said deed of trust was executed. That it was filed for record on the 10th day of July, 1907, that this suit was brought on the-day of 19 — , against defendant and J. W. Tobolowsky, and has been pending ever since. That said amendment, if allowed, introduced into the case a new defense, which would necessarily result in a continuance to enable the plaintiff to show that the goods mentioned in the notice were removed from Oklahoma without the plaintiff’s knowledge and with the knowledge and consent of the defendant.”

The court refused to permit defendant leave to file said trial amendment, to which action of the court in refusing defendant leave to amend the defendant then and there duly excepted. We are of the opinion that the court did not err in refusing to permit appellant to amend his answer as requested. He pleaded that the goods were placed in the hands of a trustee for sale, and that the note was to be paid out of the first proceeds of sale. Said deed of trust was properly recorded in Oklahoma. He was a nephew of J. W. Tobolowsky, and B. Tobo-lowsky, J. W. Tobolowsky’s brother, was placed in charge of said goods for the purpose of disposing of the same, and several years elapsed before this suit was brought. All the facts and circumstances, we think, show that appellant was put upon inquiry and had sufficient time to have ascertained the exact condition of affairs; if he did not in fact actually know the true condition, it must be attributed to his own negligence.

2. The court did not err in refusing to give appellant’s special charge to the effect to find for him if they believed plaintiff caused the surrender of securities sufficient to pay the said note to J. W. Tobolowsky, or, if not sufficient to satisfy the note, to credit the value of what was turned back- on said note. There was no pleading by appellant that authorized the presentation of such an issue. Besides, there is no evidence showing the value of the goods returned to J. W. Tobolowsky.

3. The court did not err in failing to grant appellant’s motion for a new trial on the ground of newly discovered evidence, which was the deed of trust introduced by plaintiff, and for which the appellant had asked leave to amend. As above stated, we think there was no just ground for appellant’s being surprised, as the circumstances shows put him on inquiry, and our discussion of the question of refusal to allow appellant to amend applies to the question of newly discovered evidence.

4. On the issue pleaded by appellant that he signed said note as security with the understanding that the proceeds of sale of the goods should be first applied to the note here sued on, we will say that there was sufficient evidence.to support the jury’s verdict that there was no such understanding by the mercantile company or its agent.

5. We also think the evidence sustains and authorizes' the verdict on the question of duress and fraud.

There is no error in the charge of the court upon the burden of proof.

Finding no reversible error in the record, the judgment is affirmed.

On Motion to Certify to Supreme Court.

The appellant moves this court to certify this case to the Supreme Court, because in conflict with the opinions of the Courts of Civil Appeals at El Paso and at Ft. Worth. He states in his motion:

“This honorable court, through Chief Justice Rainey, in the above cause, on the question of principal and surety, held that though it was apparent of record that the creditor (the appellee in this cause), which was a trustee, and in the possession of securities held for the payment of the note sued on, negligently surrenders said securities to the principal’ debtor, and allows him to remove same out of the state, such action on the part of the creditor does not discharge the surety, nor release him pro tanto to the amount of such surrendered security.”

In the opinion we used no such language as above set out, nor did we hold or intimate that such was not the law. What we held was that there was no pleading presenting such an issue. On the issue pleaded that appellant signed the note with the understanding that the proceeds of sale of the goods should first be applied to the note, the evidence was sufficient for the jury to find against him. We concluded that appellant signed the note without reference to what disposition was made of the goods.

The motion is overruled.
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author: KASBTJRX, J.

text:
    FOWLER v. CARLISLE.
    (No. 7388.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 16, 1915.)
    1. Sales <©=353 — Representation — Fact or Opinion — Question of Fact.
    Whether a representation made by a seller was intended by him and understood by the buyer as an affirmance of a fact or a mere expression of opinion, in which latter case it, though untrue, is not ground for rescission, is a question of fact for the jury, or for the court exercising his jury function.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 145-151; Dec. Dig. &wkey;53.]
    2. Appeal and Error &wkey;>731 — Assignments op Error.
    Any assignment of error without support in the court’s conclusions of fact, and which fails to challenge the correctness of such conclusions, presents no error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021; Dec. Dig. <&wkey;> 731.]
    Error from W]ood County Court; R. E. Bozeman, Judge.
    Action by M. E. Fowler against J. A. Car-lisle. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    Jones & Jones, of Mineóla, for plaintiff in error. Harris -& Britton, of Quitman, for defendant in error.
   KASBTJRX, J.

In the court below plaintiff in error sued defendant in error to rescind a contract of sale and purchase entered into between the parties, and to recover the price paid for two mules on the ground that defendant in error had warranted them to be sound and strong while in fact one of the mules had been crippled when a colt and as a consequence was incapable of doing farm work for which defendant in error had warranted them. There was trial, without jury, resulting in judgment for the defendant in error, from which judgment this appeal was taken. The record contains no statement of facts, but the issues presented in the brief of plaintiff in error are based, as to the necessary facts, upon unchallenged conclusions of fact prepared and filed by the trial judge. These conclusions, essential to a consideration of the issues presented, are, in our own language and arrangement, in substance, as follows: Defendant in error raised the mule in question. When it was a few days old it was, in some manner unknown to defendant in error, injured and crippled in its hip, and as a result of such injuries limped for three or four months, defendant in error being aware of both the injury and the consequent limp. Plaintiff in error, who lived in Smith county, distant about 20 miles from defendant in error’s home in Wood county, went to the latter’s home and purchased the mules, together with harness for each, paying therefor $475, which was the fair market value of the mules and harness. At the time of the sale defendant in error had, for a period of 2% or 3 years worked the mule at all kinds of farm work without it ever having shown any lameness or hurt from the injury received when a colt, though the condition of the hip, as a result of the old injury, rendered it more susceptible to other injury, and at the time of the sale was, as matter of fact, sound for all kinds of farm work, but showed a slightly low hip. While plaintiff in error was examining the mule he remarked to defendant in error “that hip looks a little low,” to which defendant in error replied, “I can hardly tell it, can you?” Plaintiff in error also asked defendant in error if the mule had been hurt or lame in that leg, to which defendant in error replied, “He has never been lame on me,” which last statement plaintiff in error believed. Defendant in error did not inform plaintiff in error, nor was he informed otherwise, that the mule had been hurt when a colt, but such omission was not the concealment of a latent defect. The mule’s low hip was open and patent, and was observed by plaintiff in error before he purchased the mule. He had noticed the mule resting its leg, with low hip, while in harness. At the time of the purchase plaintiff in error was accompanied by his father-in-law, who lived near defendant in error, and had known the mules all their lives, examined them at the time of the purchase, and would have purchased them himself, although he had known of the injury to the mule when a colt. At the time of and before the sale was concluded, plaintiff in error requested defendant in error to guarantee the mules, but defendant in error refused to do so, and did not make any warranty as to the soundness or condition of the mules. Defendant in error did tell plaintiff in error that the mules were sound, but, having refused to guarantee them, such statement was made and accepted as the opinion of defendant in error, based upon his knowledge of the mules and not as a statement made to induce plaintiff in error to purchase. Nor was the statement that the low hip had never hurt or lamed the mule of defendant in error a false representation. After the purchase plaintiff in error put the mules upon road work too heavy for them, and in a few weeks thereafter the mule in question became lame in the low hip, since which time he has been unable to do regular farm work without showing lameness. At the time of trial the mule had an abnormal or enlarged condition of the bone near the hip joint, which could have been produced by a blow, strain, or overwork, and which will decrease the value of the mule approximately one-half, but the court was unable from the evidence to ascertain the cause of such condition.

The first error assigned, and which, in effect, reviews all issues covered by all other assignments, is that the court in view of its findings of fact erred in rendering judgment for defendant in error. The proposition first urged is that when the vendor asserts that an animal offered for sale is not, as matter of fact, injured in a respect particularly inquired about, and it subsequently develops that the statement is untrue, the vendor is liable as in case of express warranty, notwithstanding there was an express refusal to warrant in any respect. Without attempting a discussion as broad as the proposition asserted, or conceding its entire correctness, and without attempting to recite all the exceptions or variations of the rule as stated, one of the well-settled exceptions in such cases is that the intention of the vendor in making such representation and the understanding of the representation by the vendee is a fact of prime importance in determining the right to rescind in such cases. And, it may be added, the intention of the vendor, and the understanding of the vendee, is a question of fact to be determined by the jury under appropriate charge by the court. In Cole v. Carter, 22 Tex. Civ. App. 457, 54 S. W. 914, it was said:

"As we understand tho law upon the subject, if the representations made by the seller were intended and understood as the mere expression of an opinion, then the seller is not liable, although the representations may have been untrue. But when the representations, in whatever language they may be couched, are intended and understood as the affirmation of a fact material to the transaction, and the purchaser relies upon them as true, the seller will be held liable if they be false. And when the representations are not in writing:, and their purpose is not manifest and certain, the question should be left to the jury to determine whether or not the language used was intended and understood as the affirmation of a fact, or the mere expression of an opinion.”

Applying the rule stated in the instant case, it will be seen, by reference to the court’s conclusions of fact, that the court, not only found that defendant in error’s statement in reference to the particular injury inquired about, i. e., the injury to the hip, was not a false representation, but that all representations made as to the soundness of the mules were opinions of defendant in error, and so understood and accepted by plaintiff in error. Such being the conclusions of fact by the court while in the exercise of his jury function, the assignment discloses no error, since such conclusions are not challenged, neither does the record contain a statement of facts upon which such challenge might be based.

It is next urged as a proposition of law that it is the duty of the vendor in the sale of personal property to disclose to the ven-dee all latent defects affecting the value of the article sold. It is asserted in such connection that the defendant in error not only failed in such duty, but concealed a latent defect in one of the mules. To sustain this claim plaintiff in error relies upon the finding of the court that defendant in error, when one of the mules was a colt, discovered it in an injured and crippled condition in the hip, due to causes unknown to defendant in error, and from which injury it limped for three or four months, notwithstanding which defendant in error at the time of the sale in effect stated that he could hardly notice the low hip, and that the mule never had gone lame on him. The court, however, in its conclusions’ of fact further found that such action of defendant in error was not the concealment of a latent defect, for the reason that the defect was open and patent and was observed by plaintiff in error. Further, the court found also that what defendant in error said concerning the effect of the injury on the mule was not a false representation. In other words, that defendant in error stated the truth when he represented to plaintiff in error that the low hip had never hurt the mule or caused it to limp while owned by defendant in error. Thus, while the rule of law stated'by plaintiff in error may be conceded to be correct, it also has no support in the facts, and fails to disclose reversible error.

The next proposition is, in effect, that the making of a false statement concerning the condition of personal property, which induces the purchase thereof, is ground for rescission. Generally speaking, the rule as stated is correct. The difficulty, however, lies in the fact that the proposition is also not supported by the court’s conclusion. The effect of the court’s findings is that all representations made by defendant in error were merely the expression of his opinion, and that he never intended more than that, and that the plaintiff in error so understood it. Such being the condition of the record, any assignment without support in the court’s conclusions of fact, or which fails to challenge the correctness of such conclusions in a proper manner, does not constitute reversible error.

For the reasons stated, the judgment is affirmed.
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author: HENDRICKS, J.

text:
    ROUNDS v. COLEMAN.
    (No. 876.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 9, 1915.)
    Affidavits <&wkey;14 — Authority of Officer-Affidavit in Lieu of Appeal Bond.
    An affidavit in lieu of an appeal bond sworn to before the judge of a county court of another state is defective, as the statutes give such an officer no authority to administer oaths and affirmations when taken without the state.
    [Ed. Note. — Ifor other cases, see Affidavits, Cent. Dig. §§ 58-60; Dec. Dig. <5&wkey;14.j
    Appeal from District Court, Collingsworth County; J. A. Nabors, Judge.
    Action between Adelia T. Rounds and S. L. Coleman. From the judgment, Rounds appeals.
    Appeal dismissed.
    J. M. Worten, of Pawhuska, Okl., and Templeton & Templeton, of Wellington, for appellant. R, H. Cocke, Jr., of Wellington, for appellee.
   HENDRICKS, J.

The affidavit in lieu of an appeal bond in the transcript in this appeal is purported to have been made before a judge of the county court of Tulsa county, Okl. We are unable to find in our statutes giving to such an officer any authority to administer oaths or affirmations when taken without this state, and the motion to dismiss the appeal on account of a defective affidavit is sustained, and the appeal is ordered dismissed.


author: HALL, J.

text:
    BLAIR & HUGHES CO. v. WATKINS & KELLEY.
    (No. 746.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 9, 1915.)
    1. Evidence &wkey;>434 — Parol Evidence — Fraud Inducing Contract.
    Although an order for goods shipped and refused, stipulates that all its conditions appear upon its jacej parol evidence of fraudulent representations inducing the order that the goods could and would be delivered by a certain date, when, not varying the terms of the instrument, is admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2005-2020; Dee. Dig. &wkey;3434.J
    2. Evidence <&wkey;419! — Parol Evidence — Consideration.
    Parol evidence is admissible to show the real consideration of a written contract, although it contradicts the consideration named therein.
    [Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dec. Dig. &wkey;419.j '
    3. Appeal and Eeeoe <&wkey;10Ol—Matters Reviewable—Veedict Not Supported by Evidence.
    Where the verdict of the jury is not supported by the evidence, the case will be reversed on appeal.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. &wkey;lO01J
    Appeal from Collingsworth County Court; R. H. Cocke, Judge.
    Action by the Blair & Hughes Company against Watkins & Kelley. On motion for rehearing.
    Reversed and remanded.
    R. H. Templeton, of Wellington, and Charles C. Huff, of Dallas, for appellant. J. L, Lackey, of Wellington, for appellees.
   HALL, J.

A review of the record has convinced ns that we erred in affirming the judgment. Appellant company sued Watkins & Kelley, a copartnership, upon an account, for ?625. In its amended petition appellant alleged that on the 6th day of November, 1912, plaintiff entered into a written contract with the defendants, Watkins & Kelley, as follows:

“Blair vie Hughes Company:
“Ship to Watkins & Kelley, Dodsonville, Texas, five hundred patterns bagging and ties, ?1.25 per pattern, f. o. b. Wichita Falls, Texas. Bill of Lading attached. There are no conditions attached to this sale other than those shown on this order and same is not subject to countermand under any circumstances. Sellers not liable for fulfillment of this order unless signed by purchaser.
“[Signed] Watkins & Kelley, Purchaser.
“Cheatham, Salesman for Sellers.”

Appellant further alleges that it shipped the bagging and ties to Watkins & Kelley consigned to Dodsonville, Tex., and sent the bill of lading with draft attached, as provided in said written order, and that defendants had refused to accept the shipment and pay for same when it arrived at Dodson-ville.

Defendants alleged, in substance that on the 6th day of November, 1912, being in immediate need of bagging and ties for use at their gin at Madge, Old., they met appellant’s salesman, Cheatham, in Wellington, Tex., and inquired of him how long it would take said bagging and ties to reach Dodson-ville; that Cheatham advised them that his house had the bagging and ties in stock, and could deliver same to defendants at Dodson-ville by the following Monday, and that, if defendants would give him the order, he would phone his house and ascertain whether or not the goods were in stock at that time; that Cheatham did communicate by phone with plaintiffs, and afterwards advised defendants that the bagging and ties were in stock and could be shipped immediately; and that the order was made upon said representations, hut that the bagging and ties were not delivered on the following Monday, and were not shipped until November 15th. It is alleged that Cheatham’s statements that the bagging and ties were in stock and would be shipped Monday were fraudulently made, and that defendants were induced thereby to give him the order.

Appellant contends that the court erred in admitting in evidence the testimony of appel-lee Watkins to prove the conversation and agreement with Cheatham before the written order for the goods was signed. The evidence shows that the order was not signed in Wellington, but was given on the train after Watkins and Cheatham left Wellington for Dod-sonville. The admissibility of parol evidence to show fraud in matters of inducement as a defense to an action upon the contract is well settled in this state. The Court of Appeals and the Supreme Court, in United States Gypsum Co. v. Shields, 106 S. W. 724, and 101 Tex. 473, 108 S. W. 1165, discussed this question, and held that, although the contract of sale provides that the written order constitutes the entire contract, and that there are no verbal statements or agreements varying its terms, nevertheless evidence of fraudulent representations not tending to vary the terms of the writing by which the purchaser was induced to sign it is admissible. Commonwealth Bonding & Casualty Co. v. Bomar, 169 S. W. 1060; Coons v. Lain, 168 S. W. 981; New York Life Insurance Co. v. Thomas, 47 Tex. Civ. App. 149, 104 S. W. 1074; Trinity Valley Trust Co. v. Stockwell, 81 S. W. 793; Turner v. Grobe, 44 S. W. 898.

Barol evidence is also admissible to show the real consideration for a written contract, when the consideration itself is not contractual, although the effect of such evidence is to contradict the consideration recited in the writing. Watson v. Rice, 166 S. W. 106.

The jury found, in reply to the first and second questions submitted by the court, that Watkins signed the order with the understanding that the bagging and ties should be delivered not later than Monday following the 6th day of November, 1912, and that such delivery should be made to Watkins & Kelley by that date. There is no testimony whatever in the record upon which to base such a finding.

The remaining fact, upon which ap-pellees defended, is the alleged fraudulent representation by Cheatham that appellants had the patterns on hand at that time in Wichita Falls. This issue was also submitted to the jury and they failed to agree. A great many immaterial issues were submitted to the jury; but there being no evidence •to sustain the finding that appellants undertook to deliver the goods on or before Monday following the execution of the order, and the jury having failed to agree upon the issue as to whether or not Cheatham fraudulently represented the goods to be in stock, there is nothing in the verdict upon which to base a judgment.

It is therefore reversed, and the cause remanded.
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