text:
    SMITH v. COOLEY et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 21, 1914.
    Rehearing Denied March 21, 1914.)
    1. Pledges (§ 58) — Validity of Debt Secured — Notes—Consideration.
    Where plaintiff, as transferee of a vendor’s lien note, sued ta foreclose, and intervener set up a similar note transferred to him as collateral security for a debt owing him by the vendee, plaintiff might show that the intervener’s note had been discharged after it was transferred by the vendor and. require the intervener to show the indebtedness due under the obligation for which he held it as collateral.
    [Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 186-194; Dec. Dig. § 58.]
    2. Estates (§ 10) — '“Merger.”
    Merger at law is defined to be when a greater and a less estate coincide, in the same person, in the same right, without any intermediate estate. At law the rule is inflexible, but in equity a person may become entitled to an estate subject to a charge for his own benefit, which estate, if he chooses, he can hold and keep the charge alive.
    [Ed. Note. — For other cases, see Estates, Cent. Dig. §§ 9-13; Dec. Dig. § 10.

    For other definitions, see Words and Phrases, vol. 5, pp. 4492, 4493.]
    3. Bills and Notes (§ 527) — Payment—Evidence — Sufficiency.
    Possession by tbe maker of a note is prima facie evidence that it has been paid.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1847-1855; Dec. Dig. § 527.]
    4. Vendor and Purchaser (§ 261) — Lien— Surrender — Transfer of Note to Vendee.
    The transfer of a vendor’s lien note by tbe vendor to the vendee created a presumption of intention on the part of the vendor that the vendee, the maker "of the note, should thereafter hold it absolutely as his own property.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. § 261.]
    5.. Vendor and Purchaser (§ 266) — Vendor’s Lien — Merger.
    Where a vendee gave two lien notes to the vendor, one of which she transferred to plaintiff, and the other she indorsed and redelivered to the vendee, who was her son, who transferred it to intervener as collateral security for a debt owing by the vendee to intervener, and the evidence showed that, by the transfer from the vendor to the vendee, he became the real owner of the note, it became without effect as to plaintiff or .persons other than the vendee and intervener, though the vendor and vendee had agreed that .the vendee should negotiate it, and that- it was. his intention that the debt should not be extinguished.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 687, 713-750; Dec. Dig. § 266.]
    6. Vendor and Purchaser (§ 261) — Lien-Merger.
    That the.lien reserved was but one lien given to secure the two notes did not prevent a merger as to the note indorsed by the vendor and redelivered to the vendee.
    [Ed. Note. — For other cases, see Vendor and' Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. § 261.]
    7. Bills and Notes (§ 357) — Bona Fide' Purchaser — Notice.
    A party receiving as collateral security a vendor’s lien note from the maker, the vendee,, bearing the indorsement of the vendor, the payee, was not a purchaser in due course of-trade.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 909-912, 961; Dec. Dig. § 357.]
    8. Vendor and Purchaser (§ 260) — Transfer of Lien Notes — Bights of Parties.
    A vendee gave two lien notes to the vendor,: one of which she transferred to plaintiff, and the other she indorsed and redelivered to the vendee, who transferred it to intervener as collateral security for a debt owing by the vendee to the intervener. The transfer of the note from vendor to vendee was with intention that he become the absolute owner, though it may have been agreed that he should retain it and use it as' collateral. Held that, as to plaintiff and intervener, the transfer from vendor to ven-dee discharged the lien, so .that, on foreclosure by plaintiff, the. intervener’s lien • was subse? quent tó that! oi the plaintiff, but intervener was next entitled after the plaintiff as against vendor and vendee, and, if there was any residue after discharging his obligation, he would hold it as trustee for them.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. §§ 664-669; Dec. Dig. § 260.]
    9. Alteration of Instruments (§ 8) — In-dorsement on Note.
    It was error to permit the attorney for in-tervener, after trial had begun, to write into the indorsement of his note, over the signature of the vendor, “Pay to the order of C.,” the intervener; such indorsement showing a direct transfer to intervener, which was not the fact, as shown by the prior indorsement, and the evidence showing that the intervener received the note from the vendee, the maker.
    [Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 40-46; Dec. Dig. § 8.]
    10. Depositions (§ 88) — Admissibility in Evidence.
    The depositions of the vendee and inter-vener showing the facts as to the indorsements and transfers of intervener’s note were properly admitted; there being nothing to show that the trial court considered the depositions of one of the parties as against the other.
    [Ed. Note. — For other cases, see Depositions, Gent Dig. §§ 234-236%, 242-245; Dec. Dig. § 88.]
    11. Vendor and Purchaser (§ 280) — Assignment of Vendor’s Lien — Pleading's — Sworn Denial of Assignment.
    A vendee holding two lien notes transferred one to plaintiff, and the other she indorsed and redelivered to the vendee, who delivered it to C. as collateral security for a debt owing by the vendee. On a suit to foreclose by plaintiff, C. intervened, and after trial was begun was permitted to alter the vendor’s indorsement of C.’s note by inserting the words, “Pay to the order of C.” Held that, as the vendee did not deny the indorsement as first made, it was not error to admit evidence to prove ownership, assignment, or transfer affecting the right of the intervener, without denial of the assignment by vendor under a sworn plea.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 784-789, 791; Dec. Dig. § 280.]
    Appeal from District Court, Sherman County; D. B. Hill, Judge.
    Suit by J. W. Smith against M. B. Cooley and Mattie Cooley on a vendor’s lien note executed by M. B. Cooley to Mattie Cooley, and by her transferred to plaintiff. Henning Chambers intervened, setting up a similar lien note. From a judgment foreclosing the liens and directing the proceeds to be apportioned between plaintiff and intervener, plaintiff appeals.
    Reformed and affirmed.
    E. C. Gray, of Higgins, for appellant. M. Cammaek, of Stratford, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HUFF, C. J.

The appellant, J. W. Smith, brought this suit originally against M. B. Cooley and Mattie Cooley, on a vendor’s lien note for $2,000, dated January 10, 1912, with 8 per cent, interest per annum and the usual 10 per cent, attorney’s fees executed by M. B. Cooley to Mattie Cooley, who transferred the note before maturity to appellant, J. W. Smith; appellant praying for a foreclosure of the vendor’s lien upon section 45, block 3 T, Sherman county, Tex. Afterwards Henning Chambers intervened, setting up that he was the holder of a note for $3,000,’ executed by M. B. Cooley to Mattie Cooley, which was a vendor’s lien on the above section 'of land, and that he held it as collateral to secure a loan made by the intervener to M. B. Cooley, for the sum of $525. The appellant filed a supplemental petition in answer to Chambers’ plea of intervention, alleging that intervener did not acquire the $3,000 note from Mattie Cooley but from M. B. Cooley after M. B. Cooley had become the owner and the holder of the $3,000 note, and that he was at the same time the owner of the land upon which the vendor’s lien existed to secure the $3,000 note, and that the lien was thereby canceled, and that Chambers was not a purchaser in good faith without notice, etc. The case was tried before the court without a jury, who rendered judgment July 15, 1913, foreclosing the lien as prayed for by both appellant and intervener, rendering judgment for each in the amount of their respective notes, with interest and attorney’s fees, foreclosing the lien against Mattie Cooley, who was regularly served in this state, and who failed to answer, and against M. B. Cooley upon nonresident notice, he at the time being a nonresident of the state, and decreeing a sale of the land, directing that the proceeds from the sale be apportioned between the plaintiff and in-tervener in proportion to the amount recovered by each. Appellant appeals and assigns error.

On the 10th day of January, 1912, Mattie Cooley conveyed to M. B. Cooley section 45, block 3 T, situated in Sherman county, Tex., by warranty deed, for the recited consideration of $12,000, $7,000 cash and two vendor’s lien notes of even date therewith, one for $2,000, due 12 months after date, and one for $3,000, due 15 months after date, retaining in the deed a vendor’s lien to secure the payment of the notes. M. B. Cooley executed the two notes called for in the deed, payable to Mattie Cooley or order, each bearing interest at the rate of 8 per cent, per annum from date, interest payable annually, with 10 per cent, as attorney’s fees, reciting in each note that they were given as part of the purchase money for the land described in the deed. The note for $2,000 has indorsed on it: “For value received, I, Mattie Cooley, hereby sell, transfer and assign the within and foregoing vendor’s lien note to J. W. Smith, and all my right, title and interest therein. [Signed] Mattie Cooley.” The $3,000 note declared on by intervener has indorsed on it; “Without recourse. Mattie Cooley.” After the parties’ had announced ready for trial, the attorney for intervener, by permission of the court, and over the objection of appellant, added the words “pay to the order of Henning Chambers” between the words “without recourse” and “Mattie Cooley,”, making the indorsement ,to read’ after the interlineation: “Without recourse, pay to the order of Hen-ning Chambers. Mattie Cooley.”

The ex parte deposition of M. B. Cooley was taken, in which tie testified that he executed the two notes for $2,000 and $3,000, for the land in question; that Mattie Cooley is his mother. “I became the owner of the $3,000 note immediately upon its execution about January 10, 1912; my mother indorsing and delivering the note to me at Enid, Okl. We were making trades among ourselves about which Mr. Smith knows all about, and in this trade I got the $3,000 note from my mother. Mattie Cooley was not the owner of the $3,000 note on and after March 8, 1913, and I owned the note for $3,000 in January, 1912, when it was indorsed back to me by my mother.” He testified that Hen-ning Chambers got the note from him and paid him therefor, and that' his mother had no interest in the note.

The intervener, Henning Chambers, testified by ex parte deposition: That he came into possession of the note through the inability of M. B. Cooley to pay a note owing Chambers by M. B. Cooley, and that the $3,-000 note was pledged as collateral to secure Cooley’s note to him. At the time he loaned Cooley the money, his information was Cooley had the right to pledge the note, and he did not inquire into the history of the note. He got possession of the note the latter part of November, 1912. On April 26, 1912, he loaned Cooley the sum of $150. On November 20, 1912, Cooley requested an additional loan, which Chambers declined without additional collateral security. “He (Cooley) told me he had this $3,000 note and I agreed to loan him $425 additional, providing he would make a note for the full amount of his debt to me, pledging the $3,000 lien note as collateral. This he agreed to do, and I gave him two checks of my firm on the Union National Bank, one for $50 and one for $325, and he thereupon executed a note for $525, naming the $3,000 lien note as collateral. A few days later he brought in the $3,000 note, and it was attached to his note in my favor.” He did not remember positively that Cooley told him he was the owner of the note, but that Cooley did assure him he had the right to pledge it as collateral. He assumed M. B. Cooley would be the owner of the $3,000, providing he settles the indebtedness for which it was held as collateral.

The trial court found that the $3,000 note was indorsed back to M. B. Cooley for negotiation. He further finds it was the intention of Mattie Cooley and M. B. Cooley, at the time of the indorsement of the note, that the obligation should not be discharged. “But that it was their purpose that said note, with the lien securing same, should be negotiated as a valid obligation and lien, and Henning Chambers took said note, believing and understanding that said M. B. Cooley had the perfect right to negotiate same.” The trial court held, as shown by his findings of fact and conclusions of law, that, as Mattie Cooley’s indorsement was not assailed as a forgery, the indorsement should be taken as approved. We do not understand that appellant assails the indorsement made by Mattie Cooley, but only that part which was interpolated after going into trial. Appellant in fact relies on the indorsement as showing that the title to the note and the lien retained to secure its payment in fact passed out of Mrs. Cooley. It is not claimed to be a forgery, but, on the contrary, that it is her signature, and that she assigned the note thereby.

In this case the intervener has alleged that he held the note as collateral to secure a note owing him by M. B. Cooley. We think, under the pleadings in this case, appellant had the right to show that the note had been discharged after it was transferred by Mrs. Cooley and to require the intervener to show the indebtedness due under the obligation for which he held it as collateral. This court has heretofore so held in the case of Handley v. Bank, 149 S. W. 742. See Wright v. Hardie, 88 Tex. 653, 32 S. W. 885.

The appellant, by assignment, asserts that the trial court was in error in foreclosing the lien and ordering a sale of the land to pay the $3,000, on the ground that the evidence in this case shows that there was a merger of the legal and equitable title in M. B. Cooley, when he purchased or had assigned to him the $3,000 note. “Merger at law is defined to be ‘when a greater estate and less coincide, and meet, in one and the same person in one and the same right, without any. intermediate estate.’ The rule in equity is the same as at law, with titis modification: That at law it is inflexible, whereas in equity it is clear that a person may become entitled to an estate, subject to a charge for his own benefit, and if he chooses can hold the estate and keep the charge alive. It becomes a question of intention in the person in whom the two interests are invested.” Wonderly v. Giessler, 118 Mo. App. 708, 93 S. W. 1130; James v. Morey, 2 Cow. (N. Y.) 246, 14 Am. Dec. 475. A party who is primarily responsible for an incumbrance, and who is the owner of the fee and acquires the incumbrance, it is extinguished by a merger in the fee, and the merger cannot be prevented by having the holder of the second debt go through the form of transferring it to the owner of the fee. Wonderly v. Giessler, supra; Hussey v. Hill, 120 N. C. 312, 26 S. E. 919, 58 Am. St. Rep. 789; Byington v. Fountain, 61 Iowa, 512, 14 N. W. 220, 16 N. W. 534; Johnson v. Walter, 60 Iowa, 315, 14 N. W. 325; Lappen v. Gill, 129 Mass. 349; Ryer v. Gas, 130 Mass. 227.

The possession by the maker of a note is prima facie evidence that the note has been paid. Kneeland v. Miles, 24 S. W. 1113; Reynolds v. Skelton, 2 Tex. 517; Stephens v. Moodie, 30 S. W. 490; Close v. Fields, 2 Tex. 237; Id., 13 Tex. 625. “The delivery of a note by the owner to the maker with intent to discharge the debt discharges the debt.” The transfer of the note by Mattie Cooley to M. B. Cooley manifested the intention on the part of the vendor, the payee in the note, that her vendee, the maker thereof, should thereafterwards hold such note absolutely as his own property. Thenceafter-ward the possession and right are concurrent in the same person, and the transfer is perfect and irrevocable. Deussen v. Moegelin, 24 Tex. Civ. App. 339, 59 S. W. 51. In aid of that presumption the undisputed evidence is that Mattie Cooley indorsed and delivered the note to M. B. Cooley, whose note it was, and who swears he owned it thereafter and now owns it. This transfer was in consideration of a trade between the parties. In order to secure money, Cooley executed his note to intervener for $525, and placed the $3,000 note up as collateral to his note some ten months after it became his property. It would not be contended under such facts that Mattie Cooley could maintain a suit against M. B. Cooley on this note and foreclose the lien on the land.

In the consideration of the question of merger, it will be well to observe in each case the distinction which 1 Jones on Mortgages, § 870, calls to attention. “When a mortgagor pays his mortgage debt, his object is generally to fulfill the personal obligation of payment and release his estate of the incum-brance. * * * It must follow, therefore, that while, as a general rule, the mortgagor’s intention is to extinguish the mortgage, the mortgagee, on the other hand, almost always desires to hold the title he has and simply to acquire the title which he has not.” So, when the courts say that a merger will be prevented when it is the intention of the parties that there shall be no merger, that too has its limitation. 2 Pomeroy, § 796. “Under these circumstances, the distinctive question to be now examined is whether it is possible for a party thus paying off a charge to keep alive as a subsisting incumbrance in any manner by any form of procedure, or whether the charge must necessarily merge in the ownership and cease to exist. If it cannot possibly be kept alive, then all further questions of the party’s intention, express or presumed, are meaningless. If a merger is not necessary, and the charge can be kept alive, then the question concerning the party’s intention, express or presumed, and of the benefits to himself, will of course arise and will be governed by the rules formulated in the preceding subdivisions.” Section 797. “An owner of the fee, subject to a charge, who is himself the principal and primary debtor, is liable personally and primarily for the debt secured, and cannot pay off the charge in any manner or by any form of transfer keep it alive. Payment by such a person and under such circumstances necessarily amounts to a discharge. The incum-brance cannot be prevented from merging by an assignment taken directly to the owner himself or to a third person as trustee. This rule applies especially to a mortgagor who continues to be the primary and principal debtor.” A party personally liable for the debt, who pays the same, is not subrogated to the rights of the mortgagee. “Even if he should receive a formal assignment, the mortgage could not thus be kept alive, but would be wholly merged and ended.” 3 Pomeroy’s Equity, § 1213; 1 Jones on Mortgages, § 864.

We think the evidence in this case shows conclusively that M. B. Cooley became the owner of the note of $3,000; that he got it in a trade between the parties, presumably with himself and mother. The fact they may have agreed that he should negotiate it and that it was his intention that the debt should not be extinguished cannot, as we see it, aid Cooley or the intervener in this case. The obligor and obligee united in the same person. It would be an anomalous proceeding to permit Cooley to sue himself, asking for a judgment for the debt and foreclosure of the lien against his land and sale of the land to pay himself the debt, interest, and costs of suit, which he himself owes. To permit him to hold this debt as a charge against the land and through intervener, who. admits he does not own the debt and share on a parity ratably in the proceeds, would be to aid the obligor to appropriate the funds to his own use, when he himself is personally liable on the debt. And, owing to the fact that he is now, and was at the institution of this suit, a nonresident, no personal judgment was or could be taken against him; yet his trustee, Chambers, can absorb three-fifths of the funds derived from the sale of the land. Such a proceeding would operate as a fraud against appellant, which we do not think a court of equity will permit by interposing to defeat a merger because Cooley intended otherwise. It is sometimes said that mergers are not favored in equity or that “mergers are odious in equity.” This is doubtless true when injustice would result thereby; but, where a just right or debt in another may be defeated by setting up a mortgage or lien by a party whose duty it is to pay, we think equity is equally as ready to manifest aversion to such attempt, and that both law and equity coincide to prevent it.” 2 Pomeroy, Equity, § 794. The form of the assignment, transfer, or words used in a case of this kind do not so much control as will the relation subsisting between the parties. Ryer v. Gas, 130 Mass. 227. In order to prevent a merger, it should be clearly shown that some beneficial interest will be served by keeping'up the distinction between the legal and equitable estate. Gardner v. Astor, 3 Johns. Ch. (N. Y.) 53, 8 Am. Dec. 465. A court will never permit a lien to be kept afoot for the purpose of endangering subsequent bona fide purchasers under the very party who has thus consolidated in himself the legal and equitable title. What motive can a man have who • owns the equity of redemption, owed the debt secured by a lien on his land, in buying in and having transferred to himself such debt and lien and keeping it afoot against his land? We can see no use but a mischievous one as against a holder of a lien and debt by others for which he is liable and to prevent its collection and to prevent the funds liable therefor being applied to the satisfaction of such debt. Starr v. Ellis, 6 Johns. Ch. (N. Y.) 393.

It has been suggested by appellee that the lien reserved in the deed was' only one given to secure the two notes,' and therefore there could be no merger. We think the interest and position of appellant is distinct from that of M. B. Cooley, and should be treated as if there were two separate liens or mortgages. If the land should not sell for enough to satisfy both notes, Cooley would be personally liable for the residue on appellant’s note. We-see no necessity for a circuity of route; that is, sell the land to pay the $3,000 note, and set it over to Cooley ■ or his trustee, after which require appellant by some kind of a proceeding, to impound the money so set over to Cooley.

It is urged by appellee, the intervener, that he in law is a purchaser in due course of trade and ■ therefore entitled to recover the entire principal, interest, and attorney’s fees on the collateral note and to share equally and ratably with appellant in the proceeds under foreclosure. This contention the trial court sustained and gave intervener such a judgment. Having secured possession of the note from the maker, with the payee’s in-dorsement, we do not think it can be said that intervener was such purchaser in due course of trade. He was bound to take , notice that the payee had parted with the title to the note, and that it was in the hands of the party personally and primarily liable thereon. It was certainly sufficient to notify him that the obligor and obligee were merged in one, and that the same person at that time held both the legal and equitable title to the land which secured this note. In taking it as collateral under the circumstances he did, he got no better right than Cooley then had. As seen by what we have heretofore -said, it would be inequitable to allow Cooley to share in the proceeds of the foreclosure until appellant’s note is fully satisfied. The intervener has no better right than Cooley. It has been expressly held by the courts of this state that a note taken from the hands of the maker, it being made payable to a named person or bearer, is not taken in due course of business, and it would be the duty of the purchaser to inquire. Battle v. Cushman, 33 S. W. 1037; Eck v. Schuermeyer, 29 S. W. 241; Downing v. Neeley et al., 129 S. W. 1192; Kneeland v. Miles, 24 S. W. 1113; Tiedeman on Commercial Paper, § 294.

We believe, under the facts of this case, that appellant is entitled to have his judgment first satisfied out of the proceeds from the foreclosure and the remainder appropriated to the judgment obtained by appellee, the intervener. “It is to be observed that; while after payment the parties thereby discharged cannot be bound by its reissue, still bills and notes may remain negotiable after payment, so far as respect the parties who shall knowingly negotiate the same after-wards, for in such case the negotiation cannot prejudice any other person and will only charge themselves.” 2 Daniel on Neg. Inst. § 1242. In this ease Cooley, after the disí charge of his obligation, could, if he saw proper, negotiate the note and the lien, and; intervener having accepted the same from him, we believe that the end of justice will be met by holding it a subsequent lien on the land to that held by appellant. When intervener’s obligation is discharged, if there is any residue, he will hold the funds as the trustee for Cooley. M.' B. Cooley being perl sonally and primarily liable for the note held by intervener, the form of the transfer -of the lien to Cooley cannot change the nature of the- transaction. He was bound to pay oft and discharge the lien, and the rule applies that, when money paid by one whose duty it is, by contract or otherwise, to pay the mortgage, it is a release, though in form it purports to be an assignment. The subsequent assignments of the mortgage by Cooley could give no title to the intervener as against appellant. Carlton v. Jackson, 121 Mass. 592. It follows, therefore, as to appellant, the note was discharged, and inter-vener could not participate in a foreclosure of the lien reserved to secure both notes, but as between Cooley and the intervener a lien may be recognized in the latter’s favor on the land, but subject to the prior right of the-appellant.

We think the court was in error in permitting the attorney for intervener, after the trial had begun, to write into- the indorsement, over the signature of Mattie Cooley, “Pay to the order of Henning Chambers.” This alteration entirely changed the indorsement on the note from what it was at the time -the intervener came into possession of the note. If this indorsement had been so made when he purchased, perhaps the contention of appellee as to the necessity of sworn pleadings, in order to impeach the indorsement, would be correct. This addition shows a direct assignment to appellee by Mattie Cooley. This was not the fact, as shown by the indorsement, when appellant and appellee announced ready for trial. We recognize the rule that a bona fide purchaser of a negotiable instrument may write his name into a blank indorsement. Appellee was not such in' this case as we have above shown, and to give the indorsement that appearance was a material alteration and was an error on the part of the court in permit; ting it. Such action, however, ought not; and. we believe will not, affect tbe rights of the parties, but these rights should be determined as if no such alteration had been made.

Appellee, by cross-assignment, complains at the action of the court in admitting in evidence the deposition of Oooley and Chambers. Their depositions were each taken ex parte, and a bill was taken by appellee to the action of the court in admitting them. There was no error in admitting the depositions of each as against him, and there is nothing in the bill of exceptions showing that the trial court considered the depositions of one of the parties as against the other. The testimony of Chambers shows he came into possession of the note from the maker, with the indorsement thereon of Mattie Cooley. He testified he thought M. B. Cooley had the right to transfer it. By receiving the note in the manner he did as a collateral, he should be charged with notice that it had merged in M. B. Cooley. The presumption of law is when he took it from M. B. Cooley, the maker of the note, that it was discharged, and there is no evidence to the contrary. This testimony, we think, was sufficient to postpone the lien held by him. The same may be said as to M. B. Cooleys’ deposition

We think the evidence is sufficient to support a decree to the conclusions as above expressed by us; that is, that appellant should be first paid. There is no injury shown by the admission by the trial court of the depositions of Cooley and Chambers.

Appellee’s second cross-assignment is to the effect that the trial court erred in admitting any testimony to prove the ownership, assignment, or transfer in any way affecting the right of intervener, because there is no denial of the assignment made by Mrs. Cooley under a sworn plea.

The pleadings of appellee in this case allege that appellee came into possession of the note from the maker, M. B. Cooley, to secure a note for $525, due him by Cooley. It appearing that the note was discharged by the right and possession concurring in the same person before appellee got possession thereof, therefore appellant had a good defense against same as a lien equal to or prior to his note or lien. It therefore devolved upon the appellee, who held his note as collateral security, to make proof that the debt secured by his note had not been paid, and how much was due on it. And, under the peculiar facts of this case, we further think he should, when his own allegation and evidence showed that he was a holder by delivery from the maker, show that he in fact was a bona fide purchaser of this note without notice of its satisfaction or discharge. This he did not show. Harrington v. Claflin & Co., 91 Tex. 294, 42 S. W. 1055; Wright v. Hardie, 88 Tex. 653, 32 S. W. 885. As heretofore noted, appellant does not deny the indorsement made by Mattie Cooley, but does deny the one interpolated by appellee upon the trial. This he should not, and we do not think was required to deny under oath when it was made over his objection in open court by permission of the court.

We believe the court was in error in adjudging that appellee should participate equally in proportion to the amount of the $3,000 note, principal, interest, and attorney’s fees. The judgment should be reformed, giving each appellant and appellee foreclosure of the lien for their respective amounts, and directing the judgment for appellant, principal, interest, and attorney’s fees, and his costs be first paid out of the proceeds derived from a foreclosure sale, and the residue, if any, be applied on the judgment obtained by appellee.

The judgment is reformed and will be affirmed, with costs against appellee.

Reformed and affirmed.


source: Caselaw Access Project

author: RASBURV, J.

license: Public Domain

text:
    ALEXANDER BROS. v. WROE & GEPPERT et al.
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 28, 1914.)
    Account, Action on (§ 12) — Statutes.
    Rev. St. 1911, art. 3712, declaring that, when any action is founded upon an open ac* count, supported by affidavit of the party, his agent or attorney, that the account is just and true, and that all just and lawful set-offs have been allowed, it shall be prima facie evidence thereof unless the party resisting shall file a written denial under oath, does not preclude a defendant, sued upon a verified account, from proving under appropriate pleadings that the account has in fact been paid, or from showing ■a merely conditional liability, and that the condition fixing liability did not arise; the statute merely making the account conclusive as to the justness of the amount due in case there is no verified denial.
    [Ed. Note. — For other cases, see Account, Action on, Gent. Dig. § 37; Dec. Dig. § 12.]
    Appeal from Freestone County Court; R. L. Williford, Judge.
    Action by Alexander Bros, against Wroe & Geppert and another. From a judgment for the first-named defendants, plaintiffs appeal.
    Affirmed.
    D. T. Garth, of Teague, for appellants. O. M. Wroe, A. B. Geppert, and W. E. Terrell, all of Teague, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig.'&Am.Dig. Key-No. Series & Rep’r Indexfe*

   RASBURV, J.

Appellants sued appellees and one Nunn in the court below, alleging, in substance, that Nunn had employed ap-pellees to sue the Trinity & Brazos Valley Railway Company for damages for personal injuries inflicted upon Nunn, appellees’ fee to be a share in the amount recovered, and that appellees agreed with Nunn to advance him sufficient funds to live upon ^ pending trial of the suit, and that in pursuance, of said agreement appellees induced appellants, who are merchants, to extend credit to said Nunn for living necessaries, in' the, sum of $200, payment of which appellees guaranteed, as well as the further sum of $36.75, then due and owing by Nunn to appellants. Appellants further alleged that at the request of appellees, and subsequent to furnishing Nunn said necessaries, appellants secured the note of said Nunn for the amount of said debt, together with an assignment from Nunn directed to appellees of a sufficient interest in the claim in suit to pay same, which was delivered to appellees, who agreed to withhold the amount of the note and interest from any money collected in said suit It was alleged that sufficient money was collected to pay the debt. The petition in the first count declared upon the account, which was verified according to statute, and in the second count upon the promise to pay the note, and sought judgment accordingly. Appellees answered, tendering the general issue and specially averred that, if any of the promises alleged were made, they were promises to pay the debt of another, and without consideration, and, further, that ■ such promise, if made, was to answer for the debt, default, or miscarriage of another, was not in writing, and hence within the statute of frauds. The court, in submitting the case to the jury, instructed them, in substance, that if the merchandise sued for had been furnished Nunn by appellants in consideration of a promise by appel-lees to pay for the same, to find for appellants, even though the debt was thereafter incorporated into the note described in the second count in the petition. On behalf of appellees the court instructed the jury that if they believe appellees agreed to pay the debt only on condition that there was sufficient money arising from any judgment secured, left for such purpose after appellees had deducted their fee and certain other sums which they were liable for, and that the sum left after such deduction was in fact insufficient, to find for appellees. The court did not submit the special issues pleaded as defenses by appellees, being the claim that the promise to pay Nunn’s debt was without consideration, and was also proscribed by the statute of frauds, since it was the promise to pay the debt of another, and was not in writing. Nor is any complaint made that the defense actually submitted by the court was not warranted by the pleading. The jury returned a verdict for appellants against Nunn, and for appellees against appellants. Under the testimony and the charge of the court the verdict includes the finding that appellees agreed to pay the debt due appellants by Nunn in case there was sufficient funds for that purpose, remaining in their hands after deducting their fee and certain other sums for which they were liable by prior agreement, and that the amount recovered by appellees for Nunn was insufficient to pay their fee and said other claims, and as a consequence there was nothing left for appellants. Such, we say, are the facts to be deducted from the verdict returned under the issues submitted by the trial judge and supported by the evidence in the record.

There are but two assignments of error in appellants’ brief, one asserting 'that the court erred in failing to direct a verdict for appellees on the ground that the sworn account sued on had not been denied under oath as provided by statute, and one on the ground that the evidence fails to support the verdict for the same reason; hence both assignments will be considered together.

As we have said, the suit by the first count in the petition was based upon an open account alleged to be due by appellees and Nunn to appellants, who are merchants, and was verified according to article 3712, R. S. 1911, and its verity was not in like manner denied under oath, as prescribed by the same article, and hence the account at trial stood as just, true, and due, with allowance of all offsets, payments, and credits to which it was entitled. While it does not appear from the court’s charge that he instructed the jury concerning the legal force and effect of the sworn account in the absence of a denial under oath by appellants, yet no evidence was introduced tending to show that it was not in fact just, true, and due, etc., and in submitting the case to the jury the only defense urged by appellees which the jury was permitted to consider was whether appellees had agreed to pay the account on condition that they had sufficient funds remaining for such purpose after deducting their fees and certain other sums to be paid under prior agreements. For that reason, even though it could be said that the court should have told the jury of the legal force and effect of the verified account, we conclude the assignments show no reversible error. An account verified under said article 3712 does not preclude the right to deny liability therefor in the absence of the counter affidavit prescribed by the same article. The present act, which was enacted in 1883, in substitution of the act of 1872, while it goes further than to merely shift the burden of proof in suits upon verified accounts, does no more, in our opinion, in the absence of a counter affidavit than establish, without the right of contradiction by defendant at trial, that the items in the account were sold and delivered, that the prices are just, and the account as a whole is due and unpaid, and that all lawful offsets against the same, and all payments and credits made thereon as such, have been allowed, but does not preclude such party from proving under appropriate pleading that the account has, in fact, been paid, or from asserting a counterclaim or showing conditional liability, and that the condition fixing liability did not arise. Such defenses, and perhaps others, are entirely consistent with the purpose of the statute. Moore v. Powers, 16 Tex. Civ. App. 436, 41 S. W. 707. In the instant case it was shown, both by the pleading and proof of appellants, that the items in the account were furnished to Nunn, and that appellees, by agreement, became unconditionally liable therefor, while by the proof of appellees, it was shown that they were to be liable conditionally. And while appellees did not deny the sale and delivery to Nunn of the items, nor the justness thereof, yet they did adduce testimony tending to show they were not liable for the reason that the condition which was to fix their liability never arose, and this theory of the ease was adopted by the jury. To say that the statute under discussion contemplated the destruction of so material a defense is to ingraft upon the act something entirely foreign to its obvious purpose, and to repeal by inference other specific laws and settled rules of decision expressly recognizing defenses and rights which would be included within the construction sought to be placed upon the act, and which we are sure was never intended.

The judgment of the court below is affirmed.


author: CONNER, C. J.

text:
    STEED v. DAY.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 7, 1914.)
    Frauds, Statute or (§ 33) — Debt of Another — Pkomise to Pay — Original or Collateral Promise.
    Defendant’s tenant, having sold plaintiff a horse to be credited on the tenant’s account with plaintiff, drove the horse to plaintiff to make delivery, when defendant requested that the tenant be permitted to retain the horse to make his crop; defendant promising that if plaintiff would grant such permission and would make such additional advances as were necessary to enable the tenant to make his crop defendant would pay plaintiff the balance of the tenant’s indebtedness plus the additional advances, to which plaintiff acceded. Held, that defendant’s promise to pay the tenant’s debt was an original one based on an independent consideration, and was therefore not within the statute of frauds.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 5CM53, 56; Dec. Dig. § 33.]
    Appeal from Jones County Court; Joe C. Handel, Judge.
    Action by L. E. Steed against D. W. Day. Judgment for defendant, and plaintiff appeals.

    Reversed and remanded.
    Chapman & Coombes, of Anson, for appellant. J. W. Boynton and C. C. Ferrell, both of Anson, for appellee.

      For other cases see same topic and section. NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CONNER, C. J.

The appellant instituted this suit against the appellee in the county court of Jones county on the 7th day of June, 1912, to recover the sum of §203.79, together with interest and costs of suit.

Appellant’s petition is quite lengthy, and we will not undertake to set it out fully. We think it will be sufficient to state that, among other things, the appellant alleged, in substance : That on the' 1st day of January, 1911, one Henry Day was indebted to the appellant in the sum of $173.20, which upon that day, by reason of the facts alleged, became a stated account. That, for the crop year of 1911 Henry Day was a tenant upon the farm of the defendant, D. W. Day, under a contract to pay the rental therefor with a portion of the crop grown and raised thereon during the year. That while so indebted said Henry Day sold to the plaintiff a certain horse at the agreed pnce of $125, which by the terms of the sale was to be applied as a credit to that extent upon the said agreed balance of $173.20. That soon thereafter and pursuant to the contract of sale Henry Day brought the horse and tendered delivery thereof, but that the defendant, D. W. Day, who had accompanied the said Henry Day, represented that said horse was necessary in order for Henry Day to make his contemplated crop; that he, the said D. W. Day, himself was unable to furnish another horse; and he therefore specially requested the plaintiff to permit the said Henry Day to retain the horse, promising that if he, the plaintiff, would do so and would make additional advances necessary for the said Henry Day in making his crop, that he, the said D. W. Day, would pay to appellant the said agreed balance of $173.20, plus such additional advances as the plaintiff should make to the said Henry Day during the crop year of 1911. That the plaintiff being thereto induced by said request, and relying upon the said promise of the defendant, D. W. Day, permitted said Henry Day to retain the horse mentioned and thereafter during the year furnished to the said Henry Day, in order to enable him to plant, raise, harvest, and market his crop of that year, certain supplies amounting in the aggregate to the sum of $49.21. That, at the time of this promise on the part of D. W. Day, Henry Day had property situated in Jones county subject to execution sufficient for the plaintiff to have made his said debt, but .that since said time he had become insolvent and had removed from the state. There are a number of other allegations in the petition not deemed material, though we should perhaps add that it was charged that from and after the agreement of the defendant to pay the Henry Day debt the latter had been discharged and that the plaintiff relied alone upon the defendant for the payment of the debt for which the suit had been instituted.

The defendant presented general and special exceptions. The court overruled the general demurrer, but sustained defendant’s special exceptions 2 and 4, which are as follows: “Defendant specially excepts to said amended original petition wherein plaintiff seeks to hold this defendant liable for the item of indebtedness amounting to $173.20, because it is there shown that defendant’s promise was a collateral undertaking and hence comes within the statute of frauds of the state of Texas.” “Defendant further specially excepts to said amended petition or that part of it wherein it is alleged that D. W. Day promised to pay the item of $173.20, because it affirmatively appears by plaintiff’s allegations that, if any such promise was made by the defendant, it' was without any consideration whatever, and hence comes within the statute of frauds of the state of Texas.”

The plaintiff having declined to amend, judgment was rendered against him, and the court’s action in sustaining the exceptions quoted has been assigned as error in this court. Our statute of frauds (Revised Statutes, art. 3965), so far as applicable, provides that “no action shall be brought in any of the courts to charge any person upon a promise to answer for a debt, default, or miscarriage of another, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof shall be in writing and signed by the parties to be charged therewith.” But whether or not in a given case the promise declared upon is within the statute is often difficult of determination, and the decisions, which both here and elsewhere are very numerous, do not always seem to be entirely harmonious. At this time and in this case no attempt will be made to review the authorities generally in view of the fact that the subject has been treated with some particularity in an opinion by Associate Justice Dunklin, this day rendered in ease No. 7845, I. W. Williams v. City National Bank, 166 S. W. 130, to which reference is here made for a comprehensive view of the authorities. In this case it is thought to be sufficient to say that, as alleged, in our opinion the defendant’s promise to pay the debt of Henry Day is not to be considered as merely a collateral undertaking on the defendant’s part. To be within the statute, the promise must be subsidiary to that of the original debtor. The general rule, as stated by Chief Justice Hemphill in Lemmon v. Box, 20 Tex. 329, is “that whenever the main purpose and object of the prom-issor is, not to answer for another, but to sub-serve some purpose of his own, his promise is not within the statute, although it may in form be a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing the liability of another.” Tested by this rule, it would seem that the defendant, D. W. Day, in promising to pay the stated account of Henry Day, was subserving a purpose of his own and .not merely guaranteeing the payment of a debt of another. As alleged, he thereby procured for his tenant the means of making a crop, from which the defendant hoped to profit. The plaintiff, having in reliance upon the promise released a valuable right and advanced future supplies at the instance of and for the benefit of the defendant, furnished a consideration for the defendant’s promise which we think under the circumstances alleged binds him notwithstanding a failure to put the promise in writing. Thus, in the case of Muller v. Riviere, 59 Tex. 640, 46 Am. Rep. 291, a wife verbally promised to pay a debt of her deceased husband in consideration of certain advances and of the plaintiff’s forbearance in not foreclosing a deed of trust that had been executed by the husband. It was held that the wife’s promise under the circumstances was not within the statute and that she was bound thereon.

We conclude that the court erred in sustaining the exceptions noted, and that the judgment should be reversed, and the cause remanded for a trial upon the merits.


author: KEY, C. J.

text:
    POWELL v. STEPHENS et al.

      (Court of Civil Appeals of Texas. Austin.
    March 25, 1914.)
    Appeal and Error (§ 1101) — Disposition op Cause — Affirmance by Agreement.
    Where, after an appeal was perfected, the appellant and one of the appellees agreed in writing that the judgment should be affirmed, it would be affirmed as to such appellee, though reversed as to the others.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4381; Dec. Dig. § 1101.]
    On motion for rehearing. Motion granted, and judgment of the trial court affirmed as to the moving party.
    For original opinion, and opinion on the former motions for rehearing, see 163 S. W. 672.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   KEY, C. J.

This is a second motion for rehearing by the Coleman National Bank, and it is made to appear therein that after the appeal in this case had been perfected a written agreement was entered into between the appellant, Mrs. M. E. Powell, and the Coleman National Bank, to the effect that the judgment of the trial court should be affirmed, and that the agreement referred to was filed in this court, though it was never called to our attention, and cannot now be found; and by agreement of the parties, a copy of that agreement has been filed in this court as a substitute for the one referred to.

In view of the facts stated, the bank’s motion for rehearing is granted, and, as between appellant, Mrs. M. E. Powell, and appellee the Coleman National Bank, the judgment of the trial court is affirmed; but, as between appellant and the other appellees, the last judgment rendered by this court, reversing and remanding the case, with instructions, is not disturbed.

Motion granted.


author: JENKINS, J.

text:
    GRAVES et al. v. SAN ANTONIO & A. P. RY. CO.
    (Court of Civil Appeals of Texas. Austin.
    Jan. 28, 1914.
    Rehearing Denied March 18, 1914.)
    1. Master and Servant (§ 286) — Injuries to Servant — Actions — Questions for Jury.
    There was no error in directing a verdict for the defendant in an action for the death of a servant, caused by the explosion of an engine, alleged to have been old, rusty, and unsafe, where there was no evidence that it was unsafe, or as to the cause of the explosion, though there was sufficient evidence to raise the issue as to its being old, as the allegations that it was old and rusty were immaterial without a showing that by reason thereof it was defective or unsafe.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.)
    2. Appeal and Error (§ 690) — Record — Questions Presented for Review — Admissibility of Evidence.
    An assignment of error in excluding testimony must be overruled, where the only thing in the record with reference thereto is the testimony of the witness on his voir dire, in the absence of the jury, which the record does not show was offered to the jury, or that the court refused to allow it to go to the jury, or, if so, that appellant excepted to such ruling.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2897-2899, 2902-2904, 2906, 2908; Dee. Dig. § 690.]
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
    Action by Charles Graves and others against the San Antonio & Aransas Pass Railway Company. From a judgment for the defendant, plaintiffs appeal.
    Affirmed.
    H. C. Lindsey, of Waco, for appellants. Neff & Taylor, of Waco, for appellee.

      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. .Series & Rep’r Indexes

   JENKINS, J.

Appellants brought this suit against appellee to recover damages on account of the death of W. B. Graves, a son of appellant Charles Graves. They alleged that W. B. Graves was an employe of appel-lee, and, while engaged in cleaning an engine, the boiler blew up and injured him, causing his death; that such injury was caused by the negligence of appellee in putting the deceased to work on an engine that was old, rusty, and unsafe. The allegations that the engine was old and rusty are immaterial, unless it be shown that by reason of such age and rust the boiler was in a defective or unsafe condition. There was no evidence in the case that said engine or boiler was unsafe, and no evidence as to the cause of explosion. The evidence was sufficient to raise the issue as to the engine’s being old, but not that it or the boiler was unsafe.

The trial court instructed a verdict for the defendant. In this there was no error. Appellants have assigned error on the refusal of the court to allow'' Charles Graves to testify as to what the deceased told him shortly after receiving the injury. The only, thing appearing in the record with reference to this matter is that the statement of facts set out what Charles Graves testified to on voir dire in the absence of the jury; but there is nothing to show that appellants offered this testimony to the jury, that the court refused to allow it to go to the jury, or, if so, that appellants excepted to the ruling of the court, for which reason this assignment must be overruled.

Finding no error in the record, the judgment of the trial court is affirmed.

Affirmed.


author: RAINEY, C. J.

text:
    GULF, C. & S. F. RY. CO. v. STEWART.
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 21, 1914.
    Rehearing Denied March 14, 1914.)
    1. Carriers (§ 320) — Actions for Injuries— Questions for Jury.
    In an action for injuries sustained while traveling on a freight train with a car of cattle, evidence held sufficient to justify the submission of the question as to unnecessarily checking or jerking the car.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217. 1233, 1244, 1248, 1315-1325; Dec. Dig. § 320.]
    2. Trial (§ 194) — Instructions—Weight of Evidence.
    In an action for injuries sustained, while traveling on a freight train with a car of cattle, an instruction that, unless defendant’s employes negligently caused the train to suddenly and unnecessarily check up or jerk, thereby causing the injury, to find for defendant, that if the jury believed that plaintiff voluntarily entered the cattle car with the intention of ré-maining therein and working with the cattle while the train was running, that he thereby assumed the risk ordinarily incident to riding in such car, or if such conduct on his part was negligence proximately causing or contributing to his injuries, or that he was injured by being butted by a calf and not by negligent jerking of the train, if any, to find for defendant, and that if plaintiff did voluntarily go into the car with the intention of riding there and working with the cattle while the train was running, he thereby assumed the risks ordinarily incident to riding in that way, but did not assume the' risk of the negligence, if any. of defendant’s employés, was not on the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    3. Trial (§ 244) — Instructions—Emphasizing Issues.
    Such instruction was not erroneous as placing too great emphasis on the question of negligence in handling the train.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. § 244.]
    4. Trial (§ 296) — Instructions—Confused or Misleading Instructions.
    While the first part of such instruction was somewhat confused as to whether the court intended to permit the jury to determine whether it was negligence for plaintiff to ride in the cattle car, the latter part of the charge told the jury that such conduct was negligence, and this apparent discrepancy was harmless.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig.: § 296.]

      5. Trial (§ 253) — Instructions—Ignoring Issues.
    An instruction, to find for plaintiff under certain circumstances, unless the jury found for defendant “under other instructions herein given,” was not erroneous as precluding the consideration of the affirmative defenses presented in the special charges given at defendant’s request, as “herein given” included all. of the court’s charge, whether main or special, for the defense.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.]
    6. -Carriers (§ 345) — Injury to Person Ac-
    ■ COMPANYING STOCK — CONTRIBUTORY NEGLIGENCE — EVIDENCE.
    In an action for injuries - sustained while traveling on a freight train with a car of cattle, where plaintiff pleaded a custom with defendant’s road to ride in the cattle car while defendant, though it pleaded contributory negligence, did not plead the provision of the contract of transportation, requiring plaintiff to remain in the caboose when the train was in motion, evidence that plaintiff had frequently traveled with freight trains which were transporting his cattle, and that it was his custom to get into the car when the train was stopped to get the cattle up, and to ride therein to the next station if the train started without waiting for him to get out, was properly admitted, and the court did not err in submitting this question of custom, and in refusing to charge that if plaintiff’s act in riding in the cattle ear was the proximate cause of his injury, he could not recover.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1400; Dec. Dig. § 345.]
    7. Evidence (§ 364) — Private Writings— Mortality Tables.
    In an action for personal injuries, a standard mortality table, used generally for years by reputable life insurance companies, was properly admitted to show plaintiff’s life expectancy.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1520; Dee. Dig. § 364.]
    8. Evidence (§ 558) — Experts—Cross-examination — Irrelevant Matters.
    In an action against a railroad company for personal injuries, a question on the cross-examination of a physician, who had testified frequently for plaintiff in similar suits against railroad companies as to his custom relative to proportioning his fees for services to the amount of recovery, was properly excluded; the witness’ custom in other cases being immaterial.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2377, 2379; Dec. Dig. § 558.]
    9. Trial (§ 260) — Instructions—Requests— Matters Covered by Those Given.
    In an action for injuries sustained while riding on a freight train with a car of cattle, a requested instruction to find for defendant if its servants operated the train in such manner and with such movements as men of ordinary caution and prudence would have used was sufficiently embraced in the court’s main charge, by which, in order to find for plaintiff, a finding was required that defendant’s servants suddenly and unexpectedly checked and jerked the train with unusual and unnecessary violence, and that this was negligence proximately causing the injury, and a finding for defendant was required unless its employes negligently caused the train suddenly and unnecessarily to check up and jerk, and by which ordinary care, negligence, and proximate cause were defined.
    . [Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 651-659; Dec. Dig. § 260.]
    10. Appeal and Error (§ 1068) — Harmless Error — Refusal of Instructions.
    In an action for personal injuries, the refusal of an instruction not to allow compensation for a hernia if it could have been cured by a surgical operation, and if a man of ordinary caution and prudence would have had such operation performed, was harmless, where there was no complaint that the verdict was excessive, as it could have affected only the amount of the verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.]
    11. Appeal and Error (§ 1050) — Harmless Error — Admission of Evidence.
    The erroneous admission of evidence did not require a reversal, where the evidence was not of such a nature as to affect the result of the case.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153^157, 4166; Dec. Dig. § 1050.]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by Olin W. Stewart against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Terry, Cavin & Mills and A. H. Culwell, all of Galveston, for appellant. Evans & Carpenter, of Greenville, for appellee.

      For other oases see same topic and section. NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RAINEY, C. J.

Appellee brought this suit against appellant to recover damages for personal injuries while he was traveling on a freight train with a car of cattle. The allegations of plaintiff’s petition are, in effect, that while traveling on a freight train with a ear of cattle, and while in the car with the train in motion, attempting to get some of the cattle on their feet, those in charge of said train negligently and carelessly stopped or jerked the same suddenly and unexpectedly, and with unusual violence, and threw the plaintiff down and backward against the end of the car, throwing a calf against him as the result of which he received serious and permanent injuries. Defendant answered by general denial, and specially, “that as the plaintiff was traveling upon free transportation on his undertaking to look after the cattle while in transit, and upon a contract which exempted the defendant from the care of the cattle while in transit, and by the terms of which the plaintiff assumed upon his own initiative to look after the cattle; that, he being an experienced shipper and having often traveled on cars loaded with cattle, he assumed the risk of the danger in entering or remaining in the car loaded with cattle while in motion; that he did not request defendant’s employés to hold the train still while he looked after the stock; that the cattle were wild and unruly, which fact was known to plaintiff. The train was handled carefully. Riding on freight trains is necessarily rougher than on passenger trains, and more danger incident thereto, all of which was well known to the plaintiff!; if lie bad suffered bernia as result of entering this car, tbat be could and would with tbe exercise of ordinary care and tbe employment of competent surgeons bave bad tbe same entirely cured, but tbat. be bad negligently failed to bave tbe same treated, and tbat in this regard he was guilty of negligence.” Tbe result of tbe trial was a verdict and judgment for appellee, from which this appeal is taken.

Tbe appellant was transporting a car of cattle for appellee under a shipping contract, wherein appellee was to be transported with tbe shipment, and be was to care for and look after tbe cattle en route,- but was to remain in tbe caboose when the train was moving. When Coleman Junction was reached some of tbe cattle were down, and appellee went into tbe car to get them up. Tbe train started before be bad gotten all of them up, and be did not succeed in getting them up before reaching Valeria, tbe next station. He then got out of tbe cattle car and went back to get a drink of water, when be told tbe conductor tbat be was going back in tbe cattle car, and asked him to tell tbe engineer to handle his train lighter. He went back into the cattle car, when there were two or three yearlings down, after tbe train left Valeria, and while it was running and appellee still working to get the cattle all up; tbe train was running rapidly, and suddenly came to a momentary stop with such violence as to throw appellee against tbe ear and one of tbe cattle against him with such force as to produce hernia. In describing tbe stop the witness said: “When the jerk came while I was in tbe car it was like as if tbe engineer had put his brakes on; I don’t know what be did, but there was a kinder quick, sudden jerk, stop, and tbe cars bumped and dashed me against tbe end of tbe car and the cattle all came tbat way, towards the front end of the car and towards me. In my experience in riding on freight trains with cattle I never rode on a freight train tbat stopped as quick as tbat one did, and with such an unusual jerk. I do not mean tbat it came to a dead stop; it was running pretty tolerable fast, and it just stopped kinder for a second, kinder crashed on tbe couplings and popped, and then moved on again. It was a very violent jerk, it bad this much force about it. I was stooping over and bad tbe young calf by the bead, and tbe jerk bad force enough to dash me against tbe end of tbe car and it threw tbe largest yearling in all tbe 60, bead against tbe end of tbe car, and be did not get up again, his shoulder was broken or dislocated. I do not know whether it was broken or dislocated — I am no veterinary surgeon — but be could not walk any more, they bad to drag him out of tbe car at San Angelo, and be bad been standing up until tbe sudden jerk threw him against tbe end of the car. After tbat we continued our journey to San Angelo.” It was customary for attendants on tbe trips to remain in tbe cattle cars when necessary to get tbe cattle up while tbe train was moving.

Tbe first error assigned is to tbe giving of tbe fifth paragraph of tbe court’s charge, which reads: “Unless you believe from tbe evidence tbat tbe defendant’s employe negligently caused tbe train upon which plaintiff was riding to suddenly and unnecessarily check up or jerk, and thereby caused tbe injury complained of by plaintiff, you will find for tbe defendant; and, if you believe from tbe evidence tbat plaintiff voluntarily entered said car at Valeria with the intention of remaining therein and working with tbe cattle while tbe -train was running, that be thereby assumed tbe risk ordinarily incident to riding in tbat way, or if you find tbat such conduct on bis part, if any, was negligence which proximately caused or contributed to bis injuries, or tbat plaintiff was injured by being butted in tbe abdomen by a calf tbat was down in said car, and which be was trying to get up while tbe train was running, and not by negligent jerking of tbe train, if any, you will find for defendant. In this connection I instruct you tbat if plaintiff did voluntarily go into said car with tbe intention of riding there and working with bis cattle while tbe train was running, be thereby assumed tbe risks ordinarily incident to riding in tbat way, but be did not assume the risk of tbe negligence, if any, of defendant’s employés.” It is urged that this charge is on tbe weight of the evidence, in that there was no evidence that tbe ear in which the plaintiff was riding was. unnecessarily checked up or jerked. Tbe evidence of plaintiff as to tbe jerking, etc., of the train warranted a charge on this issue, and the court did not infringe upon tbe rule by charging on tbe weight of tbe evidence.

Nor do we think tbe court erred in repeating or placing too great emphasis upon tbe question of negligence in handling tbe train. On tbe proposition tbat tbe fifth paragraph of tbe charge was confusing and misleading in telling tbe jury in tbe first part of tbe charge, in effect, tbat whether riding in tbe cattle car was negligence, was a question for their determination, and in tbe last paragraph submitting it as a question of law.

Tbe charge may be somewhat confusing as to whether tbe court, in tbe first part, intended to convey to tbe jury that it was a question for them to determine, or intended to instruct them tbat tbe riding in a cattle car was negligence per se. However, the latter part of said charge does tell them that such conduct is negligence. Tbe charge was intended as tbe converse of paragraph No. 4, in which tbe court submitted tbe theory upon which plaintiff was entitled to recover, and we think tbe apparent discrepancy worked no harm to appellant.

Appellant’s second assignment is tbat tbe court erred in the fourth paragraph of its charge, which is as follows: “If you believe from the evidence in this case that at the time alleged by the plaintiff he was in the car of cattle at Valeria to care for his stock, and that the train was started while he was in the car, without notice to him, before he finished getting his cattle up, and that he continued to ride in said car and to work with his cattle from Valeria to Talpa; and if you find that it was dangerous to attempt to get out of same while running, and that a person in the use of ordinary care, under the circumstances, would have remained in said car, and that the conductor in charge of said train knew that plaintiff went into and was riding in said car; and if you find that it was customary for persons in charge of stock to ride in the car with them while moving when necessary, to get up and take care of the cattle; and if you further believe from the evidence that plaintiff was acting^with ordinary care for his own safety, while in said ear, and that while he was working with a calf in said car the agents or servants of the defendant in chargé of said train suddenly and unexpectedly to plaintiff checked and jerked said train with unusual and unnecessary violence, and that by said check or jerk of the train (if there was such check or jerk) was negligence, and such negligence (if any) proximately caused plaintiff to be thrown down and backward against the end of the car, and the calf he was handling to be thrown against his abdomen, and he was thereby injured in any of the respects alleged by him — then you will find in favor of the plaintiff, unless you find for the defendant under other instructions herein given you.”

One objection is that: “This charge was prejudicial to the defendant and erroneous, in that the jury was precluded from considering the affirmative defenses which were presented in the special charges given at its request, as in this fourth paragraph the jury were directed to find in favor of the plaintiff, etc., unless they found for the defendant under other instructions herein given.” We do not see the force of this contention, for the main charge, together with special charges given by the court, is to be considered as a whole, and the jury could not have been prejudiced by the language, “unless they found for the defendant under other instructions herein given.” The words, “herein given,” included all of the court’s charge, whether main or special, for the defense, and precluded none.

The second objection to paragraph 4 of the court’s charge above quoted is that: “It was erroneous for the court to submit in this ease the issue as to whether or not it was customary for persons in charge of stock to ride in the car with them while moving. The contract under whieh this shipment moved was offered in evidence, and was unimpeach-ed, and thereunder it was contracted that the plaintiff would remain in the caboose while the train was in motion.” In this connection we will also consider the third assignment of error, complaining of the admission of plaintiff’s testimony, which was admitted under the following circumstances: “After the plaintiff had testified that he had frequently traveled with freight trains which were transporting his cattle in car load lots, and that cattle on the car would sometimes get down on the floor of the car, and that he would get the cattle up, and had further testified that usually when his cattle got down he, when the train would stop to meet another train, to take water or anything of that sort, would get out of the caboose and go to the car and punch the cattle up, and if he could not get them up that way, he sometimes had to get in the car and straighten them up, plaintiff’s counsel asked plaintiff this question: ‘What do you say was your custom; what you usually did about getting stock up in the car?’ To this question the defendant objected because the matter was immaterial and irrelevant, and because any custom of plaintiff was not binding upon the defendant, and because it had not been shown that the defendant had information about what plaintiff usually did, or what his custom was, and because it had not been shown that the defendant had acquiesced in the conduct of the plaintiff, or in what he usually did. The court overruled the objection, and permitted the witness to answer and say, and he did answer and say: T would get in the car and get them up, and if it happened that they did not wait for me to get out of the car and started off with mé, I would stay in the car until we got to the next station, and I got the cattle up, and then I would get out and go back to the caboose.’ ” The plaintiff had pleaded such a custom with appellant’s road. Appellant had pleaded contributory negligence, but had not pleaded plaintiff’s contract to remain in the caboose when the train was in motion. The testimony was admissible to be considered by the jury in determining the issue of contributory negligence, and whether or not the provision in the contract had been waived, and the court did not err in presenting it in his charge. Railway Co. v. Cook, 12 Tex. Civ. App. 203, 33 S. W. 669, and authorities cited therein.

It was not error to admit in evidence the “American Experience Tables of Mortality,” showing the average life expectancy, and for plaintiff to show therefrom his life expectancy. The table was shown to be a standard one, and used generally by reputable life insurance companies for years.

Dr. J. A. Smith, a witness for plaintiff, after testifying to having treated appellee, and as to the nature of his injuries, and after testifying on cross-examination that for several years he had been called as a witness very frequently by plaintiff in suits against railway companies for personal injuries to testify, and that he had never been called as a witness in any case by defendant, he was asked by defendant’s counsel “if in these cases it had been bis custom in tbe past to proportion bis fees for services on tbe amount of recovery”; objection was interposed by plaintiff and sustained. Tbe defendant bere complains at tbe rule of tbe court. We think tbe ruling of tbe court was proper. What Dr. Smith’s custom was in other cases was immaterial. It would have been proper to have inquired what his contract was, or conduct would be, as regarding his fee in this case, but this was not done.

Tbe nineteenth assignment is: “Tbe court erred in refusing to give to tbe jury defendant’s special charge No. 1, which special charge is as follows: The proximate cause of an event is that cause which, operating in a natural and continuous sequence, unbroken by any independent cause, produces the event, and without which the event would not have happened. The uncontroverted evidence shows that the plaintiff was riding on the train upon a contract which obligated him to remain in the caboose while the train was running, and shows that plaintiff at the time he alleges he was injured was riding in a cattle car and not in a caboose, and there is no evidence showing that the defendant had waived the contract requiring plaintiff to ride in the caboose. Therefore you are instructed that, if you believe from the evidence that plaintiff’s riding in the cattle car at the time he was injured was the proximate cause of his injuries, if he was injured, then the plaintiff is not entitled to recover in this case, and you will return a verdict for the defendant.” This, in effect, would have been telling the jury to find for the defendant, and it was properly refused. Plaintiff had introduced testimony raising the issue as to the waiver of the contract prohibiting plaintiff from riding in a cattle car when moving, and the court had sufficiently submitted that issue.

Appellant’s assignments from 20 to 24, inclusive, relate to appellee’s entering and remaining in the cattle car while it was moving, etc.; that is, to the issues of contributory negligence and assumed risk. We think what we have said under nineteenth assignment just preceding is a sufficient answer to these assignments.

The twenty-fifth assignment complains of the refusal of a charge which instructs the jury that if they believe the servants were operating the train in such manner and with such movements only as men of ordinary caution and prudence would have used in operating a freight train under the circumstances, to find for defendant. The court in the fourth paragraph of the charge, in effect, required a finding that defendant’s servants suddenly and unexpectedly checked and jerked the train with unusual and unnecessary violence, and that same was negligence, proximately causing the injury, and in the fifth paragraph, requiring a finding for defendant, unless the jury believed the employSs negligently caused the train suddenly and unnecessarily to check up and jerk and injure plaintiff. The court also defined ordinary care, negligence, and proximate cause, which leads ds to the conclusion that appellant’s requested charge was sufficiently embraced in the court’s main charge, and it did not err in failing to give the requested charge.

The twenty-sixth assignment is as follows: “The court erred in refusing to give to the jury defendant’s special charge No. 9, which special charge is as follows: ‘If you believe from the evidence that the plaintiff, at the time alleged, sustained a hernia, and if you believe that the hernia was caused by any negligence of defendant’s servants operating its train, and if you believe that by a surgical operation the plaintiff’s hernia would probably have been cured, and if you further believe that a man of ordinary caution and prudence, situated as plaintiff was and’has been since he had such hernia, would have had a surgical operation performed for the cure of said hernia, then and in that event the plaintiff is not entitled to recover compensation for any disability or suffering which he probably would have avoided or escaped, if any, by such surgical operation.’ ” This charge, had it been given, could only have affected the amount of the verdict; and, as there is no complaint of its being excessive, the failure to give said charge will be considered harmless.

There are several assignments complaining of the admission of testimony, the majority of which we think without merit. There are one or two of which, strictly speaking, have merit, and the testimony should not have been admitted, but its admission we regard as of such a nature, under the facts of the case, as not calculated to affect the result of the case, and not such as to require a reversal of the case.

The judgment is affirmed.


author: RASBURY, J.

text:
    RANDLE v. BARDEN.
    (Court of Civil Appeals of Texas. Dallas.
    March 7, 1914.)
    1. Judgment (§ 956)—Res Adjudicata—Is-sue Not Decided.
    Where it appears from the pleading and judgment in a former suit that recovery was sought on two causes of action, one for possession of property, and the other for its detention, and the judgment disposes of one and is silent as to the other, it is prima facie an adjudication that plaintiff therein was not entitled to recover on the other, in the absence of pleading and proof showing that before judgment he withdrew one of the issues or the court refused to decide it; and the applicability of this rule is not affected by a recital in the judgment “that plaintiff was entitled to the relief prayed for.”
    [Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1822-1825; Dec. Dig. § 956.]

      2. Evidence (§ 138) — Relevancy— Similar Pacts and Transactions.
    In an action for work done, defended on the ground that the .charges were excessive and the work inefficient, evidence that similar work done by plaintiff for others was inefficient and the charges excessive is inadmissible as tending to show a general course of dealing similar to 'facts alleged.
    [Ed. Note. — For other eases, see Evidence, Gent. Dig. §§ 414, 414% ; Dec. Dig. § 138.]
    3. Evidence (§ 376) — Account—Competency of Witness.
    The correctness of an account for supplies and labor on an automobile cannot be proved by a witness who did not make the entries, and who neither claimed nor had any personal knowledge thereof.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1628-1646; Dec. Dig. § 376.]
    4. Evidence (§ 376) — Account—Competency oe Witness.
    Neither could the correctness of such account be proved by a witness whose testimony is based on the fact that he was superintendent of the shops where the ear was repaired, and that the time slips from which entries were made were made out and signed by men under him, who actually did the work, delivered to the witness, and by him in turn delivered to the office.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1628-1646; Dec. Dig. § 376.]
    5. Evidence (§ 377) — Account—Time Slips.
    Time slips made by mechanics repairing an automobile could only be admitted on their testimony as to their accuracy, in a case where the-shop books in which they were entered or the-, bookkeeper are not available, and it was error to admit them on the testimony of the foreman, identifying them as the slips turned over to-him for delivery to the office, though, if he had signed them and made the other necessary preliminary proof, they would have been admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1647; Dec. Dig. § 377.]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by E. T. Barden against E. T. Ran-dle. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded for a new trial.
    Allen & Flanary, of Dallas, for appellant. Hiram F. Lively and Jeff D. Stinson, both of Dallas, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RASBURY, J.

Appellee sued appellant in the court below on an account or claim for $445.89, alleging that the Olds-Oakland Auto Company, a private corporation, had, at appellant’s instance, furnished the supplies for appellant’s automobile and made the repairs thereon, enumerated in said account, which appellant refused to pay, and which said account appellee alleged he had acquired, together with the business of the Olds-Oakland Auto Company, for value, and hence entitled to sue thereon.

Appellant contested the suit on the ground that the charges for the work done on the car were excessive and the work inefficient and the car in a worse condition when delivered back to appellant than when received by appellee’s assignor, and for that reason no liability existed at law. Appellant further alleged in effect, by plea in reconvention for damages, that appellee’s assignor had unreasonably detained his car and thereby deprived appellant of its use, for which he sought damages. Appellee, in response to that portion of appellant’s answer seeking to recover damages, alleged by supplemental petition that said claim had been previously adjudicated by suit in one of the district courts of Dallas county between the same parties, and for that reason could not be urged in the pending suit.

There was a trial by jury. To the jury the court submitted for their determination upon the evidence adduced all defenses urged by appellant, save the claim for damages for the unreasonable detention of his car, on which issue the court instructed a verdict for appellee. Under the recited instructions, the jury returned a verdict for appellee for $251.29, with interest followed by like judgment, from which this appeal is taken.

The first assignment of error complains of the refusal of the court to permit appellant to prove the unreasonable detention of his car by ■ appellee’s assignor and the resultant damages; the action of the court being based upon the plea of res adjudicata. At the same time, or prior to the time appellant offered the proof recited, it was shown that appellant, in a suit in the district court against appellee and Olds-Oakland Auto Company and one H. C. Gydeson, had sought to recover damages for such detention and for possession of his car. The judgment in that case, as it affects the issue here tendered, recites that appellant “was entitled to the relief prayed for,” and then awards judgment for appellant for possession of his car. It does not appear from the judgment whether the claim for damages for detaining the car was urged or proof offered, or whether same was specifically withdrawn or abandoned by appellant. The judgment is altogether silent on that question. In reference to such matters, it is now well settled that where it appears from the pleading and judgment in a former suit, offered in evidence upon trial of a pending suit, that recovery was sought upon two causes of action, one, say, for possession of an automobile, and one for damages for detaining same, and the judgment disposes of one of the causes of action and is silent with reference to the other, it is prima facie an adjudication that the plaintiff in such suit was not entitled to recover upon the other cause of action, in the absence of pleading and proof showing that, before the rendition of the judgment, he withdrew one of the issues or that the court refused to decide it. Rackley v. Fowlkes, 89 Tex. 613, 36 S. W. 77; Davies v. Thompson, 92 Tex. 391, 49 S. W. 215; Trammell v. Rosen (Sup.) 157 S. W. 1161. The pleading and judgment tendered in testimony at trial of the Instant case brings the issue here squarely within the rule announced in the cases cited. The circumstance that the judgment recites “that plaintiff was entitled to the relief prayed for” in no sense varies the applicability of the rule, as contended by appellant. The recitation at most is formal and meaningless, in view of the fact that the judgment specifically awards a recovery upon but one of the asserted causes of action. Nor can it be said, as urged by appellant, that such expression in the judgment indicates an abandonment of one of the remedies sought. It occurs to us if the expression has any significance it is contrary to that contended • for by appellant, since the “relief prayed for” was both remedies.

The second, third, and fourth assignments of error complain of the refusal of the court to permit appellant to prove by various witnesses under the issue that the work done by appellee’s assignor upon his car was inefficient and the charges excessive; in substance that similar work done for them by appellee’s assignor was inefficient and the charges excessive; and that they complained thereat and in some instances refused to pay same. Appellant’s contention is that the evidence was admissible as tending to show a general course of dealing similar to facts alleged in the instant case. We conclude the testimony was properly excluded. Generally such evidence is not admissible. In some instances, particularly in negligence cases, evidence of similar acts of negligence are admissible as tending to prove knowledge of the very act of negligence complained of in the pending controversy. G., C. & S. F. Ry. Co. v. Rowland, 82 Tex. 166, 18 S. W. 96. It is said, however, in reference to course of conduct or dealing, that proof that a litigant has at another time done an act similar to the particular act complained of is admissible only “whenever, in the opinion of the court, such relevant course of conduct or dealing on the part of a given individual is' established as to render its continuance, to the time involved in the issue, probable. * * * ” 17 Cyc. 281. The testimony shown by the bills of exception does not tend to bring appellee within the rule cited, but, on the contrary, only tends to establish individual cases similar to those complained of, and does not show such a relevant course of conduct as to enable us to say that such conduct was general and continuing at the time appellant’s car was received by appellee. The better and safer rule in such cases is to establish such claims by direct evidence when it can be produced. It does not appear from the record in the instant case that appellant was precluded from proving, by those having peculiar or expert knowledge of such matters, that the work was inefficient 'and the charges excessive,, or that he offered to do so.

The fifth and sixth assignments of error relate to the admission of testimony. We have said that the suit was to recover the value of certain supplies for and labor upon appellant’s automobile. Attached to the petition of appellee was a statement or itemization of the labor and supplies alleged to have-been furnished to appellant. Over objections properly preserved, appellee proved by C. F. Gydeson that said account was true, correct, and due, and whereupon the court permitted said account to be introduced in evidence and to be read to the jury. Gydeson, at the time the items of indebtedness in the account were incurred, resided in Houston, and his-knowledge relating to the correctness and accurateness of the claim according to his testimony was derived from daily reports sent him from the Dallas office by appellee’s assignor. Gydeson had no personal knowledge-concerning the account, nor claimed any. While he did have before him the original-“time slips” prepared and signed by the various workmen in the shop at the time the work was done, and in turn delivered by them to the bookkeeper,'from which the original entries in the books were made, yet the-witness did not make the entries and had no- independent knowledge thereof, and was hence not qualified to testify that they were accurate and correct. It is also stated by counsel for appellee in his brief in this connection that the original books of entry were present in court, but were not available to-prove the account for the reason that the bookkeeper could not be secured to testify to their correctness. That fact, when- properly proven, would, of course, render admissible the time slips referred to, when supported by the testimony of those who made the entries that they were correct, accurate, and made contemporaneously with the matters to which they referred. The witness, however, according to his own admission, could have no information, except in a secondary manner, concerning the items of the account or the time slips. The fact that he received daily reports at Houston, at the time the work was done, in reference to the business of the Dallas office, imparted -to him no information that would'qualify him to testify concerning the correctness of the account. He did not keep the books, nor make entries therein, and of course could not say they were accurately and correctly kept and made-contemporaneously with the transactions to-which they pertained. The “time slips.”which contained entries made by the workmen, would have been admissible, as we have said, in the absence of the books or the bookkeeper, when identified by such workmen and their correctness or accurateness vouched for-by them, but the witness Gydeson, of course, had no knowledge, other than secondary, that the entries thereon were accurate, or correct, or that they were made contemporaneously with the time the transactions were recorded. - Certainly it cannot be maintained. that his testimony evidences any independent knowledge of the transaction, since he very frankly admits his information comes either from reports from the Dallas office to him at Houston, or is based upon the time slips. The rule in reference to such matters is well settled, as illustrated by the following cases: Stone v. Taylor, 27 Tex. 555; Rogers v. O'Barr & Dinwiddie, 81 S. W. 750; I. & G. N. Ry. Co. v. Startz, 42 Tex. Civ. App. 85, 94 S. W. 207; T. & P. Ry. Co. v. Leggett, 44 Tex. Civ. App. 296, 99 S. W. 176; Ft. W. & R. G. Ry. Co. v. Cauble, 41 Tex. Civ. App. 348, 91 S. W. 244; Bouldin v. Atlantic Ricemills Co., 86 S. W. 795.

What we have said in reference to the witness C. F. Gydeson applies with equal force to the witness H. C. Gydeson. The latter bases his testimony to the correctness of the account on the fact that he was superintendent of the shops where the car was repaired, and that the time slips were made out and signed by the men under him, who actually did the work, delivered to the witness; and by him in turn delivered to the office. He admitted being without independent recollection of what work was done upon the car or what parts were placed in the same, but based his testimony upon the time slips and his superintendency of the work.

The seventh assignment of error brings into review the action of the trial court in admitting in testimony various time slips purporting to have been made by the various mechanics performing labor on appellant’s car. These slips were identified by the witness H. C. Gydeson as slips signed by employes employed by appellee’s assignor, and which were turned over to him and by him in turn delivered to the office of appellee’s assignor. The slips were not made by Gydeson, nor signed by him, and the only knowledge he possessed relating to the correctness or accuracy of the same was the facts detailed and the further fact that he was foreman of the employSs making the entries. We think it clear that the slips could only be admitted in evidence when tendered by those who made them, and could only support a judgment when supplemented by their testimony that the entries so made were correct, accurate, and were made contemporaneously with the transactions to which they referred. Such testimony is admissible when shop books or the keeper of the books are not available. They are, however, without force or verity, in the absence of the supporting testimony of those who made the entries, and for that reason should have been excluded.

Counsel for appellant urges in his brief that Gydeson actually signed the slips, but an examination of the very meager statement of facts fails to disclose that circumstance. Had that claim been correct and Gydeson made the other necessary preliminary proof, the slips would have been admissible, and when admitted would have been sufficient to support the present judgment.

For the reason stated, it is our duty to reverse and remand the case for another trial not inconsistent with the views here presented.