author: RASBTJRY, J.

text:
    EXLINE-REIMERS CO. v. LONE STAR LIFE INS. CO.
    (No. 7117.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 7, 1914.
    Rehearing Denied Jan. 2, 1915.)
    1. CORPORATIONS (§ 448) — -DEBTS INCURRED by Promoters — Liability op Corporation. A debt incurred by a promoter of a corporation on its behalf, prior to tbe filing of its charter, is not an original liability of the corp oration, notwithstanding any promises or representations of the promoter.
    [Ed. Note. — For other oases, see Corporations, Cent. Dig. §§ 1709, 1789-1792; Dee. Dig. § 148.]
    2. Corporations (§ 448) — Debts Incurred by Promoter — Ratification—Adoption.
    A contract by a promoter- of a proposed corporation on its behalf cannot, in a technical sense, be ratified after legal existence of the corporation, since “ratification” presupposes a principal existing at the time of the making of the unauthorized contract, but liability arises rather by adoption of the contract by acceptance of its benefits.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1709, 17S9-1792; Dec. Dig. § 448.]
    3. Corporations (§ 448) — Debts Incurred by Promoter — Liability.
    Where corporators of an insurance company, after the filing of its charter, attempted to assign it to a third person with a right to constitute a board of directors, and subsequently the third person selected a board of directors composed of persons not bona fide stockholders, who selected officers, one of whom accepted for the corporation material ordered by the promoter, and promised that the corporation would pay for it, the corporation was not bound for the debt, notwithstanding Rey. St. 1895, art. 3096h, giving corporators the direction of affairs and the perfecting of the organization of the corporation until they shall call a special meeting of the stockholders, for the acts of the corporators and of the directors and officers were void.
    [Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 1709, 1789-1792; Dec. Dig. § 448.]
    4. Corporations (§ 289) — Officers — “De Facto Officer.”
    Officers of a corporation, not selected in the statutory manner, are not even “de facto officers,” and their acts are not binding on the corporation.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1240-1245; Dec. Dig. § 289. For other definitions, see Words and Phrases, First and Second Series, De Facto Officer.]
    5. Corporations (§ 426) — Debts—Liability —Acquiescence.
    Where the legally elected officers of a corporation repudiated a promise by an officer, who was not even a de facto officer, to pay a debt, when they 'first learned it was asserted against the corporation, there was no acquiescence in the unauthorized acts.
    [Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 1596, 1702-1704, 1707, 1708, 1710-1716; Dec. Dig. § 426.*]
    6. Corporations (§ 425) — Debts—Liability —Estoppel.
    Legally constituted officers of a corporation are not estopped from denying unlawful acts done by officers who were not even de facto officers.
    [Ed. Note. — For other cases, see Cent. Dig. §§ 1697-1701, 1705; 425.*] Corporations, Dec. Dig. §
    7. Corporations (§ 398) — Debts—Liability Officers of a corporation, who are not eve de facto officers, are without authority to mak a_ purchase of goods for the corporation or t bind it by adopting an unauthorized contrac of the promoter.
    [Ed. Note. — For other eases, see Corporation! Cent. Dig. §§ 1592-1594; Dec. Dig. § 398.]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    ■ Action by the M. P. Exline Company, prosecuted by the Exline-Reimers Company, against the Lone Star Life Insurance Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    L. C. McBride and Allen & Flanary, all of Dallas, for appellant. Coke & Coke, of Dallas, for appellee.

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

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

   RASBTJRY, J.

This suit was instituted by M. P. Exline Company against appellee, but, pending its determination, appellant, Ex-line-Reimers Company, acquired the former company’s assets and prosecuted the case in its name. The suit was to recover a balance on an account for certain items of stationery, office furniture, supplies, etc., for which ap-pellee was alleged to be liable. Appellee denied by proper pleading all liability for the items of account. No further statement of the pleadings are necessary, since no question of their sufficiency arises.

The rights of the parties on this appeal depend upon the law arising upon practically undisputed facts; the following, supported by the record, being those essential to a disposition of the case: The articles specified in the account sued on were articles necessary to the conduct of the business of life insurance companies and were purchased on requisitions signed Lone Star Life Insurance Company, by J. M. Dawson, who represented L. H. Morgan, to whom the supplies, etc., were delivered. Morgan, claiming to represent the Lone Star Life Insurance Company, promised the account would be paid by the company, and upon such representations appellant relied without other inquiry or investigation. At the time the requisitions were made upon appellant for the supplies, etc., and at the time the same were delivered' to Morgan, he was attempting to organize said Lone Star Life Insurance Company, and in pursuance of that object had, on February 2, 1909, interested Messrs. Worsham, Keating, Slaughter, Gannon, Reardon, Baker, Green, Hamilton, and Edwards, all of Dallas, Tex., except the first named, to the extent that they signed articles incorporating the proposed company under certain statutory provisions then existing and delivered same to L. H. Morgan.' Morgan retained possession of the articles of incorporation until May 28, 1909, at which time same were filed in the office of the commissioner of insurance, etc., and approved by tha.t official. All the articles covered by the account sued on, except certain items hereafter referred to, were purchased by Morgan, claiming to represent the company, prior to the time of filing the articles of incorporation in the office of the commissioner of insurance. Those who signed the articles of incorporation, learning that Morgan had filed same with the commissioner, called a meeting June 7, 1909, of the incorporators for the purpose of discussing the status of the company. Morgan attended the meeting. The' result of the meeting was that the project was abandoned, and it was agreed that each incorporator should be released from prior tentative subscriptions to the stock of the company; the cause of the abandonment being the inability or refusal of any one of the incorporators to assume direction of the affairs of the proposed company. At this time Morgan requested that the incorporators assign the charter to him if they intended to abandon the matter,- since he had spent much time and money inj attempting its promotion, and since he believed he could organize same without reference to the participation therein of those present. This the incorporators agreed to do, and by direction of counsel for Morgan, in writing, assigned to him all their respective rights, title, and interest in the charter, on condition that the assignors should be released absolutely from all liability to the proposed company on their proposed subscriptions to stock, and giving to Morgan by the assignment the further right to assign to other persons the interests so assigned to him, as well as the right to constitute a board of directors for the company. Thereafter, on June 11, 1909, in pursuance of the authority contained in said assignment, a meeting of certain gentlemen claiming to be stockholders of the company was held; those present being Messrs. Morgan, Swain, Dawson, and Clark. These purported stockholders by their recorded minutes of the meeting, recited that L. H. Morgan had contributed $6,000 in money to the company, and directed that in lieu thereof stock in the company be issued to him in the sum of $4,000; the remainder so contributed to be subject to future adjustment. By direction of Morgan those acting as stockholders further directed that one share of stock directed to be issued to him be issued in turn each to Swain, Clark, Anderson, and Hannah, and 36 shares to J. M. Dawson. The assignment of the charter to Morgan by the incorporators of the company was acknowledged and ratified at said meeting, and all liability on the part of the incorporators to the company on account of their subscriptions declared canceled.

The individuals above named, acting as stockholders, also elected themselves a board of directors, and adjourned, and immediately convened as directors and elected Swain president, Hannah vice president, Dawson secretary and treasurer. This action was in turn approved, and the president authorized to make such contracts for stock subscriptions and to transact such other business as1 the interests of the company should require. Neither Morgan nor those to whom stock was directed to be issued at the time of the related stockholders’ and directors’ meetings were actual subscribers to the stock of the Lone Star Life Insurance Company. A few days after the meetings just mentioned, and on June 15, 1909, the gentlemen who had signed the articles of incorporation and executed the assignment of the charter to Morgan individually and collectively signed letters addressed to L. H. Morgan & Co., indorsing the proposed company, referring to themselves as charter members, and in some instances as subscribers to the stock or as intending to subscribe thereto. Subsequent to all the transactions detailed, and in December, 1909,. or January, 1910, the incorpora-tors, due to complaints of those who had subscribed to stock at the solicitation of Morgan, concluded that liability attached to them as incorporators, notwithstanding the assignment of the charter and the attempted cancellation of any liability on their part by those nominated by Morgan at the claimed stockholders’ meeting of June 11,1909, whereupon they assumed control of the corporation without objection, so far as the testimony discloses, on the part of Morgan and the officers selected by him, subscribed enough stock or secured subscriptions for enough stock to comply with the laws in that respect, as well as other things necessary to place the company in a position to commence operations, which was accomplished about March, 1910, at which time all connection of the directors and oifieers selected by Morgan with the company ceased. The directors and officers selected as last detailed promptly denied all liability for appellant’s debt when presented for payment, and repudiated the acts of Dawson in accepting the articles and promising payment.

At the conclusion of the trial and upon the evidence as adduced, the substance of the essential features of which we have related, the trial judge instructed verdict for the defendant, and in accordance with which judgment was entered.

The controlling question in the case, and the one upon which the final disposition of the case depends, is whether appellee is liable for the debt sued on by reason of the related acts of the corporators and the subsequent acts of the officers of the corporation claimed to have been elected by the directors of the corporation at the meeting of June 11, 1909, and for that reason we shall not discuss the assignments seriatim. We think it can be safely said, based upon the evidence in the record, that liability in no respect can be urged against the corporation as such for the acts either of Morgan, who was promoting the company at the time the debt was incurred, or those who intended to become corporators, had prior to the act of legal incorporation, which was at the time when the articles were filed in the office of the commissioner of insurance, or May 28, 1909. The reason is obvious, since without legal existence by the corporation there can be no liability. Railway v. Granger, 86 Tex. 350, 24 S. W. 795, 40 Am. St. Rep. 837; Lancaster Gin & Compress Co v. Murray, etc., 19 Tes. Civ. App. 110, 47 S. W. 387. As shown by bur statement of the facts, the debt sued on, escept certain items to be hereafter referred to, was incurred by Morgan, the promoter, on behalf of the corporation prior to the filing of the charter, and hence there was, no original liability on the part of appellee, nor could any be created by any promise or representations of Morgan, who was promoting the .company.

It is said in effect in Railway Co. v. Granger, supra, that contracts made by a promoter on behalf of a proposed corporation, even though within the scope of its general authority, cannot in a technical sense be ratified after legal esistence, since ratification presupposes a principal esisting at the time of making the unauthorized contract. Liability in such cases, it is further said, arises rather by adoption of the contract by acceptance of its benefits than by a recognized technical ratification by the corporation after its legal organization. The rule is said in other language to be that:

“Those who undertake to organize a corporation are not in any sense its agents before it comes into existence. They cannot affect it by their declarations or representations, or bind it by their engagements made in its behalf; but, after coming into existence, the corporation may make their engagements its own by express agreement or by ratification; and this ratification or adoption may be by express corporate action or by any of the other modes by which corporations may ratify or adopt the unauthorized or officious acts of others made in their behalf, as where the corporation voluntarily accepts the benefits accruing to it from the engagement of its promoters, after full knowledge, and having full liberty to decline the same.” 10 Oye. 262.

Such, then, being the rule, we find, on the issue of adoption after incorporation, that the facts in the instant ease show no more nor less than that, after the charter was filed and approved, the corporators attempted to assign it to Morgan with the concurrent right to constitute thereunder a board of directors, and that thereafter Morgan did select and constitute a board of directors, who in turn selected officers, one of whom accepted the material, etc., and promised appellant that the appellee would pay it. Upon such facts, counsel for appellant ably and earnestly urges appellee is bound for the debt, and bases such contention largely upon the provision of the act under which the appellee was incorporated. This act is chapter 4, tit 18, Revised Statutes 1895, authorizing the incorporation of home life and accident insurance companies, and since repealed and substituted. Aside from those provisions having reference to the manner, method, and other details of incorporation in reference to capital stock, etc., the act directs, in effect, that, before companies organized thereunder may sell stock or do the other things contemplated thereby, it shall present to the commissioner of insurance its articles of incorporation for approval and filing. After such approval and filing, the required capital stock subscriptions must be secured, and the securities in which such subscriptions have been invested submitted to and approved by the commissioner. When such provisions of the law have been complied with, the commissioner of insurance is required to furnish the corporation a certificate reciting such compliance, whereupon the corporation is permitted to transact, the business contemplated by the act. The act also provides that the corporators named in the charter shall have the direction of its affairs and the perfection of its organization from the issuance of the permit until such corporators shall call a meeting of the stockholders, and who in turn shall have elected directors and officers for the purpose of transacting a general business. Articles 3096h, 3096j, 3096n, R. S. 1895.

Keeping in mind the fact that no one claiming to represent the corporation after incorporation had promised to pay the debt sued for, and that it was at no time originally liable therefor, did the assignment to Morgan and the election of stockholders, directors, and officers thereunder, and their acceptance of the articles sued for, create any liability against appellee by virtue of the authority conferred upon the corporators by article 3096h? We conclude not, since in our opinion the acts of the corporators, as well as those of the stockholders, directors, and officers elected as stated, were void. That portion of the act that confers upon the cor-porators authority to perfect the organization of the company and direct its affairs pending final authority from the state to transact a general business was not intended to be used as a means of conferring upon the corporators greater authority than may be found in the act itself. There is nothing in the act which would by reasonable deduction or inference authorize the corporators by simple assignment of the charter to confer upon others even the authority conferred upon them, much less authorize their as-signee to do that which the state denied the original corporators the right to do. Without in the least restricting the authority conferred upon the corporators, it is clear that their authority, after the charter was approved, was to do the things specified by the act; i. e., sell stock, invest same, call a meeting of the stockholders, and to do any and all other incidental or necessary things thereto or reasonably to be inferred. The reason why such authority was not intended to be conferred are not far to find.

who are to become stockholders, and upon whom the right and duty of se-sedirectors and officers for the trans-transof the general business of the corpora-corporais conferred, after sufficient stock is subscribed, may not be made responsible in such manner. They have the right to as-asand demand, before the funds they have contributed to the company are expend-expendthat directors and officers will be selected .in the manner pointed out by the act authorizing the incorporation, and not otherwise. Officers selected in any other manner are not officers, certainly not de jure officers, and in our opinion not even de facto officers. It is said:

“A defacto authority cannot arise when there has been absolutely no election or appointment, or, what is equivalent, one that is absolutely null and void, and not merely irregular or informal;” or ‘'where there has been no assertion of the right to exercise the office, except in the very instance where it is questioned;” or “where there has been no acquiescence in the official acts of the person claiming such authority, either on the part of the body for whom he professes to act or of any one else. Otherwise the simple bold assertion of a right to an office would bind such corporation or body by the acts of the usurper, and parties suffering from his unlawful acts could never question them.” Franeo-Texan Land Oo. v. Laigle, 59 Tex. 839.

The testimony in the instant case brings the acts of the pretended officers of appellee well within the rule, since the election of Dawson, who agreed on the part of the corporation to pay the debt, as well as the other officers, was void in that it was the right of the subscribers to the stock, not the corporators, to elect their directors and officers, and the corporators, a.s a consequence, were without authority to confer that right upon Morgan. Nor was there any acquiescence in the acts of such officers, since the officers of the company legally constituted repudiated the promise to pay the debt when they first learned it was being asserted against them.

It is further said in the case cited:

“It is only where the act of the corporation sought to be denied is merely irregular or informal or defective in no vital respect that any one participating in it is estopped to deny its validity. It if be absolutely void, and liable to be treated as a nullity in any proceeding where called in question, no participation in such act could give it vitality, even as to one who took part in it.”

Thus it further appears that not only the officers legally constituted are not estopped to deny the unlawful acts, but even those who attempted to confer that right are not, so far as relates to the corporation as such. Nor do the facts proven on trial bring this suit within the modification of the general rule stated in the case last cited, being instances where those entitled to complete the organization, while having the right of organization, have neglected in the organization to observe some of the details provided by the act authorizing incorporation, such as a failure to secure subscriptions for the full amount of the capital stock. Such a case is not presented by the record before us. Gentlemen, neither corporators nor stockholders, acting upon authority not conferred by law, and which, as a consequence, could not be conferred by the corporators pretending to be stockholders, met and agreed to reimburse Morgan for certain money expended in promoting the corporation by issuing him stock in the corporation, a portion of which he in turn issued to them, and whereupon, based upon the stock so acquired, they held a stockholders’ meeting, electing directors, who in turn elected officers, and the officers-so elected in turn accepted the articles sued for and promised to pay for same. i It is not necessary to discuss the acts of the corpora-tors, since same is in no sense an issue in the suit.

A portion of the articles specified in the account sued on was furnished after the pretended election of directors and officers, but we think such officers had no more authority to make an original purchase than they had to bind the present corporation by adopting the unauthorized contract of Morgan.

Entertaining the views expressed, it becomes our duty to affirm the judgment of the lower court.

Affirmed.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    FLEMING & ROBERSON v. FRED MILLER BREWING CO.
    (No. 8057.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 5, 1914.)
    LANDLORD AND TENANT (§ 34)—LEASE—CoN-DITIONS-r-LlCENSE.
    A lease of a building for the sale of liquor, stipulating that the lessee could cancel if unable to procure a license from the local authorities, does not require the lessee to sue in court to enforce his right to a license, and where an ordinance was passed putting such building in a prohibited district, and the lessee’s applications for license were refused, the lessee properly vacated and refused to pay rent for the balance of the term, though the ordinance was enjoined before final publication by other parties, and the city finally consented to abide by the injunction.
    [Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 97; Dec. Dig. § 34.]
    Error from District Court, Tarrant County; Marvin II. Brown, Judge. -
    Action by Fleming & Roberson against the Fred Miler Brewing Company. From a judgment for defendant, plaintiff brings error.
    Affirmed.
    Mike E. Smith and G. W. Dunaway, both of Ft. Worth, for plaintiff in error. Roy, Rowland & Young, for defendant in error.

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

   DUNKLIN, J.

James F. Moore leased a business house situated in the city of Ft. Worth to the Fred Miller Brewing Company for a period of one year. Before the expiration of that period, the lessee vacated the premises, and, having refused to pay the rent stipulated in the lease contract for the unexpired period, Fleming & Roberson, who purchased the property from the lessor, Moore, instituted this suit to recover rents for the period that was unexpired at the time the lessee vacated the building. From a judgment in favor of the defendant, plaintiff prosecutes this writ of error.

The lease contract contained this stipulation:

“It is hereby agreed that the lessee shall have the privilege and right to cancel this lease should it be unable to procure a license from the local authorities to sell beer and liquors in Tarrant county, or in the demised premises.”

The building was leased and used for the sale of beer and liquors.

Under the provisions of a special charter of the city, its board of commissioners had authority to confine the sale of intoxicating liquors within such district as might seem advisable, and, acting under that charter authority, the commissioners passed an ordinance fixing the territorial limits within which such trafile would be confined and prohibiting the same in all other parts of the city. The leased premises fell within the prohibited limits so fixed. Before vacating the building, the lessee made three applications for license to continue its business in the leased premises; the applications being made to the deputy tax collectors who were in charge of the business of issuing liquor licenses, and all of said applications were refused. Thereupon the lessee, acting under the stipulation contained in the lease quoted above, canceled the lease contract and vacated the premises. All rents were paid up to that date, and the only claim presented by the plaintiffs in this suit was for the sums that would have been due under the lease for the remainder of the year if the lease had continued in full force.

The ordinance was- passed September 15, 1909. On September 21, 1909, suit was instituted in the district court by other persons attacking the validity of the ordinance and seeking to enjoin the mayor and board of city commissioners from publishing the ordinance for the period of time required by the charter to put it in force, and prohibiting them from attempting to enforce the ordinance in the prohibited territory. A temporary writ of injunction was issued as prayed for. On November 3, 1909, upon trial of the ease before a jury, a judgment was rendered in favor of the plaintiff; the judgment being based upon a finding by the jury that the ordinance was unreasonable. On December 4, 1909, a new trial was granted on the motion of the city; but nothing further was ever done with the case, the city withdrawing any further opposition to the injunction and taking no further action to avoid it. Prior to the issuance of the injunction, the ordinance was published once; but by reason of the injunction further publication of the same for the period of time required by the city charter was prevented. It seems that, notwithstanding the ordinance, licenses were issued to other parties to sell beer and intoxicating liquors within the prohibited, district, but, according to the agreement of the parties appearing in the statement of facts in this case, the licenses so issued were issued by mistake on the part of the officials and would have been refused had such officials known that the premises so licensed were within the district prohibited by the ordinance.

Fleming & Roberson insist that as an injunction against the enforcement of the ordinance was granted by the district judge, who had jurisdiction to do so, it is apparent that the defendant by resort to judicial process could have forced the proper authorities of the city to grant a license for the pursuit of defendant’s business in the leased premises; that it was thus shown that defendant was able to procure such license, and therefore was not entitled to cancel the lease under the stipulation quoted above authorizing a cancellation of the same if the lessee should be “unable to procure license.” Hence the question to be decided is whether the strict construction of the contract invoked by Fleming & Roberson should obtain. Evidently, the trial judge construed the contract in the light of the surrounding circumstances and reached the conclusion that the parties thereto never contemplated that the lessee should be required to resort to the extreme measure of a suit for mandamus to compel the issuance of a license with the necessary expense and uncertainty incident to such suit, but that application for license made to the duly constituted authorities of the city would be the extent of the efforts that the lessee should make to procure such license. We are of the opinion that there was no error in that interpretation of the contract, and, as that ruling is the only specification of error presented here, the judgment is affirmed.

Affirmed.


author: CONNER, C. J.

text:
    KILLMAN v. YOUNG.
    (No. 8038.)
    Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 21, 1914.
    Rehearing Denied Dec. 19, 1914.)
    1. Appeal and Eeeoe (§ 736) — Questions Re viewable — Assignments — Multieabi-ousness.
    An assignment of error, which states that the court erred in overruling and in sustaining plaintiffs objections and exceptions to the general charge and in not charging as pointed out in the exceptions and objections, which, as set forth, consist of several paragraphs, one of which is divided into subdivisions, is objectionable as multifarious, where the paragraphs as a whole refer to different clauses of the court’s charge and embody several separate and distinct questions of law and of fact.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3028, 3029; Dec. Dig. § 736.]
    2. Appeal and Eeeoe (§ 722) — Assignments op Eeeoe — Specifications'.
    Though, under the law, a motion for new trial may constitute assignments of error, the statutes and rules governing the requisites of assignments of error prevail, and they must specify the errors complained of.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dec. Dig. § 722.]
    3. Pledges (§ 53) — Enforcement — Liability oe Pledgor.
    One delivering his chattels to a third person consenting to a pledge thereof by him to secure a loan for his own benefit is not liable for a personal judgment in favor of the pledgee, who can only foreclose the pledge in satisfaction of the debt.
    [Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 129-132; Dec. Dig. § 53.]
    4. Appeal and Erbob (§ 1169*) — Reversal— Erroneous Submission oe Issue.
    Where the court on appeal cannot determine on which of two issues the verdict was rendered, the error in instructions submitting one of the issues necessitates a reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4531-4539; Dec. Dig. § 1169.]
    5. Pledges (§ 57) — Enforcement — Rights and Liabilities of Parties.
    Where one pledged his chattels to secure a debt due from a third person to the pledgee, the pledgee, to foreclose the pledge, must first obtain a judgment establishing the debt.
    [Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 184, 185; Dec. Dig. § 57.]
    6. Replevin (§ 63)— Recovery — Burden oe Proof.
    An owner of chattels in the possession of another is entitled to recover the same, unless the latter shows his right to possession on grounds alleged in his special defenses, the burden of proving which is on him.
    [Ed. Note. — For other cases, see Replevin, Cent. Dig. §§ 225-238; Dec. Dig. § 63.].
    7. Replevin (§ 70) — Recovery—Burden oe Proof.
    The fact that plaintiff, suing for chattels in possession of defendant, alleged in her amended petition that she had not consented to a third person pledging’the chattels with defendant, and denying the effect of a bill of sale relied on by defendant, presented in the nature of defenses to special issues raised by defendant, did not constitute an assumption of the burden of proof, though proof of the facts alleged may be reguir-ed to defeat defendant’s defenses,
    [Ed. Note. — For other cases, see Replevin, Cent. Dig. §§ 280-284; Dec. Dig. § 70.]
    Appeal from Johnson County Court; J. B. Haynes, Judge.
    Action by Mrs. Nora Killman against L. B. Young. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded for new trial.
    Phillips & Rice, of Cleburne, for appellant. F. E. Johnson and Ramsey & Odell, all of Cleburne, for appellee.

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

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

   CONNER, C. J.

Mrs. Nora Killman instituted this suit for the recovery of three diamond rings alleged to be her property and to be in the defendant Young’s possession. Appellee, Young, answered to the effect that the rings had been deposited with him with the knowledge and consent of the plaintiff by one Creale to secure a promissory note of the said Creale’s for $110, which had been given for a loan of money to him, and which was unpaid. He further answered that, after the pledge stated, the plaintiff had been fully advised of the circumstances under which the defendant -obtained possession of the rings, and that she ratified and confirmed the delivery of the same to him as security for the loan mentioned, and alleged that, in consideration of the surrender to her of the note executed by Creale, she had assumed the Creale debt and executed a bill of sale to the rings to secure the debt so assumed by her. A trial before a jury resulted in a verdict and judgment in favor of the defendant, and the plaintiff has appealed.

Appellant’s first assignment must be disregarded as multifarious. It is that:

“The court erred in overruling and not sustaining plaintiff’s objections and exceptions to bis general charge and in not charging the jury the law of the case as pointed out in said exceptions and objections, which are as follows, to wit

Then follow the objections made consisting of the first, second, third, fourth, and fifth paragraphs, the fifth paragraph being further divided into the first, second, third, fourth, fifth, and sixth subdivisions; the paragraphs as a whole referring- to different clauses of the court’s charge and embodying several separate and distinct questions of law and of fact. The only proposition submitted under the assignment is that:

“The foregoing assignment of error sufficiently disclosing appellant’s objections, it is here adopted and submitted as a proposition under the first assignment of error.”

Such an assignment and proposition cannot be said to be of that specific character entitling them to consideration. The assignment is a copy of the first paragraph of appellant’s motion for new trial, but the fact that the motion for new trial by our amended law now constitutes the assignments of error does not render less necessary an observance of the statutes and rules which give the requisites of assignments of error. Appellant’s first assignment is accordingly overruled.

Appellant’s second assignment relates to a charge which authorized a verdict for the plaintiff and need not be considered.

The third assignment, however, we think well taken. It is that the court erred in the second paragraph of his charge, which is as follows:

“If you should believe, however, that said F. E. Creale for the purpose of obtaining a loan upon the same, or that the plaintiff consented that the said F. E. Creale might use said rings for the purpose of obtaining a loan, then you will find for the defendant.”

The error of this paragraph of the court’s charge is made manifest by the sixth paragraph, which reads as follows:

“If you find for the defendant, the form of your verdict will be as follows: ‘We, the jury, find in favor of the defendant against the plaintiff the sum of $110, with a foreclosure of Ms lien upon the diamonds in question.’ ”

The verdict rendered was in the form thus given and the judgment follows the verdict. It will be thus seen that the second paragraph of the court’s charge, when considered in connection with the sixth paragraph, required a finding of the jury against the appellant personally for the $110 indebtedness of Creale’s on the theory of the special defense that the plaintiff had merely delivered the rings to Creale and consented that he might pledge the same. There is nothing in the evidence that suggests that Creale borrowed the money in question for appellant, but, on the contrary, it seems undisputed that the money was secured for his own benefit ; and, while the defendant might be entitled to a foreclosure of a lien upon the rings in the event the jury found that the plaintiff had delivered the rings to Creale and consented that he might pledge them, such facts would not authorize a personal judgment against her in defendant’s favor.

Such a verdict and judgment was authorized only upon the theory of appellant’s second special defense, which was that plaintiff, for a sufficient consideration, later assumed the Creale debt, and which issue was likewise submitted to the jury. We have no means from the record before us of determining upon which issue the jury found in appellee’s favor, and we conclude, therefore, that the error is one for which the judgment must be reversed.

In this connection, and in view of another trial, we should perhaps also call attention to the fact that the record fails to disclose that Creale has been made a party to the suit, nor is any reason alleged for the failure. On the theory of the case that appellee merely consented to the pledge of her rings, the rings occupy the attitude of a surety, and a valid judgment establishing the debt to secure which the property had been pledged would be a condition precedent to a decree of foreclosure, and we fail to see just how such a judgment is to be secured under the circumstances stated.

It is further insisted in behalf of appellant that the court improperly put the burden of proof upon her, and we think, in view of the record, that this objection is well taken. It was undisputed that the rings in question were the property of appellant, and the court so instructed the jury. She therefore was entitled to recover their possession, unless appellee was able to support one or the other of the special defenses pleaded by him, the burden of establishing which it is very evident was upon him.

It is true that the plaintiff in her amended petition alleged that she had not consented to Creale’s pledge of the rings, and denied the legal effect of the bill of sale relied upon by appellee as her own obligation; but these allegations were merely in the nature of defenses to the special issues presented by ap-pellee, which the plaintiff anticipated. Proof of these facts may have been required to defeat appellee’s defenses, but, in the absence of such defenses, they certainly were not necessary to the plaintiff’s recovery; it being undisputed, as stated, that the rings belonged to her.

We conclude that the judgment must be reversed, and the cause remanded for a new trial.


text:
    WATSON et al. v. COCHRAN, County Judge.
    (No. 8150.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 28, 1914.)
    1. Constitutional Law (§ 68) — Injunction (§ 85*) — Elections—Declaration off Result.
    The courts have no power to enjoin the county court or judge from publishing election returns and declaring the result thereof pursuant to statute, irrespective of the validity of the statute.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 125-127; Dec. Dig. § 68; Injunction, Cent. Dig. §§ 155, 156; Dec. Dig. § 85.]
    2. Courts ( 90) — (Controlling Decisions.'
    A decision of the court of criminal appeals adjudging constitutional Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6319a-6319n, providing for local option elections to determine whether pool halls shall be prohibited in a county or any subdivision thereof, will be followed by a Court of, Civil Appeals, especially where another Court of Civil Appeals has also decided that the statute is valid, for the Court of Criminal Appeals has final jurisdiction in the determination of criminal prosecutions arising under the statute.
    TEd. Note. — For other cases, see Courts. Cent. Dig. §§ 313-321, 351; Dec. Dig. § 90.1
    3. Injunction .(§ 80) — Adequacy off Remedy at Law.
    Irregularities which may be invoked in a proceeding to contest a local option election to determine whether pool halls shall be prohibited in a county as provided by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6319k, are not grounds for an injunction to restrain the county court from publishing the result of the election and entering an order declaring the statute effective in the county.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 151; Dec. Dig. § 80.]
    Appeal from District Court, Nolan County; W. W. Beall, Judge.
    Action by Charles W. Watson and others against John H. Cochran, Jr., County Judge. From a judgment denying a temporary injunction, plaintiffs appeal.
    Affirmed.
    W. E. Ponder, of Mt. Pleasant, and A. B. Yantis, of Sweetwater, for appellants. Chas. W. Lewis and Geo. T. Wilson, both of Sweet-water, for appellee.

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

   DUNKLIN, J.

By the Acts of the Legislature of 1913 (Acts 33d Leg. c. 74) appearing in 4 Vernon’s Sayles’ Tex. Civ. Statutes as Title 107A, it was provided that the commissioners’ court of any county in the state '■‘may when they deem it expedient, and shall when petitioned by ten per cent, of the qualified voters of the county or a number of the qualified voters, equal to twenty per'cent, of the qualified voters of any political subdivision” mentioned in the act, order an election to be held to determine whether or not pool halls shall be prohibited in such county or subdivision thereof. The act then gives directions for the holding of such an election and by article 6319m, the same being section 14 of the act, it is provided that, if it be determined by a majority vote at such election that pool halls shall be prohibited, the district judge of such district may, upon application of the county attorney or district attorney, enjoin the operation of such halls. It is further provided by the act that, when such election results in favor of the prohibition of such pool halls, the operation of a .pool hall within the territory in which such prohibition applies shall be punished by fine or imprisonment in the county jail.

This suit was filed by Ohas. W. Watson and E. Cranfill in the district court of Nolan county against the county judge of said county, alleging that under the statute above mentioned an election was held on September 12, 1914, in Nolan county to determine whether or not the operation of pool halls should be prohibited in that county; that at such election 394 votes were cast for, and 280 votes against, prohibition of pool halls. It is further alleged that the election. was held in compliance with the petition theretofore presented to the commissioners’ court of Nolan county signed by the requisite number of qualified voters of the county. Plaintiffs further alleged that they were resident citizens, qualified voters, property owners, and taxpayers in said county; that they each were owners of a pool hall interest in that county in which they had invested large sums of money prior to said election; and that the prohibition of their said business would result in great financial loss and irreparable injury to them. They prayed for a writ of injunction restraining the defendant county judge from publishing the result of said election and from entering an order declaring the statute above mentioned effective in Nolan county, as required of him by articles 6319f and 6319g. The trial judge sustained general and special demurrers to the petition and refused plaintiffs’ application for a temporary writ of injunction based thereon. Prom that order plaintiffs have appealed.

The principal contention made by appellants’ assignments is that the pool hall statute referred to above is unconstitutional and void because it involves a delegation of legislative authority to counties and subdivisions thereof. In other words, that it delegates to counties and subdivisions of counties authority to enact a law prohibiting the operation- of pool halls' contrary to article 2, § 1, and article 3, § 1, of the Constitution, limiting the power of enacting laws exclusively to the Legislature, and that it delegates further to such counties and subdivisions thereof authority to suspend a law of the state contrary to article 1, § 28, of the Constitution, prohibiting the suspension of laws of the state by any authority except the Legislature, in that it revokes plaintiffs’ lawful right theretofore existing under the laws of the state of pursuing a business not prohibited by any law and expressly recognized as lawful by the statutes imposing a license tax thereon. The further contention is made that the statute is in conflict with article 1, § 19, of the state Constitution, providing that no citizen shall be deprived of his property, his privileges, or immunities, except by due course of law, and is a violation of the fourteenth amendment to the Constitution of the United States, prohibiting the enactment of any law by the state depriving any person of life, liberty, or property without due process of law, or denying to any person within its jurisdiction the equal protection of the laws.

In City of Austin v. Cemetery Ass’n, 87 Tex. 330, 28 S. W. 528, 47 Am. St. Rep. 114, and in Wade v. Nunnelly, 19 Tex. Civ. App. 256, 46 S. W. 668, it was held that an injunction will lie to restrain the enforcement of a void city ordinance where it is shown that the enforcement of the ordinance would result in irreparable injury to the applicant. It will be observed that in the two cases cited the injunctions granted were to restrain the enforcement of void ordinances, while in the present case plaintiffs seek to enjoin the county judge from publishing the returns of the election and making an order declaring the results thereof, as required of him by articles 6319f and 6319g, Vernon’s Sayles’ Tex. Civ. Stat. In City of Dallas v. Dallas Consol. Elec. St. Ry. Co., 148 S. W. 292, our Supreme Court held that courts have no power to enjoin the performance of such statutory duties, even though the statute be unconstitutional 'and void and even though parties complaining thereof may have a proper remedy against the enforcement of such a statute. This of itself would seem to be a sufficient answer to the assignments now under discussion. The constitutional objections to the statute noted already were discussed and overruled in the case of Roper & Gilley v. Lumpkins, 163 S. W. 110, by the Court of Civil Appeals for the Fifth District, and in Ex parte Francis, by the Court of Criminal Appeals reported in 165 S. W. 147. In the case last cited Justice Davidson filed a very forceful argument against the constitutionality of the statute, but as that court is a court of final jurisdiction for the determination of criminal prosecutions arising under the statute, and as it is in the interest of public policy that harmony, and not conflicts, should prevail between the decisions of that court and our Supreme Court and Courts of Civil Appeals upon tire same statutes, we feel that, if it were incumbent upon us to determine the question of the constitutionality of the statute, we should follow the decisions above cited without attempting a discussion of the merits of the arguments advanced in support of the majority and minority opinions rendered in Ex parte Francis.

It was further alleged in the petition, as a basis for the injunction sought, that the officers holding the election gave erroneous advice to several voters as to how to make out their ballots, thus causing many voters through misunderstanding to erase the words appearing on the ballots, “Against the Prohibition of Pool Halls,” leaving on such ballots, “For the Prohibition of Pool Halls,” when they intended to vote against the prohibition of such halls, and would have done so, but for such erroneous instructions by such officers of the election. Plaintiffs further allege that but for such erroneous instructions a majority of the votes polled would have been cast against the prohibition of pool halls. They alleged that they had been informed and believed such erroneous ballots had been cast at all the voting boxes in the county, that they were not advised of the names of such voters except two, but that they were informed that the officers holding the election would testify that such erroneous instructions were given by them.

If these allegations are true, they constitute irregularities which could have been invoked in a proceeding to contest the election as provided by article 6319k, Vernon’s Sayles’ Tex. Oiv. Stat., and hence did not constitute proper grounds for the injunction prayed for, by reason of that fact, and for the further reason that the acts of the county judge sought to be enjoined were statutory duties, which under the rule announced in City of Dallas v. Dallas Consol. Elec. St. Ry., supra, could not be enjoined even though it should appear that the election, if contested, would be declared invalid by reason of such irregularities.

The judgment is affirmed.


author: HIGGINS, J.

text:
    TEXAS & P. RY. CO. v. MILLER et al.
    (No. 378.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 17, 1914.)
    1.Judgment (§ 460) — Equitable Relief-Petition — Prayer.
    A suit in which the petition alleged that a judgment was obtained surreptitiously against a railway company, after the opposing attorneys had agreed to dismiss the case and prayed that a perpetual injunction be issued against the enforcement of the judgment and for other relief to which plaintiff might be entitled, was a suit to vacate the judgment; such relief being included within the general prayer.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 879, 880, 882-891; Dec. Dig. i 460.]
    2. Judgment (§ 456) — Equitable Relief-Limitation.
    Rev. St. 1911; art. 4648, limiting to one year the time within which to bring suit to enjoin the enforcement of a valid judgment, does not apply to a direct suit to vacate the judgment upon equitable grounds, the time for the commencement of which is limited to four years by article 5690, limiting actions for which no limitation is otherwise prescribed.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 863-866; Dec. Dig. § 456.]
    3. Judgment (§ 427) — Equitable Relief-Grounds — Agreement to Dismiss.
    Where a case had been remanded by the Court of Civil Appeals on appeal by defendant, with instructions to direct a verdict for defendant if no new facts were established on the second trial, an agreement by plaintiff’s attorney to dismiss the case was within the apparent scope of his authority, and a judgment thereafter taken by plaintiff through another attorney, without notice to defendant, must be vacated.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 805-807; Dee. Dig. § 427.]
    Appeal from Ward County Court; Burch Carson, Judge.
    Suit by the Texas & Pacific Railway Company against Ed Miller and another, to restrain the enforcement of a judgment against the railway company. From an order dis- • solving a preliminary injunction, plaintiff appeals.
    Reversed, and remanded.
    See, also, 127 S. W. 566.
    John B. Howard, of Pecos, for appellant. T. F. Slack, of Barstow, for appellees.

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

   HIGGINS, J.

Appellant filed this suit on February 18, 1914, alleging that on April 13, 1908, the defendants Ed and Jim Miller, filed suit in the justice court of Ward county against it, to recover the sum of $150, alleged to have been sustained through the killing of a horse by a locomotive belonging to said railway company; that said cause was tried in the justice court, and, from the judgment there rendered, an appeal taken to the county court, where it Was tried and judgment rendered against the railway company, from which judgment the company perfected an appeal to the Court of Civil Appeals at Ft. Worth, by which latter court the cause was reversed and remanded, with instructions to the lower court, upon retrial, to instruct a verdict in favor of the company, unless other facts be introduced tending to show negligence on the part of the company; that the mandate of said Court of Civil Appeals was issued September 24, 1910; that, during the time above mentioned, Hon. J. F. McKenzie was the attorney for the company and W. A. Hudson and J. E. Starley were attorneys for Ed and Jim Miller; that, at the time of the return of said mandate to the county court of Ward county, Hon. J. E. Starley was the county judge of the county and disqualified from taking any action in the said cause, by reason of his attorneyship for the Millers, and that Hudson, who continued to act for the Millers, advised Judge McKenzie, the company’s attorney, that said cause would not be further prosecuted, but he would permit same to remain upon the docket until there was a special judge who could dismiss the same, or until Judge Starley’s term of office should expire, when he would have the cause dismissed, agreeing that, under the opinion of the Court of Civil Appeals, the Millers had no cause of action; that Judge McKenzie informed John B. Howard, of Midland, Tex., who became the attorney for the company, representing it in all cases at Bar-stow (the county seat of Ward county), that plaintiff’s attorney had agreed to have said cause dismissed as soon as there was a judge upon the bench who was qualified to take such action; that thereafter uudson informed the said Howard that he would make a motion to dismiss said cause and would have same dismissed as soon as there was a judge upon the county court bench who was qualified to take such action, giving as his reason that the Court of Civil Appeals had passed upon the facts in the case, and in effect held that plaintiff had no cause of action; that, relying upon said representations of Millers’ attorney, he (plaintiff’s attorney) did not give further attention to said cause, in good faith believing that it would be dismissed as soon as a judge came upon the bench who was qualified to dismiss, and retying upon such promise of the attorney in the cause; that, at all times since the return of the mandate, the company has been ready and willing to try the case on its merits, and so informed the attorney for the Millers, but said attorney always informed these plaintiffs’ attorneys that'the case would not be tried, but would be dismissed, as above stated; that, in the latter part of the year 1912, the 1-Ion. Burch Carson became judge of said county court, and the plaintiff, retying upon the promise to dismiss, believed that the cause had been dimissed, and was no longer pending; that on the 4th day of February, 1913, at a regular term of said county court, the Millers appeared in court with an attorney, other than the said Hudson, and without any notice whatever to the company, or its attorney, or any one connected with it, took a default judgment against the company in the sum of $99; that neither the company, its attorneys or agents, had any notice or knowledge whatever of said proceedings in taking such judgment, and the company knew nothing of the judgment until long after the adjournment of the term at which it was rendered; that the Millers had procured the issuance of an execution on the judgment and placed same in the hands of H. C. Cantrell, sheriff of Ward county, who threatened to levy the same upon the company’s property and sell same to satisfy said judgment; that the judgment for $99 was surreptitiously obtained by the Millers, by them concealing from the company and its attorneys all knowledge of the fact that they intended to proceed in said cause; that the company has been imposed upon and advantage taken of it by the Millers. The petition concluded with the prayer that the Millers be restrained from proceeding further in the matter and Cantrell enjoined from levying said execution on any of the company’s property, and that on final hearing plaintiff have a perpetual injunction forever restraining said defendants, and each of them, from further prosecuting said writ of execution, “and for all other relief, legal and equitable, to which this plaintiff may be entitled.”

A preliminary injunction was forthwith issued, restraining the defendants as prayed for, and thereafter the defendants answered in the cause, pleading the terms and provisions of article 4648 of the Revised Statutes, and further that, if Hudson had agreed with the company’s attorney to dismiss the suit as alleged in the petition, such agreement was made without authority from the Millers and without their knowledge or consent, and that they at no time advised plaintiff, or its attorney, that they would have said suit dismissed; that Hudson had voluntarily severed his connection as their attorney in December, 1911, and that the judgment had not been surreptitiously obtained, but had been procured in open court after they (the Millers) had introduced their evidence and established their right to said judgment to the satisfaction of the court, aud in securing the judgment no undue advantage was taken, and, if the company was not present at the term of court at which the judgment was rendered, it was through no fault of theirs, but through its own negligence, or that of its attorneys, wherefore they prayed the injunction be dissolved. Upon this answer, the court in chambers dissolved the preliminary injunction theretofore issued, and from this 1 order the railway company prosecutes this appeal.

As we construe the. petition, it is a suit on equitable grounds to vacate the judgment rendered in Millers’ favor, and to enjoin its execution. It is true the special prayer of the petition asks only that a preliminary injunction be issued, and on final hearing it be perpetuated, and there is no specific prayer that the judgment be vacated and set aside. There is a general prayer, however, “for all other relief, legal and equitable, to which the plaintiff may be entitled.” The facts pleaded 'in the petition show that plaintiff is entitled to have the judgment vacated and its execution enjoined, and, • under this general prayer for relief, it would be entitled thereto upon the final hearing if the facts pleaded be substantiated by proof; the rule being that, under a prayer for general relief, there shall be awarded the appropriate relief to which, upon the allegations and proof, plaintiff may appear to be entitled. Garvin v. Hall, 83 Tex. 295, 18 S. W. 731; Kempner v. Ivory, 29 S. W. 538; Trammell v. Watson, 25 Tex. Supp. 216; Zadiek v. Schafer, 77 Tex. 501, 14 S. W. 153; Silberberg v. Pearson, 75 Tex. 290, 12 S. W. 850; McCullough v. Rucker, 53 Tex. Civ. App. 89, 115 S. W. 323; Cravens v. Wilson, 48 Tex. 324.

Since the petition, upon its face, shows that plaintiff is entitled to have the judgment complained of vacated and set aside, it-necessarily follows that its execution should be restrained, pending the final determination of the ease upon its merits. Article 4648 of the Revised Statutes, which inhibits the issuance of an injunction to stay the execution of a valid judgment after the expiration of one year from its rendition, does not apply to a direct suit based upon equitable grounds to vacate a judgment and enjoin its execution, and the period within which such a suit may be brought is fixed by article 5690 of the Revised Statutes. Lane v. Moon, 46 Tex. Civ. App. 625, 103 S. W. 211, and cases there cited.

With reference to that portion of the answer and motion to dissolve, setting up that, if Hudson agreed with the company’s attorneys to dismiss the suit, same was made without authority from the Millers, and without their knowledge or consent, it is sufficient to say that, in making this agreement, Hudson was certainly acting within the apparent scope of the authority possessed by an attorney in charge of litigation, and the company’s attorneys could rightfully assume that he, in fact, had the authority to make the agreement in question. The issue of actual authority in such case is immaterial, and the Millers are precluded from questioning same, since Hudson acted within the apparent scope of his authority, and it was relied upon and acted upon by the company’s attorneys. Under this view of the case, the other allegations set up in the answer and noted above are immaterial and present no defense. For the reasons indicated, the order of the lower court, dissolving the preliminary injunction, is reversed, and the cause remanded for trial upon its merits, and, pending final trial upon the merits, the preliminary injunction heretofore issued shall remain in full force and effect.

Reversed and remanded.


text:
    THOMAS et al. v. BARTHOLD et al.
    (No. 8014.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 24, 1914.
    Rehearing Denied Nov. 28, 1914.)
    1.Appeal and Error (§ 1003) — Review-Verdict.
    A verdict reasonably supported by the evidence will not be overturned because against the preponderance thereof.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1003]
    2. Corporations (§ 99) — Actions Against Directors — Improper Issuance op Stock.
    Directors, who received stock in return for a franchise, cannot be required to account for the stock by a dissatisfied stockholder, in the absence of a showing of the value of the franchise when acquired by the corporation, even though it appeared that the directors paid nothing for the franchise.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 444-446; Dec. Dig. § 99.]
    3. Appeal and Error (§ 1002) — Review-Verdict.
    A verdict on sharply conflicting evidence will not be disturbed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.] . •
    4. Appeal and Error (§ 548) — Bill of, Exceptions — Necessity.
    Assignments complaining of the admission of testimony will not be considered, unless preserved by bill of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 548.]
    5. Trial (§ 252) — Instructions — Sufficiency.
    Where a stockholder asserted he was damaged by the mismanagement of the directors, a charge on the duty of the directors, which did not submit any measure of damages to be allowed the stockholder, and did not confine itself to the issues of negligence, raised by the petition, is too general and must be refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    6. Corporations (§ 320) — Misconduct op Officers — Damages—Interest.
    Where a stockholder was damaged by the negligence of the directors, he can only recover 6 per cent, interest on his damages, which interest must not be compounded.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1426-1431, 1433-1439; Dec. Dig. § 320.]
    7. Corporations (§ 320) — Action Against— Parties — J oinder.
    Where plaintiff claimed he was induced to acquire stock in a corporation by the misrepresentations of the directors, and that his stock depreciated because of their negligent mismanagement, others, who acquired stock at different times, cannot intervene as parties plaintiff.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1426-1431, 1433-1439; Dec. Dig. § 320.] .
    8. Corporations (§ 320) — Directors—Actions Against.
    In an action by a dissatisfied stockholder, who asserted that the defendant directors mismanaged the corporate affairs, the question whether they failed to account for certain funds received held for the jury.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1426-1431, 1433-1439; Dec. Dig. § 320.]
    Error from District Court, Parker County; F. O. McKinsey, Judge.
    Action by H. D. Thomas and others against C. C. Barthold and others. There was a judgment awarding plaintiffs partial relief, and plaintiffs bring error.
    Affirmed.

      T. Wesley Hook, of Kingsville, and J. M. Rickards and Preston Martin, both of Weath-erford, for plaintiffs in error. R. L. Sten-nis, of Dallas, and Jas. C. Wilson, of Ft. Worth, for defendants in error.

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

   DUNKLIN, J.

H. D. Thomas recovered a judgment against C. C. Barthold, G. M. Bowie, G. S. White, and John Prince for $750 expended by him in the purchase of 7% shares of preferred stock in the Weather-ford Gas, Light, 1-Ieat & Power Company, a private corporation, of whom defendants were officers and directors, and from the further judgment rendered in the case denying him a recovery for the additional sum of $1,500, the amount paid by him for 15 shares of common stock in the same corporation, he has prosecuted a writ of error.

The basis of the claim asserted by plaintiff consisted in allegations, substantially, that defendants as officers of the corporation, and as constituting a majority of four out of a total of five of its board of directors and controlling and managing its affairs, were guilty of negligent mismanagement of the business of the company, thereby causing losses which rendered all of plaintiff’s stock worthless. One of the specifications of such mismanagement alleged to have of itself wrecked the company consisted in the act of defendants in borrowing $25,000 upon the promissory note of the company secured by mortgage upon all its assets, for the payment of which debt it became necessary thereafter to sell all the assets of the company and terminate its operations. This issue was presented in the court’s charge, but the verdict shows a finding for the defendant thereon.

Another contention presented in plaintiff's pleadings and submitted in the court’s charge was that defendants wrongfully sold all the assets of the company for an inadequate consideration to the Crystal Ice Company, another corporation, which was likewise controlled by the defendants, who were officers thereof, and who constituted a majority of its board of directors; that such sale terminated the business of the selling company, leaving it without assets, and thus rendering plaintiff's capital stock worthless. In the court’s charge this issue was presented to the jury, who were told that such sale was unauthorized in law if made without plaintiff’s consent, and that, if it should be found from the evidence that plaintiff sustained damage by reason of the sale, a verdict should be returned in plaintiff’s favor for the amount of damages so sustained by him. Upon this issue the jury likewise found in favor of the defendants.

Another contention made by plaintiff’s pleadings and submitted in the court’s eharge to the jury consisted in allegations that he was induced to subscribe for the 7% shares of preferred stock and to pay $750 therefor by reason of certain misrepresentations made to him by defendants, to induce him to subscribe for same, and of the falsity of which he was excusably ignorant at the time. The verdict of the jury shows a finding for plaintiff upon this issue, and the judgment in plaintiff’s favor was predicated upon that finding.

In plaintiff’s petition other issues of neg•ligent mismanagement were tendered, but the same were not submitted to the jury in the court’s charge; the issues noted above being the only ones submitted.

Numerous objections have been made by defendant in error to the consideration of the assignments presented in plaintiff in error’s brief, including objections for improper grouping, that propositions submitted under the assignments are not germane thereto, etc. It will not be necessary for us to consider such objections further than as hereinafter indicated, in view of our conclusion that plaintiff in error’s assignments present no reversible error.

In plaintiff in error’s motion for new trial filed in the trial court, it was alleged that the verdict of the jury was contrary to the law and the preponderance of the evidence in several particulars set out in separate paragraphs of the motion, and different assignments of error have been presented, each embodying one of those paragraphs. Each of those assignments reads: “The verdict is contrary to the law and the preponderance of the evidence in this” — following that statement with one of the paragraphs of the motion for new trial noted above. It is a sufiieient answer to all these assignments, to say that the fact that the verdict was contrary to a mere preponderance of the evidence would be no ground for sustaining the assignment of error in this court, since the rule is that, if there was any evidence beyond a mere scintilla to reasonably support the verdict, the judgment could not be disturbed by this court on the ground of insufliciency of evidence to support it. Furthermore, as a counter proposition to these assignments, the evidence shown in the statement of facts was abundantly ample to sustain the finding of the jury denying the plaintiff a recovery upon the two issues first noted above.

It might be said that the first three assignments are improperly grouped, since they raise different questions of law. However, independent of that objection, the'three propositions submitted under those assignments cannot be sustained. The first of those propositions presents the contention that plaintiff was induced to subscribe for his 15 shares of common stock by fraudulent misrepresentations made by the defendant. Even the plaintiff’s own testimony, independent of that óf the defendants, tends very strongly to show that no misrepresentations were made by the defendants in order to induce plaintiff to subscribe for the common stock. Two other propositions are submitted under the first three assignments, which are, in effect, that defendants were legally bound to account to the plaintiff for a part of the secret profits made by them upon the franchise granted to the corporation by the city of Weatherford to transact its business in that town. The evidence does show that the franchise was obtained without .the expenditure of any money by the defendants, who, after first obtaining the same, transferred it to the corporation, taking capital stock in the corporation in payment therefor. The propositions now under discussion proceed upon the theory that, as the franchise cost the defendants nothing, the stock issued to the defendants therefor was without any consideration, and that accordingly defendants should be held to an accounting therefor. A sufficient answer to these propositions is that no evidence was introduced tending to show the value of the franchise at the time it was acquired by the company. For aught that appears in the record, it may have been worth more than the face value of the stock issued to the defendants as a consideration therefor.

The fifth assignment reads as follows:

“The court erred in charging that but 6 per cent, could be recovered on the preferred stock, or but $2,250 exclusive of cost.”

This assignment is likewise improperly grouped with the fourth, which is that the verdict is contrary to the law and the preponderance of the evidence, and the proposition submitted thereunder might be disregarded on that ground. However, the first proposition under that assignment, namely, that the sale of all the assets by the gas company to the ice company was for an inadequate consideration, was at all events a disputed issue, and the negative of which seems to have been supported by evidence as cogent as that introduced to support the affirmative, to say the least.

Another assignment complaining of the admission of certain testimony over plaintiff’s objection thereto is overruled because there is no bill of exception to such ruling.

By the ninth assignment complaint is made of the refusal of the following special requested instruction:

“During its entire existence the defendants wore four of the five directors of the corporation, Weatherford Gas, Light, Heat & Power Company. As such they were the managing agents of the company. They were bound to exercise, in the handling of its affairs, such diligence as a reasonably prudent, careful, and skillful man would exercise in the conduct of his own affairs. If you find that they remained ignorant of what they might have discovered by the exercise of good business diligence, or if you find that they did not themselves, even though they employed inferior officers, exercise a reasonable supervision of the affairs of said company, or if you find that they neglected their duties as directors in failing to hold sufficient directors’ meetings, and as a result the corporate funds or property were wasted or lost, you will find for the plaintiff, with interest from date of such negligence at the rate of 6 per cent, per annum.”

There was no error in refusing that instruction for the reason that it was entirely too general in that it did not submit any measure of damages to be allowed to the plaintiff and was not confined and applied to the issues of negligent mismanagement,, as the same were' alleged in plaintiff’s petition.

Another assignment reads as follows:

“The verdict of the jury was insufficient for the reason that it did not find interest at 10 per cent, and compound it annually.”

We know of no rule which would allow a recovery of more than 6 per cent, interest on the damages alleged in the plaintiff’s petition. Neither are we aware -of any- statute- or decision which would allow such interest, to be compounded.

The foregoing disposes of all of the assignments of error presented by plaintiff in error H. D. Thomas, who was the sole plaintiff in the suit.

F. R. Putnam, W. J. Milmo, Alex Rawlins, and Wm. Hemphill, who also purchased stock in the Weatherford Gas, Light, 1-Ieat & Power Company, filed separate pleas of intervention in the suit. Bach alleged in his plea that he was induced to purchase stock in the same corporation by fraudulent misrepresentations of the defendants, and further adopted portions of plaintiff’s petition alleging negligent mismanagement of the-affairs of the company by the defendants. According to the allegations contained in the-pleas of intervention, the purchases of stock by interveners were on dates and in amounts different from each other and from the purchases of the plaintiff, and each of such purchases constituted a transaction separate and distinct from any of such other purchases. Exceptions to these pleas of intervention urged by the defendants on the ground of misjoinder of parties and of causes of action were sustained, and to this action of the court errors have been assigned by the interveners. As indicated by statements already made relative to the causes of action asserted by plaintiff and the interveners, it is clear that there was no error in sustaining the exceptions.

Defendants in error have presented the following cross-assignment of error;:

“The court erred in refusing to give special charge No. 1 requested by the defendants in writing as follows: ‘Gentlemen of the Jury: You are instructed to find for defendants.’ ”

Much evidence is quoted to refute all the allegations relied on in plaintiff’s petition as a basis for recovery. But plaintiff introduced a witness, an expert accountant, who testified that he had examined the books of the company, together with the checks issued, and that it appeared therefrom that defendants had failed to account for sevé’ral thousands of dollars which had come into their hands as the officers of the company. While the evidence offered by the defendants tended strongly to overcome that testimony, yet we are unable to say that such rebutting proof was so conclusive as to warrant the court in taking that issue from the jury. The fact that the issue of mismanagement which- was embraced in plaintiff’s petition was not submitted to the jury in the court’s charge makes no difference, since the merits of the assignment now under discussion must be determined independent of that fact.

Eor the reasons noted, all assignments of error are overruled, and the' judgment is affirmed.


text:
    CHILSON v. OHEIM.
    (No. 8029.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 31, 1914.)
    1. Evidence (§ 130) — Res Inter Amos Acta.
    In an action against a landlord on a promise to pay for goods furnished his tenant, that the landlord had given checks to the tenant to buy groceries with is -res inter alios acta.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 403; Dec. Dig. § 130.]
    2. Trial (§ 121) — Argument oe Counsel-Deduction erom Evidence.
    In an action against a landlord on a promise to pay for groceries furnished Ms tenant, the deduction of counsel in argument from the proven fact that the landlord stood for the tenant in 1910 that it was likely that he again stood for him in 1911, the year in controversy, is permissible.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 29A-298, 300; Dee. Dig. § 121.]
    3. New Trial (§ 103) — Newly Discovered Evidence — Materiality.
    Where, in an action on an alleged promise of a landlord to pay for groceries furnished his tenant, it was proved that the _ landlord made such a promise in 1910, and plaintiff testified that he made the same promise in 1911, when plaintiff’s claim was presented, and he afterwards reminded the clerk of the conversation, newly discovered evidence consisting of the affidavit of the clerk that he once heard such a conversation, but that he never had any conversation with plaintiff about it, though tending to discredit plaintiff’s testimony, is not so material to the issue as to render the refusal of a motion for a new trial reversible.
    [Ed, Note. — For other cases, see New Trial, Cent. Dig. §§ 215-217; Dec. Dig. § 103.]
    Appeal from Clay County Court; W. T. Allen, Judge.
    Action by H. Oheim against W. H. Chilson. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Wantland & Parrish, of Henrietta, for appellant. R. E. Taylor and Leslie Humphrey, both of Henrietta, for appellee.

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

   DUNKLIN, J.

H. Oheim instituted this suit against W. H. Chilson to recover an indebtedness incurred by Joe Moore for groceries purchased by him from plaintiff, who was at the time engaged in the mercantile business. Plaintiff alleged that before the goods were sold to Moore, Chilson contracted and agreed to pay therefor, and that the sales were upon the faith of that agreement. Erom a judgment in favor of plaintiff, Chil-son has appealed.

The account in controversy accrued during the year 1911, and during the years 1910 and 1911 Moore was a tenant on Chilson’s farm. The evidence shows without controversy that plaintiff sold groceries to Moore during the year 1910, upon the credit of defendant,, who afterwards paid the account. Plaintiff testified that prior to any of the sales made in 1911 defendant requested him to furnish Moore groceries for that year, and promised to pay for same just as he had promised during the previous year. Defendant unequivocally denied making that contract, and further testified that at the time he paid the account incurred in 1910' he expressly notified plaintiff that he would not be responsible for any more goods sold to Moore.

Defendant offered to testify that from time to time during the' year 1911 he gave Moore checks amounting in the aggregate to the sum of $153.55, with which to buy groceries for himself and family for the season of 1911. He also offered in evidence checks signed by him payable to Joe Moore, with indorsements upon the same, of divers dates during the year 1911, amounting in the aggregate to the sum above stated. All of this evidence was objected to by the plaintiff because the same related to transactions between Chilson and Moore alone, and was therefore irrelevant to the issues in this case. These objections were sustained, and to those rulings error has been assigned. The following decisions are cited in support of the assignment: Carver v. Power State Bank, 164 S. W. 892; Paine v. Argyle Merc. Co., 133 S. W. 895; Kocher v. Mayberry, 15 Tex. Civ. App. 342, 39 S. W. 604. In those decisions it was held, in effect, that where there is a dispute in the testimony as to the price agreed to be paid for certain articles of property, evidence of the reasonable value of the same is admissible as a circumstance helpful to the solution of the conflict in the testimony of the witnesses upon that issue. We are of the opinion that the evidence offered came within the rule which excludes proof of transactions between either of the parties and strangers, and for that reason there was no error in excluding it. Stuart v. Kohlberg, 53 S. W. 596, Beakley v. Rainier, 78 S. W. 702, Stockton v. Brown, 106 S. W. 423, and other decisions noted in 6 Encyc. Dig. of Texas Repts. pp. 1189, 1190; 1 Jones’ Blue Book of Evidence, § 140. Proof of the market value of an article is proof of a circumstance only, which, like proof of custom and other circumstances, does not come within the rule of res inter alios acta, and hence the decisions relied on by appellant and noted above are not in point. 1 Jones’ Blue Book of Evidence, § 141a.

There was no error in the court’s refusal to exclude the argument of plaintiff’s counsel which was objected to by the defendant, and upon which plaintiff’s second assignment of error is predicated. The argument was, in effect, that as Chilson had stood for Moore in the year 1910, it was quite natural that he would stand for him again in 1911. We think this was a deduction that counsel had a right to draw.

Another assignment is addressed to the refusal of the court to grant a new trial upon the showing made by the defendant of newly discovered evidence. Plaintiff testified on the trial that in February or March, 1911, before any of the goods were sold to Moore, and when the defendant agreed to pay for such goods as might be furnished to Moore during that year, Ms clerk, J. M. Raker, was present and heard the conversation; that thereafter he reminded Baker of the conversation; and, further, that when Chilson so agreed to pay the account, he (plaintiff) remarked that Chilson was as good as gold. The affidavit of said J. M. Baker was attached to the defendant’s motion for new trial. He states in that affidavit that he was present and heard a conversation between Chilson and Oheim in which the former told the latter he would pay for any goods that might be furnished to Joe Moore, and that he would pay the bills monthly, and that, in reply thereto, Oheim said he considered Chilson as good as gold; that after that time goods were sold to Moore and paid for by the defendant about the 1st of each month; that thereafter Oheim refused Moore further credit. The witness further stated in the affidavit that the conversation just referred to was the only one he ever heard in which the defendant agreed to pay for any goods sold to Moore, and that he never discussed such conversation with Oheim at any time. It is true that this evidence would have tended to discredit the testimony of the plaintiff upon that issue. But whether or not Baker was present at the time of the alleged agreement was collateral to the main issue, and not of such a material character as to require a reversal of the judgment for the refusal of appellant’s motion for a new trial. Fears v. Albea, 69 Tex. 437, 6 S. W. 286, 5 Am. St. Rep. 78, G., C. & S. F. Ry. Co. v. Hays, 40 Tex. Civ. App. 162, 89 S. W. 29, and other decisions cited in 13 Encyc. Dig. Tex. Repts. 457.

The judgment is affirmed.


text:
    HOLLAND v. PIERCE-FORDYCE OIL ASS’N.
    (No. 8027.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 31, 1914.)
    Sales (§ 71) — Conteact—Construction. * Where defendant agreed to sell 15,000 gallons or such additional quantities of gasoline, not exceeding 25,000 gallons, as plaintiff might order for his own consumption during a year, defendant cannot be required to supply gasoline beyond the minimum amount, except for plaintiff’s own use during the term of the contract.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 189-196; Dec. Dig. § 71.]
    Appeal from Taylor County Court; E. M. Overshiner, Judge.
    Action by Kirk D. Holland against the Pierce-Fordyce Oil Association, wMch counterclaimed. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Scarborough & Hickman, of Abilene, for appellant. J. M. Wagstaff, of Abilene, for appellee.

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

   CONNER, C. J.

On April 1, 1912, by contract in writing, appellee agreed to sell and deliver to appellant “during a period of 12 months commencing April 1, 1912, 15,000 gallons, or such additional quantities of pennant gasoline or engine naphtha as the second party (appellant) may order for its own consumption, not exceeding, however, 25,000 gallons of engine naphtha at nine cents per gallon.” As the findings of the court show, appellant, who operated a line of autos for the transportation of passengers and freight, and who also supplied the retail trade of several towns in which he maintained garages, at various times during the year covered by the contract ordered and received 15,000 gallons of gasoline under the contract; the last order so received being 6,000 gallons on March 13, 1913. On the 26th of March, 1913, he ordered 10,000 gallons additional, which, for the most part, he had sold at wholesale, but which appel-lee refused to deliver, on the ground that the order did not come within the terms of the contract. On the 27th’ of March, 1913, appellant again ordered 10,000 gallons for his own use in operating his autos and to supply his retail trade with gasoline. Ap-pellee again declined to fill the order, and this suit was instituted by appellant to recover the difference in price of the oil so ordered as contracted for and as worth on the market, at the time of the refusal to deliver. The defendant by its answer contested the plaintiff’s claim and pleaded over upon an unpaid balance of account in the sum of $298. The trial, which was before the court without a jury, resulted in a judgment against the plaintiff upon his claim and in favor of the defendant oil colnpany on its cross-action for the sum of $213.10.

The only question presented is whether appellant, under the terms of his contract, had the legal right a few days before the expiration of his contract to order the 10,-000 gallons of gasoline for use after the contract had expired. The trial court concluded that he had no such right, aid we concur in that conclusion. It is evident from the court’s conclusions of fact that the oil last ordered was not necessary for the appellant’s use during the operation of the contract, which we think only bound appel-lee. to deliver beyond the minimum number of gallons named in the contract (15,000) such gasoline as was required for his own consumption. A very similar contract was so construed by the Court oí Civil Appeals for the Fourth District in the case of Gulf Ref. Co. v. Pegues Merc. Co., 164 S. W. 1113.

On the authority of that case and of the cases therein cited, the trial court’s conclusions of fact and law are adopted, and the judgment is affirmed.


author: CONNER, O. J.

text:
    FT. WORTH HORSE & MULE CO. v. BURNETT.
    (No. 8024.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 31, 1914.)
    Appeal and Error (§ 1001*) — 'Verdict—Con-
    CLTJSIVENESS.
    Where there is evidence to support the verdict, it cannot be disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.*]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Action by the Ft. Worth Horse & Mule Company against S. Q. Burnett. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    M. B. Harris, of Ft. Worth, for appellant. Speer & Weldon, of Bowie, and McLean, Scott, McLean & Bradley, of Ft. Worth, for appellee.
   CONNER, O. J.

Appellant sued in the district court to recover a balance alleged to be due on account for the sum of $2,429.08. The defendant, among other things, denied various items of the account as stated in an exhibit to the plaintiff’s petition, and alleged that he was entitled to a number of credits which the plaintiff had not allowed, the defendant stating the items disputed and the credits he claimed, the account as so stated by defendant showing an indebtedness in his favor for the sum of $1,369.62, for which he prayed a recovery. The trial before a jury resulted in a verdict in favor of the defendant for the sum of $223.42, from which the plaintiff appealed.

We think no useful purpose is to be served by a discussion of appellee’s objections to the assignments of error. Regardless of such objections, therefore, we will state that the only material question sought to be presented is whether the evidence is sufficient to support the verdict and judgment, and we think it very plainly is. It appears that the defendant Burnett was a dealer in horses and mules on his own account, and also as a member of a firm composed of himself and R. P. Fox. It further appears that the appellant company furnished the money upon which both Burnett and the firm operated, and that when stock was bought, Burnett or the firm, as the case was, would draw upon the appellant company in payment therefor, and when such stock was sold the proceeds would be remitted to the appellant company and credit therefor given either the individual or firm engaged in the transaction. In this way a large number of debits and credits arose which, as stated by the appellant company, amounted to the balance for which they sued, but appellee, Burnett distinctly testified to certain items which he specified in his testimony had been incorrectly charged against him, and as distinctly testified to a number of credits to which he was entitled that had not been given him, leaving the balance according to his testimony in his favor. Appellant sought to show by affidavit of one of the jurors after' the trial that the verdict had been arrived at by allowing the defendant credit for four checks, which the evidence showed had been credited to the firm. The trial court evidently disregarded this affidavit, and regardless of whether the affidavit is entitled to any consideration, it is apparent that if the items of the plaintiff’s account which the defendant distinctly denied be deducted from the balance against him as stated in the plaintiff’s petition, and that from the remainder there be deducted the credits not given, to which the defendant also distinctly testified was his right, the balance amounts to the sum found by the jury in the defendant’s favor. We do not see how we can disregard this testimony of the defendant.

The judgment is accordingly affirmed.


text:
    CONNELLEE et al. v. CHAS. C. THOMPSON CO.
    (No. 8026.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 31, 1914.)
    Sales (§ 418) — Breach of Contract — Profits — Notice.
    Though the seller breached its contract by delaying shipments of books, and the purchaser lost profits he would have made on resale, he cannot recover such profits, where the seller had no notice of the expected profits.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174-1201; Dec. Dig. § 41S.]
    Appeal from Eastland County Court; E. A. Hill, Judge.
    Action by the Charles C. Thompson Company against C. U. and R. S. Connellee, who counterclaimed. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    D. G. Hunt, of' Eastland, for appellants., Earl Conner, of Eastland, for appellee.

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

   DUNKLIN, J.

The Chas. C. Thompson Company instituted this suit against R. S. Connellee and C.' Ü. Connellee to recover an indebtedness claimed against R. S. Connellee as principal and against C. U. Connellee as guarantor.

R. S. Connellee was engaged in the business of selling books at auction, and the indebtedness for which plaintiff sought a recovery was for sales made covering several months; the purchases having been made at different times and in different amounts. R. S. Connellee was a traveling salesman, and would order the books from plaintiff, doing business in the city of Chicago, to be shipped to different towns, where he would sell them at auction on certain days previously advertised by him. Before plaintiff agreed to extend credit for such purchases, it required, and was given, the written guaranty, to the extent of $500, of the defendant C. U. Connellee, the uncle of R. S. Connellee. The defendant R. S. Connellee filed a counterclaim against the plaintiff, alleging, in substance, that plaintiff had breached its contract in delaying shipments of certain orders to certain towns at which he had previously advertised sales, and that, by reason of such delays, he was unable to meet such appoint-_ ments, and by reason thereof, lost profits in a sum named, which was in excess of the amount of plaintiff’s demand.

The case was tried by the court without the aid of a jury, and his findings of fact and conclusion of law appear in the record. The counterclaim was denied by the trial judge, and judgment was rendered in plaintiff’s favor for the amount of its demand. Defendants have appealed.

But one assignment of error is presented here, which reads:

“The court below erred in finding and rendering judgment accordingly that defendant R. S. Connellee was not entitled to recover damages against the plaintiffs on his cross-action by reason of their breach of the contract they had entered into with the plaintiffs.”

This assignment is not a copy of any paragraph of appellant’s motion for new trial which appears in the record, but was filed in the trial court separately as an assignment of error. By reason of that fact, and upon the further proposition that the assignment is too general, appellee objects to a consideration thereof. It is unnecessary to determine the merits of these objections, since the judgment should be affirmed for the reasons hereinafter stated.

The court found, in effect, that plaintiff breached its contract by delaying certain shipments of books to R. S. Connellee, and that by reason of such delays R. S. Connel-lee lost profits in his business as a salesman of the books at public auction in the sum of $360. But the court further made the following finding:

“I find that plaintiffs had no notice of the expected profits testified about by R. S. Connellee that he contemplated making by the sale of the books and goods purchased from plaintiffs.”

This finding has not been challenged by any assignment presented here, and under it no other judgment could have been rendered than to deny a recovery of the profits so claimed by R. S. Connellee.

Therefore the judgment is affirmed.

Affirmed.