author: RICE, J.

text:
    JOHNSON et al. v. GOLDSTEIN et al.

    (No. 5411.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 23, 1914.
    On Motion for Rehearing, Feb. 10, 1915.)
    1. Wills <@=>590 — Devise—Use and Occupation — Peesonal Use.
    A devise of the use and occupation of land passes an estate in the land to the devisee which is not confined to his personal use and occupation unless the context clearly calls for such limited construction.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1293-1297; Dec. Dig. <@=>590.]
    2. Wills <@=>614 — Construction — Use and Occupation op Land.
    Testatrix devised to her stepson her homestead to be used by him as a home during his life, he to pay taxes and insurance, make needful repairs, etc.; the remainder after his dea'th to the issue of his body, etc. She thereupon devised the residue of her estate to her executor in trust to pay a portion of the income to the stepson for life, remainder to the heirs of his body, and' in default of heirs the property to be used for a specific charity. Held, that the will vested in the stepson an estate for life in the homestead property, and not a mere right of personal use, and hence on his abandonment of his homestead right therein his estate was subject to execution.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1393-1416; Dec. Dig! <@=>614.]
    3. Homestead <©=>175 — Abandonment—Execution Sale.
    On abandonment of a homestead, it becomes a subject of sale for the owner’s debts.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 375-378; Dec. Dig. <@=>175.]
    4. Homestead <@=>164 — Abandonment.
    Where the owner of a life estate in a homestead in Texas left the state and became a citizen of California and later brought suit in the federal courts in Texas alleging his citizenship in California to establish diverse citizenship, there was an abandonment of his homestead exemption in the property rendering it subject to the execution.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 318; Dec. Dig. <@=>164.]
    On Motion for Rehearing.
    5. Execution <@^=250 — Sales—Price—Inadequacy.
    A judgment debtor who was no longer a young man had a life estate in certain real property which produced a revenue of $50 per month. He was required to keep it insured and in repair and pay the taxes, and, after living on the property for a while, he abandoned it as a home and removed from the state. Held, that a sale of the defendant’s estate therein on execution for $100' was not objectionable for inadequacy of price.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 703-707, 789; Dec. Dig. <@=>250.]
    Appeal from District Court, McLennan County ; Tom L. McCullough, Judge.
    Action by I. A. Goldstein and others against William Johnson and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Downs & Webb, of Waco, for appellants. H. C. Lindsey, of Waco, for appellees.

       Writ of error pending in Supreme Court.

   Statement of the Case.

RICE, J.

This suit was brought by appel-lees against appellant Johnson to recover the title and possession of a certain house and premises, consisting of, about 10 acres of land, situated in the city of AVaco, wherein judgment was rendered in favor of appellees, from which appellants have prosecuted this appeal. It was tried as an agreed case under the statute (article 1949, Vernon’s Sayies’ Civ. Stat.), and involves: First, the construction of item 9 of the will of Joanna McClelland, deceased, whereby she devised said premises to Peter McClelland; and, second, whether he had abandoned his homestead rights therein at the time of the levy of the execution and sale thereunder to appellees.

Mrs. Joanna McClelland, who died on the 27th of January, 1897, during her lifetime was the owner in fee simple of the land and premises sued for and described in appellees’ petition; and by her last will and testament, which was duly probated in the county court of McLennan county on the 5th day of May, 1897, she made the following disposition of said property.

“Item 9. I further give and bequeath to my said beloved stepson, Peter McClelland, my homestead place to be used and enjoyed by him as a home to live at for and during his natural life, he to keep the taxes and insurance paid thereon and make all needful repairs, and remainder over upon his death to the issues of his body bom in lawful wedlock. In default of such issue, then the same shall revert to my general estate disposed of as hereinafter provided.”

Item 10 of said will provides as follows:

“I hold divers and sundry notes against my said stepson. Peter McClelland, which notes I paid off as security to protect him, and which judgments I paid off to further protect him, which I desire my executor to cancel and surrender to Mm on my death, amounting to about $25,000 at this time.”

Item 11 provides that:

“All the residue of my estate I may die possessed of after satisfying the foregoing judgments, I bequeath to Jno. K. Rose, my executor hereinafter named, to be held by him in trust, however, for and during the natural life of my said stepson, Peter McClelland for the following named uses and trusts, to wit: Out of the revenue thereof my said executor shall pay taxes and keep the buildings belonging to said estate insured, and shall pay the premiums thereon, and shall pay all necessary costs and expenses to preserve this estate, that in his judgment may be necessary, and may employ attorneys for that purpose and pay the same, and shall make all necessary repairs and improvements to keep the property in good condition to rent, and may retain ten per cent, on all monies received and paid to him for his trouble in the care of my estate; and further sum of ten per cent, of all the revenues of said estate shall be set aside as a contingent fund until such contingent fund shall amount to the sum of $5,000, and in such manner such contingent fund shall be kept up, and then such contingent fund shall be loaned yearly on good security and such terms as my executor shall think best, which contingent fund shall be held in reserve by said executor to aid in rebuilding the property, should any of said property be destroyed by fire or otherwise, so as to keep up the revenues of my estate; and the residue of said revenues and income of my estate shall be paid over by my executor to my said stepson, Peter McClel-land, monthly as the same may accrue, to be used and enjoyed by him as he may see fit as long as he may live; and upon his death my said executor shall turn over all that remains of my said estate then in his hands or under his control to the issue of the body of my said stepson. Peter McClelland, born to him in lawful wedlock, and in default of such issue all of my estate in the hands and under the control of my executor shall pass as provided in item 12, the next clause hereinafter in this will.”

Item 12 provides that:

“Upon the failure of isssue of the body of said Peter as provided in item 11 herein, and upon his death as aforesaid, I bequeath to the city of Waco all the remainder of my estate so in the hands of my executor or under his control, to be used or sold and converted into money, at the discretion of said city, for the following purposes; To build, establish and maintain a ward or wards as a part of the city hospital of the city of Waco, connected therewith, or at a separate place in said city, to be called the ‘Joanna McClelland Ward,’ for the sole use of females entitled or to be used under the ordinances of the city of Waco to entry and care therein, requiring only of the city of Waco and its proper discretion in the use and application of this bequest in a spirit of charity.”

By item 13, John K. Rose, one of the parties to this suit, was appointed executor without bond, for the purpose of carrying out the provisions of said will. The property sued for herein, with improvements, was shown to have been of the value of $20,000, the improvements consisting of a two-story brick building, servant houses, outhouses, stables, barns, fences, etc., and were of the value of $10,000; and such property was of said values, respectively, when Mrs. McClelland died, and when the said Peter moved thereon, the rental value of which was $50 per month.

Peter McClelland, who has a wife and two stepdaughters, but no children of his own, moved with his said family into said property about the 5th of May, 1S97, and lived thereon as his home until about the 1st day of January, 1909, when he with his wife and her said daughters left said property and moved to the state of California, in which state he has since resided; that he on his removal brought suit in the federal court at Waco, in the Western district of Texas, describing himself as a resident citizen of California, and that said suit is still pending and being prosecuted.

Plaintiffs in this action, Isaac A. Goldstein and Louey Migel, suing as partners under the firm name of Goldstein & Migel, recovered judgment in the county court of McLennan county on the 10th of March, 1892, against said Peter McClelland for the sum of $572.16, the costs of court and interest on said judgment at 10 per cent, per annum, which judgment was kept alive by the timely issuance of executions. On the 4th of February, 1913, said parties purchased said property at sheriff’s sale for the sum of $100, which, after satisfying the costs, was credited upon the execution, and the sheriff made to them a deed to said land and premises, conveying to them all the right, title, and interest which the said Peter McClelland owned or possessed therein on January 15, 1913, which deed was thereafter duly recorded in the deed records | of McLennan county. At the time of the ex- ; eeution of the will of Mrs. Joanna McClel- ! land, Peter McClelland was insolvent, with ! several judgments outstanding against him, . which was known to her. That the defendant ; Johnson, at the time of the levy of the cxeeu- [ tion and sale above referred to, was in posses-I sion of the property, with the knowledge and consent of Peter McClelland.

Opinion.

It is insisted by appellants that said i null vested no title or estate in said property i in Peter McClelland, but only conferred upon j him the right of personal use thereof, and i that therefore appellees acquired no title by reason of said sheriff’s sale and purchase i thereunder. It is, however, admitted by ap- . pellants that a devise of the use and occupa- ' tion of land passes an estate therein, and that it is not confined to a personal use and i occupation of the property, unless the context | of the will clearly calls for a more limited ' construction, which they contend, however is ; the case here. See Jarman on Wills (6th Am. Ed.) 759; Schouler on Wills, 503; 40 Cyc.; 1537, 1572; Maeck v. Nason, 21 Vt. 115, 52 Am. Dec. 42. It is true that in construing a ! will all of its provisions should be looked to for the purpose of ascertaining the real intention of the testator. We believe that item 9 conveyed a life estate in said property to Peter McClelland, and that there is nothing in the subsequent clauses of the will, all of which, pertinent hereto, have been hereinbe-fore set out, that would defeat this construction; but, on the contrary, we think said clauses tend to support and uphold this view. By a subsequent clause of the will the bulk of the property had been given to Rose, in trust for the benefit of said Peter during his natural life, directing, however, that the revenues arising therefrom should be used by said trustee: First, for the purpose of preserving the property and providing for a contingent fund to restore the same in the event of loss; and, second, he was directed to pay the residue of said revenues and income, less certain commissions, to Peter McClelland, for his personal use and enjoyment. Having by item 9 given Peter the homestead, which she must have known under the law could not have been taken from him for his debts unless he should abandon it, she then provides for his maintenance and support during his life by item 11; so that, when we construe these two items together with other sections of the will, we must conclude that it was her evident intention to convey an absolute life estate, rather than a mere personal use in this property, to Peter. We therefore overrule the first assignment.

The homestead becomes tbe subject of sale, if the same is abandoned. See Cline v. Upton, 56 Tex. 319; Reece et al. v. Renfro, 68 Tex. 192, 4 S. W. 545; Woolfolk v. Rickets, 41 Tex. 362; McElroy v. McGoflin, 68 Tex. 208, 4 S. W. 547. See, also, authorities collated in Harris’ Constitution, art. 16, § 51, p. 853, under the head of Abandonment. We think the facts above recited show that, at the time of the levy upon and sale of his property, Peter McClelland had moved from the state of Texas, and had become a citizen of the state of California; for which reason said property was subject to levy and sale. Peter McClelland is not a party to this suit, and is not resisting it in person; nor does it appear that he authorized Johnson (who may be regarded as his tenant at will) so to do, for which reason appellees insist that the question of homestead is a personal privilege to be exercised only by the homesteader himself, and that this defense cannot be made by another for him. While this contention is plausible, yet no authority is cited in support thereof. This doctrine, however, seems to have been held in many states with reference to exemptions as to personal property (see 18 Cyc. pp. 1468B and 1469); but we know of no decision, and have been referred to none, applying it to homestead exemptions in this state; but, as a determination of this question is not necessary to a decision of this case, we do not undertake to pass thereon. Believing, however, that at the time of the levy, sale, and purchase thereunder the property had been abandoned as a homestead by Peter McClelland, and that the homestead exemption no longer obtained in his favor, appellants’ second assignment must be overruled, and the judgment of the trial court sustained. It is therefore in all things affirmed.

Judgment affirmed.

On Motion for Rehearing.

Counsel for appellant reassert in their motion for rehearing that the court erred in holding: First, that the will of Mrs. Joanna McClelland conveyed a life estate in the property in question to Peter McClelland; and, second, that it erred in holding that he had abandoned his homestead rights therein, citing in support of the first contention two cases not hitherto referred to, each of which we have carefully considered. We believe, notwithstanding one of said authorities supports the contention of appellant, that the weight of authority is otherwise; a few of which We think is not amiss to add to those heretofore cited.

In 40 Cyc., at page 1615, par. 3, it is said:

“A gift of the use, possession or enjoyment of property for life or sometimes without limitation in time, gives a life estate. A right to live on the property for life creates a life estate in it” — citing numerous cases in support of the text;' among others, Lewis v. Palmer, 46 Conn. 454, which holds that there is no difference between the devise of real estate for life, and a devise of the use of such real estate for life.

See, also, 40 Cent. Dig. Subject, Wills, § 1411, p. 2014.

In Beall v. Drane, 25 Ga. 430, the devise was:

“I reserve the tract-for the use of J. W. during his natural life, or so much thereof as he can cultivate for his support, and at his death the same to revert back to my estate, but said land shall not be liable for the debts or contracts of the said J. W.”

It was held that this gave J. W. a life estate in the whole tract, to be used and occupied by him for cultivation only.

In Newman v. Willetts, 52 Ill. 98, a will read:

“I leave and bequeath all the property-of which I may die possessed to my said wife. This legacy is made in usufruct, and during the lifetime of my said wife; at her death the whole of it will revert to the children which I have or may have from said marriage.”

Held, that the widow on the death of her husband took a life estate which was subject to execution.

In Davidson v. ICoehler, 76 Ind. 398, the will directed that the use and occupation and the rents and profits of certain real estate should be allowed and paid for to the testator’s wife during her natural life, for her support and for the support and education of his minor son, and that after her death, and after such soh should attain his majority, the land should then be divided among the testator’s children then living, share and share alike. Held that, on the death of the testator in 1844 in the same month as that in which the will was made, the wife took a life estate and the children a vested remainder.

In Pace v. Burlingame, 75 Iiun, 432, 27 N. • Y. Supp. 674, it was held that only a life estate passes under a will which provides that:

“I give and bequeath to my wife, Johanna Jones, my real estate in the town of Willett, and appurtenances thereunto belonging, together with all my household furniture, or rather the use thereof during the period that she may live and remain my widow.”

In re Metcalf’s Estate [Sur.] 6 Misc. Rep. 524, 27 N. Y. Supp. 879, and In re Dawborn, Id., where testatrix devised to her husband, who was also the executor of the will, the use “of all my property, both personal and real,” and also provided that “I wish my property to be equally divided between my nephew and nieces” (naming them), held, that the executor took a life estate only, with remainder to the nephew and nieces.

In Schwartz v. Gehring, 7 Ohio Cir. Ct. R. 426, the words in a will “ T give, devise and bequeath to my wife, the use of all my real and personal property * * * to be used by her during her natural lifetime,’ ” creates a life estate in her, so that the income which she had accumulated therefrom at the time of her death belongs to her estate and did not pass under the clause of the husband’s will giving and devising after the deatli of bis wife “all my said real and personal estate.”

A devise of two rooms in a bouse, “desiring that W. may have a shelter for life,” gives W. an estate for life in the rooms of which she may make any disposition. It is not a mere easement for her personal convenience. See Wustlioff: v. Dracourt, 3 Watts (Pa.) 240.

In 40 Cyc. 1616, § 4, it is said:

“The gift of rents, profits or income for life, although not expressly limited for life, may create a life estate.”

The item in the present will “give and bequeath the homestead place to Peter McClel-land to be enjoyed by him as a home to live at for and during his natural lifetime,” etc. It would seem unquestionable, in view of the authorities above cited, that a life estate was created by said will, and not a mere personal use, as appellant contends. Under this clause of the will, Peter McClelland and his family moved into the property shortly after said will was probated, and lived there until 1909, when he left the state and moved with his family to California, where they still reside; after which he brought a suit in the Circuit Court of the Western District of Texas, claiming to be a citizen of California, which suit is still pending and being prosecuted by him. This, we think, shows an abandonment of his homestead rights. The question of abandonment is one for the determination of the jury or the court, in the absence of a jury, under all the circumstances of the case.

It has been held that the removal of a debtor and his family from his homestead without intention to return will destroy the right of exemption, although a new homestead is not acquired. 21 Cyc. 599, 600. See, also, Texas cases cited in notes 40 and 41 thereunder.

Where the owner of a homestead removes from the state, intending to change his place of residence, he thereby forfeits his exemption in the land upon which he resided. See Knox v. Yoe, 91 Ga. 367, 17 S. E. 654; Trawick v. Harris, 8 Tex. 312. It is true thatemporary absence due to necessity, or such absence for purposes of business, pleasure, or on account of health or sending children to school, etc., will not forfeit such right. 21 Cyc. 600, 601. But if the absence is prolonged it may, however, where there is no fixed intention to return, constitute an abandonment. See 21 Cyc. 602, 603.

Generally, abandonment is almost entirely a question of intent, and does not depend upon the homesteader’s doing or not doing particular acts. 21 Cyc. 603. The intent may be gathered, however, from the facts and circumstances attending the removal or absence from the homestead, as well as from the express declarations of the homesteader himself.

It is said in the same authority (page 605) that a prolonged absence will not raise a conclusive presumption that the homestead has been abandoned; but when such absence is continued for a number of years, and there is no act or circumstance which shows an intention to return and occupy the homestead, the length of absence may become a controlling circumstance. In most cases where abandonment is the issue, the person claiming the homestead exemption has usually returned with the view and for the purpose of asserting his homestead rights in the property supposed to have been abandoned; and in such cases the evidence either showed a temporary removal, or circumstances negativing the fact that the party intended to permanently abandon the property.

In the present case, Peter McClelland had not returned; he is still absent with his family in California; he is still asserting that he is a citizen of said state by the prosecution of the suit mentioned in the federal court; he is not even a party to this litigation, and, so far as the record discloses, has no intention of returning to Texas or asserting any homestead right in this property. He has been absent from the state since 1909. Soon after his removal he filed the suit in the federal court declaring that he was a citizen of California. This declaration may be regarded as continuous, since he is still prosecuting the suit as a citizen of California. There is nothing in the record to controvert the fact that his residence there is intended as permanent, and that he has abandoned his homestead in Texas. It does not even appear from the record that Mc-Clelland authorized appellant Johnson to assert homestead rights for'him. The trial court has found, under these circumstances, that Peter McClelland had abandoned his homestead right in the property, and that the same is subject to levy and sale, and we do not feel disposed to disturb such finding. To hold otherwise would be to thrust the benefit of homestead upon one not asserting such claim.

The appellant for the first time has suggested' in his motion for rehearing that the property was sold for an inadequate price. This is not regarded as material, however, since the purchasers only obtained á life estate in the property, which may terminate at any time. The record indicates that Peter McClelland is no longer a young man. Besides, the will requires him to keep the property insured, pay the taxes, and keep the same in repair, which is a considerable charge within itself, especially when it is recalled that the property only brings a revenue of $50 per month, which may of itself furnish sufficient reason, if any is necessary, for his abandoning it as a home.

For the reasons indicated, we think the motion for rehearing should be overruled, and it is so ordered.

Motion oyerruled.
      <gu»For outer cases see same topic and K E Y - NU M B it R in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    BOESEN v. COUNTY OF POTTER.
    (No. 710.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 16, 1915.
    Rehearing Denied Feb. 13, 1915.)
    1. Counties <&wkey;149 — Classification of Claims Against by Statute — Constitutional Provision — Character of Debt for Printing Delinquent Tax Dist.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1433, classifying claims against counties into three classes, and article 1438, making a division of the county revenue into three corresponding kinds for the payment respectively of such claims, the claim of a publisher for printing the county delinquent tax list, to be paid as when the taxes were collected, would be part of the general county funds for the payment of ordinary current expenses, so that Const, art. 11, § 5, providing that no debt shall be created by any municipality unless provision at the same time be made for its extinguishment through a sinking fund, did not apply to a contract between the publisher and the county court for printing the delinquent tax list.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 214; Dec. Dig. <@=149.]
    2. Counties <@=3149 — Debt for Publishing Delinquent Tax Lists — Statutory Provision for Extinction — Constitutional Limitation.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7687 (Rev. St. 1911, art. 7687), providing for the publication of delinquent tax lists by counties, makes special provision for the extinction of the debt in the clause providing for an assessment against the land of a 25-cont publication fee, so as to render valid the contract of a county court for the publication of such lists by complying with Const, art. 11, § 5, providing that no municipality shall contract a debt without making provision for its extinction.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 214; Dec. Dig. <@=>149.1
    3. Counties <@=149 — Debt Incurred in Publication of Delinquent Tax Lists — Statute Providing for Payment — Constitutional Limitation.
    Where a fund for the payment of a county debt to be contracted has been raised or provided for by statute or constitutional provision, there is no necessity that the county court should provide for its payment at the time of contracting under Const, art. 11, § 5, providing that no municipality shall contract a debt without making provision for its payment.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 214; Dec. Dig. <§=149J
    4. Counties <&wkey;149 — Debt Incurred in Publishing Delinquent Tax Lists — Constitutional Limitation.
    Where statute gives precedence to tax suits over all others, and where the betterment of the county’s finances, good faith toward the plaintiff, and the punctual performance of official duty demanded promptness by county officials in collecting delinquent taxes, in a suit against it by a publisher of delinquent tax lists, payment therefor to be made as taxes were collected, a county cannot be heard to claim that such a debt was not a current expense payable in the current year, but a future debt, so that, when contracted, provision should have been made for its payment under Const, art. 11, § 5, forbidding municipalities to contract debts without providing for payment thereof.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 214; Dec. Dig. <¿=149.]
    5. Counties <@=149 — Contracts Implied — Invalid Express Contract — Publication of Delinquent Tax Lists.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7087 (Rev. St. Í911, art. 7687), requires the county commissioners’ court to pay for the publishing. of delinquent tax lists, so bringing the debt within the exception of obligations imposed by law to Const, art. 11, § 5, providing that no municipality shall contract a debt unless provision is made for its payment.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 214; Dec. Dig. <@=149J
    6. Contracts <@=214r — Implied Conditions— Time of Payment.
    Where a contract sets no time for performance and fixes no time for payment, and the happening of the event which is to mature its obligation as to payment depends entirely upon the defendant, the law implies an obligation upon him to pay within a reasonable time.
    [Ed. Note. — For .other cases, see Contracts, Cent. Dig. §§ 9S0-995; Dec. Dig. <&wkey;214.]
    Appeal from District Court, Potter County ; J. N. Browning, Judge.
    Action by P. E. Boeson against the County of Potter. Judgment of dismissal, and plaintiff apxieals.
    Reversed and remanded.
    I-Iugli L. Umplires, of Amarillo, for appellant. Gustavus & Jackson and R. C. Johnson, all of Amarillo, for appellee.
   HALL, J.

This suit was instituted in the district court of Potter county, by appellant, Boesen, to recover an amount alleged to be due Mm for publishing the delinquent tax list of Potter county. Omitting the formal allegations, his first amended original petition, upon which the case was tried, is as follows:

“(3) Heretofore, to wit, on the 21st day of September, 1907, the plaintiff and defendant made and entered into the following contract and agreement, to wit: ‘September 21st, 1907. It is ordered by the court that the proposition of P. E. Boesen, to publish the delinquent tax record, be accepted and spread on the minutes of the court, as follows, to wit: “To the Members of the Commissioners’ Court of Potter County, State of Texas — Gentlemen: Pursuant to your request for an estimate on the cost of the publication of the delinquent tax list of Potter county, Texas, for the years 1885 to 1905, inclusive, a copy of which has been submitted to me, I hereby agree to publish said delinquent list in the Weekly Herald, published at Amarillo, Texas, for three consecutive weeks, at 25 cents per description. Payment for publication to be made as delinquent taxes are paid into the hands of the tax collector. As a consideration of this agreement I ask that all legal citations upon unknown or unrepresented delinquents be ordered published in the aforesaid Weekly Herald. Respectfully submitted. P. E. Boesen.” It is further ordered by the court that one copy of said delinquent tax records be delivered to said P. E. Boesen, editor of the Amarillo Weekly Herald, a weekly newspaper published in Potter county, for publication, and that one copy be delivered to the clerk for use in making a delinquent tax record of Potter county, and that one copy of said record be sent to the state comptroller.’
“(4) Said contract set forth in paragraph 3 of this petition was drawn by the county judge of the defendant, Hon. Sam R. Merrill, while said judge and the commissioners of the defendant were holding a special term of the commissioners’ court for said defendant at the courthouse of the defendant; and while said court was in session, said order accepting the proposition of plaintiff, as the same was drawn by said county judge, was made and entered on the minutes of said court in volume 4, p. 148, and said proposition and order so spread on said minutes constitutes a contract between plaintiff and defendant.
“(5) By the terms of said contract the plaintiff became bound and liable and obligated to the defendant to publish said delinquent tax list in accordance with the contract, with the copy submitted, and with the law, within a reasonable time after said contract was so made and entered into between plaintiff and defendant, and defendant became liable and bound and obligated to plaintiff, and promised to pay him the sum of 25. cents per description for each description contained in said • delinquent tax list so published, within a reasonable time after such delinquent tax list was so published and accepted by defendant.
“(6) Said delinquent tax list was promptly and within a reasonable time published by plaintiff, in accordance with the contract aforesaid, and in accordance with the copy submitted to him, and in accordance with the law, and the same, as published, was correct in all things, was acceptable to, and so accepted by, the defendant, and said delinquent tax list, as published by plaintiff, is now, and has been at all times since said publication and acceptance, the duly recorded tax list and record for defendant, for the years 1885 to 1905, inclusive. Said delinquent tax list so published by the plaintiff contained 14,800 descriptions, for the publication of which defendant, by the terms of said contract set forth in paragraph 3 hereof, promised, agreed, bound, and obligated itself to pay the plaintiff the sum of $3,700, in a reasonable time, and said sum is due and unpaid.
“(7) Upon the publication and acceptance of said delinquent tax list as aforesaid, it became and was the duty of the defendant, under the terms of said contract set forth in paragraph 3 hereof, and under the law, within a reasonable time, to cause suit to be filed in the name of the state of Texas, in the district court of the county of Potter, against the delinquents named in said list, and against the property described therein, and cause publication and citation to unknown and unrepresented delinquents, in each suit so filed, in the Weekly Herald, a newspaper published in-said county and owned by plaintiff. Plaintiff is informed and verily believes, and so charges the facts to be, that at least 1,000 suits would be required and at least 1,000 citations would be published in carrying out this part of said contract by defendant, and that plaintiff would have earned thereby the sum of at least $5,000 in the publication of such citations, over and above all his expenses in publishing such citations.
“ (8) Defendant has wholly failed and refused to cause suits to be filed and citations to be published as provided by the terms of said contract, and as it is alleged in paragraph 7 hereof to be the duty of defendant to do, except as to about 12 suits, to the plaintiff’s damage in the sum of $5,000, which amount plaintiff claims because of the defendant’s breach and violation of its contract in failing to cause such suits to be instituted and citations published, as aforesaid, and said sum is due and unpaid.
“(9) Said delinquent tax list is now in the hands of defendant, and has been ever since its said publication and acceptance, and plaintiff has no right or interest in said list, and no power under the law7 to enforce the collection of delinquent taxes, or the payment of said taxes to the tax collector, although he has often and repeatedly attempted to get the defendant to enforce the collection of such taxes and to pay him the sums that are due and owing him on account of the said publication of said delinquent tax list, but plaintiff has received as the proceeds of so publishing such list only the sum of $275, as he verily believes and charges to be the fact. It is now about six years since said list was published by plaintiff and accepted by defendant, and it is unreasonable for plaintiff to wait longer for defendant to perform its duties and obligations under said contract and under the law. hive years from the date of such publication and acceptance is a reasonable time in which defendant would have performed its duties and obligations under said contract, and plaintiff is entitled to interest on the sums of money due him under said contract from the time when such sums became due. Plaintiff has presented his claim to the commissioners’ court of defendant for said sums, and said claim has been disallowed. Such claim is hereto attached, marked ‘Exhibit A,’ and made a part hereof.
“(10) Pleading in the alternative, plaintiff' says that, if he should be mistaken as to his rights and duties,' and those of the defendant, under the contract and under the law, as to the time and manner in which plaintiff is entitled to payment for publication of said list set forth in paragraph 5 hereof, then he alleges that at all events he is entitled to compensation as herein-before alleged — ‘payment for publication to be made as delinquent taxes are paid into the hands of the tax collector’ — and for the purpose of this alternative pleading plaintiff alleges that he is informed and verily believes, and so charges tho fact to be, that payment was made of delinquent taxes set forth in said list to an amount equal to the sum of $3,700, and interest on that sum at the rate of 6 per cent, per year, same being received by the tax collector and paid into the treasury of the defendant. And plaintiff says that by reason of the facts alleged in this paragraph of this pleading, defendant is due and owing plaintiff the sum of $3,700, and said interest, which it has failed and refused to pay, to plaintiff’s damage in said sum.
“(11) Plaintiff, pleading in the alternative, again says, if he should be mistaken as to the rights and duties of plaintiff and defendant with respect to payment and the time and manner thereof, as alleged in paragraph 5 hereof, yet it is a fact that said list was published by the-plaintiff in accordance with the copy submitted an_d with the law, and said list was correct in all things, -was acceptable to, and accepted by, the defendant, and is now, and has been, the duly recorded delinquent tax list, and recorded ever since said publication and acceptance as alleged herein, and defendant became bound and liable and obligated to pay the plaintiff reasonable compensation for his services within a reasonable time. Reasonable compensation for such publication is $3,700, and plaintiff admits receiving $275. Reasonable time for making payment under the circumstances is five years from date of publication and acceptance by defendant. By reason of the facts alleged in this paragraph of this pleading the defendant is due and owing plaintiff $3,700, less the credit, with interest thereon as aforesaid, to plaintiff’s damage in such sum.
“(12) Under any construction of the facts as alleged as a basis for this action, as set forth herein, whether on the original or alternative allegations of debt and liability of defendant to plaintiff, the plaintiff charges that upon the acceptance of said list as published by the plaintiff it became the duty of defendant, under the law, to institute and prosecute suits, and cause this to be done, against delinquents in said list, and to have enforced the collection of taxes due and- owing the defendant by the delinquents. Said list was a valuable one to defendant, increasing the tax values to the amount of $3,-700, the amount it was accepted by the commissioners’ court, and the law made it the‘duty of the defendant to enforce the collection of said taxes and read into said contract the duties and obligations imposed upon each party of the contract by statute, so that the duties and obligations resting upon the county of Potter, defendant, as set forth by statute, became a part of said contract. Plaintiff relied upon the defendant carrying out its duties under the contract and under the statute, in making said contract, in carrying out his duties and obligations. He has performed all the duties and obligations resting upon him, but the defendant has breached and violated its part of said contract and duties and obligations, to plaintiff’s great damage aforesaid, and which damage would not have been occasioned and sustained by plaintiff if defendant had performed its duties and obligations under the law and under said contract.
“Wherefore, premises considered, plaintiff sues and prays that on final hearing he have judgment for his debt, interest, costs of suit, and for his damages, and for such other and further relief, general and special, in law and in equity, as he may be entitled to.”
Exhibit A.
“Amarillo, Texas, August 11,1913. “To the Honorable Commissioners’ Court of Potter County, Texas:
“On the 21st day of September, 1907, a proposition was submitted to the commissioners’ court by P. E. Boesen, for the publication of delinquent tax lists for the years from 1885 to 1905 for Potter county, Tex., which proposition was accepted by said commissioners’ court for said county, and therefore became a valid contract, being entered upon the minutes of said court in volume 4, p. 148.
“As a basis for the making of said contract, the commissioners’ court and the individual members thereof promised and agreed that the collection of said delinquent taxes contained in said list would be speedily enforced, and that suits would be instituted promptly and the tax of 25 cents which should be taxed against each tract for every description would be collected by law or otherwise within a reasonable time.
“Said delinquent list was published by P. E. Boesen in the Weekly Herald, as required by law, publication being completed in the fall of 1907, and the work was correct, in accordance with the copy submitted to him, and according to the law, was acceptable to the county of Potter and the commissioners’ court, and was approved in all things as the duly published and authorized delinquent tax list for Potter county for said years.
“The enforcement of collection of said delinquent tax list was never undertaken in such a way as to accomplish the result contemplated by the county and P. E. Boesen at the time of making such contract, and no diligence has ever been exercised by the county in the collection of such taxes, so that only a few tracts, comparatively, have been collected for, and so that P. E. Boesen has remained, without his money that would have been collected for him under said contract that he would have otherwise gotten if the county had enforced the collection of such delinquent taxes, as it was the duty of the county to do under the law, and under the terms of said contract, and under the promises and agreements and representations of the commissioners’ court and the individual members thereof prior to the making of the said contract aforesaid.
“P. E. Boesen says that five year's is a reasonable time in which the taxes against the property named in said delinquent list could have been collected, and would have been collected, if any diligence had been exercised by the court and the officers of said county in pursuing their duties- and the law, and that, on account of the failure of the county to use said .diligence and to bring.suits and to prosecute them to'judgment against all of such, delinquents, and to have the land sold under order of the court in satisfaction of said judgment, that P. E. Boesen has beep damaged in the sum of $3,425, on account of printing 14,800 descriptions in said delinquent tax list, upon which he has recovered only $275, whereas he should have received 25 cents per description, and he has been damaged in said amount the sum of $201.50 per annum as interest on said amount at the rate of 6 per- cent, per annum, from the expiration of five years after the date of publication of said list as aforesaid.
“As evidence of the promises and agreements of the county that suits would be instituted for the collection of said taxes, it is provided that P. E. Boesen should get the citations to publish, and it is charged that only a few suits were filed, and he lost the profits he would have made under that feature of the contract, all on account of the neglect of the county to bring and prosecute such suits as aforesaid, to his damage in the sum of $5,000.
“Said delinquent tax list is in the hands of the commissioners’ court and the officers acting for said county, and is not under the control of P. E. Boesen in. any manner whatever. The publication of said list caused the taxes against property in said county to be increased $3,700, to which extent said Potter county has been enriched by the publication of said list, and which amount is secured by the property listed in said delinquent tax list, at the rate of 25 cents per description; so that the county of Potter has received the benefit of the service of P. E. Boesen in the publication of said list, and have given him nothing in return, although, if the officers of said county had been diligent in the performance of their duty, as is enjoined upon them by law, and in carrying out their promises, representations, and agreements to the effect that prompt enforcement of collection of said taxes would be carried out, P. E. Boesen would have received the benefit named in said contract.
“Wherefore P. E. Boesen now here presents his claim to said county of Potter for the items of indebtedness, interest, and damages which he says is justly due and owing him on account of the neglect and failure of the commissioners’ court and officers of said county that are charged with the duty of enforcing collection of delinquent taxes, in the particulars aforesaid, and he prays that this claim be allowed and the clerk of said court be ordered to pay said amounts of damage, interest, and indebtedness to said P. E. Boesen.”

The court sustained the general demurrer to the petition, and, appellant having declined to amend, judgment was entered dismissing the case, from which this appeal is prosecuted. The very question presented here was decided in the case of Wichita Falls v. Skeen, 18 Tex. Civ. App. 632, 45 S. W. 1037, in favor of appellant’s contention. Stephens, J., without discussing the matter at length, said:

“With reference to the second defense, we are of opinion that the current expense of printing delinquent tax lists, which is incidental to the exercise of the vital taxing powers of a municipal corporation, is to he regarded as an item of ordinary expenditure. McNeal v. City of Waco [89 Tex. 83] 33 S. W. 323.”

If such an undertaking is an item of ordinary expenditure and a part of the current expenses of the city, it is, of course, not necessary to make special provisions for its payment under the Constitution (article 11, §§ 5, 7). Should an unusual expenditure of a considerable sum be ordered by the commissioners’ court, such as would be required in the construction of an expensive jail or courthouse, a debt is created to which the constitutional restriction applies; but we do not believe it was intended that the creation of a debt of this class, which may in some instances amount to a nominal sum, should be accompanied by all the ceremony and ritualism required where a drainage of the exchequer of the county is threatened. Cases may arise where the taxes upon only one tract of land are unpaid, and yet, according to appellee’s contention, the commissioners’ court must be called together in solemn conclave, and all the formulary of the law obeyed, before an honest debt of two bits against the county could be paid. The fact that a snug sum is involved in this litigation does not influence our opinion of what the general-rule should be in such cases. In Ault v. Hill County, 102 Tex. 335, 110 S. W. 359, Williams, J., said:

“No levy of a tax was made to provide a special fund to pay the amount agreed to be paid for the improvements; the commissioners who made the contract intending to pay it out of the current revenues. Had the money been on hand, or had the prospect of collecting it out of the taxes legitimately levied for general county purposes been such as to justify a reasonable expectation that it would be on hand, to meet the payments on the contract as they fell due, we should have a question very different from that which is presented by the facts.”

According to statutory classification of claims (Vernon’s Sayles’ Civil Statutes, art. 1433) and funds (Id. art. 1438), the publisher’s fee would be, when collected, a part of the general fund of the county, and subject to the payment of general debts and current expenses. It is therefore, in our opinion, not within the purview of section 5, art. 11, of the Constitution. City of San Antonio v. Serna, 45 Tex. Civ. App. 341, 99 S. W. 875; City of San Antonio v. Tobin, 45 Tex. Civ. App. 631, 101 S. W. 209. AVe feel that we could safely rest a determination of this appeal upon the decision in the Wichita Ealls-Skeen Case, supra; but, if it should be insisted that the current expenses are such as are necessary in the administration of the affairs of the municipality, and not specially provided for, still we think appellee’s contention is unsound. Our construction of article 7687, Vernon’s Sayles’ Civil Statutes (R. S. 1911), is that the Legislature, in providing for the taxation of a fee of 25 cents against each tract of land advertised to pay the expense of publishing the delinquent tax list, has made this special provision.

In the McNeal Case, 89 Tex. S3, 33 S. W. 323, we find this language by Denman, J.;

“These constitutional provisions were intended as restraints upon the power of municipal corporations to contract that class of pecuniary liabilities not to be satisfied out of the current revenues or other funds within their control, lawfully applicable thereto, and which would therefore, at the date of the contract, be an unprovided for liability, and properly included within the general meaning of the word ‘debt.’ They have no application, however, to that class of pecuniary obligations in good faith intended 'to be, and lawfully, payable out of either the current revenues for the year of the contract or any other fund within the immediate control of the corporation. Such obligations being provided for at the time of their creation, so that in the due course of the transactions they are to be satisfied by the provisions made, it would be an unreasonable construction of the Constitution to hold them debts, within its meaning, so as to require the levy of a wholly unnecessary tax upon the citizen. * ■ * * Payment of such claims being lawfully provided for, in such way that their satisfaction in the due course of business is reasonably certain, they are, in legal contemplation, so far satisfied as to be considered as not com-templated by the constitutional provisions, though it may result, from some cause not provided against by the law, such as a failure to collect the taxes, * * * that they are not' paid from the contemplated sources.”

Article 7687, R. S. 1911, requires the commissioners’ court to have the tax list published, and specifically provides that a publisher’s fee of 25 cents, and no more, shall be taxed against eaeb tract of land advertised, and that the fee when collected shall be paid into tbe county treasury. In making each fee of 25 cents a lien upon a tract of land, the Legislature has already provided a certain fund to reimburse the county for the sum paid for publishing the list. We see no necessity for the commissioners’ court to make further provisions for its payment under article 11 of the Constitution. This ,fée of 25 cents for each tract of land “is a fund within the immediate control of the corporation.” The municipality has but to collect it to make it available. Even though provision should be made for the payment of the debt under article 11 of the Constitution, the County would still be required to collect this fee. There is never any necessity for a provision for the payment of interest and a sinking fund where a fund has already been raised or provided by the Legislature or the Constitution. Berlin Iron Bridge Co. v. San Antonio, 50 S. W. 408.

In Mitchell County v. City National Bank, 91 Tex. 361, 43 S. W. 880, Judge Brown said:

“The Legislature has the power to make all such ‘provision’ for counties and cities, or it may leave it to the officers of such corporation to make it when the debt is created. If made by either, it is sufficient.”

In that case it was held that the acts of 18S1 and 1884 made such provision as the Constitution required. The language of article 7687, supra, is even more definite and specific in making “provision” than the act referred to by Judge Brown. It is further said by Judge Brown in that case:

“It was not the purpose of the (constitutional) convention, in adopting the foregoing article (11), to require that a city or county should, at the time of creating a debt, ascertain the rate per cent, required to be levied upon the taxable values of the county in order to raise, a sufficient sum to pay the interest and provide a sinking fund upon that debt, and to actually levy that rate of 'tax at the time. Bassett v. City of El Paso, 88 Tex. 175, 30 S. W. 893. in the case cited the city of El Paso had at the time that it determined to issue its bonds, by an ordinance, provided for the collection annually of a given sum for the purpose of paying the interest which might accrue upon the said bonds, and also a given sum to be raised annually as a sinking fund. This court said: ‘The language and purpose of these provisions (of the Constitution) seem to be satisfied by an order providing for the annual collection by taxation of a sufficient sum to pay the interest thereon, and create a sinking fund, etc., though it does not fix the rate or per cent, of taxation for each year by which such sum is to be collected, . but leaves the fixing of such rate for each, successive year to the commissioners’ court or city council. * * * As stated above, we have not deemed it necessary to determine whether the order of August 11, 1893, actually levied a tax, as we are. of the opinion that it fully complied with the law by making provision for the collection of the interest and sinking fund by taxation.’ What the Constitution requires is that provision shall be made at the time, or shall have been previously made, by which the rate of tax to be levied is so definitely fixed — as was done in the case last cited— that it becomes merely a ministerial act to determine the rate to be levied.”

In the instant case the article of the statute cited above determines the rate, levies the tax, provides an absolute method for its collection, and orders it paid into the general fund of the county for the specific purpose of satisfying the identical debt sued for by the appellant. The following cases announce the same doctrine: Presidio County v. Nat’l Bank, 20 Tex. Civ. App. 511, 44 S. W. 1069; Hardeman County v. Hoard County, 19 Tex. Civ. App. 212, 47 S. W. 30; Wright v. City of San Antonio, 50 S. W. 407; Berlin Bridge Co. v. City of San Antonio, supra.

While we agree with the holding of Judge Stephens in the Wichita Falls-Skeen Case, supra, that this is not a debt within the meaning of the Constitution (article 11), nevertheless, if we are mistaken in such conclusion, the above-cited authorities sustain us in the position that the Legislature made the necessary “provision” when article 7087, R. S. 1911, was enacted. In the case of City of Cleburne v. Gutta Percha & R. Co., 127 S. W. 1072, the true test of the character of the debt is stated thus:

“Does it impose a burden on the revenues of-the city for future years?”

Measured by that rule, our classification ■of appellant’s claim might be erroneous were it not for the fact that the statute previously made provision for relieving the county’s revenues of the burden imposed by the contract. The contract stipulates:

“Payment for publication to be made as delinquent taxes are paid into the hands of the tax •collector.”

Under this clause of the contract appellant’s claim may or may not have matured within the current year; this depending upon the diligence of the county authorities in collecting the taxes. The statute gives tax •suits precedence upon the docket of the trial court over all other litigation. The betterment of the county finances, every consideration of good faith towards appellant, as well as punctual performance of official •duty, demanded prompt effort on the part of the county officials to make the collections. In view of these matters, appellee cannot be heard to insist that it was a debt not to be paid during the current year. Hoard County v. Sandifer, 105 Tex. 420, 151 S. W. 523. As was said by our Supreme Court in that case:

“We must presume that both parties knew the law- and intended' to obey it. Tomlinson v. Hopkins County, 57 Tex. 575. It is a well-established rule of construction that language in a contract which is susceptible of two constructions, one of which would render the contract illegal, and the other would make it lawful, that contract (construction) which would conform the contract to the law must be adopted. Clarke on Contracts, p. 593; Evans v. Pike, 118 U. S. 241, 6 Sup. Ct. 1090, 30 L. Ed. 234; Hobbs v. McLean, 117 U. S. 570, 6 Sup. Ct. 870, 29 L. Ed. 940. The rule of construction is stated by Clarke thus: ‘Where a particular word, or the contract as a whole, is susceptible of two meanings, one of which will render the contract valid, the other of which will render it invalid, the former will be adopted so as to uphold the contract. Thus, where a document was expressed to' be given ‘in consideration. of your being in advance,’ to a person, it was argued that this showed a past consideration which would not support the promise. The court held that the words ‘being in advance’ might mean a prospect of advance, and might be equivalent to ‘in consideration of your being in advance,’ or ‘on consideration of your being in advance.’ So also where a contract is susceptible of two constructions, one of which will render it unlawful as being in violation of law, or contrary to public policy, that construction which will render it lawful will be adopted.’ ”

There is another class of municipal debts which by the weight of authority is not subject to the constitutional restriction, and known as obligations imposed by law. The allegations in plaintiff’s amended original petition bring this case within that class. 37 L. R. A. (N. S.) 1086-1090, note. Eidson, J., in Baldwin v. Travis County, 40 Tex. Civ. App. 149, 88 S. W. 484 (writ of error denied by the Supreme Court), held that the effect of the act under consideration (article 7687) was to require the commissioners’ court to pay for publishing the delinquent tax list. Dwyer v. City of Brenham, 65 Tex. 527, is cited as an illustration of this rule. That was a suit for compensation for printing and binding the ordinances of the city. The city demurred to the petition upon two grounds, viz.: (1) That the contract was ultra vires; and (2) that no provision had been made as required by law for its payment. The charter of the city contained this provision:

“All ordinances of the city when printed and published by authority of the city council shall be admitted and received in all courts and in all places without further proof.”

The court sustained the defendant’s demurrer and dismissed the petition.

Robertson, A. J., said (referring to the section of the ordinances above quoted):

“This section contemplates the printing of the ordinances. The charter does not intend that the city shall own a printing establishment, and the Legislature never expected the printing to be done without compensation, pro bono publico. The power to make a contract to pay for the printing was therefore necessarily implied. If the city needed printed copies of the charter, the occasion for them in the accomplishment of its corporate purposes raised an implication of the power to have them printed. Dillon on Munic. Corp. § 89. The debt contracted for, under the allegations of the petition, was in the nature of current espense, and not such debt as that contemplated in section 5, art. 11, of the Constiution. * * * The demurrer to the petition was improperly sustained, and the judgment dismissing the suit must be reversed, and the cause remanded.”

Having held, as we do, that appellant was entitled to recover upon the contract as declared upon by him, it is unnecessary for us to decide the further question presented, which is his right to recover upon an implied contract. We, however, incline to the opinion that, if his right to recover upon the contract should for any reason be denied, he should nevertheless be entitled to a judgment for the amount due him upon an implied as-sumpsit. “In the case of City of Bryan v. Page [51 Tex. 582, 82 Am. Rep. 637], it was held that the city could not be required to pay for what it had received and made use of, where it had not been contracted for in the manner prescribed. This rule was modified in City of San Antonio v. French, 80 Tex. 575, 16 S. W. 440 [26 Am. St. Rep. 763], and the city was held to pay for benefits actually received by it.” Penn v. City of Laredo, 26 S. W. 636. The charter of the city of San Antonio required the exercise of the power of contracting with any one and the act of fixing his compensation for the collection of delinquent taxes due the city to be done by ordinance. No ordinance was enacted, but, in accordance with a resolution passed by the city council, the mayor contracted with one Brand to collect the delinquent tax, and agreed to pay him for his services 5 per cent, of all amounts so collected. Neill, A. J., denied Brand’s right to recover upon the contract, but held the city bound to pay the reasonable value of the services rendered, of which it had knowingly received the benefit. Brand v. City of San Antonio, 37 S. W. 340.

In City of San Antonio v. French, 80 Tex. 575, 16 S. W. 440, 26 Am. St. Rep. 763, the matter under consideration was the liability of the city to pay rent for certain rooms in a building leased for the use of the city for one year. Judge Gaines, delivering the opinion of the court, said:

“It may be that when a municipal corporation has received the benefit of a contract, which it had the power to make, but which was not legally entered into, it may be compelled to do justice, and to pay the consideration, or at least to pay for what it has received. In such cases it is said that the law will imply a contract; but we think it contrary to sound principles to imply a contract in any other case. As said by Mr. Justice Field, in the case of Gas Co. v. San Francisco, 9 Cal. 453: ‘When the contract is executory, a corporation cannot be held bound unless the contract is made in pursuance of the provisions of its charter; but where the contract is executed, and the corporation has enjoyed -the benefit of the consideration, an implied assumpsit arises against it.’ ”

As further sustaining the liability of a municipality upon implied contracts, we refer to the editorial notes in 27 L. R. A. (N. S.) 1117, 1125, and the supplemental notes in 39 L. R. A. (N. S.) pages 43, 72; 2 Dillon’s Munic. Corp. (5th Ed.) §§ 793, 794.

Appellant’s third assignment of error urges the proposition that when a contract shows an uncertain time for performance thereof or fixes no time for payment thereunder, and the happening of the event which would mature payment depends entirely upon the defendant, the law matures the contract within a reasonable time. We think this proposition is sound. As expressed in 2 Eljiott on Contracts, § 1628:

“It is said that the law enters as a silent factor into every contract. That which is implied by law becomes a part of the written contract tlie same in general as if it wore written there-: in, and, if the contract is thus made clear and complete, it can no more be varied or contradicted by parol evidence as to the matter imported into it by law than it can in any other respect. This doctrine is frequently applied where a contract is silent as to the time of performance. The general rule in such cases is that it must be performed within a reasonable time, and that this implication of law cannot be varied by parol evidence, although such evidence may be admissible to show what is a reasonable time.” Id. § 3713; Self v. King, 28 Tex. 552; Hart v. Bullion, 48 Tex. 552; Andrae v. Watson, 73 S. W. 991; Weaver v. Starnes, 98 S. W. 902; Dunham v. Orange Lumber Co., 125 S. W. 89; Bush v. Merrill, 156 S. W. 606; Pollard v. Allen, 171 S. W. 530, decided by this court and not yet officially published.

We think the court was correct in sustaining defendant’s exception No. 2 to the fourth paragraph 'of plaintiff’s amended petition, exception No. 6 to the seventh paragraph, exception No. 7 to the eighth paragraph, exception No. 11 to the twelfth paragraph, exception No. 12 to the twelfth paragraph, and exception No. 13 to the twelfth paragraph. The general demurrer and the remaining special exceptions should not have been sustained, and, because of the court’s action in so doing, the judgment is reversed, and the cause remanded.
      <@=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    HOUSTON CHRONICLE PUB. CO. v. McDAVID.
    (No. 5412.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 9, 1914.
    Rehearing Denied Feb. 3, 1915.)
    1. Limitation of Actions &wkey;>127 — Amend ment oí? Pleadings — Action of Tout.
    In an action of tort for an injury, such as a libel, where the place and circumstances are stated in the original petition, which is filed before limitation has barred the action, limitation cannot successfully be urged to an amendment stating more specifically the results of the injury, filed when the statute would bar a recovery on a suit then brought.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. <&wkey;> 127.]

      2. Libel and Slandee <&wkey; 120 — Exemplary Damages — Malice.
    To recover exemplary damages in an action for libel, it is necessary to prove actual or express malice.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 350, 351; Dec. Dig. &wkey;> 120.]
    3. Libel and Slandee <&wkey;>112 — Evidence-Malice — “Willful oe Wanton Wrong”— “GROSS INDIFFERENCE.”
    Evidence in a libel suit founded upon the publication of an answer filed in a divorce suit held not to show “gross indifference,” or “willful or wanton wrong,” which, as used in the definition of “malice,” means an act done with the specific intention to injure the person in-jui'ed, or an act done with such utter recklessness as to indicate a^ disregard of consequences, so as to support a verdict for exemplary damages.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 325-341; Dec. Dig. <&wkey;> 112.]
    4. Trial &wkey;>115 — Conduct of Attorney-Reference to Former Trial and Verdict.
    In the trial of a libel suit it was improper for plaintiff’s attorney to state in his argument to the jury that the case had been tried before and a verdict returned for plaintiff.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 279-2S3, 295, 298; Dec. Dig. &wkey;115.]
    5. Libel and Slander <&wkey;51 — Privilege— Malice.
    A publication is not privileged where actual malice is shown.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 149; Dec. Dig. &wkey;>51.]
    6. Libel and Slander <&wkey;38 — Privilege— PLEADINGS — “JUDICIAL PROCEEDING’ ’ — “OFFICIAL Proceeding” — “Proceeding”—Statute.
    Rev. St. 1911, art. 5597, declaring a" fair, true, and impartial account of proceedings in a court of justice, unless the court prohibits its publication, or any other official proceeding authorized by law in the administration of the law, privileged, does not justify the publication of a libelous written pleading, properly filed, upon which no action by the court', judge, or any other officer has been taken in reference to the matter referred to therein; but the privilege is limited to proceedings while the court is in session and may have an opportunity to prohibit publication. The filing of a pleading by the clerk is merely a ministerial act not constituting a “proceeding.” While a pleading, and especially one asking for some relief, may be designated as part of a judicial proceeding, it does not constitute an official proceeding; the distinction being that a “judicial proceeding,” as applied to pleadings, refers to something done by the parties to the suit, while an “official proceeding” denotes action taken by an officer.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 117-123; Dec. Dig. <&wkey;> 38.
    For other definitions, see Words and Phrases, First and Second Series, Judicial Proceeding; Proceeding.]
    Appeal from District Court, Bastrop County; Ed. R. Sinks, Judge.
    Action by Dock McDavid against the Houston Chronicle Publishing Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Hunt, Myer & Teagle, of Houston, and Page & Jones, of Bastrop, for appellant. Sam Schwartz, of Houston, and Orgain & Maynard, of Bastrop, for appellee.
   KEY, C. J.

This is the third appeal in this case. At the first trial the court below sustained a general demurrer to the plaintiff’s petition, from which ruling the plaintiff appealed, and this court held that the petition stated a cause of action, and reversed the case. McDavid v. Houston Chronicle Printing Co., 146 S. W. 252. The case went back and was tried upon its merits, and a verdict and judgment rendered for the plaintiff, from which the defendant appealed, and this court reversed the judgment on account of the improper admission of certain testimony. Houston Chronicle Publishing Co. v. McDavid, 157 S. W. 224. Thereafter the case was tried again, and verdict and judgment rendered for the plaintiff for $4,000 actual and $1,000 exemplary damages, and the defendant has prosecuted its second appeal.

The ease is a libel suit, founded upon the publication of an answer filed in a divorce suit, and is more fully explained in our former opinions, in the first of which the alleged libelous publication is set out in full. On the last appeal, the case was reversed because the trial court permitted the plaintiff to introduce testimony tending to show that shortly after the publication referred to the plaintiff’s wife sustained a mental and physical breakdown. This court held that there was no pleading to support the testimony referred to, and when the case went back the plaintiff amended his petition, and alleged that as a result of the publication of the alleged libel the health of plaintiff’s wife was seriously impaired, and her mind was injured and she became insane. That plea was filed more than two years after the making of the publication, and appellant interposed the statute of limitations as a defense. The trial court overruled that plea, and that ruling is assigned as error, and we overrule that assignment. It seems to be well settled by decisions of our Supreme Court that when the cause of action is an injury resulting from a tort committed by the defendant, the time, place, and circumstances of which are stated in the original petition, which is filed before limitation has barred the action, limitation cannot successfully be urged to an amendment which states more fully and specifically than the original petition the results of the injury, though the latter be filed at a time when the statute would bar a recovery on a suit then brought. Railway Co. v. Irvine, 64 Tex. 529; Railway Co. v. Davidson, 68 Tex. 370, 4 S. W. 636; Cotter v. Parks, 80 Tex. 539, 16 S. W. 307. The case at bar is based upon an alleged tort, the time, place, and circumstances of which are stated in the original petition, and the amendment merely states more fully and specifically tlie results of the injury, and therefore the case falls within the rule announced in the cases just cited.

Most of the other questions presented in appellant’s brief were decided by this court on the former appeals; and, except as will hereinafter appear, we adhere to the rulings then made. On this appeal we have given the entire case a careful reconsideration, and have reached the conclusion that it should be reversed, because the testimony does not support the verdict for exemplary damages. In order to recover such damages, it was necessary for tl;e proof to show actual or express malice. The undisputed testimony clearly shows that the agent of appellant who caused the publication to be made was not acquainted with appellee or his wife, nor with either of the parties to the divorce suit, and had no ill will against either of them. But it is contended on behalf of appellee that the testimony shows such gross indifference to the rights of others on the part of appellant as amounts to a willful or wanton act, and if it does it will support the finding of actual malice; but we have been unable to find any such testimony in the record. The proof shows that the copy or transcript from which the publication was made was submitted by a reporter of the Chronicle to Mr. Gillespie, the managing editor. It seems that the document submitted had the names of the parties to the divorce suit and the specific court in which that suit was pending, and Mr. Gillespie, to use his language, “edited them out of it.” In support 'of their contention that evidence was submitted justifying a finding of actual or express malice, counsel for appellee make the following statement in their brief:

“Plaintiff also offered in evidence on this issue the answers of the witness C. B. Gillespie to. cross-interrogatories propounded to him. This witness testified: T do not remember the publication of any other part of the pleadings in the suit of Eisher' v. Fisher.’ The following question was propounded to the witness: ‘If, in answer to direct interrogatories propounded to you, you reply to the effect and in substance that, prior to the publication of the matter complained of, you did not know Dock McDavid and wife, or their residence, and that you have had no business dealings with them, or either of them, and that you did not know that they were the parents of Mrs. Allison, formerly Mrs. Fisher, then please state what efforts, if any, you made to acquaint yourself with such matters?’ His answer was : ‘I made no efforts, as no names were used in the article. Whether I took into consideration, prior to the publication of the matter complained of, the fact that the matter so published might reflect discredit, shame, and humiliation upon the parties to whom it referred, and that upon the reading thereof it might wound their feelings, and cause them, or any of them, mental distress and anguish, * * * I did not consider the article as one identifying any of the parties. Whether I knew, upon reading the matter complained of, that the paragraph following the words “An Inherited Disposition” referred to the parents of Mrs. Fisher, I did not give special consideration- or thought to any particular portion of the article, as I considered a story without names entirely general.’
“During the course of cross-examination of the witness O. B. Gillespie, it was agreed that in the original answer filed by the defendant in the divorce suit by the defendant in the case of Fisher v. Fisher, in which the plaintiff was the daughter of Dock McDavid, the words ‘her mother’ were not in there, and that there was no reference to the mother whatever in this answer purporting to be published by the newspaper. The witness O. B. Gillespie, on cross-examination, testified as follows: T said awhile ago that I left the names out as a matter of safety. I mean by that, * * * well, safety to the publishers. It would have been privileged under the law to publish it with the names. Whether that is a matter of opinion, ?: * * you as]j-e(j me didn’t you? As to what I mean by “safety” in leaving out the names, whether I wanted to protect myself against a possible suit for damages, I cut the names out so that it would not refer to anybody in the world. It might as well have been somebody in -South America, Asia, or Africa. I said I cut the names out as a matter of safety to the publishers. As to what I feared might happen to the publishers if the names were connected with the article, * * * a number of things might occur. Ordinary items in the paper, people come to us and telephone us. * * * It requires space given them. People come in and say: “Well, you published this; now you must publish our side of it.” It takes up columns and columns of space. We do that cheerfully, because we do not want to put anybody in the wrong light. We want to treat everybody exactly alike, but by the elimination of the names absolutely I thought it would place the matter beyond anybody ever coming to see if there would be something more about it. That is what I mean. Whether I thought only a question of safety was involved, * * * al-wáys_ a question of safety in connection with liability. I did not say that I left out the names in order to avoid a possible suit, for publishing it, for damages. I say there is always a question of liability. We are always looking out for lawsuits. Whether I realized that at the time, * * * I realized that all the time; yes, sir. Whether under ordinary circumstances, just publishing matters I am privileged to publish, which I am entitled to publish, that 1 do not have any fears as that. * * * I never passed on an item in my life without applying the golden rule where I feared a right. Yes; I applied the golden rule to this article. I did. I treated those people like I wanted to be, if I was in their condition. I knew the names referred to by the reporter .were in there. I did not know the parties personally. I had no ill will against them in the world. I had no antagonism against them. I had no interest in publishing anything that might injure them. Whether I made any investigation to determine the standing of the plaintiff in this suit, and that of his wife, * * * I did not name the plaintiff in this suit, or his wife. There was no necessity for that. I knew the article referred to the mother of the plaintiff. I could not tell from the article anybody’s name. The article published did not refer to any plaintiff, or defendant, or anybody. I did not ascertain who that mother was, and her standing, because we took the names out of it. No; I did not know that anybody would know, from the reading of that article, that it referred to the mother, and that they would know who that mother was, or afterwards find out and ascertain by investigation, and that it might injure them. I did not know that. I did not know that it would injure anybody. As to why I wanted to be safe about it, * * * because there might be a difference of opinion between them and me about that, as to that. Whether I made an investigation to determine who the mother was, * * * I cut the names out. I made no investigation to find who the mother was. I never did; no, sir. At the time I published that article, I took into consideration the fact that the article as it was published might humiliate and shame the parties to whom it actually did refer, and injure them in their good name and reputation. I always take that into consideration — those facts. Whether at this time I took it into consideration, * * * I do not think that I went into the article any more than to revise it, and make it refer to nobody. I do not remember that point. 1 really do not. Yes; I know as a matter of fact that the records of the courts are open to all parties. I know that. I believe anybody who wishes to do so can go to the courts, notwithstanding no names are mentioned, and find the actual answer, together with the names of the parties to the suit. 1 believe that would have been the case, whether there was any publication or not. Anybody can go to the courts. If anybody was interested to find out who the parties were after seeing the publication, X think that they could go to the courts and ascertain anything on file at that time. I knew that at the time, undoubtedly. Everybody knows that.’ Again : ‘Whether, in my capacity as editor, I published any other of the proceedings, the pleadings in the divorce suit of Fisher v. Fisher, * * * my recollection. is that we did not publish anything in connection with the divorce suit of Fisher v. Fisher. We published the answer in the divorce suit, but it was not; * * * it had nothing to say about Fisher v. Fisher; nothing to say about them whatsoever. I knew when we published it and had knowledge that it was in that particular suit.’ Again: ‘Ordinarily, and usually, all court news is published under the head “Court Routine.” Ordinarily under that head we haye two or three paragraphs in regard to particular suits, which we regard as unusual, calling attention to the nature of the suit. These are called “leads,” explaining the nature of the suit, especially if the matter is of unusual interest. Whether it is a very rare thing for us to publish the pleadings, * *- s‘ we went over that awhile ago, that particular question, I think.’ ”

That statement is as strong in appellee’s favor as the record will justify; and, in our opinion, while it might perhaps support a finding of slight negligence, it falls short of showing gross negligence or gross indifference to the rights oí, others. On the contrary, the proof shows that the managing editor, before authorizing the publication, attempted to make such changes in it as would prevent identification of any persons therein referred to. This effort, although it may not have been successful, shows clearly that the managing editor was not guilty of gross indifference or willful or wanton wrong. Nor is it any answer to this to say that in exercising the care referred to Mr. Gillespie was merely attempting to avoid a libel suit. A willful or wanton act or gross indifference, as used in the definition of malice, means an act done with the specific intention to injure the person that was injured, or an act done with such utter recklessness as to indicate a disregard of consequences. The act here complained of was done in due course of business. That business was the publication of a daily newspaper; and, no doubt, the duties of the managing editor of such a publication are not only arduous, but the very nature of the business requires them, in many instances, to be performed with great celerity. By a given hour the editorial department must furnish sufficient copy to fill a designated amount of space in each issue of the paper; and therefore it is no doubt true that, on many occasions, that department, and especially the managing editor, is compelled to work in haste. But, notwithstanding these facts, as stated before, the. testimony shows that in this case the managing editor made an effort to have the publication in question couched in such language as would prevent identification of the persons therein referred to; and the effort so made, though it may not have been successful, negatives the charge of gross negligence or indifference. Nor was such wrongful conduct shown by the fact that the editor made no effort to ascertain more than he then knew concerning Mrs. Fisher, the plaintiff in the divorce suit, or Mr. and Mrs. McDa-vid, her father and mother. The proof that ' he did not know them, and had never had any dealings with them, was pertinent for the purpose of negativing the existence of. ill will; and the fact that, if he had waited and attempted to do so, he might have ascertained more about them, does not prove gross indifference or a willful purpose to injure them. ,

So, our conclusion is that the assignments of error which present the contention that the testimony does not support a finding of actual or express malice must be sustained. Upon another trial, if no further and stronger testimony is submitted upon that issue, we hold that the trial court should instruct a verdict for the defendant upon the issue of punitory damages.

We also hold that it was improper for appellee’s attorney to state in Ms argument to the jury that the case had been tried before and a verdict returned for appellee. It is not necessary to decide whether that error alone would justify a reversal of the' case, and we content ourselves with saying by way of admonition that it would be the part of wisdom not to take any such risk upon another trial.

As the case is to be sent back for another trial, we deem it proper to say that the opinion of this court upon an important question in it has undergone a change. Heretofore we have held that the publication was privileged, unless actual malice was shown; and at the trial now under review the trial court, in pursuance, of our former decision, instructed the jury that the publication was privileged, and that the plaintiff could not recover either actual or punitory damages unless actual malice was shown. Further consideration of that question leads this court to conclude that our. former decision was wrong, and that the publication in question was not privileged, and that decision may be considered as overruled. Our statute upon tlie subject of libel deals with newspaper privilege (article 5597, R. S.) in tlie following language:

“The publication of the following matters by any newspaper or periodical, as defined in article 5595, shall be deemed privileged, and shall not be made the basis of any action for libel without proof of actual malice:
“1. — A fair, true and impartial account of the proceedings in a court of justice, unless the court prohibits the publication of the same, when in the judgment of the court the ends of justice demand that the same should nqt be published, and the court so orders; or any other official proceedings authorized by law in the administration of the law.
“2. — A fair, true and impartial account of all executive and legislative proceedings that are made a matter of record, including reports of legislative committees, and of any debate in the Legislature and in its committees.
“3. — A fair, true and impartial account of public meetings, organized and conducted for public purposes only.
“4. — A reasonable and fair comment or criticism of the official acts of public officials and of other matters of public concern published for general information.”

It is the first subdivision of that statute which has application to the publication of court proceedings, and we are of opinion that it should not be so construed as to justify the publication of any written pleading properly filed, however libelous it may be, when no action by the court, the judge, or any other officer has been taken in reference to the matter referred to in the pleading. That statute authorizes the publication of a fair, true, and impartial account of the proceedings in a court of justice, unless prohibited by the court. And it also authorizes such publication of any other official proceedings authorized by law in the administration of the law. It seems manifest from its language that the first part of it is limited to proceedings in court — proceedings that occur while the court is in session. It uses the language “proceedings in a court of justice,” and it says that a fair, true, and impartial account of such proceedings may be published, unless the court prohibits the publication of the same. This implies, and necessarily means, that the matter about which the publication may be made is one which the court has had an opportunity to prohibit. It is a well-known fact that pleadings are very often filed in vacation, when it W'ould be impossible for the court to make any order in reference thereto; and if such pleadings, though intensely libelous, could be lawfully published as soon as filed, that portion of the statute which gives to the court power to prohibit publications would be rendered nugatory.

The last part of that subdivision of the statute extends the privilege to the publication of a fair, true, and impartial account of any other official proceedings authorized by law in the administration of the law; but we do not think that paragraph should be so construed as to authorize the publication •of the contents of pleadings, when no action has been taken thereon by any officer. In the case at bar it is true that the answer in the divorce suit, which was the subject-matter of the publication, had been filed by the clerk; but such filing was a mere ministerial act upon his part, and did not constitute a proceeding within the purview of the statute. There are many official acts performed when the court is not in session, and to which this portion of the statute would apply, such as the appointment of a receiver, the issuance of a writ of injunction, or a warrant of arrest, and many others which might be specified. But preparing a written pleading by the party or his attorney, and delivering the same to the clerk to be filed, is not an official proceeding, and the file mark of the clerk does not render it such. If it be conceded that the act of the clerk in filing the paper is an-official act, then the only privilege that would result therefrom would be the right to publish the fact that the pleading, giving its name as petition or answer, had been filed, without the right to publish the contents thereof. As a matter of fact, although our libel statute was amended in 1901, the article covering the subject of newspaper privilege adds very little, if anything, to the common law upon that subject, which is admirably and concisely sttited in 25 Cyc. p. 406, as follows:

“In General. — A full, fair, and impartial report of a judicial proceeding is qualifiedly privileged, unless the court has itself prohibited the publication, or the subject-matter of the trial or proceeding be unfit for publication. And no action will lie therefor, except on proof of malice in making it. This privilege lias been extended to writers of law books referring to reported cases faithfully and fairly, although failure to use reasonable care and diligence in order to be correct destroys the privilege. * * *
“A distinction has been drawn between reports of what takes place in open court and that which is done out of court by one party alone, and it is held that the publication of the contents of a petition or of other pleadings or papers filed in civil proceedings before trials, or before any action has taken place on such pleadings or papers by the court, is not privileged. But the privilege covers proceedings which are in their nature only preliminary, if any judicial action has been had thereon. * * *
“The general rule seems to be that the publication of ex parte criminal proceedings before a public magistrate is privileged.”

Perhaps the leading American case upon that subject is Cowley v. Pulsifer, 137 Mass. 392, 50 Am. Rep. 318, and it was there held that the publication of a petition, though duly filed in court, was not privileged. The court pointed out the distinction in reference to privilege between the rights of a litigant and the rights of a third person to publish what the litigant had stated in his pleading, and also the difference between a pleading filed by one of the parties and the trial of cases or other official acts in reference thereto, and among other things it was said:

“The privilege set up by the defendants is not that which attaches to judicial proceedings, but that which attaches to fair reports of judicial proceedings. Now, what is the reason for this latter? The accepted statement is that of Mr. Justice Lawrence in Rex v.. Wright, 8 T. R. 293, 298: ‘Though the publication of such proceeding's may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings.’ See, also, Davison v. Duncan, 7 El. & Bl. 229, 231; Wason v. Walter, L. R. 4 Q. B. 73, 88; Commonwealth v. Blanding, 3 Pick. (Mass.) 304 [15 Am. Dec. 214].
“The chief advantage to the country which we can discern, and that which we understand to be intended by the foregoing passage, is the security which publicity gives for the proper administration of justice. It used to be said sometimes that the privilege was founded on the fact of the court being open to the public. Patterson, J., in Stockdale v. Hansard, 9 A. & E. 1, 212. This, no doubt, is too narrow, as suggested by Lord Chief Justice Coekburn in Wason v. Walter, ubi supra; but the privilege and the access of the public to the courts stand in reason upon common ground. Lewis v. Levy, El. Bl. & El. 537, 538. It is desirable that the trial_ of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.
“If these are not the only grounds upon which fair reports of judicial proceedings are privileged,- all will agree that they are not the least important ones. And it is clear that they have no application whatever to the contents of a preliminary written statement of a claim or charge. These do not constitute a proceeding in open court. Knowledge of them throws no light upon the administration of justice. Both form and contents depend wholly on the will of a private individual, who may not be even an officer of the court. It would be carrying privilege farther than we feel prepared to carry it to say that, by the easy means of entitling and filing it in a cause, a sufficient foundation may be laid for scattering any libel broadcast with impunity.’’

We note the fact that in the case just cited the court speaks of the pleading there under consideration as a judicial proceeding, and in a certain sense pleadings may be thus designated; but our statute does not authorize the publication of every paper which may constitute part of a judicial proceeding, but only authorizes an impartial account of proceedings or things which have been done in open court, or such an account of other official proceedings. While a pleading, and especially one which asks for some relief, may be designated as part of a judicial proceeding, such pleading does not constitute an official proceeding. There is a marked distinction between the term “judicial proceeding,” as applied to pleadings, and the term “official proceeding.” The former has reference to something done by the parties to the suit, while the latter denotes action taken by an officer.

Hence we conclude that the publication in question was not privileged, and that the plaintiff will. be entitled, without making proof of malice, upon proof of the other necessary facts, to recover actual damages on account of said publication. But in order to recover exemplary damages it was necessary for the plaintiff to prove, as he had alleged, that the defendant was guilty of actual or express malice, and that, we hold, he has failed to do; and for that reason we sustain the assignments of error which complain in that respect, and order a reversal of the judgment.

Reversed and remanded.
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