author: RAINEY, C. J.

text:
    HILL COUNTY COTTON OIL CO. v. GATHINGS.
    (No. 7230.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 16, 1915.
    Rehearing Denied Feb. 13, 1915.)
    Pleading <§=>412 — Waiver of Objections— Insufficient Reply.
    An objection that the reply did not specifically deny allegations in the answer, and therefore, under the statute, they are to be taken as admitted, is waived, where no exceptions were taken to the reply, but the parties proceeded to trial as if the answer had been denied, and defendant raised no exceptions to the refusal of its requested charge that the allegations were admitted.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§' 1387-1394; Dee. Dig. <§=>412.]
    Appeal from District Court, Hill County; H. B. Daviss, Judge.
    Action by Bascom Gathings against the Hill County Cotton Oil Company. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    Wear & Frazier and Morrow & Morrow, all of Hillsboro, for appellant. Shurtleff & Cummings, of Hillsboro, and Chas. L. Black, of Austin, for appellee.
   RAINEY, C. J.

Appellee, a minor, sued, by next friend, to recover of appellant damages for personal injuries resulting from the negligence of appellant. Appellant answered by general demurrer, general denial, contributory negligence, and assumed risk. A trial resulted in a verdict and judgment in favor of the appellee for $7,500, from which this appeal is taken.

Appellee alleged, in substance:

That he was a minor, which was known to appellant, and was employed by appellant to work for it in a seedhouse in the city of Hills-boro. “That situated and operated therein was dangerous machinery, consisting of wheels, belts, pulleys, and shaftings operated by steam motive power, and used in conveying seed situated in the said seedhouse into the oil mill of defendant. That, at the time plaintiff entered the service of defendant, he was inexperienced in the uses of the machinery situated in defendant’s seedhouse and did not know the danger of such machinery. That in said seedhouse there was a path or passway leading from the door of same, between certain machinery, to the place where he was directed to work. That on one side of this path or passway there was a shaft attached to said machinery jutting out two feet into said passway. That said shaft and the machinery to which it was attached was propelled by steam and was being revolved at a very rapid rate of speed. That said shaft had on its surface a groove, rendering the surface uneven and more liable to catch and become entangled with objects touching it than if the same had been smooth, when revolving rapidly. That this condition of the shaft was unknown to plaintiff before he was injured, but known to defendant. That, under the circumstances and conditions set out, plaintiff was directed to get a seed fork situated near the door of the seedhouse, with which to move seed in said house. That in order to get the seed fork it was necessary for plaintiff to walk along and over the passway described, and that, when he reached a point near to where the shafting was revolving', the noise of the machinery attracted his attention and caused him to hesitate and to stop within range of the draft and suction created by a revolving wheel attached to said shafting, and the same came in contact with the clothes worn by him and wound him around said shafting, by reason of which he was thrown, dragged, and-pulled with great force and violence into and upon said machinery, inflicting upon him serious and permanent injuries. The petition further alleged: That the proximate cause of plaintiff's injuries was the negligent acts of the defendant in permitting said shafting to extend and jut out into said passway without having the same boxed, or in some manner protected, to prevent clothing of persons passing along said passway from coming in contact with said shafting, and in failing to furnish plaintiff a safe place to work,. and in failing to warn him of the danger incident to going near said machinery in the condition that it was in, and in failing to apprise plaintiff of the condition of said shafting and the disturbance caused by the wheel attached there Lo, and the effect of same upon clothing of persons passing near it.” That “Jie was injured in the following manner: His arm was broken and crushed and mangled and torn in such manner as to make it necessary to amputate the same at his shoulder. That he was bruised on his face and arm, his head and back, and'a severe blow about the eyes that has caused him to lose the sight of one eye and to greatly impair the use of the other, to such an extent that in all probability will result in total blindness. That he was bruised on his face, and his entire body is bruised. He was injured in his back, and that the same has been made weak and lame. That he has suffered and will continue to suffer great physical pain and mental anguish.”

The evidence was sufficient to establish the allegations of plaintiff’s petition, and authorized the verdict of the jury.

In the case of Hill County Oil Co. v. Gathings, 154 S. W. 664, decided by this court, where the mother of the appellee sued for the loss of his services, practically the same facts and issues were involved and were passed upon. It was held that there was no error in the judgment, as the evidence showed liability on the part of appellant.

The first assignment presented in this case by appellant is that “the verdict of. the jury is contrary to the law and evidence.” Then appellant points out certain facts and combination of facts which were pleaded in its answer to plaintiff’s petition as defenses to the cause of action, and contends that they were not specifically denied by appellee under the statute, are taken as confessed, and the jury should have been so instructed.

The appellee’s reply to said answer is as follows:

“Now comes the plaintiff, and, replying to defendant’s first amended answer filed herein, says that he denies each and all of the allegations of fact made therein as a defense to this cause of action.”

The appellant did not except to the sufficiency of said reply, nor ask for judgment based upon the theory that its answer had been confessed, but the parties proceeded with the trial without any question being raised by the appellant with reference to the pleadings, and both parties introduced testimony bearing upon the issues raised by said answer. The record contains a special charge requested by appellant to the effect that the facts were considered as admitted by the plaintiff; and there is no issue for their consideration, and to return a verdict for the defendant, but the same was not given. There was no bill of exception reserved to this ruling, nor to the general charge, nor to the giving or refusing of any special charge. We therefore overruled the contention that the allegations of the answer should have been taken as confessed. T. & P. Ry. Co. v. Tomlinson, 169 S. W. 217; Railway Co. v. Pennington, 166 S. W. 464.

The other propositions under the first assignment relate to the sufficiency of the evidence to sustain the verdict. We think the evidence sufficient, and said propositions are overruled. Oil Co. v. Gathings, 154 S. W. 664.

The other assignments relate to the main charge and to the giving and refusing of special charges, and they will not be considered; there being no proper bill of exception reserved to the action of the court. Railway Co. v. Wadsack, 166 S. W. 42.

The judgment is affirmed.
      <guu>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: McMHANS, J.

license: Public Domain

text:
    SHIPP v. ANDERSON et al.
    (No. 6708.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 8, 1915.)
    1. Judgment @=>:l 43 — Default Judgment— Vacation — Grounds.
    A defendant, who after service of process promptly placed his case in the hands of an attorney, could not procure the setting aside of a default judgment for the failure of the attorney to perform the services for which he was employed.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 269, 270, 272-291; Dec. Dig. <§=> 143.]
    2. Tendee <®=>9 — Time—Before Maturity— Defect.
    A debtor cannot, before the maturity of his debt, compel liis creditor to accept payment, and a tender before maturity is without effect.
    [Ed. Note. — For other cases, see Tender, Cent. Dig. §§ 13-19; Dec. Dig. <@=¿>9.]
    3. Judgment @=>101 — Default Judgment-Defect in Petition.
    A default judgment, on a petition not signed by plaintiff or his attorney and not excepted to, is not void or voidable on that ground.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 168-170; Dec. Dig. <§=>101.]
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Action by D. A. Shipp against A. R. Anderson and another. From a judgment for defendants, plaintiff appeals.
    Affirmed.

      Blake Dupree, of Houston, for appellant. Woods, Harris & King, of Houston, for ap-pellees.
   McMHANS, J.

On May 27, 1907, H. B. Rumsey sold and conveyed a lot of land to appellant, D. A. Shipp, for a cash payment of $70 and Shipp’s 21 notes in equal amounts, aggregating $122, one note falling due each month thereafter, and reserving the vendor’s lien in the notes and deed as security. Thereafter, on March 8, 1911, after the maturity of all the notes, Rumsey brought suit thereon and to foreclose the vendor’s lien. Service of citation was had on Shipp in time to require him to answer at the April term, 1911, of the district court, which convened on the first Monday in April, and which could and did continue in session to the first Monday in June following. Shipp filed no answer in the case, and on the last day of the April term a judgment by default was rendered against him for the amount of the unpaid notes, interest thereon, and attorney’s fees aggregating $164.16, foreclosing the vendor’s lien on the lot and ordering the same sold in satisfaction of the judgment. A new trial of the case was not sought at the term in which the judgment was rendered, and no appeal from said judgment was prosecuted.

On August 30, 1911, plaintiff brought this suit as an original proceeding in equity to set aside said judgment and reopen the case and retry same upon its merits, praying for an injunction to restrain Rumsey and A. R. Anderson, who was then sheriff of Harris county, from selling the property under an order of sale issued in said case. Appellant in his petition undertook to show that he had a good excuse for his failure to file an answer and make his appearance at the April term of the court, and that he had a good defense to plaintiff’s cause of action, and to this end alleged, in substance, that upon being served with citation he immediately employed an attorney, E. B. Mentz, to defend him in the suit, and gave him $10 in part payment of his fee to be charged for his services; that Mentz stated to him that he would give the suit proper care and attention, and that he (Shipp) could return to Ft. Bend county, where he was at work, and that he would give him notice of the setting of the case and when his presence would be necessary; that he returned to his work; and that on or about the middle of June, 1911, having returned to Houston, he learned that Mentz was dead and then learned of the rendition of the default judgment against him. As a defense to the original suit, he alleged that he owed Rumsey only a balance of $80 of the purchase money for the lot, and that he tendered said sum to Rumsey and demanded a release of the vendor’s lien for record in the deed records of Harris county, but that Rumsey refused to execute a release or do more than to give him a simple receipt for the amount so tendered, although the notes at that time had been lost or destroyed, and that in these circumstances he refused to pay said sum to Rumsey. Before the trial of this case, he tendered said sum to Rumsey and deposited the same in the registry of the court. He further alleged that the petition upon which the original suit was tried was not signed by the plaintiff or his attorney. Upon the filing of the petition, which was sworn to by Shipp, and upon presentation of same to the Honorable Wm. Masterson, district judge, a temporary injunction was granted and served on the defendants restraining them from selling the lot pending a trial on the merits. Afterwards the case was tried on the merits before the court without a jury, and resulted in a judgment for the defendants, vacating the temporary injunction theretofore granted, and directing the defendant Anderson and his successor in office, as sheriff, to execute the order of sale theretofore issued, from which judgment Shipp, the plaintiff in this proceeding, has appealed.

It appears that upon the trial the court, not only entered upon a hearing of the facts offered by Shipp to excuse his failure to enter his appearance at the term at which the former judgment was rendered, but heard evidence proffered by both parties upon the right of Rumsey to recover in the former suit. Upon the issue of failure to file his answer, Shipp, by his testimony, proved facts substantially as alleged by him. It was shown by testimony offered by defendants, however, that the attorney 'Mentz was present at the convening of the April term, 1911, of the court and was present when the appearance docket was called; that he was in and about the courthouse from time to time during the term and at his office attending to business for more than six weeks after the court convened ; and that he did not die until about the time the default judgment was rendered. There is no question as to his failure to file an answer for Shipp. It may be conceded that Shipp acted with the promptness and care of an ordinarily careful business man in placing his case in the hands of an attorney after he was served with citation, but the excuse offered for himself cannot excuse the failure of his attorney to perform the service for which he was employed. Eddleman v. McGlathery, 74 Tex. 280, 11 S. W. 1100.

Upon the other issue Shipp testified, as alleged by him, -that he only owed Rumsey a balance of $80 for the purchase money of the lot, and that he tendered this sum to Rumsey and demanded the execution and delivery by Rumsey of a release of the vendor’s lien which Rumsey refused to execute, offering to give him only a receipt for the sum offered although at that time the notes were lost or destroyed. Upon cross-examination, however, he testified that the offer to pay said sum was in 1907 or 1908, at a time before the maturity of all of the notes. He further testified:

“This deed (the deed from Rumsey to himself) recites a cash consideration of $70 paid, and the execution of 21 vendor’s lien notes amounting to the sum of $122. After that deed was executed and that $70 paid, I never did pay him one nickle other than the $15 I have testified about.”

This payment, it seems, was credited upon the notes and formed no part of the amount for which the former judgment was rendered. This part of his testimony was substantiated by Rumsey, who testified that other than the cash payment of $70 and the $15 credited on the notes, which was not included in the judgment, Shipp had paid him nothing.

Under these facts, the court correctly rendered judgment for the defendants. Conceding that Shipp tendered to Rumsey payment of all the notes, yet, if this was before their maturity, he had no right to compel Rumsey to accept payment at that time, and his own testimony conclusively shows that the notes were not due at the time the tender was made. Besides this, according to Shipp’s testimony above set out, there was more due upon the notes than he tendered.

The fact that the petition in the original suit was not signed by plaintiff or his attorney did not render the judgment void or voidable. It was not excepted to in the court below on this ground, but judgment was allowed to be taken upon it. In Hemming v. Zimmerschitte, 4 Tex. 159, Judge Hemphill uses this language:

“There is in the transcript a copy of a writing purporting to be an answer; but it is not authenticated by the signature of either the defendant or his attorney, and cannot properly be classed among the pleadings in the cause.”

In Boren v. Billington, 82 Tex. 137, 18 S. W. 101, Justice Gaines had occasion to review the holding in the Zimmersehitte Case, above copied, and reached the conclusion that, while a pleading wanting in such formal requisite is defective, the proper practice is to except to or move to strike it out on that ground before the judgment by default is granted. Both of these cases are discussed by Justice Stevens in Fidelity, etc., Co. v. Lopatka, 24 Tex. Civ. App. 536, 60 S. W. 268, where a judgment by default was set aside; it being shown that un unsigned answer was on file among the papers of the case at the time the default judgment was taken; and the reasons by which the conclusions were reached are approved by us. In the Boren Case it was held that a pleading which is defective for want of the signature of the party or his attorney may be amended; and in Cochran v. Thomas, 131 Mo. 258, 33 S. W. 10, it is held that, the pleading in such case being amendable, the rule is that judicial proceedings that are amendable are not void.

We are of the opinion that no reversible errors have been pointed out by the assignments, and the judgment of the court below is affirmed.

Affirmed.
      <@^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    TEXAS & P. RY. CO. v. SPANN.
    (No. 1378.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 5, 1915.
    Rehearing Denied Feb. 18, 1915.)
    1. Witnesses <@=>205 — Confidential Communications — ATTORNEY AND CLIENT.
    Where a claimant for damages for personal injuries against a railroad company employed an attorney to get a settlement from the railroad for him, he must have contemplated that the attorney would disclose to the railroad company the. facts concerning the accident as stated by claimant, and the communication of such facts to the attorney was therefore not privileged as a confidential communication.
    [Ed. Note.- — For other cases, see Witnesses, Cent. Dig. §§ 754, 763; Dec. Dig. <@=>205.]
    2. Witnesses <@=>391 — Inconsistent Statements — Hearsay — Impeachment of Witness.
    Testimony as to statements made by a witness offered to impeach his testimony is not objectionable as hearsay.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1248; Dec. Dig. <@=>391.]
    3. Witnesses <@=>392 — Impeachment—Inconsistent Statements — Statements of Attorney.
    A letter written by claimant’s attorney to a railroad company asking for a settlement, in which he related facts in a manner different from claimant’s testimony at the trial, is inadmissible to impeach claimant’s testimony, since the statements were those of the attorney and not of the claimant.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1249-1251, 1257; Dec. Dig. <@=> 392.]
    4. Evidence <@=>213 — Declarations of Parties — Offer to Compromise.
    A request for settlement of a claim for damages for personal injuries, made before the railroad company had denied liability, or there had been any disagreement as to the amount of damages, is not an offer of compromise so as to render statements made therein inadmissible to impeach the testimony of the claimant.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 745-751, 753; Dec. Dig. <@=5213.]
    5. Carriers <@=>361 — Ejection from Train-Liability.
    One who paid a brakeman less than the passenger fare for the privilege of riding on a freight train cannot recover from the company for injuries resulting from being ejected by the brakeman while the train was in motion.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1409-1466, 1469, 1470, 1472-1476, 1478-1501; Dec. Dig. <@=>361.]
    6. Appeal and Error <@=>1048 — Prejudicial Error — Exclusion of Evidence — Impeaching Evidence.
    Where plaintiff’s testimony was the only evidence in the • case showing that plaintiff was ejected from a moving train by the conductor, for whose act the' railroad would be liable, not by the brakeman for whose act it would not be liable, error in excluding statements by plaintiff that it was the brakeman, and not the conductor, who ejected him, was prejudicial to defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4140 — 4145, 4151, 4158-4160; Dec. Dig. <@=>1048.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.

      Action by Wesley Spann against tbe Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    E. H. Prendergast, of Marshall, for appellant. Lane & Lane and M. B. Parehman, all of Marshall, for appellee.
   WILLSON, C. J.

Appellee boarded one of appellant’s freight trains at Toyah, under an arrangement with a brakeman thereon whereby appellee paid said brakeman $1.50 to be carried to El Paso. In his petition appellee alleged that, when the train reached appellant’s yards in El Paso, the conductor in charge thereof compelled him to jump off of same while it was moving rapidly, and that, in jumping, he so fell that one of the wheels of a car in the train ran over and mashed his left foot, necessitating the amputation of a part of it. This appeal is from a judgment in his favor, rendered in a suit brought by him against appellant to recover damages for the injury he suffered.

Appellee’s own testimony as a witness was all that was offered in his behalf. He testified that he chose to travel on the freight instead of on a passenger train because the brakeman agreed he might ride on the freight train for a much less sum than he could ride on a passenger train. He further testified that, when the train reached appellant’s El Paso yards, the conductor ordered him to get off of same, and, when he protested, because the train was moving too rapidly, cursed and struck him, and that he jumped off of same to save himself from being knocked off by the conductor. On his cross-examination he testified that he employed J. H. T. Bibb, a lawyer, “to get a settlement out of the railroad company for his injuries,” and “explained to Bibb how his injuries were caused.” To impeach appellee, appellant offered to prove by Bibb that appellee stated to him that it was the brakeman who compelled him to jump off of the train. In connection with the proposed testimony of Bibb, appellant offered as evidence a letter written to its claim agent by Bibb’s law firm, in which they detailed the circumstances as they understood same of the accident, stating that the brakeman forced appellee to leave the train. The letter as set out in the bill of exceptions shows it was written to induce appellant to make an offer to pay appellee something as a settlement of his claim. A part of the letter was as follows:

“We are preparing to institute suit on this claim, and before doing so decided to write you in regard to the matter, and, if any reasonable settlement can be made, then we will gladly give it the proper consideration. However, we do not wish to delay to any great extent the filing of this suit, and of course do not wish to even consider any offer of settlement unless the same is a substantial offer which we could conscientiously discuss with our client. We will therefore appreciate hearing from you in regard to this matter at your very earliest convenience.”

Appellee objected to the testimony offered on the grounds: (1) That what he said to Bibb was a confidential communication to his attorney as such and therefore privileged; (2) that it was hearsay; and (3) that it was an offer to compromise. The action of the trial court in sustaining the objection and excluding the testimony is the basis of the first assignment.

Whether the statement asserted to have been made to Bibb by appellee, that the brakeman forced him to leave the train, was privileged or not, depended on whether it was made to be communicated to appellant or not. If appellee intended that Bibb should advise appellant as to the circumstances of the accident as he claimed same to be, then his statement to Bibb was not within the rule he invoked. Henderson v. Terry, 62 Tex. 281; Vittitow v. Burnett (Ark.) 165 S. W. 625; Railway Co. v. Brooking, 51 S. W. 537; 23 A. & E. Enc. Law, pp. 71, 75; 40 Cyc. 2375; Hyman v. Grant, 102 Tex. 50, 112 S. W. 1044. That he so intended is, we think, reasonably clear from his testimony. He employed Bibb, he said, “to get a settlement out of the railroad company.” This, we think, should be construed as meaning that he employed Bibb to pursue the course he did pursue; that is, before instituting suit, to endeavor to induce appellant to pay him a sum he was willing to accept as a satisfaction of his claim. If he expected Bibb to pursue that course, then he must have contemplated that it would be necessary for Bibb to disclose to appellant the facts as he (appellee) claimed same to be with reference to the accident; for without such a disclosure he reasonably had no right to expect that appellant would agree to pay him anything in satisfaction of his claim.

That the proposed testimony of the witness Bibb was hearsay was not a reason why it should have been excluded when offered-for the purpose of impeaching appellee. Railway Co. v. Jackson, 93 Tex. 262, 54 S. W. 1023; Scott v. Bank, 99 Tex. 221, 89 S. W. 749.

As to the letter written by Bibb, we do not think it was admissible for the purpose of discrediting appellee. The statement in it that the brakeman forced appellee to leave the train was not a statement by appellee, but by Bibb. Virginia-Carolina Chemical Co. v. Knight, 106 Va. 674, 56 S. E. 727. But we think the statement should not have been excluded on the ground alone that it was “an offer to compromise,” for we do not think it was such an offer. Here, as in Railway Co. v. Sullivan, 157 S. W. 193, it did not appear “that appellant had denied liability, or that there was any disagreement between the parties as to what sum would constitute adequate compensation.” In the case cited, the court said:

“There can be no offer to compromise by a plaintiff unless he makes a concession and offers to reduce the amount of his claim.”

In this case, as in that one, no such offer was made.

The proposed testimony of the witness Bibb having been, as we think, erroneously excluded, the question is: Should the error operate to reverse the judgment? We think it should, in view of the fact that if the brakeman forced appellee to leave the train he was not entitled to recover (Grahn v. Ry. Co., 100 Tex. 27, 93 S. W. 104, 5 L. R. A. [N. S.] 1025, 123 Am. St. Rep. 767), and the fact that the evidence offered to show that it was the conductor who compelled him to jump off of same consisted alone of appellee’s testimony as a witness.

The other assignments in the brief are believed to be without merit, and are overruled.

The judgment will be reversed, and the cause will be remanded for a new trial.
      <®=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    SMITH v. CARR et ux.
    (No. 6738.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 13, 1915.
    Rehearing Denied Feb. 11, 1915.)
    1. Process <&wkey;4 — Necessity — Affirmative Relief to Defendant — Notice to Plaintiff.
    In trespass to try title, no affirmative relief can be granted to the defendant where no citation or notice of the answer was served on plaintiff and he did not appear in court after answer was filed.
    [Ed. Note. — E’or other cases, see Process, Cent. Dig. §§ 4, 6, 55; Dec. Dig. &wkey;>4.]
    2. Appeal and Error <&wkey;914r — Presumptions —Continuance.
    Where the record shows merely that the cause was continued after an answer was filed, but no notice thereof served, it cannot be presumed that plaintiff requested or agreed thereto, and, if not, the continuance does not operate as an appearance by plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3693-3698; Dec. Dig. <i&wkey; 914.]
    Error from District Court, Galveston County; Robt. G. Street, Judge.
    Action by George W. Smith against William Carr and wife. Judgment for defendants, and plaintiff brings error.
    Reversed and remanded for new trial.
    W. F. Kelly, of Galveston, for plaintiff in error. Wm. B. Lockhart, of Galveston, for defendants in error.
   PLEASANTS, C. J.

On October 19, 1911, plaintiff in error, George W. Smith, brought an action of trespass to try title against defendants in error'to recover land described in the petition as follows:

“Being part of two hundred acres of the Elijah Frank’s one-third league, at or near Boliver Peninsular, and more particularly described as follows, 20c/e acres more or less, and being all the undivided interest of Rosa Kane, Fred Kane, Agnes Kane, Burnice Kane and John Kane, Jr., Kate Spilling, Mike Belar, Fannie Belar, Eve-lyne Belar, out of said two hundred acre tract of said one-third league of land, and all the undivided life estate in and to said one-third league of land of the interest of John J. Kane and being out of and a part of said two hundred acres sold by C. E. Cade & Co., to Hughes & Schrieir by deed recorded in volume 81, page 503, Galveston county deed records and the same land conveyed by Charles S. Clough to George W. Smith, deed to same being of record in deed records for Galveston county, Texas, which records, are here referred to and made a part hereof for purposes of a better description of the land herein sued for.”

The defendants on December 12, 1912, with leave of the court, filed an amended answer in lieu of their original answer filed on December 1, 1911. This amended answer, in addition to general demurrer, special exceptions,, and a general denial, contains the following pleading:

“Further answering herein, if necessary, the defendants deny that they are in possession of any part of the land sued for by plaintiff, unless the metes and boundaries of the land sued for by plaintiff conflict with the metes and boundaries of that certain tract of 76 acres of land of which defendants are in possession, and which they own in fee-simple title, which said tract of land is described, and the metes and boundaries.of which are as follows.”

Then, follows a full description of a 76-acre tract of land, and pleas of three, five, and ten years’ statutes of limitation, and a prayer that plaintiff take nothing by his suit, and:

“That defendants have judgment against plaintiff for the title and possession of all of the tract of 76 acres of land, and that the eastern boundary thereof be decreed and fixed.”

The record fails to show that plaintiff appeared in the case either ip person or by attorney after the filing of the petition. No. citation was served on plaintiff or notice given him of defendants’ amended answer in which they asked judgment against plaintiff for the tract of 76 acres of land described in said answer, and prayed that the boundaries of said tract be fixed as claimed by the defendants. The next term of the court after said answer was filed convened on February 3, 1913. On February 11th the cause was called for trial, and, plaintiff failing to appear either in person or by attorney, his suit was dismissed. The court then proceeded to hear defendants on their plea for affirmative relief, and, after hearing the pleadings and evidence, rendered judgment in favor of defendants against the plaintiff in accordance-with the prayer of defendants’ answer.

The first assignment of error complains of the judgment on the ground that, plaintiff not having appeared in court after the filing of defendants’ answer and no citation or notice of said answer having been served upon him, the court was not authorized to render judgment against him upon the claim set up-by the defendants in said answer.

Defendants in error do not question the soundness of the proposition that no judgment can be properly rendered granting a defendant affirmative relief against a plaintiff who has not appeared in the ease after the answer seeking affirmative relief is filed, and who has not been served with citation on said answer; but they contend that the record in this case shows an appearance by plaintiff after said answer was filed. This contention was based upon an entry on the minutes of the court on January 25, 1913, showing that the cause was continued. There is nothing in the entry to indicate why or upon whose request the continuance was granted. The entry in the minutes, after giving the style and number of the case, is as follows: “Jan. 25, 1913. Continued.” If the plaintiff, after the filing of the defendants’ answer, had agreed to a continuance of the case, this would have been an appearance, and he would be charged with notice of the contents of the answer; but we do not think it can be presumed from this record that the continuance was by agreement. It is just as reasonable to presume that the continuance was on motion of defendant, or was a continuance by order of the court because of the failure of either party to appear, as to presume that it was a continuance by agreement of parties. In order for a continuance to operate as an appearance, it must be shown to have been granted upon the motion of the party sought to be thereby held to an appearance in the case or upon his agreement. No' appearance of the plaintiff having been shown, and no citation on defendants’ answer having been served upon him, the judgment against plaintiff cannot be sustained. The case of Harris v. Schlinke, 95 Tex. 88, 65 S. W. 172, is directly in point and is conclusive upon this question.

The judgment of the court below must be reversed, and the cause remanded for a new trial, and it has been so ordered.

Reversed and remanded.
      <@^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HOLLINGER v. LLANO GRANITE & MARBLE CO.
    (No. 6630.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 23, 1914.
    Rehearing Denied Jan. 14, 1915.)
    Accoed and Satisfaction <@=oll — Gashing Check — Recital of Payment in Ehll.
    Where a subcontractor, a corporation, assigned its claim for materials furnished to a bank, and the bank notified the contractor, and, at a time when there was a dispute as to whether the subcontractor should pay liquidated damages for delay, cashed a check sent the bank by the contractor, reciting that it was payment in full, there was an accord and satisfaction, though the amount of the check was less than the amount claimed.
    [Ed. Note. — Eor other cases, see Accord and Satisfaction, Cent. Dig. §§ 75-82; Dec. Dig. &wkey;ll.]
    Error from District Oourt, Orange County; A. E. Davis, Judge.
    Action by the Llano Granite & Marble Company against Job Hollinger and others. From a judgment for plaintiff, defendant Hollinger brings error.
    Reversed and rendered.
    Jacobs & Newman, of Kansas City, Mo., and Hightower, Orgain & Butler, of Beaumont, for plaintiff in error. Holland & Holland, of Orange, for defendant in error.
   PLEASANTS, C. J.

This suit was brought by appellee (defendant in error) against Job Hollinger, a citizen of the state of Missouri, and the Lutcher & Moore Lumber Company, a Texas corporation, to recover damages for the alleged breach by defendant Hollinger of a contract by which plaintiff undertook to furnish certain material and perform certain work as subcontractor under said defendant in the construction for defendant corporation of a church building in the city of Orange, and to foreclose a contractor’s and material-man’s lien on said building.

The petition declares upon two contracts executed by plaintiff and the defendant Hol-linger, by which plaintiff, for the considerations stated in said contracts, agreed to furnish the material and construct all of the brick and cut stone work required in the construction of said church building in accordance with the plans and specifications prepared by James Oliver Hogg, which plans and specifications were the basis of the contract for the construction of said building executed by and between said Hollinger and his eodefendant. It is alleged that said contracts were fully performed by plaintiff, and that there is a balance due plaintiff for the material and labor furnished by him under said contracts of $10,900, of which amount $3,548.-81 is due on the contract for the brick work and $7,351.29 on the contract for the cut stone work. The petition further alleges &at plaintiff had performed extra services in making changes in said work at the request, of the defendants, for which he claimed compensation. Plaintiff also claimed damages in the sum of $6,230.70 for loss of time and money due to changes made in the plans and specifications for the building by the defendants. Judgment was asked against the defendant Hollinger for each of the amounts claimed in the petition and against the defendant corporation establishing and foreclosing a contractor’s and materialman’s lien upon said, building for the amount due upon said contracts.

The defendant Hollinger answered by general demurrer, special exceptions, and general denial. He also filed the following special pleas:

“By the fifth paragraph of its answer defendant Hollinger specially admitted that the exhibit attached to the plaintiff’s petition was correct, wherein it set up certain items of charge and credit between plaintiff and defendant under the contract for the brick work, dated October 4,1907, except in certain particulars. One of these particulars was 'that by the terms of said contract it was provided that the plaintiff should have all of the brick work on said Lutcher Memorial Church, which brick work was covered by said contract, entirely completed not later than May 1, 1908, and that, if said brick work was not completed by that date, the plaintiff should pay to the defendant, as liquidated damages, the sum of $10 per day for each and every day after said date that said work was not completed. Defendant alleged that said work was not completed by May 1, 1908, and that it was not entirely completed until more than 349 days after said May 1, 1908, and a counterclaim was interposed against the defendant for 349 days’ liquidated, damages, at the rate of $10 per day, or a total of $3,490, which sum defendant Hollinger prayed should be allowed as an offset and counterclaim against the suit of plaintiff herein, against the balance alleged to be due under said contract by the plaintiff.
“By the sixth paragraph of its petition defendant Hollinger admitted that the exhibit attached to plaintiff’s amended petition correctly showed the account of credits and charges between plaintiff and defendant under the contract for the cut stone work, dated June 25, 1907, except in certain specified particulars. Certain credits were claimed by the defendant Hollin-ger against the plaintiff, among which was a claim for liquidated damages, amounting to the sum of $3,490, similar to the one under the contract for the brick work.
“It was alleged in the seventh paragraph of defendant’s first amended answer that long prior to the institution of this suit, and on or about the 7th day of June, 1909, the plaintiff herein, which was a corporation, by resolution of its duly elected and qualified board of directors, had assigned and set over to the National Bank of Commerce of San Antonio, Tex., by absolute transfer, all of its right, title, interest, and claim in and to all demands of whatsoever character, whether in contract or in tort, at that time or at any time thereafter existing in favor of the plaintiff herein, and against the defendant Hollinger, by reason of work done by the plaintiff for the defendant on the Luteher Memorial Church at Orange, Tex., which said assignment was in all respects a valid and absolute transfer to said National Bank of Commerce of all of plaintiff’s rights and interests in said two contracts, as aforesaid, and the balance due thereunder, if any, and of the claims hereinabove referred to, if any.
“It is further alleged that on or about March 16, 1910, defendant Hollinger paid to said National Bank of Commerce the sum of $5,007.06, which was paid by the defendant to said bank for the plaintiff, as a final payment to said plaintiff, for work done on said Luteher Memorial Church, and that said payment was made to said bank under said two contracts, which had been previously assigned by the plaintiff company to the National Bank of Commerce, and that said National Bank of Commerce accepted said sum of $5,007.06 in full settlement, accord, satisfaction, and payment for all work done and all material furnished, and all balance due and of all demands arising in favor of said plaintiff under said two contracts. It was alleged that the payment to said bank under such circumstances constituted an accord and satisfaction of any claim asserted by the plaintiff in this suit against the defendant Hollinger, under and by virtue of said two contracts.
“In the eighth paragraph of his answer defendant alleged that if he was mistaken in his prior allegation to the effect that said National Bank of Commerce was clothed with full and complete authority to accept from defendant the payment of said sum of $5,007.06 in full and final satisfaction of any balance due to plaintiff herein, and that, if it was mistaken in its allegation that said bank held an absolute assignment of all the right, title, interest, and claim of plaintiff under said two contracts, nevertheless said bank was clothed by the plaintiff with the apparent authority to receive the payment of $5,007.06 in full and final settlement, accord, and satisfaction to plaintiff under said two contracts, and was held out by plaintiff as possessing such authority, and that defendant, acting upon said apparent authority, made such payment in good faith, and that by reason of its holding out of said bank as possessing such authority, and by reason of the fact that defendant acted on said implied authority in good faith, plaintiff was now estopped 'from denying that said National Bank did not possess in reality the authority which it apparently held to receive from the defendant Hollinger said sum of $5,007.06 in full settlement, accord, and satisfaction of plaintiff’s claim under said two contracts.”

The defendant corporation set up its contract with defendant Hollinger and asked that, in event any judgment be rendered against it in favor of plaintiff, it have judgment over against defendant Hollinger and the surety upon his contractor’s bond, the United Surety Company, which it prayed be made a party to the suit. The surety company answered by general and special exceptions, general denial, and several special pleas, the nature of which need not be stated.

The case was tried in the court below without a jury and resulted in a judgment in favor of plaintiff for the sum of $6,964.60, the balance found to be due by the court upon the contracts for the construction of the brick and cut stone work. The court found against plaintiff upon his claim for damages and for compensation for extra work, and the amount adjudged plaintiff, $6,964.60, was the damages for delay claimed by defendant under his contracts with plaintiff and withheld by him from the amount-due plaintiff under his said contracts. Judgment was also rendered in favor of the Luteher & Moore Company and the United Surety Company.

The conclusion we have reached upon the appellant I-Iollinger’s plea of accord and satisfaction renders a discussion of the other questions presented by appellant’s brief unnecessary. Upon this question the undisputed evidence was as follows: The contracts sued on were dated June 25 and October 4, 1907, respectively. Each of these contracts contained a provision that, in event plaintiff failed to complete the work covered thereby by May 1,1908, he should pay to defendant Hol-linger, as liquidated damages, the sum of $10 for each day of delay in the completion of the contract after said May 1, 1908. The contracts were not completed by plaintiff until more than a year after said May 1,1908, and under the terms of the contract defendant Hollinger made claim for the damages of $10 per day. This claim was disputed by plaintiff ; its contention being that, by agreement between it and the defendant, the latter had, for a valuable consideration, waived his claim to such damages. The evidence upon this issue was conflicting.

On June 7, 1909, the board of directors of the plaintiff corporation passed the following resolutions:

“Meeting of the board of directors of the Llano Granite & Marble Company held in the office of the secretary at San Antonio, Texas, on the 7th day of June, 1909. Present J. S. Sweet, A. J. Ridder, George Bodet. It appearing that the National Bank of Commerce of San Antonio, Texas, holds the company’s notes to a large amount, for advances made on account of the church constructed at Orange, Texas, and that more funds will be needed before the completion of said contract, it is therefore moved by A. J. Ridder, seconded by J. S. Sweet, that we transfer, assign and set over to the National Bank of Commerce of San Antonio, Texas, all our right, title and interest to whatever balance may be due us by Job Hollinger of Kansas City, Missouri, on said Orange contract.”

On October 16, 1909, the president of the National Bank of Commerce wrote the defendant Hollinger, stating that the bank held the above order, and inclosing him a copy thereof. This letter proceeds:

“I understand that the work at Orange is about completed and would very much appreciate your acknowledgment of this letter and your advice that you will pay the money to us when payable. I would very fauch appreciate an expression from you as to the probable amount that will be due at the closing of the contract, and when you expect to complete the work.”

There seenls to have been delay in obtaining an acceptance of the work by the architect. On February 26, 1910, the architect telegraphed appellee’s manager that he had given Hollinger an acceptance of the work several days previous. This is the only evidence of the date of acceptance we have found in the record.

On March 16, 1910, Hollinger wrote the bank, inclosing a statement of the account between himself and appellee and a check to cover the balance due as claimed by him. The amount of damages for delay shown in this account was not the full amount to which Hollinger claimed to be entitled. This cheek and the subsequent indorsements thereon are as follows:

“Orange, Texas, March 16, 1910. No. 120. “The First National Bank of Orange, Texas:
$5,007.06.
“Pay to National Bank of Commerce or order five thousand and seven and 06/ioo dollars, balance in .full on account of contracts dated June 25, 1907, and October 4, 1907, for Butcher Mem. Chr. Orange, Texas, per order from Llano Granite & Marble Co. dated June 7,1909.
“Job Hollinger Personal Acct.”

Indorsed on back of check:

“Protesting against assertions on reverse hereof and without obligating Llano Granite & Marble Co. .For collection. Pay any bank or banker or order. National Bank of Commerce of San Antonio, Texas.”

Indorsed on face:

“Paid March 31, 1910. 1st Natl. Bank, Orange, Texas.”

Upon receipt of this letter the bank wrote Hollinger as follows:

“Job Hollinger, Esq., 615 New Nelson Bldg., Kansas City, Mo. — Dear Sir: Your favor of the 16th is received inclosing check $5,007.06 on the First National Bank of Orange, together with the statement of the account of the Llano Granite & Marble Company. We are not using the check at this time but holding it for advice from the Llano Granite & Marble Company. They desire to check the account and we will await their further advices before accepting or making use of the said check. It is probable that they will desire to communicate with you. Kindly promptly acknowledge receipt of this letter with your further advices.
“Yours truly, J. P. Barclay, President.”

On March 30, 1910, the day before the check was paid by the bank at Orange, on which it was drawn, plaintiff wrote the defendant the following letter:

“San Antonio, Texas, 3-30-10.
“Mr.. Job Hollinger: As I wrote you some days since that Mr. Teich would go over the account and statement sent the bank by you. I have had Mr. Teich go over the account and everything. seems all right as to your statement, but the liquidated damages you make claim does not seem to be right as you have not had to pay for the over time from the Lutcher Moore people. Now I wish to ask you as a man that you treat us as you would like to be treated in this matter. I have done all in my power to have this contract pushed as rapidly as we could and when the company of which you are the general contractor does not insist on your paying any liquidated damages, it does not seem that you should insist on our paying you any. You are aware that you did not deliver the foundation to us as you should have and it was your delay that first delayed us, and therefore you should not exact of us something that you caused to be done. You are aware that we sustained a very great loss on this contract and knowing that we were sustaining this loss we went ahead and completed the contract. Now Mr.- Hollinger, I believe you are just in this matter and we do not wish to have any words over this as I have at all times believed that you would treat us just and fair in the settlement of this claim. Kindly let me have an expression from you by return mail and you will greatly oblige,
“Yours very truly,
“The Llano Granite & Marble Co., “John S. Sweet, Pres.”

The amount received by the National Bank of Commerce on the check sent it by defendant Hollinger was appropriated by it to the payment of the indebtedness due it by the ap-pellee, for which it held the, account against defendant Hollinger as security, and was not sufficient to discharge such indebtedness.

We are of the opinion that the cashing by the National Bank of Commerce of the check, containing the recital therein that it was payment in full of the amount due plaintiff by the defendant, constituted an accord and satisfaction or settlement of plaintiff’s claim. Defendant was as fully protected under the facts of this ease in dealing with the bank as he would have been had he sent the check to plaintiff corporation and it had been cashed by it. The bank was the legal holder of the account at the time the payment was made to it, and plaintiff had informed defendant that it had transferred its claim to the bank and directed him to make payment to the bank. Such being the facts, any settlement made by defendant with the bank would be binding upon the plaintiff.

It seems to be well settled that the acceptance and collection even under protest of a check given in full payment of a disputed claim, but for a less amount than is due, is a bar to recovery of the balance. Hunt v. Ogden, 125 S. W. 386; Daugherty v. Herndon, 27 Tex. Civ. App. 175, 65 S. W. 891; Stetson-Preston Co. v. Dodson & Co., 103 S. W. 685.

In the case of Fuller v. Kemp, 138 N. Y. 237, 33 N. E. 1035, 20 L. R. A. 785, the court, in discussing this question, says:

“The tender and the condition could not be dissevered'. The one could not be taken and the other rejected. The acceptance of the money involved the acceptance of the condition, and the law will not permit any other inference to be drawn from the transaction. Under such circumstances, the assent of the creditor to the terms proposed by the debtor will be implied, and no words of protest can affect the legal quality of this act. * * * ' The law favors the adjustment of such controversies without judicial intervention, and will not permit the creditor to accept and retain money which has been tendered by way of compromise, and then successfully litigate with his debtor for the recovery of a greater sum.”

The case of Stetson-Preston v. Dodson, supra, in which a writ of error was denied by our Supreme Court, is a decision of the exact point involved in this suit. The statement of the case and the holding of the court are as follows:

“The judgment of the trial court may be affirmed on that phase of the case which shows that the appellants received, Cashed, and used the check sent them by Dodson, accompanied with the statement that it was in settlement of the indebtedness due them, made with the representative, McClellan & Co. This check was accompanied with a full statement, showing- what was embraced in the settlement between Dodson and McClellan. The letter in which the check was sent to the plaintiffs fully informed them that it was intended for a certain purpose; that is, in payment of an amount determined to be due them under a settlement with their agent, McClellan. They accepted this check and appropriated the funds that arose from cashing it. It is true at the same time they wrote a letter to the appellees, in effect stating that they would not be bound by this settlement, but that they would credit, and had credited, the sum received on appellees’ indebtedness. There was existing priot to that time a controversy between the parties as to what the amount was. If it be conceded that McClellan & Co. were not authorized to make a full settlement with the appellees, and if, in making such settlement, they allowed the appellees certain credits which they were not entitled to, these facts would not affect the right of the appellees to judgment under the peculiar circumstances of this case. The appellants were only authorized to accept and appropriate the draft in accordance with the terms under which it was sent. They were distinctly informed that it was sent in full payment of a settlement made with McClellan; and, if they did not intend to be bound by such settlement, they should have repudiated the transaction in toto and returned to the appellees the draft received. Knowing- that it was sent in pursuance and satisfaction of that settlement, retaining the draft and appropriating it operated in law as a ratification of the act of McClellan, and bound them to the terms of the settlement agreed upon. Judgment affirmed.”

Under this view of the law, the facts being -undisputed, appellee was not entitled to recover any judgment in the court below, and it follows that the judgment must be reversed, and judgment here rendered in favor of appellant; and it is so ordered.

Reversed and rendered.
      cga^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, O. J.

text:
    MERCHANTS’ & PLANTERS’ NAT. BANK OF MT. VERNON v. JONES.
    (No. 1399.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 28, 1915.)
    1. Principal and Agent <&wkey;136 — Contracts —Personal Liability oe Agent.
    Defendant was employed by a peanut factory to purchase three car loads of peanuts, and he arranged with a bank to pay for the peanuts so purchased. When the three car loads were shipped, he drew a draft on the factory for the supposed price thereof in favor of the bank, which was paid, but it was after-wards discovered that the draft was for less than the full price of the peanuts. Defendant thereupon in his own name drew a draft for the balance, which the factory refused to pay. Held, that defendant was liable to the bank on this last draft, even though, in drawing it, he acted as agent for the factory, as an agent who makes, indorses, or accepts a negotiable instrument in his own name is personally liable thereon, though he may have acted in good faith and disclosed the fact of his agency or the name of his principal.
    [Ed. Note. — For other cases, .see Principal and Agent, Cent. Dig. §§ 447-450, 476-491; Dec. Dig. <&wkey;>l36.]
    2. Principal and Agent &wkey;>13G — Contracts —Personal Liability oe Agent.
    Even though the first draft would have been paid by the factory had it been drawn for the full amount due, and the failure to so draw it was due to carelessness on the part of the bank’s cashier, this did not relieve defendant of liability; he having been fully advised of these facts when the draft was drawn.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 447 — 450, 476-491; Dec. Dig. <i&wkey;186.]
    3. Release <&wkey;12 — Consideration — Necessity.
    Where defendant was liable to plaintiff, he was not relieved of liability by plaintiff’s assurance, when a suit ’against him and another party was commenced, that it claimed no liability against him, but was making him a party merely to give jurisdiction to the courts of a particular county over the third party,; there having been no consideration for this agreement to release defendant from liability.
    [Ed. Note. — For other cases, see Release, Cent. Dig. §§ 18-20; Dec. Dig. <&wkey;>12.]
    Appeal from Franklin County Court; J. J. Walker, Judge.
    Action by the Merchants’ & Planters’ National Bank of Mt. Vernon, Tex., against C. J. Jones. Judgment for defendant, and plaintiff appeals.
    Reversed and rendered.
    The suit was by appellant, the payee, against appellee, the drawer, and the Terrell Peanut Factory, the drawee, of a draft as follows:
    “Mt. Vernon, Texas, Dec. 5, 1908.
    “Pay to the order of the Merchants’ & Planters’ National Bank of Mt. Vernon, Texas, the sum of one hundred and thirty-four and os/ioo ($134.93) dollars, for value received, and charge to the account of C. J. Jones.
    “To Terrell Peanut Factory, Terrell, Texas.”
    The suit was dismissed, so far as it was against the peanut factory. A trial as between appellant and appellee resulted' in a judgment that the former take nothing by its suit against the latter.
    In his answer appellee alleged and as a witness testified to facts substantially as follows: (1) That the peanut factory employed him to purchase three car loads of peanuts in Mt. Vernon and ship same to it at Terrell, at 55 cents a bushel, and agreed to pay him, for his services in doing so, 5 cents for each bushel of the peanuts shipped. (2) That he arranged with appellant to pay for the peanuts by having the peanut factory have its bank in Terrell guarantee appellant that the peanut factory would pay his draft on it for the value of the three car loads of peanuts at 55 cents a bushel. (3) That he himself owned 300 or 400 bushels of peanuts and purchased of growers thereof the additional quantity necessary to make three car loads. (4) That when he purchased peanuts a ticket showing the quantity purchased was given to the seller thereof. (5) That the tickets so given to sellers were treated by appellant as checks drawn by him and paid by it when presented for the purpose. (6) That appellant paid him for the peanuts he owned, and also paid him the commission of 5 cents he was to receive of the peanut factory. (7) That, when the three car loads of peanuts were shipped to the peanut factory, he drew a draft on it in favor of appellant for a sum then supposed to represent the value of the three car loads of peanuts at 55 cents a bushel. (8) That the draft was paid by the peanut factory.» (9) That afterwards it was discovered that some of the tickets paid by appellant, as the result of carelessness on the part of appellant’s cashier, had been overlooked at the time the draft was drawn, and that, as a consequence thereof, the draft was for $134.93 less than it should have been for, to cover all the peanuts shipped at 55 cents a bushel. (10) That thereupon he drew the draft set out above, which the peanut factory refused to pay. (11) That appellant requested him to sue the peanut factory, and, on his refusal to do so, commenced this suit against him and the peanut factory. (12) That, at the time it commenced the suit, appellant assured him it was making him a party merely for the purpose of giving jurisdiction to the courts of Franklin county over the person of the peanut factory, and did not claim a liability on his part to it.
    The court below in effect instructed the jury to find for appellee if they believed he acted as agent for the peanut factory in drawing the draft sued .upon, or if they believed the amount of that draft was not included in the draft first drawn as a result of carelessness on the part of appellant’s cashier, or if they believed appellee was made a party to the suit merely for the purpose of giving jurisdiction to the courts of Franklin county over the person of the peanut factory, and that appellant had assured him that it (appellant) did not claim a liability on his part to it.
    R. T. Wilkinson and H. L. Wilkinson, both of Mt. Vernon, for appellant. S. D. Goswick, of Mt. Vernon, for appellee.
   WILLSON, O. J.

(after stating the facts as above). On the ease made by the pleadings and the evidence, we think the court should have instructed the jury to find for appellant. It follows we are of opinion the-seventh assignment, in which complaint is made of the refusal of the court to so instruct the jury, should have been sustained.

Appellee’s contention that he acted for the peanut factory in drawing the draft on it, if sustained by the record, would not furnish a reason why he should not be held liable to appellant. The law applicable to such a contention has been stated to be as follows:

“It is a well-settled rule that only such persons are liable on a negotiable instrument as are named or described therein, or, in other words, a negotiable instrument is binding on the person only by whom it is signed. If an agent is authorized to make, draw, accept, or indorse a negotiable bill or note, in order that it .may be binding on the principal, he must either sign the principal’s name, or must make it appear in some way from the face of the instrument that it was executed by him; and, if instead of doing so, he, innocently or intentionally, makes it appear that he himself is the party to the instrument, it will be binding on him alone. When, therefore, the agent makes, indorses, or accepts a negotiable instrument in his own name, he is personally liable thereon, although he may have acted in good faith and may have disclosed the fact of his agency or the name of his principal; and parol evidence is inadmissible for the purpose of charging another or relieving the agent from liability on such instrument. And this is true notwithstanding a request to charge the bill or note to a particular account, and although the payee knows the maker, acceptor, or indorser to be an agent.” 2 Clark & Skyles on the Law of Agency.

No reason appears from anything in the record before us why the general rule stated above should not be held to be applicable to the contention made by appellee, and conclusive as against a right in him to have the contention sustained.

Because the draft first drawn was paid by the peanut factory, appellee assumes that it would have been paid had it been drawn for a sum of $134.93 in excess of the sum it was drawn for. It was not shown that the first draft would have been paid had it been drawn for the full amount due for the peanuts ; but if it should be conceded' that it would have been, and if it should also be conceded that it was due to carelessness on the part of appellant’s cashier that it was not so drawn, it would not follow that appellee would have been relieved of liability on the draft sued upon. He was as fully advised of those facts, if they were facts, at the time he drew the draft sued upon, as he was at the time this suit was commenced or afterwards.

Nor do we think the fact, if it was a fact, that appellant, at the time it commenced tlie suit against him, assured him that it did not claim a liability against him, but was making him a party merely for the purpose of giving jurisdiction to the courts of Franklin county over the person of the peanut factory, was a reason why he should have been relieved of the obligation he incurred to pay the draft sued upon if the peanut factory failed to pay it. It was not pretended that there was any consideration to appellant for its alleged agreement to release him from his liability to it.

The judgment will be reversed, and judgment will be here rendered that appellant have and recover of appellee the amount of the draft sued upon, intez'est thereon, and the costs of this court and of the justice and county courts.
      tg^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    SAN ANTONIO, U. & G. R. CO. v. MOYA.
    (No. 5404.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 27, 1915.

    Rehearing Denied Feb. 24, 1915.)
    1. Belease <@=>58 — Validity — Jury Question.
    Where an injured servant attacked the validity of a purported release, his testimony that he did not sign the instrument was in itself sufficient to take that question to the jury.
    [Ed. Note. — For other cases, see Belease, Cent. Dig. §§ 109-114; Dec. Dig. <@=>58.]
    2. Negligence @=>101 — Injuries to Sebvant —CONTEIBUTOET NEGLIGENCE — MITIGATION oe Damage.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6649, a railroad company, guilty of negligence, cannot escape liability for injuries to a servant because of the servant’s own contributory negligence; his negligence merely mitigating damages.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 85, 163, 164, 167; Dec. Dig. <@=> 101.]
    3. Belease <@=>57 — Validity — Considera - tion.
    An obviously inadequate consideration in itself tends to show that an injured servant did not sign a release.
    [Ed. Note. — For other cases, see Belease, Cent. Dig. §§ 106-108; Dec. Dig. <@=>57.]
    4. Teial @=>133 — Abgument oe Counsel — Impe ouriety .
    Argument by the attorney of a servant, whose foot was crushed under a car, that a purported Z'elease, reciting a consideration of $1, was obviously invalid, because the consideration would not even have paid for the servant’s shoe, is not so inflammatory as to invalidate -a verdict, particularly where the court erroneously charged the jury to disregard it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. @=>133.]
    5. Damages <@=>132 — Peesonal Injuries — Sufficiency.
    An award of $5,000 in favor of a common Mexican laborer, whose foot was crushed under the wheels of a car, so that the major portion had to be amputated, and he could only walk on the heel, is not excessive.
    [Ed. Note. — For other eases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. <@=> 132.]
    Appeal from District Court, Zavala County; B. H. Burney, Judge.
    Action by Ilario Moya against the San Antonio, Uvalde & Gulf Bailroad Company, through its receiver, Duval West. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Williams & Hartman, of San Antonio, for appellant. Geo. C. Herman, of Batesville, and C. C. Harris and Arnold, Cozby & Pey-ton, all of San Antonio, for appellee.
   KEY, C. J.

This suit was instituted by appellee against appellant, through its receiver, Duval West, to recover damages arising from injuries inflicted upon him through the negligence of appellant. It was alleged that, before the railroad company went into the hands of a receiver, appellee was injured through the negligence of appellant, which consisted in propelling a car over his foot while he was engaged in coupling cars which refused to couple automatically; that, while engaged in arranging the coupler so that it would couple, the cars were moved without a signal upon him and hurt his foot so that it had to be amputated; that the car was not equipped with a coupler that would couple by impact, but could only be coupled by going between the cars. The cause was tried by jury and resulted in a verdict and judgment for appellee in the sum of $10,000. The court required a remittitur of $5,000, which was entered.

Appellee was an employs of appellant, and was ordered by his foreman, who was in charge at the time of an engine belonging to appellant, to go with him to get a car of coal. Appellee was to do the coupling and uncoupling. The engine, with two empty coal cars, moved to where the car of coal was standing. When the empty cars were backed against the coal car, the impact did not couple the cars, and appellee gave a signal to the engineer to go forward a little, and when that was done he went between the cars to fix the coupler. While so engaged, without warning, the cars were moved back against him, crushing his foot. Part of the foot was amputated, and appellee was rendered a cripple for life. While on the train the morning after the injury was inflicted, a written release of damages was presented to appellee by an agent of appellant, and a dollar was given him, which was the consideration mentioned in the release. When hurt, appellee was trying to push the coupler on the car of cqal into place so it would couple. It could not be put in place by any appliance on the car.

The first assignment of error is overruled. Appellee swore that he did not sign the release, and that was sufficient to justify the submission of the issue of his signing it to the jury. Appellant in its statement quotes the testimony of appellee, which is a complete answer to the assignment. Appellee swore:

“As to whether this is my signature, it is my name, but not my signature. I will swear that I did not sign this release.”

This statement may have been inconsistent with other portions of appellee’s testimony, but that did not prevent it from raising the issue as to the signature.

The second, third, and fourth assignments of error are overruled. The court gave the proper charge on comparative negligence, and the special charge requested by appellant did not embody the law. The comparison of the degree of negligence of the parties merely goes to the amount and could not destroy the right of the plaintiff to recover as long as the defendant was guilty of any negligence that, concurring with that of the plaintiff, caused the injury. If appellee was guilty of more negligence than appellant, that did not destroy his cause of action, but merely decreased the amount of his recovery in the same proportion that his negligence bore towards the whole of the negligence. For instance, if appellee’s negligence was one-fourth of that of the whole negligence, he could recover only three-fourths of the compensation he would recover if not guilty of any contributory negligence. If the negligence of each was equal, he would recover one-half of the compensation, and of course, if his negligence alone produced the injury, he would recover nothing. The statute in terms provides:

“That the fact that an employé may have been guilty of contributory negligence shall not bar _ a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employs.”

The law does not contemplate that any amount of contributory negligence should completely destroy the cause of action of an injured employé of a common carrier, but merely decrease his compensation for his injuries. In other words, the railroad company cannot escape liability for the payment of some amount if its negligence in any degree concurred with the negligence of the injured employé in producing the result. Vernon’s Sayles’ Stats, art. 6649; Railway v. Sample, 145 S. W. 1057.

Our conclusions of fact dispose of the fourth and eighth assignments adversely to appellant. There was evidence to sustain the verdict.

The evidence of appellant showed that the release was obtained at a time when appellee was, on account of his suffering and opiates he had taken, incapacitated to make a contract. The very consideration named in the release tends to show that the party executing it was ignorant of its contents. Sutherland, Damages, § 255. In this case the consideration was recited to be $1. Appellee is a Mexican and cannot read English. The sixth assignment will not be sustained.

In his closing argument to the jury counsel said:

“While the plaintiff was on the train going to San Antonio, only a few hours after his injury, the claim agent came to him and said to him; ‘Here, sign this paper, and we will 'give you $1 after a while. You haven’t got any right anyway.’ Why, gentlemen of the jury, a dollar would not have paid for his shoe.”

The argument was objected to by appellant because fraud or duress had not been pleaded, and because it was “highly inflammatory and prejudicial.” We think the argument was permissible, but the trial judge did not think so, and instructed the jury not to consider it, and the attorney who made the argument also asked the jury not to consider it. Appellant has no cause for complaint. The jury must have been in a highly excited condition to have been so wrought up by the language copied as to have been led by it into passion and prejudice in rendering their verdict. The seventh assignment is overruled.

If there was excess in the verdict, it was cured by the trial court requiring a remittitur of one-half of the amount. Appellee may be, as stated by appellant, “a common Mexican laborer,” but he is entitled to compensation for the maiming of his foot in such way as to render him a cripple for life. He lost over half his right foot, and is compelled to walk on the heel of his foot.

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


author: HODGES, J.

text:
    BRAUMILLER et al. v. BURKE.
    (No. 1385.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 28, 1915.
    Rehearing Denied Feb. 11, 1915.)
    Boundaries <§=^3 — Calls eor Course and Distance — Galls eor Lines.
    ■ A patentee’s field notes called for the western boundary of a section as his eastern boundary. The western boundary of the section, not evidenced by any location on the ground, was ascertained by measurements. A marked line did not conform to the line fixed by measurements, and there was nothing to show who marked the line, or when it was done, except that it appeared to be an old survey. Held, that the call in the field notes for the boundary line must prevail over any call for course and distance, though courses and distances prevail, except when in conflict with a survey as actually made.
    ■ [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. <§=>3.]
    Appeal from District Court, Bowie County ; W. T.' Armstead, Judge.
    Action by C. C. Burke against Nick Brau-miller and another. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Class, Estes, King & Burford, of Texar-kana, for appellants. Chas. S. Todd and R. W. Rodgers, both of Texarkana, for appel-lee.
   HODGES, J.

The appellee, as the plaintiff below, instituted this suit against the appellants, alleging that he is the owner and in possession of the following described tract of land situated in Bowie County:

“Beginning at a stake B. Nix S. E. corner; * * • thence east with W. H. Ector’s north boundary line 327 vrs. to a stake on the west boundary line Sec. No. 3; thence north with west boundary line of section No. 3, 1538 vrs., to south boundary line of A. J. King’s survey, a stake on said A. J. King’s survey; thence west with said King’s survey at 107 vrs. King’s west cor., and to A. Plope’s east boundary line 220 vrs., in all 327 vrs., to a stake; * * * thence south with A. Hope’s and B. Nix’s east boundary lines, 1,538 vrs., to place of beginning.”

It is alleged that the appellants, acting jointly and severally, wrongfully entered upon and toot possession of a part of said land, consisting of a strip of about 10 acres off the east side, about 1,200 feet long north and south, and 300 feet wide east and west, of the reasonable value of $200, and that without the consent of the plaintiff the appellants committed certain trespasses in the way of cutting and carrying off timber, earth, and gravel, to plaintiff’s damage in the sum of $2,000. He prayed for a judgment for possession of the strip of land referred to, and for damages.

The appellants answered by general and special demurrers, and to the merits as follows:

“Now come the defendants in the above styled and numbered cause, and deny that they, acting together or severally, unlawfully, wrongfully, and with force of arms entered upon land belonging to the plaintiff, or that they took possession of any land belonging to the plaintiff, as alleged by the plaintiff, or that they have committed any unlawful entry or trespass, or have unlawfully, forcibly, or wrongfully cut, carried away, or converted to their own use valuable trees or timber growing on any land belonging to the plaintiff, or have made and dug large and deep excavations upon any land belonging to the plaintiff, or have taken, carried away, sold, or converted to their own use any quantity of gravel or sand from any land belonging to the plaintiff, of any value whatever; and they further deny that they have inclosed and cultivated any land belonging to the plaintiff, or have raised, gathered, and appropriated any crops of corn belonging to the plaintiff.
“The defendants further deny that they, or either of them, have been guilty of any of the wrongs and trespasses complained of by the plaintiff, or that they are in any way liable to the plaintiff in any sum whatever as damages by reason of the allegations of the plaintiff in the petition.”

This is the second appeal in this case. The former will be found as Burke v. Brau-miller et al., 150 S. W. 206, and we refer to that opinion for a fuller statement of the facts. In that appeal the cause was reversed and remanded for another trial, and it appears that the pleadings were thereafter amended. As the pleadings now stand, this action should be regarded as a suit by the appellee for possession and for damages for certain trespasses, consisting of the unlawful removal of timber, gravel, and earth. In their answer the appellants do not deny that the appellee owns all of the land embraced in the field notes contained in his amended original petition. They merely say that they did not commit the wrongs and trespasses alleged upon any land belonging to the appel-lee. It is not denied in the testimony that the appellants did enter upon and commit the acts referred to upon land in that immediate vicinity, and did remove gravel and timber therefrom ; but they put the appellee upon proof of the fact that these depredations were committed on the land described in his petition.

The controversy, though not by the pleadings made a boundary suit, really assumed the form of a dispute over the location of the east boundary line of the appellee’s land; the evidence showing that the appellants, or some of them, claimed the land adjoining this on the east. If the east boundary line is where the appellee claims it is, the appellants committed their depredations on his land and are liable for damages; but if this line is where the appellants claim it should be, they were not guilty of trespassing upon the appellee’s premises. It will be observed that the appellee’s field notes call for the west boundary line of section 3 as his east boundary line. There seems to be no dispute about the correct location of the corner at which this description begins; but in running the distance of the first call, 327 varas, it lacks 40 or 50 varas of reaching what ap-pellee contends is the west boundary line of section 3, and it is his effort to extend this call to that point that is resisted.

The appellants contend that appellee should be held to the distance called for in his field notes. Under the well-established rule in such controversies, the call for the west boundary line of this survey should prevail over the call for course and distance. Maddox v. Fenner, 79 Tex. 279, 15 S. W. 237; Davis v. Baylor (Sup.) 19 S. W. 523; Hermann v. Thomas, 168 S. W. 1037, and cases there cited. The evidence does not disclose any established line or corners which can be considered as marking with certainty the location of the west boundary line of section 3. The original field notes of section 3 are as follows:

“In Bowie county on the waters of Day’s creek, a tributary of Sulphur river, about 21 miles N. 81° E. of Boston, known as survey No. 3, by virtue of land scrip No. 348, issued by the commissioner of claims December 4, 1860, in accordance with an act to incorporate said com-' pany, approved February 4, 1856, and transferred by the president of said company to said Wright, February —, 1861. Beginning at a stake the N. E. corner of section No. 4 on the state line, whence a pine brs. S. 36° W. 9 vrs., a P. O. brs. N. 47° W. 12.5 vrs.; thence north 1,200 vrs. W. Oldham’s S. E. corner a stake, whence a pine brs. S. 22° west 15 vrs., do. brs. S. 67° W. 7 vrs.; thence west 1,900 vrs. W Oldham’s S'. W corner a stake, whence a R. O. brs. S. 30° E. 10 vrs., and a pine brs. S. 44° W. 19 vrs.; thence north 642 vrs. the S. E. corner of A. J. King’s survey a stake, whence a hickory brs. S. 80° W. 26 vrs., a pine brs. S. 30° W. 6 vrs.; thence west 572 vrs. a stake on the S. B. line of A. J. King’s survey, whence a pine brs. N. 33° E. 8 vrs., do. brs. south 50° E. 13 vrs.; thence south 2,196 vrs. a stake on the N. B. line of W. W. "Wooten’s survey a stake, whence a pine brs. S. 25° W. 5 vrs., do. brs. N. 37° W. 9 vrs.; thence east 791 vrs. W, W. Wooten’s N. ID. corner stake, whence a black jack brs. S. 37° E. 8 vrs., a pine brs. S. 21° E. 10 vrs.; thence N. 354 vrs. the N. W. cor of section No. 4 a stake, whence a pine brs. S. 36° W. 10 vrs., do. brs. S. 50° E. 13 vrs.; thence east 1,681 vrs. to the beginning bearings marked

None of the bearing trees here called for could he located. But the west boundary line of section 3, according to course and distance, is 2,472 varas west of the state line. In the absence of some established memorials which can be relied on as marking the location of that line on the ground, the original survey can be ascertained only by measuring from the state line, a recognized boundary about which there appears to be no dispute. This measurement was made by a surveyor who testified on the trial, and according to his evidence the land upon which were committed the depredations complained of lies west of that line and within the limits described as the appellee’s land. The correctness of these measurements is not disputed by any other testimony. There was testimony, however, tending to show the existence of an old marked line farther west than where the measurements made by this surveyor located the west boundary line of section 3. It is here that the appellants claim the true location of that line to be. If their contention be correct, the depredations were not committed upon the appellee’s land. There is no evidence as to who marked that line, or when it was done, except that it appeared to be an old survey.

Appellants contend that, inasmuch as the west boundary line of section 3 can only be located by measurements from its east boundary line, the call in the appellee’s patent for that west boundary line should be subordinated to its call for distance, and for that reason the appellee’s south boundary line should not be extended beyond a point 327 varas east from his southwest corner. That proposition is not sustained by the authorities which we have cited. In the first case referred to, the court said:

“When unmarked lines of adjacent surveys are called for, and when, from the other calls of such adjacent surveys, the position of such unmarked lines can be ascertained with 'accuracy, and when, in the absence of all evidence as to how the survey was actually made, there arises a controversy as to whether course and distance or the unmarked line of another survey shall prevail, we see no good reason why the survey line shall not be given the dignity of an ‘artificial object,’ and prevail over course and distance..”

Applying that rule to the facts in this case, the call in the appellee’s field notes for the unmarked line of section No. 3 should prevail over the call in his patent for course and distance. The evidence relied upon to< indicate that the original line had been located upon the ground at a different point is too unreliable to displace a line which can be located with accuracy by course and distance. Course and distance will prevail in every instance, except where shown to be in conflict with the survey as actually made. The court committed no error in giving the charge he did, in directing that the appellee was entitled to the possession and such damages as he sustained to the land sued for.

It is not necessary to discuss the assignments of error in detail. A settlement of the disputed line determines the entire controversy. Appellants do not claim in their pleadings any title to the land involved in this suit. The issues there made are merely whether or not the appellants committed these acts of depredation upon that land. If the appellee owned all of this tract of land, he was entitled to the possession of all. The fact that he did not describe with certainty the particular portions upon which the depredations were committed is of no consequence, in view of the further fact that he established a right to the exclusive possession of all the land. The facts of this case are practically the same as those on the former appeal.

The judgment will therefore be affirmed.
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text:
    RUSSELL et al. v. RHONE.
    (No. 1404.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 4, 1915.)
    Evidence <§=>264 — Admissions—Foece and Effect.
    In an action on a note, where defendant, to secure the privilege of opening and closing, admitted the cause of action stated in the petition, except in so far as it might be defeated by the plea in reconvention, such admission carried with it proof of all of the facts essential to support a recovery for the full amount of the note, with interest and attorney’s fees.
    [Ed. Note. — For other cases, see Evidence., Cent. Dig. § 1028; Dec, Dig. <§=>264.3
    Appeal from Upshur County Court; W. H. McClelland, Judge.
    Action by W. M. Rhone against Hardee Bussell and another. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    M. D. Carlock, of Winnsboro, and J. S. Barnwell, of Gilmer, for appellants. Warren & Briggs, of Gilmer, for appellee.
   HODGES, J.

The appellee filed this suit against the appellants to recover the principal, interest, and attorney’s fees due upon a note for $300. The appellants answered By a general denial and a plea in reconvention, claiming damages in the sum of $1,000 for a breach of warranty in the sale of certain timber.

The facts show that in November, 1904, J. W. Wall and the appellee sold the timber on about 15 different tracts of land to B. A. Penn, J. L. Penn, L. M. Gilbreath, and B. C. Cain, the consideration being $7,500, evidenc-eel by a series of promissory notes due on different dates. The last of this series is the note sued on in tbis instance. Some time after this transaction the purchasers of the timber sold their interest in it to Hardee Russell and T. G. Carlock, the present appellants, the latter agreeing to pay the notes theretofore executed by their vendors. This sale was made with the consent of the owners and holders of the notes, and the agreement of the appellants to assume the payment was evidenced by the indorsement of their names on the backs of the notes. At the time this sale was made, and as an inducement to the appellants to enter into the contract of purchase, the appellee, Rhone, agreed to, and did, orally guarantee that there were 5,000,000 feet of merchantable pine timber on the several tracts of land embraced in the sale, and that the purchasers would get that amount of timber therefrom provided it was cut according to the contract and specifications set forth in the several conveyances of the timber to Wall and Rhone, and that if, when the timber was cut, it fell short of the 5,000,000 feet, the appellee bound himself to make the shortage good as to his half only. L. A. Penn, .one of the original purchasers from Wall and the appellee, guaranteed the amount of the timber as to the half interest formerly owned by Wall. Relying upon this guaranty, the appellants assumed the payment of the notes to Wall and Rhone, and made the indorsements above referred to. The appellee, Rhone, afterward acquired the interest of Wall in the notes, and was the sole owner of the present note at the time it was sued on. Shortly after their purchase of the timber the appellants began cutting and removing it from the land, and continued until on or about the 18th of April, 1911, when they ceased, claiming that all the timber had been cut and that it was short of the 5,000,000 feet which they had been assured was there, and refused to pay the note sued on.

The case was submitted to the court without a jury, and a judgment rendered in favor of the appellee for the full amount of the note, together with interest and attorney’s fees, and against the appellants on their plea in reconvention.

There are several assignments of error which question the sufficiency of the evidence to sustain the findings and conclusions of the court. It is also contended that the judgment for the attorney’s fees is erroneous because there was a total absence of any evidence to support it. It appears from the record before us that, in order to secure the privilege of opening and closing, the appellant admitted the cause of action as stated in the plaintiff’s original petition, except in so far as it might be defeated by their plea in reconvention. This admission carried with it proof of all of the facts essential to support the recovery granted.

We have carefully examined the evidence, and conclude that it is sufficient to support the findings of fact made by the trial court upon which the judgment is predicated, and the judgment there rendered is affirmed.
      dtasEor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    TRABUE v. GUARANTY STATE BANK.
    (No. 1387.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 6, 1915.
    Rehearing Denied Jan. 21, 1915.)
    1. Bills and Notes <®==>518 — Consideration —Evidence.
    In an action on notes and to foreclose a chattel mortgage securing them, evidence held to sustain a finding that the notes were supported by a consideration.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1816-1820; Dec. Dig. 518.]
    2. Appeal and Error @^>501 — Question Reviewable— Refusal to Consolidate Actions — Exception.
    An exception to refusal to consolidate actions, on the answer or motion of party complaining, must be preserved, or the ruling will not be reviewed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. <§==> 501.]
    Appeal from District Court, Panola County; W. C. Burford, Judge.
    Action by the Guaranty State Bank against R. C. Trabue. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    H. N. Nelson, of Carthage, for appellant. W. G. Banks, of Carthage, for appellee.
   LEVY, J.

Appellee sued appellant on two notes, and to foreclose a chattel mortgage on personalty given to secure same. Appellant pleaded as a defense failure of the consideration for which the notes sued upon were given. In a trial before the court without a jury judgment was given the plaintiff for the amount of the notes sued for, with foreclosure of the mortgage lien and sale of the property.

Appellant by his first assignment of error insists that the evidence indisputably shows a failure of the consideration for which hjs notes were given. The evidence in the record here shows a conflicting state of facts in regard to the matter relied on to establish a failure of consideration. It seems that Neal and I-Iarrison had purchased a sawmill, and had executed their notes in part payment of same and secured them with a mortgage on the mill. While this transaction was in the name of the bank, ,it was not actually a transaction for the bank, but for another person, and it was so understood by the parties. Subsequently Neal and Harrison, according to the evidence, came to the bank and offered to surrender the property and have their notes canceled. The evidence on the part of appellant goes to show that the bank consented to rescind and cancel the original transaction: But the evidence on the part of the appellee goes to show that there was refusal by the bank to cancel the trade and surrender the notes. At the maturity of the notes of Neal and Harrison the bank made sale of the mortgaged property according to the terms of the mortgage, and bought it in. The purchase price at the sale was then credited on the notes. After sale and purchase the bank sold the appellant the property, and also the notes, less credits entered thereon. The notes were transferred without recourse. Appellant executed the notes and mortgage sued on for such property and the unpaid notes. In view of the con-ilict of evidence this court cannot sustain the assignment.

The second assignment of error is to the effect that the instant suit should have been consolidated and tried with the siiit of Harrison against this appellant and appellee. There does not appear in the record any evidence of such suit. And, in order to review this matter on appeal on the answer or motion of appellant in respect to consolidation or delay thereof for purpose of consolidation, an exception should appear, which does not here, showing that it was brought to the attention of the court and his ruling in regard thereto.

The judgment is affirmed.
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