author: HODGES, J.

text:
    MALLORY v. MANTIUS.
    (No. 1427.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 4, 1915.)
    1. Judgment <&wkey;301 — Correction — Deeects Amendable — Default.
    Petitioner alleged that in a suit against the maker of a note and others,- including petitioner, the clerk entered a judgment reciting that default was taken against petitioner, and that the other defendants prevailed on a finding that the note was without consideration, and that judgment was entered on the default against petitioner; that this was entered by inadvertence, and that the real judgment was that there was no consideration for the note, and that petitioner go hence without day. Petitioner asked for stay of execution and a nunc pro tunc entry of correction. The court’s findings accorded with the allegations of the petition, and the relief was granted. JHelci that, this being a suit to correct record of judgment as authorized by Rev. St. Í911, art. 2015, and not to set aside a default or for stay on the ground that no final judgment was entered, petitioner was not entitled to relief, as it did not appear that the judgment last recited was entered, and in any event would not have been a proper judgment on default under articles 1037, 1938, requiring the court to assess damages on entry of judgment on a default.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 5S7-593; Dec. Dig. &wkey;>301.]
    2. Judgment <&wkey;32&wkey;CoRBECTioN — ProceedINGS — BURDEN OE PROOF.
    A party seeking to correct the record of a judgment by proceedings authorized by Rev. St. 191Í, art. 2015, has the burden of showing that the record does not speak the truth.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 623-625; Dec. Dig. &wkey;>324.]
    Appeal from Smith County Court; Jesse F. Odom, Judge.
    Proceeding by W. C. Mantius against J. A. Mallory. From a judgment for plaintiff, defendant appeals.
    Reversed, and judgment rendered.
    ' Price & Beaird, of Tyler, for appellant. L.’ E. Appleby, of Bishop, for appellee.
   HODGES, J.

On August 14, 1914, the ap-pellee, W. C. Mantius, filed in the court below his first amended original petition, in which he stated the following facts: That on the 3d day of November, 1913, at the October term of the county court of Smith county, a judgment by default was entered against him in the cause of J. A. Mallory against W. A. Mayes and othfers in a certain suit therein pending on a promissory note for the sum of $196.97, with interest and attorney’s fees; that this cause was tried before a jury, in which a verdict had been rendered in favor of Mayes as the principal on the note, and Brown Bros, as sureties, against the plaintiff, Mallory; that the clerk of the county court of Smith county thereupon entered of record the following judgment:

“J. A. Mallory v. W. A. Mayes et al. No. 2685. “In the County Court, Smith County, Texas.
“This 3d day of November, 1913, and at a regular term of this court, came on for trial the above styled and numbered cause, came the plaintiff in person and by attorneys, and announced ready for trial, and the defendants W. A. Mayes, M. G. Brown, and W. Brown appearing by their representative attorneys, but the defendant W. C. Mantius, though duly and legally cited to appear and answer herein, came not, but wholly made default. Wherefore the said plaintiff, J. A. Mallory, ought to recover against the said W. C. Mantius his damages by occasion of the premises; and thereupon came a jury of good and lawful men, to wit, H. W. Walker and five others, who, being duly impaneled and sworn, answered the special issues submitted to them by the court herein as follows: LTfien follow the findings of the jury in response to specific questions, which show that the note sued on was as to Mayes and Brown Bros, without consideration. These findings are omitted as unimportant.] And the said verdict of the jury in answer to said special issues having been received in open court and ordered filed as the verdict of the jury herein, it is therefore ordered, adjudged, and decreed by the court that the defendants W. A. Mayes, M. G. Brown, and W. Brown, go hence without day, and that they recover of the plaintiff their costs in this behalf expended, for which they may have their execution, and that the plaintiff, J. A. Mallory, have and recover of the defendant W. O. Mantius the sum of two hundred forty-eight and 32/100 dollars, with interest on the sum of two hundred twenty-five and 77/100 dollars thereof, at the rate of 101 per cent, per annum from this date until paid, together with all costs of this suit, for all of which let execution issue.”

That the judgment referred to was not, in truth and in fact, the judgment rendered by the court in that case; that upon the trial of that cause, and prior to the rendition of the verdict by the jury, the county judge entered on his docket an interlocutory judgment by default against the plaintiff, Mantius, one of the defendants in that cause; that after the evidence had been heard in said cause and the verdict of the jury had been returned, “the county judge by inadvertence failed to enter in his court docket the judgment of the court, which was as follows, to wit.” Then follows the recital of a judgment in all respects the same as that previously quoted, except the concluding portion, which is as follows:

“And it further appearing to the court, after hearing the evidence as adduced on the trial of said cause and the finding of the jury as set out in their answers to the foregoing special issues submitted to them, that there was no consideration for the execution and delivery of said note to the said Mallory by said Mayes, and that defendants Brown Bros, executed and signed the said note merely as an accommodation to the plaintiff, it is therefore ordered, adjudged, and decreed by the court that, as the defendant, W. C. Mantius received no consideration for the execution and delivery of said note, that he go heneo without day and recover of the plaintiff his cost in this behalf expended. And it is further ordered, adjudged, and decreed by the court that the defendants W. A. Mayes, M. G. Brown, and W. Brown go hence without day and recover of and from the plaintiff their costs in this behalf expended, for which they may have their execution.”

That after the case was tried and judgment entered as set out in paragraph 1 of this' petition, the plaintiff, Mallory, and his attorneys caused execution to be issued against the defendant Mantius, and placed in the hands of Mike Wright, the sheriff of Nueces county, T.ex. (Then follows a statement of the facts which the appellee relied upon to excuse himself for not answering in the suit of Mallory against Mayes and others, above referred to. These will not be reproduced, because the court finds that they were insufficient to excuse the petitioner for not appearing and answering in that suit.) Continuing, the petition avers1 that the judgment entered upon the minutes of the county court was not the real judgment, but was entered by mistake or inadvertence on the part of the clerk; that the defendants Mallory and Wright were about to levy the writ of execution on the property of the plaintiff to his injury. He prays for a writ of injunction restraining Mallory and Wright from proceeding with the execution of that judgment, and also asks that a judgment be now entered nunc pro tunc in the minutes of the county court of Smith county substantially as that set out in the petition as the one which had been rendered upon the trial of the original suit.

The appellant, Mallory, answered by general and special exceptions and by general and special denial.

Upon a hearing before the court without a jury judgment was entered in favor of the appellee, Mantius, restraining the execution of the original judgment entered in the case of Mallory against Mayes and others, and a judgment nunc pro tunc was entered substantially the same as that prayed for in the petition.

The county judge filed his findings of fact and conclusions of law. The facts, in substance, are as follows:

“ITirst. That on September 22, 1913, J. A. Mallory instituted a suit in the county court of Smith county against W. A. Mayes, M. G. Brown, W. Brown, and W. G. Mantius on a promissory note for the principal sum of $196.-97, with 10 per cent, interest from May 14, 1912, and 10 per cent, attorney’s fees; that the petition filed by Mallory was in the usual form of a suit on a promissory note; and that nothing appeared from the note to indicate that any of the parties were sureties thereon.
“Second. Upon the institution of this suit citation was issued and served upon the defendants on the 24th of September, 1913; that these citations were returnable to the next term of the county court of Smith county, which convened in the city of Tyler on the 6th day of October, 1913; that all cases which had been set down for hearing in that court were continued until November 3, 1913, and that the court remained in session until January 3, 1914, when it adjourned finally for the term; that the defendants W. A. Mayes, M. G. Brown, and W. Brown appeared and filed their answers, but that W. C. Mantius failed to appear, and did not file any answer. By agreement of the parties then before the court the cause as between Mallory, Mayes, and the Browns was submitted to a jury on special issues, and a verdict was returned finding that the note sued on was without consideration as to all three of those defendants, and further finding that Mayes was at the time he executed the note of unsound mind. _
_ “Third. That when the case was called for trial on November 3, 1913, in response to the demand of the attorneys for the plaintiff, J. A. Mallory, an interlocutory judgment by default was rendered' against the defendant W. G. Mantius, and noted by the court on the trial docket; that this order was entered before the jury had been impaneled and before any evidence had been introduced in the cause; that after the introduction of evidence and the argument of counsel and the return of the verdict by the jury in answer to the special issues submitted the court was of the opinion, from the evidence introduced, that a failure of consideration had been shown as to the principal on the note himself and the two sureties, and that it necessarily followed that there was also a failure of consideration as to the defendant W. C. Mantius, and intended to enter judgment accordingly on his docket, but through inadvertence failed to do so; that more than a month after this verdict was rendered by the jury counsel for the plaintiff, Mallory, drew up a judgment in favor of the plaintiff against W. O. Mantius for the amount of the principal, interest, and attorney’s fees due on the note sued upon, together with all costs of suit, but in favor of the defendants W. A. Mayes, M. G. Brown, and W. Brown; that this judgment was handed to the clerk of the county court of Smith county, and was by him entered in the judgment minutes without the knowledge of the court and contrary to the verbal judgment of the court with reference to said defendant W. G. Mantius; that said judgment minutes after the entry of said judgment therein were signed by the court without his knowledge of said judgment being spread thereon. I further find that the court never did intend that judgment should be rendered or entered against the said defendant W. O. Mantius; that said interlocutory order by default rendered against him before the trial of said cause was never made final, but that at the end of said trial it was the judgment of the court that said interlocutory judgment by default should be changed to read as a judgment in favor of said defendant W. O. Mantius by reason of the evidence showing a failure of the consideration as to the other signers of the note, both the principal and the two sureties.”

The court then proceeds to find the facts upon which Mantius relies to excuse his failure to answer, which he later concludes were insufficient. In his conclusions of law he makes these further findings: That this injunction proceeding was instituted approximately 7½ months after the trial of the cause of Mallory against Mayes and others; that before the trial an interlocutory judgment by default was entered against Mantius for a failure to appear and answer. He then proceeds:

“The judgment of the court was then that, since there was a failure of consideration as to the principal and two of the sureties, it necessarily followed that there was also a failure of consideration as to said defendant W. O. Mantius; and the court intended to so note said judgment on the court’s docket, but through inadvertence he failed to do so. Thereafter, to wit, some time early in December following, counsel for plaintiff in said cause, J. A. Mallory, spread upon the judgment minutes in said court a judgment embodying the jury’s verdict and a purported judgment against W. 0. Manti-us and in favor of J. A. Mallory. These minutes were afterwards signed by the court. The court is of the opinion that, though W. 0. Man-tius made default at said trial, and that though the diligence as disclosed by the evidence on the trial of this proceeding would of itself hardly be sufficient to entitle him to the relief sought, yet the fact that the judgment spread upon the minutes of this court in said cause of Mallory against Mayes and others was not the real judgment of this court at said time, in that it was the opinion of the court at the time, and still is, that since the consideration failed as to the principal and two of the sureties, and it was not disclosed by the evidence at said trial that said Mantius received any consideration or benefit for signing said note as surety, no judgment ought to have been entered against said Mantius. I therefore conclude that said judgment in the cause of Mallory against Mayes and others was erroneously entered on the judgment minutes of this court in so far as it affected W. G. Mantius, but was correctly entered in so far as it affected W. A. Mayes, M. G. Brown, and W. Brown, and that the said W. C. Mantius is entitled to the relief prayed for herein.”

In disposing of this appeal this suit should not be treated as one to reopen a default judgment and let in a defense, nor one to restrain the sale of property upon the ground that no final judgment had been rendered in the case. Its primary purpose is to correct the record and have entered thereon a judgment radically different from that which had been previously entered. The proceeding is authorized by article 2015 of the Revised Civil Statutes, which is as follows :

“Where there shall be a mistake in the record of any judgment or decree, the judge may, in open court, and after notice of the application therefor has been given to the parties interested in such judgment or decree, amend the same according to the truth and justice of the case, and thereafter the execution shall confoxm to the judgment as amended.”

The object to be accomplished in suits of this character is to make the record a correct memorial of the judgment actually rendered upon the trial of the case. The chief inquiry then is: What was the decree, or order, actually pronounced by the court? It is the duty of trial judges to publicly announce in open court their decisions upon controverted issues, and to publicly pronounce the judgments to be entered upon such findings as they may make, or upon the verdicts of the juries where there is a jury trial. It is the duty of the clerk to record those judgments and orders in the minutes of the court. It is also the duty of the trial ju/Ige, before the adjournment of the term of court, to examine and approve those minutes after making such corrections as he may deem proper. When this is done, and the minutes are signed by the judge as evidence of his approval, the record is presumptively a true memorial of the judgments and decrees which it contains. One who attacks such a record- has the burden of showing that it does not speak the truth. If he desires to have entered upon that record an order or judgment which it does not contain, he must establish evidence that such judgment or order was actually rendered upon the trial of the case. It is not sufficient to show that the court, or judge intended to render such order or decree, or that he should have rendered it, but that he actually did announce in open court as his judgment that which the applicant seeks to have placed upon the records. The important question before us is: Do the facts alleged in the petition of the appellee, and those found by the trial judge, show that the judgment which the appellee now seeks to have placed on the record was, in fact, rendered by the judge upon the trial of the case of Mallory v. Mayes et al.? The court finds that he did render and enter upon his trial docket an interlocutory judgment by default' against the appellee. There is no finding that this order was ever set aside. Under the further findings of the court as to the state of the pleadings and the evidence on that trial, it was clearly his duty on that trial to enter the very judgment which the record discloses was entered, and which is now assailed as incorrect. After default by the appellee on that occasion, and the entry of the default judgment against him, there was nothing for the court to do but to assess the damages. Rev. Civ. Stat. arts. 1937, 1938. A judgment such as that which the ap-pellee now seeks to have placed of record would have been without support in both the pleadings and the evidence, and on appeal should have been reversed. It is immaterial that the evidence disclosed the absence of a consideration as to the appellee, Mantius, on the original note. In the absence of a proper plea presenting that defense, such evidence could not be considered in his favor. Moody v. Rowland, 100 Tex. 363, 99 S. W. 1112; Townes on Pleading, last edition, p. 539, and cases cited. Moreover, by -making default Mantius admitted the truth of all the material facts alleged in the plaintiff’s petition. Both the averments of the petition in this suit and the findings of the court as to what judgment was pronounced on that trial are exceedingly unsatisfactory. For instance, the petitioner says that after the evidence had been heard in that cause, and the jury had returned its verdict, the “county judge by inadvertence failed to enter on his court docket the judgment of the court, which was as follows.” That language is far from being a specific averment that the judgment which followed was actually pronounced by the court upon that occasion. It is immaterial that the court failed to enter any memorandum upon his docket as to what his judgment was. Such entries are intended merely for the guidance of the clerk in the final preparation of his minutes. It is sufficient to constitute a final judgment that the court pronounces his conclusions as a judgment from the bench, so that all of the parties in interest may know and understand what his judgment is. The court in his finding is equally indefinite. For instance, he says:

“The judgment of the court was then that, since there was a failure of consideration as to the principal and two of the sureties, it necessarily followed that there was also a failure of consideration as to said defendant Mantius, and the court intended to so note said judgment on the court’s docket, but through inadvertence he failed to do so.”

There is in this language also a want of definiteness as to the fact that the court actually did pronounce the decree which is now sought to be entered of record. It is clear from the context that the court used the term “judgment” in the above quotation as synonymous with “conclusion,” and evidently meant that it was the “conclusion, or opinion, of the court that since there was a failure of the consideration as to the principal,” etc., there was also a failure as to the defendant Mantius, and intended to render a judgment in accordance with that opinion or conclusion. But this is not a finding that he, in fact, actually carried out that intention and announced such a judgment in open court in a manner that would have afforded the losing party an opportunity to except and give the proper notice of appeal, or to enable him to file a motion for a new trial within the time prescribed by law. The undisclosed opinions and conclusions of the trial court, if given the force of judgments and decrees actually rendered and pronounced upon the trial of a case, could be used to effectually destroy the right of appeal. We need no better illustration of such injustice than what would follow in this case if the judgment of the court below should be affirmed in this appeal. The entry now of a judgment nunc pro tunc in favor of the appellee, Mantius, would not carry with it the right to include the notice of appeal, or preserve the privilege of filing a motion for a new trial. Relief in amending the original judgment, if granted, will be upon the assumption that the judgment now sought to be entered was, in fact, pronounced upon the trial of the original suit, and that the plaintiff in that suit at that time had notice of the judgment and was afforded the opportunity to preserve all of his rights in respect to an appeal.

We do no feel inclined to disturb what appears to be a correct judgment entered of record in the original suit of Mallory v. Mayes et al. upon a showing so unsatisfactory as that presented in this record, and the judgment of the trial court will therefore be reversed, and judgment here rendered in favor of the appellant.
      ©csEor other oases see same topic and KEY-NUMBER in ali Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    KEMPNER v. VAUGHN et al.
    (No. 6746.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 27, 1915.)
    1. Venue <&wkey;22 — Residence of One Defendant. _
    _ An action for conversion by both defendants may be brought in the county in which either resides.
    (Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 35-37; Dee. Dig. &wkey;22.]
    2. Sales &wkey;>219 — Fob Cash — Failure to Pat Check — Title—Estoppel.
    Though the terms of sale were cash on delivery, and the check given by the buyer was not paid, yet, where there was no fraud, and the check would have been paid had it been presented in due time, whether or not, as between buyer and seller, title passed, the delay of the seller in presenting the check was such laches as to estop him to assert title to the goods against one who advanced money thereon to the buyer without notice that the seller had not' been paid.
    [Ed. Note. — For other cases, see 'Sales, Cent. Dig. §§ 588-603; Dec. Dig. &wkey;219.]
    Appeal from District Court, Houston County ; C. M. Mlis, Judge.
    Action by George Vaughn against Eliza Kempner and others. Judgment for plaintiff, and defendant named appeals.
    Reversed and rendered.
    Aldrich & Crook, of Crockett, for appellant. Williams & Neethe, of Galveston, and Nunn & Nunn, of Crockett, for appellees.
   PLEASANTS, C. J.

This suit was brought by appellee Vaughn against appellee Brown Bros., a firm composed of W. W. Brown, J. S. Brown, Jr., and F. L. Brown, and appellant Eliza Kempner, to recover the sum of $500 damages for the alleged conversion by defendants of seven bales of cotton, the property of plaintiff. The petition alleges, in substance:

“That on the 24th day of October, 1913, the appellee George Vaughn sold to the appellees Brown Bros, seven bales of cotton at certain stipulated prices and amounting in the aggregate to $462, and that such sale was a cash transaction, and that Brown Bros, gave appel-lee George Vaughn their two checks on the Farmers’ Guaranty State Bank of Kennard, Tex., one for $208.45 and the other for $2S7.51 in payment, of said cotton; that the said checks were worthless at said time and have been worthless ever since; that the said Brown Bros, had no funds in said bank at said time with which to pay said checks, and had no funds in said bank with which to pay the same when this suit was instituted; and that when said checks were presented to said bank for payment the payment of same was refused by said bank, and the same were not then paid'nor have they since been paid, although appellee George Vaughn has often requested the payment of same by said bank and by the appellees Brown Bros.; that the appellees Brown Bros., about the 25th day of October, 1913, shipped the said cotton to the appellant Eliza Kempner, then doing business at Galveston, Tex., under the name of H. Kempner-, and that the said Eliza Kempner received the said cotton and converted the same to her own use and benefit, and has ever since refused to deliver the same to appellee George Vaughn, or to account for the value of same, or any part thereof, although, often requested so to do by the appellees George Vaughn and Brown Bros., to his damage in the sum of $500.”

The appellant, Eliza Kempner, answered by a plea of privilege to be sued in the county of her residence, which was filed in said cause on the 2d day of February, 1914, and thereafter on February 3, 1914, filed special exceptions numbered 1, 2, and 3, general denial, and special pleas as follows:

“That at the time the appellees Brown Bros, purchased the cotton of appellee George Vaughn, and gave him checks in payment therefor, as alleged by appellee George Vaughn, payable to other persons at the request of appellee George Vaughn, the checks were good and would have been paid by the bank upon which they were drawn if same had been presented promptly, but same were not presented for some days, and in the meantime the cash on deposit and the credit of appellees Brown Bros, with said bank had been exhausted, and upon presentation of said checks payment was refused so the appellant was informed, all of which was due to the fault and negligence of the appellee George Vaughn, in not presenting for payment such checks the day that same were given. That the appellant, Eliza Kempner, purchased in good faith said cotton from Brown Bros, in due course of trade without any notice whatever of any claim of the appellee George Vaughn on or to the same and paid therefor a valuable consideration. That, if it should appear that there was no valid sale by the appellee George V aughn to the appellees Brown Bros, of said cotton, then the appellant Eliza Kempner would aver and show that the appellee George Vaughn, by his act and conduct placed said cotton in the hands of and in possession of Brown Bros, to be disposed of by them according to their own election, and thereafter Brown Bros, shipped to appellant, Eliza Kempner, in the name of H. Kempner, said cotton, drawing against said cotton at the time the usual and customary amount of money according to the usage and customs of said business; and thereafter such cotton sold and the proceeds of the sale thereof applied to the account of the appellees Brown Bros., and that the appellee George Vaughn is estop-ped and forever barred from asserting any claim to said cotton or to the proceeds of the sale thereof.”

Appellant’s plea of privilege and the evidence introduced thereon was heard by the court on February 26, 1914, and the plea was overruled. The cause was tried by the court without a jury on March 7, 1914, and judgment rendered against both defendants for the sum of $462, with interest thereon from October 24, 1913, at the rate of 6 per cent, per annum. From this judgment, Eliza Kemp-ner prosecutes this appeal.

The undisputed evidence establishes the following facts: Appellant is a resident’ of Galveston county and is the owner of the business conducted under the. name of H. Kempner in said county. She has never resided in Houston county, nor had an agent in said county. In the fall of 1913 the ap-pellees Brown Bros, were engaged in the mercantile business at the town of Kennard in Houston county, and in connection with their mercantile business they purchased and sold cotton. They had an arrangement with appellant Kempner under which all cotton purchased by them was shipped to Kempner, who, acting in the capacity of broker, sold the cotton and after deducting the charges for such service accounted to Brown Bros, for the proceeds. Brown Bros, were also authorized to draw on Kempner against the cotton shipped to her under this agreement.

On October 24, 1913, appellee Vaughn sold and delivered to Brown Bros, for the agreed price of $462 seven bales of cotton. The sale was understood by both parties to be a cash transaction. In payment of the price of the cotton Brown Bros, executed and delivered to Vaughn two checks on the Farmers’ Guaranty State Bank of Kennard. At Vaughn’s request, these checks were made payable to Lundy & Thompson, a firm of merchants at the town of Crockett, in Houston county, and to whom Vaughn was indebted. The town of Crockett is 17 miles from Kennard. Vaughn lives in the country some distance from either town. About a week after the checks were delivered to him, Vaughn took them to Crockett and delivered them to Lundy & Thompson and received credit therefor on his account with said firm. The checks were presented for payment by Lundy & Thompson to the bank at Kennard on November 4, 1913, and payment was refused. These checks would have been paid if they had been presented at any time before November 3, 1913. At the time they were drawn, Brown Bros, had overdrawn their account at the bank; but they had an arrangement with the bank to pay their checks, and drew through this bank for the proceeds of cotton sold by them. A day or two after these checks were drawn, their account showed a credit balance of $1,500.. They made several deposits in the bank between October 24th and November 3d, and all checks drawn by them and presented to the bank prior to November 3d were paid. On that day a draft by Brown Bros, on Kempner was refused and the bank declined to extend further credit to said firm, and when the checks in favor of Lundy & Thompson were presented on the next day Brown Bros, had no funds in the bank to meet same. On the day the cotton was sold and delivered to Brown Bros., it was forwarded to Kemp-ner, and Brown Bros, drew on her for the purchase price and the draft was paid. The cotton was contracted to be sold by Kempner before it reached Galveston and was sold and delivered to the purchaser and the proceeds therefor credited to account of Brown Bros, against the advances made to them before Kempner had any notice of the fact that the checks given by Brown Bros, in the purchase of said cotton had not been paid.

We are of opinion that the trial court did not err in refusing to sustain appellant’s plea of privilege. The suit being one for damages for the alleged conversion of property by both defendants, it could be brought in the county in which either of the defendants resided. Cobb v. Barber, 92 Tex. 309, 47 S. W. 903; Cardwell v. Masterson, 27 Tex. Civ. App. 591, 66 S. AY. 1121. AYe are, however, of the further opinion that the facts before stated do not authorize a judgment in favor of appellee Yaughn against the appellant for the value of the cotton, or for any amount. It is well settled that, when a sale of goods is made for cash on delivery, the title to the goods does not pass to the purchaser until the purchase price is paid. If in such case the vendee gives a worthless Chech for the amount of the purchase price, or gives a check that for any reason is not paid on due presentation, the title would not pass, notwithstanding the delivery of the goods. National Bank of Commerce v. Chicago, Burlington & Northern R. R. Co., 44 Minn. 224, 46 N. W. 342, 560, 9 L. R. A. 263, 20 Am. St. Rep. 566. But where, as in this case, there was no fraud in the transaction and the check would have been paid if presented in due time, it may well be doubted whether the title to the property remained in the seller. The check was not accepted in payment of the purchase money due for the cotton, and Brown Bros, were liable to appellee Vaughn for the amount agreed to' be paid; but the holding of the check by Araughn for the length of time shown by the evidence we are inclined to think constituted a waiver of the condition of cash payment. Be this as it may, we think that the delay of Araughn in presenting the check was such laches as es-tops him from asserting title to the cotton against appellant, who advanced money thereon equal to its full value without any notice of the fact that Vaughn had not been paid therefor.

These conclusions require that the judgment of the court below against appellant be reversed, and judgment here rendered in her favor, and it has been so ordered.

Reversed and rendered.
      «gnmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: McMEANS, J.

text:
    BEAUMONT, S. L. & W. RY. CO. v. MOY.
    (No. 6755.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 9, 1915.
    Rehearing Denied March 11, 1915.)
    1. Railroads <&wkey;348 — Accidents at Grossing — Sufficiency of Evidence — Contributory Negligence.
    In an action for the death of plaintiff’s son, evidence held to show as a matter of law that the son was contributorily negligent in driving an automobile upon defendant’s track in front of a train of cars that was switching, when he could have seen the cars approaching in time to have stopped if he had been looking.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. <&wkey;348.]
    2. Railroads &wkey;>350 — Crossing Accident-Questions for Jury — Evidence — Sufficiency.
    Where witnesses for the defendant had testified that at the time of the accident there were no cars on the main track which would prevent a driver on the highway from seeing a train on the side track, testimony by a witness for plaintiff that he reached the scene some time after the accident, when the inquest had been held and the body removed, and that there were at that time cars on the main track which obstructed the view, is too remote to make an issue for the jury whether the cars were there at the time of the accident.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. &wkey;350.]
    Appeal from Special District Court, Hardin County; J. Llewlyn, Judge.
    Action by M. F. Moy against the Beaumont, Sour Lake & Western Railway Company. Judgment for the plaintiff, and defendant appeals.
    Reversed, and judgment rendered for defendant.
    Andrews, Streetman, Burns & Logue and W. L. Cook, all of Houston, for appellant. Smith, Crawford & Sonfield, of Beaumont, for appellee.
   McMEANS, J.

M. F. Moy brought this suit against the defendant Beaumont, Sour Lake & Western Railway Company to recover damages growing out of the death of his son, Alfred Moy, alleged to have been caused by the negligence of defendant. Plaintiff alleged that his said minor son met his death while attempting to drive an automobile across defendant’s track at a public road crossing near the station of Grayburg; that on said occasion one of defendant’s cars was negligently, suddenly, and without warning propelled on and across said road, striking the automobile in which his said son was riding with great force, thereby completely destroying the' automobile and instantly killing his son. The grounds of negligence upon which a recovery was predicated, as charged in the petition and submitted by the court to the jury, were:. (1) The operation of the train of cars, which came in contact with the automobile, backward, without having a switchman at the crossing, and without a brakeman or other servant on the rear of said cars to warn the public of the danger in approaching the crossing; (2) in failing to ring the bell or blow the whistle when said train of cars was started and being moved upon said crossing; and (3) in suddenly and without warning to deceased starting the cars across the public road at a point so near the road that the deceased could not have stopped his automobile soon enough to have avoided collision without knowing beforehand that said cars were going to move. The defendant answered by general denial and by pleas of assumed risk and contributory negligence. The case was tried before a jury and resulted in a verdict and judgment for plaintiff for $4,000, and defendant appeals.

Appellant’s first assignment is predicated upon tfie refusal of tlie court to give to the jury its first special charge containing a peremptory instruction to return a verdict for defendant. Under this assignment it is urged in the second and third propositions: (a) That deceased was guilty of contributory negligence proximately causing his own death, in that, fully realizing the conditions, or being in such position that he must necessarily have realized the same, he negligently failed to keep a proper lookout for the movement of cars over the crossing in question; and (b) in failing to determine whether or not cars were approaching before entering upon the crossing after having brought the automobile which he was driving practically to a stop, such being negligence in view of the deceased’s knowledge of the condition of the crossing and the other physical surroundings.

The undisputed facts proved at the trial,. as disclosed by the record and in the briefs of the parties, are as follows: Plaintiff’s son, Alfred Moy, was 16 years of age, and in the employment of T. S. Crosbie of Sour Lake, as driver of a public automobile, and was a careful and competent driver. Grayburg is a town on the line of appellant’s railroad situated about 1½ miles south of Sour Lake. Early in the afternoon of March 15, 1913, young' Moy was sent by his employer in an automobile from Sour Lake to Gray-burg. On his way he stopped and took two girls, Ellen Cowart and Bonnie Bell Parr, into his automobile, the girls occupying the rear seat. After this he drove the car at a rapid rate of speed until he reached a point in the edge of Grayburg opposite the King’s hotel, which is situated about one block north and one block east from defendant’s railroad where it crossed the public road upon which young Moy was traveling. Here he reduced his speed, and from that point slowly proceeded to the crossing.' After taking the two girls into the car, he did not speak to them until he reduced speed, at which time he looked back and asked, “How do you like that?” and after that he did not look around again, but proceeded to the crossing at a slow rate of speed; and, just as the front wheels of the automobile were on the railroad track, a car attached to a train of cars which was being moved from an easterly direction struck the automobile, demolishing it, throwing the two girls out upon the ground,' and instantly killing Alfred Moy. The crossing at the railroad was rough, the track at this place recently having been raised, and new shell having been thrown upon it, and the ends of the cross-ties were exposed, and there was a sharp ascent to reach the level of the track. Young Moy went upon the track slowly, but had not stopped at the time his automobile was struck, and there is no evidence to justify the conclusion that the engine of the automobile was “killed” after it got upon the track. He was well acquainted with the then crossing and had frequently passed over it in an automobile. Neither of the girls riding with Moy looked to see whether cars were approaching, and only one of them saw the ear that struck them before the collision occurred, and then it was almost at the instant of the collision, and she only had time to exclaim, “There is a car!” when the collision occurred. Neither of them heard any whistle or the ringing of the engine bell before the collision.

Appellant’s railroad track at Grayburg runs in an easterly and westerly direction, and is crossed by the public road at right angles. The depot at this place is situated about 200 yards east of the crossing, and on the south side of the main line track. In addition to the main line, there were two side tracks, one called the “passing track” running north of and parallel to the main line, and the other called the “house track” leading from the main line from a switch just west of the road crossing and passing on the south side of the depot and connecting with the main line some distance east of the depot. The passing track branched from the main line at about the distance of a block west of the depot, and re-entered the main line several hundred yards east of this point. On the day in question a freight train on appellant’s road was being run from the direction of Beaumont in a westerly direction, toward Houston. There were 10 flat cars and a box car in this train that had to be set out at Budconnor, a station west of Grayburg. When the train reached Gray-burg, it stopped to do the switching necessary to place those cars ahead of the engine so they might be shoved upon and left on a side track at Budconnor. To accomplish this purpose the entire train was stopped on the passing track. The 11 cars, which were next to the engine, were uncoupled from the rest of the train and were then pulled out on the main line through the western end of the passing track switch. They were then backed in on the house track from the west, where they were coupled to two cars that were standing on the house track, and these two cars were placed on the passing.track on which the train had been left, to be incorporated in the train; The 11 cars were then again shoved in on the house track from the west and left there. The engine then went out onto the main line and headed in to the house track from the east and coupled onto the 11 cars. These cars were pushed west-wardly to and over the public road crossing, and it was in making this movement the collision occurred resulting in Alfred Moy’s death. Before making this last movement a brakeman on the train went to the switch at the western end of the house track, which was only a few feet west of the crossing, threw the switch, and gave the engineer the signal to “come ahead,” which was obeyed. This brakeman did not testify at the trial, and in explanation of tMs it was shown that he was dead. The two girls with yonng Moy did not see him.

At the time the signal was given by the brakeman and the movement started which resulted in the collision, the box car which was at the extreme western end of the 11 cars, and nearest to the crossing, was about 80 feet from the crossing, and in proceeding in that direction the cars moved slowly. There was no obstruction to obscure Moy’s vision and prevent his seeing the moving cars after he reached a distance of 75 or 100 feet from the crossing had he looked. There was a house on the eastern side of the public road about this distance from the crossing; and between it and the crossing was a small structure described by some of the witnesses as being about the size of a piano box, and by others as being not larger than 8 feet high, 6 feet long, and 4 feet wide, and was then being used as a “short order” restaurant, or “hamburger stand,” and was situated at a distance variously estimated at from SO to 114 feet from the crossing. This structure but little, if at all, obscured the vision of any one approaching the crossing from the north as Moy did; and after it was passed there was nothing whatever to obscure the vision. The automobile traveling at the speed at which it was going when it went onto the track could have been stopped in the distance of its length or at the outside within 30 feet. In approaching the crossing the cars and the automobile were traveling at about the same rate of speed.

Our conclusions, based upon the foregoing facts, are that, had Alfred Moy used ordinary care in approaching and attempting to cross the railway track, he would have discovered the approach of the cars in ample time to have avoided the collision and his consequent death, and that therefore, having failed to use that degree of care which the law imposes upon every person about to cross a railroad, he was guilty of such contributory negligence as would have prevented a recovery in his behalf had he been injured only, and therefore to preclude a recovery in favor of his father for his death. It may be that the appellant was guilty of negligence in the circumstances of this case in failing through the brakeman who threw the switch to warn Moy of the approach of the cars, or by reason of failure to station some employe on the box car to give warning to persons about to use the crossing; but, be that as it may, the law is well settled, as said by Judge Williams in Railway v. Edwards, 100 Tex. 23, 93 S. W. 106, that:

“A traveler approaching a railroad crossing must exercise ordinary prudence in going upon the track to see that he may do so with safety. He cannot excuse the absence of all care by showing that those in charge of a train have also been guilty of negligence.”

Alfred Moy was a careful driver and knew where the crossing was and the condition in which it was. It is clearly evident from the testimony that he was attempting to cross the track slowly in order to prevent heavy jarring of his car or discomfort to his passengers, and that while knowing the crossing was there no thought entered his mind to look for danger from cars that might be approaching. Had he looked, he could have seen the cars in time to have stopped. The view was clear for a sufficient distance from the track to have enabled him to see the approaching cars had he exercised the least care in that regard, and, having thus heedlessly exposed himself to a danger from which he might have saved himself by the use of proper care, he contributed directly to his own death and no action lies for damages therefor. Railway v. Edwards, supra; Railway v. Bracken, 59 Tex. 73; Railway v. Dean, 76 Tex. 73, 13 S. W. 45.

Appellee contends there was sufficient evidence adduced to take the question of Alfred Moy’s contributory negligence to the jury, in that the evidence shows, as he contends, that Moy’s view of the approaching cars was obstructed by cars standing on the main line within a few feet of the crossing, and between Moy and the track on which the train was running; and, further, that the evidence warranted the conclusion that the engineer, after getting the “come ahead” signal from the brakeman, pushed the train down toward the crossing, and then stopped when the lead car was within a few feet of the crossing, and then without warning to Moy started the train over the crossing at a time when it was too late for Moy to stop and before he could get across. To prove the first of these contentions, he relies upon the testimony of one A. E. Boyd, who lived' at Sour Lake, who testified in effect that he went to Grayburg after he heard of the accident; that when he reached there they had taken Moy’s body up, and he met them about 150 yards from the track going to Sour Lake in a wagon; that this was after the inquest was held; that at that time the train that struck Moy was switching a string of ears, the same, string that killed Moy; that it was coming off the track that goes below the depot on the south side of the main track; that they were going west and had a string of flat cars ahead; that, besides that train on the south switch, he saw some cars standing on the main line, and the closest of these to the public road was about 15 or 20 feet from the center of the road; that the closest car was just far enough away from the switch to clear it; that the switch is not more than 10 feet west of the public road.

“If one were coming down the shell road going to Grayburg, and a train of cars were moving on the switch line south of the depot, and joining the main track at the crossing, you would have to be right on the railroad before you could see those moving cars beyond the standing train on the main line; you could not see it at any distance; you could not see it but at a short distance. The south track is lower than the main line track, and that would naturally hide a train or engine or anything else. If it was on a level, you could see the top of the engine, notice it quickly. No, sir; the train of cars standing on the main line would prevent you seeing a moving train on the switch at all.”

The testimony of this witness fails to sustain appellee’s contention for two reasons: First, there was no testimony that the cars which he says were standing on the main line, when he reached Grayburg, after the inquest had been held and the body picked up and carried 150 yards in a wagon from the place of the accident, were there at the time young Moy went upon the crossing, and his testimony is too remote to bring in issue the testimony of all other witnesses who swore that no ears were so situated on the main track. Again, the witness says that the cars on the main line were setting just far enough from the switch to clear the south switch, which the other witnesses called the “house track.” It was proved without contradiction that a car standing on the main track at a point just close enough to the switch to clear a car coming out of the house track would have to be 150 feet from the switch and nearly this distance from the crossing as the crossing is practically at the switch. If it be conceded then that at the time of the accident there were cars standing on the main line, and, as stated by the witness Boyd, were just far enough away from the crossing to clear the south switch, then, according to the undisputed testimony, they must have been far enough away from the crossing as to not obstruct the view of Moy to such an extent as to have prevented him seeing the moving cars in ample time to have stopped had he looked. This was demonstrated by actual measurement of the distances, and hy a map introduced in evidence, as' to all of which there was no dispute.

To support his other contention, viz., that the engineer moved the string of cars to within a few feet of the crossing and then stoppied and then suddenly started and ran over the crossing, appellee relies upon the testimony of the engineer himself, wherein he says, “The train was stopped at the time the negro (brakeman) gave the signal.” From a reading of the testimony of this witness, it is clear that his testimony is not susceptible of the construction which appellee seeks to place upon it. The statement quoted was elicited on cross-examination. As set out in appellee’s brief, the testimony of this witness, in so far as it bears on the question, is as follows:

“Yes, sir; I blew the whistle at the time we started, and it was not very long from the time it started until the accident happened. I blew the whistle as soon as I got the signal to go ahead, and that was when the train started. The train was stopped at the time the negro (brakeman) gave the signal. The negro and the conductor gave the signal about the same time. I saw the conductor signal. I started the train and blew the whistle and rang the bell when I got the signal from the conductor, and he was then standing in front of the depot. ⅜ ⅜ * The brakeman was on the left-hand side of the track, and I saw him by looking right down over the cars. After the accident happened, when I shoved on around the depot, I saw the wheels of the automobile turned up, and that was the first I knew of the accident.”

All the other witnesses who testified on this subject stated that the train in making this last movement did not stop from the time it first started toward the crossing until after the accident and did not then stop until it had proceeded further the distance of about three car lengths. It is manifest from his testimony that what the witness meant when he said the train was stopped at the time the brakeman gave the signal was that the train was standing at such time, and that it then without stopping again proceeded over the crossing. ■

Because the undisputed evidence shows that the death of Alfred Moy was caused by his own contributory negligence, the appel-lee' was not entitled to a recovery of damages therefor. This conclusion obviates the necessity of a discussion of the facts bearing upon the negligence of defendant.at the time and place of the accident further than to say that the facts are sufficient, we think, to warrant a finding of such negligence. We are also of the opinion that the evidence warrants a finding that appellee was damaged by the death of his son in the amount found by the jury.

We think the judgment of the court below should be reversed, and judgment here rendered for the appellant, and it has so been ordered.

Reversed and rendered.
      ©ssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    GLENS FALLS INS. CO. OF GLENS FALLS, N. Y., v. MELOTT et al.
    (No. 6767.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 25, 1915.)
    1. INSURANCE <&wkey;648 — FIRE INSURANCE — ACTIONS — Evidence.
    In an action on a fire policy defended on the grounds that the loss was caused by insured’s act, and that she was not the sole owner, evidence that another insurance company which had issued a policy on the furniture in the building had paid it was inadmissible.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1669, 1676; Dee. Dig. &wkey;648.]
    2. Appeal and Error <&wkey;204 — Rulings on Evidence — Objections—Necessity.
    Where a party could have objected to a question asked a witness before answer was made, but failed to do so, he could not, on appeal, urge his objection to the answer.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1149, 1258-1272, 1274-1278, 1280, 1569; Dec. Dig. &wkey;204.]
    3. Appeal and Error <&wkey;930, 1170 — Questions Reviewable — Instructions — Presumptions.
    The court on appeal will presume that the jury followed instructions to disregard evidence not calculated to cause them to render an improper verdict, and the ferror in admitting the evidence must be disregarded, as required by Court of Civil Appeals rule 62a (149 S. W. x).
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3755-3761, 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. &wkey;930, 1170.]
    4. Appeal ihd Ebboe <&wkey;1170 — Questions Beviewable — Instructions — Presumptions.
    Where three -witnesses testified that they knew plaintiff’s reputation for truth and veracity in the community where she lived up to and at the time of the trial, and that it was bad, error in excluding the testimony of a witness that plaintiff’s reputation about nine years before the trial was bad, must be disregarded, under Court of Civil Appeals rule 62a (149 S. W. x), because not calculated to cause the rendition of an improper verdict.
    [Ed. Noie. — For other cases, see Appeal and Error, Cent. Dig. ⅜ 4032, 4066, 4075. 4098, 4101, 4454, 4540-4545; Dec. Dig. &wkey;>1170.]
    Appeal from District Court, Harris County; John A. Reed, Judge.
    Action by Mrs. Lillian Melott against the Glens Falls Insurance Company of Glens Falls, N. Y., in which Henry Engel intervened. From a judgment for plaintiff and inter-vener, defendant appeals.
    Affirmed.
    Crane & Crane, of Dallas, for appellant. John G. Tod, of Houston, for appellees.
   LANE, J.

Mrs. Lillian Melott, plaintiff in the lower court, instituted this suit against the Glens Falls Insurance Company of Glens Falls, N. Y., upon a policy of insurance, issued by said insurance company on the 30th day of April, 1912, by which said insurance company, in consideration of premium paid by Mrs. Melott, insured her against all direct loss or damage by fire in amount not to exceed $3,000, to a certain building situated in Houston, Harris county, for the term of one year, ■ which said building was totally destroyed by fire on the 4th day of September, 1912. Appellant refused to pay said loss on proper demand, and appellee brought this suit, and prayed for judgment against appellant for $3,000, with interest thereon.

By leave of the court Henry Engel intervened in the suit, and in his plea set up that prior to August, 1911, the Mechanics’ Building'& Loan Association held and owned a lien against the insured property to secure an indebtedness owing to it from appellee Mrs. Melott, and had prior to said date foreclosed said lien, and had purchased said property at sheriff’s sale under said foreclosure judgment, but had permitted Mrs. Melott to remain in possession.of said property up to August 19, 1911, at which time said Building & Loan Company, for and in consideration of inter-vener paying it the sum of $3,250 for Mrs. Melott, sold and conveyed said property to in-tervener to secure him in the repayment of the said $3,250 by Mrs. Melott; that after the issuance of said insurance policy by appellant, to wit, on the 4th day of June, 1912, at the request and demand of intervener, appellant issued and attached to said policy a mortgage clause, making the loss, if any, under said policy payable to intervener; that said clause so attached is as follows;

“Loss or damage, if any, under this policy, shall be payable to Henry Engel, as her mortgagee (or trustee), as interest may appear, and this insurance as to the interest of the mortgagee (or trustee) only therein shall not be invalidated by any act or neglect of the mortgagor or owner of the within-described property, nor by any foreclosure or other proceedings or notice of salé relating to the property, nor by any change in the title or ownership of the property, nor by the occupation of the premises for purposes more hazardous than are permitted by the policy : Provided that in ease the mortgagor or owner shall neglect to pay any premium under this’ policy, the mortgagee (or trustee) shall, on demand, pay the same.
“Provided, also, that the mortgagee (or trustee) shall notify this company of any change of ownership or occupancy or increase of hazard which shall come to the knowledge of said mortgagee (or trustee), and, unless permitted by this policy, it shall be noted thereon, and the mortgagee (or trustee) shall, on dhmand, pay the premium for such increased hazard for the term of the use thereof; otherwise this policy shall be null and void.
“This company reserves the right to cancel this policy at any time as provided by its terms, but in such case this policy shall continue in force for the benefit only of the mortgagee (or trustee) for ten days after notice to the mortgagee (or trustee) of such cancellation, and shall then cease, and this company shall have the right, on like notice, to cancel this agreement.”'

Said Engel, intervener, prayed for judgment against appellee Lillian Melott and appellant for the sum of $3,000, amount due on said policy, with interest thereon and costs of suit.

Appellant answered by general demurrer, and general denial, and that appellee Mrs. Melott was not entitled to recover because the loss or damage was caused by her act or procurement for the purpose of collecting the insurance which she had on the property; that the insurance policy sued on contained the following provisions:

“This entire policy shall be void if the interest of the insured in the property be not properly stated herein.
“This entire policy, unless otherwise provided by agreement endorsed thereon or added thereto, shall be void if the interest of the insured be other than unconditional and sole ownership.”

It was alleged that at the date when the policy in suit was issued, and at the date when the loss occurred, plaintiff was not the sole and unconditional owner of the property;, on the contrary, that she had no title or interest in the property; that, if she had any interest therein, one Henry Engel likewise had an interest to the extent of being a co-owner or cotenant or tenant in common. Wherefore it prayed that the policy in all things be held null and void.

In answer to intervener’s petition, appellant denied the allegations contained therein, and for special answer averred that, under the terms of the mortgage clause attached to the policy, appellant should be subrogated to such rights as intervener might have against the said Mrs. Melott, and that, in the event intervener should recover against it, then appellant should be permitted to recover over against Mrs. Melott the amount adjudged against it in favor of intervener.

Both of the appellees by supplemental petitions denied every allegation in appellant’s answers.

The cause was submitted to a jury on special issues, and verdict was rendered finding all the issues in favor of appellees, whereupon the court rendered a decree and judgment in favor of appellees, Lillian Melott and Henry Engel, against appellant for the sum of $3,000, with interest thereon at the rate of 6 per cent, per annum from the 12th day of December, 1912, and for costs of suit

It was further adjudged and decreed by the court:

“That all moneys paid by the defendant on this judgment shall be paid to the intervener, Henry Engel, and shall be applied by said in-tervener as a credit upon the debt due him. by the plaintiff, Lillian Melott, and in extinguishment, to that extent, of the lien held by the said intervener against the said Lillian Melott, and in extinguishment of the indebtedness of the said Lillian Melott to the intervener, Henry Engel, to the extent of the amount so paid; and that, when said defendant company shall have paid to the said Henry Engel the amount of this judgment, said payment shall be a complete discharge in payment of any and all claims the plaintiff, Lillian Melott, may have against the defendant because of this judgment, or on account of the insurance policy sued on herein, save and except the judgment herein in favor of the said Lillian Melott, for her costs expended by her herein.”

Appellant submits but two assignments of » error in its brief upon which it'relies for reversal, which we shall here consider.

The first assignment of error insists that as it had been shown that Mrs. Melott had an insurance policy insuring her furniture situated in the house burned for the sum of $1,500, issued by the Michigan Commercial Insurance Company, and that George Easley was the agent of said company, that the said Easley was called as a witness in behalf of appellant, and after he had testified on direct examination counsel for appellees, Hon. J. G. Tod, on cross-examination asked said witness Easley if it was not a fact that the Michigan Commercial Insurance Company had paid the policy issued by it on the furniture of Mrs. Melott, and that said witness had answered that it had, that thereupon counsel for appellant objected to said question and answer, on the grounds that same was irrelevant, immaterial, and incompetent, < and tended to, and did, prejudice the rights of appellant before the jury, whereupon ap-pellees’ counsel stated to the court that they would withdraw the question, and asked the court to instruct the jury to disregard the same, which instruction was given by the court to the jury, that, notwithstanding such withdrawal and instruction, the effect of such question and answer upon the jury was not thereby removed. •

The question, we think, was improper, and should not have been asked, and certainly the answer was immaterial and irrelevant to any issue involved; but there is nothing in the assignment of error showing that the question and answer objected to were asked and answered in such manner as to prevent an objection being made to the answer before the same was given, and therefore we think this court is warranted in presuming that counsel for appellant was speculating as to the answer — that is, as to whether it would be favorable to him or otherwise — and in holding that, as he did not urge his objection to the answer before it was given, he cannot now complain that such answer was hurtful to him. We also think that we may assume that the trial jury was composed of men of ordinary intelligence, and that they understood and obeyed the instruction of the court, and that they did disregard, and not consider, the question and answer complained of in arriving at their verdict, nor do we think the question and answer complained of was of such hurtful character, in view of the court’s instructions, as was reasonably calculated to, or did probably, cause the rendition of an improper verdict, and for this, as well as other reasons, do not think we would be warranted in reversing the judgment of the trial court upon the complaint under the first assignment. Henson v. Baxter, 166 S. W. 460; Rule 62a, Court of Civil Appeals (149 S. W. x); Scott v. Townsend, 159 S. W. 342; M., K. & T. Ry. Co. v. Beasley (Sup.) 155 S. W. 183; Wells Fargo & Co. v. Benjamin, 165 S. W. 120.

The error complained of by appellant .in its brief under its second assignment of error is that the witness Amerman was not allowed to testify that the plaintiff’s reputation for truth and veracity was bad nine years before the trial. The appellant’s bill of exception to the action of the court excluding such testimony shows that he had heard plaintiff’s reputation discussed about nine years prior to the trial, but not since, and evidently shows that he did not know what her reputation was between the date mentioned in the bill nine years previous and the date of the trial. We think such testimony was admissible, but it was so remote and so far anterior to the time of the trial that it would have been of little value, and this court cannot say that, under rule 62a the exclusion of such testimony was reasonably calculated to, or did probably, cause the rendition of an improper verdict in this case. More especially is this true of the testimony offered by appellant from John H. Freeman, Judge C. E. Ashe, and J. B. Cochran, witnesses of appellant, who all testified that they knew plaintiff’s reputation for truth and veracity in the community where she lived up to and at the time of the trial, and that it was bad. The testimony of the witness Amerman, even if admitted, would have been only cumulative to the testimony of appellant’s witnesses who knew plaintiff’s reputation at the time of trial, and would have been so weak and of such little weight that no reasonable person can suppose that it would in any wise have affected the jury in arriving at their verdict in this case.

Believing that no such error was committed in the trial of this case as would warrant this court in reversing the judgment of the trial court, said judgment is affirmed.

Affirmed.
      <fe»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      fc=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    CAMERON v. NATIONAL EQUITABLE SOCIETY OF BELTON.
    (No. 5427.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 24, 1915.
    Rehearing Denied March 24, 1915.)
    1. Principal and Agent &wkey;>158 — Negligence ,or Fraud of Agent — Liability of Principal.
    A principal is liable for the acts of his agent within the scope of the agency, whether the acts were negligently or fraudulently done, but is not responsible for the fraud of the agent not committed while acting within the scope of his authority.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 589-598; Dec. Dig. <&wkey; 158.]
    2. Principal and Agent <&wkey;159 — Fraud of Agent — Liability of Principal.
    An agent to sell contracts had authority to collect $1 for each $100 of the contracts sold. This limitation on his authority was expressed in the application for a contract and in the contract, and in the receipt given to a purchaser of a contract. The purchaser paid him a sum in excess of $1, and the agent appropriated it to his own use. Held, that the principal was not liable for the wrongful act of the agent, though the' principal made fraudulent representations as to the contract which would authorize the purchaser to rescind it and recover the amount which the agent was authorized to receive.
    LEd. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 599-612; Dec. Dig. <&wkey;> 159.]
    Appeal from Bexar County Court; John H. Clark, Judge.
    Action by A. H. Cameron against the National Equitable Society of Belton. From a judgment for plaintiff for less than the amount claimed, he appeals.
    Affirmed.
    T. J. Murray, of San Antonio, for appellant. D. R. Pendleton, of Belton, and' N. O. Green, of San Antonio, for appellee.
   CARL, J.

Appellant, A. H. Cameron, and his wife, Nila Cameron, desired to build a home in San Antonio, Tex., and for that purpose wanted to obtain a loan of about $14,000. To that end they placed an advertisement in a newspaper setting forth their needs, and E. A. Forbes, representing the National Equitable Society of Belton, Tex., hearkened to their call and visited them and told them of the manifold blessings appellee society was conferring upon the people who were wise enough to avail themselves of the splendid opportunities it offered to build homes on its money at the very attractive figure of 5 per cent, simple annual interest. The beneficient plan of operation was explained to them by the said Forbes, but in making' such explanation ⅛ is now charged that Forbes grew too enthusiastic, and really misrepresented what his company had and what it would do to silch an extent that appellant was defrauded out of $400 in good money. This Forbes presented appellant and his wife with a neatly gotten-up folder, which contained in part the following:

E. C. Clabaugh, Pres.
J. W. Idearon, Sec.
W. F. Ashby, Tice Pres.
W. C. Rylander, Treas.
National Equitable Society of Belton, Belton, Texas.
Incorporated under the Laws of Texas. Authorized Capital Stock, $500,000.
Notice. — This society is owned by the people, controlled by the people, run in the interest of the people, using the plan that will benefit the people, security at Austin, assuring the people a square deal, who do business with the society.
Become independent. Where there’s a will, here’s the way to own your home.
A business man or woman that uses good judgment will do business with a corporation that affords protection under state laws.
The deposit referred to below is made for the protection of those who do business with the society.
We will loan you from $500 to $5,000 to purchase you a home or business property outright, at 5% simple interest under our plan.
To purchase property or improve any vacant lots you own.
5% money to take up any indebtedness against your property that you are paying from 8 to 10% interest on, and extending the time of payment.
If you will fill out and mail us this card we will explain our plan and proposition to you, and show"you how to turn an absolute.loss into a real profit.
We leave the result to your good judgment and place you under no obligation; the burden of proof is on us. Mail this card to-day:
5 % simple interest.
Form and city loans.
How much rent do you pay?.
Name .
Occupation.
Street .
City.
If you desire loan to repay mortgage, state amount and rate of interest- you are now paying.”
On the address side of the postal folder was the following:
Post Card [Place postage
stamp here.]
E. A. Forbes,
Gen. Del.,
City.
Tear along this dotted line and mail this end.

In addition it contained a certificate by the state treasurer to the effect that said society had complied with the laws of Texas by depositing approved securities to the amount of $100,000.

Appellant and his wife were soon made to •see the light of a new day in their financial affairs, and bought a $4,000 contract in said society, upon which they were to pay $1 per hundred for 100 months. However, they had explained to Forbes that they would soon have to move and would therefore be unable to await the natural course of events to,get their loan. He explained that this could be ■easily arranged by their paying 10 months, or $400, in advance, and sjnce the board of ■directors would meet the next day in Belton, he would phone in and have this loan approved, so they could get it forthwith. They thereupon paid Forbes $400 and signed the ■company’s application for a loan. Forbes issued them the following receipt:

“San Antonio, 1/14, 1913.
“This receipt certifies that Mrs. Nila Cameron ■of San Antonio, State of Tex., has subscribed for a $4,000 contract of the National Equitable Society of Belton, Belton, Texas, under the covenants and requirements set forth in said contract, and the terms and conditions set forth in said application therefor, and has paid to me $400 no/100, 1% in full on the contract •applied for. E. A. Forbes, Agent.
“Special Notice. — Agents are authorized to collect and receipt for $1.00 on each $100.00 ■contract as purchase price only. Should your •contract not be received in ten days, notify the home office.”

Both Cameron and his wife, who gave the ■check for the money, read the clause in the .receipt relative to the agent’s authority, but they say they did not read the application they signed and did not know that it algo •contained restrictions and conditions specifying the agent’s authority and the manner in which the company was to be bound.

Forbes cashed the cheek, but did not send the money to the company, neither did appellant get his loan. Instead he was informed that Forbes had no authority to make such á contract; that the receipt given plainly limited the agent’s authority to $1 per hundred; and since appellant had been put upon notice, both in the receipt given and the application signed, as to this, the company was not in a position to build their home nor to return the $400 which was paid to Forbes •and by him kept.

Suit was to recover the money on the ground that Forbes was authorized to represent the company, and was acting within •the real or apparent scope of his authority, •and' because he had made false and fraudulent representations as to the condition of the company, and as to the contract.

The company, in addition to its denial of the several matters pleaded against it as to the agency of Forbes and his fraud, and that if Forbes did as charged he exceeded his •authority, pleaded that the agents were given only limited authority, which was set forth and well defined in its literature and in •the application signed and receipt given; and that the application and contract, attention ¡to which was called in the receipt given, showed that it had wisely provided that:

“The priority of right to a loan shall be determined by priority of filing application therefor, but the executive committee shall have the right to reject any application,” etc.

It was also alleged in the answer that if Forbes got $400 from appellant the company received none of it, and it was not responsible for the fraud of the agent when he was acting contrary to his written instructions, and especially when appellant had been put upon notice that the agent’s duties and powers were limited' by the papers inspected by appellant.

The trial was before the court without a jury and judgment was rendered for $40 in favor of appellant, who has appealed.

The undisputed evidence shows that ap- • pellant was defrauded out of his $400 by the agent of appellee, and our inquiry is naturally directed to whether the act was done in the course of the agency and by virtue of his authority as such agent.

“If it was, then the principal is responsible, whether the act was merely negligent or fraudulent” ; for it would make no difference as to the liability of the principal whether it was the one or the other. “Just as clearly, of course, is the principal not responsible where the fraud was not committed while the agent was acting, or, at least, purporting to act within the scope of his authority, but was an incident to an act done by the agent in the pursuance of his own or some other principal’s purposes.” Mechem on Agency, vol. 2, p. 1551, § 1984 (2d Ed.).

In Foster v. Essex Bank, 17 Mass. 479, 9 Am. Dec. 168, the defendant was held not liable for the theft by its cashier of a special deposit; the bank not having been negligent.

In the case of Merchants’ Bank v. Prudential Ins. Co., 110 Mo. App. 62, 84 S. W. 101, the defendant’s local agent forged the payee’s name on a check drawn by the defendant and intrusted to him for delivery in settlement of a loss, and also acted as a witness to the pretended signature of the payee. It was there held that the defendant (principal) was not liable.

And so in Harvey v. Schuylkill Trust Co., 199 Pa. 421, 49 Atl. 277, it was held that the plaintiff could not recover money paid to defendant’s solicitor to be invested in mortgages and which was embezzled by him, where he had no authority to invest or to receive money for investment. These cases are all reported in notes under the above-cited section from Mechem on Agency.

It must be borne in mind that Forbes had no authority whatsoever to collect more than $1 for each 100 of the contract sold; and the appellant had direct and certain warning of this limitation on the agent’s authority. It was in the receipt he and his wife received and was in the application signed by them, as well as in the form of contract sold. They read that clause in the receipt, and knew, if they could understand plain English, that the agent was not authorized to make any arrangement different from that set forth In the receipt, application, and contract. And the appellant and his wife are intelligent people, and it is admitted by both that they saw this clause restricting the agent’s authority. They chose to believe the agent rather than the written notices.

The matter of representations made as to what capital stock the appellee company had paid in and what securities it had on deposit with the treasurer of Texas is absolutely immaterial, except as to the recovery in rescission of the amount paid in which the agent was authorized to receive. This was the sum of $40 and this amount the appellant recovered in the trial court. As to the amount received by Eorbes contrary to his written instructions, of which appellant had notice, it could not be material whether appellee had anything at all, because the agent was not acting for appellee in that matter.

A case very much in point is National Guarantee Loan & Trust Co. v. Thomas, 28 Tex. Civ. App. 385, 67 S. W. 458, wherein Mr. Justice Pleasants says:

“The maxim that ‘he who trusts most must suffer most,’ invoked by appellee, has no application. The fact that appellant did not trust its agent, Jenkins, to make any loan contract for it, and that it took every possible precaution to inform appellee that Jenkins had no such authority, is shown by all the evidence in the case. Appellee knew from the recitals on his application for stock, in the certificate for stock issued to him, and in the application for the loan executed by him, that appellant had not delegated any authority to Jenkins to make any loan contract; and, in the face of this information given him by appellant, he relied upon and trusted Jenkins’ statements that the agreement made by him was satisfactory to appellant, and took no steps to inform himself as to whether appellant knew of the facts upon which the agreement was based. Appellee, and not the appellant, was the party who trusted Jenkins in the matter of effecting the loan, and Jenkins acted in this matter as the agent of appellee. Association v. Par-ham [80 Tex. 518] 16 S. W. 316; Scripture v. Mortgage Co. [20 Tex. Civ. App. 153], 49 S. W. 646. If the precautions taken by appellant to prevent its becoming liable for the unauthorized acts of its agent, as shown by the evidence in this case, failed to accomplish that purpose, then we can conceive of no way in which it could protect itself against such liability.”

In view of what has been said, we think the trial court rendered the proper judgment and, therefore, in all things affirm the judgment

Judgment affirmed.
      «ga^Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    RUSSELL v. HAMILTON et al.
    (No. 1421.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 18, 1915.)
    1. Garnishment &wkey;>131 — Duty of Garnishee — Homestead Exemption.
    Where the debt sought to be garnisheed is exempt as the proceeds of sale of a homestead, it is the duty of garnishee to set up such exemption.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 260; Dec. Dig. <$=»131.]
    2. Garnishment <&wkey;133 — Right of Defendant to be Heabd.
    In garnishment proceedings, the defendant may voluntarily appear to protect his rights by setting up that the debt sought to be garnisheed was exempt as the proceeds of a sale of a homestead, or the garnishee may cite the defendant in for that purpose.
    [Ed. Note. — For other eases, see Garnishment, Cent. Dig. § 262; Dec. Dig. <&wkey;133.]
    3. Homestead <&wkey;76 — Sabe — Control of Proceeds by Husband.
    A husband has the right to control the proceeds of the sale of a homestead and may apply them to the payment of debts.
    [Ed. Note. — For other cases, see Homestead, Dec. Dig. <&wkey;>76.]
    4. Estoppel <&wkey;68 — Exemption—Failure of Garnishee to Set up.
    Where the defendant in garnishment, when notified by the garnishee to set up his proper exemptions that a claim attached was exempt as being proceeds of a sale of homestead, and such defendant told the garnishee to let the case go to judgment, and it would be all right, he cannot later recover against the garnishee a sum so laid open to attachment by his own act, since a husband’s control of the proceeds of the sale of his and his wife’s homestead was complete.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 165-169; Dec. Dig. &wkey;68.]
    Appeal from District Court, Titus County; W. T. Armstead, Judge.
    Action by Joe Hamilton and another against C. L. Russell. Judgment for plaintiffs on demurrer to the answer, and defendant 'appeals.
    Reversed and remanded.
    I. N. Williams, of Mt. Pleasant, and Seb F. Caldwell, of Austin, for appellant. J. A. Ward, of Mt. Pleasant, for appellees.
   LEVY, J.

Joe Hamilton sued appellant for $92.15 and to foreclose an alleged vendor’s lien on real estate. It was averred that the sum of money was the balance due and unpaid on the voluntary sale of plaintiff’s homestead. Appellant made defense, among other things, in the nature of estoppel, that a writ of garnishment was served upon him issuing out of the justice court on a judgment in favor of B. I. Lazarus against Joe Hamilton, and that, upon the service of the writ, appellant notified Hamilton and requested him to make answer setting up his exemption to the funds, and that Hamilton agreed to do so, but later informed appellant that he would not answer the garnishment proceedings, and that it would be all right for appellant to let the case go to judgment; that appellant, relying upon this statement and purpose of Hamilton, did not answer, and judgment was entered by the court, which appellant paid into the justice court on the debt of Hamilton. Appellee Hamilton demurred to the defense. The court sustained the demurrer, and appellant was deprived of the defense. The appellant by assignment predicates error on the ruling of the court.

It was the duty of the garnishee to make the defense of exemption (Railway Co. v. Whipsker, 77 Tex. 14, 13 S. W. 639, 8 L. R. A. 321, 19 Am. St. Rep. 734), or it was proper for appellant to have had Hamilton cited in the garnishment proceeding, to the end that he should make his own defense of exemption (Railway Co. v. Whipster, supra; Iglehart v. Moore, 21 Tex. 501). And it is permitted to the defendant in garnishment to voluntarily appear in the proceedings for the purpose of maintaining his right. But, assuming the averments of the circumstances to be correct, there is disclosed absolute fairness on the part of the garnishee and reasonable ground for his failure to cite the defendant in garnishment or himself present the defense he otherwise, as trustee, would have to make. According to the averments, the defense of exemption was not presented entirely, because of the intention and conduct of Hamilton himself, the defendant in garnishment, who had at the time full knowledge of the proceedings. The husband has the right to control the proceeds of the sale of the homestead, and may apply such proceeds to the payment of debts. Bank v. Ferguson, 126 S. W. 622. And if Hamilton desired, as appears from averments, to have the proceeds of the sale in suit go through the process of garnishment in satisfaction of the judgment debt against him, there was no legal objection to his consenting that a garnishment order might be entered subjecting the funds to the debt. As a consequence of such right in Hamilton, the garnishee could rely on the statement and declaration to him by Hamilton to the effect that he would not maintain his right of exemption, and that the garnishee need not present it for him. It is believed that estoppel may be predicated in the circumstances, if established as facts in the trial, and the court erred in striking out the defense. The ease of Railway Oo. v. Whipsker, supra, cited by appellee, does not go to the extent of holding, it is thought, that the defendant in garnishment, with full knowledge of the issuance of the garnishment, may not consent that the garnishee make no defense for him. And the case of Johnson v. Hall, 163 S. W. 399, expressly states that Hall had no notice of the garnishment proceedings, and that the evidence did not present any issue of estoppel.

The assignment is sustained, and the judgment as to appellant is reversed, and the cause remanded. The judgment against Con-nor Bros., not having been appealed from, will remain undisturbed.
      <§z=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes