author: LANE, J.

text:
    HOUSTON TRANSP. CO. et al. v. PAINE.
    (No. 7300.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 16, 1917.
    Rehearing Denied March 8, 1917.)
    1. Continuance <§=>51(5) — Absence of Witness-Diligence.
    A tender of witness fees is necessary to show diligence in an application for a second continuance to secure attendance of such witness.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. § 85.]
    2. Continuance <§=>26(1) — Absence of Witness Because of Sickness — Diligence.
    A party cannot be charged with lack of due diligence in not securing a witness, where it appears from his motion, made when case is called, that the witness is sick.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. § 74.]
    3. Continuance <©=>51(5) — Second Application-Discretion of Court.
    Where the testimony expected from an absent witness is immaterial to any. defense defendant had a right to interpose, it is not error to deny him a second continuance.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 69, 147.]
    4. Sales <§=>176 (6) — Defects in Machinery— Reaffirmanc® as Waiver.
    Where the buyer of machinery delivers a renewal note therefor, it will be treated as a re-affirmance of the original contract and a waiver of any rights to damages for defects known to him at the time of renewal.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 442.]
    5. Bills and Notes <§=>489(7) — Cure by Answer — Pleading—Variance.
    Where seller alleged a written contract of sale with an erroneous allegation of indorsement of a note by B., and buyer pleads no defense, but alleges that note otherwise properly described by seller was not. indorsed as alleged, the admission of note in evidence is proper and does not constitute a variance.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1017-1642.]
    6. Bills and Notes <§=>245 — Indorser as Surety.
    The president of a corporation who writes his name on the back of its note, at inception, before delivery for accommodation of corporation, is a surety and not an indorser.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 558, 559.]
    Error from District Court, Harris County; J. D. Harvey, Judge.
    Action by H. A. Paine against the Houston Transportation Company and John G. Tod. Judgment for plaintiff and for John G. Tod against Ms codefendant, and defendants bring error.
    Affirmed.
    John G. Tod and Charles H. Taylor, both of Houston, for plaintiffs in error. Love, Channell & Fouts, of Houston, for defendant in error.'
   LANE, J.

This suit was instituted by H. A. Paine, plaintiff, in the Sixty-First judicial district court of Harris county, Tex., on the 13th day of March, 1914, against the Houston Transportation Company and John G. Tod, defendants, and for cause of action he alleges: That on the 19th day of October, 1909, the Houston Transportation Company entered into a written contract with plaintiff, by the terms of which said company purchased from plaintiff certain machinery and property for the sum of $2,900, same to be paid as follows: $725 cash when said property was delivered, and $725 in 60 days, and $1,-450 in 90 days, all deferred payments to be closed by notes; that it was provided in this contract that in the event said deferred payments were not paid when due, and they were placed in the hands of an attorney for collection, 10 per cent, thereon should be added as attorney’s fees, and it was also provided that a lien should he retained upon the property to secure the payment of said indebtedness ; that thereafter plaintiff sold to said transportation company other and additional property for the sum of $895.94that the purchase price of the two lots of property aggregated the sum of $3,795.94; that after all of said property was delivered by plaintiff to defendant transportation company, said company, by its president, John G. Tod, executed and delivered to plaintiff its three promissory notes, the first for $795.-94, and the second and third of which were for the sum of $1,500 each, said notes being given for the purchase money for the two lots of machinery and property before mentioned. That in order to secure the payment of the three notes last mentioned said transportation company executed and delivered to the plaintiff a chattel mortgage upon said property, whereby a lien was created on said property to secure the above-mentioned notes. It is then alleged that by reason of the execution and delivery of all the instruments above mentioned said transportation company became indebted to and promised to pay plaintiff the aggregate sum of $3,795.94, with interest thereon from December 29, 1909, and also agreed to pay 10 per cent, additional as attorney’s fees upon said amount in the event said indebtedness should not be paid at maturity and the same should be placed in the hands of an attorney for collection. That after said notes and mortgage or lien had been executed and delivered, as aforesaid, said transportation company was unable to pay said indebtedness in full when it became due, but it made a partial payment on said indebtedness and executed and delivered to plaintiff renewal notes from time to time for the unpaid balance of said indebtedness, said notes being executed for the purpose of extending the time of payment of the balance due upon said original indebtedness as evidenced by said original contracts and liens. That finally, on November 26,1913, the defendant Houston Transportation Company being indebted to plaintiff in the sum of $2,500, the same being the balance due and unpaid of the original indebtedness herein-before set out, and said defendant being then unable to pay said indebtedness, and the plaintiff desiring to obtain the money represented by said indebtedness from the Houston National Exchange Bank, and the said transportation company desiring to obtain further extension of time within which to pay said balance of said original indebtedness, it was then and thereupon agreed between said transportation company and this plaintiff that said transportation company should execute and deliver to said National Exchange Bank its note for $2,500 covering the balance due to plaintiff, as aforesaid, with the defendant John G. Tod as indorser and surety upon said note for the payment thereof. That accordingly said defendant, on November 26, 1913, executed and delivered to the Houston National Exchange Bank and to this plaintiff their certain promissory note for the sum of $2,500, payable 90 days after date, bearing 8 per cent, interest per annum from maturity and providing for 10 per cent., attorney’s fees if collected by suit; that the defendant John G. Tod, at the time of the execution of said note, executed the same by writing his name across the back thereof. It was then alleged that by the execution and delivery of said note by said transportation company and said John G. Tod, they jointly and severally bound and obligated themselves to pay to the order of the Houston National Exchange Bank the sum of $2,-500, with interest, etc. That thereafter, on the 24th day of February, 1914, said note became due, and that the defendants failed and refused to pay the same to said bank, or to plaintiff, and that thereupon said bank, having advanced to plaintiff upon said note the sum of $2,500, charged plaintiff’s account with that amount and returned said note to plaintiff indorsing the same to his order without recourse, and the plaintiff is now the legal owner and holder thereof. That by reason of the execution and delivery of the note last mentioned and the other facts set forth transpiring subsequently to the execution and delivery of said note, both of said defendants became jointly and severally bound to pay plaintiff the amount due upon said note, principal, and interest, and as he brought suit upon said note that they are also liable to plaintiff for attorney's fees by the terms of the note last mentioned and by the terms of the original contracts hereinbe-fore mentioned. Plaintiff further alleges that the note last mentioned for $2,500 was executed for the purpose of extending the time of payment of the balance of the original indebtedness described in said written contracts and chattel mortgage before mentioned, and prays for judgment against both defendants for the sum due upon said notes, principal, and interest and attorney’s fees, as provided in all of said contracts.

Defendant John G. Tod answered by general demurrer and by specially pleading that if he was liable to plaintiff, he is liable only as indorser and guarantor of his codefendant the Houston Transportation, and prayed that if judgment be rendered against him, he have judgment over against his said eodefendant.

Thp defendant transportation company answered, admitting the execution and delivery of the contracts, notes, and lien as alleged by plaintiff, and in the manner therein alleged, but specially pleaded that the machinery purchased by defendant was designed for use by defendant in unloading sand, shell, and other material from barges and loading same on cars for shipment in the conduct of its business; that said machinery was sold to defendant by plaintiff with the full knowledge on the part of plaintiff of the purpose for which it was to be used by defendant; that after trial said machinery was found to be defective, setting out the defects, and fur; ther alleging that the same was entirely insufficient to do the work for which it was designed; that the plaintiff assured defendant that the machinery could and would do the work for which it was designed, and that he would stand the expense of having it repaired so as to be made to do so; that defendant spent large sums of money to repair said machinery and make it do the work intended, but it never could and never had done such work, and therefore appellant had been wholly unable to perform his work, to his damage in the sum of $3,500, for which he prayed judgment.

A jury was selected to try the cause, and upon the plaintiff introducing in evidence said $2,500 note, defendants objected to its introduction, because it was not indorsed by the Houston National Exchange Bank to plaintiff as alleged, and therefore there was a variance between the allegations and proof, and by permission of the court defendants filed their trial amendment, and therein they say that they deny all and singular the allegations contained in the fifth paragraph of plaintiff’s original petition, and specially deny that the Houston National Exchange Bank indorsed the note to plaintiff or his order either without recourse or otherwise, and specially alleged that if the bank ever delivered said note to plaintiff at all, it was be-’ cause same was not paid at maturity by the maker thereof, and the plaintiff, having, because of his indorsement thereof, been called upon to pay same, did pay same as such in-dorser, and the note was thereupon delivered to him as such indorser, and that his suit should be one for contribution and not upon the note.

Plaintiff by supplemental petition denies all the material allegations in defendant’s answer, and says that defendant, by retaining and using said machinery, is estopped to claim any breach or guaranty thereof, or to complain of any defects therein.

After the evidence was concluded the court instructed the jury to return a verdict for plaintiff for the sum sued for, with a foreclosure of his lien as prayed for. The jury returned the verdict as instructed, and the court rendered judgment for plaintiff against both defendants for the sum of $2,970, and a foreclosure of plaintiff’s lien on said machinery and property. Judgment was also rendered in favor of defendant John G. Tod, over against his codefendant Houston Transportation Company, as prayed for by him. It was also adjudged that said transportation company take nothing by its cross-bill.

Appellants by their first assignment insist that the court erred in overruling their motion for a continuance. The motion was defendants’ second motion for a continuance, they having procured a continuance at a former term because of the absence of the same witnesses named in said second motion. The effect of the second motion was that defendants could not safely go to trial without the testimony of the witnesses named, as they expected to prove by them, and each of them, that the machinery in question was defective and would not do the work for which it was intended, and that defendants were damaged by reason of said defective machinery and by reason of money spent in repairing same. All these witnesses had been served with process prior to said former term of court and had disobeyed same, and no further process had been issued to compel their attendance, nor is there any showing that any of them had been tendered their fees as provided by law to require their attendance. We think no diligence was shown, unless it be as to the witness W. H. Payle, by whom defendants allege they expected to prove practically the same facts as by the other witnesses named. A mere service of a witness by subpoena without a tender of fees of the witness is the slightest diligence that a party can use. The lawful fees not having been paid nor tendered, the witnesses were not in contempt of court, nor subject to a fine as they would otherwise have been. A tender of witness fees is necessary in order to show diligence upon a second application for continuance. T. & P. Ry. Co. v. Hall, 83 Tex. 675, at page 679, 19 S. W. 121. It appears from the motion that the witness Payle was sick on the day the case was called for trial, and had advised defendants of that fact; therefore it may be said that defendants cannot be charged with a want of diligence in failing to have his testimony at the trial. But we think that if it be conceded that diligence to procure the attendance of said witnesses was shown by the motion, still there was no error committed by the court in overruling the motion, because the testimony expected from said witness was immaterial to any defense that defendants had the legal right to interpose against plaintiff’s right to recover in this suit.

The undisputed and admitted facts show that from the 19th day of October, 1909, to the 24th day of January, 1910, the defendant Houston Transportation Company purchased and received from plaintiff, H. A. Paine, certain machinery and in payment therefor it executed and delivered to plaintiff three promissory notes, one for $795.94 and the other two for $1,500 each, payable on the 24th day of February, March, and April, 1910, respectively, and to secure the payment of same, it also executed and delivered to plaintiff an instrument reading as follows:

“Whereas, we are justly indebted to H. A. Paine in the sum of thirty-seven hundred ninety five 94/100 dollars evidenced by three promissory notes of even date, payable to the order of H. A. Paine at Houston, Texas, with exchange and eight per cent, interest per annum from date payable at Houston, and providing for ten per cent. (10%) attorney’s fees, and further providing that in the event of default in payment of any one of said notes or any installment of interest when due, or in the event that the holder may reasonably deem himself insecure, or the property hereinafter described be destroyed or damaged by fire, then the holder at his option may declare due and payable any or all of said notes; the same being more particularly described as follows: Note No. 1 for $795.94 due February 24, 1910. Note No. 2, for $1,500.00, due March 24, 1910. Note No. 3, due April 24, 1910, for $1,500.00, said notes being for the unpaid purchase money for the following described property sold by H. A. Paine to Houston Transportation Company, to wit: One 8x12 Mundy double cylinder double drum hoisting engine No. 9144 complete. One 5x8 Mundy swinging engine No. 9146. One steel derrick. One Hayward 1 yd. class E clamshell backet Which chattels it is contemplated will be placed upon the following premises situated in Harris county, Texas, to wit, at Penn City. Now to secure the payment of the aforesaid notes according to their terms we have granted, sold and conveyed and by these presents do hereby grant, sell and convey unto the said H. A. Paine all the above-described chattels and machinery, also all the above-described land and premises. To have and to hold all said property unto said H. A. Paine, his successors and assigns forever. This conveyance, however, upon the payment of all said notes, according to their terms, to become null and void and the liens hereby created released, otherwise to remain in full force and effect. The undersigned hereby ratifies all that may be done in compliance with the terms of this instrument.
“Witness our hand this 24th day of January, A. D. 1910.
“Houston Transportation Co.,
“By John G. Tod, Prest.”

That when said notes became due said transportation company being unable to pay said notes in full, for the purpose of getting an extension of time gave renewal notes from time to time for the balance due on said original indebtedness; that finally, on the 26th day of November, 1913, about four years after it purchased said machinery, and only about three months before this suit was filed, plaintiff made demand upon said transportation company for the payment of $2,500, the balance due on said original indebtedness, and said Transportation Company promised plaintiff that it would and it did, on said 26th day of November, 1913, execute and deliver to Houston National Exchange Bank for the benefit of plaintiff its note for $2,500, payable 90 days after date, with John G. Tod as indorser. and guarantor of the payment thereof. Said note was at the time of its execution and before delivery signed by said John 6. Tod, by writing his name on the back thereof. There appears on said note the following:

“Each maker, surety and indorser hereon waives grace, protest, notice and presentment for payment, and consents that the time of payment may be extended without notice.”

For the purpose of getting money on said note plaintiff Paine indorsed said note to said bank and secured from said hank the sum of $2,500. That when said note became due defendants failed to pay same, and the bank charged plaintiff’s account with the amount due thereon, and mailed the same to plaintiff. That thereafter, on the 18th day of March, 1914, plaintiff placed said note and other contracts executed and delivered by said transportation company in the hands of attorneys who brought this suit for plaintiff; that on the 22d day of April defendant Houston Transportation Company filed its answer and pleaded as a defense that the machinery so sold and delivered to it was not as represented by plaintiff; that it was defective, and sought to recover damages because of such alleged defects.

There is absolutely nothing in the statement of facts tending to show that plaintiff made any representations to said defendant about the machinery sold, or that he knew what class of work said defendant expected said machinery to perform, or that plaintiff ever promised to make or pay for any repairs on said machinery, as alleged by defendants. In fact defendants offered no evidence whatever so far as the statement of facts discloses. There is no allegation as to the time the defendant transportation company discovered the alleged 'fraud practiced upon it by plaintiff; that is, that the machinery in question was defective,. etc. We think we must conclude, in the absence of any allegation as to when said defendant discovered the alleged fraud, that such defects, if any, were discovered by said transportation company during the four years from October, 1909, to November 26, 1918, and prior to said last-named date, at which time it executed and delivered its note for $2,500 in renewal of the original contracts and indebtedness. There is no contention that such defects, if any, were discovered after said last-named date. If at the time of the execution of said note on the 26th day of November, 1913, said defendant had knowledge of the alleged defects for which it now seeks to recover damages, its conduct in executing and delivering said renewal note must be treated as a reaffirmance of the original contract and a waiver of any right to claim damages for fraud practiced which was known to it prior to said reaffirmance. Southwestern Surety Co. v. Ferguson, 62 Tex. Civ. App. 332, 131 S. W. 662, at page 665; Simon v. Goodyear, Metallic Rubber Shoe Co., 105 Fed. 573, 44 C. C. A. 612, 52 L. R. A. 745.

From what has been said we think it clear that the testimony expected from the witnesses named in the motion for continuance was immaterial to any defense defendants had to plaintiff’s cause of action. We therefore do not think the court erred in overruling the motion for continuance.

The second assignment is as follows:

“The court erred in overruling the objection of the defendant to the admission of the note sued on, because of the variance between the allegation of plaintiff’s petition with reference to the indorsement upon said note, it having been alleged in' plaintiff’s petition that said note had been transferred and indorsed to the plaintiff by the Houston National Exchange Bank, the payee of said note, but the note when offered in evidence did not contain such indorsement, or any indorsement, and because the note shows the legal title to same was in the Houston National Exchange Bank and not in the plaintiff.”

When the $2,500 note in question was offered in evidence by plaintiff, defendants objected to its introduction for the reasons set out in the above assignment, and by permission of the court filed their trial amendment, and therein, together with their answers, practically admitted the execution of the contracts, mortgage, notes, etc., as alleged by plaintiff, and by said trial amendment alleged that said note for $2,500, otherwise properly described in plaintiff’s petition, was not indorsed by the Houston National Exchange Bank, as alleged by plaintiff; thus rendering it unnecessary for plaintiff to file a trial amendment, which he had the right to do by permission of the court, for the purpose of properly describing said note to meet the objection of defendants, if such amendment was necessary under the pleadings of both parties. We concluded that as plaintiff’s suit was based upon written contracts alleged to have been executed by defendants, and the misdescription of the note contained in plaintiff’s petition was cured by defendants’ trial amendment, and no denial of such execution was made under oath or otherwise by defendants, but, on the contrary, they admitted the execution of the same, and as defendants pleaded no legal defense against plaintiff’s right to recover upon said contracts, plaintiff was entitled to recover upon the pleadings without the introduction of any evidence in support of the allegations of his petition except the contracts sued on, and that he was the owner of said note. The undisputed evidence shows that said note for $2,500 sued upon was made payable to the Houston National Exchange Bank for the benefit of plaintiff, and that said note was in, fact the property of plaintiff, and that for the purpose of procuring a loan of $2,500 from said bank he indorsed the same, after the same had been fully executed and delivered by the Houston Transportation Company and indorsed by defendant Tod. For the reasons stated, the second assignment is overruled.

Defendant John G. Tod insists that plaintiff Paine was a eodefendant with him on the note sued upon, and paid the same off, and that Paine cannot sue him (Tod), his coindorser, upon the note, hut can only sue his coindorser upon the implied obligation the law raises upon the part of said coindorser to contribute his share of the money paid out by Paine in discharging the note. Such contention is not tenable under the facts of this case. Defendant wrote his name on the back of said note at its inception, and before delivery, for the accommodation of the Houston Transportation Company, a corporation of which he was president and in which he was financially interested, and thereby, in effect, became a surety for the maker, Houston Transportation Company. He knew that the note was being executed for the benefit of plaintiff, Paine, in renewal of the balance of the original indebtedness, created in the purchase of said machinery. We think the undisputed facts, as hereinbefore stated, show that Paine was not a coindorser with defendant Tod, and that Tod so understood. The evidence also shows that Paine was the owner of the note in question at the time he filed his suit, and was entitled to the judgment rendered under the pleadings and evidence. In 3 R. C. L. p. 1179, § 398, it is said:

“By indorsing his name on the back of the note, and delivering it in that form to the holder, the maker does not become an ‘indorser,’ in the commercial acceptation of that term. He is, nevertheless', the maker of the note, his signature on its back being an essential part of its execution, and his liability is that of a maker only. He does not thereby enter into the contract of an indorser, which is to pay the note if the maker, upon demand, fails to do so at maturity, and due notice thereof is given. It would be a useless ceremony, if not a palpable absurdity, to require the holder to make demand of the maker, and give him notice of his own default in order to charge him with the payment of the note. He is liable as a maker, without demand and notice, and sustains no other legal relation Eo the paper which, it must be presumed, is within the knowledge of third persons who place their names on the note while in the maker’s hands.”

We conclude that the trial court did not err in peremptorily instructing a verdict for the plaintiff against both of the defendants. The judgment of the trial court is affirmed.

Affirmed.
      <S=>Eor other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    ANDREWS v. WILDING.
    (No. 5771.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 21, 1917.
    Rehearing Denied March 21, 1917.)
    1. Trial <&wkey;2S0 — Objections to Instructions — Sufficiency.
    An objection to an instruction because it referred the jury to plaintiff’s petition for a statement of his injuries docs not raise the point that there was no evidence of some of the injuries there alleged.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 691-693.]
    2. Trial <&wkey;233(3) — Instructions — Reference to Petition.
    An instruction, referring the jury to plaintiff’s petition for a statement of injuries claimed, is not erroneous although the court mentioned the wrong paragraph of the petition.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 529.]
    3. Trial <&wkey;350(6) — Special Findings — Necessity.
    Refusal to require a jury to specify which of several injuries plaintiff suffered is not erroner ous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 830.]
    4. Appeal and Error <&wkey;1052(2) — Harmless Error — Evidence. '
    Admitting evidence that it was easier to operate a railroad switch without a lock is not reversible error, where similar testimony was received without objection, and was an obvious conclusion.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4172.)
    5. Trial &wkey;>132 — Argument op Counsel.
    Even if the arguments of plaintiff’s counsel to the jury were improper, the case will not be reversed where the remarks were withdrawn, the jury instructed not to consider them, and three arguments for appellant followed.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 315, 316.]
    6. Appeal and Error c&wkey;l070(2) — Harmless Error — Finding Unsupported by Evidence.
    A jury finding of negligence on a special issue unsupported by evidence does not necessitate a reversal, where other findings of negligence support the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4232, 4233.]
    7. Trial <&wkey;350(5) — Special Findings — Necessity.
    Refusal to require a jury finding regarding which of plaintiff’s injuries were the result of hysteria is not erroneous, especially where the hysterical conditions were traceable back to the physical injuries.
    [Ed. Note» — For other cases, see Trial, Cent. Dig. § 830.]
    8. Appeal and Error <&wkey;731(l) — Assignments of Error — Sufficiency.
    An assignment of error that the verdict is excessive is too general.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3017.]
    9. Damages <&wkey;134(l) — Excessive — Permanent Injuries.
    $22,000 is not excessive damages where a railroad employe, aged 29, earning $135 monthly, with good chances of promotion, received injuries rendering him a helpless cripple for life, with practically no earning ability.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 368, 386, 389-394.]
    Appeal from District Court, San Patricio County; W. W. Walling, Special Judge.
    Action by Alfred Wilding against Frank Andrews, receiver of the St. Louis, Brownsville & Mexico Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Claude Pollard, of Houston, E. H. Cren-shaw, Jr., of Kingsville, and Robt. W. Stay-ton, of Corpus Christi, for appellant. Presley K. Ewing and L. E. Blankenbecker, both of Houston, and J. C. Houts, of Sinton, for appellee.
   MOURSUND, J.

Appellee, a .fireman, sued appellant, his employer, for damages, upon allegations that he was injured, by reason of negligence of appellant, in a wreck on the line operated by appellant. The case was submitted on special issues, and, upon the verdict returned, judgment was entered for appellee for $22,000.

By special issue No. 12 the jury was required to find the amount “which would compensate, plaintiff. for injuries, if any, which he has alleged and proved.” This issue is not objected to, and need not be stated in full. Following this issue, the court said:

“The plaintiff alleges the injuries which he claims to have suffered from the derailment in question in paragraph 11 of the second amended original petition as filed herein, to which you may refer; and in assessing his damages, if any, you will consider only such injuries, if any, as are herein both alleged and proved.”

This paragraph was objected to by defendant “for the reason that the same refers the jury to the second amended original petition for statement of the alleged injuries.” The objection was overruled, and appellant’s first assignment of error complains of the overruling thereof. This objection amounts to no more than a request to the court to state in his charge the injuries alleged by plaintiff, and cannot be stretched into objection that some of the injuries alleged are not supported by evidence, and therefore should not be submitted at all. The injuries alleged are stated specifically in paragraph 10 of the petition, and not paragraph 11, and the court made a mistake in that respect, which, however, was not called to his attention by objection. The paragraph referred to by the court did not relate to injuries, and paragraph 13 merely states the results of the injuries upon plaintiff. The jury could.not have been misled in any way or failed to find the paragraph relating to injuries, and we conclude the court did not err in failing to copy such paragraph or the substance thereof in his charge. The assignment cannot be extended so as to be construed to complain of the charge on the ground that it left it to the jury to determine what injuries alleged were supported by evidence, for the objection did not apprise the court of any such contention. Prior to the passage of our statute requiring objections to be made to the charge, assignments attacking similar charges were considered by this court in the cases of Freeman v. Courtney, 134 S. W. 260, and Railway v. West, 155 S. W. 343, as against objections more specific than the one urged by defendant herein, and the assignments were overruled. The assignment is overruled.

The second assignment complains of the failure to submit a special issue inquiring whether plaintiff suffered any of many injuries described or mentioned in the ques-tion, and, if so, which ones. The answer to this question could have been of no value unless as the basis for an argument that the verdict was excessive. It would be improper to permit the jury to be cross-examined in regard to every step taken by them, and the giving of such issues would result in disagreements on trivial and practically immaterial matters. S. A. & A. P. Ry. v. Stuart, 178 S. W. 17. The assignment is overruled.

By the third assignment complaint is made because the court admitted the testimony of witness E. B. Brown, to the effect that it was easier for the brakemen to operate a switch without a lock being upon it. This testimony was objected to as irrelevant to any issue in the case, and it is contended that it did not tend in any way to prove that the person who removed the lock at Bullard’s switch was a brakeman or other employs of defendant. The plaintiff had alleged that the wreck was du.e to an open switch, and, among other allegations charging negligence with reference thereto, it was alleged that if defendant’s employés in that behalf—

“if not leaving such switch open, negligently left said switch unlocked or in such condition that it was thereby likely to come partly open, or be partly opened, and left in that condition, as otherwise it would not have been.”

It was also alleged that the switch was not provided with a reasonably sufficient light and lock or not provided with either a light or lock. Defendant- alleged that the switch was partly open solely by reason of the fact that some person or persons for whose act defendant was and is in no way responsible, shortly before the derailment, removed the lock and switch light from the switch and opened the switch partly. Appellant contends that the testimony was prejudicial in view of the fact that it was developed that defendant’s brakemen were negroes, and that one of them who worked around the switch several days before the wreck was present at the trial, but not called to testify, and that plaintiff’s counsel repeatedly, by questions objectionable in their nature and withdrawn on objection, insinuated to the jury that locks of main line switches at the time in question were frequently not in place, and there had been accusations against the negro brakemen concerning their leaving locks off because they did not want to go to the trouble of locking and unlocking them. The witness Brown further on was'interrogated further about the same matter, and gave, in substance, the same testimony; but, as the bill of exceptions contains all of his testimony on this subject, it may be that the objection was considered as urged to all the questions propounded to him with regard to the matter: However, we find from appellant’s statement that in the cross-examination of appellant’s witness Bolling he testified that it was a frequent occurrence for switches to be unlocked and locks missing; that he had heard that negro brakemen were accused of throwing the locks away; that it was more trouble for the brakemen to unlock a switch and turn it and then lock it again than if there is no lock on the switch. No objection was made to this testimony, hut further on objection was made to a sweeping question concerning many switches on the railroad operated by appellant, said objection being that:

“Said line of testimony was objected to because it had nothing to do with the switch in question.”

The question was withdrawn. We do not understand that this objection was intended to relate back to the other questions and answers, and it therefore appears that the same testimony, the admission of which is assigned as error, was introduced without objection. In addition, there being testimony to the effect that switches were locked and as to the method of operating switches, and as to the kind of locks used, all of which testi-money was unobjectionable, any person would know that the presence of the locks made the work of. operating the switch more troublesome than if no lock was used. The statement by a witness of such obvious conclusion could not injure defendant; and, even if the testimony was improper, it must be held to have been harmless. Other testimony and questions excluded may have operated to the prejudice of appellant, but we are confined to the assignment of error presented, and it may be that appellant suffered injury by not placing the brakeman on the stand who was in attendance on the court, but the failure to do so was the voluntary act of appellant. The assignment is overruled.

The fourth,' sixth, and eighth assignments complain of certain statements- used by one of plaintiff’s counsel in argument, which statements were withdrawn upon objection and the jury instructed not to consider the same. We doubt whether the statements made were objectionable, but, if so, in view of their withdrawal and of the fact that they were made in the opening argument which- was followed by three arguments for defendant, we conclude that we would not be justified in reversing the judgment on account thereof. The assignments are overruled.

By the fifth assignment it is contended that the affirmative answer of the jury in response to defendant’s requested special issue No. 14 is contrary to the overwhelming preponderance of the testimony to the extent of showing that the verdict was the result of bias and passion on the part of the jury. The issue was as follows:

“If you have found that the tank of the engine upon which plaintiff was at work was insecurely attached to the tank frame, and that such condition, if any, of said tank was due to negligence upon the part of defendant, his agents or employés, then say whether or not such condition of said tank was a proximate cause of the injuries now complained of by plaintiff.”

We conclude that the finding is supported by sufficient evidence to justify the jury in making the same. However, there being other’ findings of negligence proximately causing the injuries which support the judgment, a reversal would not follow even if appellant were correct in its contention. The jury found that the switch was partly open as the train approached upon which plaintiff was fireman on the occasion in question; that this condition rendered the track defective and not reasonably safe; that such condition of the track was due to negligence of defendant; that such negligence was a proximate cause of the alleged injuries to plaintiff; that the headlight of the engine was insufficient for the reasonably safe operation of the engine; that such condition constituted negligence on the part of defendant; and that such negligence was a proximate cause of the injury. In answer to some of the many special issues submitted by defendant, the jury made other findings of negligence pleaded by plaintiff, and found that the same were proximate causes of the injuries to plaintiff. It is unnecessary, however, to set out the many issues and answers. Plaintiff pleaded and proved to the satisfaction of the jury a good case, regardless of the finding objected to in the assignment under consideration, and said assignment is overruled.

By the seventh assignment complaint is made of the refusal to submit defendant’s requested special issue No. 29, as follows:

“Say whether or not any of the injuries now complained of by plaintiff are the result of hysteria, and, if so, state which of the ailments now complained of resulted therefrom. Answer by saying ‘No,’ or by saying, ‘All of them,’ or by a list of the ailments, if any, which you believe resulted from hysteria.”

The court did not err in refusing to submit this issue. The objections to the issue discussed in disposing of the second assignment apply to this issue. An affirmative finding could have had no value except to eliminate certain injuries from those to be considered by the. trial court, and this court in passing on assignments complaining of excess in the verdict. If it was desired to exclude injuries caused by hysteria from being allowed for, an instruction to that effect should have been asked to be given in explanation of the issue requiring the jury to estimate the amount which would compensate plaintiff. By such means any rights of defendant would have been fully protected and the risk of mistrial avoided which might be based upon whether a certain injury was due to hysteria or not. Besides it occurs to us that if the hysteria existed as a result of the physical injuries sustained in the wreck, which was conceded by defendant’s physicians, the conditions attributed to hysteria would all be traceable back to such physical injuries. The assignment is overruled.

The ninth and tenth assignments of error contain four grounds taken from the motion for new trial, in each of which it is contended the verdict is excessive. Objection | is made that the assignments are too general, and tbe same is well taken. However, tbe verdict is not excessive. Tbe appellee was 29 years of age; bis income $135 per month; bis chances of promotion good; bis injuries painful and permanent and probably progressive. Injuries to bis spinal cord rendered him a helpless cripple for life, and a sufferer, with practically no ability to labor or earn money.

Tbe judgment is affirmed.
      <§u=5For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    DOBIE et al. v. SOUTHERN TRADING CO. OF TEXAS et al.
    (No. 8521.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 10, 1917.
    Rehearing Denied March 17, 1917.)
    1. Partnership <&wkey;127 — -Liability to Third Persons — Contract oe Partner.
    Power of a partner to bind the firm by contract exists in the case of a nontrading as well as a trading partnership.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 192.]
    2. Partnership &wkey;?132 — Liability to Third Persons — Limitation on Partner’s Authority — N otice.
    Limitation in partnership articles on authority of partner, without written consent of copartners, to bind the firm, is not binding on third persons without notice dealing with him in a matter fairly within the scope of the partnership business.
    [Ed. Note. — For other cases, see Partnership, Dent. Dig. § 196.]
    3. Partnership <&wkey;141 — Contract—Scope oe Partnership.
    Regarding a firm being bound by contract of a partner, purchase of a sawmill is fairly within the purposes and objects of a partnership organized for the express purpose of manufacturing and furnishing railroad ties.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 214r-221.]
    4. Partnership <&wkey;157(2) — Ratification oe Partner’s Act.
    Acceptance and use of a mill by a firm is a ratification of a partner’s prior purchase thereof for it, even if not within his authority, as regards firm’s liability under contract.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 283.]
    5. Partnership &wkey;>132 — Limitation oe Partner’s Power — Waiver.
    Regarding a firm’s liability to third persons on contract of a member, the members may by their course of conduct waive the limitation in the articles on the power of a member to bind the firm by contract without written consent of the others.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 196.]
    Appeal from Tarrant County Court; Chas. T. Prewitt, Judge.
    Action by the Southern Trading Company of Texas against W. W. Hancock and others. Judgment .for plaintiff, and defendants J. M. Dobie and Joe L. Hill appeal.
    Affirmed.
    Gordon Bullitt, of San Antonio, and Latti-more, Doyle, Bouldin & Lattimore, of Ft. ■Worth, for appellants. -J. Felton Lane, of Hearne, for appellees.
   CONNER, C. J.

This suit was instituted by the Southern Trading Company of Texas against W. W. Hancock and the San Antonio Lumber & Tie Company upon two promissory notes in the sum of $125 each that had been executed by W. W. Hancock, and the payment of which it was alleged had been assumed by the tie company, á copartnership composed of J. M. Dobie, Joe L. Hill, and W. A. Frisby. The plaintiff also sought to foreclose a lien upon a certain steam engine and fixtures and smoke stack which had been given to secure the notes. The trial resulted in a judgment in favor of the plaintiff in accordance with its prayer against Hancock and the members of the partnership named, with foreclosure of the lien as prayed for by the plaintiff. The defendants Do-bie and Hill have appealed.

The facts out of which the controversy arises substantially are that Hancock had purchased in the market the machinery upon which the plaintiff sought to foreclose its lien, and gave therefor the two notes and mortgage declared upon. The engine and fixtures were placed in position in a lumber mill at the time owned and operated by Hancock. Afterwards Frisby, as he testifies, acting for the San Antonio Lumber & Tie Company, purchased Hancock’s lumber mill, and as part of the consideration therefor assumed the payment of the notes sued upon, which notes were afterwards in due course of trade acquired by the plaintiff in this suit. The transfer of the mill property by Hancock was to W. A. Frisby; Frisby testifying that he had been directed to so accept a transfer by his copartner, Joe L. Hill. The closely contested issue presented by appellants on the trial below by their pleadings and evidence was whether Frisby was authorized to bind the partnership by an agreement to assume the Hancock notes, and appellants now insist that it was conclusively shown that he was not so authorized by the contract of partnership between the appellants and the co defendant Frisby.

We will set out such parts only of the contract of partnership as we think material for an understanding of our conclusions. It recites, in substance, that Joe L. Hill had the assurance of securing a contract to furnish ties for the building of the S. A., R. & M. Railroad, and that it was desired by him to secure the assistance of J. M. Dobie and W. A. Frisby; Dobie to render such financial aid as might be required to carry out the contemplated contract, and to further make all necessary bond or bonds required to secure the contract. It was further recited that Hancock and Frisby had already made contracts for timber to manufacture ties, and by tbe terms of tbe contract Erisby agreed to give all of bis time and energies necessary to superintend and see to tbe management and making and shipping of ties, and agreed to keep all .necessary records showing tbe output, etc. By tbe terms of tbe partnership agreement Dobie agreed to furnish tbe money or credit which should be necessary to properly conduct tbe said business “to be furnished whenever the same shall be required by the said Joe L. Hill to pay necessary 'expenses in securing timber for the making of said ties, and such other expenses as may be necessary to enable the said Hill to carry out his contract with the said railroad.company.” It was further provided that the business should be conducted “in the name of the 'San Antonio Tie Company,” and that the net proceeds of the business should be equally divided between the parties to the partnership agreement. The following further provisions are especially important, to wit:

“That no checks shall be drawn or vouchers issued unless signed by at least two parties to this agreement, * * * and neither party shall create a debt or obligation against the firm except with the written consent of all parties.”

The contract was duly signed by each of the parties named therein, and there was no verified denial of the partnership on the part of the appellants. It should be further stated that the assumption upon which the plaintiff based its right to recover from the members of the partnership was in writing and executed by Frisby contemporaneously with the transfer from Hancock to Frisby of the Hancock Lumber Mill. It reads as follows:

“Oakwood, Texas, June 30, 1913.
“To Whom It may Concern: This is to certify that we, the undersigned, San Antonio Lumber & Tie Company, of San Antonio, Texas, have assumed the entire indebtedness of W. W. Hancock on all of his sawmill machinery now situated at his mill in Leon county, Texas, the amounts being due as a balance -of purchase price on said machinery, shown by statements rendered by the said W. W. Hancock and now on file in the office of the San Antonio Lumber & Tie Company.
“San Antonio Lumber & Tie Co.,
“By Wm. A, Frisby, Mgr.”

No written consent on the part of Dobie or Hill to the execution of the instrument just quoted was shown, and appellants insist that it conclusively appears that the contract of partnership between them and their codefend-ant Frisby created a nontrading and noncommercial partnership of such restricted power as to render the act of Frisby in assuming the Hancock indebtedness of no force and effect.

The distinction between a trading and a nontrading partnership is immaterial in this ease in our judgment. A partnership of either kind and the members thereof may perform acts in furtherance of the object of the association. As said in the case of Burnley v. Rice, 18 Tex. 481:

“The power of one partner to bind tbe firm, by contracts made by him in the name, and for the benefit of the firm, is not confined to commercial partnerships.”

The ease is otherwise instructive. There the partnership was engaged in conducting a plantation, and the managing partner contracted a large indebtedness in changing from the cultivation of cotton to sugar. On the ground of the change the nonparticipating partner sought to escape liability, insisting that the change and consequent indebtedness was unauthorized by him. But the court upheld the judgment against the nonacting partner. I't is true that in that case our Supreme Court emphasized the fact that it was not shown that the partnership agreement restricted operations to the cultivation of cotton, saying that, if it had been so shown, “iti might have been contended that the partner-’ ship, and consequently the power of one partner to bind the firm, was at an end.”

In the case before us it was shown that by the terms of the original partnership agreement neither party thereto was authorized to “create a debt or obligation against the firm except with the written consent of all parties.” This, of course, was a limitation of authority to bind the firm or nonconcur-ring partners for the payment of obligations such as appellees sought to enforce in this case, and, if nothing else appeared, the judgment below would have to be reversed. But it is well settled that a limitation of authority of the kind noted is not enforceable as against third parties without nqtice who deal with a member of the firm in a matter fairly within the scope of the partnership business. Merriman v. Fulton, 29 Tex. 98; Hatchett & Large v. Sunset Brick & Tile Co., 99 S. W. 174; Dockery v Faulkner, 101 S. W. 501; Crozier, Rhea & Co. v. Kirker, 4 Tex. 252, 51 Am. Dec. 724.

W. W. Hancock, after testifying to the sale and conveyance of his mill to Frisby, testified further that:

“I did not know of any limitations upon the authority of Mr. Frisby, if there was any. Prior to that time he had been transacting business for the San Antonio Lumber and Tie Company. I regard him as a partner and the head of the business, with full authority to transact business for the firm. I heard the testimony of Mr. Fris-by that it all had been taken over by the San Antonio Lumber & Tie Company, sold to them. That statement is true so far as I know._ I have never seen the property or heard of it. The letter shows they took over my obligation to the plaintiff and agreed to pay it.”

No testimony contradicting tbe quoted testimony of Hancock is pointed out, nor have we discovered any such contradictory testimony, so that in aid of the judgment it must certainly be assumed, we think, that Hancock was without notice of any limitation whatever of Frisby’s authority to make the purchase and to execute the agreement assuming the indebtedness declared upon by plaintiffs.

It is further to be observed that the transaction whereby Frisby acquired the Hancock mill seems fairly within the purposes and objects of the partnership between Dobie, Hill, and Frisby. The partnership contract was entered into for the express purpose of manufacturing and furnishing railroad ties. The evidence tends to show that these ties were manufactured out of timber either owned or to be purchased by the partnership, by mills such as was purchased from Hancock. The evidence tends to show that, in addition to the Hancock mill, the partnership owned two others, and Frisby testified without contradiction that the Hancock mill was purchased for the benefit of his firm, and was later formally conveyed to the firm and operated for several months, and that yet later the firm sold not only the Hancock mill, but the other two mills owned by it, thus receiving the full benefit of the Hancock purchase. On this subject Frisby testified as follows:

“Mr. Hill authorized him to purchase the property in question from Mr. Hancock and talked it over as to what kind of an agreement. In regard to this particular property they took it over for their own use and benefit. They ran it about two months, and they shut it down. The San Antonio Lumber & Tie Company would have received the benefits from it had there been any. It was regarded as company property. Took over for the benefit of the company; operated by the company for the company. Mr. Hill and Mr. Dobie, as a partnership, never at any time repudiated the contract he made with Hancock. They never objected to the contract; it was very agreeable to them. They sold the sawmill outfit and got the benefit from it, he supposed. The proceeds of the sale went to Mr. Hill and Mr. Dobie,”

Appellants therefore are in no position to invoke as against Hancock any limitation upon the power of Frisby to agree to the payment of the Hancock indebtedness, not only for the reason that the transaction was within the scope or apparent scope of Frisby’s authority, and that Hancock was without notice of any such limitation, but also for the reason that the subsequent acceptance and use of the mill on the part of the other partners in law amounted to a ratification of Frisby’s act, if in any view of the case it can be said to have been unauthorized. Moreover, Frisby testified without contradiction, so far as called to our attention, or so far as we have been able to discover from the record, that the limiting clause of the partnership agreement so strongly relied upon by appellants was never in fact observed. As to this he says in his testimony that:

“If it was ever observed by either party to the contract, he did not know it. That he did not know of Mr. Dobie ever transacting any business for the company, but Mr. Hill and he [witness] did, without the written consent of either party, and it was with the common consent of all three. * * * Transactions of the nature wherein he undertook to bind the company without first obtaining the written consent of the other partners were of almost daily occurrence. That he could not recall a single instance where he was required to obtain the written consent of the other parties before he went into the contract.”

We think it hardly necessary to stop to fortify by citation of authorities the proposition that it was within the power of the members of the partnership to waive, as the testimony of Frisby shows was done, the limiting clause upon the power of the members of the firm. After such waiver the limitation in no event can be held operative as against the judgment in this case. Neither Mr. Hill nor Mr. Dobie testified upon the trial nor attempted by testimony to in any way destroy the force of Frisby’s evidence, and under the evidence as a whole it cannot be doubted, we think, that the judgment in favor of the ap-pellees is fully sustained. It will be accordingly in all things affirmed.
      tónoFor ocher oases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: PLEASANTS, C. J.

text:
    FIRST NAT. BANK OF HOUSTON v. CAMPBELL et al.
    (No. 7293.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 9, 1917.)
    1. Assignments &wkey;>13 — Eabnings — Potential Existence.
    Earnings under contracts not yet made having no potential existence, any attempt to assign or mortgage them was void.
    [E'd. Note. — -For other cases, see Assignments, Cent. Dig. § 21.]
    2. Pledges <&wkey;ll — Necessity oe Delivery.
    Lien cannot be claimed under an agreement to pledge except as to articles thereafter actually delivered; delivery and possession being essential.
    [Ed. Note. — For other eases, see Pledges, Cent. Dig. §§ 28-35.]
    3. Receivers <&wkey;158(2) — Preferred Claims— Irrigation Company.
    A creditor furnishing current supplies to a quasi public service corporation, as an irrigation company, to keep it a going concern, is entitled to priority of payment therefor, over other unsecured creditors, out of funds in its receiver’s hands, earned prior to the receivership.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. § 303.]
    Appeal from District Court, Harris County; Henry J. Dannenbaum, Judge.
    The First National Bank of Houston intervened in receivership proceedings for the Cane & Rice Belt Irrigation Company, and from the judgment appeals adversely to Ben Campbell and others.
    Affirmed.
    Kittrell & Kittrell, of Houston, for appellant. D. Edward Greer and H. L. Stone, Jr., both of Houston, for appellees.
   PLEASANTS, C. J.

This controversy is between interveners in a receivership proceeding pending in the district court of Harris county and arises upon the following state of facts:

The Cane & Rice Belt Irrigation Company, a corporation engaged in the business of irrigating rice lands, entered into a verbal contract with the appellant in January, 1913, by the terms of which appellant agreed to loan money to said irrigation company to be used in the operation of its plant during the season of said year 1913, and the irrigation company agreed to secure the appellant in the repayment of the loan by a pledge of the notes and contracts obtained by it from the persons to whom it should furnish water during said season. In pursuance of this contract the irrigation company placed in the hands of appellant as security for the money to be advanced it under said contract all of the notes obtained from its water customers. After these notes were given appellant, which was about the 1st of May, the appellant began making advances to said company of the money required for the operation of its plant, and during the season of 1913 the advances so made, together with interest thereon and attorney’s fees, amounted to the sum of $34,750. Before any part of the money advanced by appellant under said contract was repaid to it, the irrigation company became insolvent, and on January 2, 1914, was placed in the hands of a receiver.

After his appointment the receiver collected $3,739.07 on some of the notes that had been pledged to appellant, and also collected the sum of $5,084 from persons to whom the irrigation company had furnished water during the season of 1913 under a verbal or written contract, but from whom it had failed to obtain notes.

The appellant filed a petition in intervention in the receivership proceeding and asked to recover judgment for the amount due it as above stated and to have its lien established and foreclosed upon the notes which had been pledged it as aforesaid, and also upon the $5,084 which the receiver had collected for water furnished by the irrigation company during the season of 1913, but for which no notes had been taken, as before stated. The allegations of appellant’s petition in regard to the lien claimed by it are as follows :

“That by reason of the contract of deposit said notes above described as collateral security and the agreement that all rent contracts entered into by the Oane & Rice Belt Irrigation Company should be collateral security for the loan so made, there was thereupon fixed upon said notes and upon all other amounts received for water rent a lien in favor of this intervener, and your intervener thereby became entitled to collect any and all moneys that might be paid thereon until such time as such $27,500 so due by the Cane & Rice Belt Irrigation Company to your intervener is paid, and to a foreclosure of its lien upon said notes and contracts.”

The Gulf Pipe Line Company' also intervened in the receivership proceeding, setting up a claim for the sum of $17,682.24, the contract price of fuel oil furnished by it to the irrigation company to enable it to operate its pumping plant during the months of July, August, and September, 1913, and claiming a lien upon the $5,084 above mentioned.

The claims of both interveners were referred to a master in chancery. After a hearing the master reported that in his opinion the First National Bank had a lien on all the collateral notes in its possession, and also | upon the $2,739.07 collected by the receiver j from the makers of said notes, but further holding that said First National Bank did not have a lien upon the $5,084, and also held that the Gulf Pipe Line Company did not have a lien on any of the income from .water rent for the year 1913.

Proper exceptions were filed by all parties to the master’s report, and the court upon hearing, on the 11th day of November, 1915, entered judgment for the First National Bank for the sum of $27,500, together with interest and attorney’s fees thereon, aggregating the sum of $34,750, and also entered judgment for the Gulf Pipe Line Company for $17,682.24, and further adjudged that the First National Bank had a lien upon all of the notes deposited with it as collateral and upon the $2,739.07 collected from the makers of said notes, and ordering a sale of said notes in satisfaction of said judgment, or they could be taken at their face value as a credit on the judgment. It further adjudged that the Gulf Pipe Line Company had a lien upon said $5,084, and ordered the receiver to pay the same to said Gulf Pipe Line Company to be credited upon its judgment. From this judgment the intervener bank alone prosecutes this appeal.

Appellant’s first assignment of error assails the judgment on the ground that the evidence established the lien claimed by appellant upon the $5,084 collected by the receiver for water rents due the irrigation company for the season of 1913, and the court should have so adjudged. The proposition submitted under this assignment is as follows:

“The claims against the tenants, who while using the land [water], had not made any contracts in writing or given any notes, are such claims as canned an actual lien, and were susceptible of being assigned as collateral security, because they were ‘choses in action,’ and had a ‘potential’ existence in the meaning of the law, in that they were capable of being reduced to possession with enforcement of the lien; and the right of the company to assign them was in no wise limited or lessened by the fact that they had no tangible physical existence; the contract between the company and the appealing in-tervener being essentially an assignment, and in no sense a pledge.”

We do not think the assignment should be sustained. The evidence does not show that appellant acquired any Hen upon any water rents due the irrigation company except such as were evidenced by notes or contracts which were delivered to it by the irrigation company in pledge or as collateral security to secure the money advanced by it. No part of the $5,084 was evidenced by notes, and if any part of said sum was earned under a written contract, such contract was never delivered to appellant as a pledge or as collateral security. The contract between appellant and the irrigation company was made in January or February, 1913, and it is not shown that at that time the irrigation company had any contract with any person to furnish water for irrigating purposes for the season of 1913. If ttie contracts under which tlie $5,084 was earned by the irrigation company were not in existence at the time the agreement between appellant and the irrigation company was made, said earnings had no potential existence, and any attempt to assign or mortgage such earnings was void. 5 Corpus Juris, p. 871, § 41; Campbell v. Grant, 36 Tex. Civ. App. 641, 82 S. W. 795.

The evidence as to the oral contract under which appellant claims a lien upon the $5,084 only shows an executory agreement to pledge as collateral security the notes and written contracts for supplying water that might be obtained by the irrigation company during the season of 1913, and no lien was acquired by the bank until the notes or contracts were obtained and delivered to it as security. The bank so understood the contract. Mr. Scott, the officer of the bank who made the agreement with the irrigation company, testified:

“We made arrangements to advance money to the Cane & Rice Belt Irrigation Company for the year 1913, as we had for three or four years previously. We did so early in the year. The contract was made in January or February. The contract was verbal. They were to pledge with us as soon as secured all their tenant notes or contracts. It was understood between us that all notes received by them from their tenants should be pledged to us as security against our loan. The notes taken were actually turned over to us, but the contracts were not. There were some contracts with some tenants that were not even reduced to writing, and those were pledged to us as well as the notes themselves. We advanced the money on the faith of the agreement as to pledging of all of the collateral notes. We advanced on the faith of getting all the notes and all the contracts, but late in the year there were several that notes had not been secured from, nor contracts.”

He further testified that he did not advance any money to the irrigation company until it had obtained and delivered to the bank the notes which it had agreed to pledge. He seems to have known that until the notes were delivered to the bank it had no security.

“Under both the civil and the common law it is necessary to the validity of a pledge that possession of the pledged property be delivered to the pledgee, or to some one for him. Delivery of the thing is not a consequence, but the very essence, of the contract.” “Pledges,” 31 Cyc. 799, 800.

Delivery and possession is essential. See note 4 L. R. A. 306; also Simpkins on Contracts and Sales (3d Ed.) bottom of page 811 and top of page 812, and authorities cited.

In Jones on Pledges and Collateral Securities, § 30, p. 37, it is said:

“Obviously a pledge of future property is not effectual until the property comes into existence and is delivered to the pledgee. As to such property there can only be an agreement to pledge it, because there can be no delivery to make the pledge effectual.”

We think the authorities cited are conclusive against appellant’s contention that it has a lien on the $5,084 water rents collected by the receiver for which neither note or contract had been obtained by the irrigation company and delivered to appellant.

The second and third assignments complain of that portion of the judgment establishing a lien in favor of the Gulf Pipe Line Company upon the $5,084.

It is a well-settled rule of equity that a creditor who furnishes current supplies to a quasi public or public service corporation to keep it a going concern is entitled to priority of payment for such supplies out of funds in the hands of a receiver of such company, earned prior to the receivership, over other unsecured creditors. McIlhenny v. Binz, 80 Tex. 16, 18 S. W. 655, 26 Am. St. Rep. 705; Bank v. Waco Electric Ry., 36 S. W. 136; Ellis v. Ice, etc., Co., 86 Tex. 109, 23 S. W. 858; Homer v. Baltimore Refrigerating Heating Co., 117 Md. 411, 84 Atl. 181; Atlantic Trust Co. v. Canal & Irrigation Co. (C. C.) 79 Fed. 39.

The Cane & Rice Belt Irrigation Company was organized and chartered under the laws of this state, and our courts have settled the status of such companies as quasi public in character and standing upon the same footing as railroads. Borden v. Rice Irrigation Co., 98 Tex. 494, 86 S. W. 11, 107 Am. St. Rep. 640; Raywood Rice Canal & Milling Co. v. Erp, 105 Tex. 161, 146 S. W. 158; Colorado Canal Co. v. McFarland, 94 S. W. 404.

The evidence shows that the amount due the Pipe Line Company was for fuel oil furnished by it to the irrigation company during the months of July, August, and September, 1913. But for this supply of fuel furnished by appellee Pipe Line Company the irrigation company could not have continued as a going concern during said season, that portion of the public which it served would have greatly suffered, and the $5,084 in controversy would not have been earned. The evidence further shows that the oil was furnished under the express understanding and agreement that it would be paid for out of the season’s earnings of the irrigation company.

Upon these facts we think the judgment of the trial court giving the appellee Pipe Line Company a lien upon the $5,084 earnings of the irrigation company is in accordance with the principles and rules of equity.

It follows from the conclusions above stated that the judgment of the court below should be affirmed; and it has been so ordered.

Affirmed.
      ^z=»For other cases see same topic and KBY-NXJMBBR in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    W. T. RAWLEIGH MEDICAL CO. v. MAYBERRY et al.
    (No. 8527.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 17, 1917.)
    1. Commerce <@=>40(1) — Monopolies i&wkey;17(l) —Contracts—'Validity.
    A contract, providing that defendant should sell no other goods than those sold to him by plaintiff, and should sell all goods at prices indicated by plaintiff, engaging in no other business or employment, is the transaction being interstate, and the goods not being patented, invalid under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7796, denouncing as trusts combinations of skill, capital, or acts to carry out restrictions in commerce, and maintain or fix the prices of merchandise, the contract also falling within the inhibition of Act Cong. July 2, 1890, c. 647, § 1, 26 Stat. 209 (U. S. Comp. St. 1913, § S820), denouncing as illegal trusts in restraint of trade.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 29, 30; Monopolies, Cent. Dig. § 13.]
    2. Appeal and Error <&wkey;1029 — Review — Harmless Error.
    Where plaintiff, a foreign corporation, was not entitled to recover on a contract because it violated Vernon’s Sayles’-Ann. Civ. St. 1914, art. 7796, denouncing monopolies, the erroneous sustaining of an exception to plaintiff’s petition, directed to the absence of an allegation that it had procured a permit to do business in the state, was harmless.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4035, '4036J
    3. Judgment &wkey;H22 — Right to — Waiver.
    In an action against two defendants, where the demurrer of one of them was sustained to the petition and plaintiff did not reguest judgment against the other defendant, who did not answer, his right to judgment against such defendant was waived.
    [Ed: Note. — For other cases, see Judgment, Cent. Dig. § 222.]
    Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.
    Action by the W. T. Rawleigh Medical Company against W. W. Mayberry and others. From a judgment for defendants, plaintiff appeals. Affirmed.
    J. R. Stubblefield, of Eastland, for appellant. Earl Conner, of Eastland, for appel-lees.
   BUCK, J.

This is an appeal from the district court of Eastland county, wherein the plaintiff in error sued W. W. Mayberry, as principal, and J. T. Brown and A. B. Reed, as guarantors, for balance due for goods, wares, -and merchandise, alleged to have been sold to Mayberry by plaintiff in error, in the sum of $646.38. The action was dismissed as to Reed, not served. Defendant Brown’s exceptions 2, 3, 4, 5, and 6 to plaintiff’s petition were sustained, and, plaintiff declining to amend, the cause was dismissed as to May-berry and Brown. Plaintiff, by writ of error, appeals.

Defendant Mayberry filed no answer to plaintiff’s suit in the trial court, nor is he represented in this court by brief or otherwise, though citation in error was served upon him.

The contract between plaintiff and defendants, upon which plaintiff’s claim of the defendants’ liability rests, was pleaded by plaintiff, and is, in substance and effect, the same character of contract shown in the case of Armstrong v. Rawleigh Medical Co., reported in 178 S. W. 582. In that case the Supreme Court dismissed the application for writ of error, for want of jurisdiction, but. we are not advised as to the ground upon which the Supreme Court predicated its conclusion that it was without jurisdiction, as in the cited case, as well as in the instant, ease, the cause originated in the district court. While we should have been pleased to have had the Supreme Court pass upon the questions presented in the cited case, yet in the absence of any authoritative expressions to the contrary from our Supreme Court, uttered since the rendition of our judgment in the cited ease, we feel disposed to adhere to the conclusions therein expressed. This frame of mind is strengthened by the fact that the conclusions reached by us heretofore have met with the approval of the Court of Appeals for the Third District, in Rawleigh Medical Co. v. Fitzpatrick, 184 S. W. 549, and with the approval of the Court of Appeals for the Eighth District in Rawleigh Medical Co. v. Gunn, 186 S. W. 385. See, also, Pictorial Review Co. v. Pate Bros., 185 S. W. 369, by this court. It will also be noted that a writ of error was refused (170 S. W. xviii) in Watkins Med. Co. v. Johnson, cited by us in the Armstrong Case, supra. Hence wé conclude that no useful purpose could be subserved by us in reviewing again the authorities, as is requested by plaintiff in error.

Therefore we conclude that the trial court did not err in sustaining the exceptions of defendants leveled at those portions of the contract between the parties plaintiff and defendant, made a part of plaintiff’s petition, which provided that defendant Mayberry, principal obligor, should sell no other goods than those sold to him by plaintiff, to sell all such goods at prices indicated by plaintiff, and to have no other business or employment. Article 7796, Vernon’s Sayles’ Texas Civil Statutes; Watkins Med. Co. v. Johnson, 162 S. W. 394; Armstrong v. Rawleigh Med. Co., 178 S. W. 582; Pictorial Review Co. v. Pate Bros., 185 S. W. 309; Rawleigh Med. Co. v. Fitzpatrick, 184 S. W. 549; Rawleigh Med. Co. v. Gunn, 186 S. W. 385. It should be further noted that the contract provided for the sale of extracts, spices, soaps, etc., articles which are not ordinarily patented, and therefore combinations in restraint of trade with reference to the sale thereof would be subject to the inhibition provided in section 1 of the act of July 2, 1890 (chapter 647, 26 Stat. 209), Fed. Stats. Annotated, vol. 7, p. 336 (U. S. Comp. St. 1913, § 8820); Swift & Co. v. U. S., 196 U. S. 375, 25 Sup. Ct. 276, 49 L. Ed. 518.

While we are of the opinion that the court erred in sustaining an exception to plaintiff’s petition, directed to the absence of an allegation that it had procured a permit to do business in the siate of Texas, because, as against an exception, it affirmatively appears from the petition that the sales out of which this claim originated constituted interstate transactions, but this error becomes immaterial if we are correct in the conclusion reached that the contract relied on contained stipulations prohibited by article 7796. As was said in White Mfg. Co. v. Hertzberg, 51 S. W. 855:

“The sale and delivery to defendant in error may have been an interstate transaction but after the interstate portion of the transaction had ended, then the trust part of the contract arose.”

Plaintiff in error urges error in the failure and refusal of the court to render judgment against Mayberry, at least, the latter having been duly cited but answering not. The judgment recites that after certain exceptions of defendant Brown had been by the court sustained, and others overruled, “the plaintiff declining to amend or proceed further with this cause, it is therefore ordered, adjudged, and decreed by the court that plaintiff’s cause of action be, and the same is hereby, dismissed as to said defendants J. T. Brown and W. T. (W.) Mayberry, etc. There is nothing in the record to show that plaintiff by written motion, tendered charge, or verbal request, sought a judgment against Mayberry after the court had ruled on the demurrers of defendant Brown. In this condition of the record, plaintiff in error must be held to have waived any rights which it may have had to a judgment against Mayberry alone.

The judgment must be affirmed; and it is so ordered.
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text:
    JOHNSON v. MASTERSON et al.
    (No. 7100.)
    (Court of Civil Appeals of Texas. Galveston.
    April 21, 1916.
    On Motion for Rehearing by Appellee, June 14, 1916.
    On Motion for Rehearing by Appellant, March 22, 1917.)
    1. Deeds &wkey;>208(l) — Delivery—Sufficiency of Evidence.
    In a suit of trespass to try title and to recover rents, evidence held insufficient to raise the issue of the nondelivery of the deed to the land by the deceased owner to plaintiff, his son.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 625, 630.]
    2. Evidence <&wkey;390(l) — Parol Evidence Affecting Writing — Deeds.
    In trespass to try title, where the court in submitting the question properly assumed delivery of the deed to plaintiff by the owner of the land, the legal effect of the execution and delivery of the deed could not be changed by a jury finding that the owner did not intend that the deed should pass title until his death, since, when actual delivery of a deed is shown, the deed defines its purpose, and cannot be contradicted except upon ground of fraud, accident, or mistake.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1719, 1720.]
    3. Mortgages <&wkey;>258 — Bona Fide Purchaser of Note — Foreclosure of Lien.
    An innocent purchaser of notes, secured by a deed of trust upon land, who acquired the instruments in due course before maturity, paying value to a party who had no notice when he purchased of the existence of the deed to the land from the maker of the notes to his son, or notice of any defense to the notes, was entitled to protection as an innocent purchaser for value, and to have his lien foreclosed in the son’s suit to recover title, possession, and rental value.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 689-691.]
    On Motion, for Rehearing Filed by Appellant.
    4.Mortgages <&wkey;258 — Innocent Purchaser for Value — Consideration:
    While cancellation of a pre-existing debt is not alone sufficient consideration to protect the purchaser or mortgagee against a prior title of which lie had.no notice, if, in addition, some other consideration of value is given for the execution of the deed or mortgage, the person claiming under the instrument is protected as an innocent purchaser.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 689-691.]
    Appeal from District Court, Brazoria County; Sam! J. Styles, Judge.
    Suit by B. L. Johnson, Jr., by next friend, Amanda Whitfield, against H. Masterson and others. From judgment for defendants, plaintiff appeals.
    Reversed and rendered in part, and reversed and remanded in part.
    John B. Warren, of Houston, for appellant. H. Masterson, of Houston, Masterson & Rucks, of Angleton, and Ewing Boyd, of Houston, for appellees.
   PLEASANTS, C. J.

Amanda Whitfield, suing as next friend of B. L. Johnson, Jr., brought this suit against H. Masterson, Bas-sett Blakely, A. E. Masterson, administrator of the estate of B. L. Johnson, deceased, and H. Bingham, to recover the title and possession of two tracts of land on the A. Robinson survey in Brazoria county, containing in the aggregate 102 acres, and the reasonable rental value of said land for the years 1912 and 1913, which 'is alleged to be the sum of $750 per year. In addition to thp usual allegations in a suit of trespass to try title and for recovery of rents, plaintiff’s petition alleges, in substance, that the defendant B. A. Masterson wrongfully and unlawfully inventoried the land in controversy as part of the estate of B. L. Johnson, deceased, and took possession of same, and that all of the defendants maliciously conspired to defraud plaintiff out of his land and the rents and revenues arising therefrom by obtaining from the probate court an order of sale therefor as the property of said estate, under which order a pretended sale was made to defendant Bassett Blakely, and that thereafter said Blakely and II. Masterson pretended to sell said land to defendant Bingham.

Plaintiff further avers that the obtaining of letters of administration on said B. L. Johnson’s estate by said Masterson and the subsequent inventory of the plaintiff’s land as a part of the estate of B. L. Johnson, Sr., by said Masterson, and the subsequent sale-thereof by said probate court to Bassett Blakely was maliciously instigated and accomplished by said Masterson in conspiracy with the defendants H. Masterson, Bassett Blakely, and Geo. H. Bingham, to obtain possession of said land and slander the title of plaintiff thereto, the said defendants knowing that plaintiffs were ignorant colored people, without means other than said land, and without influence to obtain assistance in the assertion of their rights, and believing that by so doing the plaintiff would yield the possession of said land to them and cease to assert his right thereto.

It is further alleged that in pursuance of said conspiracy to defraud plaintiff of his said land, the defendant E. A. Masterson, aided and abetted by the other defendants, after he had conveyed said land to defendant Blakely file complaint in the probate court of Brazoria county, falsely charging plaintiff’s mother, Amanda Whitfield, with interfering with the possession of said administrator and refusing to vacate said land, and induced said court to fine said Amanda Whitfield the sum of $50 for contempt of court anid order her held in custody by the sheriff of Brazoria county until such fine was paid, from which custody she was only released by habeas corpus proceedings brought in the district court of said county.

Because of said alleged wrongful and malicious acts of defendants, plaintiff alleged that they are liable to him in the sum of $1,-500 actual and $5,000 exemplary damages. The prayer of the petition is for an injunction restraining defendants from further interfering with plaintiff’s possession and use of the land with his said mother and minor sisters and brothers; that he recover the title and possession of said land with his actual and exemplary damages, and that the order of the probate court, directing the sale of said land and the deeds from the administrator to Bassett Blakely and from Blakely to defendant Bingham, be each and all canceled as clouds upon plaintiff’s title.

The defendants, in addition to general special denials of all of the material allegations of plaintiff’s petition, pleaded in full the facts in regard to the sale of the land by the probate court of Brazoria county for payment of indebtedness due by B. L. Johnson, deceased, and secured by liens on said land, and averred that said land was the property of said estate, and the orders of said court allowing said indebtedness and ordering the sale of said land in satisfaction thereof were regularly and properly made and the title to said land by said order and sale became, thereby vested in defendant Bingham.

The defendant H. Masterson pleaded in the alternative that in event it should be found that said land was not the property of the estate, he be protected as innocent purchaser of the indebtedness which was secured by a lien on said land, and his lien for the amount of such indebtedness as fixed by the order of the probate court be established and foreclosed.

The cause was submitted to a jury in the court below upon special issues, and upon the return of the verdict judgment was rendered in favor of defendants.

The evidence shows the land in controversy was owned by B. L. Johnson prior to December 8, 1908. He had lived upon the land for some years prior to said date and portions of it were occupied and cultivated by tenants. He was unmarried, but had cohabited for a number of years with Amanda Whitfield, a negress, and had had several children by her. She and her children lived on this land in the same house in which Johnson lived. He had often, prior to the date last mentioned, told Amanda that he intended to ‘give this place to his son, B. L. Johnson, Jr., who was also Amanda’s son, and at the time mentioned about 10 years old. On December 8, 1908, he signed and acknowledged a deed with general warranty of title which was written for him by Mr. A. R. Hamblen, of Houston, and by which, for the recited consideration of $1 and love and affection for his son, B. L. Johnson, Jr., he conveyed to his said son the property in controversy.

It is shown by the undisputed testimony of Amanda Whitfield, her mother, Buey Cole, plaintiff, B. D. Johnson, Jr., a man named Alex Langston, and a sister of plaintiff who was at that time about 15 years old, that when B. L. Johnson came home from Houston on December 8, 1908, he brought this deed with him, and called the plaintiff, B. L. Johnson, Jr., to him and gave him the deed, telling him it was a deed of gift to the property. The boy tried to read the deed, but read it so slowly that Johnson took it from him and read it to him, after which he again gave it to him and told him to give it to his mother to keep for him. The boy then handed the deed to his mother, who took it and put it in her trunk, where she kept it until B: L. Johnson purchased an iron safe which he told them was purchased for the boy and which was to be used by all of them. B. L. Johnson had the name of B. L. Johnson, Jr., placed on this safe. On one of the drawers in the safe he had stamped the initials of B. L. Johnson, Jr. He gave the boy the key to this drawer, and the deed was taken from Amanda’s trunk and placed in this drawer. The boy or his mother kept the key to this drawer, and the deed was kept therein until after the death of B. L. Johnson, which occurred on February 6, 1912. The deed was found in the safe a day or two after the death of B. L. Johnson by E. E. Pye, and he advised the boy to have it recorded, which was done on February 12, 1912. Mr. Pye and A. C. Barnes, a justice of .the peace, testified that the deed was found in this safe after the death of Johnson.

The only evidence relied on by appellees to sustain a finding that the deed was not delivered by B. L. Johnson to his son is evidence showing that B. L. Johnson up to the time of his death claimed to own the land, rendered it for taxes in his own name, executed deeds of trust thereon, and in order to obtain loans thereon made affidavit that he was the owner, and that it was free from in-cumbrances.

We agree with appellant that this evidence is insufficient to raise the issue of the nondelivery of the deed.

The issues submitted to the jury and their findings thereon were as follows:

“The court will submit to you only such issues as the court deems proper under the facts of this case.
“Question No. 1. Do you believe from the evidence that the deed from B. E. Johnson to B. L. Johnson, Jr., dated December 8, 1908, was signed, acknowledged, and delivered by the said B. B. Johnson, deceased, with the intention on the part of the said B. L. Johnson, deceased, to. then and there pass the title at once to the said B. L. Johnson, Jr., to the land in controversy/ You will answer this question ‘Yes’ or no.
“In reference to question No. 1, I charge you that: If you believe from the evidence that B. L. Johnson, deceased, signed, acknowledged, and delivered to B. L. Johnson, Jr., the deed m evidence dated December 8, 1908, and you further believe that at said time he did so with the intention thereby to pass at once the title to the land therein described to the said B. L. Johnson, Jr., then you will answer question No. 1, ‘Yes’; but if you believe from the evidence that B. L. Johnson, deceased, signed, acknowledged, and delivered the deed in evidence, dated December 8, 1908, to the said B. D. Johnson, Jr., and you further believe from the evidence that the said B. D. Johnson, deceased, then and there took, possession of said deed and retained the possession and control of same and intended at the time that the title to the said land should not pass to the said B. L. Johnson, ,Tr., until after his, the said B. L. Johnson’s, death, then you will answer question No. 1, ‘No.’
“Question No. 2. If you answer question No. 1, ‘No,’ then answer this question: When do you believe, from the evidence, B. L. Johnson, deceased, intended the said deed to take effect?
“Question No. 3. Wliat do you believe from the evidence was the reasonable rental value of the land in controversy for the year 1912?
“Question No. 4. What do you believe from the evidence was the reasonable .rental value of the land in controversy for the year 1913?
“To question No. 1: Answer, No.
“To question No. 2: Answer, At his death.
“To question No. 3: Answer, $750.00.
“To question No. 4. Answer, $400.00.”

Upon the return of this verdict appellant filed a motion requesting the court to render judgment in his favor for the title and possession of the land and for the rents as found by the jury.

Appellant’s second assignment is as follows:

“Tho court erred in overruling plaintiff’s motion for judgment after the verdict, in that on the verdict and the uncontroverted evidence plaintiff was entitled to judgment for the title and possession of the land in controversy as against the defendants, and for judgment for his rents, in that the uncontroverted evidence showed the execution and delivery of the deed by B. L. Johnson to B. D. Johnson, Jr., prior to his death, and that, Johnson intending the said conveyance as a deed, it was immaterial what the jury might find as to when the said Johnson intended the deed to take effect, as the legal effect of the execution and delivery of the deed in evidence was to place the title to the property in controversy in B. L. Johnson, Jr.”

This assignment must be sustained. The verdict of the jury above set out is a finding that the deed from B. L. Johnson to B. L. Johnson, Jr., was signed, acknowledged, and delivered. The court assumed the delivery of the deed in submitting the question to the jury, and this assumption is, as we have before stated, sustained by the uneontradieted evidence. This being so, the legal effect of the execution and delivery of the deed cannot be changed by a finding of the jury that B. L. Johnson did not intend that the deed should pass title until after his death. When the actual delivery of the deed is shown, as in this case, the deed defines its purpose and cannot be contradicted except upon grounds of fraud, accident, or mistake. In cases of this character the intention of the grantor by the execution of the deed can only be a subject of inquiry where there is no actual delivery to the grantee or some one for him. The question of intention is only important on the issue of the execution of the instrument which includes its delivery. Lott v. Kaiser, 61 Tex. 665; McCartney v. McCartney, 93 Tex. 361, 55 S. W. 310; Henry v. Phillips, 105 Tex. 459, 151 S. W. 533.

The evidence in this case further shows that defendant PI. Masterson acquired certain notes executed by B. L. Johnson and secured by deed of trust upon this land. He acquired these notes in due course of trade before maturity, and paid value therefor without any notice of the existence of the deed from B. L. Johnson to B. L. Johnson, Jr., or notice of any defense to the notes, if any in fact existed. In these circumstances he is entitled to protection as an innocent purchaser, and to have his lien given to secure said notes, on the land in controversy, foreclosed. We cannot, however, ascertain definitely from the record the exact amount of such indebtedness, and for that reason cannot render judgment in his- favor.

It is unnecessary to discuss the various assignments of error presented in appellant’s brief.

We do not think the question of exemplary damages was raised by the evidence, and the assignment complaining of the refusal of the trial court to submit that issue cannot be sustained.

It follows from the conclusions above expressed that the judgment of the trial court should be reversed, and judgment here rendered in favor of appellant for the title and possession of the land, subject to the lien thereon held by defendant H. Masterson, and for rents as found by the jury. Judgment for rents for the year 1912 to be against the administrator, and for the year 1913 against defendant Bingham. It is further adjudged that upon the cross-action of the defendant H. Masterson the cause be remanded for a new trial.

Reversed and rendered in part.

Reversed and remanded in part.

On Motion for Rehearing Piled for Appellee.

In the motion for rehearing filed by appel-lee H. Masterson, our attention has been called to evidence contained in the statement of facts from which the amount of the indebtedness due him by the deceased, B. L. Johnson, and secured by deeds of trust upon the land in controversy, can be definitely ascertained. The amount of such indebtedness being shown by the record, said appellee is entitled to have his lien upon the land to secure said indebtedness foreclosed, and our former judgment herein will be reformed so as to order such foreclosure and the issuance of an order of sale.

The several motions filed by the other parties to this appeal have each been duly considered and should, in our opinion, he overruled ; and it has been so ordered.

On Motion for Rehearing Piled by Appellant.

It is earnestly insisted in a motion for rehearing filed by appellant that we erred in our -former opinion herein in holding that appellee Masterson purchased the notes held by him, and for which he seeks a foreclosure upon the land involved in the suit, for value and without notice of appellant’s claim to the land. The statement in our main opinion that Masterson had no notice of appellant’s claim at the time he purchased the notes is erroneous, and was inadvertently made. He purchased the notes after the deed to appellant had been placed of record, and was therefore charged with notice of appellant’s title. He is, however, entitled to protection as an innocent holder because his assignors were purchasers for value without notice.

The uncontradicted evidence shows that IJye, from whom Masterson purchased the $4,000 note, had no notice of appellant’s claim at the time he acquired the note, which was before the record of the deed to appellant, and that he paid several hundred dollars in cash for said note in addition to surrendering to B. L. Johnson other notes or claims held against him. That this was a valuable consideration and entitled Pye to protection against the unrecorded deed of appellant is, we think, settled by the decisions of our courts. While the cancellation of a pre-existing debt is not alone a sufficient consideration to protect a purchaser or mortgagee against a prior title of which he had no notice, if in addition to the pre-existing debt some other consideration of value is given for the execution of the deed or mortgage, the person claiming under such instrument is protected as an innocent purchaser for value. Steffian v. Bank, 69 Tex. 513, 6 S. W. 823; Hardware Co. v. Kaufmann, 77 Tex. 136; 8 S. W. 283; Watts v. Corner, 8 Tex. Civ. App. 588, 27 S. W. 1087.

The other notes held by Masterson were executed by B. L. Johnson for money loaned him by persons who had no notice of the deed to appellants.

We adhere to our former holding that Mas~ terson is, under the undisputed evidence, entitled to a judgment foreclosing the liens given by B. L. Johnson upon the land involved in this suit to secure the payment of the notes held by Mm.

It follows that the motion for rehearing should be overruled; and it has been so ordered.
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