text:
    WACASER et al. v. ROCKLAND SAVINGS BANK.
    (No. 1369.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 14, 1914.
    Rehearing Denied Dec. 17, 1914.)
    1. Evidence (§ 372) — Ancient Documents— Admissibility.
    In 1873 plaintiffs’ ancestor executed a deed of trust which wa’s duly filed for registration. The land was sold by the trustee in the following year, and the title of defendants and their predecessors under the trust deed was not questioned for over 30 years. Rev. St. 1911, art. 3700, declares that every instrument actually recorded for a period of ten years shall be admitted without proof of execution, provided no adverse claim is made, and provided that it shall be filed with the papers in the case three days before trial, and unless the opposite party, or some one for him, shall make an affidavit of forgery. Held that, notwithstanding the filing of an# affidavit of forgery, a certified copy of the deed of trust was admissible in accordance with article 3703, providing for the admission of such copies.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1613-1627; Dec. Dig. § 372.]
    2. Evidence (§ 372) — Presumptions — Ancient Documents.
    Where the deed made by a trustee pursuant to' the powers contained in the deed of trust was an ancient document, and did not affirmatively show that there was no compliance with the trust, it will be presumed that the trustee complied with the provisions of the trust deed.
    [Ed. Note. — Eor other cases, see Evidence, Cent; Dig. §§ 1613-1627; Dec. Dig. § 372.]
    Appeal from District Court, Morris County; H. F. O’Neal, Judge.
    Suit by Jeff Wacaser and others against the Rockland Savings Bank. From a judgment for defendant, plaintiffs appeal.
    Affirmed.
    The brief of appellants states that the suit was brought by appellee against them to remove cloud from title to 618 acres of land and to recover title and possession of same. Appellants set up the plea of not guilty and that the deed of trust from W. F. Wacaser to J. B. Roark was a forgery, and, further, that the trustee in making sale did not post a public notice of sale at the courthouse of the county where the sale was made. There was a trial to the court with a jury, resulting in judgment in favor of the appellee.
    It was admitted that the appellants were the heirs, and only heirs, of W. F. Wacaser and his wife, and that both of the latter are dead. The appellee proved a patent to the land in suit issued by the state on April 4, 1868, to W. F. Wacaser, assignee of the Buffalo Bayou, Brazos & Colorado Company. On August 3, 1873, W. F. Wacaser executed a deed of trust with power of sale to J. B. Roark, to secure an indebtedness by note to Everett Lane and J. A. Jones. The deed of trust was filed for registration August 22, 1873. J. B. Roark, as trustee executed a conveyance of the land on July 17, 1874, to Everett Lane, acknowledged by one of the two subscribing witnesses, and registered December 4, 1874. The deed recites sale under powers of the deed of trust and in com-piliance with its requirements and terms. Everett Lane, on December 28, 1898, executed a conveyance of the land, to appellee, which deed was registered April 14,1899. It was admitted the land was wild land, and had never been in the actual occupancy or use of any one. The record admits payment of all taxes by appellee. There is no proof offered by appellants except that arising from heirs of W. E. Wacaser and wife, both deceased. The facts support the judgment.
    P. A. Turner, of Texarkana, and G. D. Hart, of Daingerfield, for appellants. Rols-ton & Rolston and Ward & Ward, all of Mt. Pleasant, for appellee.

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

   LEVY, J.

(after stating the facts as afiove). [1] It is ui'ged by the first assignment that there was error in admitting the certified copy of the deed of trust from W. E. Wacaser to J. B. Roark, trustee. The certified copy, properly filed for more than three days among the papers of the case, was tendered in evidence with affidavit accounting for the nonproduction of the original Instrument, and in connection with oral evidence of a witness that no adverse nor inconsistent claim to the one evidenced by such instrument had been asserted during the previous ten years to the date of this suit, or since the deed of trust had been registered for .record in the county clerk’s office. The precise objections to the introduction of the certified copy of the instrument made and insisted upon are that an affidavit had been made and filed for defendants, stating that the affiant believed the deed of trust to be a forgery, and further that, as the original was not an instrument subject to registration, a copy thereof could not be admitted as an ancient instrument. Article 3700, R. S. of 1911, provides that:

“Every instrument which has been, or hereafter may be, actually recorded for a period of ten years in the book used by the said clerk for the recording of such instruments, whether proved or acknowledged in such manner or not, shall be admitted as evidence in any suit in this state without the necessity of proving its execution, provided, no claim adverse or inconsistent to the one evidenced by such instrument shall have been asserted during that ten years; provided, that the party to give such instrument in evidence shall file the same in among the papers of the suit in which he proposes to use it at least three days before the commencement of the trial of such suit, and give notice of such filing to the opposite party or his attorney of record; and unless such opposite party, or Some other person for him, shall, within three days before the trial of the cause, file an affidavit stating that he believes such instrument of writing to be forged.”

The purpose of this article is to establish a rule of evidence. It was considered in Hancock v. Lumber Go., 65 Tex. 225, that a certified copy of the instrument recorded would stand as would the original instrument, on compliance with the other provisions of the law, and be admissible in like manner as the original could be. And in Holmes v. Coryell, 58 Tex. 680, a certified copy of the record was offered as an ancient instrument, and was objected to because an affidavit of forgery was made and filed. The court declined to sustain the objection, holding that the statute, “does not impose any burden upon a party who desires to use an instrument in evidence, against which an affidavit of forgery has been filed, greater or other than the common-law rules of evidence would have imposed upon the party offering the instrument. When the affidavit of forgery is filed, the party is simply remitted to the common-law method of proving the execution of the instrument before it can be used in evidence.” That case further discusses the extent of proof to admit in evidence a copy as an ancient instrument. In Brown v. Simpson, 67 Tex. 225, 2 S. W. 644, the ruling in Holmes v. Coryell was approved, but in that particular case it- was held error to admit in evidence the copy, because “in this case the certificate of the clerk to the copy from the records shows that the date of the registration of the instrument does not appear, and no proof was introduced to show when the record was made.” In the instant case above in the clerk’s certificate to the copy it is stated:

“The above deed of trust was filed for record the 22d day of August, 1873, at 7:30 o’clock a. m., and recorded in Book ‘P,’ pages 671, 672, 673, Upshur County Records.”

Purporting, as the certificate does, to show the fact of filing and recording in the deed book of Upshur county, where the tract was partly situated, and the date, it would appear where and when the record was made, and be of over 30 years’ record. The statute expressly authorizes copies of transcribed records to be admitted in evidence with like effect as certified copies of the original records. Article 3703, R. S. 1911.

By the next assignment the point is made that there was failure of the trustee to make sale in accordance with the terms of the deed of trust. The deed of trust empowered the trustee, in default of payment of the note, to make sale of the land “at the courthouse door in Gilmer in said county, complying in all respects with the requirements of the law in selling under execution issued out of the district court.” The deed of trust, has the recital that the trustee, “after having first given thirty (30) days’ public notice of the time, terms, and place of sale and of the property to be sold by advertisements posted at three public places in the said county of Upshur on the 20th day of May, A. D. 1874, did proceed to sell the property described in said deed of trust at public vendue to the highest bidder for cash at the courthouse door in Gilmer on the 7th day of July, 1874, between the hours prescribed by law.” There was no evidence to the contrary of the recital. The face of the recital does not show that notices had been posted or place of sale made in violation of the provisions of the deed of trust. As an ancient instrument, and not showing a violation of the terms of the trust, all circumstances necessary to the legal validity of the conveyance will be assumed. 27 Cyc. 1495 ; 9 Ency. of Evidence, 183. See Giddings v. Day, 84 Tex. 605, 19 S. W. 682.

Affirmed.


source: Caselaw Access Project

author: WILDSON, C. J.

license: Public Domain

text:
    JEFFERSON COTTON OIL & FERTILIZER CO. v. PRIDGEN & CONGLETON.
    (No. 1362.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 16, 1914.
    On Appellant’s Motion for Writ of Certiorari and Rehearing, Dec. 23, 1914.)
    1. Appeal and Error (§ 1050) — Harmless Error — Secondary Evidence — Invoices.
    In an action for work done under a construction contract, where plaintiff testified that he had worked all the lumber in the invoices admitted as evidence in the case, his answer to a question as to how much lumber he actually put into the building, “Here are the invoices * * * of the lumber we received during that time; they total 315,000 feet,” was not prejudicial, since, with the invoices before them, the jury could have verified the statement.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec'. Dig. § 1050.]
    2. Appeal and Eebob (§ 499) — Objection— Waiver.
    Assignments of error in admitting evidence could not be considered, where there was nothing in the record showing that appellant objected to the testimony covered thereby.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    ' 3. Evidence (§ 501) — Opinion Evidence-Damages.
    In an action to recover the balance due on a construction contract, opinion of witness as to the amount of damages plaintiff suffered because of facts not testified to and which may or may not have existed was inadmissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2292-2305; Dec. Dig. § 501.]
    4. Appeal and Error (§ 692) — Ruling on Evidence — Review .
    Exclusion of evidence cannot be reviewed, where the testimony which the witness would have given was not set out in the bill of exceptions.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2905-2909; Dec. Dig. § 692

    5. Appeal and Error (§ 230) — Record—Objection to Charge — Waiver.
    Under Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971), providing that a written charge shall be submitted to counsel for inspection, and that objections thereto shall be presented to the court before the charge is read to the jury, and that all objections not so presented shall be considered waived, and article 2061, declaring that the ruling of the court on instructions shall be regarded as approved, unless excepted to,_ as' provided in the articles prescribing the requisites of bills of exception, an objection not made to the charge before it was given to the jury will be treated as waived in the court below.
    [Ed. Note. — For other cases, see Appeal and Error, Dee. Dig. § 230 ; Trial, Cent. Dig. § 680.]
    6. Appeal and Ebeob (§ 1170) — Harmless Error — Evidence—Rule of Court.
    In an action for the balance due under a contract, where defendant’s treasurer testified that he paid plaintiff a certain amount by check, which was not offered until both parties had closed their evidence, though plaintiff had been demanding it for several days, the refusal to reopen the case and admit the check as evidence, in view of other evidence sufficient to support a finding as to debt, after giving defendant credit for the amount of such check, was not reasonably calculated to cause the rendition of an improper judgment, within rule 62a for Courts of Civil Appeals (149 g. W. x), and hence not reversible error. f

    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dee. Dig. § 1170.]
    7. Appeal and Error (§ 925) — Review—Presumption — Remark or Court.
    On assignment of error to remarks of the court, in the presence and hearing of the jury, where the bill was qualified by the court’s statement that the jury did not hear such remarks, it will be assumed that the jury did not hear them.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3729-3734; Dec. Dig. § 925.]
    8. Evidence (§ 441) — Parol Evidence to Vary Writing — Construction of Contract.
    In an action to recover the balance due under a written contract, silent as to the time within which the work was to be done by plaintiff, testimony of defendant’s witness that it was mutually agreed that the work should be completed within 60 days was inadmissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1719,1723-1763, 1765-1845, 2030-2047; Dec. Dig. § 441.]
    9. Contracts (§_ 212) — Performance—Time.
    Where there is no specification in a contract of any time for performance of the work, the law implies a reasonable time.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 944-955; Dee. Dig. § 212.]
    10. Contracts (§ 346) — Action—Evidence-Issues.
    In an action for the balance due on a construction contract, testimony for defendant that when the contract was awarded to plaintiff it was mutually agreed that the work should be completed within 60 days was properly excluded, where there were no pleadings to support it.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1714, 171841751; Dec. Dig. § 346.]
    On Appellant’s Motion for Writ of Certiorari and Rehearing.
    11. Appeal and Error (§ 713) — Record—Objection to Instructions.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1923, 1924, prescribing the duties of the official court reporter, it is not a part of his duty to record objections to the charge, and his notes thereof, even if in the record sent to the Court of Civil Appeals, cannot be considered therein.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2379, 2463, 2645, 2956, 2957; Dec. Dig. § 713.] '

      12. Appeal and Error (§ 500) — Objection to Charge — Bill of Exceptions — Rule of Court.
    Tlie court’s action upon oral objections to a charge should be presented on appeal by a bill of exceptions, as 'required by rule 55 for district and county courts (142 S. W. xxi).
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 500.]
    13. Appeal and Error (§ 659) — Certiorari to Perfect Record — Rules of Court.
    Under Rules 11, 22, for Courts of Civil Appeals (142 S. W. xi, xii), relating to motions for certiorari to perfect the record, and providing that mere failure to observe omissions or inaccuracies in the record will not be admitted as a reason for correcting the record or obtaining a rehearing, appellant, whose bill of exceptions presenting his objection to the charge was duly filed in the court below, but .omitted from the record sent to the Court of Civil Appeals, was not entitled to certiorari to perfect the record.
    [Ed. Npte. — Eor other cases, see Appeal and Error,.Cent. Dig. §§ 2834-2843; Dec. Dig. § 659.]
    14. Appeal and Error (§ 926) — Bill of Exceptions — Construction.
    Where a bill of exceptions showed that appellant offered a witness’ opinion as to the amount of damages suffered from plaintiff’s defective work in roofing its seedhouse, it cannot be 'assumed from the court’s exclusion of such opinion that it would have excluded all competent testimony offered to prove facts from which the jury might have found the damages claimed.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1279, 2899, 3729, 3730, 3735-3747; Dec. Dig. § 926.]
    15. Evidence (§ 568) — Opinions—Weight— . Damages.
    The mere opinion of a witness as to damages suffered by defendant from plaintiff’s defective performance of construction work is not a sufficient basis for a finding for defendant.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 2392-2394; Dec. Dig. § 568.]
    Appeal from Special District Court, Marion County; W. T. Armstead, Judge.
    Action by Pridgen & Congleton against the Jefferson Cotton Oil & Fertilizer Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Appellees were the plaintiffs In the court below. They claimed that appellant was due them $3,368.97 on account of work done by them for it under a contract in writing whereby they undertook to construct for appellant certain brick and wooden buildings to be used by it in its business as an oil and fertilizer company. By the terms of the contract the material for the buildings was to be furnished by appellant, and appellees were to be paid weekly as the work progressed 85 per cent, of the amount due them on estimates made of the work done by them during each week, according to a schedule of prices agreed upon. They - recovered judgment for the sum of $1,016.34.
    T. D. Rowell and W. L. Grogan, both of Jefferson, for appellant R. R. Taylor, of Jefferson, for appellees.

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

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

   WILDSON, C. J.

(after stating the facts as above). 'Cross-examining appellee Pridgen, who testified as a witness in Ms own behalf, appellant asked him this question: “How much lumber did you actually work into those buildings under your contract with defendant, and for wMch work you have made a charge of $10 a thousand?” The witness answered: “Here are the invoices from Clark & Boice of the lumber we received during that time; they total 315,000 feet.” “To which answer,” it is recited in the bill of exceptions, “defendant then and there excepted, for the reason that said answer was not in reply to defendant’s question, and for the further reason that the invoices were the best evidence of what they contained.” The trial court, in allowing the bill, qualified it as follows: “Approved subject to statement of facts. Besides, witness said, ‘We worked all the lumber in the invoices; you can add them.’ The invoices are regular form, and have been put in evidence by plaintiffs in chief.” Exactly what the court meant by approving the bill “subject to the statement of facts” is not clear. But whatever he may have meant, it is believed the assignment presenting the matter should not be sustained. A sufficient reason, perhaps, for overruling it lies in the fact that appellant did not ask that the answer of the witness be stricken out; but if such a motion bad been made and erroneously overruled, the error in overruling it would not have furnished a reason why the judgment should be reversed; for, as shown by the qualification to the bill, the witness had testified that appellees had “worked all the lumber in the invoices" he referred to, and the invoices had been admitted as evidence in the case. With the invoices before them, the jury easily could have verified or ascertained to be false the statement of the witness that they totaled 315,000 feet. Therefore the first assignment of error is overruled, as is also the second, in which complaint is made of the action of the court in admitting certain other testimony given by appellee Pridgen as a witness. There is nothing in the record showing that appellant objected to the testimony covered by the assignment last mentioned.

It appears from a bill of exceptions in the record that appellant “offered,” quoting, “to prove by John William Taylor that defendant had been damaged in the sum of> $3,000 on account of cotton seed becoming wet and heated and destroyed as the immediate result of unskillful and defective work of plaintiffs in putting the roof on the seedhouse of defendant.” In its third assignment appellant complains of the refusal of the court to permit it to make such proof. What the witness would have testified to is not stated in the bill. It is plain, if the offer was not to have the witness testify to facts, but merely to his opinion as to the amount of damages appellant suffered because of facts which may or may not have existed, the court did not err in excluding the testimony. Railway Co. v. Philips, 63 Tex. 593; Turner v. Strange, 56 Tex. 143. If the offer was to prove facts which appellant thought would authorize a finding in its favor for the damages claimed, the testimony the witness would have given to establish such facts should have been set out in the bill. Without being informed as to what the testimony of the witness would have been, we are not in a position to determine whether the court erred as asserted or not. Until the contrary is made to appear, it must be presumed the court was correct in his ruling. Beeks v. Odom, 70 Tex. 186, 7 S. W. 702; Cattle Co. v. Powell, 13 Tex. Civ. App. 496, 36 S. W. 1035; Bank v. Hicks, 24 Tex. Civ. App. 269, 59 S. W. 842; Neal v. Minor, 26 S. W. 883. For like reasons the fourth assignment, in which complaint is made of the refusal of the court to permit the same witness to give similar testimony with respect to another item of damages claimed, is overruled.

In its fifth and sixth assignments appellant complains of the fifth paragraph of the charge to the jury, in which the trial court submitted a question he thought was made by the testimony as to an estoppel on the part of appellant to set up imperfections in the work done by appellees under the contract they sued upon. As it does not appear from the record before us that appellant objected to said portion of the charge before same was given to the jury, we must treat the objection urged here as waived in the court below. Acts 1913, p. 113, § 3 (articles 1971, 2061, Vernon’s Sayles’ Statutes); Railway Co. v. Wadsack, 166 S. W. 42.

The witness Hope, who was appellant’s secretary and treasurer, testified that on October 18th appellant paid appellees 8625 by a check on a bank. The check was not then offered as evidence, but later, after both parties had closed in the introduction of testimony, it was offered, and appeared to have been indorsed, “paid October 18.” The court qualified the bill of exceptions taken to his action in sustaining appellees’ objection to the admission of the check as evidence, by the statement that appellees “had been demanding said check from defendant in court for several days.” We cannot sa.y that the court abused the discretion he possessed, to the injury of appellant, when he refused to reopen the case and admit the check as evidence. The jury might have found that the payment was made as stated by the witness Hope, and yet have found appellant to have been indebted to appellees in the amount of their verdict. The evidence was amply sufficient to have supported their finding as to the amount of such indebtedness, after giving appellant credit for the 8625 Hope said it had paid. We cannot say that the action of the court “amounted to such a denial of the rights of the appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case,” and, unless we could say that, the judgment should not be reversed on the ground urged. Rule 62a (149 S. W. x) for the government of Courts of Civil Appeals. On the contrary, if we should resort to surmises, we think the most reasonable one to make would be that the jury found the $625 to have been paid as Hope testified it was, for his testimony was not directly disputed by any other testimony in the ease. It is further contended that the judgment should be reversed because the court, in sustaining appellees’ objection to the introduction of the check as evidence, used this language, “in the presence and hearing of the jury,” it is asserted, to wit: “I will exclude this check because Mr. Pridgen has already admitted getting this $625 as included in another payment made him by defendant.” The court qualified the bill presenting this complaint, as follows:

“The charge had been submitted and agreed on. The jury was returning to the bench when attorneys asked to reopen the evidence, and the court refused to reopen the evidence, and remarked to counsel for defendant that Pridgen had admitted and that the $625 was in the plaintiffs’ account of payments received on different date, and the jury did not hear same, in opinion of • the court, and that said check had been demanded by plaintiff for about three days of the trial, and same did not change the amounts of payments to plaintiff by defendant.”

It is obvious, if the jury did not hear the statement of the court made to appellant’s counsel, its rights were not thereby prejudiced. It is not believed it should be assumed the trial court was mistaken in his opinion expressed that the jury did not hear his remark to counsel, and, unless it should be so assumed, it is plain the assignments should be overruled.

Appellant offered to prove by its witness J. B. Hussey that he was a member of its building committee, and at the time the bids for the work were opened appellee Pridgen. said to him, “If you will award us (meaning Pridgen & Oongleton) this contract, -we will finish the work within 60 days,” and that at the time the contract for the work was awarded to appellees “it was mutually agreed that said work should be completed within 60 days.” Appellees' objection to the testimony on the ground that “it was an attempt to vary the terms of a written contract” was sustained. The contract was silent as to the time within which the work was to be done by appellees. Therefore the court did not err in excluding the proposed testimony on the ground stated. In the absence of a specification in the contract of a time for the performance of the work, the law implied a reasonable time, and appellees were not entitled to contradict this legal implication by showing a contemporaneous oral agreement fixing a time. Self v. King, 28 Tex. 552; Morow-ski y. Rohrig, 4 Mise. Rep. 167, 23 N. Y. Supp. 880; Liljengren Furniture & Lumber Co. y. Mead, 42 Minn. 420, 44 N. W. 306; 30 A. & E. Ene. Law, p. 1253. The testimony was also properly excluded on the ground that there were no pleadings to support it. In its answer appellant nowhere set up such an undertaking on the part of ap-pellees.

The judgment is affirmed.

On. Appellant’s Motion for Writ of Cer-tiorari and Rehearing.

Appellant insists it did object to the instruction as to an estoppel against it to set up defects in the work done by appellees before same was read by the court' to the jury, and, as evidence of the fact, attaches to its motion a certificate of the court stenographer to the effect that his notes taken during the trial showed appellant to have objected to the instruction. It was not a part of the duty of the stenographer to make a record of objections interposed to the charge (Vernon’s Sayles’ Statutes, arts. 1923, 1924;, and his notes of same, even if in the record sent to this court, could not be considered here. Where objections to a charge are made orally, as, it appears from the motion, appellant’s were, the action of the court with reference thereto complained of should be presented on appeal by a bill of exceptions as required by the rules. Rule 55 (142 S. W. xxi) for district and county courts. But, even if it appeared that a bill of exceptions presenting the ruling complained of had been filed in the court below as required by law, and that same had been omitted from the record sent to this court, appellant would not now, under the rules, be entitled to the writ of certiorari to perfect the record prayed for. Rules 11 (142 S. W. xi) and 22 for Courts of Civil Appeals. A part of rule 22 (142 S. W. xii) is as follows:

“All parties will be expected, before submission, to see that the transcript of the record is properly prepared, and the mere failure to observe omissions or inaccuracies therein will not be admitted, after submission, as a reason for correcting the record or obtaining a rehearing.”

It does not appear from the bill of exceptions in the record, to which we must look, that the court refused to “hear,” quoting from the motion, “evidence upon paragraph 13 of the defendant’s answer, in substance, an allegation of $3,000 damage to cotton seed which he stored in the seedhouse and which were damaged on account of the unskillful manner in which plaintiff put the roof on said seedhouse.” As stated in the opinion, it appears from the bill of exceptions that what appellant offered to do was “to prove by John William Taylor that defendant had been damaged in the sum of $3,-000 on account of cotton seed becoming wet and heated and destroyed as the immediate result of unskillful and defective work of plaintiffs in putting the roof on the seedhouse of defendant.” We cannot assume that, because the court refused to permit appellant to prove the damages it claimed it had suffered by the opinion of Taylor, he would have excluded competent testimony, had it been offered, to prove facts from which the jury might have found appellant to have been damaged as alleged. The mere opinion of Taylor as to damages suffered by appellant, had Taylor been permitted to state his opinion, could not have been treated as sufficient basis for a finding in favor of appellant on that issue. Henry v. Phillips, 151 S. W. 537.

The motions are overruled.


author: HODGES, J.

text:
    TEXARKANA & FT. S. RY. CO. v. TERRELL et al.
    (No. 1370.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 17, 1914.)
    1. Aepeal and Error (§§ 1056,1058) — Haemless Ekboe — Exclusion op Evidence.
    Error in excluding the answers of certain witnesses on. the ground that they were conclusions and not statements of facts was not reversible error, where some of the evidence was immaterial and other parts were repetitions of what had already been stated.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4195, 4200-4204, 4206, 4207; Dee. Dig. §§ 1066, 1058.]
    2. Appeal and Brrob (§ 1060) — Trial (§ 125) — Remarks of Counsel — Prejudicial Error.
    In an action by a minor for personal injuries from the alleged negligence of railroad employes, the remarks of counsel for plaintiffs, in his concluding argument, that defendant got a commission for depositions, gave it to a notary, and took the depositions of the boys who were with plaintiff when he was not represented, that a boj* eight or ten years old can be taken into an office and made to testify to most anything', that if they had been present in court and cross-examined they would have testified differently, and his further remark, unsupported by facts in the record, that the fathers of some of the boys aud the husband of one of defendant’s witnesses worked for a railway company, wore calculated to discredit the testimony of defendant’s witnesses and arouse the sympathies of the jury and, in view of defendant’s complaint as to the insufficiency of the evidence, were reversible error.
    [Ed. Note. — For other cases, see Appeal, and Error, Cent. Dig. § 4135; Dec. Dig. § 1060;* Trial, Cent. Dig. §§ 303-307; Dec. Dig. § 125.*]
    Appeal from Special District Court, Bowie County; W. T. Armstead, Judge.
    Action by I-Iomer Terrell, a minor, by his mother as next friend, against the Texarkana & Ft. Smith Railway Company, consolidated with action by Mrs. Emma Terrell, the mother, against same defendant. Verdict for each of the plaintiffs, and defendant appeals.
    Reversed and remanded for new trial.
    Glass, Estes, King & Burf ord, of Texarkana, for appellant. Henry & Henry, and Rodgers & Dorough, all of Texarkana, for appellees.

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

   HODGES, J.

On August 10, 1912, Homer Terrell, a minor, instituted tMs suit through his mother as next friend, against the appellant, to recover the sum of $15,000 as damages resulting from personal injuries sustained on account of the alleged negligence of the employés of the railway company. Later his mother, Mrs. Emma Terrell, instituted a suit on her own account against the same defendant, to recover damages for the loss of the services of her son during his minority and a further sum for medical care and attention administered during the time her son was suffering from his injuries. The two suits were afterwards consolidated and tried together, resulting in a verdict in favor of Homer Terrell for $1,500 and in favor of his mother for $1,000. From the judgment entered the railway company has appealed.

The petitions allege, in substance, that on or about the last day of May, 1912, the em-ployés of the Texarkana & Ft. Smith Railway Company were moving a train of cars from near the freight depot in its yards at Tex-arkana, to a point in the southern part of its yards; that there were several empty coal cars in that train, in one of which were a number of small boys whom the railway em-ployés had permitted to ride; that one of the defendant’s brakemen was in the ear with those boys; that Homer Terrell, a youth of about seven years of age, too young to possess sufficient discretion and intelligence to appreciate the danger of being near a car or of attempting to get on a car while it was in motion, was, with another group of boys, traveling along by the side of the railway track, going in an opposite direction; that as Homer Terrell and his associates approached the train and got near enough they observed the brakeman and the small boys in the empty car; that the brakeman motioned towards him, making gestures indicating that Homer Terrell and his associates were thereby being invited to get on the car while it was in motion; that when near tlie rear end of the train Homer Terrell did undertake to climb onto one of the cars, and in doing so fell, and one of his feet was caught under the wheels of the train and badly crushed. It is contended by appellees, that the petitions are also susceptible of the construction of charging the employes of the railway company with being in a position to observe Homer Terrell at the time he undertook to board the car, and that they were negligent, not only in inviting him. to get on the car, but in failing to warn him of the danger of making the attempt. The principal ground of negligence, however, relied on is the charge that the brakeman by motions and gestures invited the ¿plaintiff Homer Terrell to get on the car while it was in motion.

The first assigned error complains of the insufficiency of the evidence to support the judgment. It is not contended that there was'not some evidence to support the verdict, but that the great preponderance was against the finding of the jury. We pass that question by, however, for the present, being of the opinion that this situation alone should not be considered sufficient to reverse the judgment.

The third assigned error complains of the charge of the court wherein he authorized a recovery upon the ground that the servants of the railway company failed to warn Homer Terrell of his danger after discovering that he was undertaking to get on the car while in motion. It is contended that the pleadings are not sufficient to • justify the submission of that issue to the jury. We have examined the pleadings with considerable care, and entertain some doubt as to the propriety of submitting that issue. But as the case is to be reversed upon other grounds, we suggest that the pleadings be amended, if the appellees desire to again have that question submitted as a distinct ground of recovery. The charge of the court in that connection is not entirely free from the criticism that it assumes that Homer Terrell was too young to appreciate the dangers he encountered in attempting to get on the moving ear.

Several' other assignments are presented in which objections are made to rulings of the court in excluding the answers of certain witnesses, upon the grounds that those answers were conclusions and not the statement of facts. We do not think the testimony was subject to the objections made. We conclude, however, that this did not constitute reversible error, in view of the fact that some of the evidence was immaterial and other portions were practically repetitions of what had already been stated.

In his concluding argument to the jury counsel for the appellees used the following language, as shown by the bills of exception presented:

“Mr. Burford told you in his speech a good deal about trial jury, that the meanest man in the country was entitled to a fair trial in a criminal case, and that even his former bad reputation could not be put in evidence against him. I don’t know why he used that illustration, unless a railroad is about the meanest client that anybody can have in a civil case. Why, yes, gentlemen of the jury, we are all equal when we come before a jury. A widow can get the same consideration as the richest corporation in the country.”

And again:

“In order for you, gentlemen of the jury, to understand what these depositions are and how they should be understood, I should explain how they are taken. The railroad filed its questions, and a copy was given us. We filed our crosses, and they got out a commission and placed it in the hands of Mr. Newt Spivey, and he got the boys up in his office and took their depositions. Mr. Hop Terrell^representing the railway company, was present. No one representing the plaintiff was present. We could not be there. You can take a boy eight or ten years old and take him up in an office and make him testify to most anything. Why didn’t they bring them to court and let us look into their faces? I think if we could have cross-examined them they would have -testified differently. They all live in Texarkana, in this county. Some of their fathers work for the railway companies. They ought to have brought them to court.
“And how about the testimony of Mrs. Wilder? They have her deposition here. Why didn’t they bring her to court and let her testify from the witness stand? She could have come here and testified like Mrs. Terrell. They ought to haVe brought [her] here and let you seen her. Her husband works for the Texas & Pacific Railway Company.”

We think much of what is here quoted is entirely outside of the record and improper. Eor instance, what is said about getting the boys into the office of the notary who took their depositions, and the probability of inducing them to testify to almost any state of facts; that if the boys had been present in court and placed under a personal cross-examination, they would have testified differently — was wholly unwarranted. It was evidently uttered for the purpose of discrediting the testimony of those boys in the minds of the jury. The further statement that some of the fathers of those boys worked for railway companies was the statement of a fact not shown by the record, and was designed for the same purpose. The criticisms of the testimony of Mrs. Wilder that she should have been brought into court, and that her husband worked for the Texas & Pacific Railway Company, are subject to the same objections. There was no evidence in the record that Mrs. Wilder’s husband was in the service of the railway company. It was perfectly legitimate to take and use her deposition, and this course for securing her testimony was not open to criticism. The reference to poor widows and rich corporations clearly could serve but one purpose — to arouse the sympathies oi the jury.

If the verdict rendered in this case was in other respects entirely satisfactory, we might decline to reverse this judgment because of these remarks of counsel. But considering the state of the evidence,-we are constrained to believe that what is here complained of had considerable weight in inducing the jury to reach the conclusion they did. If that be true the verdict should not be permitted to stand. A judgment secured by such methods is not the fair and impartial expression to which the defendant was entitled. The judgment of the district court will therefore be reversed and the cause remanded for another trial.


author: WILLSON, C. J.

text:
    SHIPPERS’ COMPRESS & WAREHOUSE CO. v. CUMBY MERCANTILE & LUMBER CO. et al.
    (No. 1357.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 19, 1914.
    On Appellee’s Motion for Rehearing, Dec. 23, 1914.
    Rehearing Denied Jan. 21, 1915.)
    1.Sales (§ 71) — 'Weight—Provision eor RefuNd — Validity.
    A provision, in a contract for the sale and delivery of cotton, that the weight as determined by a compress company should be the basis of settlement between the seller and the buyer would not apply to cotton which the compress company converted but did not weigh, nor to that falsely weighed to cover up a contemplated fraudulent conversion, but bound the parties to settle by the weight as fairly and honestly determined by the compress company, and not as it might be falsely and fraudulently determined by it.
    [Ed. Note. — Eor other cases, see Sales, Cent. Dig. §§ 189-196; Dec. Dig. § 71.]
    On Appellee’s Motion for Rehearing.
    2. Carriers (§ 51) — Carriage oe Goods— Recitals in Bill oe Lading — Effect.
    A recital in a bill of lading, showing cotton to have been consigned by the seller to the order of a certain named buyer, was conclusive that it was consigned to the buyer, and not to the shipper’s order, “Notify.”
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 148,149; Dec. Dig. § 51.]
    3. Bailment (§ 31) — Conversion by Bailee —Action—Burden of Proof.
    A seller suing a compress company for its conversion of cotton which it was to weigh as a basis of settlement with the buyer had the burden of proof.
    [Ed. Note. — For other cases, see Bailment, Cent. Dig. §§ 124-131; Dec. Dig. § 31.]
    4. Bailment (§ 31) — Conversion by Bailee —Draft Attached to Bill of Lading-Presumption oe Payment.
    In a seller’s action for conversion against the buyer of cotton and the compress company, which was to weigh it as a basis of settlement, for an alleged conversion of part of it by the compress company, where it appeared that the seller’s draft attached to its bill of lading was in fact paid and the cotton delivered to the compress company, and that the carrier was without authority from the seller to deliver to either the buyer or the compress company before the draft was paid and the bill of lading presented to it, it would be presumed that the draft was promptly presented by the seller’s bank and paid by the buyer before delivery to the compress company.
    [Ed. Note. — For other cases, see Bailment, Cent. Dig. §§ 124-131; Dec. Dig. § 31; Trover and Conversion, Cent. Dig. § 215.]
    5. Bailment (§ 16) — Conversion by Bailee —Liability.
    A compress company, holding cotton as the bailee of the buyer and owner and converting it to its own use, was liable for its value.
    [Ed. Note. — For other cases, see Bailment, Cent. Dig. §§ 64-74; Dec. Dig. § 16; Trover and Conversion, Cent. Dig. § 84.]
    6. Subrogaton (§ 11) — Assignment of Right — Claim for Conversion.
    Where a compress company, receiving cotton to weigh it as a basis of settlement, was liable for conversion to the buyer and owner, who in turn was liable to the shipper for its value, and where in the shipper’s action against them ■ for conversion the buyer, instead of asserting the compress company’s liability to it, asserted that in a settlement between it and the shipper, ,the cotton was treated as the shipper’s property so as to estop it from claiming to the contrary as against the buyer, and that the liability of the compress company was not to it, but to the shipper, and it further appeared that the shipper was not liable to refund to the buyer upon final settlement the value of cotton wrongfully converted, the shipper was subrogated to the buyer’s right to enforce liability for the conversion, and a judgment for it on the theory of its ownership would not be set aside.
    [Ed. Note. — For other cases, see Subrogation, Cent. Dig. § 4; Dec. Dig. § 11.]

      Appeal from Hopkins County Court; Dan R. Junell, Judge.
    Action by .the Cumby Mercantile & Lumber Company against the Shippers’ Compress & Warehouse Company and others. Judgment for plaintiff against Shippers’ Compress & Warehouse Company, and it appeals.
    Affirmed on rehearing.
    This was a suit by the Cumby Mercantile & Lumber Company against its coappellees M. H. Wolfe & Co. and the Missouri, Kansas & Texas Railway Company of Texas and the appellant the Shippers’ Compress & Warehouse Company. It appeared from the testimony heard that about September 19, 1912, the mercantile and lumber company sold 606 bales of cotton to Wolfe & Co. at 11.90 cents per pound, middling basis, f. o. b. the cars at Cumby. The cotton was delivered by the mercantile and lumber company to the appel-lee railway company, which issued bills oí lading covering same, showing the cotton to be consigned to the order of Wolfe & Co. at Sulphur -Springs. These bills of lading, to which the mercantile and lumber company attached its sight drafts on Wolfe & Co. for amounts representing the purchase price of the cotton according to the weight thereof as determined at Cumby, were sent to a bank in Sulphur Springs for delivery to Wolfe & Co. when they paid the drafts. The drafts were paid by Wolfe & Co., and the bills of lading were delivered to them. The railway company duly transported the cotton to Sul-phur Springs, and in compliance with the order of Wolfe & Co. there delivered same to appellant. Thereupon appellant weighed and compressed the cotton and delivered same, with a statement showing the weight thereof as determined by it, to Wolfe & Co. The weight of the cotton as so determined was 1,882 pounds less than the weight thereof as determined in Cumby. By the terms of the contract between the mercantile and lumber company and Wolfe & Co. as the parties construed it, the former was bound to refund to the latter the sum they had paid to the mercantile and lumber company representing said difference of 1,882 pounds between the weight of the cotton as determined at Cumby and its weight as determined by appellant, and the mercantile and lumber company, in compliance with a demand of Wolfe & Co. that it do so, repaid said sum to them. The purpose of the mercantile and lumber company’s suit' was to recover of the other parties the sum ($211.31) it repaid to Wolfe & Co. as stated. The court peremptorily instructed the jury to find in favor of Wolfe & Co. and the railway company, and, the jury having so found, rendered judgment that the mercantile and lumber company take nothing by its suit against them. There being evidence sufficient to support a finding, either that appellant, while it had possession of the cotton for the purpose of weighing and compressing it, before weighing it had wrongfully taken and converted a portion of it to its own use,' or after weighing it had falsely stated the weight thereof, intending to take and convert a portion thereof to its own use, the court submitted to the jury an issue as to the right of the mercantile and lumber company to recover against it. • The issue was determined in favor of the mercantile and lumber company, and in accordance with the verdict of the jury judgment was rendered in said mercantile and lumber company’s favor against appellant for the sum of $211 and costs.
    Crosby, Hamilton & Harrell, of Greenville, for appellant. D. Thornton, of Sulphur-Springs, Tex., for appellee.

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

   WILLSON, C. J.

(after stating the facts as above). That appellant was liable for the value of the cotton the jury found it had wrongfully converted to its own use is not doubted. The question is, Was it liable to the mercantile and lumber company for the value thereof as determined by the judgment? Appellant insists it was not, because it appeared the cotton belonged to Wolfe & Co., and it did not appear that the mercantile and lumber company had any interest in or right of control over it. The contention must, we think, be sustained. If the property did not become the property of Wolfe & Co. when it was delivered to the railway company at Cumby, it became their property when they paid the drafts drawn on them by the mercantile and lumber company and obtained the bills of lading from the bank in Sulphur Springs. Wells v. Littlefield, 59 Tex. 560. That Wolfe & Co. paid the drafts and secured the bills of lading before or at the time the cotton was delivered to appellant sufficiently appears from testimony in the record.

It was shown that at other times during the same season Wolfe & Co. purchased of the mercantile and lumber company other lots of cotton besides the one in question here, and that the understanding between them applicable to each of the lots 'was that Wolfe & Co. at the time they purchased same should pay for the cotton according to the classification and weight thereof as determined by or for the mercantile and lumber company in Cumby, but that in a settlement to be had between them at the close of the season a classification to be made by Wolfe & Co. and the weight thereof as determined by appellant should control. The mercantile and lumber company insists that it appeared that the cotton had not been classified by Wolfe & Co. nor weighed by appellant at the time it converted 1,882 pounds thereof, and therefore that the title to the cotton had not passed to Wolfe & Co., but was still in it; and that appellant was in the attitude of holding it as its bailee for the purpose of pressing and weighing it. We are inclined to think the testimony was sufficient to have supported á finding that appellant converted 1,882 pounds of the cotton before it was either classified by Wolfe & Oo. or weighed by appellant, but we cannot agree if it so appeared it should therefore be held that the title to the cotton had not passed to Wolfe & Oo., but was still in the mercantile and lumber company at the time of the conversion. The mercantile and lumber company, as the seller, had done everything it-was to do to complete the sale, and had received the purchase price of the cotton from Wolfe & Co. on the basis of its grade and weight as determined in Cumby as agreed upon. Therefore we think it must be said the sale appeared to be complete, and that the title to the cotton then passed to Wolfe & Oo. (Sedgwick v. Cotting-ham, 54 Iowa, 512, 6 N. W. 738), notwithstanding the fact that the parties contemplated a reclassification and reweighing of the cotton. Evidently such reclassification and reweighing was of importance only in connection with the settlement to be made between them at the close of the season. On the facts shown by the record it is plain, we think, that the liability of appellant was to Wolfe & Co., and not to the mercantile and lumber company.

And we think it is also plain that the mercantile and lumber company was not bound to refund to Wolfe & Oo., as it did, the sum representing the value of the cotton converted by appellant, notwithstanding the agreement which provided that the weight of the cotton as determined by appellant should be the basis of the settlement to be had between them. That agreement would not have applied to cotton sold and delivered by the mercantile and lumber company to Wolfe & Co. which appellant converted but did not weigh, nor do we think it would have applied had it appeared that appellant falsely weighed the cotton for the purpose of covering up a fraudulent conversion it contemplated of a part of it. We think the agreement should have been construed as binding the parties to settle by the weight of the cotton as fairly and honestly determined by appellant, and not as same might be falsely and fraudulently determined by it.

There is nothing in the record which suggests a reason why the cause should be remanded for a new trial. The judgment, therefore, will be reversed so far as it was in favor of the mercantile and lumber company against appellant, and judgment will be here rendered that said mercantile and lumber company take nothing by its suit against appellant. There being no complaint of the judgment in- other respects, it will not be otherwise disturbed.

On Appellee’s Motion for Rehearing.

It is insisted that it appeared from testimony in the record that the cotton was consigned by the mercantile and lumber Company to itself at Sulphur Springs, and that the conclusion reached by us that it was consigned to Wolfe & Oo. was unauthorized. It is true the witness Rash testified that the cotton was consigned to the mercantile and lumber company “with instructions to notify Wolfe & Co.,” and that the witness Hull testified that the cotton was consigned to the mercantile and lumber company with “Notify M. H. Wolfe & Oo.,” written on the waybill. But the bill of lading copied into the record showed the cotton to have been consigned to the order of Wolfe & Co., as stated in the opinion, and we were, and are, of opinion the recital in the bill of lading was conclusive of the fact.

It is further insisted that it did not appear from testimony in the record when the drafts attached to the bills of lading were paid by Wolfe & Oo., and therefore that we erred in finding they were paid before the cotton was delivered to appellant for the purpose of being weighed and compressed. It is true there is no direct testimony showing the time when the drafts were paid, and therefore that the statement in the opinion, when construed as meaning there was such testimony, is incorrect. But the burden of proving that it was the owner of the cotton at the time it was alleged to have been converted was on the mercantile and lumber company.

As the legal effect of its failure to make such proof was not different from that which would have followed proof that the drafts were promptly presented by the bank and promptly paid by Wolfe & Oo., it is not believed the conclusion reached by us, erroneous as it may have been, that it appeared that the cotton belonged to Wolfe & Oo. at the time it was converted by appellant, is of importance. That conclusion, in its legal effect, was sufficiently supported by the fact that it did not appear that the cotton then belonged to the mercantile and lumber company. And we think it is not clear, it being shown that the drafts were in fact paid and the cotton in fact delivered by the carrier to appellant, and it appearing that the carrier was without authority from the mercantile and lumber company to deliver the cotton either to Wolfe & Oo., appellant, or any one else, before the drafts were paid and the bills of lading presented to it, that, in the absence, as was the case, of any evidence to the contrary, a presumption should not have been indulged that the drafts were promptly presented by the bank and paid by Wolfe & Co. before the cotton was delivered to appellant. 2 Chamberlayne on Ev. § 1056.

In the motion attention is directed to the fact that Wolfe & Co. in their answer allege, as an estoppel against the mercantile and lumber company to maintain its suit against them, that in an adjustment of transactions between them covering sales of cotton by the latter to the former, a, dispute which arose between them as to the weight of the cotton in question was settled by an agreement on the part of the' mercantile and lumber company to recognize the weight of the cotton as determined by appellant as controlling in such adjustment, which was after-wards made on that basis, and to the fact that "Wolfe & Co. in their answer further alleged that:

“If the cotton [quoting]' weighed less at the compress than its actual weight, said loss of weight was not due. to any fault of this defendant, but was due to the fact that the agents and servants of the defendant compress company weighed the cotton incorrectly and too light, as alleged by plaintiff, with the idea in view that tliej' would take therefrom cotton in the amount of three pounds per bale and appropriate the same to their own use and benefit, and it alleges that the agents and servants of said defendant compress did take from said cotton the amount of three pounds per bale and converted the same to their own use and benefit and the use and benefit of said defendant compress company, amounting to 1,818 pounds of the value of 11.90 cents per pound, and that said compress company is thereby liable to plaintiff for said sum, and not this defendant.”

In the light of the allegations in the answer referred to, findings involved in the verdict, and the legal effect of testimony in the record, the case presented was about this: That appellant, while holding cotton as the bailee of Wolfe & Co., the owners thereof, converted same to its own use, and so became liable to Wolfe & Co., who were liable to the mercantile and lumber company for its value, and that Wolfe & Co., instead of asserting that a liability against appellant existed in their favor, asserted that, in a settlement of matters between them and the mercantile and lumber company, they so treated the cotton converted as the property of the mercantile and lumber company as to estop the latter from claiming to the contrary as against them, and further asserted that the liability of appellant was not to them, but was to the mercantile and lumber company. The liability of appellant to Wolfe & Co. having been established, and Wolfe & Co., being in the attitude, in effect, of having relinquished to the mercantile and lumber company its right to recover on account of the liability of appellant to them, the question is, Should the judgment in favor of the mercantile and lumber company, awarding it a recovery on that liability, be set aside? The mercantile and lumber company contends it should not be, and we have reached the conclusion that the contention should be sustained. Being liable for the conversion, and being protected as it is by the facts appearing in the record and the judgment rendered from an assertion against it of a liability in favor of Wolfe & Co., we see no reason why appellant should be heard to complain that it has to pay to the mercantile and lumber company the sum it justly owes to Wolfe & Co. On the facts appearing in the record we think the transaction set up in the answer of Wolfe & Co. should be treated as operating as an equitable assignment to the mercantile and lumber company of its claim against appellant, whereby the mercantile and lumber company became subro-gated to the right existing in Wolfe & Co. to enforce against appellant the liability it had incurred.

Therefore the motion will be granted and the act of this court in reversing the judgment of the court below and here rendering judgment denying the mercantile and lumber company relief will be set aside, and the judgment of the court below will be affirmed.


text:
    FIRST NAT. BANK OF NEW BOSTON v. DANIEL et al.
    (No. 1368.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 23, 1914.
    Rehearing Denied Jan. 21, 1915.)
    1. Limitation of Actions (§ 83) — Action on Note — Suspension—* ‘Administratrix. ’ ’
    Yemon’s Sayles’ Ann. Civ. St. 1914, art. 5704, provides that, on the death of any person against whom there is a cause of action, limitations shall cease to run until 12 months after death, unless an administrator shall have qualified. upon such deceased person’s estate, in which case limitations shall cease to run until such qualification. Plaintiff on February 27, 1909, received from defendant’s husband a note in renewal of a vendor’s lien note he had assumed to pay, and after his death on December 24, 1912, defendant, as his surviving widow, filed an inventory of the community estate and a bond, as provided by articles 3595-3598, which wore approved, and an order made authorizing her to manage and dispose of the community estate in accordance with Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 3592-3614. Plaintiff’s suit on the note was commenced October 15, 1913. Held, that defendant was not an “administratrix” within the statute so as to commence the running of the statute upon the order for management of the community estate, and that the action was not barred by the four year statute of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 426, 431-438; Dec. Dig. § 83.

    For other definitions, see Words and Phrases, First and Second Series, Administrator.]
    2. Husband and Wife (§ 273) — Oommunitx Estate — Rights and Liabilities of Survivor.
    The survivor can be sued and the property in his hands as such subjected to the payment of a community debt; but the separate estate of the husband, which is also liable for the payment of such a debt, cannot be reached in a suit against the surviving wife as the representative of the community estate.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1008-1024; Dec. Dig. § 273.]
    Appeal from Special District Court, Bowie County; W. T. Armstead, Judge.
    Action by the First National Bank of New Boston against Mrs. Media Daniel, individually, and as the community administratrix of the community estate of herself and her deceased husband, O. J. Daniel, and against L. C. Clark. Judgment for defendants, and plaintiff appeals. tendered for plaintiff against Mrs. Daniel, and judgment between tlie other parties and Clark not disturbed.

      Reversed, and judgment

      May 13, 1904, one Templeton sold and by his deed of that date conveyed 19 acres of land in Bowie county to one Davis, in consideration, among other things, of the latter’s promissory note of that date for $160, interest and attorney’s fees, payable two years after its date. By recitals in both the deed and note the vendor’s lien was retained on the land to secure the payment of the note; Afterwards Templeton transferred the note to appellant. December 15, 1904, Davis sold the land to O. J. Daniel, then the husband of appellee Mrs. Media Daniel, in consideration, among other things, of the assumption by said O. J. Daniel of the payment of the note made by Davis to Templeton. February 27,1909, O. ,T. Daniel, as a renewal of the note he had assumed to pay, then held by appellant, executed and delivered to appellant his note for $221.20, which was the amount, principal and interest, then unpaid on said Davis note. In the note so executed by O. J. Daniel was a recital that the vendor’s lien .existed on the land to secure its payment, and by an instrument in writing executed by him at the time he. made the note said O. ,T. Daniel, as authorized by article 5G95, Vernon’s Sayles’ Statutes, extended the lien existing on the land to secure the payment of the indebtedness evidenced by the note. At a time not shown by the record, O. J. Daniel, by an instrument purporting to be a deed, filed for record in Bowie county October 19, 1910, conveyed the land to appellee L. C, Clark. December 24, 1912, O. J. Daniel died. As his surviving widow, appellee Mrs. Media Daniel filed an inventory, etc., of the community estate, and a bond, as provided in articles 3595 to 3598, Vernon’s Sayles’ Statutes. The inventory, bond, etc., were approved by the county judge of Bowie county January 6, 1913, and in the order then made appellee Mrs. Media Daniel was authorized to control, manage, and dispose of said community estate in accordance with the provisions of chapter 28 of the Revised Statutes of 1897 (being chapter 29 of Vernon’s Sayles’ Statutes). This suit was commenced October 15, 1913, by appellant against ap-pellee Mrs. Media Daniel “individually and as the community administratrix of the community estate of herself and her deceased husband, O. J. Daniel,” and against L. C. Clark. The relief appellant sought was judgment for the debt evidenced by the renewal note, and a foreclosure of the vendor’s lien asserted against the land to secure its payment. The trial court found that the instrument purporting to be a deed from O. J. Daniel to Clark was in fact intended as a mortgage to secure a debt O. J. Daniel owed to Clark. He further found that appellant had no notice of that conveyance at the time the Davis note was renewed, and the extension of the vendor’s lien was made by O. J. Daniel as stated above. He further found that the debt to Clark intended to be secured by the conveyance was due September SO, 1909, and was barred by the statute of limitations, and that appellee Mrs. Media Daniel, as survivor of the community, held the land free of any claim thereon in favor of Clark. As to the indebtedness claimed by appellant on account of the renewal note made by O. J. Daniel, the court found that it amounted, principal, interest, and attorney’s fees, to the sum of $424.60, and that appellant was “entitled,” quoting, “to judgment against defendant Mrs. Media Daniel as survivor of the community for the sum of $424.-60, together with interest thereon from the 25th day of March, 1914, at the rate of ten per cent, per annum, also a foreclosure of its vendor’s lien on the land described in its petition, for costs of suit, etc., if said indebtedness is not barred by the statute of limitations of four years.” The court further found:
    “That the filing of the bond and inventory and the granting of the order by tile county judge authorizing the said Mrs. Medía Daniel as surviv- or to manage, control, and dispose of the community estate existing and owned jointly by her deceased husband and hei'self, is an administration, and the statute of limitations began to run against the plaintiff’s claim on January 6, 1913, the date of the filing of said bond and inventory and the granting of said order authorizing said survivor to manage, control, and dispose of said community property,” and “that the plaintiff’s cause of action is barred by the statute of limitations, which was duly pleaded against it.”
    On the findings made by him, the court rendered judgment that appellant take nothing by its suit, and appellant thereupon prosecuted this appeal.
    O. B. Pirkey, of New Boston, for appellant. Mahaffey, Thomas & Hughes, of Tex-arkana, W. B. Figures, of Atlanta, Tex., and Johnson & Boswell, of New Boston, for ap-pellees.

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

   WILLSON, C. J.

(after stating the facts as above). [1] The statute of limitations ceased to run against appellant’s cause of action on the renewal note made by O. J. Daniel February 27, 1909, when he died December 24, 1912. Unless the statute commenced to run again on January 6, 1913, when said O. J. Daniel’s widow, as the survivor of the marriage, became entitled, because of her compliance with the law, to control, manage, and dispose of the community estate between her and her deceased husband, appellant’s action was not barred, and on the facts found by the court below the judgment should have been for appellant instead of against it. Whether the statute again commenced to run at that time or not depends upon whether the widow, having become entitled, as stated, to “control, manage, and dispose of” the community estate, was the “administratrix” of her deceased husband’s estate or not, within the meaning of article 5704, Vernon’s Sayles’ Statutes. That article is as follows:

“In case of the death of any person against whom there may be a cause of action, the law of limitations shall cease to run against such cause of action until twelve months after such death, unless an administrator or executor shall have sooner qualified according to law upon such deceased person’s estate; then and in that case the said law of limitation shall only cease to run until such qualification.”

The parties have not referred to, and we have not found, a case in which the exact question presented has been directly determined. As supporting its contention that the widow was not such an administratrix, -appellant cites Huppman v. Schmidt, 65 Tex. 585; Mann v. Earnest, 6 Tex. Civ. App. 606, 25 S. W. 1042; and Jones v. McRae, 16 Tex. Civ. App. 308, 41 S. W. 403.

In the Huppman Case, the question was as to the jurisdiction of the district court to hear and determine a suit brought by the children of a deceased wife and the administrator of her first husband against her second husband and the sureties on his bond as survivor, to partition such of the community property of the last marriage as was partible in kind and for a money judgment for their part of such of same as was not so partible. It was contended that under the Constitution and laws then controlling the county court alone had jurisdiction of such a suit. In overruling the contention, the Supreme Court said the survivor of a marriage, who had so complied with the law as to be entitled to control, manage, and dispose of the community estate, was “a trustee — not an administrator. His manipulation of the trust is not an administration pending in any court. * * * No probate decree is the source of his authority, and the exercise of his discretion is under no judicial warrant or control, as in cases of ordinary administration.”

In the Mann Case, the question was as to whether a county judge, under a statute allowing him a commission of one-half of one per cent, “upon the actual cash receipts of each executor, administrator, or guardian,” upon the approval of his exhibits and the final settlement of his accounts, was “entitled to a commission upon the cash receipts of a survivor in community who has duly qualified as such, and who receives such cash as the proceeds of sales made in the management of the estate outside of the probate court.” It appeared that a partition had been ordered on the application of the heirs as provided by the statute, but the commission in question was claimed upon sales previously made, without supervision of the probate court. The Court of Civil Appeals, in holding that the county judge was not entitled to the commission claimed, said:

“Nowhere, either in the original enactment or in the Revised Statutes, is the survivor in community termed an ‘administrator,’ but always the words ‘survivor in community’ are used to describe and distinguish such partnership survivor or trustee from an executor, administrator, or guardian. The case comes neither within the letter nor the spirit of the statute.”

In the Jones Case, it appeared that the surviving widow by filing an inventory, bond, etc., in Hall county, where her husband died, had become entitled to control, manage, and dispose of the community estate. After she had removed to and become a resident of Henderson county, the suit was brought against her in the county court of Hall county. The plaintiff sought a recovery against her as the survivor of the marriage on a community debt. The petition reciting her residence to be then in Henderson county, the widow demurred to it on the ground that it appeared therefrom that the county court of Hall county did not have jurisdiction of her person, and she also filed a plea claiming a privilege to be sued in Henderson county, where she resided. The trial court sustained the plaintiff’s contention that the venue of the suit was in Hall county under the sixth subdivision of article 1194, Revised Statutes 1895, as follows:

“Where the suit is against an executor, administrator or guardian, as such, to establish a money demand against the estate which he represents, in which case the suit must be brought' in the county in which such estate is administered.”

In reversing the judgment the Court of Civil Appeals said:

“We do not think that a community survivor who has qualified under chapter 28 comes within the meaning of this section, and we are therefore of opinion that the court erred in not sustaining the defendant’s exceptions to plaintiff’s petition”- — citing Mann v. Earnest, 6 Tex. Civ. App. 606, 25 S. W. 1042.

Erom the report of the Huppman Case it appears that the ruling made would not have been different had the court been of opinion that the qualified survivor was an “administrator” within the meaning of the law; and it is not entirely clear that the ruling would not have been as it was in the Mann Case had the court thought the survivor was such an “administrator.” Perhaps these cases, therefore, may be said to be of value here only in that they show that the courts deciding them did not, regard the qualified survivor of a marriage as an “administrator” within the meaning of the word as used in the statutes.

But the ruling made in the Jones Case turned upon the question as to whether the survivor there was an “administrator” or not within the meaning of the venue statute, and it was decided as it was because the court determined the widow was not such an “administrator.” That case therefore should be regarded as in point here; for, so far as we can see, there is no reason why the survivor should be held not to be an “administrator” within the meaning of the venue statute and to be an “administrator” within the meaning of the statute of limitations. The facts pointed out in appellee’s brief, that the subject of "chapter 29 is stated in the statutes to be the “administration of community property,” and that the survivor is directed to return an inventory, etc., “in like manner as other administrations,” that a new bond might be required of the' survivor for the same causes “and in like manner as provided in other administrations,” etc., furnish no better reason for saying *the survivor is an “administrator” within the meaning of the statute of limitations than • they did for saying he was an “administrator” within the meaning of the venue statute.

But it is insisted that the purpose of the Legislature in enacting article 5704 -was:

“To suspend,” quoting from the brief, “limitation only for such period of time as would be reasonably necessary to have appointed some representative of the estate of the deceased against whom suit, in the event it became necessary, could be brought, and that any representative of the estate against whom a suit can be brought furnishes the full measure of the purpose of this section of the statute.”

Admitting that the proposition as stated is correct, it does not follow that the ruling made by the court below is right; for the survivor of a marriage who qualifies as such is not the representative of the deceased spouse’s estate, but is the representative of only the part thereof held by such deceased spouse in common with the survivor. It 'is true the survivor can be sued and the property in his hands as such subjected to the payment of a community debt, but the separate estate of the husband, which also is liable for the payment of such a debt (Moody v. Smoot, 78 Tex. 119, 14 S. W. 285), cannot be reached in a suit against the surviving wife as the representative of the community estate (Brackett v. Devine, 25 Tex. Supp. 194; Wheeler v. Selvidge, 30 tex. 407; Tucker v. Brackett, 28 Tex. 338; Carter v. Conner, 60 Tex. 52; Hollingsworth v. Davis, 62 Tex. 438). Before the qualification of an administrator, the separate estate of the deceased husband is without a representative, notwithstanding the surviving wife has qualified as such under the statute. The language of the statute (article 5704) is not that, in case of the death of a person against whom a cause of action exists, limitation shall cease to run for 12 months unless an administrator for a part of his estate shall have sooner qualified, but it is that it shall cease to run for that period unless an administrator shall have sooner qualified for his estate — meaning, unquestionably, his entire estate subject to administration and to the payment of the claim forming the basis of a cause of action.

We are of opinion appellant’s suit was not barred by the statute of limitations invoked, and that appellant should have had judgment for the amount found by the trial court to be due to it, and a foreclosure of the lien asserted against the land described in its petition. Therefore the judgment, in so far as it denied appellant such relief, will be reversed, and judgment will be here rendered that appellant do have and recover of appellee Mrs. Media Daniel as the survivor of the marriage between herself and O. J. Daniel, deceased, the sum of $424.60 and interest thereon at the rate of 10 per cent, per annum from March 26, 1914, together with the costs of this court and the court below, and that the lien asserted by appellant be foreclosed on the land described in the petition, and that same be sold as provided by law in such cases. In so far as it otherwise adjudicates matters between the other parties and appellee L. O. Clark, the judgment will not be disturbed.