author: HIGGINS, J.

text:
    KELL MILLING CO. v. H. O. WOOTEN GROCERY CO.
    (No. 717.)
    (Court of Civil Appeals of Texas. El Paso.
    May 17, 1917.
    Rehearing Denied May 31, 1917.)
    1. Fraudulent Conveyances <&wkey;47 — 'Bulk Sales — Yali dity.
    A conveyance of a stock of goods to a creditor by a bill of sale, without complying with the Bulk Sales Law (Rev. St. art. 3971), was void as to other creditors, though the grantee may have intended to receive and hold the goods in trust for all creditors, where it did not appear that the grantor intended that the goods should be so received and held, and the bill of sale was absolute on its face; Rev. St. art. 3973, providing that article 3971 shall not apply to a transfer for the payment of debts, where all creditor’s share in the proceeds without preference, not applying in such case.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 34.]
    2. Fraudulent Conveyances <&wkey;229 — Garnishment — Rioht to Remedy — Bulk Sales Law.
    Where a sale or transfer has been made in violation of the Bulk Sales Law, a creditor may have his remedy by garnishment against the transferee.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 668-670.]
    Appeal from Taylor County Court; E. M. Overshiner, Judge.
    Action by the Kell Milling Company against the H. O. Wooten Grocery Company. From a judgment for plaintiff for less than claimed, plaintiff appeals.'
    Reversed and remanded.
    W. H. Graham, of Abilene, for aiipellant. J. M. Wagstaff, of Abilene, for appellee.
   Statement of the Case.

HIGGINS, J.

A. B. Childress was engaged in the retail grocery business in the city of Abilene. He was insolvent, and indebted to the Kell Milling Company, appellant, H. 0. Wooten Grocery Company, appel-lee, and others. Appellee became aware of his embarrassed financial condition, and on March 27, 1916, J. Pink Wooten, a representative of appellee, took an inventory of his stock of goods. On March 28, 1916, '■Childress executed and delivered to appel-.lee a bill of sale of his entire stock of goods, and transferred all open accounts due him in connection with his store. The instrument was duly acknowledged, recited a consideration of $10 cash and' other valuable considerations paid by appellee, and contained a general warranty of title. Upon said last-mentioned date appellee disposed of the stock of goods and credited the proceeds of the sale, amounting to $190.66, to an account upon its own ledger, known as “Trust Fund account,” for the benefit of the creditors of A. B. Childress. Prior to and upon the date of the bill of sale appellee knew of the insolvent condition of Childress. .

On April 1, 1916, appellant sued Childress for the amount due it, and on April.10, 1916, obtained judgment therefor, in the sum of $123.61 and costs of court, amounting to $2.15. Ancillary to this suit, appellant, on April 1, 1916, garnished appellee. Appellee answered the inquiries of the writ in the negative. Appellant controverted the answer, averring that appellee has acquired the Childress stock of goods without complying with the provisions of articles 3971-3973, R. S., commonly known as the “Bulk Sales Law,” as amended by Acts 34th Leg. c. 114. In reply to the controverting affidavit, appellee answered as follows:

“1. Garnishee denies that it violated any law in taking over the stock of goods of A. B. Chil-dress, for the reason that, at the time the said A. B. Childress conveyed the stock of goods, 'wares, and merchandise to it, the said A. B. Childress was due and owing it a sum larger than the value of the said goods, to wit, the sum of $330.50, which amount was unsecured, and this defendant had the right, as it then believed and now believes, to take over said goods, wares, and merchandise, and apply same to its indebtedness.
“2. [This paragraph is not material to any question raised by the appeal.]
“3. Further answering said controverting affidavit, said garnishee says that said A. B. Childress on the 2Sth day of March, 1916, conveyed said goods, wares, and merchandise to it, and took same over to be handled by it, for the benefit of those creditors who would accept their pro rata part of the assets of said Chil-dress, and it took said goods, wares, and merchandise over for the purpose of handling the same, and offered to handle the same, in that way, and offered to pay the plaintiff its pro rata part of the assets; but the plaintiff refused to accept under said transfer and agreement, and brought its writ of garnishment, and has prosecuted its writ of garnishment, and hence is not entitled to any pro rata part of any assets, and as against this plaintiff the defendant claims the right, and asserts the right, to hold the proceeds of said goods upon the application of its own debt, which debt is much larger than the entire assets of the said A. B. Childress. Garnishee further says that it never denied the right of the plaintiff to share in the assets of said Childress’ pro rata part until after the plaintiff refused to do so, and' garnishee prays the court that it be discharged, with its costs.”

It was an admitted fact that, before the execution and delivery of the bill of sale and transfer of the stock of goods, appellee did-not comply with those provisions of the Bulk Sales Law which provide that such a sale shall be void as against creditors—

“unless the purchaser or transferee demand and receive from the seller or transferor a written list of names and addresses of the creditors of the seller or transferor, with the amount of the indebtedness due or owing to each and certified by the seller or transferor under oath to be a full, accurate and complete list of his creditors, and of his indebtedness; and unless the purchaser or transferee shall at least ten days before taking possession of such merchandise or merchandise and fixtures, or paying therefor, notify personally or by registered mail every creditor whose name and address are stated in said list, or of which he has knowledge of the proposed sale and of the price, terms and conditions thereof.”

J. Pink Wooten, appellee’s representative, testified in substance that be had a conversation with Childress on March 27, 1916, and that the inventory was taken upon the afternoon of that date; that he tried to ascertain the amount of Childress’ indebtedness, and made inquiry of him concerning same, and was advised by Childress that he owed a coffee account, the Radford Grocery Company, and a meat account, besides ap-pellee’s claims; that he denied owing the Kell Milling Company anything and also stated that he did not owe the Collins Produce Company anything; that he thereafter ascertained from Mr. Collins that he did owe the Collins people, and went back that night, and Childress then told him that he owed appellee about $100, and also owed the Collins Produce people. The next morning, after the inventory had been taken, he went to Mr. Collins and carried him up to Childress’ place; that he saw all of the creditors he deemed necessary about the purpose for which they were taking over the Childress goods; that he took these goods over, as they did almost weekly, to prorate among the creditors; that he took them over for the purpose of prorating among the creditors. About two days thereafter he saw Mr. Mathews, the representative of the Kell Milling Company; that he and Mr. H. O. Wooten both had a conversation with him; that he then told Mathews the condition upon which he took the goods over, and that his account would be taken care of in proportion to the rest; that that was their customary way of handling those matters, and they would take care of his account, like they would take care of others, on a pro rata basis; that Mathews refused to accept his pro rata part and participate in the proceeds; that they were going to permit all the rest of the creditors to participate in it to the1 extent of their proportionate part.

Mr. Bacon, vice president of appellee, testified : That they were holding the proceeds of the sale of the Childress goods in what they called a trust fund account for the benefit of creditors. On April 7th appellee wrote the manager of Kell Milling Company a letter, in which they stated, in substance, that they had had Childress to turn over the goods to them for the purpose of disposing of same and distributing the proceeds pro rata among his creditors, and that they had disposed of the same for the sum of $190.66, and that that sum was being then held by him in trust for the benefit of creditors. The letter is quite long, and the remainder thereof is not material. It was admitted that, before the execution and delivery of the bill of sale by Childress and delivery of the stock of goods to appellee, the appellee did not give any notice to appellant that the proposed sale and transfer was about to take place.

The foregoing statement embraces all of the material facts, and there is no dispute concerning same. Upon such facts, the court rendered a judgment in favor of the Kell Milling Company against appellee for the sum of $17; that being appellant’s pro rata part of the proceeds of the sale of the Childress stock of goods. All costs were taxed against appellant. From the judgment so rendered the Kell Milling Company prosecutes this appeal.

Opinion.

Article 3973, R. S., provides that the two preceding articles shall not apply—

“to a sale or transfer of stocks of merchandise and fixtures for the payment of bona fide debts, where all creditors share in proportion to their respective claims, and without preference in the sale or transfer or the proceeds thereof.”

The proposition urged by appellee in support of the judgment of the court below is that, the debtor Childress having transferred the stock of goods to appellee for the purpose of paying all creditors share and share alike, and appellee having accepted the trust, it was not required to comply with the provisions of article 3971, as such transaction was exempted from the requirements thereof under the provisions of article 3973 above quoted. This proposition would be sound, if its underlying premise of fact was correct. But the facts disclosed by the record do not sustain the same. In the first paragraph of appellee’s answer quoted above, it averred upon oath that, when it took over the Child-ress stock of goods, it then believed and still believes that it had the right to do so and apply the same to the payment of its indebtedness. This, seems to imply that appellee was taking the goods to pay its own indebtedness and to the exclusion of other creditors.

But we need not rest our conclusion upon the appellee’s pleading, for the facts themselves fail to disclose the trust asserted. The bill of sale was absolute upon its face, and does not disclose the same. Manifestly the conveyance was not impressed with a trust, unless it was the intention of the grantor that the same should be so impressed. The mere intention upon the part of the grantee to ¿receive and hold the goods in trust would not be sufficient. To do so might be directly contrary to the intention of the grantor. A trust of this nature cannot be created without the agreement of both parties to the conveyance. The record is entirely silent as to the intention with which Childress transferred and delivered the goods to appellee, and in the absence of an intention upon his part that appellee should receive and hold the goods in trust for the benefit of all creditors, no trust would arise, and the provisions-of article 3973 would not apply.

It is well settled that, where a sale or transfer has been made in violation of the Bulk Sales Law, a creditor may have his remedy by garnishment against the transferee. Owosso, etc., v. McIntosh et al. (Sup.) 179 S. W. 257, L. R. A. 1916B, 970; Mayfield & Co. v. Harlan et al., 184 S. W. 313; Barcus v. Parlin & Orendorf, 184 S. W. 640.

Itj follows, from what has been said, that judgment should have been rendered in favor of appellant for the amount of his judgment against Childress and all costs. The case is reversed and remanded, with instructions upon retrial to render judgment for appellant unless the evidence establishes that the transfer to appellee was made in trust for the benefit of all creditors, without preference; and, as indicated above, such trust must have been created by mutual agreement of the grantor, Childress, and the appellee.

Reversed and remanded.
      ©^>For other eases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    BAY CITY BANK & TRUST CO. v. RICE-STIX DRY GOODS CO.
    (No. 7381.)

    (Court of Civil Appeals of Texas. Galveston..
    April 10, 1917.
    Rehearing Denied May 3, 1917.)
    Banks and Banking @=101 — Purchase-on Account by Bank — Ultra Vibes.
    Where a bank, to which a merchant owed' $6,500 when he made a general assignment for-the benefit of his creditors, shortly thereafter purchased a wholesaler’s account against the merchant of $3,128.35, for $2,650, and realized therefrom as a dividend from the merchant’s-estate $1,048.50, which it kept, it was estopped from sotting up, as a defense to action by the-wholesaler for the unpaid balance of the $2,650' for the account, that such purchase was ultra vires and not binding on it, it having never refused to pay such balance until after all the-merchant’s assets had been disposed of, when, it was too late for the wholesaler to be put back in statu quo or to take any steps for its own protection, such as bidding at the sale of the assets or otherwise, irrespective of Vernon’s-Sayles’ Ann. Civ. St. 1914, arts. 376, 378, 546,. as to powers of banks.
    [Ed. Note. — For other cases, see Banks and-. Banking, Cent. Dig. §§ 237, 238.]
    Appeal from District Court, Matagorda County; Sam’l J. Styles, Judge.
    Action by the Rice-Stix Dry Goods Company against the Bay City Bank & Trust Company. From a judgment for plaintiff,, defendant appeals.
    Affirmed.
    Gaines & Corbett, of Bay City, for appellant. W. S. Holman, of Bay City, and J. D_ Williamson, of Waco, for appellee.

       Application for writ of error denied by Supreme Court, June 13, 1917.

   GRAVES, J.

Appellee dry goods company ¡sued appellant bank for $1,150 claimed as a balance due on tbe agreed purchase price of •$2,650 for an account against Pitluk, totaling ■$3,128.35, which, it alleged the bank had "bought from it, and upon which agreed price liad only paid $1,500, leaving the said balance sued for. It was alleged that the bank ,had first become a guarantor of Pitluk’s account to the extent of $2,500 through a letter to that effect dated October 5, 1912, signed by its then cashier, addressed to and delivered to appellee in St. Louis by Pitluk, to whom, upon the faith, credit, and reliance :put by appellee in said guaranty of the bank, appellee had at that time sold and 'delivered merchandise upon credit to Pitluk an an amount greater than such guaranty; that later, on March 20, 1914, appellee had •delivered to Pitluk, at Bay City, $2,775.50 worth of goods, which it had refused to deliver on Pitluk’s own responsibility alone, •on credit, under agreement then and there made between, it and the bank’s president, active vice president (who, as cashier, had signed the said letter of October 5, 1912), •and cashier, that the bank’s guaranty contained in said prior letter was a continuing •one, that it was still liable thereunder to the extent and amount thereof, on the goods at this latter date so released to Pitluk, and that the bank would then pay appellee $1,000 •on Pitluk’s back account with it, which was •done; that still later, on or about September 29, 1914, appellee delivered to the bank a formal transfer and assignment, evidencing said purchase by the bank of appellee’s account against Pitluk, then amounting to $3,-128.35, for $2,650 payable in installments of •$500 each; that only three of these installments had been paid, and that the $1,150 balance sued for was past due and unpaid.

After the court had overruled a number of special exceptions presented by the bank, it answered (1) denying that it was a guarantor of said indebtedness to the-extent of $2,-500, or in any sum whatsoever, and denying the power and authority to guarantee under its charter, and the power and authority of its directors or officers to make such guaranty, and denying that any lawful or valid agreement was made for the purchase of said account; (2) setting out that the agreement of guaranty was unlawful, unauthorized, illegal, and ultra vires; (3) that the assignment was in furtherance of an illegal act, was not a bona fide sale, and was made when Pitluk was insolvent, and as the result of a threat made by the appellee on the so-called guaranty; (4) that, under a mistaken impression of the law and the facts on the part of appellant, it paid to the appellee the sum of $1,500 on account of such claim, and alleged that the force and effect of the transactions between the appellee and the appellant was to make' the latter the trustee or agent of the former for the collection of said account; and that said trust had been fulfilled, and that it was only liable for the amount it had collected thereon.

By way of cross-action, the bank alleged that at a sale of Pitluk’s stock the same brought only 34i/2o on the dollar, and that the amount of the dividend received by the bank was $1,048.50, and that it had, through said $1,500, paid to the appellee the sum of $451.50 in excess of that sum, and asked for a recovery of the same.

The case was tried by the court without the intervention of a jury, and judgment rendered against appellant on its cross-ac-tiqn, and in favor of appellee for the amount sued for, from which this appeal is prosecuted.

The facts found by the trial court, which were amply sustained by the evidence, és-tablished the preceding allegations of appel-lee dry goods company; and, further, that at the date of said letter of October 5, 1912, and on all sáid dates thereafter, appellant bank was also a creditor of Pitluk, independently of its transactions with appellee dry goods company in relation to him; that on said March 20,1914, when the $2,775.50 worth of goods were so delivered at Bay City to Pitluk, he owed the bank about $5,500, its officers were anxious for him to get the goods, and by his so getting them his assets were increased by $2,775.50, and the bank obtained greater security for the payment of its debt against him; that Pitluk made a general assignment for the benefit of his creditors August 31, 1914, being then indebted to the bank in the sum of $6,500, which indebtedness also existed at the date said bank purchased for $2,650 appellee’s account against him, and that it finally realized on said account $1,-048.50, which it kept.

Upon the case thus made and tried, the court’s conclusions, of law were as follows:

“Under the above state of facts, I conclude, as a matter of law, that the Rice-Stix Dry Goods Company, having performed its part of the contract and sold and delivered merchandise to I. L. Pitluk, based upon the guaranty of the Bay City Bank & Trust Company, and the security of the Bay City Bank & Trust Company being increased by the merchandise so sold and delivered to said I. L. Pitluk, said bank is es-topped from setting up that the guaranty in question was ultra vires, and that it was not liable therefor. I further conclude, as a matter of law, under the findings of fact, that the Bay City Bank & Trust Company, being a creditor of I. L. Pitluk, to the amount and extent of $6,500, was authorized, in due course of business, to purchase the account of Rice-Stix Dry Goods Company against I. L. Pitluk, and agreed to pay therefor the sum of $2,650; and that by its acceptance of the assignment of said account, by accepting the benefits thereunder, ánd agreeing to pay therefor the sum of $2,650, that it became liable for the payment of said sum on the days and dates as agreed upon. I further conclude, as a matter of law, that the Rice-Stix Dry Goods Company, having assigned its account to the Bay City Bank, & Trust Company upon the promise and agreement of the bank to pay $2,650 therefor, and having executed its contract, that the Bay City Bank & Trust Company is estopped from claiming that .its agreement and purchase of such account and to pay therefor the sum of $2,650 was ultra vires.”

Appellant bank assails these conclusions under three groups of assignments: Under Nos. 1, 2, and 3 it is contended that the alleged contract of guaranty was ultra vires, in violation of statutory regulations, without authority, and absolutely void; under Nos. 4, 5, and 6 it is claimed there was no ratification of the so-called guaranty, and consequently there was no estoppel; by Nos. 7 to 11, inclusive, it is finally contended that, even if there was a contract of guaranty made and ratified, or estoppel arose from the acts of the bank, yet the contract was malum prohibitum and against public policy, and the bank’s only resultant duty was to return to the dry goods company the $1,048.50 so' received from the assignment of the account, which it was claimed had been overpaid, leaving an excess of the difference between the $1,500 paid by it to appellee and the $1,048.50 thus received by it for appel-lee’s account, to wit, $451.50, for which it sought judgment by the cross-action.

Under the view we take of the case; it is deemed unnecessary to discuss these contentions seriatim, concluding, as we do, that the trial court did not err in holding that, under the facts shown, the bank was estopped from setting up in defense the claim that its acts were ultra vires and not binding upon it; indeed, while we need not and do not rest the determination of the case upon that consideration, we are unwilling to hold that the transaction culminating in the purchase, at a strong discount by the bank, of the dry goods company’s account against Pitluk, under the conditions shown, was ultra vires the legitimate powers of the bank. It must not be overlooked that at all times throughout the entire course of these transactions the bank itself was a heavy independent creditor of Pitluk, a local merchant in its home town, and that as such it must have had an eye to the main chance — that is, the protection of its own interests and the "ultimate collection of its own debt against him — in its dealings concerning him with ap-pellee dry goods company. In fact, at the very time it purchased the appellee’s account it then held a separate additional indebtedness of $6,500 against him, and his assets were undisposed of. . Prior to that, and while bis business was yet a going concern, when on March 29, 1914, the bank had induced the dry goods company to deliver to him the $2,775.50 worth of goods, Pitluk’s separate debt to the bank was $5,500. While the bank now insists that it acted in all these ad interim transactions under the then compelling (and since discovered mistaken) belief that it was liable under its guaranty, this consideration cannot, by reflex action, relate back to action then taken and divest it of all imputation that it was seeking the security, enforcement, and collection of its own debt. Especially is this true since it was on the ground, in position to watch ihe course of Pitluk’s business, and did so in that it followed him through and appropriated the results from the final sale of his entire assets, to the exclusion of and without further notice to or concern about the dry goods company, and never refused to-pay it the agreed price for the assigned account until January 7, 1915, after all Pit-luk’s assets had been disposed of. It was then too late for the dry goods company to in any manner be put back in statu quo as to its account against him, or for it to take any action for its own protection, such as bidding at the sale of the assets or otherwise.

The facts were undisputed upon the entire course of the dealings concerning Pit-luk’s affairs between the bank and the dry goods company.- After the latter sold and delivered to the former the account, it relied alone upon the bank’s agreement to pay it the- $2,650 specified, and took no further steps to protect its interest; nor did it know that the bank would raise any question about or attempt to repudiate the obligation, after thus accepting the benefits of it, until after Pitluk’s entire assets had been so sold out at auction, and no remedial measures were longer possible.

The force of the facts themselves evidence ing this continued course of dealings between the parties, we think, makes the determination of the question .of whether or not the original letter of October 5, 1912, was a continuing guaranty, and, if so, whether it was or was not ultra vires, unnecessary; because, as stated, the bank subsequently purchased the account-, took its chances on realizing therefrom, appropriated to its own use the returns it received, and never complained until the net results had proven unsatisfactory, and it was then impossible for it to place the dry goods company back where it was prior to the purchase.

But the bank still answers that its officers had no authority to bind it in purchasing the account. It apparently forgets that every opportunity was afforded it to be sure about the matter, and that, as late as a month after delivery to it of the formal instrument assigning the account, the settlement of the matter, as represented by the agreed purchase of the account, was ratified and confirmed by its board of directors In the following action:

“Special meeting of the board of directors of the Bay City Bank & Trust Company, held in the office of the bank, October 20, 1914, at 9 a. m.
“The meeting was called to order by the president, Mr. Poole, with the following members of the board present: A. D. Thompson, John W. Gaines, Louis Le Tulle, P. G. Huston, Jas. W. Rugely, and Geo. R. Burke.
“The matter of the I. L. Pitluk loan, and the guaranty of his account with the Riee-Stix Dry Goods Company by the officers of the bank early in the summer, was fully -discussed, also .the proposition of the settlement of this guaranty submitted by J. D. Williamson, attorney at law, of Waco. On motion of J. W. Rugely, seconded by L. Le Tulle, the cashier was instructed to remit the Rice-Stix Dry Goods Company, of St. Louis, Mo., $2,G50, in monthly payments of $500, in accordance with the terms of their offer of settlement. T. J. Poole, President.
“Geo. R. Burke, Secretary.”

Not only so, but its above-recited course thereon ensued .without notice or protest of any kind to appellee until Pitluk’s business had been obliterated.

Under the circumstances shown, we do not think it can be said-that the bank was not acting for its own interest toward the securing and collecting of its debt. Our banking act (Vernon’s Sayles’ Statutes, art.' 376) provides, as to the powers of a bank, among other powers it shall have the powers of “buying, selling and discounting negotiable and nonnegotiable paper of all kinds, as well as all kinds of commercial paper.” Article 378, as to the duties of directors, provides that the directors shall meet at least once per month to pass upon the business of the bank back to the previous meetings, and no bills payable shall be made, and no bills shall be rediscounted by the bank except with the consent of the board of directors. Article 546 provides that a bank shall not employ its moneys in trade or commerce, by buying and selling ordinary goods, chattels, wares, and merchandise; provided, that it may sell all kinds of property which may come into its possession as security for loans or in the ordinary collection of debts.

If the bank, under these statutes, would have had a right to purchase Pitluk’s note to the dry goods company, no- good reason occurs to us why it might not, in the effort to secure or collect its debt, have purchased, with equal right an account against him, and have agreed to pay therefor.

But whether it had the authority to make the contract herein sued upon or not, we think the. acts of the bank, under the conditions here shown, clearly estopped it from claiming that its agreement to purchase and pay for the account was ultra vires. The rule in Texas upon this subject has been generally stated as follows:

“Though a corporation may exceed its charter power in making a contract, yet, when the contract is executed and the company has received its benefits, it is estopped to deny the authority to make it.” Texas Western Ry. Co. v. Gentry, 69 Tex. 625, 8 S. W. 98.
“It seems now to be settled, by the great weight of authority, that where there is a question of a contract between a .corporation and another party, and the contract has been performed by the other party, and the corporation has received the benefit of the contract, it will not be permitted to plead that on entering into the contract it exceeded its chartered powers.” Bond v. Terrell Mfg. Co., 82 Tex. 309, 18 S. W. 691; Kincheloe Irr. Co. v. Hahn Bros., 105 Tex. 231, 146 S. W. 1187; First Nat. Bank of Greenville v. G. Oil Co., 24 Tex. Civ. App. 645, 60 S. W. 828; North Tex. St. Bank v. Crowley S. Co., 145 S. W. 1027; Dexter v. Bank, 180 S. W. 1172; Panhandle Nat. Bank v. Emery, 78 Tex. 499, 15 S. W. 23; Taylor Feed Co. v. Bank, 181 S. W. 534; Guffey Pet. Co. v. Townsite Co., 48 Tex. Civ. App. 555, 107 S. W. 609; Ry. Co. v. Worthington, 27 S. W. 746; Land Co. v. Exall, 159 S. W. 474; Waller v. Merc. Co., 141 S. W. 833; Smith v. Ferries Ry. Co., 51 Pac. 710; Colorado Loan Co. v. Grand Valley Canal Co., 3 Colo. App. 63, 32 Pac. 178; Union Hdw. Co. v. Plume Mfg. Co., 58 Conn. 219, 20 Atl. 455; People v. Suburban R. Co., 178 Ill. 594, 53 N. E. 349, 49 L. R. A. 650; Flint Mfg. Co. v. Kerr-Murray Mfg. Co., 24 Ind. App. 350, 56 N. E. 858; Chapman v. Iron-Clad Rheostat Co., 62 N. J. Law, 497, 41 Atl. 690; San Antonio v. Mehaffy, 96 U. S. 315, 24 L. Ed. 816.

It follows from what has been said that all assignments must be overruled, and that the trial court’s judgment must be affirmed; and it has been so ordered.

Affirmed.

       Reported In full in the Pacific Reporter; reported as a memorandum decision without opinion in 119 Cal. xvii.

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


author: WILLSON, C. J.

text:
    RATCLIFF v. HARKNESS.
    (No. 1787.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 12, 1917.)
    Appeal - and Error <§=>1161 — Revebsal — Agreement oe- Parties.
    A judgment will be reversed where the parties agree that contradictory jury findings render such a course necessary.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4520.]
    Appeal from District Court, Hunt County; Wm. Pierson, Judge.
    Action by R. W. I-Iarkness against I-I. R. Ratcliff. Judgment for plaintiff, and defendant appeals.
    Reversed.
    Dinsmore, McMahan & Dinsmore, of Green-ville, for appellant. H. L. Carpenter, of Greenville, for appellee.
   WILLSON, C. J.

Special issues were submitted to the jury. Among them was one as to the ownership of certain promissory notes at a time specified. If appellee did not then own them, he was not entitled to recover against appellant. Appellant insists that the judgment against him was unauthorized because the jury on the first one of the issues submitted to them found that appellee at the time specified did own the notes, and on the sixth one of said issues found that he did not then own them. Appellee by an instrument filed here confesses that the findings were contradictory, as claimed by appellant, and that the judgment therefore was unauthorized, and that it should be reversed. The judgment accordingly will be reversed; and, this court being of the opinion, after consideration of the record, that the trial court did not err when he refused appellant’s request to peremptorily instruct the jury to find in his favor, and that appellant is not entitled to have judgment here rendered in his favor, the cause will be remanded for a new trial.
      <gn=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    J. F. TURNER & BRO. v. GABLE.
    (No. 1803.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 9, 1917.
    Rehearing Denied May 24, 1917.)
    1. Justices ojp tiie Peace <S=^141(2) — Appeal — Jurisdiction of County Court.
    If the justice court did not have jurisdiction of the mortgage foreclosure, because the value of the mules exceeded $200', the county court did not, by appeal to it, acquire jurisdiction.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 472.]
    2. Justices oe the Peace <§=^43(1) — Jurisdiction — Amount.
    In view of Const, art. 5, § 19, the justice court would have no jurisdiction of the foreclosure of a mortgage on two mules, if their value exceeded $200.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 75, 149, 150, 152, 156.]
    3. Justices of the Peace <S^44(2) — Jurisdiction — Amount, How 'Determined — Pleadings.
    Whore plaintiffs in good faith, in 'a suit to foreclose a mortgage on two mules, alleged that they were of the value of $180, the allegation should be treated as conclusively establishing that to be their value, so far as the question of jurisdiction was concerned.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 158, 162, 164, 167.]
    4. Justices of the Peace <§»1&8(1) — -Appeal —Abandonment of Claim.
    Where plaintiffs abandoned their claim of a right to have the mortgage foreclosed after the cause by appeal was transferred from the justice to the county court, they were not entitled to a foreclosure in the county court.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 721, 722.]
    Appeal from Wood County Court; R. E. Bozeman, Judge.
    Suit in justice court by J. F. Turner & Bro. against W. H. Gable. Plaintiffs had judgment in the justice court, and defendant appealed to the county court, where there was a judgment dismissing the suit. From the latter judgment, plaintiffs appeal.
    Reversed and rendered, with costs.
    Appellants, by their suit commenced in a justice court, sought a recovery against ap-pellee on a promissory note, dated February 2, 1914, for $129.75, interest from its date at the rate of 10 per cent, per annum, and 10 per cent, additional as attorney’s fees, and also sought a 'foreclosure of a mortgage on two mules, which they alleged to be of the value of $180, given to secure the payment of the note. In the justice court ap-pellee filed a sworn plea, in which he alleged the value of the mules to be more than $200, and charged that appellants had falsely and fraudulently alleged the value thereof to be only $180 for the purpose of giving the justice court jurisdiction of the suit. A trial in that court resulted in a judgment for appellants for $158.75, and for foreclosing the lien of the mortgage on the mules. Appellants prosecuted an appeal to the county court, where judgment dismissing the suit was rendered, on the ground that the justice court was without power to hear and determine it, because the mules against which appellants sought a foreclosure of the mortgage were of the value of over $200. In connection with the finding that the value of the mules exceeded $200, the county court further found that appellants,' in alleging their value to be only $180', “acted honestly and fairly,” and not “for the fraudulent purpose of conferring jurisdiction on the justice court.” It appears from the findings that the county court concluded that it appeared “from the preponderance of the evidence” that the mules were worth more than $200, because, quoting his language, “ten credible witnesses,'acquainted with the mules in question, testified that their value was from $250 to $300,” while only “four credible witnesses, acquainted with the mules, testified that their value was from $150 to $190.”
    M. D. Oarlock, of Winnsboro, for appellants. W. D. Suiter, of Winnsboro, Jones & Jones, of Mineóla, and B. F. Cathey, of Quit-man, for appellee.
   WILLSON, C. J.

(after stating the facts as above). If the value of the mules exceeded $200, the justice court did not have jurisdiction of the suit (article 5, § 19, of the Constitution); and, if it did not, the county court did not, by the appeal to it, acquire jurisdiction thereof. Cotulla v. Goggan, 77 Tex. 32, 13 S. W. 742; Schwartz v. Fries, 31 S. W. 214; Smith v. Carroll, 28 Tex. Civ. App. 330, 66 S. W. 863. But, in determining the questions as to jurisdiction, both the justice court and the county court were bound to assume the value of the mules to be as alleged in appellant’s pleadings, in the absence of pleading and proof by appellee that they were of greater value than $200, and that appellants had falsely alleged their value to be only $1S0 for the purpose of conferring jurisdiction it did not in fact have of the suit upon the justice court. Dwyer v. Bassett, 63 Tex. 274; Houston Ice & Brewing Co. v. North Galveston Imp. Co., 29 Tex. Civ. App. 40, 67 S. W. 1079; Graham v. Roder, 5 Tex. 141; Baker v. Guinn, 4 Tex. Civ. App. 539, 23 S. W. 604.

Having found that appellants acted in good faith in alleging the value of the mules to be $180, the epunty court should have treated the allegation as conclusively establishing that to be their value, so far as the question as to jurisdiction was concerned, notwithstanding he may have believed from testimony before him. that their value was in excess of $200. As that court erred in dismissing the cause, and in refusing instead to render judgment for appellants for the amount due on the note, to wit, the sum of $173.75, its judgment will be reversed, and judgment will be here rendered that appellants have and recover of appellee said sum of $173.75, together with interest thereon from April 1, 1916, at the rate of 10 per cent, per annum, and the costs of this court and the courts below.

Appellants were not entitled in the county court to a ■ foreclosure of the mortgage lien, because they abandoned their claim of a right thereto after the cause, by the appeal, was transferred to that court.
      ¡§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    HOWELL v. DUNCANSON et al.
    (No. 5847.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 3, 1917.
    Rehearing Denied May 30, 1917.)
    1. Frauds, Statute of <@=s>56(1) — Contracts Concerning Land.
    Where a colonization company was organized, but the survey of land acquired disclosed an excess over the acreage apportioned to each shareholder, and the trustee attempted orally to give the excess to the shareholders in common, the shareholders never acquired legal title to such excess; there being no memorandum reduced to writing or signed by the party to be charged, as required by Yemen’s Sayles' Ann. Civ. St. 1914, art. 3965.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ S3, 84, S7, 89.]
    2. Gifts <®=^25 — Parol Gift oe Land — Reliance.
    In such case, the shareholders, by expending $750 in four years in small temporary improvements, acquired no equitable title, where the rental value of the land was $3,600 for the four years.
    [Ed. Note. — For other eases, see Gifts, Cent. Dig. §§ 43-48.]
    Error from District Court, Dimmit County ; J. F. Mullally, Judge.
    Suit by W. H. Duncanson and others against Lee Howell. Judgment for plaintiffs, and defendant brings error.
    Reversed, and judgment rendered.
    T. F. Mangum, of San Antonio, for plaintiff in error. C. C. Thomas, of Cotulla, and Hielts, Hicks, Teagarden & Dickson, of San Antonio, for defendants in error.
   SWEARINGEN, J.

W. H. Duncanson, Ed. C. Taylor, and O. G. Harris, defendants in error, herein styled plaintiffs, filed this suit against Lee Howell, plaintiff in error, herein styled defendant, to recover title and possession of a described tract of land in Dimmit county, Tex., containing 60 acres, and commonly known as Howell Gardens. Plaintiffs sued in the capacity of owners, trustees, and cotenants for and of 600 or 800 beneficiaries. Upon instruction from the court, the jury returned a verdict in favor of plaintiffs, upon which judgment was rendered against defendant.

Plaintiffs’ first amended petition alleged for cause of action that they were seised and possessed of the land, and defendant, by force, took possession thereof, etc., and in the alternative that they were seised and possessed of the 60 acres by virtue of a gift, and again in the alternative that they purchased an undivided interest in the entire tract of 12,935.92 acres, and upon division among themselves by agreement appropriated to each shareholder specific sections, and lots, and kept the remaining undivided 60-acre tract, known as Howell Gardens, as common or undivided property. The said petition also assailed the right of defendant, because, they alleged, the judgment through which defendant deraigned title had been satisfied long prior to the levy and sale of the Howell Gardens by the sheriff to defendant. Defendant denied plaintiffs’ allegations, and averred, in defense, that plaintiffs had acquired no title to the land, because there was no contract in writing, nor memorandum thereof, signed by the parties to be bound, and averred title in himself. Both plaintiffs and defendant alleged Hust and Brundage as the common source. ■

We find from the evidence that Hust and Brundage owned 12,935.92 acres of land, surveyed and platted by them as the Bermuda Colony. They engaged in a general plan of selling the same. A part of that scheme was to receive written applications, signed by the apiffieant for the purchase of undivided interests in the Bermuda Colony lands, understood to be 12,SOO acres. These applications provided that the purchasers of these undivided interests in the Bermuda Colony lands should be called shareholders, who should assemble in convention and select a committee of five from among their number to receive from Hust and Brundage a warranty deed to the entire tract of 12,800 acres, after-wards found to be 12,935.92 acres; the shareholders thereupon to become the owners of all the land. Thereafter the owners were, according to the application, to determine upon a division of the lands among themselves, and each shareholder or owner was to receive a deed from the above-mentioned committee of five for his acreage, residence lot in town, and undivided interest in business lot in town; the deed to describe sections and lots, and this deed to be accepted in lieu of all other interest in the Bermuda Colony lands. No provision was made for any excess or common land. All the shares for undivided interests were eventually subscribed for and paid for. The shareholders, either in person or by representatives, met. No deed was made to the shareholders, as provided in the applications. On the contrary, Hust and Brundage executed deeds to each undivided purchaser for specific property designated by the convention of shareholders. Each deed conveyed a described section of acreage property, certain residence lots in the town of Brundage, and a designated interest in a described business lot in Brand-age. In this way all the lands in Bermuda Colony were sold, eseept King Lake of 40 acres, not involved in this suit, and the “Howell Gardens,” which is the subject of this litigation. This excess of 60 acres was not contemplated when many, if not all, of the applications for purchase of shares were executed. It is a part of the excess found in the tract after a resurvey. No interest in the 60 acres was ever deeded by Hust and Brundage, who held the legal title to it, to any one, except by the sheriff to defendant, in August, 1913. There is no contract or memorandum thereof, in writing, signed by, or authorized to be signed by, Hust and Brundage, for the sale or donation of all or any part of the 60 acres. Hust and Brundage did undertake to give the 60 acres to the purchasers of the several 10-acre sections by parol, and did permit these purchasers, through a chosen committee for the purchasers, to take possession of same as a gift. Neither the trustees above mentioned, nor the purchasers, ever spent- one cent in improvements upon the property. On the contrary, the trustees, in September, 1909, leased the Howell Gardens to various individuals for four years free of charge for rent. These tenants or lessees fenced and cleared the land at their own expense as tenants, and used the same for their own benefit until Howell purchased the land in August, 1913, at sheriff’s sale. The sheriff’s sale passed the legal title from Hust and Brundage to Lee Howell, the defendant.

hTom the foregoing facts we conclude, as a matter of law, that plaintiffs never acquired the-legal title to the Howell Gardens because neither the promise nor agreement upon which plaintiffs base their action, nor any memorandum thereof, was ever reduced to writing or signed by the party to be charged therewith, nor by any person by them thereunto lawfully authorized. V. S. R. S. § 3965.

Plaintiffs allege an equitable right to the land involved herein, by reason of the parol gift, accompianied with actual possession and the construction of valuable improvements thereon, made upon faith in the parol gift, with the knowledge and consent of the donors. There is no evidence that plaintiffs made any improvements or paid anything for improvements on the land. On the contrary, all the evidence, which, by the way, was introduced by the plaintiffs themselves and was unconflicting and undisputed, shows that tenants, for their own benefit, placed all the improvements on the land, at their own expense. The improvements consisted of fencing, clearing, and cultivating the land. There were no valuable permanent improvements put on the land. The cost to the tenants for fencing and clearing was estimated to be about $750. The value of the land was $9,000. The reasonable value of the use of the land was $900 a year, or $3,600 for four years. The tenants used it for nearly four years, and during that time spent only $750, and that for fencing, repairing fence, and clearing.

We conclude that plaintiffs wholly failed to show legal title in themselves, and wholly failed to establish an equitable right to Howell Gardens. Memorandum defined: Catterlin v. Bush, 39 Or. 496, 59 Pac. 706, 65 Pac. 1064; parol gift or sale: Eason v. Eason, 61 Tex. 225; Wooldridge v. Hancock, 70 Tex. 18, 6 S. W. 818; Wells v. Davis, 77 Tex. 637, 14 S. W. 237; Dixon v. McNeese, 152 S. W. 675, §§ 2 & 3; Cook v. Erwin, 133 S. W. 897; Wootters v. Hale, 83 Tex. 563, 19 S. W. 134; LaMaster v. Dickson, 17 Tex. Civ. App. 473, 43 S. W. 911; Hutcheson v. Chandler, 47 Tex. Civ. App. 124, 104 S. W. 435; Baldwin v. Riley, 49 Tex. Civ. App. 557, 108 S. W. 1192; Yealock v. Yealock, 141 S. W. 842; Hammond v. Hammond, 49 Tex. Civ. App. 482, 108 S. W. 1024; Wilkerson & Satterfield v. McMurry, 167 S. W. 274; Trammell v. Rosen, 163 S. W. 145, § 2, and many authorities therein cited; Houston Oil Company v. Payne, 164 S. W. 886, § 5.

The first, second, third, sixth, seventh, and eighth assignments are sustained for the reasons above given.

The fourth is overruled.

The fifth is sustained because the evidence is conflicting..

Thei written minutes of the shareholders’ convention show that Hust was elected chairman of the three trustees, with power to appoint his- two associate cotrustees, all three to hold the position until their successors were elected. Hust testified that he appointed his successor, Duncanson, who appointed two associate trustees. Duncanson testified that he and his associates were elected at Brundage.

The judgment of the trial court is reversed, and judgment is here rendered, that plaintiffs take nothing by their suit, and pay all costs in this behalf expended in this and the district court.
      <fe=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. STOREY et al.
    (No. 5773.)
    (Court of Civil Appeals of Texas.
    March 29, 1917.
    Rehearing Denied May 23, 1917.)
    1. Appeal and Eeeoe &wkey;3l051(l) — Harmless Eekoe — Evidence.
    Alleged error in the admission of a witness’ testimony could not require a reversal where the pertinent facts testified to by him were proved by two other witnesses.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4161, 4162, 4165, 4166.]
    2. Appeal and Eeeoe <&wkey;664(2) — Invited Eekoe — Depositions—Admission in Evidence.
    An assignment of error - complaining of the admission of a deposition in evidence will be overruled where it appears from statement of facts agreed to by appellant that the deposition was put in evidence by Mm, though the bill of exceptions impliedly states that it was offered in evidence by appellees.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2857.]
    S. Appeal and Error &wkey;3994(l)—Review-Credibility op Witnesses.
    Whore the judgment is supported by evidence, the appellate court will not pass on the credibility of the witnesses, though, if it had been the trial court, it might have decided the case otherwise.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 8901, 8906.]
    Appeal from District Court, Caldwell County ; Frank S. Roberts, Judge.
    Action by J. T. Storey and another against the Missouri, Kansas and Texas Railway Company of Texas. From judgment for plaintiffs, defendant appeals.
    Affirmed.
    A. B. Storey, of San Antonio, and Jeffrey & Fielder, of Lockhart, for appellant. E. B. Coopwood and M. O. Flowers, both of Lock-hart, and Hart & Woodward, of Austin, for appellees.
   KEY, C. J.

Appellees sued appellant for damages, alleging that .in December, 1913, they delivered to appellant 217 bales of lint cotton, and that appellant received the same under a contract of shipment, by which it became obligated to transport the cotton with dispatch and safety from Lockhart to Houston, Tex., and to deliver the same to the consignees named in the contract. It was also alleged that the cotton was in good condition when received by appellant, and that through appellant’s negligence it was permitted, while in its possession, to get wet and become damaged, as a result of which it became necessary to have the damaged cotton separated from that which was not damaged, and to have the same recompressed.

It is not deemed necessary to state all the allegations in appellees’ petition, which alleged that, as a result of the matters complained of, appellees had been damaged in the sum of $1,098.54. Appellant answered by general demurrer, general denial, and a special plea, the particulars of which it is not deemed necessary to state. There was a nonjury trial, which resulted in a judgment for appellees for $1,068.68, from which judgment this appeal is prosecuted.

The first three assignments of.error complain of the action of the trial court in permitting B. S. Woodhead, Dave Rice, and Dan .Mullane, to testify as witnesses concerning the condition of the cotton when received in Houston, what was done with it there, etc.

If it be conceded that the testimony of the witness Woodhead was not admissible, we do not think the case should be reversed, because the pertinent facts testified to by him were proved by the testimony of the other two witnesses referred to.

The testimony of the witness Rice is similar to that held admissible by this court in I. & G. N. R. R. Co. v. Startz, 42 Tex. Civ. App. 85, 94 S. W. 207, and therefore we overrule appellant’s assignment relating to that testimony.

The third assignment complains of the action of the court in permitting the deposition of the witness Dan Mullane to be read to the jury. But the statement of facts shows that Mullane’s deposition, in reply to both direct and cross interrogatories, was put in evidence by appellant, and therefore we overrule that assignment of error. The bill of exception does not specifically state who offered that deposition in evidence, but, if it be conceded that it impliedly states that it was offered by appellees, still, as appellant agreed to the statement of facts, which states that it was offered by appellant, it cannot be heard to complain of the admission of that testimony. Wiseman v. Baylor, 69 Tex. 63, 6 S. W. 743.

The other questions presented in appellant’s brief have been duly considered, and are decided against appellant.

In so far as the testimony is reflected by the statement of facts, it may be that this court would have decided the case in favor of appellant, it had been required to pass upon it as a trial court; but there is testimony tending to support the judgment, and as it was the province of the trial court, and is not the province of this court, to pass upon the credibility of witnesses, we overrule the assignments which assert that the judgment is not supported by, and is contrary to, the testimony.

No reversible error has been pointed out, and the judgment is affirmed.

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


author: FLY, C. J.

text:
    HARRIS v. G. M. H. WAGNER & SONS.
    (No. 5858.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 9, 1917.)
    1. Beokees <&wkey;65 (5)—Purchase from Principal-Right to Commission.
    Under a contract providing that defendants were to pay plaintiff 85 cents a crate for all onions raised on 15 acres, to be paid when loaded, and after all advances, commissions, etc., have been deducted, “this instrument to in no way affect previous contract,” there being no provision for commission for accepting onions bought, defendants were not entitled tó 11 cents commission on each crate, although a previous independent contract for commission on sales from 25 acres so provided.
    [Ed. Note.—For other cases, see Brokers, Cent. Dig. § 50.]
    2. Contracts <&wkey;16íG-lNDEPENDENT Con-' tracts—Construction.
    Where the contract sued on was separate and distinct, a former contract should not be looked to in construing it.
    [Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 746-74S.]

      3. Brokers @=331 — Purchase by Broker-Consent of Seller.
    The law does not approve of a broker becoming the purchaser without the knowledge or consent of the seller.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. § 24.]
    Appeal from District 'Court, Dimmit County; W. B. Hopkins, Judge.
    Suit by C. O. Harris against G. M. H. Wagner & Sons. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    Matt Cramer, of Asherton, and Ed H. Wicks, of San Antonio, for appellant. Mann & Henry, of Laredo, for appellees.
   FLY, C. J.

The petition of appellant shows that he entered into a contract with Wagner & Sons on September 20, 1915, in which it was provided that, in consideration of certain money to he advanced and services rendered by said firm, the latter was appointed the exclusive agents to market and sell the entire crop of onions to be grown by appellant on his land, consisting of 25 acres, which he agreed to cultivate, furnishing therefor the plants, teams, and labor to harvest, grade, pack, and deliver the onions on the cars 'to appellees; that appellees agreed to market the onions, and, after deducting the advances, loans, crate money, and 11 cents a crate for commissions, to pay appellant the amount for which the onions are sold. There are other details not necessary to mention. The first contract is not the one declared upon, but the suit is based on a second contract, which is one of purchase. The seeorid contract was dated April 11, 1916, over six months after the first contract was made, and provides for the sale of the onions on 15 acres of land. It is provided also'that 85 cents a crate shall “be paid when onions are loaded on cars at Asherton, Tex., and after all advances, commissions, etc., have been deducted.” It was alleged that appellant had delivered to appellees, under the second contract, 6,574 crates of onions, but that he had been paid only 74 cents a crate, 11 cents a crate having been retained by appellees as commissions for selling the onions to themselves. The suit is for the sum retained as commissions, amounting to $723.14, for an attorney’s fee of $250, arid for $1,000 deposited with the Asherton Bank, which, under the terms of the second contract, were to “remain there until contract has been fulfilled, or, in case it is proven that it is not fulfilled, to be given to C. O. Harris.”

The second contract is separate and distinct from the first, which was a contract for raising, gathering, and marketing the onions on 25 acres of land. The last contract was one of purchase alone of the onions on 15 acres of land. There is no provision for appellees to receive 11 cents a crate, over 12 per cent, of the total value, merely for accepting the onions which they had bought from appellee. In the second contract it is provided: “This instrument to in no way affect previous contract.” If there was any doubt as to the last contract being independent of the former contract, that provision dispels it. It is a separate and distinct contract, totally different from the former one. It follows that the first contract should not be looked to in construing the second, as none of its provisions have any applicability to the provisions of the last contract. It may be presumed that there were other onions than those on the 15 acres to be marketed, and that the saving clause copied was placed in the contract to show that the brokers still had their rights under the first contract. The provision in the first contract that appellees, at Chicago, “shall have the privilege of buying from the Texas office upon an f. o. b. basis, upon equal terms with competing organizations or firms,” would not be impaired by not permitting them to retain over 12 per cent, commissions, but, on the other hand, the retaining of that amount would give them an unconscionable advantage over other buyers.

The law does not approve of a broker becoming the purchaser, without the knowledge or consent of the seller, but it would be permissible under a contract, and it was doubtless permissible under the terms of the first contract; but that would not justify the claim to commissions under a separate and distinct contract, in which no provision is made for commissions. As said in Texas Brokerage Co. v. Barkley, 49 Tex. Civ. App. 632, 109 S. W. 1001, speaking of brokers- becoming purchasers:

“If they purchased for themselves, of course they are not entitled to the commission claimed. If they did not purchase for themselves, but were merely acting as brokers for the appellees in the sale of sugar to other parties, then they would be entitled to the commission. These items are based upon two inconsistent theories, and the establishment of either one by the evidence would destroy the right to recover under the other.”

The same case on another appeal is reported in 60 Tex. Civ. App. 466, 128 S. W. 431, where the same ruling was made.

Believing, as we do, that there is no real connection between the two contracts, we fail to see the reason for mentioning the first contract in the petition, although it was done. The first contract showed . the relation. of broker and seller existing between appellant and appellees, but that relation was clearly destroyed as to the onions grown on the 15 acres of land, and the relation of seller and buyer was established. If anything was to be obtained by appellees from the first contract, it rested on them to plead it.

We are of the opinion that the petition was good as against a general demurrer, and the judgment will be reversed and the cause remanded.

       Foother cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <®=^Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    SMITH v. STATE.
    (No. 4414.)
    (Court of Criminal Appeals of Texas.
    May 23, 1917.)
    1. Homicide <§=>1S8(2) — Evidence— Self-Defense — Admissibility.
    Specific acts of violence committed by deceased on others, when known to the person accused of having killed deceased, are admissible on the issue of self-defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 392.]
    2.- Criminal Law ®=3384 — Evidence—Admissibility.
    Inquiries concerning reputation of deceased for a period of 12 years prior to the birth of accused, his son, are too remote and inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 848.]
    3. Criminal Law <S^364(3) — Evidence—Admissibility — Ees Gestbs.
    Testimony as to statements made by accused during the night after he had killed his father is not admissible as res gestse.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 808, 816.] .
    4. Criminal Law <§=>413(1) — Evidence—Self-Serving Statements.
    Self-serving statements are inadmissible. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 928-932, 935.]
    5. Criminal Law <§=>1166% (12) — Trial — Prejudice.
    Statement by the court, after a witness had testified to accused’s statement as part of res gesta?, that he would have excluded such statement, but that the question was already answered, is not rendered reversible error by Vernon’s Ann. Code Cr. Proc. 1916, art. 787, prohibiting the trial judge commenting on the weight of the evidence, where no prejudice is shown.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 3125.]
    6. Criminal Law <§=>829(5) — Instructions— Self-Defense.
    AVhere the court- submitted the unlimited right of self-defense, unqualified by the question of provoking fhe difficulty, it was not error to refuse the special requested charge on accused’s right to arm himself and seek the deceased for an explanation.
    [Ed. . Note. — For other cases, see Criminal Law, Cent. Dig. § 2011.]
    7. Criminal Law <§=>1169(1) — Harmless Error-Evidence.
    Admission of inadmissible testimony as to conversation of deceased-with witness was harmless, where the same facts were in evidence and not objected, to in the testimony of other persons.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3130, 3137.]
    Appeal from District Court, Clay County; Win. N. Bonner, Judge.
    Alfred Smith was convicted of murder, and he appeals.
    Affirmed.
    Taylor, Allen & Taylor and Wantland & Parrish, all of Henrietta, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of the murder of his father, his punishment being assessed at six years’ confinement in the penitentiary.

Sunday morning, prior to the homicide at night, appellant and his father had some words in regard to the use of appellant’s horse; the father desiring to use the horse driving cattle that day. Appellant agreed to the use of the horse, provided he could get another horse and drive to Henrietta, to which place he was going. Henrietta was about 18 miles distant. The father became very much enraged during the conversation, and threatened to “get” or “fix” him. The son went to Henrietta, returning at night, about 12 o’clock or 1 o’clock. Upon reaching home, appellant put Ms team and buggy away, and went to the house to go to bed. At the gallery he sat down to take off his shoes, so he would not disturb his mother, who, it seems, was a light sleeper, and perhaps somewhat nervous. This was the custom among the children, for the reason above stated. ■ While removing his shoes, appellant saw some one approaching him with what he thought was a gun. He believed the party to be his father, and anticipated the execution of the threat made the previous morning. Appellant ran around the house to get out of danger. The sister of appellant, who had returned from some place where she had been during the day, also saw some one in the yard. She returned home shortly before appellant. After going to his room, appellant went to another room to ascertain if any of the guns belonging on the place had been taken away from their accustomed place of deposit. He discovered that a rifle was gone. He took a shotgun, and went to see if his father had the gun, and also to ascertain his purpose in being armed. On the gallery he found his father, lying down on a cot. He says, when he stepped upon the gallery, his father turned and reached for his gun; appellant shot; his father was killed by this shot. A rifle was found at or near the cot where deceased was situated.1

The state’s theory was that appellant got the shotgun and sought Ms father for the purpose of killing him, and that the father was asleep when shot. Two theories were thus presented by the evidence: First, that by the state, as above mentioned; second, by the defendant, to the effect that his father had threatened his life in the morning, and that he anticipated the execution of the threats, his father being armed in the yard when appellant returned, and the immediate movement of his father to secure the gun at the time he (appellant) went upon the gallery. His theory also was that it was not his purpose to kill, but to understand from his father what his purposes were under the circumstances as presented in the morning and at night. The case was tried upon these conflicting theories. It was also in evidence that the deceased was high-tempered, and became enraged easily at members of his family, and whipped his children at times in a cruel manner when so angered, and in doing so used ropes and quirts. It was also shown that he treated the girls in the same manner as he did the boys with reference to these whippings. There was evidence also that the deceased in anger assaulted his wife, the mother of appellant. Appellant testified that his father tried to kill his mother at one time; he said he would kill her, and got cartridges for that purpose; and he got a gun and threatened to kill his mother at another time, and was prevented by members of the family; that this occurred about a year before the homicide. Other witnesses testified to the same conduct of deceased towards his wife on these and other occasions. There was evidence that, when deceased was not enraged or angered, he treated his family fairly well, and it was only when he was in anger that he treated them in the cruel manner indicated. Evidence with reference to these matters covered a xieriod of about 15 years. Several witnesses, who had known the deceased for 25 or 30 years, testified that his general reputation for peace, quietude, and order in the community was good. Many of these witnesses were cross-examined with reference to fights or quarrels that the deceased had been engaged in, and with reference to his having been a high-tempered, quarrelsome man; many of them admitting that he had been engaged in fights and that he was quarrelsome and high-tempered. Murder, manslaughter, and self-defense were issues raised by the evidence and submitted to the jury by the court.

Mrs. Xarbrough, a lady about 69 years of age, a witness for the defendant, testified on direct examination to numerous acts of cruel treatment on the part of the deceased of the appellant and other members of the family in his presence. On cross-examination she indicated that she was cognizant of some facts that were not drawn out on direct examination and indicated a hesitancy to relate them. The counsel for both the state and defendant urged her to proceed. It developed that the occurrence she had reference to took place 8 years prior to the homicide. The court then • of its own motion directed her not to give the testimony; the appellant reserving the bill of exceptions on various grounds, in which it is stated that her testimony would have been as follows:

“That about 8 years ago, and shortly prior to the birth of the said child, she was present in the home of the deceased, and saw the deceased beat and inflict serious injury upon the wife of the deceased and the mother of the lunatic child, and that shortly thereafter, and as a result of such beating and striking, the said child was born prior to its natural time, and as a result thereof said child was and has been a lunatic from birth, and wholly without mind or reason, and that the defendant was present and knew of his father’s treatment of his mother at said time.”

Some of this statement is manifestly the conclusion of the witness. That the premature birth and idiocy of the child resulted from the assault would come within the class of opinion testimony. The only part of the testimony which would in our judgment have been relevant to the issues in the case would have been that showing that the deceased assaulted his wife, and this only in the event appellant knew or had been informed of it prior to the time of the homicide. Specific acts of violence committed by deceased on others, when known to the appellant, would have been admissible on the issue of self-defense. Heffington v. State, 41 Tex. Cr. R. 315, 54 S. W. 755; Spangler v. State, 41 Tex. Cr. R. 424, 55 S. W. 326; Hysaw v. State, 69 Tex. Cr. R. 562, 155 S. W. 941; Branch’s Ann. P. C. p. 1175, and cases there cited. Appellant disclaimed any knowledge of the occurrence about which Mrs. Yarbrough sought to testify. He said:

“I do not remember the conduct of my father toward my mother when she was sick. I do not remember of him doing anything to her at that time. I remember when the last child was born. I was at home then, but I do not remember of anything that happened at that time between my father and my mother.”

The fact that .deceased did assault his wife, and threatened and apparently made preparation to kill her, on various occasions much nearer the .date of the homicide than that of the proffered testimony of Mrs. Yar-brough, and that these occurrences were known to appellant, was established beyond controversy. The fact that the deceased was a violent, abusive man, and cruel to the members of his family when angry, can hardly be said to have ibeen a disputed issue. This fact was proven by every member of the family who testified and by many of the neighbors. The only evidence controverting it was that in his conduct with the public he bore the reputation of being a peaceable, orderly man, and the fact that witnesses who had been in the family at times had seen no misconduct on Ms part. That the'deceased had struck and abused his wife in the presence of appellant was testified to by appellant; he giving several instances in wMch the deceased had not only struck his wife in his presence, hut had tried to kill her, and these instances were to date, coming up to about one year before the homicide. Mrs. Smith, the mother of appellant, testified herself to various occurrences of this kind taking place in the presence of appellant, stating that during the year of the trial her husband had assaulted her; that she always kept his “sixshooter” away from him to prevent violence, and kept his cartridges hidden from him; that on one occasion he had gotten his gun and said he was going to “thin them all out,” and that on another occasion he pushed her out of the door on the ground, and sprained her wrist and made her mouth bleed; that this occurred about two years ago, and that ou these occasions appellant was present.

In appellant’s third bill of exceptions complaint is made that the court excluded the cross-examination of the witness Plemons, by which appellant would have shown that the deceased was convicted of theft in 1887, and sentenced to 5 years’ imprisonment in the penitentiary, and was pardoned after serving 3 years. Appellant, in the able brief and argument made by his attorneys, insists that the scope of the examination of this witness was such as to render the exclusion of the matter mentioned reversible error, basing this contention upon the ground that the state had proved by the witness the general reputation of the deceased for a period of 32 years prior to the homicide. As we do not so interpret the ibdll of exceptions, we set out that part of it upon which this contention is based:

“The state placed on the witness stand Mr. A. D. Plemons, who testified in behalf of the state that he had lived in the same community with the deceased for 32 years prior to his death; that he was well acquainted with him during that time; that he had visited in his home during that time, and was well acquainted with the family of the deceased; that he had worked for the deceased; that from his long acquaintance with the deceased, W. G. Smith, during the time he had known him up to the time óf his death, he knew his general reputation as a man of peace, quietude, and order in the community in which he lived; and that such reputation was good.”

We gather from this bill that it was shown that the witness had known the deceased for 32 years, and that this long acquaintance enabled him to know his general reputation. The appellant at the time of the homicide was less than 21 years of age. An inquiry concerning the reputation of deceased for a period of 12 years prior to the birth of appellant would have been quite remote, so much so that it would not have been material. The record further discloses the fact that it was not upon the appellant’s knowledge of the deceased’s general reputation that he relied to support his plea of self-defense, but it was upon his knowledge of the deceased’s violent temper and the specific acts of cruelty towards members of his family, of which the deceased had been guilty, and of which the appellant had knowledge To show the improbability of the truth of appellant’s evidence of deceased’s misconduct towards his family, the state introduced witnesses, among them the witness Plemons, to show that the general reputation of deceased as a man of “peace, quietude, and order” was good. The specific acts of violence proved by appellant covered a period beginning about the time that appellant was old enough to understand and remember such occurrences and extending up to the time of the homicide. It was upon the knowledge of these facts, and the things that happened at the time of the homicide, and the threats of the deceased, that appellant relied. We cannot assume, and as we construe it the bill does not show, that the court permitted the state to rebut the inference to be drawn against deceased’s character from the specific acts proved by the admission of evidence covering a period long antedating the Ibdrth of appellant. More-' over, the issue involved was not whether the deceased bore the reputation of an honest man. Appellant introduced no evidence upon that subject. All of his testimony raising the issue of the character of the deceased bore upon his violence and cruelty. Since there was no issue made by appellant as to the reputation or character of deceased for honesty and fair dealing, and since the evidence touching these matters would have been irrelevant, if offered, we think that the terms “peace, quietude, and order,” used in the bill as describing the character of the deceased, could not fairly be applied to a phase of his character which was not involved.

Another bill contains the following:

“The defendant placed the witness J. 0. Wilson on the stand to testify in his behalf, and said witness testified that he lived near the home of the deceased at the time of the homicide; that he went over to the home of the deceased shortly after the killing; that he left home about 5 minutes after 1 o’clock, and was 8 or 10 minutes getting from his home to the home of the deceased ; that he saw the defendant, Alfred Smith, when he reached the home of the deceased, and that he was in a very excited state of mind and was crying; that he was lying on the bed crying; that the defendant talked to him, and told him how it occurred; that he seemed to he bothered pretty bad, like he was excited; he would tell it a piece a minute or two, then he would stop and cry. Whereupon the defendant’s counsel asked the witness the following question: ‘Q. Do you remember his calling his father?’ To which the witness answered: Well, not at that time, but later on in the night he called his father, and wished his father would kill him; he was out in the yard then.’ To which question and answer the district attorney objected, for the reason it would be a self-serving declaration, and does not throw any light on the case. Whereupon the court made the following remark, to the objection of the district attorney: T would have ruled with you, but it is already answered.’ ”

This evidence was not admissible as res geste. It is remote in point of time, and while that alone, under the decisions of this court, would' not determine its character, we are not advised by the record that it possessed any of the requisite elements of res gestae. It appears that prior to the time the statement was given the appellant had related the events connected with the homicide to the witness, and it appears from the record that the witness first saw the appellant more than an hour after the homicide, and that a few minutes after the homicide he had detailed the events of it to his mother, to whose room he went after shooting the deceased. According to the bill, when the witness first saw the appellant, he was lying on the bed crying. What time elapsed and what events transpired during the time intervening and before the remark which he testified to was made are undisclosed, except that the bill shows that at the time the appellant made the remark he was out in the yard, and that he did not make it at the time the witness had the first conversation yvith him. Vernon’s Ann. C. C. P. pp. 607-009; Deneaner v. State, 58 Tex. Cr. R. 624, 127 S. W. 201; Foster v. State, 8 Tex. App. 249.

The evidence to which the remark of the court referred was in the nature of a self-serving statement, and we think clearly inadmissible. Walker v. State, 13 Tex. App. 619, 44 Am. Rep. 716, note; Cyrus v. State, 169 S. W. 680; Branch’s Ann. Penal Code, p. 58, § 90, and cases listed. Article 787, C. C. P., prohibits the trial judge from commenting upon the weight of the evidence. An infraction of this rule is error, but is reversible only where prejudicial. Rodriguez v. State, 23 Tex. App. 503, 5 S. W. 255. In Branch’s Ann. Penal Code, p. 168, there are many cases cited supporting this principle. The appellant insists that to overrule this assignment would be in conflict with the opinion of this court in the case of Simmons v. State, 55 Tex. Cr. R. 441, 117 S. W. 141. There the remark made by the court was as follows:

“If there had been any objection made at the start, I might have sustained it on the ground that it was immaterial and irrelevant.”

The court, in an opinion by Judge Ramsey, held this remark prejudicial and ordered a reversal of the case. The evidence in that ease, which was thus referred to, was not only admissible, but highly important to the defendant, and its relation to the case was such that the remark of the court, that it was immaterial and irrelevant, was calculated, not only to weaken the effect of the evidence in question, but to discredit the theory of the appellant upon which the evidence was introduced, and- thereby materially injure his case. The court in that case recognized the fact that under the established rule remarks of this character are reversible only when they are prejudicial. It says:

“We think the court was in error in making such remark in the presence and hearing of the jury; nor can we say that the error was not harmful.”

It is manifest, not only from the language of the case that it was not the purpose of the court to abandon the rule stated, but subsequent decisions by the same judge emphasized this view. In Pilgrim’s Case, 59 Tex. Cr. R. 234, 128 S. W. 128, in an opinion of the court delivered by Judge Ramsey, this point, was involved, and there was an affirmance of the case upon the principle that the remark of the court was not prejudicial, and in the same volume (Milo v. State, 59 Tex. Cr. R. 199, 127 S. W. 1025) a similar conclusion was reached and declared in an opinion by Presiding Judge Davidson. In Wofford v. State, 60 Tex. Cr. R. 627, 132 S. W. 930, there was an affirmance, expressly concurred in by Judge Ramsey and Presiding Judge Davidson, in which one of the bills involved the point under discussion, and reference to it is quoted from the opinion as follows:

“When the motion was made by appellant’s counsel that the question which was propounded by the district attorney to prosecutrix, and her answer thereto, as hereinbefore referred to, be stricken from the record, and that the jury be instructed to disregard the same, the record shows that the trial judge made in -the presence and hearing of the jury the following- statement: ‘I clo not know what the law is on that point, but I think it ought to be the law that whether or not the alleged injured party has had carnal intercourse with other men in cases like this ought to be -admitted in evidence by way of mitigation or aggravation of the crime and the punishment. The question may not be admissible under the law, but it ought to be. It is in now. Produce your authorities, and if that is the law-I will strike it out later.’ * * * Appellant assigns error upon these remarks of the trial judge, upon the ground that they constituted a charge or comment upon the weight or value of the testimony, and an expression of the opinion of the court as to the guilt or innocence of the accused. We do not so construe the remarks complained of. At most they amounted only to a comment or expression of opinion as to the admissibility, as a matter of law, of a class of testimony in a class of cases, and the purpose for or grounds upon which such testimony might be admissible in such cases. The court expressly stated that ‘the question [which had already been asked and answered without objection] may not bo admissible under the law, but it ought to be. It is in now. Produce your authorities, and if that is the law I will strike it out later.’ Authorities were produced, and the evidence complained of was stricken out, and the jury instructed to disregard it. In the light of the record, we are not of the opinion that the remarks complained of constitute reversible error.”

Older cases in point are McGee v. State, 37 Tex. Cr. R. 668, 40 S. W. 967, and Clemmons v. State, 39 Tex. Cr. R. 279, 45 S. W. 911, 73 Am. St. Rep. 923.

In the present case appellant’s rights would not have been transgressed if the court had excluded the testimony. This being true, was the appellant injured by the court stating to the district attorney, in effect, that he would have excluded the testimony if objection had been made in time? The appellant got the benefit of the inadmissible testimony, and there is nothing pointed out in the bill which indicates that the remark of the court, or the relation of the testimony with reference to any other phase of the case, was such as to be prejudicial. The trial court, in allowing the bill, says:

“This remark was directed to counsel, and constituted the court’s ruling- upon the question of law which confronted him.”

The bill does not state that the remark was made in the presence and hearing of the jury. However, if it did do so, it would not, in our opinion, present reversible error.

The court refused a requested charge informing the jury of appellant’s right to arm himself and seek the deceased for an explanation. This refusal is assigned as error. As we understand the decisions of this court, they uniformly hold that where the facts of the case raise an issue of provoking the difficulty by the appellant, and the court, in submitting the issue of self-defense, qualifies it by submitting the issue of provoking the difficulty, it is incumbent upon the court, if requested by appellant, to inform the jury that appellant would have a right to arm himself and seek the deceased for the purpose of explanation, and the fact that he did so arm himself and seek the deceased ■would not modify Ms right to act in self-defense against any attack or threatened attack from the deceased. The leading case is Shannon’s Case, 35 Tex. Cr. R. 2, 28 S. W. 687, 60 Am. St. Rep. 17. The appellant there had' borrowed a pistol, sought the deceased, and the homicide resulted. The court says:

“The issue in the case was whether appellant provoked the difficulty which led to the homicide, and, if so, with what intent. The charge of the court was clear, and instructed the jury that, if the appellant provoked the quarrel for the purpose of killing deceased, it would be murder, though done in self-defense. * * * If the interview was requested in a friendly spirit, to settle a difficulty or misunderstanding,. and appellant killed in defense of his life, it would be justifiable homicide.”

In Williford’s Case, 38 Tex. Cr. R. 393, 42 S. W. 972, the exact question involved in the present case was passed on. Discussing the refusal of the court to give a requested charge advising the jury that appellant had a right to arm himself and seek the deceased for a lawful purpose, the court uses the following language:

“Said charge was refused, and appellant excepted. By referring to the court’s charge on self-defense, it will be observed that the court gave a full charge on this subject, and authorized the defendant to slay deceased if deceased made the first assault on him, from which it reasonably appeared to him that his life was in danger, or he was in danger of serious bodily injury ; and the court also instructed the jury that appellant would have the right to slay the deceased, if deceased made an assault on him of a violent and dangerous character, less than an assault with intent to take his life or inflict upon him serious bodily injury, provided he used all other means, except retreating, in order to avoid the necessity of slaying the deceased. It will be observed, further, that the court gave no charge predicated on the idea that the defendant may have provoked the difficulty, and thus his right of self-defense was unlimited and unabridged 'by any charge on provocation. If the court had given a charge on provocation or bringing on of the difficulty on the part of the defendant, then the charge asked by appellant would have become necessary, but not otherwise.”

A number of cases are cited in Branch’s Digest, § 442, wherein this question has been reviewed by the courts, and, so 'far as we have examined them, those which have held that a charge on the right of the appellant to arm himself and seek the deceased for an explanation was required are those in which the court had failed to give the appellant a charge awarding him the perfect right of self-defense; in other words, the court has uniformly followed the rule in Williford’s Case, supra. This rule has been adhered to, so far as we have been able to discover, without deviation by the court, and without dissent by any of its members. Harrelson v. State, 60 Tex. Cr. R. 539, 132 S. W. 783; Holmes v. State, 69 Tex. Cr. R. 588, 155 S. W. 205; Fox v. State, 71 Tex. Cr. R. 318, 158 S. W. 1141; Strickland v. State, 71 Tex. Cr. R. 582, 161 S. W. 110; Carey v. State, 74 Tex. Cr. R. 112, 167 S. W. 368; Ford v. State, 177 S. W. 1176.

The charge of the court in this case gave the appellant the perfect right- of self-defense, unabridged by any charge on provoking the difficulty, and, having done so, was, under the decisions mentioned, justified in refusing the requested charge.

Bill pf exceptions No. 4 complains of the action of the court in permitting the witness Fields to repeat a conversation with the deceased which was made in the absence of the appellant. We quote the testimony from the bill:

“Well, he was talking to me something like three weeks before, three or four weeks before his death. The defendant was not present. The deceased was over there to look at some cows that he was figuring on buying, and he told me that his children did not love to work in cotton, and that he had quit the raising of cotton and went into the milk business; that he wanted to educate them; that they could milk and go to school, and that they could come from school and milk, and that he was going to send the larger children oil to school.”

Appellant testified that be attended school, and that his father sent him. For the last three years, up to the time of the homicide, he had spent eight months of each year away from home at school. The wife of the deceased testified that her husband quit raising cotton so that the children could go to school; that her husband had formerly raised cotton as his principal crop, but in later years had confined it to about five acres, and sent the children, including appellant, to school to various places. It is thus made apparent that substantially the same evidence as that complained of in the bill was in' evidence from other sources without objection. It is settled in this state that the admission of testimony is not cause for reversal, where the same facts are proven without objection. Wagner v. State, 53 Tex. Cr. R. 307, 109 S. W. 169; Rogers v. State, 26 Tex. App. 404, 9 S. W. 762; Yernon’s Code of Criminal Procedure, art. 938, p. 904, subd. 27, and cases listed. Under this rule there is no material error shown in the bill.

Finding no reversible errors in the record, it is ordered that the judgment of the lower court be affirmed.
      <®=>For other oases see same topic and KEY-NTJMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    RAMIREZ v. STATE.
    (No. 4485.)
    (Court of Criminal Appeals of Texas.
    May 23, 1917.)
    Criminal Law <®=s>1000(8) — Statement of Facts and Bill of Exceptions — Necessity.
    Where there was no statement of facts or bill of exceptions in the record, and questions and answers claimed to be erroneous were simply stated in the motion for new trial and not verified in any way by the court, they could not be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2816, 3204.] .
    Appeal from Bexar County Court ; Nelson Lytle, Judge.
    Ramundo Ramirez was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.

      E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was given 12 months in the county jail for unlawfully carrying a pistol.

The record is before us without a statement of facts or bill of exceptions. The motion for new trial contains some questions and answers which, appellant alleges, show error, but they are not verified in any way by the court, and are simply stated in the motion for new trial.' In the attitude presented by the record, this matter cannot be considered.

As the record is presented there is nothing to review, and the judgment will be affirmed.

       — -Pnr other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes