author: HODGES, J.

text:
    STOCKEY & WHITE v. MEARS.
    (No. 1522.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 30, 1915.
    Rehearing Denied Jan. 6, 1916.)
    1. Masted and Servant <&wkey;286 — Question foe Jury — Negligence.
    In a servant’s action for injuries in removing a broken plate glass window, evidence held sufficient to warrant submission to the jury of defendant’s negligence, as the proximate cause of the injux*y, in failing to warn plaintiff of the dangers of the work, in failing to furnish a' safe place and sufficient workmen to do the work, and in improperly directing the work.
    [Ed. Note — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. <i&wkey;2S6.]
    2. Master and Servant <§=293— Warning to Servant — Instruction.
    In such an action, an instruction as to defendant’s failure to warn plaintiff of the dangers must be qualified by advising that a recovery can be had on such ground only if plaintiff did not know1 of the dangers, or would not have known of them by exercising ordinary care in performing the work.
    [Ed. Note. — For other cases, see Master and Servant, Gent. Dig. §§ 1148-1156, 1158-1160; Dec. Dig. <&wkey;293.]
    8. Trial <&wkey;296 — Instructions — Construction as a Whole.
    In a servant’s action for injuries, an instruction on defendant’s failure to warn of the dangers of the work, without qualifying as to plaintiff’s knowledge of the dangers, or his acquiring such knowledge by exercising ordinary care, does not constitute error, if such qualification is supplied in subsequent portions of the general charge referred to.
    [Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. &wkey; 296.]
    4. Master and Servant <&wkey;26A-PLEADiNG— Proximate Cause.
    In a servant’s action for injuries, an allegation that he was inexperienced^ in the work required of him, and ignorant of its dangers, is a sufficient allegation as to the proximate cause to support the admission of Ms testimony on the question of assumed risk, as tending to show his ignorance of the dangers encountered im performing the work as directed.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. <&wkey;> 264.]
    5. Damages <&wkey;131 — Amount oe Yerdict.
    Where a servant was severely cut on his hands and arms by glass, and suffered great pain, medical expenses, loss of time,'and earning capacity, a verdict for $964 held, not excessive.
    [Ed. Note. — For other eases, see Damages, Cent. Dig. §§ 357-367, 370; Dec. Dig. &wkey;131.]
    6. Trial <&wkey;133 — Misconduct oe Counsel. _
    _ If the evidence or size of a verdict indicates that the jury were influenced by improper remarks of counsel in intimating the defendants were protected by indemnity insurance, and that any judgment recovered against them would be paid by the insurance company, a judgment for plaintiff should be reversed, notwithstanding an objection was sustained to such remai-ks, and the counsel making them reprimanded.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 316; Dee. Dig. &wkey;133.]
    Appeal from Lamar County Court; Tom L. Beauchamp, Judge.
    Action by Bradley Mears against Stoekey & White. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    H. T. Cooper, of Ft. Worth, and Wright & Patrick, of Paris, for appellants. J. W. Love and Fred Dudley, both 'of Paris, for appellee.
   HODGES, J.

The appellee, Mears, a carpenter in the employ of the appellants Stoek-ey & White, sued them for personal injuries received in August, 1913, while assisting other employes in removing a broken plate glass window from a building in the city oí Paris. Stoekey & White were contractors engaged in that character of work, and the appellee was under the supervision of a foreman named Stowers. The plaintiff below alleged in his petition that his injuxies were proximately caused by the negligence of Stowers in removing the plate glass above referred to. In a trial before a jury the appellee recovered a judgment for the sum of $964.

The testimony shows that on the date of the injury Stowers, with the assistance of the appellee and two other employés, undertook to remove from a window a plate glass three-eighths of an inch thick and 9 by 11 feet square. The appellee testifies as follows concerning the manner in which the work was performed and the circumstances under which his injuries were received:

“The work to be 'done was to remove a plate glass from the lower part of a building on the north side towai’d the front. When we got over there we found Mr. Thompson, another carpenter, who was to assist in removing the glass. The first thing I was told to do was to get a stepladder. * * * I borrowed the ladder and carried it back to the building where the other boys were at work. The glass was still in the fi'ame. * * * When I got back Mr. Stowers told me to place my hands upon the glass to keep it from moving. I laid down my stepladder and took hold. Mr. Thompson and Mr. Bai--nett were assisting to remove it, and we raised the glass. Mr. Stowers told me to catch up on the glass and hold the glass while the boys took the rest of the screws off. I put my hands on the glass and held it until they got the screws off, and he made preparation for me to turn, loose of the glass and catch it at the bottom. He says, ‘Now let go thei*e and catch hold of the glass at the bottom and help us lift it.’ I took hold of the glass as directed. When I lifted the glass it broke, and paid: of the glass from above fell and struck me on each wiist and cut each wrist. It cut my right wrist across the front, and my left wrist aci-oss the top.”

Other testimony shows that the glass had a crack in it near the center. There was also evidence tending to show that this method of removing a glass of that size and in that condition was not reasonably safe, and that a different method, requiring more men, should have been adopted. The appellee also testified that he was inexperienced in such work, and did not know the dangers attending that manner of performing it.

In the first paragraph of the court’s general charge he undertook to state the general principles of law relative to the duties which the master owes to the servant in furnishing a safe place in which to work and safe appliances, and the general rules governing the assumption of risks by the employé. After preliminary definitions and explanations, the court gave the following:

“Now, if you believe from the evidence in this case that the defendants failed to exercise or-dinai-y care to furnish plaintiff a safe place to perform his woi-k, and that they sent plaintiff to perform a dangei’ous task without sufficiently warning him of the dangers of same, or that they failed to furnish sufficient men to perform the work, or that their foreman failed to properly direct the removal of the glass, and that such 'failure, if any, on the part of defendants was the proximate cause of plaintiff’s injuries, if any, you will find for the plaintiff, unless you find for the defendant under another section of this charge.”

Objections to this charge are: (1) That the evidence was not sufficient to warrant the submission of the issue presented; and (2) that it was err’or to submit the failure to warn plaintiff of the dangers as a ground of recovery, without advising the jury that plaintiff could recover for a failure to warn him only in the event he did not know, or would not by exercising ordinary care necessarily have known, of the dangers in performing the work.

The first objection is not tenable, and is overruled. The qualification insisted upon in the second was proper, and the appellant had a right to have the jury so instructed; but we think this was in effect done in subsequent portions of the general charge. The Concluding clause of the paragraph above referred to clearly shows that this portion of the charge was to be considered in connection with other paragraphs which were to follow. By reference to paragraphs 5, 6, and 8, it will be observed that the court did supply those qualifications. Those paragraphs are as follows:

“If you believe from the evidence that plaintiff’s injuries were caused by the dangers ordinarily incident to the work he was performing, and that such dangers were apparent to a person of his skill and experience, the risk of which he would assume upon entering the employment, as explained in the first paragraph hereof, you will find for the defendants.
“Should you believe from the evidence that the removal of the glass was dangerous, and should you find that defendants were negligent, as herein explained, still, if you further believe from the evidence that at the time plaintiff undertook to remove said glass he knew or should have known by the exercise of ordinary care of such dangers, then you are instructed that he assumed the risk thereof and in such event, you will find for the defendants.
“Now, if you believe from the evidence that plaintiff was unskilled in the work of removing glass under the conditions described, and you further believe that he relied upon and had reason to rely upon the skill of defendants’ foreman, and did so rely upon him, and that he performed his work in the manner said foreman directed, and that he did so without any knowledge of the dangerous work he was performing, then you are instructed that he assumed no risk of entering upon and performing said labor.”

The testimony of the appellee concerning his lack of experience is also objected to, upon the ground that such inexperience was not pleaded as the proximate cause of the injuries. The appellee did allege in his petition that he was inexperienced in such work, and did hot know the dangers incident to the removal of glass of that size and condition. This testimony was admissible as bearing upon the issue of assumed risk; that is, as tending to show that the appellee was ignorant of the dangers which he encountered in undertaking to perform the work in the manner he did.

It is contended that the judgment is excessive. The testimony of the attending physician who treated the appellee is as follows:

“His right arm was cut across the wrist. The left arm was cut pretty much in the same place, although it was square across and then turned up the left thumb. I dressed his arm, and then it was quite a while before he got so ho could work., After his arm healed I told him to go back to the contractor and try to get work. The cut was about one-fourth of an inch deep. The worst cut was on the right wrist. The large tendons were not cut entirely in two. It was a very painful cut. He seemed to be in pain when he came to my office, and came near fainting. I think his injuries are permanent. After his recovery he claimed that there was not any feeling in his right hand. I have examined plaintiff since previous trial, and Ms thumb seems to be perishing, and I tMnk it will continue.”

The evidence shows that since the injuries the appellee’s earning capacity has been considerably reduced, and that he has been compelled to accept lower wages. It is also shown that he lost some time and incurred some expenses for medical treatment. The verdict is, we think, very moderate, if this testimony is to be accepted as true.

During the progress of the trial counsel for the appellee asked one of the appellants, while on the stand, to state whether or not his firm did not carry indemnity insurance, and if the insurance company was not to pay any judgment recovered in the case. An objection to this was sustained, and at the same time the court reprimanded counsel for asking the question. During the closing remarks counsel for the appellee also used this language:

“There is no evidence that tMs money is to be paid by these defendants.”

This language was excepted to, but the court appends to the bill of exceptions an explanation, which says that it was used in reply to a statement repeatedly made by defendants’ counsel to this effect:

“They are trying to make these defendants go down into their pockets and dig up money for this accident.”

When the defendants’ attorney objected to the argument, the court instructed the jury to disregard it, and reprimanded the attorney for the plaintiff for using the argument. If the state of the evidence 'or the size of the verdict was such as to indicate that these objectionable remarks influenced the jury in their verdict, we should feel it our duty to reverse this judgment upon that ground .alone. Such attempts to get before the jury illegitimate evidence, which is calculated to influence their findings, have been so often Condemned that it would seem to be unnecessary to here repeat the warnings given by the courts. The trial court did all that was required of him under the circumstances to destroy whatever evil consequences may have resulted from the improper conduct and remarks of the appellee’s attorneys, and the size of the verdict and the character of the evidence are such that we think the jury might well have found as they did, had no such misconduct been indulged in.

The judgment is therefore affirmed.
      «SsoFor other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes

      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MIDDLEBROOK, J.

license: Public Domain

text:
    ORANGE COUNTY IRR. CO. et al. v. SANDEFUR.
    (No. 5.)

    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 28, 1915.
    Rehearing Denied Jan. 6, 1916.)
    1. Trial <&wkey;252 — Contract to Irrigate — Breach — Settlement — Submitting Issue.
    Where, in an action against an irrigation company for failure of an agreement to deliver water to plaintiff’s rice crop, the evidence refuted the making of an alleged settlement for the damages occasioned by such failure, a charge, submitting the issue whether such settlement had been made, was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. &wkey;252.]
    2. Trial &wkey;>355 — Irrigation Contract — ' Breach — Issues—Submission.
    Where, in answer to a submitted issue whether defendant company made such agreement to furnish water through B. and H., or either of them, the jury answered, “B. and H.,” such answer was not objectionable because B. was not connected with the company in such a manner as to bind it when the contract was made, where there was evidence that after becoming connected with the company B. tried to carry out the contract for it, and it was undisputed that H. had authority to contract for the company at the time the contract was made.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 846-848; Dec. Dig. &wkey;355.]
    Appeal from District Court, Orange County ; A. E. Davis, Judge.
    Action by E. E. Sandefur against the Orange County Irrigation Company and another. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Bisland & Bruce, of Orange, for appellants. T. C. Ford, of Houston, and Smith, Crawford & Sonfield, of Beaumont, for appellee.

      Application for writ of error pending in Supreme Court.

   MIDDLEBROOK, J.

This is a suit for damages for alleged failure of the appellant irrigation company and W. H. Stark, from whom appellee rented land to plant in rice, appellee alleging that he contracted with W. H. Stark for the land for the year 1912, by the terms of which agreement W. H. Stark was to furnish water and fertilizer and was to receive in return one-half of the rice grown on the land. At the. time appellee was negotiating with W. H, Stark the Orange County Irrigation Company did not have its irrigating canal constructed to the land ap-pellee was negotiating for; and he went to Dr. E. W. Brown, who he thought was an officer of the company and the proper party to see, and negotiated with him as, to this water for his rice crop. The evidence is not conclusive that Dr. Brown was so connected with the company at the time of the conversation with appellee that he could bind the company. Appellee testified that he also saw John W. Hart about the matter before he would close the rent contract with W. H. Stark for the land. The evidence is conclusive that John W. Hart was such an officer of appellant company that his acts and agreement would bind the company.

Appellee, Sandefur, testified, in substance, that both Dr. Brown and Mr. Hart told him-to go ahead and rent the land, and the irrigation company would furnish sufficient water in time to water his rice crop; and, relying on this promise, he rented the land, and moved from Jefferson county to Orange county, properly prepared the land, planted it with first-class seed rice, secured a good stand of rice, and properly handled and cultivated the rice; but, on account of not being furnished with a sufficient amount of water at the proper time, his crop ivas so damaged that he made only 1,106 sacks of rice; and that he would have made five or six times as much if he had been furnished sufficient water at the proper time to properly water his rice crop. There were other witnesses who testified substantially to the same facts as to the lack of water, both appellant’s and appellee’s witnesses so testifying, and they estimated that the crop would have made three to five times as much, if it had received sufficient water at the proper time. The jury in answer to special issue as to the difference in the amount of the yield, answered that the land would have made an average of 10 sacks per acre had it received sufficient water, thereby finding that the crop would have made about three times as much rice if it had received proper water as it did actually make. Appellant irrigation company denied any contract with appellee to furnish water for his crop. It also pleaded a settlement with Sandefur. It further pleaded that Sandefur knew that the irrigation canal was not constructed to the premises appellee was seeking to rent at the time he rented the same, and therefore he took the risk of water being gotten to him, and the facts show that the canal was not constructed to the land rented by Sandefur at the time he rented it.

The alleged settlement, according to the undisputed evidence, was as follows: Dr. Brown was appointed by the appellant company to settle the damages with Mr. Sandefur, and he, Brown, proposed to Mr. Stark that he, Stark, take out of the crop of rice what he was actually o.ut for his expenses, about $400 or $500, and let Sandefur have the balance of the rice and the irrigation company take nothing for the water it did furnish. Mr. Stark agreed to this; but Dr. Brown says:

“I am not sure whether Mr. Sandefur said that he would accede to that or not, but he said he would consult his wife or lawyer.”

It was also understood, if Sandefur accepted the proposition, he was to draw all of the money out of the bank which represented Mr. Stark’s interest of the rice, after incidental' expenses liad been paid. Sandefur said he would not accept the offer, and his actions show clearly that he did not, nor did Mr. Stark. At the time this conversation as to a settlement was going on, the rice crop had been sold and the funds deposited in the bank, 'and Mr. Stark’s share of the funds was $1,409.67. Appellant contends that the understanding was that if Sandefur accepted the proposition of agreed settlement, that he would draw all of said money out of the bank except $400 or $500, Stark’s actual expenses for the crop. The facts as to this proposed settlement absolutely dispute appellant’s contention. The undisputed evidence shows that Stark and Sandefur did have a settlement; that Stark got his half of the money that the rice brought, and that Sande-fur borrowed this money from Stark and gave his note for the same, due perhaps the next fall; and that Sandefur repaid the $1,409.67 to Stark with ten per cent, per an-num interest, in accordance with the terms of the note. The record is silent as to whether Mr. Sandefur paid the irrigation company anything for what water it did furnish; but it is certain that Sandefur made no such settlement as is contended by the appellant, and it is equally certain that Mr. Stark did not make any such settlement.

The issue of settlement seems to be the principal alleged error relied upon by the appellants in this case, or rather the failure of the trial court to submit to the jury the issue of settlement, claiming that the court erred in not giving its special requested instruction to the jury, as follows:

“Did the plaintiff, Sandefur, and defendant W. H. Stark, in the hirst National Bank in the town of Orange, in the latter part of the year 1912, have a settlement between them, by the terms of which they settled all the differences, if any, which existed between them, including the damages claimed by plaintiffs, because he had not, as claimed by him, received a sufficient amount of water to properly irrigate his rice crop; and was the settlement carried out on the part of the plaintiff?”

We think the facts of this case absolutely refute any such settlement, and therefore the learned trial court did not err in refusing to submit the requested charge.

The appellants also attack the finding of the jury on the third special issue submitted, which is as follows:

“Did the Orange County Irrigation Company, through E. W. Brown and John W. Hart, or either of them, agree before the plaintiff, E. E. Sandefur, leased the land described, if he did lease the land, to irrigate the land, if he, E. E. Sandefur, would plant said land in rice? ”

The jury answered this special issue thus:

“Dr. E. W. Brown and John W. 1-Iart.”

Appellants contend that the undisputed evidence shows that at the time of the alleged contract with Dr. E. W. Brown, he, Brown, had no connection with the irrigation company that authorized him to bind said company. This may be true, but it is equally as true that Dr. Brown, according to Dr. Sholars’ testimony, did, in January, 1912, become so identified with the company that he was clothed with authority to bind it. Dr. Sholars was president of the company at the time. It is equally certain that Dr. E. W. Brown, after he became connected with the company, by his acts and repre-; sentations, at least, attempted to carry out for the irrigation company just what Sande-fur claims his contract with the company to have been.

Again, if Dr. Brown had no authority, at the time of his conversation with Sandefur, to bind the company, it is certain that John W. Hart did have such authority to bind the company, and the jury finds that the contract was made by Sandefur and John W. 1-Iart, as well as by Sandefur and Dr. E. W. Brown, and appellant does not question this finding of the jury in his assignments.

There was no error in the special issue submitted by the court, and the jury disposed of the issue by its answer, and it is not the province of this court to interfere with the findings of the jury on an issue where there are facts in the record to support such finding. Cullen v. Emgard, 44 S. W. 538; Tex. & Pac. Ry. Co. v. Raney, 86 Tex. 363, 25 S. W. 11; Michie’s Dig. pp. 248-251, and authorities there cited.

It is to be noted that the irrigation company did complete its canal to the premises rented by Sandefur about the 19th of June, and, under the testimony of the case, in time for Sandefur to have made a good rice crop, if the irrigation company had furnished him sufficient water to properly irrigate his rice. The evidence further shows that the irrigation company had sufficient water for the purpose ; but on account of the irrigation company not furnishing sufficient and proper “water bosses” to properly distribute the water to the different people along the canal, part of the time that plaintiff might have received water, other patrons of the company above him had checks or dams in the canal that prevented any water from coming to his crop. The evidence further shows that numerous and sundry brakes went un-repaired, both in the main canal and in the lateral through which water would have been furnished to Sandefur’s rice crop, all of which prevented Sandefur from getting water to irrigate his rice. The evidence shows, further, that Sandefur notified the company, both orally and in writing, numerous times, the condition of his rice crop, and of its need of water, and importuned the company to furnish him water to properly flood his rice, and that the company did make some futile efforts to furnish him with the necessary water, but in the main it failed to do so.

There being no material error committed by the able trial court, and the jury having fully disposed of the issues of the case, we find no cause for reversal, and the case is therefore affirmed.
      <S=»Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    FRIEDMAN v. SAMPSON.
    (No. 7040.)

    (Court of Civil Appeals of Texas. Galveston.
    Dec. 14, 1915.
    Rehearing Denied Jan. 6, 1916.)
    1. Limitation of Actions &wkey;>5& — Exchange of Realty — Liability on Assumed Incum-brance.
    Where defendant, exchanging his realty for that of plaintiff, assumed payment of a note for $4,000 which was an incumbrance upon plaintiff’s property, plaintiff had no right of action against defendant for breach of his agreement to pay such note until plaintiff paid the note to the holder, so that limitations did not begin to run on plaintiff’s right to sue until he had completed payment.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 307-311; Dec. Dig. &wkey;>56.]
    2. Courts <&wkey;95 — State Courts — Extraterritorial Force of Decisions.
    Decisions of state courts generally are not laws controlling the courts of other states, except in so far as they construe the statute law of their respective states.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 322, 323; Dec. Dig. <&wkey;95.]
    Appeal from District Court, Harris County; John A. Read, Judge.
    Action by Lewis E. Sampson against J. A. Friedman. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    A. R. & W. P. Hamblen and Guynes & Col-gin, all of Houston, for appellant. A. B. Wilson and Cole & Cole, all of Houston, for ap-pellee.

      Application for writ of error pending in Supreme Court.

   LANE, J.

That the nature of the suit, result of the trial in the lower court, and the issues involved, may be readily understood, we make the following statement: On the 22d day of February, 1909, J. A. Friedman, of Harris county, Tex., appellant herein, and ap-pellee, L. E. Sampson, entered into a written contract at Houston, Tex., by which Friedman agreed to convey to Sampson 960 acres of land in Texas in exchange for the conveyance by Sampson of certain property in Iowa. One piece or parcel of the property to be conveyed by Sampson to Friedman was and is known as the “Mill” property, situated in the city of Menlo, in Iowa. It was shown by the contract that at the date thereof Sampson owed a note upon which there was a balance due of $4,000, bearing 7 per cent, interest per annum, due and payable on the 17th day of January, 1909, to one Sanborn, which was an incumbrance upon said Mill property. The contract shows on its face that Friedman assumed the payment of said incumbrance. In performance of said contract, appellee, L. E. Sampson, by deed dated March 26, 1909, conveyed said Mill property to Friedman, which said deed contained a stipulation that the grantee, Friedman, “assumes and agrees to pay” the debt of $4,000 due to said Sanborn. In October, 1909, San-born sued Friedman, and Sampson, maker of the note assumed by Friedman, and recovered judgment against Sampson for the principal and interest of said note, and a foreclosure of his lien upon said Mill property against both Sampson and appellant Friedman. On January 11, 1910, said Mill property was sold under said judgment for $575. After paying costs of suit, the balance of $442.28 was credited on said judgment. On the 16th day of April, 1912, Sampson paid $1,000 on said judgment, and on the 9th day of April, 1913, he paid $3,779.28, balance due thereon. Friedman, who had assumed and promised to pay Sanborn’s debt against Sampson, refused to repay Sampson the said sum of $4,779.28 which he had paid in discharge thereof. On the 29th day of September, 1913, Sampson instituted this suit in the district court of Harris county, Tex., against Friedman, to recover the $1,000 paid by him on said judgment on the 16th day of April, '1912, and for the further sum of $3,779.28 paid thereon, on the 9th day of April, 1913, with 7 per cent, interest per annum from date of said payments, respectively. Among other matters, not necessary to state for the purpose of this 'opinion, appellant Friedman pleaded the four-year statute of limitations, of both the states of Texas and Iowa, in Bar of appellee’s right to recover. The ease was submitted to a jury, which returned a verdict for appellee Sampson for the sum 'of $4,-779.28, with 7 per cent, interest thereon from date of judgment, for which said sum judgment was rendered for said Sampson, and from which Friedman has appealed.

All of appellant’s complaints of the trial and result of this suit may be grouped and briefly stated as follows:

Appellant contends that as he had assumed to pay off the balance of $4,000 and interest due on the note executed by Sampson which was due on the 17th day of January, 1909, he became obligated to pay same on the 26th day of March, 1909, the date on which he assumed its payment, and that appellee Sampson had the legal right to sue him at that time to enforce such payment, and hence appellee’s cause of action accrued on the 26th day of March, 1909, and was barred under the four-year statute of limitations on the 29th day of September, 1913, the date on which this suit was brought. That his contract or agreement to pay said debt was to be performed in the state of Iowa, and that the Supreme Court of that state having held that such causes as appellee’s in this case accrued at the maturity of the debt assumed, such would be the law governing the trial of this case, and hence appellee’s cause of action was barred at the time he brought his suit on the 29th day bf September, 1913.

Appellee contends that his cause of action did not accrue, and that he could not have sued appellant thereon, until after he had paid the debt which had been assumed by appellant, a part of which lie paid on the 16th day of April, 1912, and the remainder on the 9th day of April, 1913, and that as his suit was filed on the 29th day of September, 1913, n'o part of his cause of action was barred by any statute of limitation.

The courts of this state have uniformly held that a purchaser, who agrees to pay a note held by a third party against his vendor which constitutes a lien on the land purchased, is not liable on such note in an action by his vendor against him, unless such vendor has paid the note to such third party. Gunst v. Pelham, 74 Tex. 586, 12 S. W. 233; Thomas v. Ellison, 102 Tex. at page 356, 116 S. W. 1141; Gregory v. Green, 133 S. W. 481; Id., 142 S. W. 999; Bexar Building Co. v. Newman, 25 S. W. at page 464. See, also, Ayers v. Dixon, 78 N. Y. 318; Lappen v. Gill, 129 Mass. 349.

Decisions of state courts generally are not laws which control the courts of other states, except in so far as they construe the statute laws of their respective states. Swift v. Tyson, 16 Pet. 1, 10 L. Ed. 865; Railway Co. v. Bank, 102 U. S. 15, 26 L. Ed. 61.

Commercial laws, and many other laws of universal application, are not the laws of any particular state, and therefore the court of each state should determine such laws and their application for themselves. Alexander v. Bank, 19 Tex. Civ. App. 620, 47 S. W. 840; Pattillo v. Alexander, 105 Ga. 482, 30 S. E. 644; St. Nicholas Bank v. Bank, 128 N. Y. 26, 27 N. E. 849, 13 L. R. A. 241.

In the ease of Pattillo v. Alexander, supra, the court said:

“It follows from the above that it was error to admit evidence showing what construction, based upon the common law, the Supreme Court of Tennessee had placed upon similar contracts.”

We think it clear, from what has been said, that the jury was properly charged; that its verdict rejecting appellant’s plea of limitation is supported by the law applicable to the case, as given to it by the court, and by the evidence; and that no error was committed by the trial court in rendering judgment for appellee upon the verdict of the jury. Therefore the judgment of the trial court is affirmed.

Affirmed.
      <@z»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    MATAGORDA COUNTY DRAINAGE DIST. NO. 5 v. BORDEN et al.
    (No. 7177.)
    {Court of Civil Appeals of Texas. Galveston.
    Dec. 30, 1915.)
    1. Drains <&wkey;40 — Drainage Districts — Taking op Private Property.
    As private property cannot be taken or damaged without adequate compensation to the owner, the construction of a drain which would overflow private property will be enjoined, where there is no provision for compensation to the owner and the drainage district has no funds to make compensation.
    [Ed. Note. — For other cases, see Drains, Cent. Dig. § 59; Dec. Dig. <&wkey;>40.]
    2. Eminent Domain <&wkey;69 — Establishment op Drains — Order op Commissions Court.
    While drainage laws give the commissions court jurisdiction over the establishment of drainage districts, such courts do not have jurisdiction in adopting the specifications for a drain to authorize the taking of private property without due compensation.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 171-179; Dec. Dig. <&wkey; 69.]
    3. Courts <&wkey;472 — Injunction — Jurisdiction op District Court.
    Where the plan adopted for the construction of a drainage system necessitated the overflow of private property, and the drainage district had made and could make no compensation; the district court, notwithstanding the exclusive jurisdiction of the commissions court over the organization of drainage districts, has jurisdiction to issue an injunction restraining constrúction of the drain.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 442, 451, 459, 465, 619, 1199-1202, 1204-1224, 1247-1259; Dec. Dig. &wkey;472.]
    Appeal from District Court, Matagorda County; Samuel J. Styles, Judge.
    Suit by A. P. Borden against Matagorda County Drainage District No. 5. From a judgment for plaintiff, defendant appeals.
    Affirmed.
   PLEASANTS, C. J.

This is a suit for injunction brought by appellees against the appellants. Upon a hearing by the district judge, in chambers, a temporary injunction was granted. This appeal is prosecuted from the order granting the temporary injunction.

The appellees sue as legal owners of a large body of pasture land, 4,962 acres of which are within Matagorda Drainage District No. 5, and 7,057 acres adjoining said drainage district The suit is against the drainage district and its trustees or commissioners and a firm of contractors who had entered into a contract with said commissioners to construct certain ditches in said district for the purpose of draining it. The injunction was sought for the purpose of restraining the construction of said ditches, upon the ground that if they were constructed in accordance with the plans and specifications prepared by the engineer of the drainage district, and which defendants were about to carry out, plaintiffs’ land within and without said district would be greatly damaged by the overflow of water drained from said district and cast upon plaintiff’s land by the contemplated ditches. The damage that it is claimed will accrue to plaintiff’s land by the construction of the ditches is alleged to be $50,000. It is further alleged that the defendant drainage district has no funds on hand and none which are available out of which to compensate plaintiffs for the damages that it will cause them by the construction of said ditches, and that the district cannot raise the money by taxation to pay such damages, because it has already levied the full amount of taxes which it is authorized to levy by the Constitution and laws of this state, and the taxes so levied are already set apart for the redemption of the bonds issued to provide the necessary funds to pay for the construction of the drainage ditches and the survey and preparation of plans for the drainage system for said district ; all of the proceeds of the sale of said oonds being required for said purposes. The petition prays that defendants be enjoined from the construction of said ditches until plaintiffs have been adequately compensated for the injury and damages that will be caused plaintiffs’ property by their construction.

The defendants’ answer contains numerous exceptions, which it is unnecessary to set out or discuss in this opinion. The answer, which was sworn to, also denied that plaintiffs’ property would be damaged by the construction of the ditches, as alleged in the petition. The hearing was upon the sworn petition and answer, together with map and plats showing the location of plaintiffs’ land and of the proposed ditches, and the testimony of the engineer who drew the drainage plans for the district.

We think the evidence before the trial judge was sufficient to justify the conclusion that the construction by the defendants of the drainage ditches complained of in the petition would damage plaintiffs’ property as alleged.

Under the Constitution of this state, private property cannot be taken or damaged for public purposes without adequate compensation to the owner. The compensation must be made or provided for before the property is taken or damaged. Travis County v. Trodgon, 88 Tex. 302, 31 S. W. 358; Dulaney v. Nolan County, 85 Tex. 225, 20 S. W. 70; City of San Antonio v. Grandjean, 91 Tex. 430, 41 S. W. 477, 44 S. W. 476.

If the allegations of plaintiffs’ petition are true (and, as we have before said, the trial judge was justified from the evidence before him in holding that they were true), the defendants would, by the construction of the ditches in accordance with the proposed plans for the drainage district, greatly damage plaintiffs’ property.

No compensation has been made or offered plaintiffs for such damage, and the defendant drainage district has no funds or property out of which plaintiffs can obtain compensation for any damage that may be caused them. In these circumstances, the construction of the proposed ditches cannot be permitted without violating the constitutional provision before mentioned. The question of compensation for the taking or damage to property by the construction of a drainage system is not one left for the determination of the commissions court by the drainage laws of this state, and, if that court had been given jurisdiction of such question, it does not appear that it has assumed in this case the adjudication of plaintiffs’ rights to compensation for damages - to their land. That court is given conclusive jurisdiction of all matters pertaining to the organization of drainage districts which includes the adoption of the drainage plans submitted by the engineer, but it does not follow, from their grant of jurisdiction, that in carrying out the adopted drainage plans private property can be taken or damaged without adequate compensation to the owner. The cases of Parker v. Harris County Drainage District No. 2, 148 S. W. 357, and Wharton County Drainage District No. 1 v. Higbee, 149 S. W. 381, do not sustain the contention of appellees that the district court was without jurisdiction to hear and determine the question presented by this appeal. We are of the opinion that the order of the district judge granting the temporary injunction should be sustained.

Affirmed.
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text:
    MATAGORDA COUNTY DRAINAGE DIST. NO. 5 et al. v. ROBBINS.
    (No. 7178.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 30, 1915.)
    Drains <&wkey;40 — Right to Injunction — Damages.
    Where the construction of a drainage ditch would destroy á dam on plaintiff’s property, greatly to his injury, and the drainage district had not and was unable to make compensation for the injury, the work will be enjoined.
    [Ed. Note. — For other eases, see Drains, Cent. Dig. § 59; Dec. Dig. <&wkey;>40.]
    Appeal from District Court, Matagorda County; Samuel J. Styles, Judge.
    Action by Fred McC. Robbins against Mat-agorda County Drainage District No. 5 and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    J. W. Conger, of Bay City, for appellants. Gaines & Corbett, of Bay City, for appellee.
   PLEASANTS, C. J.

This appeal is from an order of the judge of the district court of Matagorda county, made in chambers, granting a temporary injunction in a suit brought by appellee against appellants. Appellee, who is the owner of a body of pasture land adjoining the appellants’ drainage district, brought this suit against said district and its trustees or commissioners and a firm of contractors to enjoin the construction, by defendants, of certain drainage ditches, which defendants were about to construct in said district. The injunction was sought upon the ground that the construction of said ditches would overflow plaintiff’s land and destroy a dam which plaintiff had erected on his premises for the purpose of holding back surface water for his cattle to drink, and by such overflow of his pasture land and destruction of his dam would greatly injure plaintiff’s property. Damages are sought in the sum of 812,000. It is alleged that defendants have not compensated, nor offered to compensate, plaintiff for tlie damages to Ms land; that the defendant drainage district has no funds on hand and none which are available out of which to compensate plaintiff for the damages that it will cause him by the construction of said ditches; and that the district cannot raise money by taxation to pay such damages, because it has already levied the full amount of taxes which it is authorized to levy by the Constitution and laws of this state, and the taxes so levied are already set apart for the redemption of the bonds issued to provide the necessary funds to pay for the construction of the drainage ditches and the survey and preparation of plans for the drainage system for said district; all of the proceeds of the sale of said bonds being required for said purposes. The petition prays that defendants be enjoined from the construction of said ditches until plaintiff has been adequately compensated for the injury and damages that will be caused plaintiff’s property by their construction.

The evidence upon the hearing was sufficient to sustain a finding that the material allegations of the petition are true. Upon this state of the evidence, we think the trial judge properly granted the temporary injunction, and his order granting-said injunction should therefore be affirmed.

This is a companion case to that of Mata-gorda County Drainage District v. Borden, 181 S. W. 780, this day decided by us, and we refer to our opinion in that case for a fuller statement of our views of the law applicable to the questions presented by this appeal.

Affirme'd.
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text:
    REDDEN et al. v. VANCE.
    (No. 7215.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 18, 1915.
    Rehearing Denied Jan. 6, 1916.)
    Forcible Entry and Detainer <&wkey;43 — Appeal — Eéeect on Judgment.
    Where a justice, in a suit under the forcible entry and detainer statute, rendered judgment for plaintiff for possession of the premises and for writ of restitution, from which judgment the defendants appealed to the county court, where their appeal was dismissed on plaintiff’s motion, the judgment for plaintiff in justice court was not rendered void by the dismissal of defendants’ appeal, and the writ of restitution was properly issued thereafter by the justice.
    [Ed. Note. — For other cases, see Forcible Entry and Detainer, Cent. Dig. §§ 169-1S2; Dec. Dig. <&wkey;43J
    Appeal from Trinity County Court; C. M. McKinnon, Judge.
    Suit by Bud Redden and others against L. D. Vance. From a judgment for defendant, plaintiffs appeal.
    Affirmed.
    W. A. Cook, of Groveton, for appellants. Nelms & Platt, of Groveton, for appellee.
   LANE, J.

L. D. Yance brought suit under the forcible entry and detainer statute against Bud Redden, Will Redden, and Bob Hays in the justice court of precinct No. 1 of Trinity county, for the possession of certain premises. Judgment was rendered for plaintiff Vance for the possession of said premises and for writ of restitution. From this judgment the defendants Bud Redden, Will Redden, and Bob Hays appealed to the county court of Trinity county. On motion of plaintiff, L. D. Vance, the county judge dismissed said appeal. After such dismissal, the justice of the peace who rendered the original judgment issued a writ of restitution, and the constable in whose hands said writ was placed dispossessed Bud Redden and others, and placed Vance in possession of the premises in question. In about ten days thereafter, Bud Redden, Will Redden, and Bob Hays presented their application to the county judge of Trinity county for an injunction, and for such other orders and decrees as would be necessary to restore to them the possession of said premises taken from them under said writ. The court refused the injunction and other relief prayed for, and from this judgment of refusal Bud Redden and others have appealed to this court.

Appellants insist that the trial judge erred in refusing to grant the relief prayed for, because their appeal from the judgment of the justice court was erroneously dismissed upon the motion of L. D. Vance, and that such dismissal rendered said judgment void, and therefore the writ of restitution issued by said justice of the peace and the acts .of the constable in dispossessing them and placing Vance in possession of said premises were void and illegal.

The judgment rendered for Vance in the justice court was not rendered void by reason of the dismissal of said appeal from the justice court. Such being true, the writ of restitution was properly issued by the justice of the peace and served by said constable, and therefore the court did not err in refusing to grant the relief prayed for.

This is not an appeal predicated upon the alleged error of the judge of the county "court in dismissing the appeal of Redden and others, but is an appeal from the judgment of the county judge of Trinity county in refusing t'o grant the injunction and other orders prayed for.

The judgment of the trial court is affirmed.

Affirmed.


author: McMEANS, J.

text:
    FAHEY v. KAIES.
    (No. 7003.)

    (Court of Civil Appeals of Texas. Galveston.
    Nov. 11, 1915.
    Rehearing Denied Dec. 9, 1915.)
    1. Landlord and Tenant <&wkey;66 — Lessee Holding Over — Adverse Possession — Notice.
    Where the lessee, without repudiating the tenancy and giving notice thereof, held the land for 10 years after the expiration of the lease, in peaceable and continuous possession under a claim of ownership, she did not acquire title, since such possession could not become adverse without such repudiation and notice.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 199-209; Dec. Dig. <&wkey;> 66.]
    2. Yendo» and Purchaser <&wkey;35 — Sale oe Land — Titee—Misbepbíesentation—Rescission.
    Where the vendor of land honestly represented to plaintiff purchaser, who could not read or write, that he had and could convey a good title, the vendor honestly believing such representation to be true, but where there was in fact a clear record title in a third person and plaintiff was induced to purchase the land on the faith of such representation, he was entitled to a rescission of the sale, since such assertion by the vendor was a representation that the facts which would constitute a good title existed, and was not a mere conclusion.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 45^51; Dec. Dig. t&wkey; 35.]
    3. Vendo» and Purchaser <&wkey;37 — False Representation — Right to Rely.
    Where plaintiff was induced by such false representation1 to purchase the land, he was under no duty to investigate the truth or falsity of such representation, but had the right to rely thereon.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 54-60'; Dec. Dig. <&wkey;
    4. Vendor and Purchaser <&wkey;127 — Conveyance-Setting Aside eor Fraud — Value oe Improvements — Recovery.
    Where the vendor at the time of such purchase of land knew that plaintiff intended to improve the land, plaintiff was entitled, in1 a judgment for rescission of the sale, to recover the value of improvements made by him.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 231; Dec. Dig. <&wkey;> 127.]
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Action by Charles líales against David Fahey to set aside a sale of real estate. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Geo. G. Clough and John W. Campbell, of Galveston, for appellant. Frank S. Anderson and Aubrey Fuller, both of Galveston, for appellee.

      Application for writ of error pending in Supreme Court.

   McMEANS, J.

The appellee, Charles Kaies, brought this suit against the appellant for the cancellation of the sale of lot 215 in section 2 of the Trimble and Lindsey survey of Galveston Island. He alleged that the appellant represented to him at the time of the sale that he, the appellant, had a good and perfect title to the lot, and that he would convey such title to the plaintiff by his deed; that he, the appellee, could neither read nor write, and that he relied exclusively on said representations so made to him, and neither made, nor caused to be made, any examination of the title, and that he stated to the appellant at the time that he intended to use the property as a home for himself and family, all of which was known to defendant; that relying upon said representations he paid the defendant the purchase money, $300, at the date of his deed, August 31,1908, and built on the premises a home for himself and his family, together with a barn, fences, etc. He further alleged that he never discovered that the appellant’s title was bad until about the time of the filing of this suit in March, 1914. He further alleged that the appellant was a large property owner, dealing largely in real estate, with a reputation of a capable and upright business man, and that appellee had a right to rely on his representations and did so rely, as the appellant well knew. He further alleged that the appellant promised to make him a general warranty deed, but in fact made to him only a deed with special warranty against those claiming by, through, or under him, a fact which plaintiff alleged he did not discover until about the time of filing this suit. He prayed for judgment for the amount of purchase money paid, with interest, and for the value of the improvements placed by him upon the land. The appellant, in his answer, claimed that he had title to the land under the 10-year statute of limitations at the time he executed the deed to the appellee, and that the appellee now has a good title. When the appellee had concluded the introduction of his evidence, the appellant filed a motion, requesting the court to instruct the jury to return a verdict for him, but this motion was overruled. Thereafter, when the introduction of all the evidence had been concluded, the court instructed the jury to return a verdict for the appellee, which was done, and thereupon the court entered judgment in appellee’s favor for the amount paid by him for the purchase money of the land and the value of the improvements placed thereon by him, aggregating $1,086, and annulling and vacating the deed executed by appellant to appel-lee, and decreeing that the judgment should have the force and effect of a conveyance by appellee to appellant of the land in question. Thereafter appellee entered a remittitur of $150. From this judgment the appellant, after his motion for a new trial had been overruled, has appealed.

Appellant relies for a reversal upon two assignments of error: (1) That the court erred in not granting his motion to instruct a verdict in his favor; and (2) in instructing a verdict in favor of the appellee.

In the charge, the court, after stating the issues made by the pleadings of the parties, as substantially hereinbefore given, charged as follows:

“You are instructed that the following facts appear by the evidence with respect to which the minds of reasonable men cannot differ: First, that the plaintiff is unable to read or write, and that he relied in the purchase of the property upon "the representations made to him by the defendant as to the title and to thfe effect of the deed; second, that defendant did assure plaintiff at the time of the sale that his title was good- and perfect, and that the deed made to him would convey good and perfect title; third, that, relying on defendant’s representations, plaintiff paid the purchase money and improved the property as a home; fourth, that plaintiff had no title at the time of the sale, but there was a clear record title in a third party. The court determines as a matter of law that there is no issue on the statute of limitations to be submitted to you. You will therefore find a verdict for the plaintiff, and assess his damages at the amount of purchase money paid, with interest thereon at the rate of 6 per cent, per annum from the date of the sale to the present time, together with the present value of his improvements; no deduction being allowed for use and occupation.”

W.e find from the evidence in the record that every finding of fact contained in the charge was proved by the undisputed evidence. A brief review of the facts proved will make this apparent. The appellee testified without dispute, in substance, that during the negotiations leading up to the sale the appellant represented to him that he, the appellant, had a good and perfect title to the land, and he, the appellee, relied upon such representations as to the title and appellant’s assurance that his deed would convey to ap-pellee a good and perfect title; that, so relying upon said representations, appellee paid the purchase money and improved the property as a home. The evidence further shows without dispute that the appellant had no title at the time of the sale, but that there was a clear record title in a third party. This is shown by the following facts: The land in question was patented by the state of Texas to Temple O. Harris, March 18, 1857. The title passed by the will of Temple O. Harris to his nephew, Albert W. Harris. Aft-erwards, on May 11, 1888, the title passed from Albert W. Harris to Alice Wallace by his general warranty deed of that date. On November 14, 1910, Alice Wallace conveyed the land by deed of general warranty to B. P. Heckman. All of these deeds were duly recorded. It was shown that a search of the record of deeds of Galveston county failed to disclose any deed from Temple O. Harris, or his successors in title, to the appellant or those under whom he claimed. The appellant testified that during the negotiations he represented to appellee that he had a good and perfect title to the land, and could convey such title to appellee by his deed, and that at the time of the sale appellee told him that he intended to build a house on the land.

The evidence was wholly insufficient to raise the issue of title in appellant by virtue of adverse possession, and this a brief summary of the evidence will make apparent. August 21, 1888, Temple O. Harris, by his agent, H. M. Trueheart & Co., executed a written lease of the land to William B. Hance, which was duly placed of record. This lease provided among other things, that the lessee, Hance—

.‘‘will deliver said premises to said lessor, or agent, on the first day of August, 1889, or whensoever thereafter the same shall be demanded.”

Hance took possession of, and with his wife and children resided upon, the land by virtue of this lease, and remained in possession until he died, the date of his death being anterior to the storm of 1900. His wife, Emma Hance, died upon the land in the 1900 storm. Thereafter administration was had upon her estate, and on August 21, 1902, her administrators filed in the probate court an application for the sale of the land, reciting that, so far as the administrators knew, Mrs. Hance, nor those under whom she claimed, ever acquired title to the land, but that, on the contrary, her claim to said lot was based on the fact of occupancy, and that, owing to the fact that she never acquired the record title, her claim to. the same was of doubtful character; and they prayed that they be authorized to sell the land to appellant for the sum of $25. The application was granted, and in pursuance thereof the administrators made a deed to appellant upon the payment by him of $25. Several affidavits were introduced in evidence, stating; in effect that Mrs. Emma Hance, and those under whom she claimed, claiming to be the owners of the land, had had and held the actual, adverse, peaceable, and continuous possession thereof for more than 10 years prior to the death of Mrs. Hance in 1900. AVe are of the opinion that the foregoing facts do not afford a basis for claim of title under the statute of limitations of 10 years, for the reason that the possession of William B. Hance, and afterwards the possession of Mrs. Emma Hance, having commenced under and by virtue of the lease from the owner of the legal title, could never have become adverse unless the lessees had repudiated tlieir tenancy under the lease and given notice of such repudiation; and no proof of such repudiation was made upon the trial. Casey v. Hanrick, 69 Tex. 48, 6 S. W. 405; Mattfield v. Huntington, 17 Tex. Civ. App. 720, 43 S. W. 53; Hintze v. Krabbenschmidt, 44 S. W. 39; Word v. Drouthett, 44 Tex. 371; Tyler v. Davis, 61 Tex. 674.

The statement by the appellant to the appellee that he had, and could convey, a good title, although it embodied a conclusion drawn from the facts relative to title, was in effect a representation that the facts' which would constitute a good title to the land existed, and it is sufficient, in order to a cancellation of the sale, that the appellee relied upon the representations so made. Buchanan v. Burnett, 102 Tex. 492, 119 S. W. 1141, 132 Am. St. Rep. 900. Appellant testified that at the time of the sale his title .was good, but this was a mere conclusion upon his part that the facts which would constitute a good title existed, which conclusion, as we have heretofore shown, was erroneous^ He evidently believed his title was good, and we.acquit him of any intentional misrepresentation in regard thereto; but the fact that he believed his title was good is unimportant, in view of the fact that the appellee believed the representations to be true, and relied upon them, and made the purchase upon the faith of them. Having induced the appellee to make the purchase by the representations that his title was good, and that he could convey a good title by his deed, when in fact he had no title and could convey noné, the appellee was under no duty to investigate the truth or falsity of such representations so made to him. Buchanan v. Burnett, supra; Labbe v. Corbett, 69 Tex. 509, 6 S. W. 808. It follows that appellee was entitled to a cancellation of the sale and return of the purchase money and interest, and, as appellant knew, at the time of the sale, that appellee had purchased the land with the intention of making improvements upon it, that he is entitled to recover the value of such improvements.

We find no error in the record, and the judgment of the court below is affirmed.

Affirmed.
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author: BROOKE, J.

text:
    BALDWIN et al. v. SMITH et al.
    (No. 82.)

    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 2, 1915.
    Rehearing Denied Jan. 6, 1916.)
    ACKNOWLEDGMENT t&wkey;60 — PKOPEK EXECUTION by Mabkied Woman — Evidence.
    Where 35 years after the conveyance of land by their ancestor to a third person the heirs executed a quitclaim deed thereto to cross-complainant under which he asserted title against the successors in title of the grantee in the ancestor’s deed, and, the ancestor’s deed being lost, the evidence showed that he and his wife executed it before a notary public, who took their acknowledgments, that the grantors in such deed lived near the land for many years, but asserted no claim thereto, as neither did their heirs, until the execution of the quitclaim deed, such evidence was sufficient to establish title in the ancestor’s remote grantee, since under the facts such evidence was sufficient to establish circumstantially that the separate acknowledgment of the ancestor’s wife was properly taken as required by the statute.
    [Ed. Note. — Por other cases, see Acknowledgment, Cent. Dig. §§ 318, 319; Dec. Dig. &wkey;>60.]
    Appeal from District Court, Liberty County;' L. B. Hightower, Judge.
    Action by C. N. Smith, with Ab J. Jett, and. another as interveners, against Jacob C. Baldwin and others, to try title to land. Cross-bill by defendant Baldwin asking for a judgment of title in him. Judgment for plaintiff and interveners, and Baldwin appeals.
    Affirmed.-
    Baldwin & Baldwin, of Houston, for appellant. Marshall & Harrison, of Liberty, for appellees.

       Application for writ of error pending in Supreme Court.

   BROOKE, J.

This is an action of trespass to try title, filed by C. N. Smith, Ab J. Jett and Jef Cochran coming in as intervening plaintiffs, against Jacob C. Baldwin, P. M. Tanner, Anna Charles, and husband, John Charles, John Crost, Eliza Dever, nSe Crost, and husband, Bill Dever, Grace Blocker, née Croft, and husband, and Jack Blocker, to recover 262%, acres of land, the east half of the 525-acre tract known as subdivision No. 4 of the B. Tarkington league, in Liberty county, Tex. The land involved is described in the judgment rendered in the case. The defendant Jacob C. Baldwin filed plea of not guilty and cross-bill against the plaintiff and the interveners and his codefendants, asking judgment in his favor for the land involved. All parties defendant were duly served, and answered; Baldwin’s codefend-ants, in effect, disclaiming any interest in the land. Baldwin was the only defendant who asserted title to the land, and the controversy-was between him, the plaintiff, and the interveners. The case was tried by the court without a jury, and judgment was rendered for the interveners for the land involved, and for the plaintiff and interveners for costs of suit, to which judgment and conclusions of law and fact the defendant Jacob C. Baldwin excepted and gave notice of appeal, an;d the case is properly before this court.

On February 13, 1847, the state of Texas issued to B. Tarkington, who was then a married man, a patent to one league of land, located in Liberty county, Tex. He died February 13, 1861, and his wife died in August, 1865. They left several children surviving them, who partitioned the estate of their father and mother in October, 1865. In that partition the other heirs of B. Tarkington conveyed or set aside to Mary Tanner, who was the daughter of B. Tarkington, and who was at that time the wife of James R. Tanner, her share of the interest in her mother’s and father’s estate, which was 525 acres of said B. Tarkington league, and being subdivision No. 4, the east half of which is involved in this suit, whereby the property became her separate estate.

James R. Tanner and Mary Tanner lived together as husband and wife from the date of their marriage, which was prior to 1860. About 1880 James R. Tanner died, and some time thereafter his wife, Mary Tanner, also died. About October 12, 1870, a man by the name of Francis Hammer came into the neighborhood from the state of Ohio, and bought from some of the heirs of B. Tarkington their subdivisions of said land. On that date, according to the testimony of John L. Tarkington, he saw Mary Tanner and her husband, James R. Tanner, sign a deed to Francis Hammer by which they conveyed to him said subdivision No. 4, for a consideration of 50 cents per acre, which the grantee paid in gold. This deed was executed in the house of a man named Mel McGinnis, who lived upon the Tarkington league; that is, a party gathered there, and a justice of the peace named Evans was present. James R. Tanner and wife appeared before this justice, and, as the witness says, signed and ae-knowledged the deed, but he does not know whether it was properly acknowledged or acknowledged as required by law, with reference to the acknowledgment of a married woman. He does not know whether any or all of the requirements of law were complied with, or whether the certificate of acknowledgment was ever placed on the deed.

The plaintiffs and interveners showed a regular chain of title from Francis Hammer down to themselves. The first deed in the chain of title, from Francis Hammer to John Lyford is dated July 15, 1875. The other deeds in plaintiff’s and interveners’ chain of title are dated at intervals from that date down to the one to plaintiffs and interveners, which is dated the 17th day of July, 1913. This chain of title consists of six transfers, and in each- -of said deeds is found a recital substantially the same as that found in the first deed from Francis Hammer to John Ly-ford, dated July 15, 1875, and which the court found was of record in the Deed Records of Liberty County in Book P, page 120. The recitals in all of said instruments were as follows:

“All that tract or parcel of land lying and being situated in the county of Liberty, state of Texas, and being part of the Barton Tarkington league of land originally patented to Barton Tarkington and said tract conveyed to Mary Tanner one of the heirs, by deed of partition among said heirs of Barton Tarkington, deceased, on the 20th day of October, 1865, and conveyed by said Mary Tanner, joined by her husband, James Tanner, to Francis Hammer, by deed dated the 12th day of October, 1870, and described as lot 4 in Hammer plat.”

On the 25th of October, 1906, the sole and only heirs of Mary Tanner, who are the co-defendants with Baldwin, conveyed said subdivision No. 4 of the B. Tarkington league, which is the land that was set aside by Mary Tanner in the partition of the estate of B. Tarkington and his wife to B. I. Sparks, who conveyed the same to Annie Lomax, who conveyed the same to Jacob O. Baldwin, and the defendant Baldwin is the legal owner of whatever title, if any, that was in Mary Tanner at the time of her death.

James R. Tanner and Mary Tanner lived near the land in question, after it is alleged that they sold the same to Francis Hammer, until about 1880, when James R. Tanner died, and Mary Tanner continued to live near the said land until the time of her death, which took place many years afterward, and no claim was ever made by either of them during their lifetime to the land in question, and no claim was made by the heirs, so far as the record shows, of Mary Tanner, until about the 25th day of October, 1906.

The court found that due diligence, search, and inquiry had been made for the deed supposed to have been executed by Mary Tanner and her husband, James R. Tanner, to Francis Hammer on the 12th day of October, 1870, and it finds that the said deed was seen by Mrs. Lincoln H. Hyer, of Los An-geles, Cal., and that the same was destroyed among her husband’s papers in the year 1904, and that her husband is now dead. Therefore the court admitted the testimony of J. L. Tarkington, who testified as follows:

“I am a brother of Mary Tanner. She is dead. She married James R. Tanner, and he is dead, too. I remember when the Barton Tarkington league was partitioned. I remember seeing a deed executed by Mary Tanner and her husband, James R. Tanner, to Francis Hammer. It was at Mel McGinnis’ house on Tarkington prairie in Liberty county. I was present, and I seen her and her husband sign it. Maj. Evans, they called him, took her and her husband’s acknowledgment. He held the position of justice of peace. I also executed a deed there that day before Maj. Evans. I sold to Francis Hammer. I don’t think any one else sold to Francis Hammer that day. I and my sister and her husband signed their deeds. It was at Mel McGinnis’ house on Tarkington prairie. Maj. Evans, the justice of the peace, took the acknowledgments, and I paid him the money right there in the house for taking the acknowledgments. You ask me since that time have any of the heirs of Mary Tanner or Tarkington heirs asserted claim or claimed any part of that land, and I say I never knew of them to claim nary foot of it since that time. They haven’t put up no claim at all in any way. You ask me all I know about it is they were there and executed some kind of a deed, and Maj. Evans took their acknowledgments,' and I say we made the deeds to Hammer. I don’t know whether he took my acknowledgment right or wrong, and don’t know anything on earth about that, but he took the acknowledgment. He did not take the acknowledgments when I had a partition deed, and I don’t recollect who did take the partition deed acknowledgments. You ask me how long before that it was that I had a partition of the land among the heirs, and I say, well, the land was divided up in September, 1865, and then it was sold. 1 don’t recollect exactly how long afterwards, now; in the 70’s I think. It was in September, 1865, when the league was divided up. I don’t know whether Maj. Evans took any of them or not, no one else ever sold at all, any of the heirs at that time. I signed an acknowledged deed in 1865. Now, as to whether they were acknowledged then or later on, well, the county surveyor divided the league up. A. M. B. Tomkins was his name. You ask me if the deeds were acknowledged the same day I signed them or later on, and I ask you the land I sold to Hammer, and you say yes, or the deeds I made between each other between the heirs, and I say the deed was signed up between the heirs when the league was divided. You ask me if the deed was acknowledged then at that time, and I say I don’t remember who did take the acknowledgments. You say let me read this acknowledgment to you and see if this is not the time I am talking about: ‘State of Texas, County of Liberty. I, J. M. Evans, a justice of peace and ex officio notary public, duly elected, commissioned and sworn in and for said county, beat No. 3, do hereby certify that Wm. West, to me well known, this day says upon oath that he is well acquainted with all the parties to the within deed of conveyance, and that all signed same in his presence for the consideration therein expressed, and that himself and A. N. B. Tomkins signed the same as witnesses. Witness this, my official signature, seal of office, this 31st day of October, 1870. JT. M. Evans, J.. P. No. 3, L. Co.’ — and you ask me if that is about the same time I spoke of, and if Mr. Evans ever took but one acknowledgment, and I say I don’t recollect. You ask me if the partition deed between me and the heirs was signed by Wm. West and A. N. B. Tomkins, and I say that Wm. West was there, but he was just an agent for his sister to sell it out, and attend to his business; that is the way he came to be in it. I do not remember whether he signed as a witness or not, but he was there. That is abqut the same time I spoke of Maj. Evans being there. Mr. West attended to his sister’s part of the business. You ask me if Maj. Evans was not there at any time except the one time, and I say he was there at McGinnis’ house when I sold my part of the land and my sister sold hers, and he took the acknowledgments.. Maj. Evans was there as a justice of the peace, and he was there. Mr. Hammer never bought any other interest that I know of in the league. Hammer bought my strip and my sister’s strip; that is the two he bought that day. Why, certainly I saw the money passed; he paid it in gold. I sold it to him for 50 cents per acre. Mary Tanner was living with her husband at that time; they were living there together; he was there also. He signed the deed, and she signed it, and Major Evans took the acknowledgment.”

The court found that on the 12th day of October, 1870, J. L. Tarkington sold his lot of the subdivision of the Barton Tarkington league of land among the heirs as set forth in the plat heretofore mentioned, and that on said date, and at the house of Mel Mc-Ginnis, J. L. Tarkington saw a deed executed by Mary Tanner and James B. Tanner, by the said Mary Tanner and James B. Tanner signing same, to Francis Hammer, and that both of said parties, that is, the said J. L. Tarkington and Mary Tanner, joined by her husband, James B. Tanner, sold their respective strips of land in said partition for the sum of 50 cents per acre, which was paid in gold by the said Francis Hammer.

He further found that one Maj. Evans, known as Judge Evans, who was a justice of the peace, took the acknowledgments of said J. L. Tarkington, and also took thé acknowledgments of Mary Tanner and her husband, James B. Tanner.

The court further found that the heirs of Mary Tanner and James B. Tanner have never asserted any right, title, or claim to the land in controversy since the date of the deed to Francis Hammer.

There is only one question to be decided by this- court: Did the trial court commit error in rendering judgment in this cause for the plaintiff and interveners for the land involved in this suit? In other words, the sole question to be decided is whether or not it was shown that there was a deed from Mary Tanner and her husband, James B. Tanner, to Francis Hammer conveying the land in question, and whether or not the loss of said deed was shown, and whether proof of the execution of said deed was made sufficiently to pass the title under the said deed to the said Francis Hammer. We are not unmindful of the fact that this question is full of difficulties, and that each case will depend largely upon the facts in that particular case.

In the ease of Texas Land & Cattle Company v. Walker, reported in 47 Tex. Civ. App. 543, 105 S. W. 546, the facts were very similar to the instant case. The agreement, which was signed in that case by the parties, stated substantially the following, namely: That the land in controversy in said tract was inherited by Mrs. Eliza Schultze, which interest is an undivided one-fourth of said one-fourth league; that Wm. Hadden inherited one-half of said survey; that Mrs. Eliza Schultze, wife of C. A. Schultze, and Mrs. Virginia Fitzgerald, wife of J. M. Fitzgerald, inherited said survey from Wm. Had-den, each inheriting one-fourth; and that Mrs. Schultze was a married woman since 1866. The main issue in that case was. whether or not Eliza Schultze and husband conveyed her one-fourth interest to her sister, Virginia Fitzgerald, and her husband, or to either of them, by deed of exchange of lands under which [plaintiffs data, fihat plaintiffs owned the other three-fourths interest in the tract and that plaintiffs had also acquired title of some of the heirs under Mrs. Schultze, and her one-fourth interest, the amount of land in suit being all of said one-fourth interest, except such as they had bought up from certain of Mrs. Schultze’s heirs, she having died in 1898. In that case the court said:

“The question involved is whether or not a conveyance of Mrs. Eliza Schultze’s one-fourth interest to the Fitzgeralds was shown by sufficient evidence. After plaintiff had concluded its-proof, defendant filed the following: ‘Now comes the defendant in the above entitled [and numbered] cause, and demurs to the evidence of' the plaintiff, and asks that the court instruct a verdict for the defendant.’
“ * * * The court directed a verdict for defendant, upon which an agreed judgment was rendered awarding to appellees the part of Mrs. Schultze’s * * * interest that had not been conveyed to plaintiff by her heirs. The testimony on the disputed issue was substantially as follows: Mrs. Eliza Schultze died in 1898. Her husband * * * testified that he and his wife-exchanged Mrs. Schultze’s one-fourth interest in the Hadden survey with Virginia and John Fitzgerald for their interest' in certain land in the Pettus league, in Wharton county, and that he and his wife never * * * asserted any interest in said Hadden survey, but went into-possession of the Wharton county land, and that Schultze paid the taxes on it until he sold it;, that said exchange was made under the following circumstances: That either Oapt. Everett, a notary public, or Henry Wagenfuhr, county clerk of Colorado county, both of whom are now dead, or Mr. Daniels, notary of Colorado county, who is living, made out the deed of transfer of Mrs. Schultze’s interest in the Had-den one-fourth league to John and Virginia Fitzgerald at either Alleyton or Columbus, or at witness’ house, within a few days prior or subsequent to the acknowledgment of deed of John and Viriginia Fitzgerald transferring their interest in the tract of land in Wharton county to him and his wife, Eliza. Witness, his. wife, and one of said officers were present when the deed was executed. * * * The officer, one of the three named, took the acknowledgment of witness and his wife. Witness did not know what questions the officer put to his wife. He was not present with them at the time. Witness signed it, and saw his wife do so. The two deeds were written by the same party (as in the instant case). * * * A deed was placed in evidence by plaintiff as the deed given in exchange, which was from John * * * and Virginia Fitzgerald to C. A. Schultze for land in Wharton county, dated * * * October, 1879, and acknowledged before J. H. Coale, justice of peace and ex officio notary public of Gonzales county, on November 15, 1879. This deed was to O. A. Schultze alone, and it l-ecited that it was made ‘for and in consideration of a tract of land deeded to us by O. A. Schultze, said land lying in Matagorda county.’ Witness Schultze testified further that he did not remember that anybody else was present but himself, his wife, and the officer; that his wife was interested, besides, in the tract in question, in the Pettus league, in Wharton county, and the Criswell land in Matagorda county, and also certain land in the Sampson league, in Matagorda county, and “in other counties; that witness had never executed deed to his wife’s property without being joined by her, except a deed to a railroad right, of way to which she consented. Witness denied the fact that his wife was reluctant about alienating the property which she inherited from her father, and testified that she did not refuse to sign many deeds when witness was trying to sell same; that the deed to the land in Wharton county does not speak the truth in its recital that it was made in consideration of a deed from witness. The witness went on to say; ‘The deed of transfer of my wife’s interest in the Jackson Hadden one-fourth league in Matagorda county, Tex., to John and Virginia Fitzgerald was signed by my wife, Eliza, and myself. The proposition to make the transfer was gotten up between my wife and her sister, Virginia. There was but one deed made of this property during my wife’s lifetime, and it was the deed to John and Virginia Fitzgerald, and I and my wife, Eliza, acknowledged said deed.’ It was shown that in November, 1879, J. M. Fitzgerald conveyed one-half of the Had-den one-fourth of a league to Joseph and A. Vanham, which deed was placed of record. * * * There was sufficient proof that such a conveyance, from Mr. and Mrs. Schultze to Fitzgerald could not be found, and that all reasonable search had been made for it; also proof that Everitt and Wagenfuhr were dead, and that Daniels, though living, remembered nothing of the transaction; also proof that J. M. Fitzgerald had, in the presence of his wife, been asked for such a deed, and he stated that he did not have it. There is no testimony by any person who saw such a deed as to it containing an acknowledgment of Mrs. Schultze. [So in the instant case.] Fitzgerald’s and his wife’s testimony was not taken, but there is nothing to suggest that their testimony at this time, if taken, would have thrown any light on whether or not it showed a proper acknowledgment, or any acknowledgment by her.
“Upon substantially this state of evidence the court took the view that there was not sufficient testimony to warrant finding that Mrs. Schultze had executed a conveyance of her interest in the Hadden land to the Fitzgeralds. The proof was direct that she and her husband signed such a deed in 1879, at or about the time of the date of the deed from the Fitzgeralds to Schultze, which was November 15, 1879. That fact the jury could, of course, find if they believed Schultze, but more was necessary, namely, that she, before a proper officer, had the instrument explained to her and made the acknowledgments which the statute requires of married women.”

The court further says:

“After a long lapse of time, it cannot be expected, and the law will therefore not require, the same circumstantiality of proof as in cases where testimony of the precise transaction is * * * accessible. As was stated in the ease of Parkes v. Caudle, 58 Tex. 220; ‘If a deed was, in fact, * * * made and was destroyed by fire, no copy having been preserved, it would be rare, indeed, that witnesses after 20 years had passed, would be able to testify definitely to more than its substance.’ In the case now before us 25 years had elapsed since the time such a deed was made, if made at all. Conditions are shown which seem to render it impossible to discover or obtain the testimony of the officer who Schultze says took his and his wife’s acknowledgment to such a deed. Mrs. Schultze died in 1898. Schultze would, of course, not know what transpired between the officer and his wife in respect to her acknowledgment taken separately from him. From the time indicated for the making of such a deed Mrs. Schultze and her husband did not assert claim to the Hadden land while she lived, and presumably her heirs did not for a considerable time later; this action not being brought until 1904. Schultze and wife went into possession of the Wharton county land taken in exchange, and paid taxes upon it until it was sold. The Fitz-geralds sold the Hadden land soon after the date indicated for such exchange, and it has been regularly conveyed through successive grantees by recorded deeds, until it came to appellant; no others having asserted any claim thereto in the meantime. We do not hesitate to recognize that there are circumstances the other way, but the question before us is whether or not there are sufficient circumstances in favor of the execution of such a deed by Mrs. Schultze to require the matter to be submitted to the jury. There was direct evidence of the fact of the exchange of this land, that Schultze and his wife both signed a deed of it to Fitzgerald and wife, and that this was done before an officer qualified to take acknowledgments to deeds, and that he took the acknowledgment of both of them, and that her acknowledgment was taken out of his presence. The only fact of which direct proof is wanted is that the officer explained the deed to her, and took her acknowledgments to what the statute required. That such a proceeding is capable of being proved by circumstances where the deed is lost has been held in Simpson v. Edens, 14 Tex. Civ. App. 236, 38 S. W. 474; Daniels v. Creekmore [7 Tex. Civ. App. 573] 27 S. W. 148. After so long a time as has occurred here, in respect to the missing link of title, it would be unreasonable to exact direct circumstantial proof of each and every act that is necessary to be done before an officer in taking a married woman’s acknowledgment. In this case no one would seem to be in a position to give any testimony concerning the particular act of the officer and the woman, the officer being undiscoverable, the woman being dead, and the husband excluded by law” from being present in the taking of the acknowledgment. “It is argued by appellee that plaintiff should be required [the same argument in the instant case is made] to make proof of the several acts that were essential to Mrs. Schultze’s acknowledgment before it could recover. We take this to be a contention that such acts could not be inferred by the jury from; circumstances developed here; further, that such a rule would open the door wide for fraud, and enable one who held such a deed with a defective certificate thereon to destroy it, and then establish a deed that had really been never executed. The answer to this argument is that such a consideration would in any case be more properly for the jury, as the courts do not proceed upon the hypothesis that men are disposed to be dishonest. Again, after a long lapse of time, the argument might well be made that the alleged grantor and her heirs, have, by their delay, rendered it necessary, in the interest of justice, to allow the grantee to establish the execution of such deed by evidences and inferences which it would not have been necessary to resort to had they asserted their right at a time when direct or better proof would have been accessible. The argument” of appellee “would leave little hope for a grantee under a proper married woman’s deed, which could not be found after many years had passed. If the witness Schultze” was present at “the trade which was made by his wife, and she acknowledged the deed before a proper officer, separate and apart from him and * * * received land in exchange, and she never afterwards claimed this land, it would not be an inadmissible-inference, in view of these facts, for a jury to make that, if she acknowledged the deed, she did so with a full understanding of the deed, -and did so willingly, and did not wish to retract it. We think that after so many years of non-claim by Mrs. Sehultze and-her heirs, and the growth of the chain of title openly exposed on the public records, that could have had a proper origin only in a conveyance by her of her title, together with what was testified to by Sehultze and the apparent hopelessness of at this time proving the details and formalities of a wife’s acknowledgment by any direct evidence, it should have been left the jury to say, from what was before them, whether or not she had, in fact, effected a conveyance of this property.”

The court therefore reversed and remanded the cause. The reasoning of this case seems to be sound, and this case was followed and quoted with approval in the case of Wright v. Giles, 129 S. W. 1167.

Chief Justice Rainey in the case last above ■cited said:

“ ‘The execution and contents of a lost deed may be proved by circumstantial evidence’ [citing Bounds v. Little (75 Tex. 316) 12 S. W. 1109]. The deed was made in 1862, about 45 years before this suit was brought. After so long a time the law will not require the same circumstantiality of proof as in cases where testimony of the precise transaction is supposed to be accessible [citing Cattle Co. v. Walker (47 Tex. Civ. App. 543), 105 S. W. 545, above cited].”

Continuing the court says:

“The law only demands the best proof of a transaction that it is susceptible of, and, when that is produced, then it becomes a question whether or not its probative force is such as to establish its ewistence." (Italics ours.)

In the instant case about 35 years have elapsed. The testimony was that the deed from Mary Tanner and her husband, James R. Tanner, was signed by both of them, that it was acknowledged before an officer by each of them, and that the consideration was paid to them in gold. Following this transaction, the proof was that the Tanners lived near the land in question for many years, and that neither they, during their lifetime, nor their heirs, claimed any interest in the land until about 35 years had elapsed. In 1876 a deed was made by Francis Hammer, which recited the fact that it was the same land being conveyed as had been conveyed on the 12th day of October, 1870, by Mary Tanner and husband to him. All of the succeeding conveyances of this land, down to the present claimant, contain the same recitation. In 1906 the heir or heirs of Mary Tanner and James R. Tanner executed a quitclaim deed to all their right, title, and interest to lot No. 4 to B. I. Sparks, and Sparks conveyed to Lomax, and Lomax conveyed to Jacob O. Baldwin.

These facts were before the court who tried the case, and he found that the acknowledgments were taken by a person properly authorized to do so, of Mary Tanner and her husband, and by entering judgment upon said finding practically held that the acknowledgments of Mary Tanner and her husband were taken in compliance with the law with reference to the' acknowledgments of married women. The court having passed upon the testimony and the inferences to be drawn from said testimony and the circumstances surrounding said transaction, we do not feel disposed to disturb its holding.

Therefore, upon the authority of the principle announced in the case we have quoted above, and believing that the reasoning is sound and applicable to the facts in the instant case, we hold that there was sufficient evidence adduced to pass the title, under the facts above recited, and that this cause should be in all things affirmed.

It is so ordered.
      «S^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    FIRST STATE BANK OF AVINGER v. J. J. SEGAL CO.
    (No. 1536.)
    (Court of Civil Appeals of Texas. Texarkana.
    l Dec. 10, 1915.
    Rehearing Denied Dec. 23, 1915.)
    CORPORATIONS <&wkey;432 — ACTS OP OPPICEBS — INDIVIDUAL ob Corporate Act — Evidence.
    In an action for the conversion of three bales of cotton mortgaged to plaintiff, and received from mortgagor’s wife by defendant’s manager, who was also .a cotton speculator for himself, evidence held to warrant a finding that the cotton was delivered to and received by the manager, as such, for defendant corporation, and not by the manager in his individual capacity.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1717, 1718, 1724, 1726-1735, 1737, 1743, 1762; Dec. Dig. &wkey;432.]
    Appeal from District Court, Marion County ; J. A. Ward, Judge.
    Action by the First State Bank of Avinger against the J. J. Segal Company for conversion of cotton. Judgment for defendant, and plaintiff appeals.
    Reversed and rendered.
    T. D. Rowell, of Jefferson, for appellant. R. R. Taylor and C. C. Hines, both of Jefferson, and O’Neal & Aljlday, of Atlanta, for appellee.
   LEVY, J.

The action is by appellant against appellee for conversion of three bales of cotton upon which appellant held a chattel mortgage. The trial was before the court without a jury, and resulted in a judgment for appellee.

The trial court made the finding of fact that J. J. Segal was engaged in the cotton business in his own private and separate right, and purchased the cotton in controversy from the wife of the mortgagor on his own individual account, and not for the company, a corporation, of which he was then manager. And from this fact the court concluded that the company, the defendant, did not convert the cotton. The appellant assails the above finding of fact that J. J. Segal purchased the cotton on his own account, and not for the company, as without any evidence to support it. It is without dispute in the record that appellant had a prior chattel mortgage duly recorded on the cotton in controversy, and that appellee company had notice thereof. J. J. Segal was the manager of the J. J. Segal Company, a corporation engaged in selling dry goods, and had authority to attend to all business of the company without consulting the directors of the company in amounts less than $1,000. J. J. Segal did not have authority to buy cotton for the company except as the manager in the settlement of accounts due the company by its customers. J. J. Segal individually engaged in buying cotton on speculation. It appears that Henry Stevens on February 27, 1912, executed a chattel mortgage to the Segal corporation to secure payment of $250. Mary Stevens, wife of Henry Stevens, on September 27th hauled two bales of cotton, and on October 15th hauled one bale of cotton, all raised by Henry Stevens, to Jefferson. The three bales of cotton were covered by appellant’s mortgage, and also ..by appellee’s mortgage, which was junior. Mary Stevens testified:

“I paid him, Mr. Segal, three bales of cotton. I let Mr. Segal have the cotton I brought to Jefferson because I knew I owed him, and I just was paying him. * * * I turned those three bales over to pay on my debt.”

It was without dispute that the three bates of cotton were delivered to J. J. Segal, that no one but him handled them, and that on the same day of delivery to him there was credited on the $250 on the books of Segal Company the sums respectively of $80.45 and $44.15, making a total of $124.60, which, according to the bookkeeper, “balances the account.” The value of the cotton at date of credits was shown to be $88.45 and $44.45.

Construing this evidence in the light most favorable to appellee, it is concluded that the only admissible finding of fact is that the cotton was delivered to J. J. Segal to pay in settlement of the balance of the $250 debt due the Segal Company, and that J. J. Segal, as manager of the Segal Company, and as within his authority, received the cotton and applied the proceeds of sale thereof to the account which, as the bookkeeper says, “balances the account.” There is no evidence to the contrary that J. J. Segal took the cotton and directed the credits to the account of the company. J. J. Segal does not testify that he did not act for the company. And, while Mary Stevens in her evidence uses the language, “I was not delivering it [the cotton] to the Segal Company; I didn’t know anything about it,” and, “I owed him [J. J. Segal] a debt, and he had been running me for about 15 years,” such language, in view of the further evidence clearly appearing in the record, could not reasonably be taken as showing a purchase of the cotton on individual account by J. J. Segal. It appears that the J. J. Segal corporation was effected in February, 1912, and that the mortgage to secure the $250 was taken after the incorporation in the name of the corporation. And the bookkeeper of the corporation testifies in respect to the $250 debt:

“The account of Mary Stevens is the same account. * * * The heading of the account [on the books of the corporation] has both names to it; first is Henry Stevens, and it has been scratched out, and Mary put in the place of it.”

And as respects the debt Mary Stevens testified:

“I and Henry made it together.”

If, therefore, Mary Stevens, before her marriage, contracted a store debt to J. J. Segal, it conclusively appears that the Segal corporation succeeded to and took over the debt. And the fact that the debt appeared on the corporation books, and that the proceeds of the cotton were credited to the account, would be inconsistent with an inference of individual dealing therewith by Segal himself. And, further, according to the evidence of Mr. Wheelan, a director of the company, if the three bales of cotton had been turned over to Mr. Segal individually, the proceeding would have been:

“Mr. Segal would give this woman a draft to the Guaranty State Bank for the money, and the bank would take the draft up and pay for the cotton, and this woman would get the money for the cotton.”

But it does not appear by any evidence-that Mary Stevens paid the Segal Company the money. It appears by her evidence, and without conflict: '

“All that I ever paid him was just the cotton that I turned over to Mr. Segal on my debt. * * * I don’t know what they weighed, and I don’t know what cotton was selling for at that time. * * * I don’t know what Mr. Se-gal did with it.”

The mere fact that the three bales of cotton were of the value of $132.90, and that only $124.60 was credited on the account,, would not of itself be sufficient to establish-individual dealing by Segal, because the record shows that the $124.60 “balances the account.”

It is believed that the judgment should be reversed and here rendered in favor of appellant for $132.90, and costs of the trial court and of this appeal.

Reversed and rendered.
      <§^»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes