text:
    ROWE v. COLORADO & S. R. CO. et al.
    (No. 1376.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 19, 1918.
    Rehearing Denied Oct. 9, 1918.)
    1. Appeal and Error <@=>719(6) — Fundamental Ekroe — Dibection op Yebdict.
    The action of the trial court in peremptorily instructing the jury presents fundamental error, to be noticed though assignment of error thereon is defective.
    2. Appeal and Error <@=>927(7) — Reversal Aeter Directed Verdict — Evidence. _
    _ In action under federal Employers’ Liability Act (U. S. Comp. St. 1916, §§ 8657-8665) for death of a brakeman, the judgment would be reversed on appeal from a directed verdict for defendants if the evidence, taken most favorably to appellant, would authorize men of reasonable minds to conclude that defendants’ negligence proximately resulted in death.
    3. Master and Servant <@=>286(5) — Federal Employers’ Liability Act — Negligence-Question por Jury.
    In action under federal Employers’ Liability Act (IT. S. Comp. St. 1916, §§ 8657-8665) for the death of a freight brakeman, evidence as to defendants’ negligence held to make a question for the jury.
    4. Master and Servant <@=>124(4) — Federal Employers’ Liability Aot — Inspection op Foreign Cars.
    A railroad is bound to inspect the cars of another railroad used on its road just as it would inspect its own cars, and owes such duty as master, and is responsible for the consequences of such defects as would be discovered by ordinary inspection.
    5. Evidence <@=>93 — Inspection op Foreign Oars — Burden op Proof.
    In action under federal Employers’ Liability Act (Ü. S. Comp, St. 1916, §§ 8657-8665) for death of a brakeman, the question whether a foreign car was inspected before being placed in charge of a train crew was a fact lying peculiarly within defendants’ knowledge, and the burden of proof was on them.
    6. Master and Servant <@=>286(24) — Federal Employers’ Liability Act — Inspection op Foreign Cars — Question por Jury.
    On evidence in action under federal Employers’ Liability Act 0J. S. Comp. St. 1916, §§ 8657-8665) for death of a brakeman, held, that defendants’ negligence in not properly inspecting a foreign car before it was placed in charge of a train crew was for the jury.
    7. Courts <@=>97(5) — Federal Statute — Precedents.
    In action under federal Employers’ Liability Act (U. S. Comp. St. 1916, _§§ 8657-8665), the federal court decisions in similar cases are to be followed by the state courts in 'considering the issues.
    8. Master and Servant <@=>289(33) — Federal Employers’ Liability Act — Contributory Negligence — Question por Jury.
    In action under federal Employers’ Liability Act (ü. S. Comp. St. 1916, §§ 8657-8665) for death of a brakeman, held, on the evidence, that his contributory negligence in stepping upon the pin lifter so as to uncouple the cars was for the jury.
    Appeal from District Court, Potter County ; Hugh L. Umphres, Jud'ge.
    Suit by Ada Rowe, administratrix, against the Colorado & Southern Railroad Company and another. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    L. C. Barrett and J. N. Browning, both of Amarillo, for appellant. E. E. Whitted, of Denver, Colo., Turner & Dooley, of Amarillo, aud Thompson, Barwise & Wharton, of Et. Worth, for appellees.
   HALL, J.

Appellant filed this suit against the Colorado & Southern ¡Railroad Company and the Denver City Railway Company, for the benefit of herself and two minor children, seeking to recover damages for the death, on the 15th day of June, 1916, of Edgar Rowe, the husband of appellant. Appellant alleges in substance that on or about the 15th day of June, 1916, Edgar Rowe was in the employ of both the appellees, as a brakeman; that on or about said date he was killed near Des Moines N. M., while en route from Trinidad, Colo., to Texline, Tex. No question is made upon the pleadipgs, and it is unnecessary to set out here in detail the allegations of either party. Appellees answered, alleging contributory negligence and assumed risk. After the evidence was all introduced, the court directed a verdict for the appellees, and this action is assigned as error.

Appellees insist that appellant’s first assignment of error is multifarious, and therefore is not entitled to consideration; but the rule in this court is that the action of the trial court in peremptorily instructing tile jury present's fundamental error. From a perusal of the briefs we learn that the trial judge was of tlie opinion that the maxim res ipsa loquitur does not apply to eases arising under the federal Employers’ Liability Act (April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]), in suits between railroad corporations and their employes and further that the evidence of negligence was insufficient to warrant the court in submitting the issue to the jury. It then becomes our duty. to review the statement of facts, and if the evidence, taken in its most favorable light to appellant, was such as to authorize men of reasonable minds to conclude that appellees had been guilty of negligence proximately resulting in the death of Edgar Rowe, the judgment should be reversed.

It was shown that Edgar Rowe resided at Trinidad, Colo., and was employed as a freight brakeman by the Colorado Southern Railroad Company, and at the time of his death was performing his duties as such brakeman. He was killed between 9 and 10 o’clock on the night of June 15, 1916. The train upon which he was working was running south from Des Moines, N. M., and as head brakeman he had been ordered to turn up the retainers on the various cars making up his train. The train was composed of about 45 cars, and it was ascertained after the death of Rowe that he had turned up the retainers on several of the cars. The witness I-I. E. Oakes, who was rear brakeman on the same train, testified that when the train stopped he got out of the caboose and went up the train to find what the trouble was, and found jRowe dead under about the seventh car from the caboose, lying in the middle of the track on his face; that the train had been running about 20 miles an hour; that Rowe had evidently been dragged about 35 feet after he struck the ground; that he found Rowe’s lantern, burning and upright, in the southwest corner of what is called the Erie car, which it seems was a coal ear loaded with coal at the time, and he further found that the retainer on this car had been turned up and the air hose between the Erie car and the car immediatly south of it, which the witness calls the Southwestern car, was uncoupled. He testified that, in order for Rowe to tura up the retainers on these cars, he would have been forced to go on the southwest 'corner of the car and lean over its edge. He further says that the east bottom door of the Southwestern coal car had dropped down and spilled out about four tons of coal, about where Rowe was killed; that the coal was caused to fall from the car by the bottom door of the car breaking loose; and that the coal was scattered along on the east rail. He further stated: That there was a shaft running through under the car fitted with chains, and by winding the shaft the chains raised and fastened both doors on each side of the bottom of the ear. That he found a piece of broken baling wire on the door which was open, and that the door on the west side of the car, and which was still in place, was fastened with baling wire. That the chains on both doors were hanginlg down loose and had never been wound up. That it was not usual for the doors to be fastened with baling wire. That, when coal falls out of a car under such circumstances, it creates lots of dust, anjd pieces of coal are thrown in all directions. There were automatic couplers on both of the cars, and that the cars were coupled, but the air hose was uncoupled. Rowe’s body was found about five minutes after he was killed.

Rowe was a sober, industrious man. It appears that the two coal cars were picked up by this train at Des Moines, and that turning up retainers on such cars was within the line of Rowe’s duties. This witness stated that it was his opinion that the train became uncoupled between the two coal cars mentioned at about the place Rowe was killed, and stated that he based his opinion upon the fact that the hose was uncoupled and not damaged. That it came to a stop at or near the place where Rowe was found dead. That the parting of the hose set all the brakes which caused the train to stop. That the air hose was uncoupled at only one place. That the brakes being set on the front end of the train after it became uncoupled caused it to slow up when the rear portion overtook the front end,, causing the couplers to come together and couple automatically. He stated that he found the couplers in good condition after the accident; that the Erie and Southwestern cars were about the twelfth and thirteenth cars from the engine. He explained that there was an air retainer on every car, and when the retainer was turned up it kept the brakes set by holding the air pressure in the brake cylinder ; that at or near the place where Rowe was found it was necessary to have air retainers in proper position on account of the grade; and that it had been the custom to turn up the air retainer at that particular place ever since his employment by the road. There was an end platform about a foot wide on the Erie car, but no platform on the Southwestern car. The coal from the car fell on the east rail; some of it going between the two rails, and some of it east of the track.

D. J. Smith testified as an expert for the appellant. The substance of his testimony is: That when the air hose of a train is parted about 13 or 14 cars back of the engine, where there are about 45 cars in the train, it applies the brakes in emergency, and would stop the train, causing it to jar and shake. That, if a man was standing on a car where the brake occurred and between the cars, it would have a jarring effect; and that if about four tons of coal were spilled on the east rail of the track, with the train running about 20 miles an hour, it might have the effect of uncoupling the train and might result in derailing the car. That if it uncoupled the train it would also uncouple the air hose. That trains sometimes uncouple and then couple again. That the air hose might be uncoupled under such circumstances and still not uncouple the train. That the spilling of four tons of coal on the track would raise a dust and would have the effect of blinding a man standing between the ears. If a car is going over an obstruction, it will naturally rise; one car will go up and the other will go down; that has a tendency to uncouple the coupling, and the same effect would be caused by the coal. The cars going over the coal could and would probably uncouple them, depending largely on Where the coal was dropped and how much was plowed off by the brake beam. The coal being on the rails would cause the couplers to work up and down, and possibly uncouple the train. That, after going over the coal, the cars would drop back down onto the rail and go on. The brake beam is about six inches from the rail, and, if it plowed some of the coal off, would leave about six inches still on the -rail, and a car going over it under such circumstances would do a lot of jarring and jolting, moving the cars up and down.

Appellees advance the theory that the train was uncoupled through the negligence of Rowe in stepping upon the pin lifter of the Erie car. This contention is based upon the testimony of the witness Lynas, assistant trainmaster of the Et. Worth & Denver City road at Texline, who testified that he saw the ears in question when they reached Tex-line. He stated:

“There was a coal car directly north of the car that had dumped the coal that had some lint on the left rod; looked as if left there by some party going between the. cars and rubbing the left rod.”
The engineer, Coopers, testified as follows*
“The car that dumped began dumping a mile or more before Rowe fell, and the coal had all rolled out of the car up to the point where he fell.”

Meese, thq conductor, testified:

“About four tons of coal had.dropped through the bottom of the car. I could not state whether the coal fell from the car before or after his death; I don’t know which.”

All the witnesses testifying upon the issue say that the coal falling through the bottom of the car under such conditions would create a great deal of dust. One witness testified that the chains used for dosing and fastening the trapdoors were broken, and the witness Oakes stated .that it was not probable that Rowe could have stayed in the coal ear where the lantern was found and have turned up the retainer on that car, because the car was loaded with coal. There is a conflict on this issue. There is no testimony in the record with reference to the inspection of these cars at Des Moines, or elsewhere, prior to the accident. It was shown that Rowe was an experienced railroad man and had been employed in the operating department of .railroads for about 16 years.

Appellees contend that the United States courts hold that the maxim res ipsa loquitur does not apply to actions growing out of personal injuries between master and servant, and appellant seems to be of the same opinion. We are inclined to doubt the correctness of this position as applied to all eases since reading the opinion of Judge Dennison in Southern Ry. Co. v. Derr, 240 Fed. 73, 153 C. C. A. 109, holding that the doctrine does not always apply as the effect of the federal Employer’s Liability Act was to abolish the fellow-servant rule. In any event, appellant in this cause proves facts from which the jury may infer negligence, •and she is not forced to rely on the maxim. The evidence introduced by her proves more than the death of Rowe and the mere uncoupling of the train and air hose. This is not a case where the injury alone is shown without any explanation of its cause or the proof of any facts from which negligence may be inferred. Since the judgment must be reversed, it would not be proper for us to discuss the evidence, and we shall not do so further than is necessary. No proof with reference to the inspection of the coal car with the defectively fastened trapdoor was introduced. The evidence does not show whether this was a foreign car, or whether it was owned by the appellees.

Giving ’ appellees the benefit of the doubt, the rule with reference to foreign cars as established by the United States Supreme Court is:

“A railroad company is hound to inspect the cars of another company used upon its road just as it would inspect its own cars; that it owes this duty as master, and is responsible for the consequences of such defects as would be disclosed or discovered by ordinary inpection; that when cars come in from another road which have defects visible or discernible, * * * it must either remedy such defects or refuse to take them.” Baltimore, etc., Ry. Co. v. Mackey, 157 U. S. 72, 15 Sup. Ct. 491, 39 L. Ed. 624.
“This duty of examining foreign cars must obviously be performed before such cars are placed in trains upon the defendant’s road or furnished to its employés for transportation. When so furnished, the employés whose duty it is to manage the trains have a right to assume that, so far as ordinary care can accomplish it, the cars are equipped with safe and suitable appliances for the discharge of their duty, and that they are not to be exposed to risk or danger through the negligence of their employer.” Id.; 8 Enc. U. S. S. C. R. 286, n. 45.

And this seems to be the rule adopted by the courts of this state. Jones v. Shaw, 16 Tex. Civ. App. 290, 41 S. W. 690, writ of error denied by Supreme Court 93 Tex. 665, 42 S. W. xvi; Texas, etc., Ry. Co. v. McClanahan, 2 Posey, Unrep. Cas. 270; Galveston, etc., Ry. Co. v. Nass, 57 S. W. 910; Id., 94 Tex. 255, 59 S. W. 870; McCray v. G., H. & S. A. Ry. Co., 89 Tex. 168, 34 S. W. 95.

The question of whether or not the car was inspected before being placed in charge of the train crew was a fact lying peculiarly within the knowledge of appel-lees, and the burden of proving it rested upon them. If the jury believed the statement of the witness Oakes that the trapdoor in the bottom of the car of coal was tied with baling wire, and that the chain intended to be used in closing and holding the door was either' broken or hanging from the shaft loose, they would be authorized to base a finding of negligence upon it, as the defect was patent to one using even ordinary care in inspecting such a car.

Since this case arises under the federal Employers’ Liability Act, the federal court decisions in cases of like character must be our guide in considering the issues. In the case of Patton v. T. P. Ry. Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361, the appellant was denied a recovery because he took the chances as to the condition of the engine and was. injured by a defective step. He was not required to do any work on or about the engine until after it had been inspected, and if he had waited until after inspection, as it was his right and duty to do, before attempting to clean the engine, the injury would have been avoided. The undisputed evidence was that the defective step which caused the injury had been duly inspected at El Paso and was in perfect condition when the engine started on its trip, and that it was impossible to tell how it was loosened. The evidence showed that it could have been loosened by reason of the ordinary working and jarring of the engine while the train was running or by striking against something along the line. The theory was further advanced that it might have been struck by a large lump of coal falling on it from the tender. If the evidence had shown that the step had been secured in its place at El Paso by a scrap of baling wire instead of using a bolt and nut, and that the wire was found broken after the accident, the appeal would, in our opinion, have resulted in a reversal, especially if the evidence had shown that fastening steps upon engines with baling wire was unusual.

Looney v. Metropolitan Ry. Co., 200 U. S. 480, 26 Sup. Ct. 303, 50 L. Ed. 564, is a case where the employs of an electric railway company was killed by touching certain parts of the car, which it appears were not properly insulated. The court said it was not necessary for the deceased to touch the insulated parts of the leads in making the connection and that one of two things was necessary to cause the accident: A leak in the insulation, or the act of the deceased in touching the uninsulated ends of the leads. There was no proof that the insulation was worn off the leads at the place where deceased was required to touch them in making the connection, and the court said:

“To hold a master responsible; a servant must show that the appliances and instrumentalities furnished were defective. A defect cannot be inferred from the mere fact of an injury. There must be some substantive proof of the negligence. Knowledge of the defect or some omission of duty in regard to it must be shown.”

The evidence in Smith v. Illinois Central Railway, 200 Fed. 553, 119 C. C. A. 33, shows that the engineer was found dead, lying by his engine between two tracks in the company’s yards, with his foot cut neatly off. There was no proof of any negligence of any kind. Of course, the rule urged by appel-lees applies to such case.

Appellees advance the theory in this case that Rowe’s death was caused by his stepping upon the pin lifter, thus uncoupling the cars by his negligence. The agent at Texline found lint upon the rod of the pin lifter; but it was not shown that the lint was from Rowe’s shoes, or in fact any ¡y,art of his clothing. As far as the evidence shows, there was no dirt, mud, or other evidence on the rod of the pin lifter that Rowe’s foot had ever been in contact with it, and, since it is shown that he was a railroad man of 16 years’ experience and was sober and industrious, the presumption of care on his part obtains. Admitting that this evidence tended to show contributory negligence on the part of Rowe, the undisputed fact that four tons of coal had been spilled under the running train through a trapdoor which had been tied with baling wire was such proof tending to show negligence that the court should have submitted the issues to the jury. Myers v. Pittsburg Coal Co., 233 U. S. 184, 34 Sup. Ct. 559, 58 L. Ed. 906; T. & P. Ry. Co. v. Gentry, 163 U. S. 353, 16 Sup. Ct. 1104, 41 L. Ed. 186; T. & P. Ry. Co. v. Barrett, 166 U. S. 617, 17 Sup. Ct. 707, 41 L. Ed. 1136.

Exhaustive briefs have been filed by the parties, citing and discussing a multitude of case's from the courts of this state and Supreme Courts of other states, which we do not deem necessary to discuss.

Because the court erred in directing a verdict for the appellees, the judgment is reversed and the cause remanded. ■

HUFF, O. J., not sitting, being absent in Austin, sitting with Committee of Judges.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    LESTER v. PARK.
    (No. 1369.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 12, 1918.
    Rehearing Denied Oct. 9, 1918.)
    1. Partnebship <&wkey;120 — Against Silent Partner — Cb oss -Petition .
    In an action against a partner, the latter’s cross-petition to enforce a settlement and fix liability of a silent partner, alleging existence of partnership and that firm assets have all been disposed of, held sufficient, if true, to entitle partner to such relief.

      2. Appeal and Error <&wkey;880(2) — Right to Allege Error — Pleading—-Cross-Action.
    Where defendant brings a cross-action against a third party and the latter alone appeals from a judgment for plaintiff against defendant and for defendant against such third party, the third party cannot complain of the oyerruling of plaintiff’s exception to the answer interpleading the third party.
    3. Appeal and Error <&wkey;1050(l) — Harmless Error — Documentary Evidence.
    In an action where the issue was as to the existence of a partnership between defendant and a third party against whom he brought a cross-action, the latter was not prejudiced by the introduction of an unsigned written agreement of partnership, where defendant testified as to the truth of the different matters mentioned therein and that the third party had promised to sign it if a certain debt was paid; the debt having been paid.
    4. Appeal and Error <&wkey;1050(l) — Harmless Error — Admission of Evidence.
    To require an alleged partner to testify with reference to unconnected transactions with other parties held prejudicial, where existence of partnership was positively denied.
    Appeal from District Court, Randall County; Hugh L. Umphres, Judge.
    Suit by the First National Bank of Canyon against D. A. Park, who answered by general denial and by cross-action against L. T. Lester. There was a judgment in favor of the hank against Park and in favor of Park against Lester, and the latter appeals.
    Affirmed in part, and reversed and remanded in part.
    Kimbrough, Underwood & Jackson, of Amarillo, for appellant. B. Prank Buie, of Canyon, for appellee.
   HALL, J.

The Pirst National Bank of Canyon sued D. A. Park upon a note for the sum of $2,440.50, dated July 17, 1913, with the usual provisions for 10 per cent, interest and attorney’s fees. Park answered by general denial, and by cross-action sought to recover against appellant Lester; the allegation in this particular being, in substance: that about December 1,1908, Park and Lester entered into a partnership to purchase two sections of land in Swisher county. That on December 11, 1908, a contract was made in the name of D. A. Park to purchase said land for the sum of $15,680, to be paid $4,000 cash, and the remainder in five equal annual installments with 8 per cent, interest. That under the terms of their agreement Park and Lester were equally responsible for the purchase money and were to share equally in the profits and losses, but that the business was to be conducted in the name of Park. That prior to the purchase of said land the bank, through its officers and directors, agreed and promised to advance the $4,000 necessary to make the cash payment and take the note of D. A. Park with 10 per cent, interest for that amount. That said bank further agreed to take care of the five annual payments as. they became due and to pay taxes on the land until all or a part of said land could be sold. That in accordance with the agreement Park purchased the land and executed his notes for the deferred payments. The bank advanced the .$4,000 and took Park’s note for said sum. That said bank continued to advance the money needed and took the note of Park for such money with 10 per cent, interest thereon until half of one of said sections was sold on June 7, 1909, to one Ark for $7,270 gross, out of which amount the bank was paid as far as it was practicable to do so. That thereafter Lester and Park were unable to sell the remaining section and a half, and suit was brought on 'the notes made by Park to the owners' thereof for a balance due, at which time the value of the remaining lands was much less than the amount of the notes against it. In order to avoid having a judgment against Park, it was mutually agreed by the bank, Lester, Park, and the holder of the purchase-money notes, that Park should reconvey the lands to the holder of the notes, and in consideration of such reconveyance all indebtedness for purchase money should be canceled. That Park made such reconveyance in accordance with their agreement, thus canceling all of the partnership indebtedness except the amount due to the bank. That in the final adjustment of the partnership between Lester and Park there was a loss of $4,480. That Park paid one-half of said loss, leaving the note sued upon unpaid. That, as between Lester and Park, the former owes all of the note sued upon. That the bank had notice through its officers and directors of the existence of the partnership at all times, and was interested in the same to the extent of loaning the said $4,000 and of making the other necessary loans to said partnership as per the prior mutual agreement between the parties. That the compromise of the suit filed to recover upon the original purchasenmoney notes in no way affected the note for $2,440, sued on herein. Park prayed that he have judgment over against Lester for such an amount as the bank should recover against him. The bank filed a supplemental petition, urging certain demurrers and exceptions to the answer of Park, denied any agreement on its part to furnish money to the partnership or any knowledge of the partnership, and denied that it entered into any agreement to hold Lester for said note or any part thereof. Appellant Lester answered by adopting as his own the general demurrers and exceptions of the plaintiff bank, filed a general denial, a denial of the partnership under oath, and interposed the statute of four years’ limitation. The court peremptorily instructed the jury to find for the bank against Park for the sum of $3,727.74, with interest, attorney’s fees, and costs, and submitted to the jury certain special issues in reply to which they found that Lester and Park agreed as partners to purchase two sections of land described in the petition, and that upon a settlement of the partnership affairs Lester was due Park the sum of $2,078.87. Upon the issue of limitation, they further found that Lester did not at any time within four years before July 31, 1017, deny the partnership or his liability in connection with the purchase of the land. In accordance with this verdict, judgment was entered. Lester alone appeals. The judgment in favor of the bank against Park will be affirmed.

It is contended under the first assignment that the pleadings are insufficient to entitle Park to any relief. His cross-petition alleges the existence of the partnership for the purchase of the two sections of land, and shows that the partnership assets have all been disposed of by the compromise resulting in a reconveyance of the land to the purchaser. The cross-action is brought to enforce a settlement and fix the liability 'of Lester for the note sued on, and his allegations, if true, entitled him to the relief sought. The second proposition under this assignment is that the evidence offered by Park was so uncertain and indefinite as to be wholly insufficient to authorize the jury to render a verdict thereon. We have reviewed Park’s testimony, together with that of Powell, taking into consideration the statement from the bank books, and confess our inability to see how the amount which the jury found Park was entitled to recover against Lester was obtained, and the uncertainty of Park with reference to some of the transactions testified about leave the amount due in some doubt. Neither the appellant nor appellee has given us the benefit of their construction of this testimony, and we are inclined to sustain this assignment.

Appellant insists that the court erred in overruling the bank’s special exception to the answer of Park because the same seeks to interplead Lester and litigate matters in which the bank is in no way interested. If we should admit that the exception was proper, it could not result in reversing the judgment, as the bank' was not injured by the action of the court in overruling it. The trial of the case was not delayed, and the bank has its judgment for the full amount of its claim against Park, from which Park does not appeal.

Over the objection of appellant, Park was permitted to introduce an unsigned writing reciting the purchase of the two sections of land by Park and Lester; that they were deeded to Park, for which he executed his notes; that the parties were equally interested in the land; that Lester was responsible for half of the purchase-money notes; that $4,000 had been borrowed from the First National Bank of Canyon to make the cash payment for which Park had executed his note to the bank. The writing further recites the sale of half of one of the sections for a profit of $1,564, which had not been applied on the note to the bank; that Park had executed a deed of trust on the land, in which was included some of his personal estate to secure the bank, and concluding as follows:

“Therefore it is agreed between said Lester and Park that said Lester is responsible to said bank and Park for his half of the $3,996.40 above mentioned.”

Park testified with reference to this instrument that on December 1, 1908, a partnership was entered into between them; that about the 27th day of April, 1911 he drew up the instrument and presented it to Lester, who said he would not sign it until after the $1,600 was paid in; that the $1,600 was aft-erwards paid and the paper again presented to Lester; that Lester looked it over and made no objection to the form of the contract at the time. He stated that he would pay if Park would pay the $1,600 back, but never signed the note. Lester testified that he never saw the writing until it was presented by Park on the witness stand. While it is true that Lester refused to sign the instrument, when taken in connection with Park’s statement that the amounts mentioned in the writing -were correct, and Lester had said that he would sign it if the $1,600 profit which Park had derived from the sale of the half section of the land was paid into the bank, we think the court did not commit reversible error in admitting it.

While appellant was on the witness stand, he was required by the court to testify with reference to certain transactions and agreements between him and other parties under which certain lands were bought in Cochran county and in which Lester was interested as a partner with other parties. He was asked generally whether or not he was, during the year 1909, as record owner or as silent partner, interested in as much as 100,000 acres of land in the Panhandle. It is not shown that these transactions were connected in any way with the partnership between Park and Lester, and, since Lester denied positively the existence of the partnership out of which this suit arose, we think this testimony was prejudicial.

Affirmed in part, and reversed and remanded in part.

HUFF, O. J., not sitting, being absent in Austin, serving on Committee of Judges passing on writs of error for Supreme Court.
      <gs»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=sFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BOYCE, J. BOYCE, J.

text:
    LEWIS et al. v. POWELL.
    (No. 1381.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 19, 1918.
    On Motion for Rehearing, Oct. 9, 1918.)
    1. Election- oe Remedies i&wkey;9 — Dismissal oe Action.
    The mere bringing of an action which has been dismissed before judgment, in which no advantage has been gained or legal detriment .occasioned, is not an election.
    2. Election oe Remedies &wkey;>9 — FORECLOSURE OE MORTGAGE.
    Assuming that there could be an election as between foreclosure through the courts and a sale by trustee under a power, where sale of land under trust deed was set aside on the ground that appointment of substitute trustee was unauthorized, there was no election of remedies.
    3. Taxation <&wkey;531(2) — Payment bv Mortgagee — Subrogation.
    Where mortgagee is compelled to pay taxes to protect his lien, he is subrogated to the lien created by the tax assessment.
    Appeal from District Court, Dallam County; Reese Tatum, Judge.
    Suit by D. E. Powell against Etta M. Lewis to foreclose a vendor’s lien. J. H. Lewis and another intervene as defendants. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    W. I. Gamewell, of Stratford, for appellants. Veale & Lumplrin, of Amarillo, for appellee.
   BOYCE, J.

J. D. Rawlings conveyed to S. E. Gates section 185, in block I T., Dallam county, retaining in the deed of conveyance a vendor’s lien to secure the payment of certain notes executed by the said Gates. A deed of trust with power of sale was also executed by Gates to secure the payment of these notes. The notes were duly transferred to D. E. Powell, who attempted to appoint a substitute trustee under the deed of trust, and this substitute trustee, purporting to act under the powers of the deed of trust, sold the land and it was bought in at such sale by D. E. Powell. The substitute trustee’s sale and deed were set aside in a suit brought by Etta M. Lewis, who had acquired Gates’ interest in the land, on the ground that the appointment of the substitute trustee and sale by him were unauthorized. Rawlings v. Lewis, 191 S. W. 784. D. E. Powell then filed’this suit against Etta M. Lewis to foreclose the vendor’s lien retained against said section of land to secure the payment of said notes. J. H. Lewis and W. I. Gamewell, having acquired an interest in the land through the said Etta M. Lewis, intervened as defendants. The defendants in their answer set up the facts already stated in reference to the attempted effort of the said D. E. Powell to have said land foreclosed at trustee’s sale, and in this connection pleaded that they had been at large expense, such as attorney’s fees, etc., in procuring the judgment setting aside said sale. These facts were pleaded as an election of the method of foreclosure, precluding the said Powell from subsequently pursuing the present alleged inconsistent remedy of foreclosure through the courts. The court below sustained an exception to this pleading of the defendants and the assignments complaining of such action present the principal question on this appeal.

Appellee Powell, according to the allegations of appellants’ answer had two methods of foreclosure: One by trustee’s sale; the other by foreclosure in the courts. These two remedies, we may assume for the purposes of this decision, are inconsistent, at least they cannot be concurrently 'exercised though they may be cumulative. We may also assume that a conclusive election to pursue one remedy would estop the use of the other. So that the question we are to decide is whether the facts alleged show such an election on the part of Powell to pursue his remedy of foreclosure by trustee’s sale as to estop him from resorting to this other remedy of foreclosure through the judgment of the courts. The authorities are not agreed on the rule that should control the determination of the question as to when an election may be said to have been conclusively made. Some of the authorities assert that any unequivocal act indicating the adoption of one remedy constitutes an election and precludes the abandonment of it and use of the alternative remedy although no benefit has been acquired or detriment done to the other party by the proceeding; for instance, that the filing of a suit in assertion of one remedy constitutes a conclusive election though the suit may be dismissed. R. O. L. vol. 9, p. 961; Register v. Carmichael, 169 Ala. 588, 53 South. 799, 34 L. R. A. (N. S.) 310, and notes. A collection of authorities will be found in the note to Register v. Carmichael, 169 Ala. 588, 53 South. 799, in 34 L. R. A. (N. S.) 309, and the conclusion reached that the weight of authority supports the rule announced by the court in the decision of that case, to the effect that “an election, to be conclusive, must be efficacious to some extent at least. The mere bringing of a suit is not determinative of the right. The party against whom the estoppel is pleaded must have received some benefit under his election.” The commentator suggests this addition to the rule as announced, “or have caused some detri ment to the other party.” Of course this rule is to be taken with the further limitation that the remedy first adopted has not been pursued to an ultimate conclusion, demonstrating that the right itself does not exist. In the text of R. C. L. vol. 9, p. 961, following the statement of the strict rule first above announced, it is said that “the more reasonable rule is that the mere bringing of an action which has been dismissed before judgment, in which no element of estoppel in pais lias arisen — that is where no advantage has "been gained or no detriment had been occasioned — is not an election.” These rules thus announced appear to us to be the most reasonable, and the following decisions of our courts evidence the tendency to follow the more liberal rule: Brodkey v. Lesser, 157 S. W. 458; Openshaw v. Dean, 125 S. W. 990; Stone Cattle Co. v. Boone, 73 Tex. 548, 11 S. W. 544. In this case appellee, Powell, gained no benefit whatever from his attempt to sell the property at trustee's sale. All acts done in this attempt were annulled and he was made to pay the expenses of the litigation adjudicating this result. The defendants have suffered no legal detriment; their rights in reference to the plaintiff’s claim were in no nanner affected by the void proceedings in the attempted trustee’s sale. The expenses incurred in the suit brought to set aside the said void sale would be of no benefit whatever in defending against a proper exercise of appellee’s rights. Those expenses were incurred in adjudicating the fact that the attempt to pursue the remedy by trustee’s sale was of no efficacy whatever. When that fact was judicially announced the parties ought to be placed in the position they occupied before said void acts were taken, with such compensation as the law might allow the defendants for the wrongful attempt made to sell the land. The law, by taxing the costs of the suit in that case against Powell, compensated appellants as far as it recognized they were legally damaged. The void sale, and the suit ascertaining that it was void, in no manner affected the validity of the debt, nor the legality of appellee’s lien to secure its payment. Election is treated as an estoppel in pais. Bigelow on Es-toppel (6th Ed.) c. 20. Now, estoppel in pais, independent of contract, arises “from act or conduct which has induced a change of position in accordance with the real or apparent intention of the party against whom the estoppel is lodged.” There is no element of such estoppel in the facts pleaded. We therefore affirm the action of the lower court in sustaining the exception to defendant’s answer setting up this defense.

Appellee paid the sum of $22.56, state and county taxes, on the land for the year 1915, and the judgment of foreclosure included said amount in addition to the amount due on the vendor’s lien notes. No personal judgment was sought or obtained either on the indebtedness represented by the note or that due for taxes. The taxes were assessed against the land after the creation of the vendor’s lien, but prior to the acquisition of the land by the defendants. There is no question as to the validity of the tax assessment, but appellants contend that, although the mortgagee was compelled to pay the taxes to protect his lien, his right is personal against the mortgagor or his as-signee owning the land at the time of the assessment and he has no.lien on the land. We do not agree to this proposition. We are of the opinion that such mortgagee, so paying .the taxes, should be subrogated to the lien created by the tax assessment. Jones on Mortgages (6th Ed.) § 1080; R. C. L. vol. 19, p. 401, par. 180; Williams v. Hilton, 35 Me. 547, 58 Am. Dec. 729, and note. We do not think the cases cited by appellants (McCormick v. Edwards, 69 Tex. 106, 6 S. W. 32; Stone v. Tilley, 95 S. W. 718) sustain their pi-oposition. In the first case the taxes were paid by a volunteer who purchased at a void tax sale. In the second case the city had recovered a personal judgment against the mortgagor, which also foreclosed the city’s lien for taxes on the mortgaged property. The mortgagee paid the judgment and sought to issue execution thereon against property of the mortgagor other than that covered by the mortgage and included in the judgment for taxes. This, it was held, he could not do. The mortgagee’s attitude was held analogous to that of a surety compelled to pay the debt of his principal. The debt itself is discharged, and the surety’s remedy is on the implied promise of reimbursement. His subrogation is not to the debt, but merely its securities. So that it was simply held that the judgment was discharged, and would not form the basis of the issuance of execution on other property. It was not held that the mortgagor would not be sub-rogated to the tax lien on the land, but that, the mortgagee “Lacey’s mortgage having exhausted the property upon which said tax judgment was a lien, there were no securities for him to be subrogated to under said judgment.” It will .be thus seen that this case recognizes that the mortgagee might be subrogated to the tax lien on the land covered by his mortgage. Affirmed.

HUFF, O. J., not sitting, being absent in Austin, serving on Committee of Judges.

On Motion for Rehearing.

BOYCE, J.

There is, we think, an obvious distinction between this case and that of Bauman v. Jaffray, 86 Tex. 617, 26 S. W. 394, and Berry v. Godwin, 188 S. W. 30, cited by appellant in his motion for rehearing, as being in conflict with our decision. In the first case a creditor who had not accepted under a mortgage conveying property to a trustee for his benefit attached the property; he subsequently dismissed the attachment suit, and sought to accept under the mortgage, which was resisted. Such creditor, without acceptance of the mortgage, had no lien; he could accept or reject the contract thus tendered for his benefit. A rejection of the offer put an end to it, unless renewed by mutual consent of all parties affected. It was held that the levy of the attachment was equivalent to a rejection of the mortgage. Hiere was, therefore, no lien, or offer of lien, in the attaching creditor’s favor. Having rejected the mortgage, he could not thereafter withdraw his rejection without the consent of those interested. In Berry v. Godwin, 188 S. W. 30, it was held, in effect, that a suit for partition by the plaintiff amounted to an abandonment of plaintiff’s homestead rights in the property sought to be partitioned. Upon such abandonment, however indicated, certain rights of other persons attached to the property. The plaintiff in the partition suit could not thereafter withdraw the same, and thus defeat rights that had attached upon the institution of the suit. It will thus he seen that neither of 'the eases present a case of election of remedies. In the first case the action destroyed the lien itself, or rather precluded its existence, and in the second it created rights in favor of third persons which attached upon the taking of the action. Here the lien itself was in no wise affected by the ineffectual attempt to foreclose it in a particular manner.

We think our findings sufficiently cover the facts necessary to he found in a proper consideration of the case, and therefore overrule appellant’s motion for rehearing and also his motion for additional findings.

HUFF, O. X, not sitting.
      <g^=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    DENMAN v. KAPLAN.
    (No. 305.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 6, 1918.
    Rehearing Denied Oct. 9, 1918.)
    1. Evidence <&wkey;444(0) — Parol Agreement-Note.
    In action on note for corporate stock, under defendant’s plea of failure of consideration court could not admit evidence showing contemporaneous parol agreement, contradictory of note, that defendant should not pay it, unless from commissions for selling stock.
    2. Evidence &wkey;>419(l) — Parol Evidence Affecting Writing — Consideration.
    Consideration recited in written contract can be explained or contradicted by parol, except where parol proof of consideration shows an entirely different contract.
    3. Evidence <&wkey;444(6) — Parol Evidence Affecting Writing — Consideration.
    Fact that statute requires all facts to be alleged and plea of failure of consideration to be verified does not change rule of evidence that parol evidence showing an entirely different contract, making payment of note conditional, is inadmissible.
    4. Bills and Notes &wkey;>485 — Title oe In-dorsee — Prima Facie Sufficiency of Assignment-Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 588, assignment of note by payee company by indorsement of secretary to plaintiff was sufficient to show title in plaintiff to note, sued on by him, no verified plea of non est factum being filed by defendant.
    5. Corporations <&wkey;642(2) — Foreign Corporation — “Doing Business” — Statute.
    Timber company which sold stock for note to its agent to sell stock, and transacted no other business in state, did not “do business” in state in violation of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1314.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Doing Business.]
    Appeal from District Court, Jefferson County; W. H. Davidson, Judge.
    Suit by A. Kaplan against T. F. Denman. Judgment for , plaintiff, and defendant appeals.
    Affirmed.
    E. E. Easterling, of Beaumont, for appellant. Sol Gordon, of Beaumont, and G. P. Dougherty, of Houston, for appellee.
   BROOKE, J.

This suit was filed in the Fifty-Eighth district court of Jefferson county on the 13th day of February, 1912, by A. Kaplan, as plaintiff, against T. F. Denman, as defendant, to recover upon a promissory note alleged to have been executed and delivered by the defendant to the Morse Timber Company, Dimited, on June 3, 1911, for the sum of $2400, and which was assigned by the Morse íimber Company, Dimited, to the plaintiff, A. Kaplan. The case was tried and judgment rendered for the plaintiff on April 18, 1917, and from th® judgment defendant has appealed to this court and assigned errors.

There are three questions involved in this ' appeal, viz.: (1) Was the sale of the 30 shares of stock by the Morse Timber Company, Limited, to T. F. Denman, and the taking of the note as consideration therefor, the “doing of business” within the purview of articles 1314 and 1318? (2) Was the assignment of the note by the Morse Timber Company, Dimited, to the plaintiff, Kaplan, sufficient, prima facie, to show title to the note sued on? (3) Did the trial court err in excluding the evidence offered by defendant which he contends shows failure of consideration for the note sued on?

The first assignment of error complains that the court erred in excluding the evidence of defendant, T. F. Denman, because same varied the written contract sued upon, which was objected to by defendant.

The contention is made that a written contract, complete and unambiguous of itself, cannot be added to, altered, varied, or changed by .evidence of a contemporaneous parol agreement between the parties, in the absence of allegations and proof of fraud, accident, or mistake. It seems that the defendant pleaded as a defense to the suit on the note, and so testified on the trial of the case, that the consideration for the note sued on was 30 shares of the capital stock of the Morse Timber Company, Limited, which was issued and delivered to him at the time of the execution and delivery of the note, but that at the same time, and as a part of the same transaction, the defendant was employed as agent to sell stock of the Morse Timber Company at Beaumont, and that it was agreed by and between the defendant and the Morse Timber Company at tbe time of tbe execution of tbe note that tbe defendant was to pay tbe note from or with commissions on tbe sales of stock of tbe Morse Timber Company, and that in tbe event tbe defendant was unable to sell sufficient amount of tbe stock to enable tbe defendant to pay tbe note from his commissions, tbe note was not to be paid, and tbe 30 shares of stock were to be returned to tbe Morse Timber Company, and tbe note sued on was to be canceled and returned to tbe defendant.

Tbe view we take of this matter is that there was no error in tbe action of tbe lower court in bolding that tbe written contract could not be altered or varied by evidence of a contemporaneous parol agreement between tbe parties in this case. Tbe rule of evidence is elementary. It appears to this court that appellant undertakes to escape tbe operation of tbe rule by confusing tbe application of it with bis plea of failure of consideration, and in our opinion, where a plea of failure of consideration is made under such plea, we do not think the' court would be authorized to admit evidence showing, not a failure of consideration, but a contemporaneous parol agreement entirely different and contradictory of tbe written contract. If appellant’s pleading in fact raises tbe issue of failure of consideration, be failed to offer any proof to substantiate tbe plea, and rather attempted under tbe plea to introduce evidence varying tbe terms of tbe written contract by a contemporaneous parol agreement different from and contradictory of tbe written contract, tbe consideration of which be claimed bad failed. We are of opinion that it is well settled in this state that tbe consideration recited in a written contract can be explained or contradicted by parol, except in cases where parol proof of consideration shows an entirely different contract from that shown by tbe writing.

Tbe evidence in this case shows mat tbe consideration for the note sued on was 30 shares of stock of tbe Morse Timber Company, and the further agreement that upon a certain contingency tbe note should not be paid, and that the note should be canceled and surrendered and tbe stock returned to tbe timber company. This shows an entirely different contract from that evidenced by tbe note, and is contradictory of its terms. Tbe fact that tbe statute required all of tbe facts to be alleged, and a plea of failure of consideration to be verified, does not change tbe rule of evidence, and it was never intended that it should. This statute merely requires tbe defendant to comply with it as preliminary to offering such proof as should be admitted under tbe settled rules of evidence. Judge Stayton, in Dolson v. De Ganabl, 70 Tex. 622, 8 S. W. 321, says:

“In view of the further disposition of tbe case, we deem it proper to say that the note sued on evidences the contract of the parties, and under the pleadings all evidence as to parol contemporaneous agreements between the appellant and the deceased affecting tbe contract evidenced by the note, and tending to vary or contradict it, should be excluded. The note fixes the obligation of the appellant to pay, and bis pleadings leave open to him only the defense that, it was executed without consideration.”

Tbe note sued on in tbe instant case was an absolute promise to pay. Tbe consideration for tbe note was 30 shares of stock of tbe Morse Timber Company. The note was executed and delivered. Tbe stock was issued and delivered. Tbe contract was completed and-executed as between tbe parties. Tbe evidence offered by tbe defendant and excluded by the trial court does not show, nor does it even tend to show, that tbe note sued on was without consideration, or that tbe consideration bad failed^ but attempts to show that there was a contemporaneous pa-rol agreement between tbe parties to tbe note, to tbe effect upon certain contingencies that might or might not thereafter occur tbe note should not be paid, tbe consideration returned, and tbe entire transaction canceled and held for naught. This does not show a want of consideration, as the 30 shares of stock may have a greater present value than at the time of tbe execution of tbe note. This evidence merely shows a contemporaneous parol agreement between tbe parties to tbe effect that upon contingencies that might thereafter occur the entire contract was to be rescinded. This does not touch tbe question of consideration. This is not the case of a note executed with a parol agreement between tbe parties that tbe note is not to become a contract until and unless a certain event occurred, and where it is shown that tbe event did not occur.

In this case, tbe note was executed and delivered to tbe payee as a complete contract, and tbe payee bad power to sell or otherwise dispose of tbe note, and in fact did sell and assign tbe note. Tbe payee in, the note issued and delivered to tbe maker of tbe note a certificate for 30 shares of stock. The maker of tbe note bad this stock in his possession with power to sell and dispose of tbe same, and tbe written contract took effect and went into operation between tbe parties with the condition or contingency resting entirely in parol that tbe entire contract was to be rescinded, tbe consideration restored, and tbe note canceled, if a certain event came to pass. In tbe case of Life Ins. Co. v. Allen, 170 S. W. 131, decided by the Et. 'Worth Court of Civil Appeals, an agent of the insurance company agreed with Allen at tbe time of taking Allen’s note for tbe premium on a life insurance policy that if be (Allen) would assist tbe agent in procuring other insurance, he (Allen) would never be called upon to pay the note. The insurance company sued Allen on tbe note. Allen defended the suit and set up tbe contemporaneous parol agreement, and also offered to prove that be bad assisted tbe agent in procuring other insurance, and that he was therefore not liable on the note. The court held that this evidence was not admissible to defeat liability on the note.

Without going further into the matter, we are of opinion that there was no error in the action of the court in this matter, and therefore this assignment must be overruled.

Article 588, Vernon’s Say les’ Texas Civil Statutes 1914, provides as follows:

“When a suit shall be; instituted by an as-signee or indorsee of any written instrument, the assignment or indorsement thereof shall be regarded as fully proved, unless the defendant shall deny in his plea that the same is genuine, and moreover shall die with the papers in the cause, an affidavit stating that he has good cause to believe, and verily does believe, that such assignment or indorsement is forged.”

The plaintiff in his petition alleged in general terms the execution of the note by the defendant, and that the same had been transferred and indorsed by the Morse Timber Company, Limited, to the plaintiff. On the trial the plaintiff offered in evidence the original note sued on, and on the bach of the note was the following indorsement: “Morse Timber Co., Ltd., by Frank: C. Labit, Sec’y.” No plea of non est factum was filed. The defendant’s answer was verified, but it does not attach the validity of the assignment of the note. In the case of Grounds v. Sloan, 73 Tex. 662, 11 S. W. 898, the court, in speah-ing of this identical statute, says:

“Clearly this statute intends to give an as-signee of a written instrument the right to recover upon it without other proof than the production of the indorsed instrument unless its genuineness is denied specially in the answer, supported by an affidavit. Without such plea and affidavit evidence contesting the validity of the assignment should not be heard. Even if evidence to the effect that the assignment for any cause is invalid or incomplete should be admitted, in the absence of the plea prescribed by the statute, it would go for nothing. A valid judgment cannot be rendered on evidence unsupported by a proper pleading. Without the prescribed plea the language of the statute is that the assignment ‘shall be regarded as fully proved.’ This includes delivery and everything else' required to give the assignment legal effect. The statute would be of very little value to the assignee if it left it necessary for him to bring proof of the actual delivery of the assigned instrument or left that fact open to attack under a general denial.”

Thus is disposed of the second proposition arising^in this case. The third is:

“In order for a foreign corporation to violate article 1314 of the Texas statute, the corporation must transact the business which the corporation was organized and authorized to do under the terms of its charter, and the selling of its own stock in Texas by a foreign corporation does not violate this statute.”

The undisputed proof shows that the Morse Timber Company sold to Denman 30 shares of its own stock, and that the business transacted by Denman as agent for such company was the sale of its stock, and that it transacted no other kind of business in Texas. In the ease of Security Co. v. Panhandle National Bank, 93 Tex. 575, 57 S. W. 22, Chief Justice Gaines used the following language:

“ ‘Article 745. Hereafter any corporation for pecuniary profit, except as hereinafter provided, organized or created under the laws of any other state, * * * desiring to transact business in this state * * * shall be and the same are hereby required to file with the secretary of state a duly certified copy of its articles of incorporation, and thereupon the secretary of state shall issue to such corporation a permit to transact business in this state.’ * * *
“ ‘Article 746. No such corporation can maintain any suit or action, either legal or equitable, in any of the courts of this state upon any demand, whether arising out of contract or tort, unless at the time such contract was made or tort committed, the corporation had filed its articles of incorporation under the provisions of this chapter.’ * * *
“The inquiry which first presents itself to our minds is, Has the plaintiff in error done business in this state within the meaning of article 745? The plaintiff in error did not make the original loan. Its first connection with the transaction was the purchase of the bond which had been given by the Wichita Roller Mill Company to the loan and trust company, and the un-controverted facts show that this transaction was effected in the state of Connecticut by an agent of the latter dealing directly with the plaintiff in error. Very clearly this was not a Texas transaction. The business was done in another state. When, however, the obligation had matured, the plaintiff in error brought suit and obtained a judgment upon it in this state. In the adjustment of its demand, it then entered into a negotiation which resulted in the extension of the debt and the execution of the new security out of which the present controversy arose. The purpose of the statute was probably twofold: One to protect the people of the state from irresponsible foreign corporations by affording the means by which they could readily ascertain such information in reference to them as is ordinarily afforded by their charters; the other to place them upon the same footing as like domestic corporations by requiring them to pay a like fee for a permit to do business, as is required of a domestic company for filing its charter. See Rev. Stats, art. 2439. It is to be presumed, therefore, that the business had in view, in making the requirement, was the ordinary business of the company — the business it was organized to pursue and which its charter empowered it to pursue. Had it been intended to prohibit a foreign corporation from collecting, extending, adjusting, or bringing suit for a debt contracted elsewhere, it would have been easy to have made that intention plain. If it was the purpose of article 745 to deny the corporation the comity which is usually extended throughout the states of the Union of bringing suits in the courts of this state, article 746 was wholly unnecessary. On the other hand, that article shows that such was not the purpose. It in effect merely denies the right of a foreign corporation to bring suit upon any cause of action arising after it had done business in the state without a permit, thus showing that it was regarded that bringing a suit in court was not doing business within the purview of article 745. If bringing suit to collect a debt be not doing business within the meaning of the provision in question, how can the adjustment of a debt be such business? The case of Sullivan v. Sheehan [C. C.] 89 Federal Reporter, 247, was very similar to this both in its facts and as to the law of Minnesota, which was there under construction. In that case the court say: ‘The Minnesota statutes referred to by counsel, providing for the conditions upon which foreign building and loan associations may transact business in this state, and prohibiting under penalties the transaction of business by such foreign corporations unless those conditions have been complied with, I think necessarily refers to the ordinary business of such associations. Without complying with those conditions, such foreign corporation would not have the right, by its officers _ or agents, to come into this state, and there solicit subscriptions for its stock or solicit loans. The same rule applies to any foreign insurance company where similar conditions are required to be complied with before it shall do business in this state; and the business referred to is its ordinary business of insurance. But companies of either of these kinds, if not transacting their ordinary business in this state, and not privileged to transact their ordinary business in this state, not having complied with the conditions of the Minnesota statutes, would not be prohibited, by any proper interpretation of such statute, from investing in the bonds of the state, or of municipal or other corporations of the state, nor from enforcing such bonds. The prohibition of the statute is only against transacting their ordinary peculiar business in this state so long as the statutory conditions are not complied with. The principal question in the case is whether the Chicago association, in contravention of the statute of Minnesota, did business within this state in obtaining the obligations in suit; whether the notes and mortgages in this case were obtained from citizens of this state, by an officer or agent of that company coming into this state, and doing business here; or whether this business was transacted in Chicago, by citizens of Minnesota, who went there to transact the business. I apprehend that the penalties which are denounced by statute against these companies in case they do business with residents of this state apply only to cases where such business is done within the state. Such a statute cannot possibly have an extraterritorial effect, so as to prevent a company of that kind, located in Chicago, from transacting business lawfully with a resident of Minnesota who should go to Chicago and transact business there. There is nothing in that statute' that would prevent such a resident of Minnesota from going to Chicago, and there applying and subscribing for and acquiring stock of an association of this kind, and there obtaining, if he could, a loan from a corporation of this kind. I think there is nothing in this statute preventing him from there giving security upon property situated in Minnesota to secure such a loan. The prohibition is aimed at such companies as, by their officers or agents, come into the state of Minnesota — within the territorial limits of the state — to solicit and transact business, and cannot affect business which they perform outside of the state, where they have a right to transact business, merely because such business is transacted with a resident of the state of Minnesota.’
“Several of our states have statutes upon the subject of foreign corporations very like our own. The decisions construing these laws are apparently in conflict; but they are probably reconcilable upon the ground that the language of the several statutes is variant and therefore admits of different constructions. For example, in some states the prohibition is against ‘doing business,’ or, more strongly, ‘doing any business,’ while in others it is against ‘carrying on business.’ It would serve no useful purpose to discuss these decisions here, for the reason that the question whether one transaction constitutes ‘doing business’ within the meaning of our statute is not a question which it is necessary to determine in this case. Onr opinion is that the plaintiff in error, by coming into the state to adjust and collect its demand, violated no law which placed it out of the pale of that comity, which, in the absence of a statute, permits a foreign corporation to sue in the courts of this state, and that the Court of Civil Appeals erred in reversing the judgment upon that ground.”

See Western Sup. & Mort. Co. v. U. S., 41 Tex. Civ. App. 350, 92 S. W. 989; Commercial Telephone Co. v. Territorial Bank, 38 Tex. Civ. App. 192, 86 S. W. 69; Liquid Carbonic Acid Mfg. Co. v. Lewis, 32 Tex. Civ. App. 481, 75 S. W. 47; Ryan Lbr. Co. v. Ball, 177 S. W. 226; First National Bank v. Leeper, 121 Mo. App. 688, 97 S. W. 636; Wildwood Pavilion Co. v. Hamilton, 15 Pa. Super. Ct. 389; Galena Mining & Smelting Co. v. Frazier, 20 Pa. Super. Ct. 394; Sullivan v. Sheehan (C. C.) 89 Fed. 247; General Conf. Co. v. Berky, 156 Cal. 466, 105 Pac. 411.

Therefore, in view of the undisputed proof that the Morse Timber Company, Rimited, only sold to Denman 30 shares of its own stock, and that the business transacted by Denman as agent for such company was the sale of its stock, and that it transacted no other kind of business in Texas, we are of opinion that it was not in violation of article 1314 of the Texas statute.

Having considered all the matters complained of, we overrule all the assignments, and the action of trial court is in all things affirmed.
      <g=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BOYCE, J.

text:
    THE HOMESTEADERS v. STAPP.
    (No. 1291.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 26, 1918.
    Rehearing Denied Oct. 9, 1918.)
    1. Insurance <@=>819(2) — Fraternal Beneficiary Association — Health of Insured-Evidence.
    In suit on benefit certificate, held, on the evidence, that insured, who stated in her application as a warranty that she was in robust health and free from disease, was not then suffering from pellagra.
    2. Insurance <@=>723(6) — Fraternal Beneficiary Association — Question as to Health — Construction.
    A question in application, “Have you consulted or been under the care of a physician, any time within the past ten years? (explain fully giving cause of illness, dates and names and address of all physicians consulted),” required applicant to answer only as to consultation for illness.
    3. Insurance <@=>723(6) — Fraternal Beneficiary Association — Health of Insured—
    ■ “Illness.”
    Under question in application for benefit certificate as to whether applicant had been under consultation or care of a physician for any illness, sunburn resulting in peeling of skin was not an “illness”; that meaning more than a temporary and trivial indisposition not substantially impairing the! health (citing Words and Phrases, Second Series, Illness).
    4. Insurance <@=>819(2) — Fraternal Beneficiary Association — Answer as to Applicant’s Health — Question for Jury.
    Evidence, in suit on benefit certificate, held not sufficient to justify peremptory instruction for defendant on theory that applicant’s answer to question whether she had been under care of physician within ten years, and as to cause of illness, physician consulted, etc., was false.
    5. Insurance <@=>825(2) — Fraternal Beneficiary Association — Statements in Application — Truth—Waiver or Estoppel.
    Evidence, in action on benefit certificate, held to present a question of fact as to waiver or es-toppel against a defense based on falsity of statement in application as to health by reason of medical examiner’s approval of, and local agent’s acceptance and forwarding of application.
    6. Insurance <@=>825(21 — Fraternal Beneficiary Association — Statements in Application-Good Faith — Evidence.
    Evidence, in suit on benefit certificate, held to make a question of fact as to whether applicant in answering question as to her health and consultation with physician did so in good faith. -
    7. Insurance <@=>724(1) — Fraternal Beneficiary Association — Knowledge of Agent —Imputation to Insurer.
    Knowledge acquired by an association’s medical examiner and local agent in the discharge of their duty in connection with the application, and in reporting it to insurer for its information before its final action on application, was to be imputed to insurer.
    8. Insurance <@=>724(3) — Fraternal Beneficiary Association — Knowledge of Agent —Estoppel.
    If both insured and insurer’s examiner and agent knew of falsity of statement in application and insured was not acting in good faith, and'if agent acted in collusion with insured, the insured could not claim benefit of an estoppel on account of agent’s knowledge.
    9. Appeal and Error <@=>1151(2) — Determination of Cause — Modification of Judgment — Interest.
    In suit on benefit certificate, where there was no pleading of any contract or facts authorizing entry of judgment bearing interest at 10 per cent, from its date, it would be reformed on appeal to bear 6 per cent, interest from its date and affirmed.
    10. Appeal and Error <@=733 — Assignment of Error — Judgment—Exoessiveness.
    An assignment that a judgment is excessive is, in so far as excessivenoss is concerned, too general to require consideration.
    11. Appeal and Error <@=719(8) — Assignments of Error — Judgment—Fundamental Error.
    Though an assignment that a judgment is excessive is too general to require consideration, yet, where a judgment includes 10 per cent, interest without any authority therefor, the error is fundamental.
    Error from District Court, Hunt County; Wm. Pierson, Judge.
    Suit by Hubbard R. Stapp against The Homesteaders. Judgment for plaintiff, and defendant brings error.
    Judgment reformed and affirmed.
    Locke & Locke, of Dallas, and Dinsmore, McMahan & Dinsmore, of Greenville, for plaintiff in error. H. L. Carpenter, of Green-ville, and W. E. Sayle, of Commerce, for defendant in error.
   BOYCE, J.

This suit was brought by1 Hubbard R. Stapp against The Homesteaders, a fraternal organization, on a benefit certificate issued by such organization in Stapp’s favor on the life of his wife. Defendant answered that certain statements, in the nature of warranties, made by the insured in her application for insurance, were untrue, and that the certificate was for this reason not enforceable. The statements referred to were in the form of answers to certain questions propounded to the insured in the application, as follows: “First Are you.in strong, robust health and free from disease? Answer: Yes.” This question was followed by a number of other questions, many of which were inquiries as to whether the insured had ever had any specifically named disease, following which question No. 6 was propounded, thus:

“Have you consulted or been under the care of a physician any time within the past ten years? (Explain fully giving cause of illness, dates and names and address of all physicians consulted.)”

This question was answered, “No,” and immediately following the question and space for the answer the following appeared in the application:

“If any of the above have been answered ‘Yes,’ explain fully in the following form:

It is conceded that these statements became warranties, and it will not be necessary to set out further provisions of the application and certificate which give them this effect. The plaintiff in error claims that the answers to each of said questions were untrue, in that: Eirst, Mrs. Stapp was, at the time of the application and delivery of the policy, affected with pellagra, a dangerous and fatal disease from which she died within one month from the application; second, that on the day prior to the date of Mrs. Stapp’s signing the application she had consulted with a physician, who prescribed for her. These allegations were denied by the plaintiff, who pleaded furthetr in answer thereto that, if they were true the facts were fully known to defendant’s agents, accepting the application and delivering the policy, and that any defense on account of the falsity of of such statements was thereby waived.

There are only two assignments; one complaining of the refusal of the court to give a peremptory instruction for the defendant; the other asserting that the judgment is excessive. A brief recital of the facts will be sufficient to ascertain whether they are such as that there was any issue upon which liability on the policy could be based. It appears .that on the date of the application, June 9, 1915, Mrs. Stapp, insured, was apparently in good health and physical condition. She was a woman of light complexion and sensitive, tender skin. On the day before the application for insurance was made, she was in a drug store at her home town and casually met and engaged in friendly conversation with Dr. Wheeler, her family physician. In the course of this conversation, she called his attention to the condition of the exposed portions of her arm and neck, which appeared to be sunburned, that is, in a “scaly” condition, with the top skin peeling off in places. In the course of this conversation, Mrs. Stapp told the doctor that on exposure to the sun she had sunburned in this way for several years. This condition, so the doctor says, was not unusual for one of a tender, sensitive skin; but he became suspicious that she had pellagra. It appears from his testimony that exposure to the sun of one suffering with pellagra results in such condition of the- skin, which appears to be very much like the ordinary sunburn, but will result much more easily from exposure where such person has pellagra than otherwise. The doctor gave her an ointment which was the usual prescription for sunburn, and also gave her an arsenic preparation, to be taken internally, which he said was a treatment for pellagra, as well as many skin diseases. He did not tell Mrs. Stapp of his suspicions, but left her impression that her condition was merely the result of sunburn undisturbed. On the next day, Dr. Pratt, the medical examiner for the Homesteaders’ Order, called at Mrs. Stapp's home and made the medical examination for the insurance, taking her answers to the questions above stated, which she signed. He testified that he noticed her hands when she signed the application and thereupon questioned her securing the same history of her condition as had Dr. AVheeler. He also testified that during this conversation Mrs. Stapp told him that she had been under treatment of Dr. Wheeler and that she thought she had the pellagra, but the doctor would not tell her whether she had or not. He also testified that he. became convinced that she had pellagra and talked with Reeves, the local agent and deputy district manager of the organization, informing him of his conclusion; that he and Reeves talked to Dr. Wheeler about it, who informed them that he had been treating Mrs. Stapp for pellagra for a year and a half.

Notwithstanding these facts, the application for the insurance, approved by Dr. Pratt, and recommended by Reeves, was sent off by Reeves, the agent, and on this application the home office issued the certificate, returned it to Reeves, who delivered it to Mrs. Stapp. Dr. Pratt testified that he intended destroying the application and did not know it came into Reeves’ possession. Reeves testified that it was handed to him after the conversation mentioned, with some other applications, and he supposed that Dr. Pratt had become satisfied with the risk, and thus sent it in without further questioning. Dr. Pratt also testified that before the application was sent off he informed Stapp that his wife had pellagra, which was flatly contradicted by Stapp. The jury found, however, that there was no accident, mistake, or misunderstanding either on the part of Pratt or Reeves, in reference to the approval and sending off of said application, and that Dr. Pratt did not tell Stapp that his wife had Pellagra. Mrs. Stapp took an automobile trip with her husband on June 20th and was exposed during the day to the hot sun. Upon arriving at home late in the evening, she ate a quantity of ice cream and cake at a restaurant. She was taken sick that night and remained seriously ill until her death on July 7th. Dr. Wheeler attended her during this time and testified that the bowels were sloughing, resulting in perforation, from which she died. He further testified that this was the result of pellagra, and that she died of this disease. Dr. Morrow, plaintiff’s brother-in-law, who lived in another town some distance from plaintiff’s home, was called to see Mrs. Stapp before her death. He had known and seen her frequently during the several' years preceding her death. Pie testified that in his opinion she did not have pellagra. The defendant’s theory was that Mrs. Stapp had had pellagra for several years; that the trip in the sun and the ice cream supper brought on an acute attack, from which she died. Plaintiff’s theory, supported by evidence, was that Mrs. Stapp, on account of a very sensitive skin, was easily sunburned, and that her condition when Dr. Wheeler and Dr. Pratt saw her, prior to and at the time of signing of the application, was merely the result of a sunburn, caused by being out in an automobile and exposed to the sun a few days before; that her death was the result of the eating of the ice cream and excessive arsenic given in the treatment for pellagra.

It is unnecessary to go into further details. The evidence was, we think, such as that it would have been error for the court to have given the peremptory instruction on the theory that Mrs. Stapp died of pellagra, or that she had such disease at the time of signing the application for insurance. The jury found specifically that Mrs. Stapp was in sound and robust health on June 9th, and that she did not have pellagra. The result of this finding would lead to the conclusion that the condition existing at the time Mrs. Stapp talked with Dr. Wheeler in the drug store was merely the result of ordinary sunburn, and it remains to decide whether this transaction would come within the terms of the question with reference to consulting a physician, as we have stated them.

The authorities are quite generally agreed that an inquiry in an application for insurance as to past illness, diseases, and injuries, suffered by the insured, is not to be construed as embracing slight and trivial ailments and injuries, and these authorities are followed by our own decisions. North American Accident Ins. Co. v. Trenton, 99 S. W. 740, writ of error denied, 89 S. W. 276; Cyc. vol. 25, p. 813; note’ to 18 L. R. A. (N. S.) 362; R. O. D. vol. 14, page 251. As a counterpart of this holding, many authorities hold that:

“In determining what constitutes attendance by or consultation of a physician, consultation or attendance for slight temporary ailments need not be considered.” Cooley’s Briefs on Law of Insurance, p. 2163; Cyc. vol. 25, p. 816; Ruling Case Law, vol. 14, p. 1074; notes to 18 L. R. A. (N. S.) 362.

Other authorities, however, hold that a general statement as to consultation with a physician is breached though the consultation is for a trivial ailment or injury, leaving no permanent results and not affecting in any way the risk, and the tendency of the decisions of this state seems to be to follow the latter rule. Brock v. United Moderns, 36 Tex. Civ. App. 12, 81 S. W. 340; Security Mutual Life Ins. Co. v. Calvert, 39 Tex. Civ. App. 382, 87 S. W. 889; Flippen v. State Life Ins. Co., 30 Tex. Civ. App. 362, 70 S. W. 787. So that, if there were no limitations on the generality of the question as to the consultation in this case, a very serious question would be presented as to whether the facts would not show a breach of this warranty. It is recognized, however, that the effect of nondisclosure is dependent somewhat on the form of the question. Cooley, p. 2165; Brock v. United Moderns, supra. In the Brock Case, the applicant for insurance had consulted with and been advised by a physician frequently, with reference to granulated eyelids, within the period of time covered by the questions in the application. One of the questions propounded was, “Have you consulted or been advised by any physician regarding your health within the last five years?” The court expressed some doubt as to whether “the ailment of granulated eyelids is one that would be regarded as affecting the health” ; but, in answer to a subsequent question, the applicant stated that he had never been “under the care of a physician,” and it was held that the warranty based on the answer to this question was breached under the facts, as already stated. While the question put in this case is general, it is followed by a specific statémént as to how the answer shall be made, in that the applicant is told to “explain fully, giving cause of illness, etc.” The general question would literally embrace consultations, not only as to all trivial matters concerning the applicant’s own physical condition, but as to the health of other members of the family.

So, naturally, without any particularization of the question itself, any reasonable mind would limit the question, at least to consultations for the personal benefit of the applicant, and many respectable authorities go further than this and hold, as we have noted above, that the inquiry is not to be construed as affecting consultations as to trivial ailments that can have no possible effect on the risk. But whether the courts are justified in making such a limitation upon the generality of the question without anything in the policy itself to suggest a limitation, we need not decide. The inquiry here does suggest the limitation, and, reading the question with its direction as to the answer, the applicant could fairly construe it to read, “Have you consulted or been under the care of a physician any time within the past ten years for any illness?” Now, ordinary sunburn, merely resulting in the peeling off of some of the skin of the exposed portions of the arms and neck, could hardly be said to be an illness. “Illness clearly means something more than a temporary indisposition, slight and trivial in its nature, and which does not really affect the soundness of the system, substantially impair the health, materially weaken the vigor of the constitution, or seriously derange the vital functions.” Metropolitan Life Ins. Co. v. Brubaker, 78 Kan. 150, 96 Pac. 64, 18 L. R. A. (N. S.) 362, 130 Am. St. Rep. 356, 16 Ann. Cas. 267; Words and Phrases (Second Series) p. 938. Sunburn might possibly be an “injury”; but the application does not contemplate the use of the form in which the words “disease or injury,” are used, unless some of the preceding answers shall have been in the affirmative. The application provides that these questions are “to be answered by applicant and recorded by the medical examiner.” So that as this particular question No. 6 was put to the applicant it contained no reference to any injury. We conclude therefore that the evidence is not sufficient to have justified a peremptory instruction for the defendant on the theory that the answer to the sixth question, as before stated, was false.

We are also of the opinion that the evidence presented a question of fact as to waiver or estoppel that would have rendered improper the giving of a peremptory instruction. According to the testimony of Dr. -Pratt, the medical examiner, he ascertained from Mrs. Stapp, at the time of his examination and before the application was sent in, that “she had been taking medicine from Dr. Wheeler”; that he confirmed this information by inquiry of Dr. Wheeler. The evidence will also justify the conclusion that Reeves knew of these facts. Now, it is unquestioned that if the insurer, with knowledge of facts which render the policy voidable, proceeds with the contract and accepts the insured’s payments of insurance premiums, he is estopped from, setting up such facts in avoidance of liabilityr It is not contended that any agents of the home office had any knowledge of these facts, and the inquiry is narrowed down to the ascertainment of whether the knowledge of the medical examiner, Pratt, and the district manager, Reeves, is to be regarded as that of the appellant. The appointment of the medical examiner was made by the Supreme Medical Director, and not by the local organization. Reeves was local secretary, elected by the local organization, and was also district manager; the latter position being held under appointment by the Supreme President. The district manager organized subordinate lodges, or “homesteads” as they were called, and solicited insurance. The medical examiner made examinations of the applicants for insurance secured by the district manager. The making out of the application was participated in by the district manager and by the medical examiner, and it was sent direct to the supreme medical director. If approved, the certificate was then sent to the local organization and delivered through it to the insured. Part I of the application contained certain data as to the age and residence of the insured, beneficiary, etc., was signed by the applicant and also by the district manager, Reeves, recommending the application. Part II of the application contained questions “to be propounded and recorded by medical examiner,” and which included the questions we have before referred to. This was also signed by the applicant and witnessed by the medical examiner. Part III of the application was the “confidential report of the examiner, to be written in ink, no third person allowed to be present.” This contained many questions as to the health and habits of the insured, and concluded with the following: “If you, yourself, were in the business, would you insure this applicant for life?” This question was answered in the affirmative and the certificate signed by the medical examiner, Pratt. There was still another blank left on the application with this heading: “This space for use of deputy or examiner for any additional information or remarks.” It seems that the duties of the district manager were the same as those of the deputy field manager referred to in this last quotation. This latter blank was filled in by a remark made by Reeves, not pertinent here.

It will be seen, therefore, that Reeves in soliciting the insurance and securing and sending in the application, with his recommendation, and Dr.' Pratt in making the examination and his own recommendation in connection with the application, were acting for the Grand Lodge and not tire local organization. We think that knowledge acquired by them while in the very discharge of their duties in connection with this application, and which it was their duty to report to the principal for its information in finally passing on the application, is to be imputed to the principal. National Fraternity v. Karnes, 24 Tex. Civ. App. 607, 60 S. W. 578, 579; Northwestern Life Insurance Co. v. Findley, 29 Tex. Civ. App. 494, 68 S. W. 695; note to 41 L. R. A. (N. S.) 506-515; R. C. L. vol. 14, p. 1161, par. 343; note to Ann. Cas. 1913A, 850-852; Cooley’s Briefs on Insurance, pp. 2524, 2528; Sovereign Camp, Woodmen of the World, 104 Ark. 538, 148 S. W. 526, 141 L. R. A. (N. S.) 517; Supreme Lodge v. Jones, 143 S. W. 251. Of course, if both the insured and the examiner, or solicitor, knew of the falsity of the statement, and the insured was not acting in good faith, the agent having forsaken his duty to his principal* and acted in collusion with its adversary in the trade, the adversary could not then claim the benefit of an es-toppel on account of the agent’s knowledge. Such was the case discussed in Centennial Mutual Life Ins. Co. v. Parham, 80 Tex. 518, 16 S. W. 316; Modern Woodmen v. Owens, 60 Tex. Civ. App. 398, 130 S. W. 863. But the evidence here is sufficient to have justified the conclusion by the jury that Mrs. Stapp was acting in entire good faith and supposed her answers to be true, and, if the answer that she had not consulted a physician, etc., was untrue, that the medical examiner, Dr. Pratt, and the district manager, Reeves, knew that she had consulted Dr. Wheeler for what Mrs, Stapp supposed to be sunburn, the jury could accept or reject all or any part of the testimony of the witnesses on this matter. The fact that the medical examiner and the district manager were not faithful to their duties to their principal, and failed to report the facts which it was their duty to report, would not avail the principal, unless this dereliction on the part of the agent was in some way participated in by the insured. We do not think the authorities cited by appellant are in conflict with our conclusion. In the case of Supreme Lodge v. Payne, 101 Tex. 440, 108 S. W. 1160, 15 L. R. A. (N. S.) 1277, the misrepresentation was as to a fact as to which both the insured and the examining physician were mistaken, so that there was no principle of estoppel necessarily involved. In many of the cases, such as Fitzmaurice v. Mutual Life Ins. Co. 84 Tex. 61, 19 S. W. 301, and Hutchinson v. Hartford Life Ins. Co., 39 S. W. 325, the contract expressly provided that “knowledge of the agent of the falsity of the answers should not estop the company,” etc. We hold therefore that the evidence is sufficient to present an issue of fact as to whether Mrs. Stapp, in' making the answer, did so in good faith, and whether, if there was any falsity in the answer as to having consulted or been under the care of a physician, which would make voidable the policy on account oil a breach of the warranty of the truth of such answer, such falsity was known to the examiner, Pratt, and District Manager Reeves. We further hold that in such case the knowledge of the field manager and examiner, and in particular that of the medical examiner, is to be imputed to the appellant, and that if, under such circumstances, the application was accepted and payment of the premium made, the appellant would be estopped from setting up such facts in avoidance of the certificate. Therefore a peremptory instruction would have been erroneous on account of this issue of fact presented by the pleadings and the evidence.

The judgment, in that it is made to bear interest at the rate of 10 per cent, per annum from the date of the rendition thereof, is in such respect erroneous. While the assignment that the judgment is excessive is too general to require the consideration of any question as to excessiveness, unless it be fundamental, we think that the judgment is in this respect fundamentally erroneous, since there is no pleading of any contract or other state of facts as would authorize the entry of such judgment. The second assignment is therefore sustained.

The judgment will be reformed and made to bear 6 per cent, interest per annum from date, and as so reformed will be affirmed.

HUFF, O. J., not sitting, being absent in Austin, serving with Committee' of Judges.
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