text:
    BUTLER v. FECHNER et al.
    (No. 5969.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 13, 1918.)
    1. Executors and Administrators @=234, 236 — Approval and Allowance oit Claim —Necessity.
    One having a claim against a decedent’s estate was charged with knowledge that the ad-ministratrix had no authority to pay the account unless it was allowed by her and approved by the court and paid in due course of administration.
    2. Executors and Administrators @=234— Allowance of Claims — Duties of Claimant.
    Where an administratrix did not promise plaintiffs that she would allow their. account against the estate nor lead them to believe that it had been allowed and the account was accessible to them, they were charged with knowledge that it had not been allowed, and it was incumbent on them to see that it was allowed as the law required.
    3. Executors and Administrators @=437(7) — Actions — Limitations — Allowance or Rejection of Claims.
    Rev. St. 1911, art. 3443, provides that, when a claim against a decedent’s estate is presented the executor or administrator shall indorse thereon, or annex thereto, a memorandum of his allowance or rejection thereof. Article 3444 provides that a failure to make the indorsement or attach the memorandum is equivalent to a rejection of the claim and shall authorize the claimant to sue as if the claim had been rejected. Article 3449 provides that when a claim is rejected the owner may sue within ninety days' and not thereafter. Held/ that, while an administratrix was doubtless entitled to a reasonable time in which to investigate a claim before allowing or rejecting it, and while the claimant might give her a reasonable time for such investigation, where she neither allowed nor rejected the claim, they were not justified in waiting over a year before taking any action.
    4. Executors and Administrators @=431(2) —Actions—Conditions Precedent — Rejection of Claim.
    If the failure of an administratrix to either allow or reject a claim presented to her, coupled with her promise that it would be paid, amounted to an allowance of the claim, the claimants had no cause of action on the claim; there being no rejection as a basis for the suit.
    5. Limitation of Actions @=143(5) — New Promise — Promise by Administratrix.
    A promise by an administratrix to pay a claim which had not then been presented to her for allowance or rejection and which was not so presented until limitations had run did not halt the running of limitations, as the claimants were charged with knowledge that she could not pay the claim as promised until it was allowed and approved, especially as Rev. St. 1911, art. 5705, requires a promise to pay, after an account is due, to be in writing in order to prevent the running of limitations.
    6. Attorney and Client @=77 — Scope of Authority — Promise to Pay Claim.
    An attorney for an administratrix could not and did not bind her by his statement to a claimant that he thought she would pay it when she got the money, and she was not thereby estopped from pleading limitations against the claim.
    Appeal from District Court, Karnes County; F. G. Chambliss, Judge.
    Action by R. H. Fechner and another against Mrs. Pearl Elder, administratrix of W. B. Elder, deceased, in which P. B. Butler, temporary administrator, was substituted as defendant on the death of the original defendant. From a judgment for plaintiffs, defendant appeals. Reversed and rendered.
    L. H. Browne, of San Antonio, for appellant. Lewright & Douglas, of San Antonio, for appellees.
   FLY, C. J.

R. H. Fechner and C. W. R. Zeppa filed suit against Mrs. Pearl Elder, surviving wife of W. B. Elder, deceased, and administratrix of his estate, for the sum of $1,008.38, which it was alleged became due and payable on July 15, 1910. In an amended petition the death of Mrs. Elder was shown, and P. B. Butler, temporary administrator of the estate of W. B. Elder, was made the defendant. It was alleged that W. B. Elder died on December 15, 1910, intestate, leaving an estate of the probable value of $10,000, being the community property of himself and Pearl Elder, his wife; that, besides his wife, an only child survived him; that on or about March 10, 1911, Pearl Elder qualified as administratrix of the estate; that at his death W. B. Elder was indebted to a certain firm, of which Fechner was a member, in the sum of $1,-008.38; that appellees afterwards bought the whole claim; that on or about June 1, 1911, the account was presented to the adminis-tratrix for approval; that she did not approve the account in writing, but stated that it would be paid, and requested appellees to deliver it to ber attorneys, which was done; that the attorneys filed the claim in the probate court, but it was not marked either approved or rejected; that afterwards the ad-ministratrix and her attorneys from time to time stated to appellees that the account would be paid, but that there was no money on hand with which to pay the account. Fraud was also alleged on the part of the administratrix in making the statements she did in order that the claim might become barred by limitation. Appellees also pleaded estoppel against the estate to plead limitations. It was also pleaded that the claim was rejected on March 1, 1913, and suit was filed on March 10, 1913. The administrator pleaded general and special exceptions, general denial, and limitation of two years. The cause was tried, without a jury, and judgment rendered in favor of appellees in the sum of $1,008.38, with 6 per cent, interest from January 1, 1911.

It was pleaded and proved that the claim was presented to the administratrix on or about June 1, 1911, but it was neither approved nor rejected by her in writing, although she stated that it would be paid. She did not reject the account in writing until March 1, 1913, and suit was filed on March 10, 1913.

It is provided in article 3443, Revised Statutes, that when any claim for money against an estate, properly authenticated, is pfie-sented to the executor or administrator, he shall indorse thereon or annex thereto a memorandum in writing, signed by him, stating time of presentation and his allowance or rejection of the same, in part or in whole. In article 3444 a failure to give the indorsement or attach the memorandum is made “equivalent to a rejection of the claim, and shall authorize the claimant to bring a suit for the establishment thereof in like manner as if such claim had been so rejected.” Provision is also made for the punishment of an executor or administrator who fails to allow or reject a claim. Again, in article 3449, it is provided that, when a claim against an estate is rejected, in whole or in part, the owner of such claim “may, within ninety days after such rejection, and not thereafter, bring a suit against the executor or administrator for the establishment thereof in any court having jurisdiction of the same.”

The claim was presented to the adminis-tratrix more than 20 months before she indorsed her rejection on the same and before this suit was instituted. In addition to this, the account had been due for more than 2 years before the suit was filed.

Unless the promise of the administratrix stopped the running of the statute, and destroyed the provision of the statute that a failure to allow or reject a clairh was equivalent to a rejection, the claim was rejected about 20 months before the suit was filed, and the claim was at that time extinguished, without the necessity of the answer of the administratrix setting up the defense. Loan & Trust Co. v. Fly, 29 Tex. Civ. App. 533, 69 S. W. 232; Whitmire v. Powell, 117 S. W. 439.

There is in this case no evidence of fraud upon the part of the administratrix. She claimed either that the whole account or portions thereof had been paid and appellees knew of this claim. They were charged with the knowledge that she had no authority to pay the account unless it was allowed by her and approved by the court and paid in due course of administration. She did •not promise appellees that she would allow the account nor lead them to believe it had been allowed. The account was accessible to them, and they were charged with the knowledge that it had not been allowed. It was incumbent on them to see that the account had been allowed as the law directs that if should be. Fechner made no effort to have the claim allowed; all his energy seemingly being directed to collecting the amount with out allowance and approval.

No doubt under the statute the administrator or executor would be entitled to a reasonable time in which to investigate a claim before allowing or rejecting it, and in some instances it might become a question of fact as to what was a reasonable time for such investigation, but no such question can arise where a claim is not allowed in over a year. In this ease the right of action was absolutely within appellees’ control, for the statute gave them the right to sue on the claim when the administratrix, upon its presentation, failed to allow or reject it. If she was investigating the claim, she had only a reasonable time in which to make the investigation, and while appellees might have given her any reasonable time for such investigation, it cannot be held that they would be justified in waiting for over a year before taking any action. As said in 25 Cyc. 1198:

“Where, although the cause of action itself has accrued, some preliminary step is required before a resort can be had to the remedy, the condition referring merely to the remedy and not to the right, the cause will be barred if not brought within the statutory time; therefore the preliminary step must be taken within that period.”

Appellees allege that the account was presented to the administratrix on June 1, 1911, but there is no allegation that it was either allowed or rejected; the only allegation being that she promised to pay the account. They also allege that the administratrix was holding the matter in abeyance to seek advice as to whether the claim should be allowed or not, from June 1, 1911, to March 1, 1913, and yet appellees took no action. The statute herein cited is positive and unequivocal:

■That when an administrator “shall fail to indorse thereon, or annex thereto, a memorandum in writing, as required by the last preceding article, such failure shall be deemed equivalent to a rejection of the 'claim, and shall authorize the claimant to bring a suit for the establishment thereof in like manner as if such claim had been so rejected.”

The claim, when presented to the adminis-tratrix in this case, and not allowed by her, could have been sued on by appellees, and it cannot be reasonably contended that the suit could have been successfully defended on the ground that the administratrix wanted to investigate the account and promised to pay it, and therefore the suit had been prematurely or illegally instituted. The answer would be that the statute made the failure to write an allowance or refusal on the claim was a re-: jection. The law is imperative that when a claim is rejected, whether in terms or by a failure to act, the owner can sue on the claim “within ninety days after such rejection and not thereafter.” It will be noted that no exceptions are made in the law, and nothing to indicate that representations made by the executor or administrator would justify the claimant in not instituting his suit until long after the statutory time in which to sue had expired. The court is asked to create an exception not made by the statute. Danzey v. Swinney, 7 Tex. 617.

In the case last cited the court held that, even though a claim is allowed, yet if it is not presented to the probate court for its action within three months, the action will be barred, and gives strong reason why promptness in disposing of claims is essential. In this case appellees claim that the actions of the administratrix amounted to an allowance by her, and, if so, they have no cause of action, because there was no rejection of the claim, the only basis for the suit.

In this case the evidence clearjy shows that the claim was not allowed because the administratrix thought it had been paid in whole or in part, and that amounted to a rejection of the claim and time began at once to run against it. Willis v. Talbert (Sup.) 11 S. W. 535. Appellees knew that the ad-ministratrix was not satisfied with the justice of the claim; they knew that she was seeking advice about it, and that she had never placed her allowance of the claim in writing. She asked Fechner if he yvouid not reduce the account, and consequently he must have known it had not been allowed. Fechner admitted that Mrs. Elder told him that “she was entitled to some credits on the account.” Several weeks before the suit was brought she had filed a report in which she stated she had not allowed the account. She stated to Fechner thqt credits were due on the account before her attorneys filed it in the county court which was in 1911.

In the original petition of appellees, it was alleged that the account was not presented ta the administratrix until on or about March 1, 1913, more than two years after it became due. In a supplemental petition, sworn to by Fechner, it was alleged:

“Plaintiffs did not actually present said claim to defendant herein as administratrix herein for allowance, nor discuss said matter with defendant herein, until on or about March 1, 1913, on which date said claim, duly verified, was presented to defendant as administratrix and by her disallowed as far as to the debt described in the original petition of plaintiffs herein.”

The facts in this case show that the allegations were true, and that the account was never presented to the administratrix for allowance until March 1, 1913. Fechner never sought to have the account allowed until that date, but sought to collect it. He could with truth swear as he did “Mrs. Elder never did refuse at any time to mark on it ‘allowed’ or ‘disallowed’ before March 1, 1913,” because until that date he had never sought to have it allowed. He was charged with the knowledge that, although the estate liad no cash with which to settle the account, the law required him to have it allowed or rejected, and, if allowed, that it should be presented to the court for approval, and, if re-rejected, suit should he filed in 90 days from such rejection if suit was desired. The account was barred by limitation of 2 years when rejected in writing, and may have been rejected on that ground. If the administra-trix did agree to pay the account, which she had neither power nor authority to do, that would in no wise halt the running of the statute. The administratrix could not deceive appellees by stating that she would pay the account, because appellees knew she could not pay it.

The evidence totally fails to prove fraud on the part of the administratrix, but her hesitancy in regard to the account, if there was any, was because she thought the whole or a part of it had been paid. Counsel for appellees, as shown by the statement of facts, disclaimed that they charged Mrs. Elder with fraud in stating that she would pay the account, nor in order to prevent a suit until the statute of limitation intervened.

The promise to pay not being in writing and being made after the account was due did not prevent the running of limitation. Rev. Stats. 5705. It is not pretended that Mrs. Elder promised in writing to pay the account, or that she was ever asked and refused to allow or reject the claim -until March 1, 1913, when she wrote “rejected” on the account.

In the case of Kyle v. House, 38 Tex. 155, which is cited by appellees, and which has never been cited in Texas except to overrule a part of it (Mathews v. Rucker, 41 Tex. 636), the facts are very meager, but still indicate that the executor kept the claims after a promise to allow and pay them, until the three months had passed, and then rejected the account. Positive fraud it would appear was shown ii^ that case, which referred alone to the 90 days after the claim was presented. There was a promise to allow, and the owner of the claim may have been misled- by that promise. No such circumstance appears in the present case. There was no promise to allow the account, and the verbal promise to pay could not stop the running of the statute of limitation. There was nothing in the acts or representations of Mrs. Elder to induce Feehner to believe that she would allow the account, and he knew that she had no power or authority to pay the account. In attempting to distinguish the case of ICyle v. House from this, no approval of its ruling is intended by this court.

There was no request nor importunity upon the part of the administratrix to prevent appellees from suing, nor any agreement that the statute of .limitation would not be pleaded, and consequently the case of Smith v. Dupree, 140 S. W. 367, has no applicability. It would be a singular proceeding for an executor or administrator to agree not to plead limitation as to a claim against the estate represented by him. The attorney did not and could not bind Mrs. Elder in what he said to Feehner about bringing suit. He merely stated that he thought she would pay the account when she got the money. There were no statements made by Mrs. Elder or her attorney, that could have deceived appellees as to their rights, or that would es-top appellant from pleading limitation to the account. The law required that appellees should see that his account was allowed or rejected, and in the former case to have it approved by the county judge, or in the latter case to sue on it in a certain time.

The judgment will be reversed, and judgment here rendered that appellees take nothing by their suit and pay all costs in this and the lower court expended.
      <S=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGHTOWER, O. J.

license: Public Domain

text:
    SMITH v. SMITH.
    (No. 254.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 4, 1917.
    Rehearing Denied Feb. 27, 1918)
    1. Divorce @=27(1) — Grounds—Cruelty.
    While a divorce will not be granted on the ground of cruel treatment, where the evidence falls short of full and satisfactory proof of such treatment and outrages as would render the further living together of the parties insupportable, yet it appearing that the defendant husband would leave home and stay away for as-long as two months without letting his wife know where he was, and upon returning home would curse, abuse, and strike her, and would on occasions threaten to shoot her and cut her throat, divorce was properly granted on the ground of cruel treatment.
    2. Appeal and Error @=51011(1) — Review— Findings.
    A verdict or finding of fact by the trial court based on conflicting evidence will not be disturbed on appeal, where there was evidence in the record which, if believed, was sufficient to support it.
    3. Divorce @=54-6 — Cruel Treatment — Grounds.
    Where a wife provokes her husband to cruel treatment, she cannot be granted a divorce on account of such treatment.
    4. Divorce @=249(6) — Decree — -Validity—•Community Property.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4634, declaring that the court pronouncing a decree of divorce from the bonds of matrimony shall also decree an order and division of the estate of the parties in such way as court may deem just, but that nothing shall be construed to compel either party to divest himself or herself of the title to real estate, the court on granting a divorce may by that decree provide for the use and occupancy of tho homestead of the spouses by the wife and children of the marriage; such decree not depriving the husband of his title to the land.
    5. Divorce @=5298(1) — Custody oe Children —Interests oe Child.
    The trial court in awarding custody of a minor child in divorce proceedings should be controlled and actuated solely by a consideration of the best interest of the child.
    Appeal from District Court; Jefferson Coun- - ty; E. A. McDowell, Judge.
    Suit for divorce by Josie Smith against H. W. Smith. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Thos. N. Hill, of Beaumont, for appellant. W. W. Cruse, of Beaumont, for appellee.
   HIGHTOWER, O. J.

This was a suit filed by the appellee, Josie Smith, against the appellant, H. W. Smith, in the district court of Jefferson county, whereby appellee sought a decree of divorce from the appellant, her husband, on the grounds of cruel treatment. The treatment complained of may be briefly stated as follows: That during the past two years prior to the filing of the suit, appellant would leave home and stay for as long as one to two months, without letting appellee know where he was; that upon returning home, appellant would curse and abuse ap-pellee, and on several occasions struck appel-lee with his fist; that about the time of the separation, appellant threatened to shoot ap-pellee with a shotgun, and stated.to her that he cared nothing for her any longer, and also threatened to cut her throat with a razor. Appellee alleged that such conduct on the part of appellant constituted unbearable cruelty toward her, and kept her in fear of her life, etc. The appellee also alleged that she and appellant owned a homestead, consisting of a house and lot located in the city of Beaumont, and described in her petition, and alleged to be of the probable value of §750; that there was one child, the issue of the marriage of herself and appellant, and who was a minor ten years of age, and whose name is Benjamin Smith. The prayer was for a decree of divorce and for the custody of the minor child, Benjamin Smith, and also that appellee be decreed the exclusive, use and occupancy of the homestead for the maintenance and education and support of herself and minor child.

Appellant, in due time, answered and interposed general demurrer, special exceptions, and specially denied the allegations of cruelty in plaintiff’s petition. Appellant further specially answered that the real purpose ap-pellee had in bringing her suit, in addition tó the prayer for divorce, was to obtain possession of the property belonging to appellant, which appellant had paid for by his own earnings, and when this was accomplished, to marry another man known as “Kinzie” or “Kennison.” Appellant further alleged that his home life had been happy prior to the invasion of his home by. “Kinzie” or “Kennison,” while appellant was' away from home, and at hard work; that he,was a hard-working man, never drank, was moral in his habits, and indulged his wife and child in every comfort, always commanded good wages, which he turned over to his wife.

The case was tried before the trial judge, without a jury, who concluded and found that the material allegations in plaintiff’s petition were true, and rendered judgment awarding the decree of divorce, as prayed, and further awarding the custody of the minor child, Benjamin Smith, to appellee, and further awarded the use and possession of the house and lot, constituting the homestead of the spouses, to appellee, for the support and maintenance of herself and minor child.

The first assignment of error assails the judgment of the trial court in favor of appellee for divorce, on the ground that the evidence adduced was not legally sufficient to support such decree, but, on the contrary, affirmatively showed that appellee was not entitled to divorce. The proposition under this assignment is:

“A decree of divorce will not be granted on the ground of cruel treatment, whore the evidence falls short of full and satisfactory proof of such excesses, cruel treatment, and outrages as would render the further living together of the parties insupportable.”

We think that this proposition "unquestionably announces a correct legal proposition, and the only question for our determination has been whether the evidence was sufficient to authorize a finding by the trial court that the acts of cruelty alleged in plaintiff’s petition was committed, as were found by the trial court to have been committed. Unquestionably, if the allegations of the petition, as hereinbefore stated, were true in respect to the treatment complained of, they were of such nature as to justify the trial court, from a legal standpoint, in holding that appellee was entitled to a decree of divorce. We have gone over the evidence as found in the record, in connection with this assignment; and we find that while the evidence is in sharp conflict on this point, nevertheless, there is evidence in the record sufficient to sustain the finding of the trial court that the acts of cruelty alleged were, in fact, committed, substantially as alleged by appellee, and such being the situation, as shown by the record, we have no alternative, but must uphold the finding of the trial court on this point, though, as an original proposition, we might be of the opinion that the evidence on the question preponderates against the trial court’s finding. •

The rule well' established in this state is that, where there is evidence in the record which, if believed by the trial court or jury, is sufficient to sustain a finding of fact, such finding is binding upon this court. Without discussing this evidence, which we think would be entirely unnecessary and unprofitable, we overrule this assignment of error. We will say, however, in doing so, that we have read the several authorities cited by counsel for appellant under this assignment, and while they sustain the legal proposition announced by him, they are not decisive Of and do not control this assignment of error.

The second proposition under this assignment also announces a correct proposition, to the effect that where it is shown in a divorce suit that the plaintiff wrongfully provoked the treatment complained of on the part of defendant, then she should not be permitted or allowed to predicate a divorce on such treatment. While, as stated, this is a correct proposition of law, yet we are met with the same trouble in the evidence, which shows a sharp conflict on this point, and, as already stated, it was the province of the trial judge and his duty to settle this conflict, and he has done so in favor of appellee, and there being evidence before him in support of his conclusion or finding on this point, it is binding upon this court.

The second assignment of error challenges the action of the trial court in awarding the use and possession of the community homestead to appellee, for the support of herself and minor child. This assignment is submitted as a proposition. The second proposition under this assignment is, in substance, that when a decree of divorce has been rendered, and the marriage relation has been dissolved, the husband is under no legal obligation to support and maintain the wife, and his interest in the community estate cannot be set aside for that purpose. Article 4634, Vernon’s Sayles’ Texas Civil Statutes, provides:

“The court pronouncing a decree of divorce from the bonds of matrimony shall also decree and order a division of the estate of the parties in such a way as to the court, shall seem just and right, having due regard to the rights of each party and their childi’en, if any: Provided, however, that nothing herein contained shall be construed to compel either party to divest himself or herself of the title to real estate.”

In construing this statute, it has been held by the Supreme Court of this state that the trial court, upon rendering a decree of divorce between parties, may also 'by the same decree provide for the use and occupancy of the homestead of the spouses by the wife and children, as a means of their support and maintenance, and that the trial court’s decree in that respect is valid and proper when, in his judgment, the facts authorized such decree, and the trial court’s action in that regard is binding upon the appellate court. The only limitation is, it seems, upon the authority of the trial court with reference to the community homestead of the spouses, that such decree shall not undertake and shall not have the effect to divest the title out of either of the spouses, either in form or substance. Kirkwood v. Domnau, 80 Tex. 645, 16 S. W. 428, 26 Am. St. Rep. 770; Holland v. Zilliox, 38 Tex. Civ. App.'416, 86 S. W. 38; Manufacturing Co. v. Swan, 43 S. W. 574. It will be seen from an inspection of these decisions that the trial 'court in awarding a decree of divorce between spouses may lawfully decree that the use and occupancy of the community homestead shall be given to the wife and minor children, but that such decree shall not, either in form or substance, divest the husband of his title to one-half of the property. The decree in this case does not have the form or effect to divest the husband of his title to one-half of the community homestead, hut simply provides that the right of the use and occupancy of the homestead shall remain in the appel-lee, the wife, and the minor child, Benjamin Smith. Of course, the court might have decreed otherwise, and might have divided the property equally, as to title between the spouses, but did not do so, and we are not authorized to say that the judgment of the court in this respect was unwarranted or improper, and the assignment is therefore overruled.

The third assignment complains that the court erred in not awarding a partition of the community homestead between the spouses. What we have said with reference to the second assignment disposes, necessarily, of this assignment.

The fourth assignment complains that the trial court erred in awarding the custody of the minor, Benjamin Smith, to appellee. The contention under this assignment is that appellant was best fitted, morally and financially, to care for and rear the minor, Benjamin Smith, and that the best interests of the minor demanded that his custody be awarded to appellant. It is true that the trial court, in awarding the custody of the minor child, in proceedings of this nature, should be controlled and actuated solely by what the court considers for the best interests of the minor, and appellant’s legal proposition to that effect is correct, but the court found as a fact, as is manifest from its judgment, that the best interests of the minor demanded that his custody be given to the' appellee.

As stated with reference to the other questions of fact in this case, we cannot say that the evidence adduced on the trial did not justify the judgment of the trial court in holding that the best interests of this minor required his custody to be given to the appellee. The whole thing before this court presents the question as to whether there was sufficient evidence before the trial court which, if believed by the court, could serve as a basis for the judgment of the court, either in decreeing the divorce between the parties, in awarding the custody of the minor, as the court did, and in awarding the occupancy and use of the homestead of the spouses to the appellee, as he did, and we have concluded that there is evidence to support the judgment of the trial court in each particular, and that its action in each respect is therefore binding upon this court.

We find no error in the record for which this court would be authorized to reverse the judgment of the trial court, and its judgment is therefore affirmed.
      @=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    SWANN v. TEXAS & P. RY. CO.
    (No. 1904.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 15, 1918.
    Rehearing Denied Feb. 21, 1918.)
    1. Evidence <@=5(2) — Judicial Notice — Existence OF HOISTING MACHINERY.
    The existence of hoisting machinery which may be employed for lifting heavy weights is a matter of such common knowledge that evidence to that effect is not required. .
    2. Appeal and Error <@=>1059— Harmless Error — Exclusion op Evidence.
    In action by servant injured by handling heavy barrel unaided, exclusion of plaintiff’s evidence that defendant had machinery to lift heavy weights was not prejudicial, where the manner in which the court submitted the issue of negligence assumed as a matter of common knowledge that such machinery existed and might have been so employed.
    3. Master and Servant <@=>295(9) — Instructions — Assumed Risk.
    Where plaintiff invoked Rev. St. 1911, art. 6645, providing that in employé’s action against railroad for negligent injuries, assumed risk from plaintiff’s knowledge of the danger shall not be a defense where plaintiff’s superior is notified of or already knows of the defect, or where a person of ordinary care would have continued in the service with knowledge of the defects, plaintiff’s requested charge that he did not assume the risk by remaining in defendant’s employ if his superiors knew of the manner in which the work was being done and the danger, if any, therefrom was an incorrect application of the statute, since it relieved plaintiff of assumption of risk, however perilous the situation, if his superiors were aware of the manner of doing the work and the attendant danger.
    4. Trial <@=>253(4) — Instructions—Ignoring Defense — Assumed Risk.
    . Such charge was also faulty in ignoring the defense that the injury resulted from one of the dangers ordinarily incident to the business in which plaintiff was engaged.
    5. Master and Servant <@=>204(1) — “Assumption of Risk” — Known Danger.
    Rev. St. 1911, art. 6645, providing that railroad employé’s knowledge of defective condition will not constitute “assumption of risk” if a person of ordinary prudence having such knowledge would have continued in the service, does not impair the common-law rule that, when a person of ordinary prudence having such knowledge would not under the circumstances have continued in the service, such an employé, continuing in the service, does assume the risk.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Assumption of Risk.]
    6. Master and Servant ¡@=>228(1) — Assumption of Risk — Comparative Negligence.
    Since Rev. St. 1911, art. 6645, as to assumed risk by railroad employé, does not merge the defense of assumed risk into that of contributory negligence, the doctrine of comparative negligence founded on article 6649, as to contributory negligence of railroad employé affecting recovery, does not apply where plaintiff is barred from any recovery for his injuries by his assumption of the risk.
    7. Master and Servant ¡@=^204(1) —Assuming Risk — Defective Appliances.
    Rev. St. 1911, art. 6645, as to assumption of risk by railroad employés, applies only to situations where there is a defect in the appliance which the employé is required to use in the performance of his duty or in the surrounding conditions which affect his safety while at work, and not to a case where the negligence claimed is in not having any appliances of any kind to facilitate the work the employé is required to perform.
    8. Master and Servant ¡@=>101, 102(5) — Machinery for Handling Heavy Weights.
    A master is not required to provide machinery for handling heavy barrels to supplement an employé’s failing strength due to old age where the employé has been doing that particular kind of work for more than 2 years without injury and the work may be performed in safety by one of ordinary physical vigor.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    Action by W. H. Swann against the Texas & Pacific Railway Company. From judgment for defendant, plaintiff .appeals.
    Affirmed.
    T. W. Davidson, of Marshall, for appellant. F. H. Prendergast, of Marshall, for appellee,
   HODGES, J.

From March 3, 1913, to August, 1915, the appellant was employed by the appellee in a warehouse or storeroom at Marshall, Tex, His principal duty was to prepare a grease compound used in oiling car trucks. This grease came to the warehouse in 50-gallon barrels weighing about 500 pounds each. In order to put the oil in condition for practical use, it was taken from the barrels and run through a machine that molded it into cakes resembling bars of soap. For convenience in performing this work the barrels were rolled by the appellant from an adjoining compartment close to a machine and there placed on their ends. This service was performed by the appellant alone. He used an ordinary cotton hook in lifting the barrels and placing them on their ends. In August, 1915, while attempting to lift, or “head up,” one of the barrels, he was ruptured as the result of the strain. He was thereafter transferred to another branch of the service, where the labor was not so heavy, but finally severed his connection with the appellee, and later filed this suit for damages. The negligence relied on consisted in the failure to furnish the appellant with an assistant or machinery for handling the barrels. That issue was submitted to •the jury, and a verdict returned for the defendant.

While on the stand the appellant testified that he had not been furnished with any help for handling the barrels. But the court, on objection, refused to permit him to testify that the appellee railway company had in its roundhouse, blacksmith shop, and machine shop machinery which could have been used in raising barrels to an upright position. The effect of this testimony, if admitted, would have been merely to prove that such machinery was manufactured, and some of it was in the possession of the railway company. The existence of hoisting machinery which may be employed for lifting heavy weights is a matter of such common knowledge that evidence to that effect was not re-, quired. Such appliances being available, the duty of installing them where prudence required their use did not depend entirely upon whether the railway company had them on hand. The manner in which the court submitted the issue, of negligence assumed that such machinery existed and might have been so employed. The error, if any, in excluding the testimony was not prejudicial to the appellant.

The only affirmative defense submitted was that of assumed risk. It is now contended that this issue was repeated in a manner which gave it undue prominence. The appellant, however, requested the following- additional charge upon the same issue:

“You are further instructed that the plaintiff did not assume the risk by remaining in the employ of defendant, if you believe that his superiors or employers whose duty it was to control and supervise the manner and method of such labor also knew of the manner in which the work was being done and the danger, if any, in having it thus performed.”

The issué as presented in the court’s general charge is not subject to the objection made. The special charge quoted above was improper because it relieved the appellant of having assumed the risk of injury, however perilous the situation might have been, if the railway company through its employés was aware of his manner of doing the work and the danger attending it. That is not a correct application of article 6645 of the statute which is invoked in .this case. H. & T. C. Ry. Co. v. Alexander, 102 Tex. 497, 119 S. W. 1138. This special charge also ignored the defense that the injury resulted from one of the dangers ordinarily incident to the business in which the appellant was engaged, and for that reason should not have been given.

Appellant also insists that the court erred in refusing a special charge authorizing a recovery in the event the appellant was guilty of contributory negligence. In an able and plausible argument counsel for appellant contends that the article of the statute above referred to has merged the defense of assumed risk into that of contributory negligence, and a charge on comparative negligence was proper. This contention appears to be founded, upon the proposition that if the appellant remained in the service of the railway company and continued to perform the work of lifting heavy barrels, when a person of ordinary prudence would not have done so, he was guilty of contributory negligence, and therefore was entitled to a partial recovery under the provision of article 6649. Contributory negligence, as that defense is commonly understood, was not admitted in the appellant’s pleadings, nor was it set up as a defense by the appellee. Hence it was not an issue in the pleadings unless embraced in the plea of assumed risk. Proof that an injury resulted from one. of the risks assumed has always been regarded as a complete defense in suits of this character. Article 6645 has to some extent modified the common-law rule. It in effect provides that where the injury results from a defective condition the fact that the employs knew of that condition will not constitute an assumption of the risk if a person of ordinary prudence having such knowledge would have continued in the service. It follows from the above that when a person of ordinary prudence having such knowledge, would not, under the circumstances, have continued in the service, it should be held that he did .assume the risk. The common-law effect of assumed risk as a defense has not been impaired. The doctrine of comparative negligence founded upon article 6649 has no application to the present state of facts. G., H. & H. Ry. Co. v. Hodnett, 106 Tex. 190, 163 S. W. 13; Carter v. K. C. S. Ry. Co., 155 S. W. 643. Furthermore, article 6645 has reference to situations where there is a defect in the appliance which the employe is required to use in the performance of his duty or in the surrounding conditions which affect his safety while at work. In this instance the negligence alleged consisted, not in having appliances that were defective, but in not having any appliances of any kind to facilitate the work the appellant was required to perform. The evidence was such as to warrant the jury in concluding that the defect which proximately caused the appellant’s injury was his failing strength due to his advanced age. He testified that he was 70 years old, and had been doing that particular kind of work for more than 2 years without injury. Evidently his failing strength had made it unsafe for him to longer continue to lift weights which a younger and more vigorous man might have handled without danger. The railway company was not requited, in order to escape the charge of negligence, to provide machinery to supplement an employes failing strength, especially when the same work might have been performed in safety by one of ordinary physical vigor.

The judgment is affirmed.
      i@5»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: MOURSTJND, J.

text:
    MOGLIA v. RIOS et al.
    (No. 5971.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 13, 1918.)
    1. Appeal and Error @=>882(11) — Invited Error — Sueeiciency or Evidence.
    A party requesting the submission of an issue to the jury could not assail the finding of the jury for want of evidence to support it, as, having taken the stand that there was evidence requiring the submission of the question, he could not complain of such submission directly or indirectly.
    2. Fraudulent Conveyances @=>298(1), 301 (1) — SurnciENCY or Evidence — Fraudulent Intent — Knowledge or Grantee.
    In trespass to try title by one who purchased at a sale under a judgment against defendant’s grantor, evidence held insufficient to show that the conveyance to defendant was made to defraud creditors or that defendant had knowledge of his grantor’s fraudulent intent.
    3. Fraudulent Conveyances @=>156(2) •— Knowledge or Grantee — What Constitutes Knowledge.
    A grantor’s statement to his grantee in which he described an indebtedness owed by him as about $400, and stated that the creditor had security on about 400 acres of land in another county, was not sufficient to apprise the grantee of the grantor’s intent to hinder and delay the creditor in the collection of the debt, in the absence of any knowledge on the grantee’s part that the debt was due and that the creditor was pressing for payment.
    Appeal from District Court, Duval County; Y. W. Taylor, Judge.
    Suit by Lod Moglia against Antonio Rios and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Greer & Hamilton, of Laredo, for appellant. S. H. Woods, of Alice, and Hicks, Phelps, Dickson & Bobbitt, of San Antonio, for appellees.
   MOURSTJND, J.

This is a suit by Lod Moglia in trespass to try title to recover 640 acres of land in Duval county from Antonio Rios, his wife, Paula Zuniga De Rios, Epi-fanía Martinez Zuniga, Ramon Zuniga, Savas Zuniga, and Jose Zuniga.' During the trial plaintiff in open court abandoned his suit as to 200 acres claimed by Rios and wife as a homestead, and the trial proceeded as to 440 acres claimed by the defendants other than Antonio Rios, they being the widow and children of Pioquinto Zuniga, to whom such land had been conveyed by Rios and wife on January 8, 1914. Plaintiff’s claim to the land is based upon a sheriff’s deed, dated December 1, 1914, made by virtue of an alias execution issued out of the district court of Webb county on a judgment in favor of plaintiff against Rios and Esteben Leal for $856.87, in which an attachment lien was foreclosed against the land in controversy herein. The attachment was levied on January 15, 1914; the judgment obtained on May 4, 1914.

The cause was submitted upon a charge requested by plaintiff in which the issue left to the determination of the jury was whether Rios conveyed to Zuniga for the purpose of hindering and delaying plaintiff in the collection of his debt and whether Zu-niga bought with knowledge of such'intention. The jury returned a verdict in favor of defendants and judgment was entered in accordance therewith.

Appellant presents three assignments of error, in all of which it is contended that there is no evidence to support the verdict and judgment. As appellant requested and induced the court to submit the issue, thus taking the stand that there was evidence which required the submission thereof, he is in no position to complain of the charge directly or indirectly by contending there was in fact no testimony wfiich would justify the submission of the issue. Having invited the submission of the issue, plaintiff is in no position to assail the finding of the jury. S. W. Tel. Co. v. Sheppard, 189 S. W. 799, and authorities therein cited.

However, we find the verdict was justified, if not absolutely required, by the testimony. The burden rested upon plaintiff to establish the facts relied upon to set aside the Zuniga deed. Plaintiff sought to show Rios’ fraudulent intent and Zuniga’s knowledge thereof by the testimony of Rios alone. Such testimony did not disclose that Rios was insolvent on January 8, 1914. It merely showed that at that time he, together with Leal, owed the debt recovered upon by Moglia, and that he owned, in addition to the section of land in Duval county, one-half of a survey of 671 acres in Webb county and a survey of 53.5 acres, also in Webb cotinty. The value of this land on January 8, 1914, is not shown. It is further shown that Leal, who was jointly liable with Rios to Moglia for the debt recovered upon in Webb county, owned the other half of the 671-acre survey in Webb county, and that such land was subject to Moglia’s debt is inferable from the fact that it was sold in satisfaction thereof, together with Rios’ Webb county lands. The evidence failed to show that Rios owed any one besides Moglia, and failed to show that the real estate attached constituted all of the property owned by him. It is not shown that Zuniga knew the extent of Rios’ indebtedness, for, in referring thereto in the presence of Zuniga, Rios assumed that he only owed half of the debt, and described it as “some four hundred and odd dollars,” and stated that Moglia had security on “some four hundred and odd acres in Webb county.” Surely this statement was not sufficient to apprise Zuniga of an intent to hinder and delay Moglia in the collection of his debt. There is no evidence to show that Zuniga knew Moglia’s debt was due, and that he was pressing Rios for payment thereof, if those facts can be inferred from the fact that an attachment was levied on January 15, 1914. It appears from Rios’ testimony that the notary public who prepared the deed to Zuniga told Rios in Zuniga’s presence that he could hold 200 acres as a homestead, and such testimony is strongly relied upon by plaintiff. The fact that such a statement was made indicates that a conversation might have occurred which would cast light upon the issue submitted to the jury, but plaintiff did not produce the testimony of the notary public, and Rios did not testify to any question on his part calling for such an answer, which would have apprised Zuniga of an intent on his part to defraud his' creditors.

The plaintiff failed to discharge the burden resting upon him to show facts which would be sufficient as against Zuniga to set aside the deed to him, and therefore sufficient to recover the land from his widow and children.

The judgment is affirmed.
      t&ssFor other case.; see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    THOMPSON v. FLEMING.
    (No. 1895.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 30, 1918.
    Rehearing Denied Feb. 14, 1918.)
    1. Pleading <&wkey;129(2) — Admission of Allegations — Damages.
    Where plaintiff alleged certain damages from defendant’s breach of contract to lease land on shares by reason of loss of crops, and defendant replied that he had cultivated the crops in a farmerlike manner, and they had been worth a less sum than that alleged by plaintiff, the mere absence of general or special denial as to the damages did not admit the allegations of the petition as to the amount of the damages.
    2. Trial <&wkey;374(2) — Findings — Conformity With Pleadings — Counterclaim.
    Where plaintiff sued for breach of contract, and defendant pleaded a counterclaim and produced evidence thereon, the trial being on special issues which did not include the counterclaim, the court had a right on proper evidence to deduct from plaintiff’s damages, as found by the jury, the amount of the counterclaim.
    3. Appeal and Error <@=934(2) — Presumptions— Findings.
    Where plaintiff sued for breach of contract, and defendant pleaded counterclaim which was not submitted to the jury, the trial having been on special issues, the Court of Appeals must assume that the findings of the court were such as to support the judgment rendered.
    Error from. Smith County Court; W. R. Castle, Judge.

      Action by John W. Thompson against C. W. Fleming. Judgment for plaintiff in part, and he brings error.
    Affirmed.
    Smith & Smith, of Tyler, for plaintiff in error. Hanson & Butler, of Tyler, for defendant in error.
   HODGES, J.

The plaintiff in error sued the defendant in evror to recover $518.50 as damages for the alleged breach of a rental contract, and appeals from a judgment in his favor for only $60.08. In his original petition the plaintiff in error alleged, in substance, that in February, 1916, he entered into a contract with the defendant in error whereby the latter agreed to furnish the land, teams, farming implements, and seed, and the plaintiff in error the labor, and the crops grown to be equally divided between them; that it was also agreed that the defendant in error was to make certain advancements of provisions for the support of the plaintiff in error and his family while making and gathering the crops. It is further alleged that in May, 1916, the defendant in error refused to make the necessary advancements, and :by force and threats compelled the plaintiff in error to abandon the premises; that the defendant in error thereafter took possession of the crops and appropriated the same to his own use. It is also alleged that, had the plaintiff in error been permitted to continue in possession of the' premises and in performance of his rental contract, he could and would have raised, without expense other than his labor, crops aggregating in value $1,067, half of which would have belonged to him. Defendant in error filed an answer which contained no general denial, in which the terms and conditions of the contract as alleged by the plaintiff in error were admitted. He especially denied, however, any breach, and charged that the plaintiff in error voluntarily abandoned his contract and left the premises; that it was under those circumstances that he took charge of the crops, completed their cultivation, and gathered them at harvest time. He pleads in detail the amount of cotton, com, and peanuts actually produced and gathered, giving the aggregate value at $262.-99, one-half of which, $132.99, would be the share of the plaintiff in error. He alleges that he cultivated the crops in a good, farm-erlike manner, and used proper care in harvesting the same. He claims a credit of $75 for expenses incurred for labor in making and gathering the crops. He also pleads a counterclaim of $39.50 for supplies which he alleges were furnished by him to the plaintiff in error. In addition to this he reconvened for the sum of $500 as damages resulting from the plaintiff in error’s breach of his contract.

The court submitted two special issues. In response to the first question the jury; found that the defendant in error breached his contract by refusing to furnish the plaintiff in error with the necessary supplies, tools, and teams to enable him to perform his part of the agreement. The second question related to damages, and the jury found the amount sustained by the plaintiff in eri or was $97.16. The court deducted $36.18 from that sum, and rendered a judgment in favor < f the plaintiff in error for $60.98.

In this appeal the plaintiff in error insists that, in the absence of any general or special denial putting in issue his averments as to the damages sustained, the amount alleged in his petition was admitted, and the court erred in submitting the issue of damages and in refusing to render judgment in his favor for the full sum pleaded. The plaintiff in error alleged that, if he had been permitted to continue in the performance of his contract, he could and would have grown and harvested crops aggregating in value $1,037, one-half of which would have been his share. Tie defendant in error in reply alleged that after taking possession he had cultivated the crops in a “farmerlike manner,” and had gathered therefrom crops aggregating in value the sum previously mentioned. This, in effect, controverts the somewhat speculative averments of the plaintiff in error regarding what the land would have yielded under his cultivation. Notwithstanding the jury might have believed that the defendant in error breached his contract in the manner found by them, ,yet they might also have found that he properly cultivated the crops and gathered therefrom as much as could reasonably have been expected, and that the sum stated by him was the reasonable value of what the land would have produced. Such a finding would be inconsistent with the claim of the plaintiff in error.

It is also contended that the court erred in not rendering judgment for the full amount of damages found by the jury. As before stated, the defendant in error had pleaded a counterclaim, which the court had a right, under a proper state of the evidence, to deduct from the damages found by the jury. While the issue as to the validity of the counterclaim was not submitted to the jury, we mush assume that the findings of the court were such as to support the judgment rendered.

There is no complaint at the refusal of the court to submit further issues to the jury.

The judgment will therefore be affirmed
      ©£5>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    JEFFERSON WHOLESALE GROCERY CO. v. KELLEY.
    (No. 1911.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 7, 1918.)
    Vendor and Purchaser <&wkey;85 — Contracts —Rescissions—Evidence—Sufficiency.
    In view of the conveyance to plaintiff by the successors of the vendor, which asserted a claim of the vendor’s lien against the property, evidence held, insufficient to show a mutual rescission by the vendor and purchaser of the contract to sell and purchase land on account of the purchaser’s inability to pay for the land, under which the vendor reacquired title; the property having already been conveyed.
    Appeal from District Court, Marion. County; J. A. Ward, Judge.
    Action by the Jefferson Wholesale Grocery Company against Mrs. B. A. Kelley. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    By her deed dated September 12, 1891, Mrs. E. J. Ford conveyed two-thirds of lot 1, block 8, Urquhart’s addition to the city of Jefferson, to Mrs. Kate Kelley, wife of M. Kelley. The consideration, it appeared from recitals in the deed, was $950 paid to Mrs. Ford and the execution and delivery to her by Mrs. Kelley and her husband of their promissory note, dated said September 12, 1891, for $1,750, payable to Mrs. Ford’s order 109 days after its date. Payment of the note was secured by a vendor’s lien expressly retained in the deed to Mrs. Kelley.
    Mrs. Kelley died intestate at a time not specified in the record, but prior to June 31, 1905, leaving no relative except her husband, who died testate said June 31, 1905. Appel-lee was the sole devisee in his will.
    Mrs. E. J. Ford died testate in October, 1908. Her sons, J. L., J. V., and W. H. Ford, were the devisees of her property. J. V. Ford died intestate at a time not specified in the record, but prior to December, 1915, leaving as his only heirs his brothers, J. L. and W. H. Ford.
    By virtue of an order of sale issued on a judgment rendered June 14, 1907, in favor of the city of Jefferson against Mrs. J. V. Ford for taxes due the city for the years 1902, 1903, 1904, and 1905, the sheriff of Marion county sold “% block 8, Urquhart addition,” and by his deed dated September 4, 1907, conveyed same to T. D. Rowell, the purchaser at such sale. Said Rowell by his quitclaim deed dated August 10, 1909, conveyed. “% lot 1, block 8, Urquhart addition,” to J. L. and J. V. Ford.
    By their deed dated December-, 1915, J. L. and W. H. Ford conveyed two-thirds of lot 1, block 8, Urquhart addition, to appellant. The deed contained recitals as follows:
    “The said property herein conveyed being the same property heretofore conveyed by Mrs. E. J. Ford to Mrs. Kate Kelley. * * * The grantors herein being the sole survivors of said Mrs. E. J. Ford, and the said property never having been paid for by the said Mrs. Kate Kelley, and the vendor’s lien note named in said deed from the said Mrs. E. J. Ford, deceased, having been transferred and delivered by us to the Jefferson Wholesale Grocery Company, the purpose of this deed is to convey all title held by iis to said property, as well as to the said vendor’s lien note as aforesaid.”
    This was a suit by appellant against ap-pellee. ° It was to foreclose the lien retained by Mrs. Ford on the land to secure the payment of the $1,750 note and to sell the land to satisfy the amount of the note, which, it was alleged, was wholly unpaid, or, in the alternative, for the land. Appellant’s claim of a right to recover the land if denied the foreclosure sought was on the theory: First, that the sale thereof to Mrs. Kelley was rescinded in 1899 or 1900 by force of an oral agreement between Mrs. Ford, acting by J. L. Ford, and M. Kelley; second, that if the sale was not then rescinded so as to revest the title to the land in Mrs. Ford, she had a right (which appellant had acquired and by the suit asserted) to rescind the contract and to have the title divested out of Mrs. Kate Kelley and appellee as her successor; and, third, that if the contract was not rescinded in 1899 or 1900, as claimed, and if appellant was not entitled in this suit to assert a right to a rescission, it nevertheless had title to the land by force of the five and ten years’ statute of limitations. The trial was to the court without a jury. The appeal is from a judgment in appellee’s favor.
    T. D. Rowell, of Jefferson, and W. L. Grogan, of Shreveport, La., for appellant. Schluter & Singleton, of Jefferson, for appel-lee.
   WILLSON, C. J.

(after stating the facts as above). The correctness of the action of the trial court in sustaining appellee’s exceptions to appellant’s petition: (1) So far as it was for a foreclosure of the vendor’s lien asserted against the land and to sell same, on the ground that a right to maintain a suit for such relief was barred by the four-year statute of limitations; and (2) so far as it was to rescind the contract of sale and recover the land, on the ground that an action for such relief was barred by force of the provision in the concluding clause of article 5695, Revised Statutes, as amended by Acts 1913 (Gen. Laws Sp. Sess. p. 39 [Vernon’s Sayles’ Ann. Giv. St. 1914, art. 5695]), was not challenged in that court, and is not challenged in any of the assignments in appellant’s brief. The contention on this appeal is that the judgment should be reversed because it conclusively appeared from the testimony, it is insisted, that the title to the land revested in Mrs. Ford by a rescission in 1S99 or 1900 of the contract by which she sold same to Mrs. Kate Kelley; or, if it did not so appear, that it did appear that the title revested in Mrs. Ford by operation of the statute of limitations of five and ten years. As we understand the record, it does not support the contention. It not only did not appear as a matter of law from the testimony that the statute of limitations of five and ten years had operated to revest title in the Fords, but we think the contrary appeared to he true. The testimony was conflicting on the issue as to whether there was a rescission in 1899 or 1900 of the contract between Mrs. Ford and Mrs. Kate Kelley. The testimony of J. L. Ford was relied upon mainly to prove such a rescission. He testified as follows:

“After that note was due I talked with Mr. Kelley about it. He did not pay it. I did not make any trade with him about the note at that time. The first time I had a conversation with him the note was then due and in the meantime Kelley had failed. I finally reached an agreement with him about the property, and it was finally delivered over to me in this way: I let the note run along when it became due. I told him I did not care to crowd him. I said, ‘If you are not able to pay it now, I will discount the note.’ He finally said he could not pay it, and said, ‘You can go ahead and sell it, and I will make a deed to it.’ I let it run on that way until about 1900 or 1901. Along about the beginning of this century I .iust made the remark that I wanted to begin the century — I said, ‘What are you going to do about that note?’ He says, ‘Just take the building; I doil’t want it and can’t pay for it.’ I took what possession I could. From that time up to the time I conveyed it to the Jefferson Wholesale Grocery Company I and my brother have exercised control and jurisdiction over it and owned the property according to my understanding, for my mother, and then for myself. The reason I did not take a deed from Kelley, instead of taking it under those conditions, along about that time there was quite a number of judgments, as I understood. Mike Kelley failed along about that time or in 1892 or 1893, and I just told him I would not crowd him. I said, T know you are hard up, and I will just carry you alongand then when we finally talked about it he just agreed with me; said, ‘If you can sell it I will make you a deed without any lawsuit.’ He said he would make the deed to the person I sold it to.”

It may very well be doubted whether the testimony quoted would have authorized a finding that the contract was rescinded as claimed. But, conceding it would, when considered in connection with other testimony in the record showing that the Fords, subsequently to the time it was claimed the rescission was effected, claimed to own the land and permitted the witness Ada Scott to use it as a place to store wood and to keep, chickens in coops, it certainly did not demand such a finding. Instead, we think it more strongly supported the theory that there was no rescission of the contract, but a mere agreement that J. L. Ford might sell the land and apply the proceeds of the sale as a credit on the note. This theory was further strongly supported by testimony showing that the Fords ever after the time when it was claimed the rescission was effected until December, 1915, when they conveyed the land to appellant, ceased not to assert a right in themselves to a lien thereon. That this is true appears from the quotation from the deed to appellant set out in the statement above showing that J. L. and W. H. Ford in December, 1915, were then asserting that they owned the note in question and a lien on the land to secure its payment. Such a claim on their part was consistent with the theory that the contract was never rescinded, but entirely inconsistent with the claim made at the trial and urged here that the contract covering the sale of the land, was rescinded in 1899 or 1900.

The judgment is affirmed.
      <S^>For other oases see same topic and KEY-NUMBEK in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    LEVIN v. STEINLE.
    (No. 5961.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 6, 1918.).
    1. Partnership <&wkey;336(3) — Profits—Sufficiency op Evidence.
    In an action to recover a partner’s fifth interest in plumbing tools and in the profits of' the firm, evidence that plaintiff was entitled’ to one-fifth of the profits, or $120, held to sustain judgment for that amount.
    2. Partnership <&wkey;89 — Partner’s Lien.
    The law fixes a lien for the interest of a partner in the personal property of the firm, and' in suit by a partner to recover a fifth interest in plumbing tools and the profits of the firm, no evidence was necessary, except that there was partnership property in the hands of defendant, and that plaintiff owned an interest in it.
    Appeal from District Court, Bexar County ; J. T. Sluder, Judge.
    Suit by Leon Steinle against Nathan Levin. From a judgment for plaintiff, defendant appeals.
    Judgment affirmed.
    T. H. Ridgeway, of San Antonio, for appellant.
   FLY, C. J.

This is a suit instituted by ap-pellee to recover of appellant his one-fifth interest in certain plumbing tools and his one-fifth interest in the profits of a partnership of which he was a member. He also prayed for the appointment of a receiver. The record fails to show the appointment of a receiver. The cause was tried without a jury, and judgment was rendered in favor of appellee for $120, his one-fifth interest in the profits of the partnership and one-fifth interest in a certain lot of tools and supplies belonging to the partnership. It was further decreed:

“And it further appearing to the court that there exists a lien in favor of the plaintiff' against the defendant to secure a judgment of $120 herein recovered in behalf of plaintiff, upon the defendant’s four-fifths interest in the above-described property, it is ordered, adjudged, and decreed that this lien is foreclosed, and in the event the defendant fails to pay said $120 within 20 days from the date of this judgment, and the parties hereto do not report to this, court within 20 days from the day of this judgment, that they have agreed upon a division of the above-described property in the proportions above named or in either event, then the clerk of this court will issue an order of sale directed to the sheriff or any constable of Bexar county, Texas, in the terms of the law, and the said officer executing said writ shall sell said property, and he shall divide the proceeds thereof in the proportion of one-fifth to Leon Steinle and four-fifths to Nathan Levin, after having satisfied the judgment in favor of Leon Steinle of $120, and after payment of all costs herein, and in the event the interest in the above property of Nathan Levin does not sell for sufficient amount to pay the judgment herein in favor of Leon Steinle, then the remainder of said judgment shall he made from the property of the defendant Nathan Levin, and that each party in this suit shall pay one-half of the costs herein incurred.”

It is contended, through the first and second assignments of error, that there is no basis in the testimony for the $120 judgment in favor of appellee, as there was no evidence that tends to show that he was entitled to such profits. Appellee testified that the profits were from $1,104.50 to $1,289.50, and that the unpaid bills were $467.05, which .subtracted from the lowest amount of profits would leave $637.45 collected, which divided by 5 would give appellee $127.49. If the $1,-289.50 be taken as profits, $467.05 deducted would leave as appellee’s one-fifth interest $164.49. No one swore that the tools and supplies had not been paid for, or that they were paid for out of the profits, and there is no ground for deducting their value from the profits. The evidence tends to show that they were bought before the work of the partnership began, and there is nothing to show that they were not paid for by the partnership. Appellant swore that he did not know when the tools were bought, but .chat “the books would show when we started in business.” He also said that the tools had been in use “since we have been in business.” He states in regard to some of the tools that “we bought them.” He did not claim that he •bought the tools and supplies, or that they were not paid for.

The evidence fails to show that a large portion of the personal property was lost, as ■contended in the third assignment of error, and it is overruled.

The law fixes a lien for the interest •of appellee in the personal property of the partnership, and no evidence was necessary, except that there was partnership property, which was in the hands of appellant, and that appellee owned an interest in it. Wiggins v. Blackshear, 86 Tex. 665, 26 S. W. 939; Sherk v. Bank, 152 S. W. 832; Blackwell v. Bank, 97 Tex. 445, 79 S. W. 518; Rev. Stats, art. 5671; Merriwether v. Hardeman, 51 Tex. 436. The fourth and fifth assignments attack that part of the judgment, giving the lien, not on the ground that the law-does not give the lien, but that there was no evidence to sustain the decree of a lien. They are overruled.

The sixth assignment of error is overruled. The assignment does not assail the authority of the court to provide, if the parties do not agree on a partition of the property, that it should be sold and the proceeds divided.

The judgment is affirmed.
      íSjoFor other oases see same topic and KBY-NUMBEIt in all Key-Numbered Digests and Indexes 200 S.W. — 72


author: TALBOT, J.

text:
    McCOY v. BANKERS’ TRUST CO.
    (No. 7842.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 12, 1918.
    Rehearing Denied Feb. 16, 1918.)
    1. Abatement and Revival &wkey;>9 — Othek Actions Pending — Identity of Parties.
    The plea of another action pending is not available, where the plaintiff in one suit is the defendant in the other, and the defendant in the one is plaintiff in the other.
    2. Abatement and Revival <&wkey;86 —Othek Action Pending — Time for Considering Plea.
    Under the statute which requires pleas in abatement to be determined during the term at which they are filed, if the business of the court permits, failure to determine a plea of another action pending at the term at which it is filed, in the absence of showing that the court business prevented, waives the plea.
    3. Appeal and Error <&wkey; 1039(16) — Harmless Error.
    Error, if any, in disposing of plea of other action pending is harmless, where the pleader’s failure to have such plea determined at the term at which it was filed waived the plea.
    4. Corporations <&wkey;99(l) — Stock—Validity op Issue.
    Action on note given in purchase of stock under contract by which the notemaker agreed to buy the stock and to pay therefor 9 months after the date of the note, in the absence of showing that stock was issued before the note was paid, and especially in view of the defendant’s allegations that the stock had not been delivered, was not obnoxious to Const, art. 12, § 6, prohibiting issuance of corporate stock except for money paid and labor done or property received.
    5. Contracts <&wkey;143 — Construction.
    Where a contract is susceptible of two constructions, one making it legal and another an illegal contract, the former construction will be adopted.
    6. Corporations <&wkey;80(l) — Sale oe Stock-Misrepresentations — Future Promises.
    Representations having reference to the!' future merely, however much relied on, do not constitute a cause of action or ground of defense against an action, by the principal of the agent who made such representations, on a note given for corporation stock purchased in reliance on such representations.
    Appeal from District Court, Dallas County ; W. F. Whitehurst, Judge.
    Action by the Bankers’ Trust Company against W. A. McCoy. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Guy S. McFarland and Kennon & Hadden, all of San Antonio, for appellant. Towne Young and Etheridge, McCormick & Brom-berg, all of Dallas, for appellee.
   TALBOT, J.

The appellee, a corporation of Dallas, Tex., instituted this suit against the appellant, of Atascosa county, Tex., upon a written contract of subscription for shares of the capital stock of said corporation and upon a promissory note executed and delivered to appellee at the date of said subscription contract by appellant, to recover the sum of $1,150, together with the interest and attorney’s fees provided for in the note, less a credit of $80.50 paid thereon. The appellant pleaded in abatement of the suit the pendency of a prior action brought by him against ap-pellee in the district court of Atascosa county, seeking a cancellation of the contract and note herein sued on because of certain alleged fraudulent and untrue representations on the part of the agent of appellee, which he says induced him to subscribe for the stock of ap-pellee and to execute his note therefor. 'Subject to his plea in abatement the appellant answered by a general demurrer, a general denial, and by special plea, charging, in substance, that the note described in appellee’s petition was executed and delivered in consideration of the issuance and agreement to deliver to appellant 100 shares of the capital stock of appellee, and that appellant agreed to purchase said stock upon the representation of appellee’s agent, J. M. Afoses, who solicited the purchase, to the effect that he (Moses) had been expressly authorized by W. B. Slaughter, the then president of the ap-pellee corporation, to state to prospective purchasers of its stock who were resident in the section of the state in which appellant resided, and which was contiguous to the city of San Antonio, that appellee would open “a branch” in said city for the purpose of handling loans and collateral in Southwest Texas, in which section appellant then and now resides, and that in the matter of placing loans and handling collateral such stockholders would be given preference; that as an inducement to appellant to purchase the stock appellee’s agent, Afoses, made the representations stated, and that said representations were “untrue, and were falsely and fraudulently authorized to be made” ; that appellee has never opened a branch office in San Antonio, Tex., nor at any other point in 'Southwest Texas, and never intended so to do; that at the time of the negotiations for the purchase of said stock appellant resided in Atascosa county, far removed from the city of Dallas, the home office of appellee, and without a financial institution, and therefore was not interested in the purchase of stock in appellee company; that knowing these things, the appellee’s agent made the statements and representations above detailed; that, believing said representations to be true, and relying upon them, appellant agreed to purchase said stock and to execute his note therefor. The appellant further alleged that said stock had never been delivered to him. The court before whom the case was tried without a jury sustained exceptions urged by appellee to both appellant’s plea in abatement and his special answer, and said plea and answer were stricken out. The court also overruled the appellant’s general demurrer to appellee’s petition.

In response to the request of both appellant and appellee the court filed conclusions of fact and law. These findings of fact, which we adopt, are as follows:

■ “On April 19*, 1914, the defendant executed and delivered to the plaintiff his written contract of subscription for 100 shares of the capital stock of the plaintiff corporation, agreeing to pay therefor $1,150, and further agreeing that no statement, representation, or agreement of warranty made to him by the person taking the contract should in any way operate to cancel or annul the contract, unless the same be reduced to writing and filled in on the following line. For that purpose a fine was left blank, but there, was no insertion therein.
“Simultaneously defendant executed and delivered to the plaintiff, which is now the legal owner and holder thereof, his certain promissory note in writing, whereby he promised to pay the plaintiff at Dallas, Tex., nine months after April 15, 1914, the sum of $1,150, with interest thereon at the rate of 7 per cent, per an-num from April 15, 1914, until paid, and 10 per cent, additional as attorney’s fees in the event of suit or placement for collection. Said note bears a credit of $80.50 as of date September 1, 1915. Plaintiff, after maturity of said note, placed the same in the hands of its attorneys, whci brought this suit thereon under an agreement that they were to be paid the attorney’s fees therein stipulated. The balance due on said note, including principal, interest, and attorney’s fees, less the credit aforesaid, is the sum of $1,392.13.
“On January 14, 1915, the day on which said note matured, the defendant wrote to plaintiff at Dallas from San Antonio as follows: ‘Your favor of the 8th inst. received and, in regard to tho 100 shares of Bankers Trust Company stock which is due on this day, I am sorry to. state that at this. time I cannot see my way clear to do anything in the way of taking up my note and can only ask you for an extension of twelve months. You are of course aware of the fact that all banks are not making any loans at present and with these conditions existing one can only ask for extension. Hoping you are in position to take care of me in this matter by giving an extension as stated above, I am yours very truly, [Signed] W. A. Ale-Coy.’
“This suit was not instituted until July 1, 1916, or more than 12 months after the maturity of the defendant’s note, and the inference is-that the extension requested by the defendant was granted by the plaintiff.
“Defendant’s said letter suggests neither dissatisfaction nor grounds of defense, but constitutes a plain recognition of liability on his-part.
“Plaintiff in open court tendered to the defendant, upon payment by the defendant of his note, the shares of stock in exact accordance with the specification thereof in the defendant’s-said written contract of subscription.”

The court concluded that the law applicable to the facts found entitled appellee to a judgment against appellant in the sum of $1,392.13, and such judgment was rendered.

The action of the court in sustaining ap-pellee’s exceptions to appellant’s plea in. abatement is made the basis of his first and. second assignments of error. These exceptions were: (1) That the plea in abatement failed to present any such facts as precluded) appellee from the prosecution of this action; (2) that it distinctly appears from said plea that there are not pending two actions in. which plaintiff (appelle.e) is the same and the 'defendant (appellant) the same.n

We think there was no error in sustaining the exceptions. The appellee was not the plaintiff in both suits. It was the plaintiff in this suit, the one sought to be abated, and the defendant in the suit brought by the appellant in Atascosa county. In such case the general rule is to the effect that the plea of a prior action pending applies only where plaintiff in both suits is the same person, and both are commenced by himself, and not to eases in which there are cross-suits by a plaintiff in one suit who is defendant in the other; in other words, that where the party defendant in the prior suit is plaintiff in the subsequent suit, the first suit cannot be pleaded in abatement of the second. There are decisions to the contrary in some jurisdictions, while in others exceptions to the rule, it seems, have been recognized. The general rule stated, however, seems to be established by the weight of authority. Corpus Juris, p. 82, and eases cited under note 77; Standard Encye. of Proc., p. 1018, and cases cited under note 91.

But aside from the foregoing general rule, our statute requires pleas in abatement and other dilatory pleas to be determined during the term of the court at which they are filed, if the business of the court permits, and the record shows that the plea in abatement in this case was filed during the May term, 1916, and not determined until the September term of the court, nor do we find anything in the record showing that the business of the district court was such as prevented a presentation and determination of the plea in abatement during the term at which it was filed, or that it was called to the attention of the court at that term. This being true, we think it must be held that appellant waived said plea, and that the disposition made of it furnishes no ground for a reversal of this case. Harris Millinery Co. v. Melcher, 142 S. W. 100; Smith v. First Nat. Bank of Waco et al., 187 S. W. 233.

It is assigned that that court erred in overruling appellant’s general demurrer to appellee’s original petition filed July 1, 1916. The argument in support of this assignment is, in substance, that the petition of appellee shows upon its face that the promissory note sued on was given in payment of shares of stock of appellee corporation under a contract contemplating the issuance and" delivery thereof before the payment of said note; therefore the contract and note were in violation of section 6, article 12, of our Constitution which declares;

“No corporation shall issue stock or bonds except for money paid, labor done or property actually received.”

The assignment will be overruled. The original petition of the appellee charges that the appellee and the appellant entered into a written contract whereby the appellant subscribed for and the appellee agreed to sell appellant 100 shares of the capital stock of appellee, and that appellant promised and agreed to pay therefor 9 months thereafter, or on January 15, 1915, $1,150; that as an evidence of appellant’s obligation to pay for-said stock on said date, he, in addition to executing a written contract of subscription for the stock, executed and delivered to ap-pellee his promissory note for the principal sum of $1,150, payable at Dallas, Tex., with interest, and providing that if appellant failed to pay for the stock as agreed and it became necessary to place said contract in the hands of an attorney for collection or to bring suit on said note appellant would pay 10 per cent, additional as attorney’s fees, but there is no allegation in the petition to the effect that the stock subscribed for by appellant was to be issued before the subscription price or note was paid. The appel-lee did, however, file a supplemental petition, in which the subscription contract in question, but not the note, was set out in hsec verba, and if it be conceded that this supplemental position should be considered in connection with appellee’s original petition in passing on appellant’s general demurrer and in determining whether or not it appeared upon the face of appellee’s pleadings that the note in suit was given under a contract contemplating the issuance and delivery of the stock which appellant agreed to purchase before the payment of said note, still we think the appellee’s petition was not, for the reason urged by appellant, obnoxious to his general demurrer. The language, of the contract upon which appellant relies as showing that the parties contemplated a present issuance and delivery of the stock and the giving of the note sued on in payment therefor — that is, a sale on a credit — is as follows:

“This is to certify that I hereby purchase 100 shares of the capital stock of the Bankers’ Trust Company, for which I agree to pay eleven hundred fifty • dollars. * * * The further consideration is that I will extend to Bankers’ Trust Company the option to purchase above-described stock should my stock be for sale.”

Neither the original nor supplemental petition contains any allegation that the stock had been issued or delivered, and it is evident the contract in question was one of subscription. The language of the contract, “I hereby purchase,” alone or considered in connection with that giving the appellee an option to purchase the stock from appellant in the event appellant desired to sell, does not necessarily show or imply that -it was the agreement of the parties that the stock should be issued and delivered to appellant before the payment of the purchase money. On the contrary, we think the most natural and reasonable construction of the contract, the one most consistent with the nature of the transaction and which experience teaches would ordinarily or commonly be given it by business men, is that it was not intended that the stock was to be issued until the price agreed to be paid therefor was actually paid or tendered. There is nothing in the pleadings or evidence which indicates that the stock had been issued, and the appellant espressly alleges in his answer that it had never been delivered. The very clear inference to be drawn from the record is that both appellant and appellee understood the contract to mean that the stock was not to be issued and delivered until paid for in money. So far as anything appears to the contrary appellant never asked for or demanded an issuance or delivery of the stock to him, claiming that by the terms of the contract he was entitled thereto. Indeed, as evidencing that he made no such claim or demand, he wrote to appellee nearly one year after the execution of the contract of subscription and note sued on, expressing his inability to pay for the stock as he had agreed to do, and asking for an extension of the time of payment for 12 months. In this letter there is no hint of dissatisfaction because the stock had not been issued and delivered, or claim that under the terms of the. contract he was entitled to its issuance and delivery. The trial court found, as heretofore shown, that the appellee in the trial of the case, in open court, tendered, upon payment by the appellant of the note sued on, the shares of stock in exact accordance with the terms of the appellant’s written contract of subscription, and the judgment rendered directs the delivery of the stock to appellant upon satisfaction thereof. We are unable to see any sufficient reason for holding that the trial court was in error in this particular, and his conclusions will not be disturbed.

It is well settled that where a contract is susceptible of two constructions, one making it legal and another an illegal contract, the former construction will be adopted. The Constitution of this state simply prohibits the issuance of corporate stock, except for money paid, labor done, or property actually received. There is nothing showing that the stock subscribed for by appellant was ever issued, and, under the facts alleged, it cannot reasonably be said that the contract entered into between appellant and appellee was in contravention of our Constitution. Cope v. Pitzer, 166 S. W. 447; Horn Bros. v. Baker, 173 S. W. 474; Farmers’ & Merchants’ State Bank v. Falvey, 175 S. W. 833; Commonwealth Bonding & Casualty Ins. Co. v. Hill, 184 S. W. 247.

It follows from what has been said that the court did not err in admitting in evidence the note sued on, and that appellant’s fourth assignment of error, complaining of its admission, is without merit.

The remaining assignments of error, which are the fifth and sixth, and which. are grouped in the brief and complain of the court’s action in sustaining appellee’s exceptions to appellant’s “special answer,” the substance of which has been stated in a former part of this opinion, will be overruled. A statement which is promissory in its nature, or an assurance of what will thereafter be done, is not a representation, but rather in the nature of a contract, and is not the basis of an action for deceit. So that representations having reference to the future merely, however much relied on, do not constitute a cause of action or ground of defense. It is said that a person to. whom such statements are made had no right to rely on them. Smith on the Law of Fraud, § 7. The allegations in appellant’s answer to the effect that appellee’s agent stated to him that appellee would establish a branch office at San Antonio for the purpose of handling loans and collateral in Southwest Texas, and which were, at the instance of appellee, stricken out, do not show the representation of an existing fact, but rather a representation promissory in its nature and having reference to the future merely. This being true, the failure on the part of appellee to comply with such promise constituted no defense to this action, and appellee’s exceptions to the allegations in appellant’s answer setting up such matter were correctly sustained.

The record disclosing no reversible error, the judgment of the district court is affirmed.

Affirmed.
      ©=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DE BERRY v. CHAMBERS.
    (No. 1896.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 17, 1918.)
    1. Appeal and Error <&wkey;1041(2) — Amending Petition — Service.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1824, authorizing amendments in vacation, etc., a defendant cannot complain that a petition alleging his assumption of purchase-price notes was amended during vacation without service upon him. so as to allege that he had conveyed the land for which the notes were given to other defendants, since such amendment did not affect him.
    2. Appeal and Error <&wkey;293 — Reserving Grounds for Review — New Trial Motion.
    Where the court had jurisdiction of an action on notes, and no fraud, accident, or mistake was shown, defendant must, under the statute, raise the question of errors in the judgment by a new trial application, and, if the application be denied, by an appeal from such denial.
    Appeal from Histrict Court, Cherokee County; L. D. Guinn, Judge.
    Suit by G. W. De Berry against Roy Chambers. Judgment for defendant, and plaintiff appeals.
    Affirmed.

      D. S. Lewis, by a deed dated July 6, 1914, conveyed 94% acres of land in Cherokee county to L. E. Weeks, wbo by a deed dated January 18,' 1915, conveyed same to H. B. and Lynn Weathersby, who by a deed dated February 12, 1915, conveyed it to appellant and E. E. Flippen. A part of the consideration for the conveyance to Weeks was his two promissory notes payable to Lewis, aggregating $175, and secured by a vendor’s lien retained on the land. As a part of the consideration to Weeks for his conveyance of the land to H. B. and Lynn Weathersby, they assumed the payment of the. notes mentioned above, and as a part of the consideration to them for their conveyance to Flippen and appellant the latter assumed the payment of same. The notes passed into the hands of appellee, who, after they matured, commenced suit thereon in the district court of Cherokee county by a petition filed November 30, 1915. The suit was against one T. B. Weathersby and all the other panties hereinbefore named except Lewis. The recovery sought as against H. B. and Lynn Weathersby and Flippen and appellant was on the assumption by them of the payment of the notes. Citation to appellant on said petition was issued February 7, 1916, to Gregg county, and was served on him in that county March 1, 1916, by delivering to him in person a copy thereof and of said petition. An amended petition was filed April 27, 1916, during the vacation of the court, service of -which was not had on appellant. The only difference, it appears, between the two petitions, was that it was alleged in the amended petition, and was not in the original, that Flippen and appellant had conveyed the land to T. B. Weathersby, and that the deed to the latter had been recorded in the deed records of Cherokee county. There was a judgment by default in favor of Chambers against appellant and other parties defendant, except T. B. Weath-ersby, for the amount due on the notes, and against them and T. B. Weathersby foreclosing the vendor’s lien claimed against the land to secure payment of the notes. The suit resulting in the judgment from which this appeal was prosecuted was by appellant against appellee to enjoin the latter “from causing or allowing a levy to be made” on property of the former by virtue of an execution issued on the judgment in appellee’s favor against appellant and the other parties mentioned, and “from the enforcement” of that judgment, and for- general relief. The grounds upon which appellant based the right he claimed to relief he sought were (1) the failure of Chambers to notify him of .the filing of the amended petition referred to, and (2) proof he alleged he could produce showing that he and Flippen never assumed the payment of the notes sued upon. 'After granting a temporary injunction as prayed for, the court dissolved it, and rendered judgment refusing appellant any relief.
    F. B. Martin, of Longview, for appellant. Lee G. Carter, of Jacksonville, for appellee.
   WILLSON, C. J.

(after stating the facts as above). It is not contended, and we think could not be reasonably, that the citation and service thereof on appellant did not confer upon the court jurisdiction of his person, so far as the cause of action stated in the original petition was concerned. The contention is that the judgment against appellant was unauthorized, because he was not notified of the filing in vacation of the amended petition. It is not necessary to determine whether appellant would have been entitled on that ground to relief he sought, or not, had it appeared that the amended petition in fact set up a cause of action against him differing from the one set up in the original petition; for it is plain from the record that the amended petition did not do that. The cause of action against appellant stated in the amended petition was identically the same as that stated in the original petition. The only difference between the two petitions was that it was alleged in the amended one, and was not in the original', th^it the land against which the foreclosure was sought had been conveyed by appellant and Flippen to T. B. Weathersby. It is clear,- we think, that this allegation did not concern appellant, and therefore that he was not entitled to complain because he was not notified of the filing of the petition containing it. Article 1824, Vernon’s Statutes; Tel. Co. v. Campbell, 41 Tex. Civ. App. 204, 91 S. W. 312; Railway Co. v. Porter, 156 S. W. 267; Rabb v. Rogers, 67 Tex. 335, 3 S. W. 303.

It appearing, as it did, that he had jurisdiction of the suit, and of the parties thereto, prosecuted by appellee against appellant and others, the court had power to render the judgment he did render therein against appellant. If it was erroneous, and we think it was not for any reason appearing in the record before us, appellant should have applied for a new trial as "provided by the statute, and, if refused, one should have had the error corrected by an appeal or writ of error prosecuted as authorized by law. No other way to obtain relief against mere error in that judgment was open to him in the absence of a showing that it was rendered as a result of fraud, accident, or mistake and without fault or negligence on his part. Harn v. Phelps, 65 Tex. 592. He neither alleged nor proved that the judgment was the' result of either fraud or accident or mistake; and not only did not show that he was without fault or negligence in failing to defend the suit, but, on the contrary, as a witness in his own behalf testified that he “paid no attention to the suit whatever” because he “thought T. B. Weathersby was going to pay and settle it.”

There is no error in the judgment from which this appeal is prosecuted. Therefore it is affirmed.
      <®=»3Tor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes