text:
    CLARK v. STATE.
    (No. 8401.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 17, 1916.
    Rehearing Denied Oct. 21, 1916.)
    1. Appeal and Error @=>1036(2) — Harmless Error — -Misjoinder of Parties.
    Where the state brought suit to recover -taxes assessed for school purposes for the use ■of a school district, and the district, the proper ■party and in whose favor alone the judgment was rendered, came in by trial amendment, error, ’if any, .in the joinder of the state as plaintiff ■was harmless.
    FEd. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4070; Dec. Dig. @=>1036(2).]
    3. Appeal and Error @=>1041(2) — Amendment of Pleading — Harmless Error.
    It was harmless error to overrule an exception to an amended petition because it did not specifically designate the pleading amended by giving the date the same was filed.
    [Ed. Note. — For other cases, see Appéal and Error, Cent. Dig. § 4107; Dec. Dig. <@==>1041(2).]
    .3. Appeal and Error <@=>938(3) — -Record— Recitals of Fact — Presumption.
    . Where the bill of exceptions on appeal from <a judgment for the amount assessed for school .purposes did not contain any statement that as ■a matter of fact there had been no proof that a petition for the incorporation of the district had been signed as required by statute, or that there was no proof of an order of the commissioners’ court of a county for an' election to determine incorporation as urged by the objection, the presumption was to the contrary.
    [Ed. Note. — For other cases,- see Appeal and Error, Cent, Dig. §§ 3799, .3801, 3802; Dec. Dig. @=>938(3).]
    4. Schools and School Districts <@=>27 — Incorporation — Proof.
    The order of the commissioners’- court of a ■county declaring the result of an election to determine whether a free school district .should be incorporated, was prima facie proof of the fact that it was duly incorporated, in the absence of any contention to the contrary by some character of proof or pleading, especially where the objection urged was merely a collateral attack upon such corporation.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 45; Dec. Dig. @=>27.]
    5. Appeal and Error <@=>690(4) — Assignments of Error — Admission of Evidence-Bill of Exceptions.
    Where the bill of exceptions did not show whether an order admitted in evidence was in fact such as the bill recited, and there was no citation to the statement of facts which could be identified as that referred to in the bill, an assignment of error in its admission will be overruled, as also assignments of error to the admission of a notice of such election and an order levying a tax therefor.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2899; Dec. Dig. @==090(4).]
    6. Appeal and Error <@=>736 — Assignments of Error — Multifariousness.
    An assignment of error grouping all the questions raised by several assignments and again urging error was multifarious, and will not be considered.
    . [Ed. Note. — For other cases, see Appeal apd Error, Cent. Dig. §§ 3028, 3029; Dec. Dig. <@=> 736.]
    7. Appeal and Error @=>743(1) — Assignments of Error — Reference to Statement of Facts.
    An assignment of error not followed by any special reference to the statement of facts verifying the contention will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2999; Dec. Dig. @=>743(1).]
    Appeal from District Court, Erath County; J. W. Oxford, Judge.
    Suit by the State of Texas, for the use and benefit of the Lingleville Independent School District, against G. W. Clark. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. T. Daniel, of Stephenville, ■ for.' appellant. Chandler & Pannill and J. A. Johnson, all of Stephenville, for the State.
   DUNKLIN, J.

This suit was instituted against G. W. Clark to recover the sum of $24.64, taxes which had been assessed for school purposes, due the Lingleville independent school district, situated in Erath county, and from a judgment in favor of the school district against the defendant for the amount sued for he has appealed.

The suit was first instituted by the state of Texas for the use of the school district,* and several, assignments of error are presented to the order of the court overruling a general demurrer and special exceptions to the petition, upon the ground that, as the school'district was a duly incorporated body and authorized by statute to sue and be sued in its own name, the suit could not be main-táined in the name of the state, for the use of the district. It appears that after the exceptions were filed, and before they were presented to the trial court, the plaintiff filed a trial amendment in Which the school district made iself a party plaintiff, adopting the pleadings already filed in its behalf, and in its own name sought a recovery.

Even though it should be sáid that the state could not maintain the suit for the use and benefit of the school district, the proper, party came in by the trial amendment, and in whose favor alone the judgment was rendered, and even though it should be said that the joinder of the state as plaintiff with the school district was an improper joinder, the error, if any, in the ruling was harmless to the defendant, and presented no reversible error. Western National Bank v. T. C. U., 176 S. W. 1194, and. authorities therein cited; S. A. S. Ry. Co. v. Helm, 64 Tex. 147. Accordingly all of the assignments of error noticed above are overruled.

It was also harmless error to overrule an exception to the amended petition because it did not specifically designate the pleading amended by giving the date the same was filed.

The defendant also presented several other special exceptions to the plaintiff’s peti-, tion for lack of certain allegations, such as the purpose for which the taxes were assessed, the holding of the special election authorizing such tax, the appointment of a. board of equalization to equalize the taxes so assessed, etc., and assignments of error have been presented to the action of the court in overruling those exceptions. As all of those supposed deficiencies of allegation were supplied in the trial amendment ■ filed by plaintiff, there is no merit in those assignments.

Plaintiff introduced in evidence an order of the county, judge of Erath county, declaring the result of an election held for the purpose of determining whether or not the free school district should be incorporated; the result so declared being in favor of such incorporation. The defendant objected to the admission of that testimony upon the ground that there was no proof of a petition for such an election signed by 20 tax-paying voters as prescribed by statute, and upbn the further ground that there was no proof of any order by the commissioners’ court of Erath county for such an election. The bill of exception .does not contain any statement that the grounds of objection were in fact true; in other words, that as a matter of fact there had been no proof upon the points ig question, as urged by the objection, and, in the absence of some such statement, the presumption will be to the contrary. Terrell v. McCown, 91 Tex. 231, 43 S. W. 2; C., R. I. & G. Ry. Co. v. Thompson, 58 Tex. Civ. App. 134, 124 S. W. 144. This of itself would be sufficient ground for overruling the assignment now under' discussion. Furthermore, we'are of the opinion that, in all events, the order of the court declaring the result of the election was sufficient proof prima facie of the fact that the school district was duly incorporated under the statute, in the absence of any contention to the contrary by some character of proof or pleading, especially as the objection urged was merely a collateral attack upon such corporation. City of El Paso v. Ruckman, 92 Tex. 86, 46 S. W. 25. And this conclusion is a sufficient answer to several other assignments in which complaint is made of the admission in evidence of a written notice of an election for such incorporation; of the testimony of the witness Prank Grisham that the school trustees did organize; of a book kept by the board of trustees; and an order for an election to vote upon the issuance of bonds for the school district.

By another assignment of error it is insisted that the court erred in admitting in evidence an order for an election to vote upon the issuance of bonds in the school district, the ground alleged in the bill of exception being:

“Because said order authorized an election to determine whether a tax of a higher rate than 50 cents on the $100 worth of property in said district shall be levied on all taxable property in said district, and because said order is not authorized by law.”

Whether or not the order so introduced was in fact such as recited in the bill of ■exception does not appear in the bill itself, "and we are cited to no page in the statement of facts where the order could be identified as the one referred to in the bill. Accordingly the assignment of error is overruled, even though it could be said to be otherwise meritorious, a fact which we are ’ not called upon to determine; and for like reasons the further assignments of error to the admission in evidence of a notice of such election and the order of the school district levying the tax for such election are overruled.

By the twentieth assignment all of the ■questions raised by the preceding assignments are grouped and again urged, and which, of course, render the assignment multjfarious, and hence it cannot be considered.

By another assignment it is insisted that there was no proper equalization of taxes, but the assignment is not followed by any special reference to the statement of facts to verify that contention, and therefore the assignment cannot be considered.

Judgment is affirmed.

       @=>For other .cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    HILL v. STAATS.
    (No. 8416.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 21, 1916.)
    Master and Servant <@=>302(6) — Tort oe Servant-Scope of Employment.
    Where a_ chauffeur disobeyed his master’s instructions in leaving circus show grounds, although the master had enjoined him not to leave the grounds while the master’s wife and children were attending tRe circus, , and . an accident occurred while the chauffeur was apparently returning' to the grounds, the chauffeur was not, at the time of the injury to plaintiff, acting within the scope of his employment, on the ground that when the accident occurred he was at least resuming the service of the master.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1220; Dec. Dig. <©=» 302(6).]
    Appeal from District Court, Tarrant County ; Ben M. Terrell, Judge.
    On motion for rehearing.
    Motion overruled.
    For former opinion, see 187 S. W. 1039.
    J. W. Stitt, of Ft. Worth, for appellant. Capps, Cantey, Hanger & Short, of Ft. Worth, for appellee.
   BUCK, J.

Appellant has filed an able argument in support of his motion, and he stresses the point that though the chauffeur had disobeyed his master’s instructions in leaving the show grounds, yet, since the master had enjoined him not to leave the car during the time the master’s wife and children were attending the circus, but to remain in charge of the car, and since the accident occurred while the chauffeur-was apparently returning to the place where he had been ordered to remain, it should be held that in so returning the chauffeur was at least resuming the service of his master, and that, therefore, the .chauffeur was, at the time of the injury to plaintiff, acting within the scope of his employment.

We appreciate the force of the contention made, and it presents a question fraught with some difficulty, nor were we oblivious thereto at the time of the original consideration. There is considerable contrariety of holding upon the question of what constitutes the “scope of the servant’s employment.” As is said in the recent work of “Berry on Law of Automobiles,” § 613, p. 688:

“The phrase ‘in the course, or scope, of his employment, or authority,’ when used relative to the acts of a servant, means while engaged in the service of his master, or while about his master’s business. It is not synonymous with ‘during the period covered by his employment.’ It does not follow that because one who has been guilty of negligence was at the time acting under an employment by another, that he was acting within the scope of such employment. It must appear that the acts complained of were done by him while performing the duties pertaining to that employment. But the mere fact that the servant, acting for the .master, deviates from his instructions, does not take the act out of the scope of his employment. The test is whether the act done was in the prosecution of the business in which the servant was employed to assist. 1-Ie may be acting within the scope of his employment, although disobeying the express commands of the master at the time. The question of the ignorance or consent of the master has no bearing upon his liability.”

In the recent case of Eakin, Adm’r, v. Anderson, 169 Ky. 1, 183 S. W. 217, the chauffeur was directed to take the car from the garage at a stated time and call at a certain house, but, starting an hour earlier, he went on an errand of his own a distance further than that between the garage and the house to whichi he had been'directed to go. He then started from the place of his personal errand towards the house where his master had told him to go, and by a diffefent route than that by which he had come, and on this trip the accident occurred. The master was held not liable. In this case the court held that it was not so much a question as to whether there had been merely a deviation from, or an abandonment of, the master’s business, but the facts showed rather that at the time of the accident the chauffeur had not begun his master’s business. Yet the evidence did show that he was on his way to perform the errand directed.

In Fleischner v. Durgin, 207 Mass. 435, 93 N. E. 801, 33 L. R. A. (N. S.) 79, 20 Ann. Cas. 1291, the owner instructed the chauffeur to take his car to the garage, less than a mile away, but the chauffeur, without the owner’s knowledge or consent, drove the car on an errand of his own several miles distant, and just after turning back towards the garage the accident occurred. The owner was held not liable. To the same effect are Schoenherr v. Hartfield, 172 App. Div. 294, 158 N. Y. Supp. 388 (1916); 1 Shearman & Redfield, Neg. (6th Ed.) § 148; Douglass v. Hewson, 142 App. Div. 166, 127 N. Y. Supp. 220; Steffen v. McNaughton, 142. Wis. 49 (1910); McCarthy v. Timmins, 178 Mass. 378, 59 N. E. 1038, 86 Am. St. Rep. 490; Higgins v. W. U. Telegraph Co., 156 N. Y. 75, 79, 50 N. E. 500, 66 Am. St. Rep. 537.

While, as before suggested, other cases might be cited sustaining appellant’s contention, yet, in the face of the conflict of authorities, we conclude that the more reasonable and just rule has been followed by the courts whose decisions we have cited. Hence appellant’s motion for rehearing is overruled.
      <@=>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    BEENE v. NATIONAL LIQUOR CO. et al.
    (No. 5785.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 11, 1916.)
    Appeal and Errob <®=»101(1) — Decisions Reviewable — Finality op Determination.
    A judgment for certain plaintiffs for specific amounts, declaring alleged liens void, and by agreement oi the parties appointing a receiver to take possession of defendant’s property, and keep it, subject to the order of the court, until sold under execution or by the receiver, was a final and appealable judgment determining all the rights of the parties; the payment of the proceeds into court and distribution of same in accordance with the judgment being a ministerial and not a judicial matter.
    [Ed. Nqte. — For other cases, see Appeal and Error, Cent. Dig. §§ 681-685; Dec. Dig. 101(1).]
    Appeal from. District Court, McLennan. County; E. J. Clark, Judge.

      Suit by the National Liquor, Compány and others against Anderson & Baggett. Prom a judgment for plaintiffs for specific amounts, but declaring certain alleged liens void, W. P. Beene appeals.
    Motion to dismiss the appeal overruled.
    Boggess & Ñaman and Nathan Patten,- all of Waco, for the motion.
   JENKINS, J.

This suit involved the issues as to the indebtedness of Anderson & Baggett to the other parties to this suit, and the validity of certain alleged liens in favor of some of said parties. Upon the trial of the case upon its merits, the court declared the alleged liens to be void, entered jddgment in favor of said parties for specific amounts, for which, they may have execution, and by agreement of all parties, appointed .a receiver to take charge of certain property of Anderson & Baggett, now in possession of one of the parties to the suit, “and hold the same subject to further orders of this court.”

Appellant, who is claiming a mortgage lien on said property, has appealed from the judgment of the court. Appellees move to dismiss the appeal upon the ground that the judgment is not final.

It seems that the purpose of appointing a receiver was that he might take possession of and preserve the goods until the same could be sold under execution, or by said receiver, in which event it follows from the judg-. ment entered, unless the same be set aside, the proceeds would be paid, into the registry of the court and distributed in accordance with said judgment.

We think this is a final judgment. All of the rights of the parties were determined, and what remains to be done is ministerial

and not judicial in its character. Merle v. Andrews, 4 Tex. 208-211; Cannon v. Hemphill, 7 Tex. 184; Shannon v. Taylor, 16 Tex. 418; Patrick v. Gibbs, 17 Tex. 279; Redus v. Burnett, 59 Tex. 578-581; White v. Mitchell, 60 Tex. 165; Hartzell v. Jones, 2 Posey, Unrep. Cas. 563; McFarland v. Hall, 17 Tex. 690.

Motion overruled.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes.


author: MOURSUND, J.

text:
    HUGHES v. TURNER.
    (No. 5708.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 26, 1916.)
    1. VenTte @=>29 — Contract—Place of PERFORMANCE»
    Where plaintiff, residing in H. county, sold to defendants, residents of the same county, but whose partnership conducted business in another county, cotton to be delivered at their, place of business, and tendered it at the time fixed for delivery, and the firm refused to accept it, so that plaintiff was compelled to sell it at a loss, .his action for damages should be brought in H. county, and not in the county where defendant’s business was conducted, since the confirmation of the sale and purchase requiring delivery in such other county added nothing to the contract, and did not make the contract performable there.
    [Ed. Note. — For other cases, see Venue, Gent. Dig. § 43; Dec. Dig. @=29.]
    2. Appeal and Error @=>1173(2) — Reversal —Plea oe Privilege.
    Where plaintiff sued -three partners, all residents of the same county, for damages for failure to accept cotton tendered as per a confirmation of sale and purchase, and where only one of the defendants appealed from the denial of Ms. privilege to be sued in the county of his residence, and the judgment was reversed and dismissed as to him, it would not be disturbed as against the other defendants.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 4568, 4656; Dec. Dig. @= 1173$).]
    Appeal from San Patricio County Court; M. A. Childers, Judge.
    Action by Clint V. Turner against Ralph Hughes, W. D. Maples, and another. Judgment for plaintiff against all the defendants, and defendant Hughes appeals.
    Reversed as to appellant, Hughes, and the case as to him dismissed.
    D. E. Decker and M. M. Kankins, both of Quanah, and M. C. Nelson, of Sinton, for appellant. B. D. Tarlton, Jr., and H. S. Bonham, both of Beeville, for appellee.
   MOURSUND, J.

Cliñt V. Turner sued Ralph Hughes, W. D. Maples, and R. V. Arnold, all residents of Hardeman county, alleging that they were partners under the firm name of Hughes & Co., engaged in the business of cotton brokers, which business they had conducted in' the town of Sinton, and had bought from plaintiff 50 bales of cotton to be delivered at Sinton, Tex., on or about August 4, 1914, at the price of 12.75 cents per pound, basis middling; that plaintiff tendered said cotton on August 4th, and Hughes & Co. refused to accept the same; that on said date cotton was worth only 9%- cents per pound, basis middling; that he was compelled to sell at that price and lost $758.

Arnold failed .to answer. Maples filed a plea of privilege, and answered generally. Hughes filed a plea of privilege to be sued in Hardeman county, and subject to said plea ánswered generally, especially denying, under oath, the partnership alleged and that Arnold and Maples were his agents.

A verdict upon special issues was returned, «and judgment entered thereon -in favor of plaintiff against all the defendants for $757.77, with interest. „ Only Hughes appealed.

We conclude that under the undisputed facts the appellant’s plea of privilege should háve been sustained, and that the court erred in submitting issues relating thereto to the jury, and, upon their answers thereto, overruling said plea. The only contract in writing was constituted by confirmations of the sale and purchase. The confirmation of the sale stated that Turner had sold to Hughes & Co. 50 bales of cotton f. o. b. Sin-ton, basis middling, at 12.70 cents per pound. The confirmation of purchase added nothing to the contract, but merely showed assent to the terms stated in the confirmation of sale. The obligation alleged to have been breached by Hughes was that of paying for the cotton. This obligation was not performable at Sin-ton under the terms of the written contract. We think this case is governed by the following decisions: Bomar Cotton Oil Co. v. Schubert, 145 S. W. 1193; Ogburn-Dalchau Lumber Co. v. Taylor, 59 Tex. Civ. App. 442, 126 S. W. 48; Casey v. Carr, 148 S. W. 601; McCammant v. Webb, 147 S. W. 693.

As between the plaintiff, Turner," and defendants Maples and Arnold, who have not appealed, the' judgment of the trial court will not be disturbed, but as between plaintiff and appellant Hughes it is reversed, with instructions to sustain the plea of privilege and dismiss that part of the case. Ft. Worth Horse & Mule Co. v. Smith, 149 S. W. 200; Galveston D. G. Co. v. Mitchell, 171 S. W. 278.
      @=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    COMER v. POWELL et al.
    (No. 1042.) ■
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 25, 1916.)
    1. Gaming <§=>11 — Public Policy — “Wagering Contract.”
    An agreement by a thrasher, after looking over a farmer’s wheat ricks, that he would give the farmer 4,350 bushels of wheat therefor, the thresher to retain any excess thrashed therefrom and to make good to the farmer any deficiency necessary to make up the 4,350 bushels, was unenforceable as being a “wagering contract,” void as against public policy, and not a sale (quoting Words and Phrases, First and Second Series, Wagering Contract).
    [Ed. Note. — Foi- other cases, see Gaming, Cent. Dig. §§ ■ 19-21, 23, 26; Dec. Dig. <§== 11-)
    2. Exemptions <©=>45 — Tools and Apparatus op Trade — “Tools of Trade” — “Apparatus op Trade.”
    A thrashing outfit is not exempt property as “tools of trade,” or “apparatus of trade.”
    [Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 56-61; Dec. Dig. <©=>45.
    For other definitions, see Words and Phrases,. First and Second Series, Apparatus, Tools of Trade.]
    3. Attachment <©=>357 — Wrongful Attachment-Defect in Proceedings — Untrue Ground in Affidavit. ,
    An attachment is wrongfully issued if based upon affidavit stating, untruthfully,- that defendant is justly indebted to plaintiff.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1037, 1309, 1310; Dec. Dig. <©=> 357.]
    4. Attachment <©=>375(2) — Damages for Wrongful Attachment.
    A writ of attachment, wrongfully issued and levied on property, entitles the' owner thereof to at least nominal damages, although the property be not exempt.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1387, 1398, 1399; Dec. Dig. <©=> 375(2).]
    Appeal from Roberts County Court; J. E. Kinney, Judge.
    Action by G. N. Powell and others against C. R. Comer. From a judgment, defendant appeals.
    Reversed, and in part rendered and in part remanded.
    Baker & Willis, of Canadian, and Troy Smith, of Tyler, for appellant. Coffee & Holmes, of Miami, and M. J. R. Jackson, of Amarillo, for appellees.
   HALL, J.

Appellee Powell, joined by his-two sons, as plaintiffs, sued appellant Comer, alleging that on or about September 1, 1915, Powell and his sons were the owners of certain wheat in ricks in the field, which had been harvested from 325 acres of land; that, they sold the wheat to Comer at the estimated and agreed amount of 4,350 bushels, as-follows: That after they had examined the wheat together, Comer made an offer to purchase the same, and to give plaintiffs therefor 4,350 bushels thrashed and delivered in plaintiff’s wagons on the premises. That all over and above 4,350 bushels which might be thrashed from the wheat as it then stood was to belong to Comer, and if the ricks did not thrash out the 4,350 bushels, then Comer should make up the difference to plaintiffs. Plaintiffs accepted said offer and Comer thrashed and delivered from said ricks 3,893]4 bushels, but refused to deliver a sufficient amount to make 4,350 bushels. That the wheat was worth 95 cents per bushel, and judgment was asked for the value of the difference in bushels between 3,893% and 4,350. A writ of attachment was also sued out and levied upon a separator and engine, belonging to defendant Comer. Comer answered that the contract' lacked consideration ; that it was not based on any profit or benefit that could have accrued to defendant, nor any loss' or 'detriment to plaintiffs, but was based on the -mere chance of gain or loss to the defendant, according to the happening of an uncertain future event, namely, the amount of the yield of the wheat in thrashing; that it was a wagering contract, in that it was based on the happening of the uncertain event as to whether the wheat then in ricks would thrash out more of less than 4,350 - bushels; that there were in reality only 3,893% bushels which could be thrashed, and that the contract "was therefore physically incapable of performance; that the contract was void for want of mutuality; that it had been reduced to writing, and contained a stipulation that appellant Comer should thrash appellees’ wheat, and should receive therefor all above 4,350 bushels ; that the contract was induced by fraudulent representations on the part of plaintiff, leading defendant to believe that there were more' than. 4,350 bushels in the field. Defendant reconvened for damages in the sum of $311, being the value of his services in thrashing the wheat, and sued also for damages for -the wrongful and malicious levy of the attachment writ upon his thrashing outfit. A trial before a jury resulted in a verdict and judgment against defendant Comer .for $201.85.

The first proposition urged is that the contract as made, being a wager, is void because against public policy. Appellee Powell testified, in substance: That Comer came to his farm about the last day of August to secure his crop to thrash; that he told Comer he had been talking to other thrashers, but had not closed a deal with them. In the conversation Comer asked -him what he thought his wheat would maké„ The witness told him it was not as good as some other wheat in the county, from the simple fact that hail had damaged it. ' Comer then said, “You will make 5,000 or 6,000 bushels,”to which witness replied that he did not think so. Comer said he was thrashing at Mr. Eller’s, whose wheat was turning out better than everybody expected,-: and that witness’ wheat would turn out better, and then asked witness what he would take for his wheat crop, saying, “Let me -thrash it at my expense and turn it over.” Witness replied, “4,500 bushels.” Comer then proposed to ride down and look at the wheat. That they looked at three ricks on the north side of a turnrow running through the field, then crossed over to the south side and looked over the ricks there. Witness told Comer that there were either 68, 70, or 72 rická; that he did not remember exactly the number ; that Comer examined the -wheat and tested it, and finally said he would give witness 4,250 bushels for the crop, which witness refused to take. Then Comer said, “I will give you 4,300,” which witness also refused. Mnally they agreed to split the difference and made the amount 4,350 bushels. After ■examining the wheat further witness said:

“If we deal I do not want any quibbling. We make the deal on 68 ricks, more or less, you •may thrash these two fields and 38 acres volunteer wheat, and I will split with you and take ■4,350 bushels, which Comer agreed to do.” “After we went back to the house I told one of my boys the deal we had made, as he had. an interest in the crop, and the boy said, ‘And in the event there is not 4,350 bushels, what are you to do about it?’ Comer said ‘I am to make 4,350 bushels good’; that he would make the short-age good.”

While plaintiff alleged that the.- transaction was a sale, it is clear from the evidence that such allegation is not true. Comer did not purchase from Powell, nor did the latter .sell Comer any wheat. It was simply a transaction based upon the belief on the part of Comer that the ticks of wheat owned by Powell contained considerably more than 4,350 bushels, and his proposition was made with no intention whatever of becoming the ■owner of any of the 4,350 bushels, but with the hope of gaining a liberal excess over that amount. The question squarely presented is, Is the transaction a wagering contract? Briefly stated, Comer undertakes to thrash 4,350 bushels of wheat for Powell gratis, and ’ guarantees that said ricks contain -that amount, in consideration of which he is to have any excess which the ricks may contain. On the other hand, Powell is guaranteed 4,350 bushels of wheat thrashed without expense, but loses any amount in excess thereof which said ricks may possibly contain. Referring to Words and Phrases, vol. 8, p. 7365 et seq., we quote the following definitions of the terms “Wager” and “Wagering Contract”:

“Bouvier defines a ‘wager’ as follows: Wager, a bet; a contract by which two persons or more agree that a certain sum of money or other thing shall be paid or delivered to one of them on the happening or not happening of an uncertain event (citing authorities). This definition implies that to every wager there must be two or more contracting parties having mutual or reciprocal rights in respect to the money or other things that are wagered, and usually called stakes of the bet or wager, and that each of the parties shall jeopardize something and have the chance to make something, or to recover the stakes or thing, bet, or wager upon the- determining of the contingent or uncertain event in his favor. Jordan v. Kent, 44 How. Prac. (N. Y.) 206; Treacy v. Chinn, 79 Mo. App. 648.”
“A wager is defined as a contract in which the parties stipulate that they shall gain or lose upon the happening of an uncertain event in which they have no interest, except that arising from the possibility of such gain or loss. Fareira v. Gabell, 89 Pa. 89; Kitchen v. Loudenback, 48 Ohio St. 177, 26 N. E. 979, 29 Am. St. Rep. 540.”
“A bet or wager is ordinarily an agreement between two or more that a sum of money or some valuable thing in contributing which all agree to take part shall become the property of one or some of them on the happening in the future of an event at the present uncertain, or upon the ascertainment of a fact in dispute. This definition, though not exhaustive, sufficiently expresses what is meant by a wager. The essential elements of an ordinary waging contract are: (1) An agreement by one party to pay another a sum of money or give something of value if a certain event happens; (2) a reciprocal agreement by the second party to pay the first a sum of money or give something of value if a contrary event happens; and (3) that the event contemplated in the agreement shall be something other than the passing of a consideration between the parties. Winward v. Lincoln, 23 R. I. 476, 51 Atl. 106, 112, 64 L. R. A. 160.”
“A wager is something hazarded on the issue of some uncertain event. Cassard v. Hinman, 14 N. Y. Super. Ct. (1 Bosw.) 207, 213.”
“A wager is a bet or stake laid upon the result of a gain or upon acts to be done, events to happen, or facts existing or to exist. Woodcock v. McQueen, 11 Ind. 14, 15.”
“A wager is a bet which is a pledge, as of money to be paid to another in a certain event, the other pledging to pay a forfeit in the contrary event. Ballard v. Brown, 67 Vt. 586, 32 Atl. 485.”

We quote the following definitions from Words and Phrases, 2d Series, vol. 4, p. 1217 et seq.:

“The essence of a wager is that each party stands to win or lose on the result, and that tbe gains depend on the event. Thompson v. Williamson, 67 N. J. Eq. 212, 58 Atl. 602.”
“A wager is a contract by which two or more parties agree that a certain sum of money or other thing shall be paid or delivered to one of them on the happening of an uncertain event. A wager is an agreement between parties differing as to an uncertain fact or forecast of a future event. Wright v. Stewart [C. C.] 130 Fed. 905.”

The above definitions have been framed by the courts with reference to the facts of the several cases in which they are found, and, of course, none of them are exactly applicable here.

“In a great majority of the states all wagering contracts have been expressly repudiated by the courts as void, whether the parties have any interest in the event beyond what is created by the wager or not.” Harvey v. Merrill, 150 Mass. 1, 22 N. E. 49, 5 L. R. A. 200, and note. 15 Am. St. Rep. 159, 6 R. C. L. “Contracts,” § 182.
“The uniform tendency of the later decisions is to treat gaming contracts and all wagers as utterly void. We feel ourselves authorized to conform our decisions to the public policy and to the sense of morality which the modern decisions and the modern legislation on the subject of. gaming and wagers so clearly indicate. We find that the ancient rule of the common law was subject to certain exceptions, and in proportion- as the courts have considered these questions, these exceptions to the ancient rule have been adjudged to be more and more comprehensive in their embrace, until, as has been said, the exceptions to the rule have taken the place of the rule itself. We think that, in the true spirit and meaning of the exceptions to the old rule, all idle wagers and all gaming contracts may be properly held to be void: (1) Because it is contrary to sound public policy that courts of justice should be required to enforce contracts into - which there does not enter the element of a good or valuable consideration, in the just sense of these words. What consideration is it for the payment of $1,000 that one man shall leap farther than another at three leaps? If A. agrees with B. that he will pay him $1,000 if a certain horse belongs to C., but if the horse belongs to B., then B. shall pay A. the like sum, where is the consideration of such a contract? There can he no consideration but the mutual risk to which each party subjects himself. And can it be said to be sound public policy to permit parties. to take such risks, upon such trifling and frivolous issues? We think not.” Monroe v. Smelly, 25 Tex. 586, 78 Am. Dec. 541.

In the instant case Comer received no consideration whatever for his labor and expense in thrashing Powell’s wheat, and, furthermore, this suit is instituted to recover, the price of additional wheat which he hazarded on the uncertain event, We think the definition quoted above from Fareira v. Gabell, restricting the character, of such a contract to one in which the parties have no interest in the event beyond the possibility of gain or loss, is too narrow. The several owners of various horses entered for a race have an interest, not only in the stakes, but in their respective horses and the speed to be developed by each. Our Supreme Court, in Monroe v. Smelly, supra, further said:

“We think that it certainly tends to the detriment of the public that the time of the court should be consumed in the investigation of the most idle or frivolous matters about which the parties who lay the wager have no interest, to the delay of causes of the greatest magnitude, perhaps, and certainly to the delay of the ordinary business transactions of life.”

In the case of Burney v. Blanks, 136 S. W. 806, Key, Chief Justice, held that the sale of 133 bales of cotton at 10.81 cents per pound, paid at. the time of the sale, was a valid transaction to that extent, but condemned that part of the contract wherein it was provided that on a subsequent named date the parties should have a further settlement, to be .based upon the price of cotton on such date. Although the parties in this case had an interest in the ijroperty which constituted the subject-matter of the wager, we think the element of chance taints the entire transaction, and that upon the facts set out above neither party is entitled to recover anything in a suit or cross-action based upon it. In Brua’s Appeal, 55 Pa. 294, it is said:

“Anything which induces men to risk their money or property without any other hope of return than to get for nothing any given amount from another is gambling.”

The uncertain fact in the instant case, of course, was the number of bushels of wheat contained in plaintiff’s ricks. Comer estimated the amount at. from 5,000 to 6,000 bushels, and was willing to ‘.‘back his judgment” by staking his labor, together with the expenses of thrashing it, and a guaranty of at least 4,350 bushels upon the result,'. Powell guessed the amount at considerably less, but in order to get his crop thrashed without cost and the assurance of '4,350 bushels, he was willing to hazard all over that amount. The result of the transaction is that he obtained something for nothing.' If the ricks had contained 6,000 bushels Comer would have been liberally compensated for thrashing, but he would have obtained something for nothing. The whole matter is as if Comer had said, to Powell:

“You think the ricks contain only 4,350 bush-éls. I will bet you thfe cost of thrashing them, together with enough' wheat to net you 4,350 bushels, against all the excess which the ricks may contain, that I. can thrash from them between 5,000 -and 6,000 bushels”

—and Powell had accepted his offer. This; is the kind of a contract which our Supreme-Court, in Monroe v. Smelly, supra, condemned in the following language:

“Lastly, because a great majority of wagers-are immoral in their tendency, in a plain and direct sense, and they all beget a desire, * * * to possess another’s money or property without an equivalent, and this, if not an-immorality in itself, opens the way to vice. ■ It might not attract much attention for this - court to render a judgment against a man for $1,000 lost at tenpins, or on the turn of a card, or on the issue' of a fight between two dogs, hut if a dozen such judgments should be rendered at every term of this court for the next five years, it would be a blot upon the jurisprudence of the state, - from which it would not recover in half a century; and it might present to the people the spectacle of the courts prostituted to the odious instrumentality of stripping women and children of the common comforts of life because some one who owed them support and protection had been capricious enough to stake his substance upon a wager that he could throw a stone a thousand feet. * * * We cannot see, therefore, that a wager upon a game li•censed by law stands on any different footing from a wager upon any indifferent .matter.”

Gaines, Justice, in Willis v. Morris, 66 Tex. 628, 1 S. W. 799, 59 Am. Rep. 634, said:

“Expensive and complicated machinery pro-polled by steam power, or any power other than hand, is not exempt as ‘tools of trade’; the latter phrase being held to apply only to simple instruments used by hand. Thomp.' Homst. and Ex. § 766. The word ‘apparatus,’ used in the statute, may take a wider range,. and- embrace such minor machinery as may be operated by hand, and such-as courts of higher authority have held not to be included under the term ‘tools,’ as used in- similar enactments.”

Upon this authority we hold' that the thrashing outfit was not exempt property. Since the contract was a wager, the ground in the affidavit for attachment that Comer was justly indebted to Powell is untrue, and the attachment was therefore wrongfully issued. Further than this we express no opinion upon the merits of the attachment proceeding.

The writ having been wrongfully issued and levied, though not on exempt property, would, upon another trial, entitle Comer to recover at least nominal damages.

■ We have not ■ undertaken to discuss the many assignments in appellant’s brief in detail, but what has been said disposes of the material questions presented.

The judgment in favor of Powell against Comer is reversed, and rendered that Powell take nothing. We further hold that Comer cannot recover any compensation for thrashing. As to all other issues the judgment is reversed, and cause remanded.
      <®=s>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CORBETT v. ALLMAN.
    (No. 8404.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    June 17, 1916.
    On Motions for Rehearing, Oct. 14, 1916.
    Rehearing Denied Nov. 11, 1916.)
    1. Trespass to Try Title <©=>57 — Improvements — Statute—Equitable Principles.
    Although the right to recover for improvements in good faith is established by'Vernon’s Sayles’ Ann. Civ. St. 1914, art 7760, yet to avail himself of the right one must show himself ready and willing to do equity; the right being one founded in equity.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 88; Dec. Dig. <©=>57.]
    2. Trespass to Try Title <©=>4r--Effect op Vendor’s Lien — Limitation op Action on Notes.
    A purchaser in possession under' a land contract, on which he paid part cash and was to execute notes for the balance, which notes were never executed by him, could not, without tendering the balance, recover the land in trespass to try title, by pleading and proof that the notes would have been barred by. the four-year limitation if they had been executed; such action amounting to a repudiation of the contract under which he held.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 4; Dec. Dig. <©=>4.]
    3. Trespass to’ Try Title <©=>25 — Limitations.
    In trespass to try title, the pleading of stale demands is not available as a defense, where one equitable claim is asserted against another!
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 30, 31; Dec. Dig. <6= 26.] ¡ ■
    4. Trespass to Try Title <@=>47(1), 57 — Rem - . edy op Purchaser — Lien por. Purchase Money and Value op Improvements.
    A purchaser in possession of land under a land contract, on which he paid part cash and was to execute notes for the balance, which notes were never executed by him, who brought trespass to try title, alleging the notes, if executed, would- have 'been barfed by the four-year limitation, and not tendering the balance of the purchase price, thereby deprived himself of -the right to recover for the improvements, since such suit was an attempt to repudiate the contract under which he' went into possession; but •he was entitled to judgment vesting title in him upon payment of the balance of -the purchase money, with costs, by reason of his improvement of the land through' years of effort.
    • [Ed. Note. — For other cases, see .Trespass to Try Title, Gent. Dig. §§ 69, 88; Dec. Dig. <®=> 47(1), 67.] .
    On Motions for jEtehearing.
    6. Appeal and Error <©=>931(3) — Pbesump-TIONSr-FlNDINGS.
    Where no finding is made on a certain point, but’ the testimony thereto is uncontradicted, a finding in accordance -with the testimony will be imputed to the lower court.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 3764; Dec. Dig. <©=>931(3).]
    6.. Bills and Notes <©=>534 — Attorney’s Fees — Recovery in Collateral Suit.
    Where purchaser in possession sued for title to land, claiming the notes he would’-have executed therefor, if they had been presented, would have been barred, and defendant recovered, defendant'was not entitled to the stipulated attorney’s fees on the notes, since his recovery was not on the notes, but in equity .on his superior title to the land and after long delay in prosecuting his claim.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1946, 1947; Dec. Dig. <©» 534.]
    Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.
    Action by Chas. Allman against W. C. Cor-bett and others. From the judgment; the-named defendant appeals.
    Reformed and affirmed.
    Earl Conner, of Eastland, for appellant. J. R. Stubblefield, of Eastland, for appellee.

      Application lor writ of error pending in.Supreme Court.

   BUCK, J.

Appellee, Charles Allman, instituted this suit in- the district court of Eastland county against the following parties and the unknown heirs of each: W. C. Corbett, Matt Finch, Thomas Tinsley, William Savoy, and E. M. Ewing. The suit was in the form of trespass to try title, and involved 100 acres out of the Matt Finch survey. Plaintiff further pleaded the 10-year statute of limitation against all parties defendant. As to defendant Corbett, plaintiff pleaded specially that on April 6, 1899, Cor-bett purchased at sheriff’s sale the property in question and received the sheriff’s deed covering the same, and on April 29, 1901, said Corbett contracted and agreed with plaintiff to convey to him by general warranty deed said premises, for the consideration of $300 and the payment of all taxes on land, said $300 to be payable in the following amounts and upon the named dates, to wit: $39.80 in cash on the delivery of said contract, and the balance in four annual payments, evidenced by notes bearing date May 1, 1901, and due, respectively, three, four, five, and six years after date, all bearing interest from date at the rate of 10 per cent, per annum and providing for the usual attorney’s fees. He alleged that the cash consideration and taxes due had been paid, and that the plaintiff had been ready and willing to perform his part of the said contract, but that the defendant Corbett had failed and refused to deliver a deed to the property, and the plaintiff did not execute said notes. Plaintiff further pleaded that the notes provided for in the executory contract would have, if they had been executed, matured more than four years next before the filing of his suit, and that therefore defendant Corbett’s right to recover thereon, if any, was barred by limitation. Plaintiff prayed for the cancellation of the notes which were agreed to be executed and of all the rights which might be possessed by defendant Corbett on account of the said contract, the removal of any cloud upon plaintiff’s title, and that, upon hearing, title be vested in him in fee simple against all defendants.

Plaintiff, in his supplemental petition, pleaded valuable improvements made in good faith in an amount alleged to be $2,870, and in the alternative prayed for judgment in his favor for said amount.

Defendant Corbett in his answer pleaded the general denial and the general demurrer, and specially excepted to plaintiff’s petition, in that it clearly appeared from said pleading that plaintiff was holding under and by virtue of the written contract to convey, and that plaintiff had repudiated the same and was seeking a cancellation of such contract by virtue of which he acquired possession of the lands sued for, and was not seeking to comply with the terms of said contract, and failed to allege that his possession had been disturbed or threatened, and therefore he was not entitled to recover against defendant for valuable improvements made. Defendant further pleaded the contract of sale set out in the plaintiff’s1 petition, and the promise of plaintiff to pay the sum of $3 per acre for the land described in his petition, exclusive of all taxes and the sum of $39.80 paid to the agent as a commission. The only difference in the allegation as to the agreement • as to the execution of the notes was that defendant alleged said notes were to bear only eight per cent, interest. Defendant denied that plaintiff had ever made any request of him for the execution and delivery of a deed and alleged that, if he had done so, defendant would have complied with such request. He further alleged the insolvency of plaintiff, and the latter’s repudiation of the agreement and contract and trust relation that existed between plaintiff and this defendant, and that it was agreed between plaintiff and defendant that said notes to be executed by the plaintiff should be vendor’s lien notes and constitute a lien upon the lands described. Defendant prayed, first, for judgment rescinding said contract of sale and vesting title in him to the land and for writ of possession, and, in the alternative, that he have judgment for his debt, principal, interest, and attorney’» fees, and have a foreclosure of the purchase-money lien provided in the notes agreed to be executed.

Upon a trial before the court, judgment was awarded plaintiff, decreeing in him title against all other parties defendant, except defendant Corbett, and awarding him as against W. C. Corbett a recovery in the sum of $1,620 for permanent improvements placed on the land, less the value of the use and occupancy of the land since 1901, and giving him an equitable lien on the land to secure the payment of said amount. Judgment was rendered in favor of Corbett for the recovery of the land, subject to the equitable lien in favor of Allman for improvements. From this judgment, Corbett appeals.

Defendant Corbett’» special exception No. 2 was as follows:

“And specially excepting to that portion of said pleadings wherein it is sought to recover for valuable improvements placed on the land sued for, he says that the same is insufficient in law, in that it clearly appears from said pleadings that plaintiff is holding under and by virtue of a written contract to convey, and has repudiated the same and seeks a cancellation of such contract, and by virtue of the terms of which he acquired possession of the lands sued for, and does not seek to comply with such terms, and it further appears that his possession alleged has not been threatened or disturbed, and therefore he is not entitled to recover valuable improvements against this defendant, grantor in such contract to convey.”

Appellant’s first assignment of error is urged to the action of the court in refusing to sustain and in overruling this exception. The fourth assignment reads as follows:

“The trial court committed prejudicial error herein, in rendering judgment in favor of appel-lee, Allman, for $1,620, for improvements in good faith, because the same was not supported by either the pleadings or evidence in this: Ap-pellee Allman, sued in trespass to try title, and pleaded title by limitation as against appellant, and sought a repudiation of a written contract of purchase entered into by and between him and appellant, under the terms of which and by reason of which he went into actual and immediate possession, and it appeared from the pleadings of appellant that he first sought a rescission of such contract, the same having been repudiated by appellee, and, second, for specific performance, and the evidence, without contradiction showed that appellee Allman, went into possession of the lands involved in this sqit under and by virtue of said contract'of purchase; that under the terms of such contract and the evidence, appellant was not at the time of the institution of the suit required to execute any general warranty deed to’ appellee to said lands; that he would have done so, however, had the same been fequested by appellee, and upon a compliance by appellee of the terms of such contract to be by him performed; that appelldnt had never sought to oust appellee, or a rescission of such -contract prior to the time of the institution of this suit by appellee; that appellee was not disturbed in his possession, nor was his possession threatened, by any adverse claimant to said lands, or by reason of any outstanding legal title in any one else, and therefore he was not entitled to the value of any improvements placed by him thereon, he not being an innocent purchaser in good faith of said lands as to appellant.”

The right to recover for improvements in good faith, while established by statute (article 7760, Vernon’s Sayles’ Texas Civil Statutes), is yet a right founded in equity, and in its enforcement equitable rules apply. Patrick v. Roach, 21 Tex. 256; Eberling v. Deutscher Verein, 72 Tex. 339, 12 S. W. 205; Wood v. Cahill, 21 Tex. Civ. App. 38, 50 S. W. 1071. Hence, before one can avail himself of this right, whether under the statute or under the general rules of equity, he must show himself ready and willing to do equity. If by his pleadings he repudiates the contract or agreement by virtue of which he went into possession, and pleads the statute of limitation against his grantor, denying the title and right which he acknowledged and accepted at the time of taking possession, he may exclude himself from the operation of the equitable powers of the court. In Efron v. Burgower, 57 S. W. 306, the Court of Appeals for the Fifth District held, where in an action by a grantor to recover of grantees land on which a vendor’s lien was reserved, and in the alternative to foreclose the notes evidencing such lien, the defendants made no tender of the balance due on the purchase price, but pleaded the statute of limitation to the notes, that the defendants, in urging the statute of limitation to the notes, compelled a rescission of the contract of sale, and deprived themselves of any benefits that might flow from a foreclosure thereof, and that plaintiff was entitled to a judgment for the recovery of the land, free of any equitable lien defendants might have had for improvements made in good faith, etc. See, also, Moore v. Giesecke, 76 Tex. 543, 13 S. W. 290; Johnson v. Schumacher, 72 Tex. 334, 12 S. W. 207; Hintze v. Krabbenschmidt, 44 S. W. 38; King v. Maxey, 28 S. W. 401.

We think the trial court here correctly held that the statute of limitation as pleaded by defendants was not available in this character of suit. 38 Cyc. 1206; Stafford v. Stafford, 96 Tex. 106, 70 S. W. 75; Martin v. Parker, 26 Tex. 253; Secrest v. Jones, 21 Tex. 121; Lyster v. Leighton, 36 Tex. Civ. App. 62, 81 S. W. 1033. Even where one equitable claim is asserted against another, the plea of stale demand is not available as a defense. Wright v. Dunn, 73 Tex. 293, 11 S. W. 330; Scarborough v. Arrant, 25 Tex. 129. By plaintiff’s repudiation of the contract und.er which he went into possession of the land, and his plea of limitation, and his prayer for the' cancellation of the equitable lien in favor of the defendant grantor, plaintiff, under strict rules of equity, deprived himself of a right to recover for improvements in good faith. But as no question is raised as to defendant’s right to recover the title to the land, and as the evidence amply supports the finding of the court that the improvements placed on the land by the plaintiff were made in good faith, we have concluded that, in sustaining appellant’s first and fourth assignments, we are not required to deny plaintiff all equitable relief, but that we are permitted, in the exercise of our equitable powers, to reform the judgment to this extent, to wit: That defendant have judgment, with writ of possession to the land in controversy, and that plaintiff recover nothing upon his plea for permanent improvements made; but it is further provided that a stay of judgment be granted, so that if, on or before November 1, 1916, plaintiff shall pay, or cause to be paid, to defendant Corbett the sum of $300, with interest at 8 per cent, as agreed upon, from May 1, 1901, and all costs of suit, that then title to the land shall be vested in plaintiff.

Reformed and affirmed.

On Motions for Rehearing.

Appellee insistently urges error in our original opinion in several respects. Upon a careful review of the record, we are of the opinion that the principal sum found by us to be due on the original contract is properly subject to some deductions. The contract of sale between Corbett and Allman, or Alimón (both spellings occurring in the record) provided that the purchase price should be $300, payable as follows:

“(1) The sum of $39.80 on the delivery of this contract. (2) All taxes now due or that may fall due on said land at such time as will prevent it being sold for taxes, and all costs connected with such taxes. (3) The balance of said $300 in four equal promissory vendor’s lien notes,” ete.

The court did not specifically 'find that plaintiff made the $39.80 payment, but the uncontroverted testimony of plaintiff was that he did, and therefore we should probably impute to the court such a finding in favor of the judgment. Paragraph II of the court’s findings of fact reads as follows:

“That at such time there was due in back taxes, penalties, and costs the sum of $74.74.”

There is no finding that the plaintiff paid this amount. Paragraph VI of the court’s findings merely says:

■' “That the plaintiff has' each year paid the current taxes on said property 'since the date.oí said contract.”

Paragraph VIII finds:

• “That the said defendant Corbett has paid no .taxes whatever upon the said property since 'the date of said contract.'”

■ There is some evidence, the testimony, of M. B. Harris, witness for plaintiff, that hack taxes were paid on a larger tract, of which plaintiff’s 100 acres, the land in controversy, was a part, and that plaintiff paid a part of these back táxes. There is no satisfactory evidence as to what amount was in fact paid by plajntiff. However, perhaps, in this, state .of .the. record, we should impute to the court, in "support of the judgment, the jindipg that the plaintiff in fact paid the $74.74.. These two sums amount to $114.54, leaving the balance due -on the purchase price of $185.46. This amount, instead of $800, as designated in our original judgment, with 8 per cent, interest from'May 1, 1901, would constitute the sum. the payment of,■ which, by plaintiff on or before November ■ 1, 1916, should be made the condition of vesting title to the land in him, and to this extent we, grant appellee’s motion to reform- the judgment. It might;. be proper to state, that plaintiff’s own ple,adings with reference to what the consideration was recite it to have be.en “$300 and [italics ours] the payment of. all tax”; but by reference to the contract set forth in the .statement of facts, and pleaded in, ex-tenso by defendant Corbett, we find the past-due taxes to be paid by plaintiff were a part of the $300 consideration.

As to other objections urged by appellee, we think they should be overruled. .Appel-lee brought this suit in form of-trespass to try; title, and specially pleaded the contract^ and his promise to pay the balance of the purchase price,.yet he specially pleaded the statute of limitation as to such obligation, and also pleaded the 10-year statute of limitation founded upon adverse possession. He never pleaded a sufficient tender, nor did he in fact tender the unpaid purchase price. Certainly, he did not offer to do equity, and was in reality in no position to invoke the equity powers of the court. Pitman v. Robbins, 59 S. W. 601; Curran v. Texas L. & M. Co., 24 Tex. Civ. App. 499, 60 S. W. 466, 467; Diffie v. Thompson, 88 S. W. 381, 382; Land & Cattle Co. v. Boon, 73 Tex. 548, 556, 11 S. W. 544; White v. Cole, 87 Tex. 500, 29 S. W. 759. Vet it was apparent that there were strong equitable reasons why plaintiff should not be deprived of his land, improved through years of effort, and, though he had not placed himself in a very favorable attitude to demand equity, this court felt justified in providing in its judgment that by the ■ payment of the unpaid purchase price within the time stipulated, with interest at the rate agreed upon originally by the parties, title to the land would be vested in plaintiff. Such a course waá pursued by the court, .in Pitman v. Robbins, supra, and has been pursued in other cases which might be cited. .

What we have just said answers the urgent insistence of appellant ■ in his motion to the ■effect that upon the grounds upon which appellee' has elected to wage his contest this suit should be decided-; that he has staked his whole case upon the defense of 'limitations, and, having lost, he should be accorded no equitable relief. But we adhere to our former disposition of the cause in this respect, and feel that in so doing we are sustained' by authority and by a sense of right and justice.

Appellant further, contends that in any event he should be allowed to recover his attorney’s fees, as the . contract provided that the notes to be executed were to contain the usual stipulation as to attorney’s fees. If .appellant had recovered on the.notes which were to have been executed, he would have been’ entitled.- to his attorney’s fees. But he did not so recover, but upon his superior title to the land. ■ ,We do not think in this adjustment in equity, after so long a delay-in prosecuting his claim, he. is. hardly-justified in demanding the pound-of .flesh-,-or that we would be justified in including in the stipulation, conditioned as the basis for vesting title in appellee, attorney’s feés. , ■

' The judgment of this cofirt will be reformed, so as to provide that if appellee shall on or before November 1, 1916, pay into the trial court for the benefit of' appellant the sum of $185.46,- with 8 per cent, interest from May 1, 1901, with all costs, the title to the land in controversy shall -vest in appellee; otherwise, as provided in our original judgment.

Appellee’s motion, save as indicated, is overruled, and appellant’s motion is also overruled.
      •', <©=For other cases see same-topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    MOORE, County Judge, et al. v. COFFMAN et al.
    (No. 8530.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    June 24, 1916.
    Rehearing Denied Oct. 14, 1916.)
    1. Counties <&wkey;196(3) — Erection of Bridge —Suit by Taxpayers.
    Individual taxpayers may sue to restrain the threatened erection of a bridge by commissioners’ court at a crossing different from that designated in proceedings resulting in issuance of bridge bonds, where taxes therefor would he a lien .upon their property; their interest being a peculiar one different from that of nontaxpayers or the public generally.
    [Ed. Note — For other cases, see Counties, Cent. Dig. § 308; Dec. Dig. <&wkey;196(3).]
    2. Bridges <&wkey;18 — Commissioners’ Court-Powers.
    -Under the general power given to commissioners’ courts by article 2241, Vernon’s Sayles’ Ann. Civ. St. 1914, to “build bridges and keep the same in repair,” general discretion is vest-eel in the members of that court to determine ■when and where bridges. shall be constructed in their county, and such discretion, Honestly exercised, is not reviewable.
    [Ed. Note. — Eor other. cases, see Bridges, Oent. Dig. § 6; Dec. Dig. <&wkey;>18.]
    3. Bridges <&wkey;18 — Commissioners’ Court— Discretion Affected by Contract.
    Under such statute members of a commissioners’ court may not deprive themselves by any notice, contract, agreement, or otherwise, of the power to determine the location for the erection of bridges built by them.
    [Ed. Note. — For other cases, see Bridges, Cent. Dig. § 6; Dec. Dig.' <&wkey;18.]
    4. Counties <&wkey;195 — Power of Commissioners’ Court — -Location of County Bridge at Unauthorized Location — “Near.”
    Under articles 605, 606, Yemon’s Sayles’ Ann. Civ. St. 1914, as to the issuance of county bonds, providing that in submitting the proposition for the issuance of bonds the commissioners’ court shall specify the purpose for which the bonds are to be issued, the commissioners’ court cannot divert the proceeds of bonds issued for a bridge “at or near” a certain crossing to the construction of a bridge at another crossing five or six miles away.; the latter crossing not being “near” the designated one.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 307; Dec. Dig. <&wkey;195.
    For other definitions, see Words and Phrases, First and Second Series, Near.]
    Appeal from District Court, Knox County; Jo. A. P. Dickson, Judge.
    Suit by W. W. Coffman and others against W. M. Moore, County Judge, and others. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    Milam & Wheat, of Seymour, and Speer & Brown, of Ft. Worth, for appellants. D. J. Brookreson, of Benjamin, for appellees.

      Application for writ of error pending in S'upreme Court.

   CONNER, C. J.

W. W. Coffman, joined by 15 other property tax paying voters of Knox county, brought this suit a.gainst the commissioners’ court of the county named, and the county judge, and commissioners individually, for the issuance of a writ of injunction restraining the defendants and each of them from diverting the proceeds of a certain bond issue, and from applying such proceeds to the erection of a certain bridge across the Brazos river. It wás alleged, in substance, that shortly prior to the 14th day of June, 1915, the plaintiffs had prepared, or caused to be prepared, a petition asking for an election to be held in Knox county, Tex., which they and each of them signed, and which they circulated among the citizens of said Knox county, thus procuring the signatures of some 200 other qualified taxpaying voters and citizens, praying for the call of an election to determine whether Knox county should issue bonds for the purpose of erecting two bridges on the Brazos river, one of which was to be-at the “Brock crossing” and the other to be at the “Bill Coffman crossing” on said river. It was further alleged that this petition was on said 14th day of June duly presented to the commissioners’ court of Knox county at a regular term of the court, and after due consideration of the same said court ordered that an election be held on the 24th day of July, 1915, at which the following proposition should be submitted:

“Shall the commissioners’ court of the county of Knox be authorized to issue bonds of said county in the sum of $40,000, payable in 40 years after date, with option of redeeming same at any time after 10 years from date, bearing interest at the rate of 5 per cent, per annum, payable annually, and to levy a tax sufficient to pay the interest on said bonds, and create a sinking fund sufficient to redeem them at maturity, for the purpose of constructing two bridges across the Brazos river, one west of Knox City at or near the Brock crossing, the other north of Goree, at or near the Bill Coffman crossing on said river.”

It was provided by the commissioners’ court that a copy of the order of election signed by the county judge of the county should serve as a proper notice of the election, and the county judge was directed to cause said notice to be posted up at the. places designated for holding the election in accordance with law at least 30 days prior to its date, and it was alleged that notices of such election had been duly signed, issued and posted, as provided in the order of the commissioners’ court, and that the notice specified that the election was:

“For the purpose of constructing two public bridges across the Brazos river, one west of .Knox City at or near the Brock crossing, the other noi’th of Goree, at or near the Bill Coff-man crossing, on said river, in said county, as named in the order of said commissioners’ court,' made and entered on said date, at a regular term thereof.”

It was further alleged that the Bill Coff-man crossing on the Brazos river was located-near the residence of Bill Coffman, one of the first settlers of Knox county, and north' of the town of Goree; that such crossing was well known and had been so designated for many years, and that it was the purpose of the petitioners to have the bridge erected at this crossing and' at the Brock crossing, and at no other crossing; that the petition for the' election was signed ¿nd circulated, as before stated.

It was further alleged that in reliance upon the designation of the places where the bridges were to be erected, and especially upon the designation of the Bill Coffman crossing as stipulated in the orders of the commissioners’ court, and in the notices for the election, the petitioners used their best' efforts and influence to secure the issuance of the bonds mentioned, and voted personally for the same and did much personal work in the interest of the election; that they would riot have so done had they not believed, that one of the bridges would be located at the Bill Coffman crossing. It was further alleged that in pursuance of the order, the election was held, and that such election resulted in the proposition for the issuance of the bonds being carried, and that orders so declaring the result of the election were duly entered upon thé minutes of the commissioners’ court. It was further alleged that thereafter, on the 9th day of November; 1915, the commissioners’ court, at a regular session, duly passed an order authorizing the issuance of said bonds as provided by said election and by its previous orders, and also at said time duly levied and ordered assessed the proper tax to pay the interest on the same and to create a sinking fund as required by law. It was charged that the court was proceeding .to have said bonds marketed, and that the taxes levied for their payment would fix a lien upon the real estate and .property of the plaintiffs for at least 40 years to come. It was further charged that ■it was the intention and purpose of the commissioners’ court, as openly expressed by •them, not to erect a bridge at the Bill Coff-man crossing, but to divert a large portion ■of the proceeds from the sale of said‘bonds when received by them to the erection of a bridge over the Brazos river at the “Decker or McQuistion crossing,” located north of the town of Munday, and some five or six ¡miles from the Bill Coffman crossing.

The defendants answered by general demurrer, general denial, and specially that the commissioners’ court of Knox county had ascertained that the said Coffman crossing was not a desirable place for putting said bridge, and had determined that the point about five miles up the river from the Coff-man crossing, at the Decker or McQuistion ■crossing, was, in the opinion of said commissioners’ court, a better crossing, and would serve a greater percentage of the property tax paying and traveling public of Knox county, and that in the exercise of their sound discretion, and acting in the light of their investigation and judgment upon said ■matter, and within the scope of their authority, they had determined to build one of said bridges at said Decker or McQuistion ■crossing.

Defendants’ general demurrer was overruled, and the cause on its merits was submitted to the court without the intervention of a jury, and judgment was rendered for the plaintiffs, directing the issuance of a permanent injunction against the use of any part of the proceeds of the bond issue in question to the construction of the bridge at the Decker or McQuistion crossing. Erom this judgment, the defendants have duly appealed.

The facts are admitted to be substantially as alleged in the plaintiffs’ petition, there being no complaint of any irregularity in any of the proceedings above detailed, appellants’ only contentions here being: Eirst, that the plaintiffs show no such interest as entitles them to sue; and, second, that the matter of building bridges and the proper location thereof is vested by law in the discretion of the commissioners’ court, and that it was within their power, and discretion after investigation, as alleged by them in their answer, and in an exercise of their sound discretion, to erect one of the bridges for which the bonds were authorized at the Mc-Quistion or Decker- crossing instead of at the Bill Coffman crossing. These questions are presented both on the facts of the ease and by complaint of the action of the court in overruling the appellants’ demurrer to the plaintiffs’ petition.

Addressing ourselves to the question first presented, the general rule, is undoubtedly as appellants assert it; that is, in courts subject to the common law no .action generally lies to restrain the performance of a public right at the suit of an individual who has not suffered, or is not threatened with some damage peculiar to himself. For a special damage resulting from the Invasion of a right enjoyed by a party in common with the public the law affords him a remedy by private action, but if the damages he suffers are only such as are common to all, the action must be brought by the lawfully constituted guardian or guardians of the public interest, with exception, perhaps, as here in this state, that private persons may enforce a public duty not due to the government as such without the intervention of the governmental law officer. See Kimberly v. Morris, 87 Tex. 637, 31 S. W. 808; City of San Antonio v. Strumberg, 70 Tex. 366, 7 S. W. 754; Wood v. City of Victoria, 18 Tex. Civ. App. 573, 46 S. W. 284; Hill v. Roach, 26 Tex. Civ. App. 75, 62 S. W. 959; Acheson v. D. & S. Ry. Co., 140 S. W. 467; Owens v. Varnell, 145 S. W. 256. It may be true, and doubtless is true, that the public at large— the citizenship of the county generally — is alike interested in and affected by the erection and construction and use of a public bridge over a river; its evident purpose being for the use of all citizens alike. But is it true that all citizens alike — the public generally — have the same interest and are affected in the same way and to the same extent by the issuance of bonds by a county and the imposition of the necessary tax for their payment? We think not. The public generally includes many persons without property subject to taxation, and who have and feel no interest in the amount or imposition of tax levies by the properly constituted authorities. The author of Cyc. (22 Cyc. p. 767), after referring to cases presenting a contrary view, further says:

“Many cases, however, hold that injunction is a proper remedy to prevent the levy and collection of an illegal tax, and that the taxpayers similarly affected may unite in bringing the suit, even though the remedy of each is perfect at law, and they have no common property that is affected.”

The author cites in a note to the text cases from Illinois, Indiana, Iowa, Kansas, Ohio, Virginia, and West Virginia. The cases of Ardrey v. Zang, 60 Tex. Civ. App. 295, 127 S. W. 1114, and Stratton v. Commissioners’ Court of Kinney County, 137 S. W. 1170, were both cases determined by our own courts and similar in character to the case now before us. In both of these cases the plaintiffs were individual taxpayers complaining as here. In neither case does it appear that the right of the plaintiff to so sue was questioned, but. the point, if deemed well' founded, could hardly have escaped notice by the parties and by the Courts of Civil Appeals, and by the Supreme Court, to which the eases were taken upon applications for writs of error. Inasmuch, therefore, as the plaintiffs in this suit, under the allegations of the petition, will be directly and continuously affected to their pecuniary injury by the issuance of the bonds mentioned, and the levy and collection of the tax to be assessed for the payment of the bonds, we are of the opinion that they show such interests as entitle them to maintain this suit.

Appellants present their further contention in the following proposition, viz.:

“While it is the duty of the commissioners’ court to submit to the voters for their determination whether or not the commissioners’ court shall issue bonds of the county for the purpose of building- bridges, yet the manner and place of the building of such bridges is a power and duty invested by law in the commissioners’ court, and said powers cannot be delegated to the voters of said county or to any other person. The place at which such a bridge is to be constructed is a matter resting in the sound discretion of the commissioners’ court; and such court cannot, by contract, representation, or other- act, divest itself of the power or duty to exercise such discretion in the interest of the citizens generally of the county which they represent. Appellees’ petition, seeking, as it did, to deny to the commissioners’ court of Knox county the right to exercise such discretion, in the interest of the citizens of that county, states no cause of action and a general demurrer thereto should have been sustained.”

And. the following authorities were cited as supporting the proposition quoted: Vernon’s Sayles’ Texas Civil Statutes, arts. 605, 606, 610, and 2241, § 4; State v. Swisher, 17 Tex. 441; Ex parte Mitchell, 177 S. W. 953; Ardrey v. Zang, 60 Tex. Civ. App. 295, 127 S. W. 1114; Molacek v. White, 31 Okl. 693, 122 Pac. 523; Martin v. Mayor, 1 Hill (N. Y.) 546; 1 Dillon on Municipal Corporations (4th Ed.) page 156.

It was agreed between the parties on the trial that:

“The commissioners’ court of Knox county, after the election had been held and the result declared, made a thorough investigation for the purpose of determining where the bridge in controversy should be located, and thinking it within their sound discretion, and exercising the same, determined that the Decker or McQuistion crossing on the Brazos river in Knox county was the most desirable location for said bridge, and would serve a greater number of people of the county than any other place on the Brazos river within six or seven miles.”

We are thus squarely presented with the question of whether the facts so stated bind the said commissioners’ court in such a way as to deprive it of the power and right, after the proposition was duly carried by the electors of the county, to employ, in the- exercise o£ their sound discretion, the proceeds of the bond issue so carried at said election, in the construction of a bridge at any other place than that designated in said order? We are of opinion that the question noted must be answered in the affirmative, and that appellants’ contentions to the contrary must be overruled.

By article 2241, Vernon’s Sayles’ Texas Civil Statutes, commissioners’ courts of this state have been given power, and it is made their duty, among other things, to “build bridges and keep the same in repair.” And under this general power we think it is not to be doubted that the general discretion is vested in the members of that court to determine when and where bridges shall be constructed in their county, and in the effort to exercise the power and duty so conferred we think the full force of appellants’ contention and authorities may well be applied. In such case it may well he said that no individual citizen or collection of citizens can complain of an honest effort to exercise the power and duty so given. Nor, indeed, could the said commissioners’ court deprive themselves of such powers by any notice, contract, agreement, or otherwise, nor avoid the performance of the duties so vested in them, and if the question in this case was simply whether, under all of the circumstances, it was advisable and to the interest of the greater number of the citizens of Knox county to construct a bridge at the Decker or McQuistion crossing, rather than at or near the Bill Coffman crossing, we would have no difficulty, but, as we conceive it to be, the question here is one of altogether different import. The question here is whether the commissioners’ court is authorized to apply all or any part of the proceeds of the bonds described in the plaintiffs’ petition to the building of a bridge at any other point or points than those specified in the order and notices of the election? In an exercise of the general power to build bridges as conferred by article 2241, the general fund of the county would be applied, but it is clear that no bond or bonds could be issued for that purpose; for in the title and chapter (title 18, c. 1, Vernon’s Sayles’ Texas Civil Statutes) relating to the issuance of bonds it is specially provided that:

“It shall be unlawful for the commissioners’ court of any county, or the city or town council of any incorporated town or city in this state, to issue bonds of said county, or town or city, for any purpose authorized by law, unless a proposition for the issuance of such bonds shall have been first submitted to a vote of the qualified voters, who are property taxpayers of said county, town or city; and unless a majority of the said qualified property taxpayers, voting at said election, be in favor of the proposition for the issuance of bonds, then the said bonds shall not be issued. If the proposition for the issuance of bonds be sustained by a majority of such property taxpayers, voting at such election, then such bonds shall be authorized and shall be issued by such commissioners’ court, or city or town council.”'

The next article (606) provides that:,

“The proposition to be submitted for the issuance of bonds shall distinctly specify the purpose for which the bonds are to be issued, the amount thereof, the time in which they are payable, and the rate of interest: and all voters desiring to support the proposition to issue bonds shall have written or printed upon their ballots the words, ‘For the issuance of bonds,’ and those opposed shall have printed upon their ballots the words, ‘Against the issuance of bonds.’ ”

It was by virtue of these articles alone ■ that the commissioners’ court of Knox county was authorized to issue the bonds in question. Except in compliance with the proceedings so prescribed, that court had no power to impose any tax for any period for the specific purpose of building a bridge, and it is to be noted that the law particularly declares that, in submitting the proposition for the issuance of bonds to the electors of the county, the commissioners’ court “shall distinctly specify the purpose for whic|h the bonds are to be issued,” and in the case' before us the purpose was particularly specified. It is argued that it would have been only necessary to have specified that the purpose was for the building of a bridge or bridges as contradistinguished from a courthouse, or jail, or poorhouse, 1’or the construction' of which bonds likewise may be issued. Possibly a specification of a purpose to build a bridge or bridges generally would have been sufficient, but something more than this was done in the present case.. It was particularly specified in both the order of the commissioners’ court and in the notices for the election that were issued and posted that the purpose of the bond issue was for building bridges at the Brock crossing and at or near the Bill Coffman crossing over the Brazos river. To hold that under such circumstances the commissioners’ court of Knox county may lawfully divert the proceeds of the bond in question to a bridge or bridges at other points upon the Brazos river in Knox county, or over some other stream, would operate, as we think, as a fraud upon the voters participating in that election. As shown by the record, the election carried by a majority of something less than 100, and the allegations of the petition and the admissions made justify an inference that the bonds in question would never have been authorized at an election held for any such general purpose. As will be seen from the cases cited, appellants rely upon the case of Ardrey v. Zang, 60 Tex. Civ. App. 295, 127 S. W. 1114. In that ease an election was held authorizing the issuance of $200,000 for the purpose of purchasing grounds and building schoolhouses in the city of Dallas. A board of education interested in having the proposition carried represented to the voters, through school children, circulars, etc., that part of the proceeds of the bonds would be used in the construction of a school building in Oak Cliff, and Zang instituted the suit, alleging that the proceeds in part were to be diverted from the schoolhouse in Oak Cliff. The Court of Appeals for the Fifth District — and a writ of error was refused by our Supreme Court — held that the board- of education, having no controlling power to initiate or submit to the people the question of raising money for the issuance of bonds, could make no controlling representations in the matter. It was said:

“The representations were not embodied in the proposition submitted by the commissioners to the people to vote upon. The commissioners were not bound to submit the exact proposition of the board of education, but they had the right to submit such a proposition as they deemed best, and they did submit to the people the proposition whether or not bonds should issue ‘for the purchase of grounds, and the construction and erection of grade school buildings therein for the city of Dallas.’ This proposition did not specify any particular piece of ground to be purchased, nor any particular part of the city where it was to be located. The proposition of the commissioners was plain and unambiguous, and from it the voters had a right to expect that the money arising from the bonds would be used in the purchase of grounds for the erection, etc., for school buildings, but, as to any particular site being purchased in any particular location, they could only .trust to the discretion of the board of education for the selection of any such site. So long as the board of education was acting within the terms of the proposition submitted by the commissioners and balloted on by the people —that is, was using the funds derived from the sale of the bonds for purchasing sites and erecting buildings thereon — it was -acting within the scope of the power conferred on it by the city charter, and there was no legal diversion of the funds, and the courts should not interfere by enjoining the acts of the board in exercising its discretion in complying with the proposition submitted to the voters.”

Of the same meaning and effect is the case of City of Austin v. Nalle, 85 Tex. 520, 22 S. W. 668, 960. The action of the commissioners’ court there complained of was not embodied in the proposition submitted at the election authorizing the issuance of the bonds. Both decisions emphasize this point. Neither decision authorizes an inference that the funds involved in those cases could be lawfully diverted to any purpose not specified in the propositions submitted to the electors for determination. Here as already noted, the places at which and the river over which the bridges were to be built were particularly specified and submitted to the voters, and after the declared result, as alleged in the plaintiffs’ petition, there was no longer left any field for an exercise of the asserted power or discretion of the commissioners’ court. That court could thereafter, in relation to the subject-matter of that election, only carry into effect the result. See Kimberly v. Morris, 87 Tex. 637, 31 S. W. 808. The trend of modern thought and legislation is in the direction of giving the people an enlarged and more direct voice in governmental proceedings affecting their interests, and we think a liberal construction of these laws, embodying as they do the law under consideration, must be given so as to effect the purposes intended, and, so construing the statutes under consideration, we think appellants’ contentions in this case cannot he maintained.

Appellants also incidentally contend that the Decker or McQuistion crossing is “near” the Bill Coffman crossing over the Brazos river, within, the purview of the notices of the election under consideration, hut we think this so obviously otherwise that we give this contention no weight.

We conclude that on the whole the court committed no error in overruling appellants’ general demurrer and in rendering judgment for appellees. The judgment below will accordingly be in all things affirmed.

       ¿&wkey;For other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes

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