text:
    STYLE et al. v. LANTRIP.
    (No. 1398.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 19. 1914.)
    1. Partnership (§ 119) — Appointment of Receiver—Auxiliary Relief.
    A petition, for a partnership receiver, merely alleging that the copartner had absented himself and that another was claiming his interest and the exclusive control, whereby petitioner was in danger of losing the money invested, is insufficient where neither the terms of the partnership agreement nor the value of the property is stated, as except in the case of lunatics and infants, the exercise of such appointed power is purely auxiliary depending on the pendency of a suit seeking some ultimate relief, which is within the jurisdiction 'of the court.
    [Ed. Note.—Eor other cases, see Partnership, Cent. Dig. § 181%; Dec. Dig. § 119.]
    2. Partnership (§ 197) — Nature — “Legal Entity.”
    An ordinary partnership is not a “legal entity,” and can neither sue nor be sued in the firm name.
    [Ed. Note.—For other cases, see Partnership, Cent. Dig. § 360; Dec. Dig. § 197.

    For other definitions, see Words and Phrases, First and Second Series, Entity.]
    3. Appeal and Error (§ 384) — Appeal Bond — Real Parties in Interest — Partnership.
    Where a petition for partnership receiver alleges that petitioner was a copartner with a named defendant, doing business under the name Style Furniture Company, and that the firm was moved to another city, whereupon her co-partner disappeared, and another named person claimed to own his interest and also the exclusive interest, and was doing business under the name West Side Furniture Company, the other members of which were unknown, an appeal bond, by defendants, in the firm name, is insufficient, as the individuals were the real parties in interest.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2049-2056; Dec. Dig. § 384.]
    4. Appeal and Error (§ 139) — Persons Entitled to Appeal — Nominal Party.
    An appeal, by a nominal party who is not affected by the judgment, will not be considered.
    [Ed. Note'. — For other cases, see Appeal and Error, Cent. Dig. § 905; Dee. Dig. § 139.]
    Appeal from District Court, Bowie County; W. T. Armistead, Special Judge.
    Petition by Mrs. Mattie Lantrip against Leonard Style and others. From an order appointing a receiver as prayed for, defendants appeal.
    Appeal dismissed.
    E. Newl Spivey and Mahaffey & Hughes, all of Texarkana, for appellants. C. A. Wheeler and J. I. Wheeler, both of Texar-kana, for appellee.

      For other cases see same topic and section NUMBER in Deo. Dig. & Am, Dig. Key-No. Series & Rep’r Indexes

      For other oases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HODGES, J.

On the 17th day of July, 1914, Mrs. Mattie Lantrip, the appellee in this appeal, filed in the court below, the following petition:

“The State of Texas, County of Bowie.
“In the Special District Court Bowie County, Texas.
“October Term, 1914.
“To the Honorable W. T. Armistead, Judge oi Said Court:
“Now comes Mrs. Mattie Lantrip, who resides in Miller county, Ark., hereinafter styled plaintiff, and complains of Leonard Style, whose residence is unknown, W. B. Riddick, who resides in Bowie county, Tex., the Style Furniture Company, a partnership composed of Leonard Style and Mrs. Mattie Lantrip, and whose place of business is at 213 West Broad street, Texarkana, Bowie county, Tex., and the West Side Furniture Company., a partnership composed of W. B. Riddick and others whose names are unknown to plaintiff, and whose place of business is alleged to be at 213 West Broad street, Texarkana, Tex., all of whom are hereafter styled defendants.
“For cause of action plaintiff shows to the court: That on or about August 1, 1913, she and the defendant Leonard Style formed a partnership under the name of the Style Furniture Company, for the purpose of engaging in buying and selling new and secondhand furniture at 323 West Broad street, Texarkana, Tex., and that she contributed to the said partnership in cash about $1,250, and that the defendant Leonard Style contributed to the said partnership m cash about $200. That she and the defendant Leonard Style continued doing business at 323 West Broad street, in Bowie county. Tex., until about the 30th day of January, Í914, when the defendant Leonard Style persuaded her to move their place of business to 213 West Broad street, Bowie county, Tex., and that they continued their said business at 213 West Broad street, Texarkana, Tex., until about [the] 11th day of March, A. D. 1914. That on the 11th day of March, A. D. 1914, the defendant Leonard Style left said business in charge of the defendant W. B. Riddick, under the pretense of going to Kansas City to look for a more suitable location, and the said Leonard Style has never returned to Texarkana, and the plaintiff is unable to locate him o' *0 learn why he has failed to return- to Texarkana and assist in carrying on their said business. That immediately after the said Leonard Style left Texarkana, the defendant W. B. Riddick, who has charge of the business, began to claim that he had purchased the interest of the said Leonard Style in the said Style Furniture Company, and refused to permit plaintiff to have anything to do with the said business, to examine the books of said business, or to participate [in] the profits of said business, and that she has been wholly excluded from participating in said business in any manner since said day. That the defendant W. B. Riddick is disposing of the said stock of goods, the same being the' property of the Style Fur-niture_ Company, without accounting to this plaintiff for any of the proceeds thereof. That the defendant W. B. Riddick until recently conducted the said business under the name Style Furniture Company, and plaintiff is now informed, and so believes on information and belief, that the said W. B. Riddick is now pretending to be the sole owner of said business, and that he is now conducting the same under the name of the West Side Furniture Company. That she has been unable to get any statement of the assets and liabilities of said business since about [the] 1st day of February A. D. 1914, and for that reason she is unable to .give the approximate value of the assets or the approximate amount [of the] liabilities of said business. That unless prevented defendant W. B. Riddick will sell and dispose of the stock of goods belonging to the said business, and will dissipate the proceeds thereof, to plaintiff’s damage the sum of $1,250. That plaintiff has no adequate remedy at law, and therefore prays the court that a receiver be appointed to take charge of said stock of goods, wares, and merchandise, together with all bills and accounts that may be due the said Style Furniture Company, or the West Side Furniture Company, and the books of the said Style Furniture Company, and the West Side Furniture Company, and to wind up said partnership and to render an accounting of the same, and to sell all the property of the said partnerships and, to pay all debts due by said partnerships, to collect all notes and accounts owing to the said partnerships, and to do all things necessary for the protection of the interests of the partners of said partnerships. That unless a receiver is appointed at once the defendant W. B. Riddick and others, composing the West Side Furniture Company, will sell and dispose of the said stock of goods, and will appropriate the proceeds thereof to their own use and benefit without accounting to plaintiff as a partner, and will thus deprive the plaintiff of the value of her interests in the said stock of goods, wares, merchandise, and-other assets belonging to the said partnership. Wherefore, premises considered, plaintiff prays that the defendants, Leonard Style, W. B. Rid-dick, the Style Furniture Company, and the West Side Furniture Company, be cited to appear and answer this petition; that a receiver be appointed at once with- authority to take charge of the goods, wares, and merchandise of the said Style Furniture Company, and the said West Side Furniture Company, together with all the property belonging to the said companies, and all books, notes, and accounts and invoices of the said companies; that the receiver be authorized to invoice, inventory, and appraise all property belonging to the Style Furniture Company, and to the West Side Furniture Company, and to return same to this court with a list of claims against said company; to sell all of the stock of merchandise of the said company at retail, in the ordinary course of trade, and to account for proceeds thereof to this court, and if necessary to purchase stock and replenish same from time to time as to the said receiver may appear to be necessary to carry on said business, and for such other and further orders of this court as may be found necessary in the premises granting relief to plaintiff and in accounting for said partnerships and in winding up their affairs.”

The petition was sworn to in proper form. On the next day after the filing of this petition it was presented to 1-Ion. W. T. Armis-tead, judge of that court, in chambers at Jefferson, Tex.,' and he on that day, without notice to any of the parties named as defendants, made an order appointing S. L. Gill receiver for the property. described in the petition, conferring upon him, in substance, the powers prayed for. This appeal is from that order.

In a brief filed by the “appellant,” without stating which appellant, the only objection urged is that the allegations of the petition did not justify the trial judge in appointing a receiver without first giving notice to the opposing parties. This suit seems to be an action to have a receiver appointed to talce charge of certain partnership property, with authority to ascertain and settle the debts and wind up the partnership business. Neither the terms of the partnership agreement nor the value of the property is stated. On the contrary, it is expressly alleged by the petitioner that she does not know the value of the partnership assets. Except in the ease of lunatics and infants the appointment of a receiver alone does not constitute a cause of action. The exercise of such appointing powers is purely auxiliary, depending upon the pendency of a suit, seeking some other and ultimate relief, which is within the jurisdiction of the court. Webb v. Allen, 15 Tex. Civ. App. 605, 40 S. W. 842; Hermann v. Thomas, 143 S. W. 195; T. & P. Ry. Co. v. Gay, 86 Tex. 582, 26 S. W. 599, 25 L. R. A. 52; High on Rec. § 17. It is not only essential that the petition should state grounds calling for the appointment of the receiver to take charge of the property involved in the litigation, but it should also show upon its face an independent cause of action within the jurisdiction of the court. It should show that the subject-matter or amount in controversy is within the court’s jurisdiction. Bates v. Hill, 144 S. W. 288; Stricklin v. Arrington, 141 S. W. 189; Ware v. Clark, 125 S. W. 618; Smith v. Horton, 92 Tex. 21, 46 S. W. 627. In merely calling áttention to the failure of the petition to state the value of the property, we do not wish to be understood as saying that it is otherwise legally sufficient.

But there is another obstacle which precludes the adjudication of this controversy on its merits — the absence of any appeal bond by the real parties defendant in the court below. After reciting some preliminary facts essential to describe and identify the order appealed from, the bond contains the following:

“And whereas said Style Furniture Company and the West Side Furniture Company desire to appeal from said order, etc. * * * Now, therefore, know all men by these presents that we, the Style Furniture Company and the West Side Furniture Company as principals, and * * * and * * * as sureties, acknowledge ourselves bound to pay to the plaintiff, Mrs. Mattie Lantrip, the sum of two thousand dollars,” etc.

The bond is signed “Style Furniture Company” and “West Side Furniture Company” by their attorney. Then follow the- signatures of the sureties. Nowhere does the name of either Leonard Style or W. B. Riddick, the real parties defendant, appear in the bond. An ordinary copartnership, such as that described in the original petition filed in this suit, is not a legal entity, and can neither sue nor be sued in the courts of this state by the firm name. Glasscock v. Price, 92 Tex. 271, 47 S. W. 965; Frank v. Tatum, 87 Tex. 204, 25 S. W. 409. It is true that both the Style Furniture Company and the West Side Furniture Company are named in the petition as defendants, but that language is mere surplusage, and should not be considered in determining the identity of the real parties defendant. The petition fails to state the name of those who compose the West Side Furniture Company further than to say that W. B. Riddick is one, and that the others are unknown. A suit against W. B. Riddick did not have the effect of bringing the West Side Furniture Company before the court. Frank v. Tatum, supra. It cannot be claimed that the Style Furniture Company is before the court as a defendant, for Mrs. Lantrip, the plaintiff in the suit, is a member of that firm, and is named as the sole obligee in the appeal bond. If the court were called upon to render a judgment on this bond, against whom could it be rendered? Certainly not against either Riddick or Style, because they do not appear as having appealed; and if not against them, then no other parties are named who might be held liable.

We do not overlook the fact that our statute now permits defective bonds on appeal to be amended under certain conditions. But we are inclined to think this bond is equivalent to no bond at all from the only parties who have the right to prosecute this appeal. If Riddick and Style are not made parties to the appeal by that bond, it is now too late for them to perfect their appeal by filing a new bond. An appeal by a nominal party who is not affected by the judgment will not be considered. Hawley v. Whitaker, 88 S. W. 688. Even if it should be held that the bond is merely defective and may be amended, this appeal would ultimately have to be dismissed because of the defects pointed out in the original petition.

The appeal is therefore dismissed.


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    MARION COUNTY et al. v. PERKINS BROS. CO.
    (No. 1356.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 26, 1914.)
    1. Injunction (§ 13) — Officers—Official Duty — Property Rights.
    An officer will not be restrained from performing an official duty except on clear showing that the act is unlawful and that its performance will result in private injury to complainant.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 13; Dec. Dig. § 13.]
    2. Pleading (§ 34) — Petition — Construction.
    A petition against an officer seeking to enjoin performance of official duty will be strictly construed, and every reasonable inference will be indulged in favor of the legality of the act sought to be restrained.
    [Ed. Note. — Eor other cases, see Pleading, Cent. Dig. §§ 5%, 66-74; Dec. Dig. § 34.]
    3. Taxation (§ 611) — Collection of Taxes— Injunction — Petition.
    A petition to enjoin an alleged excessive tax was insufficient, where it merely alleged that the officers were demanding payment without an allegation that an attempt had been made to enforce collection by an actual or threatened levy on complainant’s property.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1242, 1245-1257; Dee. Dig. § 611.]
    4. Taxation (§ 611) — Wrongful Enforcement — Injunction—Amount in Controversy — J URISDICTION.
    In a suit to enjoin a tax, the petition should allege the nature and extent of the injury to which petitioner will be subject if the writ is not issued, which is usually the value of the property seized to constitute the tax in order to show what court has jurisdiction.
    ' [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1242, 1245-1257; Dec. Dig. § 611.]
    Appeal from District Court, Marion County ; W. T. Armstead, Judge.
    Suit by Perkins Bros. Company against Marion County and others. Judgment for plaintiff, and defendants appeal.
    Reversed, with instructions to dismiss.
    W. L. Grogan, of Jefferson, for appellants. R. R. Taylor, of Jefferson, for appellee.

      Eor other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig, Key-No. Series & Rep’r Indexes

   HODGES, J.

In December, 1913, Perkins Bros. Company, which is described as a private corporation, filed an application in the court below seeking to restrain the county of Marion and the tax collector of that county from demanding certain taxes which it is claimed were illegally assessed. On January 26th an amended original petition was filed. It is alleged that Perkins Bros. Company is a private corporation, with its place of business and domicile in Jefferson, Marion county, Tex., with S. P. Perkins as its president, who resides in Hunt county, Tex.; that during the year 1913 it was a taxpayer in Marion county; “that it rendered its assessments of its property for taxation to the tax assessor for said county for said year 1913 at and for the sum of $10,000, which complainant believes was full valuation; that there is and was a custom in force at that time, and it was the rule of said commissioners’ court to accept a valuation of 60 per cent, on all property rendered for taxation.” It is alleged that Marion county, acting through its commissioners’ court, during the year 1913 arbitrarily and without notice to the complainant raised its assessment from $10,000 to $15,000, and that the county and its tax collector are now unlawfully demanding payment of the sum due upon that assessment, which amounts in the aggregate to $211.50. It is further alleged that the amount due upon an assessment of $10,000 is $141, and that sum is tendered into court. It is further alleged:

“That after said commissioners’ court, or board of equalization, had raised said assessment, and just as soon as complainant heard of it, it went to said commissioners’ court, or board of equalization, and demanded a hearing on the same, and it was denied a hearing by said commissioners’ court, or board of equalization ; that this complainant is now without a remedy for the redress of this wrong, and will suffer irreparable injury at the hands of said respondent if it is allowed to go ahead and extort from this complainant said illegal and wrongful taxes, as hereinbefore set forth and alleged.”

It is also averred:

“That they (the board of equalization) received other assessments of property at a valuation of 60 per cent, and denied this right to this complainant.”

The petition closes with a prayer for a writ of injunction restraining the county and the tax collector “from any further attempt to collect said illegal taxes.”

Upon a trial before a jury a judgment was rendered in favor of the complainant. An appeal was perfected by all of the parties defendant in the suit, but briefs are filed by Marion county alone.

There are several specific errors assigned, some of which are based upon the remarks made by the attorney for the appellee in his argument before the jury. Without discussing those assignments in detail, we suggest that the language used was improper and would, in our opinion, be sufficient ground for reversing the case in a close contest on the facts. But we think the amended original petition, upon, which the case was tried, is fundamentally defective, and for that reason the case should be reversed. An officer will not be restrained by a writ of injunction from the performance of an official duty, except where it is clearly shown that the act to be forbidden is unlawful and that its performance would result in some private injury to the complaining party. And in determining whether or not that situation exists, the averments of the pleader seeking such relief will be strictly construed, and every reasonable inference will be indulged in favor of tbe legality of the official act sought to be restrained. Gillis v. Rosenheimer, 61 Tex. 246; Schlinke v. De Wit County, 145 S. W. 660, and cases there cited. Where the writ is invoked to prevent the collection of a tax, as in this instance, it devolves upon the party seeking to restrain such collection not only to allege and prove that the excess of which he complains is unlawful, but that unless its collection is enjoined he will sustain some injury to his property. The petition in this ease fails to state any facts which show that the appellee will sustain any injury if the writ is not issued. It is true it does allege that it will suffer an irreparable injury unless the parties defendant are enjoined; but this is not sufficient. In such cases the pleader must state the facts upon which he relies to support that general averment, so that the court may determine that question for itself. Holbein v. De La Garza, 126 S. W. 42; 22 Cyc. pp. 927, 928; 1 High on Inj. §§ 22, 489, 491. It is not claimed that any property has been seized, or is liable to be seized and sold in satisfaction of this alleged unlawful demand. It is merely alleged that the parties defendant are “demanding” payment. Until this demand assumes the form of an attempt to enforce collection by an actual or threatened levy upon the appel-lee’s property, it does not disclose any injury that will call forth a writ of injunction.

It is also apparent that the petition fails in another respect to state a cause of action within the jurisdiction, of the district court. Jurisdiction in such cases is to be determined by the nature and extent of the injury the petitioner will sustain if the writ is not issued. This is usually the value of the property seized. This sum should be stated in order to comply with the rule that the jurisdiction of the court over the subject-, ■matter should affirmatively appear from the face of the petition. Smith v. Horton, 92 Tex. 21, 46 S. W. 627; Ware v. Clark, 125 S. W. 618. It may be that when an effort is made to enforce collection of this tax the value of the property seized, or the damage likely to result, will bring the case within the jurisdiction of the county court.

We shall not undertake to discuss the questions raised in the various assignments of error. The tax collector, who is an important party to this appeal, has filed no briefs, and Marion county is only a nominal party, and for that reason we dispose of the appeal only on the fundamental objections referred to.

The judgment will be reversed, with instructions that the suit be dismissed unless the petition is so amended as to cure the defects mentioned. But we do not wish to be understood as holding that the petition is sufficient in all other respects.


author: WILLSON, C. J.

text:
    MURCHISON v. MURCHISON.
    (No. 1859.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 26, 1914.)
    1. Divoece (§ 48) — Geounds—Condonation.
    Condonation applies to cruelty and other grounds of divorce, as well as to adultery; the only difference being that an act of cruelty is condoned only until the particular act is repeated.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 169, 170, 184; Dec. Dig. § 48.*}.
    2. Divoece (§ 27) — Geound—Cbuelty.
    Corporal punishment administered by a wife to her stepdaughter was not such cruel treatment of the husband as entitled him to a divprce.
    [Éd. Note. — For other cases, see Divorce, Cent. Dig. §§ 27, 62-83; Dec. Dig. § 27.]
    3. DIvoece (§ 49) — Cruel Treatment — Con-donation.
    Where a husband continued to live with his wife without protest harmoniously for a considerable time after she administered cor.poral punishment to his daughter, and without mentioning- the fact to her, and they separated not because he was unwilling to live with her as his wife, but because she was unwilling to longer live with him as her husband, her act in whipping the daughter was condoned.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 171-179; Dec. Dig. § 49.]
    Appeal from District Court, Cherokee-County; L. D. Guinn, Judge. •
    Action by A. J. Murchison against Mary Murchison for divorce. Judgment for plain-
    tiff, and defendant appeals.
    Reversed and rendered.
    Norman, Shook & Gibson, of Rusk, for appellant. Perkins & Perkins, of Rusk, for ap-

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes .

   WILLSON, C. J.

This appeal is from a-judgment granting appellee, plaintiff below,, a divorce from appellee, on the ground that she had been guilty of such cruel treatment of him as to render their living together insupportable.

Appellant insists the testimony was not. sufficient to support the judgment, and, as-we think this contention must be sustained, it will not be necessary to consider other questions made by assignments in the briefs.

It seems from the testimony that the parties had been married about two years at the ■ time of the trial in the court below. Each of them had been married before, and appellant then had a daughter about five years old, and appellee had five children then living with him — three sons, aged, respectively,. 13, 19, and 22 years, and two daughters, aged, respectively, 9 and 11 years. Testifying as witnesses, the parties agreed they got along together pleasantly enough during the first six or eight months following their marriage, but that thereafterwards, until June 23, 1913, when they separated, they did. not always get along together so pleasantly. According to appellee’s account of it, his. refusal to sell his home in Cherokee county and move to Houston county, where appellant’s mother lived, and appellant’s mistreatment of Ms children, were the causes of the disagreements between them. According to appellant’s account of the matter, the unpleasantness between them was due to ap-pellee’s children’s mistreatment of her and his refusal to do anything to protect her from such mistreatment. The specific act of appellant, relied upon as sufficient to support the finding that she had been guilty of such cruel treatment of appellee as to warrant the relief granted to appellee, was her conduct in whipping appellee’s youngest daughter, Mattie, three or four weeks before the parties separated. According to the child’s account of the incident, appellant, without cause for so doing, whipped her so severely with a peach-tree limb about three feet long and as large as the tip of her little finger, as to cut a place two or three inches in length on one of her legs and another place about as long on one of her hands, deep enough to cause same to bleed profusely, and then threatened to beat her to death if 'she told any one about it. The child, however, told appellee about the whipping administered to her on the day it occurred, and exhibited to him the wounds she claimed appellant had inflicted on her person. Ap-pellee said nothing to appellant about the matter during the three or four weeks they lived together after the time the child was subjected to the whipping. He gave as a reason why he did not mention it to appellant that the child had requested him not to let appellant know she had told him of the incident. His account of .what occurred at the time they separated was as follows:

“The morning we separated my little son spoke something about going to see my married daughter, and I just made the remark that T sorter look for them over here to-day,’ and my wife blated out that ‘she didn’t want them to come over here; that she had somewhere to go.’ Well, she never had mentioned going to me. When she said that — she had before that raised sand about them [his daughter and her husband] coming down there, and I had said nothing, and it raised my passion that morning when she said that, and I walked out where she was on the gallery and I sat down and commenced this way, ‘Why is it you want to raise sand whenever I am looking for my children to come to see us?’ and she says, ‘I never done it,’ and it had not been a minute since she had, and I says, ‘It has got so lately that you treat my children like dogs, and if I offer to correct yours the devil is to pay,’ and she jumped up and got her bonnet and away 'she went. I went out there with the full intention of talking to her about the matter, and if she had not agreed to have done better and quit her way of doing, I intended to tell her she would have to hit the road, I wouldn’t stand it any longer. When I went out on the gallery and sat down on the steps I intended to have referred to her whipping little Mattie if I had had a chance, if she had stopped long enough. I didn’t speak to her about it because she broke it off in the abrupt way she did. She got up and left and didn’t let me finish the conversation I started in with. I was speaking to her in a kind manner. I went out there to talk with her about the way she was doing and to tell her she would have to make some reformation or we would have to separate, and I intended to tell her that if she had given me time. I didn’t anticipate that she was going to break away so suddenly. She went up to her brother’s, who was living on my place.”

Appellant admitted, she whipped the child, but denied she did so without sufficient cause, and denied she whipped her so severely as to draw blood from her. And appellant’s account of what occurred at the time she left appellee differed in some respects from his account as set out above. As, however, the trial court had a right to believe appellee’s account and disbelieve appellant’s, it is not worth while to state the points of difference between them. Appellee testified he whipped Ms children “once in a while” while appellant was living with him, and that on one occasion after he and appellant separated he whipped Mattie with a leather razor strop.

It seems that “the doctrine of con-donation applies as well tp cruelty and other grounds of divorce as to adultery; the difference being that an act of cruelty is condoned only until the particular act is repeated.” Bingham v. Bingham, 149 S. W. 218; Nogees v. Nogees, 7 Tex. 538, 58 Am. Dec. 78. If, therefore, appellant’s conduct in whipping the child was such cruel treatment of appellee as entitled him to a divorce— and we are of the opinion it was not (Eastman v. Eastman, 75 Tex. 473, 12 S. W. 1107; Jones v. Jones, 41 S. W. 413; Bush v. Bush, 103 S. W. 217) — the relief he sought should have been denied him, on the ground that he had condoned the act and it had not been repeated, nor had appellant thereafter-wards been guilty of other misconduct. That appellant’s act in whipping the child was not such cruelty toward appellee as rendered their living together insupportable conclusively appeared in the fact that for three or four weeks thereafterwards they did live together without complaint on appellee’s part, and harmoniously for aught shown in the record to the contrary. And it appeared from appellee’s own testimony that he and appellant did not cease to live together because he was unwilling to longer live with her as his wife, but because she was unwilling to longer live with him as her husband.

The judgment will be reversed, and judgment will be here rendered denying appellee the relief he sought.


author: MOURSUND, J.

text:
    BUHLER v. E. T. BURROWES CO.
    (No. 5330.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 4, 1914.
    Rehearing Denied Dec. 23, 1914.)
    1. COEPOBATIONS (§ 642) — FoBEIGN COBPO-eations — Right to Sue — Noncompliance with Statute.
    A foreign corporation which contracted to sell and install in a building in this state screen doors and window screens and performed the contract, its agent doing the carpenter work necessary to fit and install them, was transacting business in the state, whether the screens were shipped to the purchaser or to the agent, and hence, where it had not obtained a permit to transact business in the state, it could not sue for the purchase price of the screens.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2520-2527; Dec. Dig. § 642.]
    2. Corporations (§ G42) — Foreign Corporations — Right to Sue — Noncompliance
    with Statute — “Doing Business.’’
    A single transaction is sufficient to constitute the transaction of business in this state by a foreign corporation not having a permit to transact business in the state.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2520-2527; Dec. Dig. § 642.

    For other definitions, see Words and Phrases, First and Second Series, Doing Business.]
    Appeal from Bexar County Court for Civil Cases; J. H. Claris, Judge.
    Action by the E. T. Burrowes Company against C. Buhler. From a judgment for plaintiff, defendant appeals.
    Reversed, and cause dismissed. .
    Searcy & Browne, of San Antonio, for appellant. Schlesinger & Schlesinger and Chas. E. Lee, all of San Antonio, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   MOURSUND, J.

The E. T. Burrowes Company, a foreign corporation, sued C. W. Buhler and A. J. Herrman in justice’s court upon a written contract, reading as follows:

San Antonio, Texas, 11/18, 1911.
Order for
Indexed Dec. 1, 1911.
Burrowes Wire Screens.
To the E. T. Burrowes Co., Portland, Maine,
U. S. A. A. J. Herrmann, Archt.
By C. W. Buhler.
To be sent about Feby. 1st.
To be paid for by May 1st, 1912.
When screens are received by purchaser they are ready to be fitted to windows and doors. All moldings, pieces and hardware, as per catalogue, are finished without extra charge.
Price as below.
All windows and doors on 1st and 2nd floors, except screened porch 2nd floor.
C. B. 14.
Our best work and finish deld. and installed for $195.30. A. J. Herrmann, Archt.
•Accepted:
Salesman: D. H. McDaniels.

An appeal being taken by plaintiff to the county court for civil cases the ease was tried in such court without a jury, and plaintiff adjudged to recover from Buhler the amount sued for, but that it take nothing as against Herrmann. Buhler filed a written denial of plaintiff’s right to sue, the ground being that plaintiff was a foreign corporation transacting business in this state without a permit to do so and without filing a copy of its articles of incorporation with the secretary of state.

The only question for our decision is whether the court erred in holding that plaintiff could maintain the suit. The evidence upon this issue, in addition to the contract above set out, is as follows: L. H. McDaniels, who resided in San Antonio, was the agent for plainjlff at the time he accepted the written contract, and had been such agent in 1910, 1911, and 1912. The screens were sent, and he installed them. He did not recall whether he hired any one to assist him. He always ordered the window screens to fit exactly, SO' that all there was to do was to attach the fixtures to the house and hang the screens, but he always ordered the doors too large, so that he could cut them down and make them fit the opening. He sometimes hired a carpenter to cut them down and sometimes did the work himself. He had a little carpenter shop out at his house where he did this kind of work. The business of the plaintiff is the manufacturing of screens in Maine, and those installed by McDaniel were there made according to the measurements taken by him in San Antonio. Herrmann, the architect who ordered the screens for Buhler, testified that the screens were installed by McDaniels, or some one for him; that he had often ordered Burrowes screens and Mr. McDaniels or some one else always put them up; that it was sometimes necessary to do work on the screens to make them fit perfectly. It was agreed that the E. T. Burrowes Company is a foreign corporation, incorporated under the laws of Maine, and that it has not filed with the secretary of state of the state of Texas a duly certified copy of its articles of incorporation and obtained a permit to transact business in Texas.

Appellant contends that appellee could not maintain this suit in our courts, and the question arises whether the facts show that the transaction out of which this suit arises constituted the transaction of business in this state or whether it constituted interstate commerce. It is clear that the transaction constituted interstate commerce, unless the fact that the screens were to be installed alters the case. Appellant relies upon the case of Smythe Co. v. Ft. Worth Glass & Sand Co., 105 Tex. 8, 142 S. W. 1157, but in that case the contract was to build three gas producers in this state and there was no pretension that they were sold in a foreign state, and the evidence showed that in building the same material was used which had been bought in this state and therefore in part, at least, the foreign corporation was seeking to recover for material, the sale of which was not protected by the commerce clause of the federal Constitution. The Supreme Court declined to express an opinion whether contracts for the sale of machinery in another state to be installed in this state by the seller are protected by the said commerce clause. In the case of De Witt v. Berger Mfg. Co., 81 S. W. 334, the Court of Civil Appeals for the Third District held that a foreign corporation, without complying with our statute, could sue to recover the price of certain metal ceiling and side walls shipped from Ohio, and the cost of putting same up in this state. The facts are not fully stated, nor did the Supreme Court pass upon the case, the application for writ of error having been dismissed for want of jurisdiction. We find cases from other states which hold that sales of articles to be installed in such states are nevertheless protected by said commerce clause of the Constitution. See Flint & Walling Mfg. Co. v. McDonald, 21 S. D. 526, 114 N. W. 684, 14 L. R. A. 673, 130 Am. St. Rep. 735; Milan Mill. Co. v. Gorten, 93 Tenn. 590, 27 S. W. 971, 26 L. R. A. 135.

We have found a recent decision by the United States Supreme Court which, we think, should govern us in ¡deciding this case. It is the case of Browning v. City of Wayeross, decided April 6, 1914, and reported in 233 U. S. 16, 34 Sup. Ct. 578, 58 B.i Ed. 828. In that case it is held that an agent for a foreign corporation, who solicited orders for the sale of lightning rods in another state, received the rods, and erected them for such corporation, the price paid for the rods to the corporation including the duty to erect them without further charge, may be subjected to a municipal tax without violating the commerce clause of the federal Constitution. The case now being considered by us is very similar to the case just mentioned. In this case the appellee contracted to sell and install screens for a certain price, and fulfilled .that contract, its agent who solicited and received the order doing the carpenter work necessary to fit and install the screens. The evidence does not show to whom the screens were sent, but the contract provided that “when the screens are received by the pmrchaser they are ready to be fitted to windows and doors.” It is, however, not material whether they were sent to the purchaser or the agent. The fact remains that the foreign corporation bound itself to put up screens in this state, and did put them up.

The evidence further shows that this was its regular way of doing business. IIow--ever, this is not material, as one transaction is sufficient to constitute the transaction of business in this state. Smythe v. Ft. Worth Glass & Sand Go., supra. If a foreign corporation can, without complying with our statutes, engage in the business of putting up screens in Texas, a business which any carpenter can perform, it can also sell all the material for a house, ship it in from another state, and contract to put it up in this state, keeping a force of carpenters and mechanics for that purpose. Nor can it be contended that the installation of screens is such a delicate and complex task that the business of selling them cannot be carried on unless the seller furnishes experts to do the work of putting them in place, so this case does not fall within the class of cases upon which the Supreme Court of the United States declined to express an opinion in the Browning v. Oity of Wayeross Case. We conclude 'that the court erred in holding that appellee could maintain the suit.

The judgment is reversed, and the cause dismissed.


text:
    PORTERFIELD et ux. v. TAYLOR.
    (No. 1349.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 27, 1914.
    Rehearing Denied Dec. 17, 1914.)
    1. Deeds (§ 6*) — Nature oe Instrument— Deed or Executory Contract to Convey.
    An instrument in form of a deed, reciting that the grantors had employed the grantee as their attorney to prosecute a suit to recover the land in controversy for another and in consideration of the faithful performance of the grantee’s duties, the grantors sold, etc., one-fourth of whatever sum might be realized out of and collected in the cause together with' one-fourth of all rents and appurtenances thereto pertaining, recovered by the grantors in the suit and assigned and transferred a one-fourth interest in the cause of action, etc., constituted a present conveyance of one-fourth of the grantors’ legal title in the land, ’ and not an executory contract to convey.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 6; Dec. Dig. § 6.]
    2. Trusts (§ 103) — Creation—Enforcement.
    Where a widow, having conveyed her homestead to her son, after marriage, employed an attorney to recover the land, executing with her husband a deed to a one-fourth interest in the cause of action and without the attorney’s knowledge obtained from the son a reconveyance, she held an undivided one-fourth of the land as the attorney’s trustee.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 154; Dec. Dig. § 103.]
    3. Partition (§ 16) — Interest in Property.
    Where a client held a one-fourth interest in certain land as her attorney’s trustee, such title was sufficient to enable him to maintain partition.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. § 52; Dec. Dig. § 16.]
    Appeal from District Court, Smith County; R. W. Simpson, Judge.
    Suit by H. L. Taylor against G. M. Por-terfield and wife. Decree for complainant, and defendants appeal.
    Affirmed.
    Fitzgerald, Butler & Bulloch, of Tyler, for appellants. Lasseter & Mcllwaine, of Tyler, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   WILLSON, C. J.

This suit was brought by appellee against appellants to partition 31 acres of land in Smith county. Appellee alleged that he owned a one-fourth, and thai; appellants owned a three-fourths, undivided interest in the land.

From testimony heard on the trial, it appeared that prior to August, 1912, Mrs. Por-terfield, then Mrs. Senter, a widow, conveyed the-land to her son H. B. Senter. After she married Porterfield, she, joined by him, employed appellee to represent her as an attorney at law in a suit afterwards commenced in the district court of Smith county to cancel and annul her deed to Senter (on the ground, it seems, that the consideration therefor had failed), and for damages. Before the cause was reached for trial Mrs. Porterfield and Senter, without the knowledge or consent of appellee, effected a compromise thereof, by the terms of which Sen-ter was to reconvey the land to Mrs. Porter-field and the suit was to he dismissed. The land was reeonveyed to Mrs. Porterfield in compliance with the agreement, and appellants in writing requested the clerk to dismiss the suit. It was not dismissed, however. Instead, appellee, having learned of the compromise effected by his clients, intervened therein and sought judgment for a part of the land, on the ground that appellants had conveyed to him a one-fourth undivided interest in the cause of action in consideration of his services as their attorney in the suit. Without notice of any kind to appellants of the intervention by appellee, or knowledge thereof on their part, the suit was tried February 21, 1912, and judgment was therein rendered in appellee’s favor against appellants for a one-fourth undivided interest in the land. Afterwards this suit was brought for a partition, as stated. Appel-lee contended in this action, as he did in his intervention in the suit against Senter, that appellants by a written instrument duly executed by them, dated August 2, 1911, had conveyed to him a one-fourth undivided interest in the land. The instrument was as follows:

“The State of Texas, County of McLennan. Know all men by these presents, that I, Mrs. Q. A. Porterfield, joined by my husband, G. M. Porterfield, for and in consideration of legal services rendered and to be rendered me by H. L. Taylor, attorney at law, Waco, Texas, and the prosecution of a suit pending in the district court of Smith county, Texas, styled Mrs. Q. A. Porterfield et al. v. H. B. Senter, a suit for the cancellation and rescission of a deed, and for damages, as is more fully shown by plaintiff’s original petition filed therein, have this day and do by these presents constitute and appoint said H. L. Taylor my attorney at law and in fact and employ him to collect any and all monies growing out of and incident to the prosecution of said cause in said court pending and to do any and all acts in the premises and adjudication of said cause and to prosecute said claim at law to all courts having jurisdiction to same; and we do hereby authorize my said attorney to compromise, settle and receipt in our names for all amounts that may be due us from said defendant Ií. B. Senter; and we hereby agree and bind ourselves that we will carry on no negotiations of any kind with reference to the settlement of this cause of action ; and further agree that the said Taylor shall have the full and exclusive power and authority to compromise or otherwise settle said cause _o'f action.
“In consideration of the faithful performance of the duties imposed upon him as our attorney in said styled cause, we hereby sell, convey,, assign and transfer, and agree to pay and deliver to said Taylor, one-fourth of whatever sum may be realized out of and collected in said cause from said defendant, together with one-fourth of- all rents and appurtenances thereto pertaining, recovered by us from the defendant H. B. Senter through compromise or judgment of the court; and we do hereby assign and transfer a one-fourth interest in said cause of action, subject, however, to this agreement, that the plaintiffs herein agree to pay for three-fourths of all the expenses incident to the trial of this cause. And the said Taylor agrees to pay the remaining one-fourth of said costs.
“This instrument was executed after the above suit was filed on this the 2d day of August, 1911. Mrs. Anna Porterfield,
“G. M. Porterfield.”

Attached to the instrument was a certificate as follows:

“The State of Texas, County of McLennan. Before me, the undersigned notary public in and for McLennan county, Texas, on this day personally appeared Mrs. Q. A. Porterfield and G. M. Porterfield, known to me to be the persons whose names are subscribed to the foregoing instrument, and acknowledged to me that they executed the same for the purposes and consideration therein expressed. Given under my hand and seal of office this the 2d day of August, 1911.
“J. W. Taylor, Jr.,
“Notary Public McLennan County, Texas.-"

Appellants contended that the instrument just set out was a forgery; that they, nor either of them, never either executed or acknowledged the execution of same. The contention, however, was determined against them; the jury finding on special issues submitted to them that appellants did execute and acknowledge the execution of the instrument. Appellants further contended that, if the instrument was executed and acknowledged by them as it purported to have been, it nevertheless did- not operate to pass an interest in the land to appellee, because it appeared to be merely an executory contract, and as such was not enforceable' because, as they averred, the land at the time the instrument purported to have been made was their homestead, and because if it was not their homestead it was part of Mrs. Por-terfield’s separate estate, and the execution of the instrument did not appear to have been acknowledged by her in the way necessary to bind her. On pleading and testimony authorizing it the jury found that the notary who, according to the face of the certificate, took her acknowledgment, “showed the contract to Mrs. Anna Porterfield, and then and there fully explained the same to her on an examination privily and apart from her husband G. M. Porterfield, and Mrs. Porterfield on said examination acknowledged to the notary that the same was her act and deed, that she had willingly signed the same, and that she 'wished not to retract it.”

On findings made as stated and testimony heard by him, the court rendered judgment for appellee for a one-fourth undivided interest in the land, and directed a sale thereof for the purpose of making a partition between him and appellants.

Opinion.

The contention made by appellants, that the instrument set out in the statement above should be construed to have been an ex-ecutory and not an executed contract, should, we thinkj be overruled.

For the consideration recited therein the instrument purported to assign and transfer to appellee a one-fourth interest in appellants’ “cause of action” against Senter, and we see no reason why it should not be held to have had that effect at the time it was delivered to him.

That appellants had a “cause of action” against Senter, and that that cause of action, in part at least, was based on a right existing in them to recover the land Mrs. Porterfield had conveyed to Senter, is not questioned in the. record before us. By virtue of the assignment appellee became, jointly with appellants, the owner of that right. Had the suit commenced to enforce the right been prosecuted to a judgment in appellants’ favor for the land, the cause of action would have become merged in the judgment, and appellants and appellee would have owned the judgment jointly, as they did the right on which it was based. 20 A. & E. Ene. Law, p. 599.

The transaction between the parties in that event, we think, in legal effect would not be unlike the ordinary one whereby the owner of a right to land evidenced by a certificate contracts with another to locate it on their joint account. In cases of that kind it is held that when the legal title to the land vests in the owner of the certificate he holds as trustee to the extent of the interest of the other party. Stieler v. Hooper, 66 Tex. 354, 1 S. W. 317; Doss v. Slaughter, 53 Tex. 237.

We see no reason why appellants, because they, acquired the legal title to the land by compromise with instead of by a judgment against Senter, should not be treated as holding a one-fourth interest therein as trustee for appellee. If they held in that capacity, then appellee had a right to maintain his suit for a partition against them (Sutton v. Sutton, 39 Tex. 549); and we think the fact that the land was Mrs. Porterfield’s homestead and a part of her separate estate at the time she conveyed it to Senter was not an answer to the suit; for at the time she dealt with appellee the title was not in her, but was in Senter, who then had possession of the land.

The judgment is affirmed.


author: WALTHALL, J.

text:
    BRAY et al. v. SEWALL et al.
    (No. 371.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 10, 1914.)
    1. Mortgages (§ 561) — Actions for Deficiency-Sufficiency of Answer.
    In an action on promissory notes secured by a deed of trust for a deficiency remaining after foreclosure of the deed of trust, an answer by certain defendants, alleging facts as to collusion between plaintiff and another defendant alleged to have assumed payment of the notes, held subject to some of the special exceptions for immateriality, indefiniteness, and insufficiency, which were sustained by the trial court.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1609-1621; Dee. Dig. § 561.]
    ' 2. Appeal and Error (§ 737) — Assignments of Error — Including Errors in One Assignment.
    Where the special exceptions to an answer each presented various questions of law, but the assignments of error complaining of the sustaining of the various exceptions were grouped, they could not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3030-3032; Dec. Dig. § 737.]
    3. Appeal and Error (§ 742) — Assignments of Error — Sufficiency of Statement Accompanying Assignments.
    Where the statement accompanying assignments of error complaining of the sustaining of special exceptions to the answer did not refer to the transcript, was not germane to the proposition under the assignments, and nowhere pointed out the part of the answer to which the exceptions referred, nor set out or gave the substance of the exceptions so as to show that they presented a single proposition of law, the brief did not conform to the rules.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    Error from District Court, Harris County; Wm. Masterson, Judge.
    Action by Campbell Sewall and others against John W. Bray and others. Judgment for plaintiffs, and defendants Bray and wife bring error.
    Affirmed.
    Atkinson, Graham & Atkinson, of Houston, for plaintiffs in error. Campbell, Sonfield, Sewall & Myer, of Houston, for defendants in error.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   WALTHALL, J.

On October 3, 1912, Campbell Sewall brought this suit in the district court of Harris county, Tex., against Frost Seastrunk, John W. Bray and wife, Irma Y. Bray, et al., to recover a balance due on two promissory notes of $5,000 each, described in the petition. He alleged that he had acquired said notes from J. J. Sweeney, without recourse; that said notes were secured by a trust deed on certain property in Houston; that he had foreclosed said trust deed and bought in said property; and that there remained an unpaid balance due of $2,-168.30 for which he prayed judgment, which included interest and attorney’s fees. Defendants Bray and wife, in their answer, admitted the execution of the notes; admitted that Frost Seastrunk had executed the notes to them, and that they had transferred them to Sweeney, and stated that in August, 1911, Seastrunk had sold the property described and embraced in the deed of trust to R. G. Boon, and that Boon had conveyed same to L. P. Scarborough, who had assumed the payment of said two notes, including interest, and that on September 6, 1911, said Scarborough, for a valuable consideration, executed a written option contract to Bray, and deposited it in escrow by which Bray acquired the right to repurchase said property from Scarborough at any time before 12 o’clock on the 28th of February, 1912, upon the payment by Bray to Scarborough of $1,250 in cash witli interest, and on the further consideration that, at the time said Bray exercised his option, he should reimburse Scarborough for any expense incurred by. him on said property, including any interest he had paid on said two notes. It was further alleged that, after Scarborough had secured the deed to said property and executed said option contract to Bray, he brought suit against a railway company for damages to the property, included in the deed of trust, and that, while said action was pending, he was advised that Bray claimed said land by reason of the said option deed, and that Bray was going to exercise his option, and that Scarborough claimed that any damage recovered in the suit against the railway company did not belong to Bray, and that said suit was in the hands of his attorneys. The answer of Bray and wife further alleged that said deed in escrow did not reserve to said Scarborough the said claim for damages against said railway, and that one of Scarborough’s attorneys undertook to withdraw said deed from the escrow deposit and substitute another deed, which he (Bray) refused to accept, and demanded that the original deed be returned, which was done, and that Bray exercised his option to repurchase the said property, and paid the purchase price required. Bray’s answer further alleged that said Scarborough failed to pay said interest on said two notes in order to prevent the said Bray from exercising his said option, and that plaintiff was induced by said Scarborough to acquire said notes from Sweeney, in order to compel him (Bray) to pay the 10 per cent, attorney’s fees, provided in the said notes, and that when he (Bray) learned that plaintiff had bought said notes he then tendered in cash to the attorneys for Scarborough and plaintiff the interest due on said notes, which they refused to accept. Bray further alleged that Scarborough and his attorneys were acting with plaintiff and used his name for the purpose of preventing him (Bray) from exercising his said option; that the interest on said notes was due on February 4, 1912; that plaintiff purchased said notes on the 6th day of February, 1912; and that at the time of the purchase of said notes Sweeney had not declared said notes due on account of the failure to pay the interest, when it became due; that plaintiff paid to Sweeney all the interest due on said notes; and that, when plaintiff got possession of said notes, he at once declared them due for failure to pay the interest when due; and that because of plaintiff’s relationships with him (Bray) plaintiff was not authorized to declare said notes due; and that any attempt to accelerate the maturity of said notes was inequitable, unjust, and did not have the effect to mature ’ same. It was further alleged that plaintiff called on the trustee in the deed to act in foreclosing the deed of trust, and that, on his refusing to do so* appointed a substitute trustee who sold said property without knowledge of him (Bray), and that said property was bought in at said sale by plaintiff. Defendant Bray further alleged that, by reason of the facts stated, the said notes were not due when the sale under said deed of trust was made; that said property was prematurely sold, and defendant asked that sale be set aside and the suit abated.

By supplemental petition, plaintiff interposed a general demurrer, and 17 special exceptions to the answer of defendants Bray and wife. The special exceptions were to the effect that the answer was too general and not sufficiently specific to put plaintiff upon notice or advise him of what defendants would undertake to prove in support thereof, and were largely conclusions and not facts; that it was immaterial to any issue in the case whether Scarborough assumed the payment of the two notes sold to Sweeney, no copy being attached and no facts alleged further than mere conclusion of the pleader to show whether the payment of said Sweeney notes was assumed by Scarborough or not; and that it was immaterial, so far as plaintiff was concerned, whether Scarborough assumed or was obligated to defendants to pay said notes or not; that it affirmatively appeared from the answer that plaintiff was in no way responsible for Scarborough’s failure to pay the interest on said notes; and that the allegation of such assumed duty was no defense to plaintiffs’ cause of action; that Exhibit A, attached to defendants’ answer and made a part thereof, shows that it was optional with Scarborough to pay said interest just as it was optional with defendant Bray to take said property; and that the answer did not show that plaintiff was in any way responsible for the default of either Scarborough or Bray; that it was immaterial that Bray did not know the semiannual interest had not Been paid on said notes; and that the facts stated in the answer did not excuse Bray from the payment of the interest or see that Scarborough had done so; that the allegation of tender of the interest by defendants to plaintiff are -insufficient as to date of tender, amount of tender, and the answer does not show actual payment into court of any interest or principal, and no offer is made to abide the result of the controversy and make good the alleged tender and thus prevent the plaintiff declaring said notes due and proceeding to foreclose his lien on the property; that the answer does not show that the purchase of said notes by plaintiff was in any respect for the use or benefit of defendants; that the answer shows that defendant was a resident of the county in which the property was situated, on which a foreclosure of the lien was made, and no necessity is imposed upon plaintiff by law to notify defendant personally of said foreclosure sale; that the defenses pleaded in the answer constitute no defense to plaintiffs’ suit for tlie unpaid balance of said two notes, but is a collateral attack upon tbe sufficiency of tbe sale of said property by the trustee under the deed of trust. The several exceptions asked that the several immaterial matters pointed out be stricken out. We have stated only the substance of a few of the special exceptions, but possibly enough to show several of the issues of law presented. The general demurrer ivas by the court 'overruled; but the 17 special exceptions were all sustained, and the defendants declining to amend, even to the extent of eliminating the immaterial matter, judgment was entered for plaintiff, from which this writ of error is prosecuted.

No motion for a new trial appears in the record, but defendants Bray and wife file assignments of error, numbered first, second, third, fourth, fifth, and sixth. Assignments of error numbered 1 and 2 are grouped and complain of the action of the court in sustaining the 17 special exceptions to the answer. The assignments do not copy the exceptions, nor state specifically to iwhat part of the answer the exceptions refer.

Assignments numbered third, fourth, fifth, and sixth are also grouped and unnumbered, and, while each of said assignments complain of the action of the trial court in sustaining the 17 special exceptions to the original answer, the various exceptions each present various questions of law, and cannot be grouped so as to show a single proposition. In our opinion, the brief filed by plaintiffs in error does not conform to the rules for briefing cases. The assignments are entirely too general in complaining of- the action of the court in sustaining the 17 special exceptions to their original answer. While many of the exceptions contain in part repetitions of other exceptions, they each present various questions of law, and point out much immaterial matter, and ask that same be stricken out. The statement following the proposition under the first and second assignments of error, which are grouped, does not refer to the transcript, and in our opinion is not germane to the proposition, and there is no statement under the assignment pointing out the part of the answer to which the exception refers, or setting out or giving the substance of plaintiffs’ exceptions, so as to show that the exceptions present a single proposition of law. Each exception presents a different ground of objection, and each raises distinct questions of law and cannot be grouped, except those that reiterate the same proposition. The same criticism applies to the third, fourth, fifth, and sixth assignments of error. We think several of defendants’ exceptions should have been sustained and much of the immaterial matter found in defendants’ answer should have been stricken out, which defendants in the action refused to do. It could serve no purpose to point. them out here. We have stated the issues fully, so that the points of objection to the answer and to the immaterial matter contained in the answer, raised and pointed out by the exceptions, could be seen without the necessity of discussing them severally. We think the court was not in error in rendering judgment for plaintiff.

Judgment is affirmed.


text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. MATHEWS.
    (No. 1338.)
    (Court of Civil Appeals of Texas. Texarkana.
    Oct. 22, 1914.)
    Appeal and Ebroe (§ 263*) — Questions Reviewable — Refusal of Instbuctions — Exceptions.
    Refusal of special requested charges is not reviewable, unless exceptions were reserved to the refusal as required by statute.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. § 263.*]
    Appeal from Cherokee County Court; C. F. Gibson, Judge.
    Action by Giles Mathews against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Marsh & Mcllwaine, of Tyler, for appellant. Perkins & Perkins, of Rusk, for appellee.
   HODGES, J.

This suit was instituted by the appellee against the appellant to recover damages for killing and injuring certain animals by one of the appellant’s trains at a public road crossing. A trial before a jury resulted in a,verdict in favor of the appellee for $400.

There are but two assignments of error presented, both of which complain of the refusal of the court to give special charges requested by the defendant below. The record does not show that any exceptions were reserved to the refusal of the court to give these charges, as is now required by statute. The law regulating' such proceedings was fully stated and discussed in Railway Co. v. Wad-sack, 166 S. W. 42.

There appearing no fundamental errors that would justify a reversal of the ease, the judgment is affirmed.


author: LEVY, J.

text:
    ST. LOUIS, S. F. & T. RY. CO. v. TUDLE et al.
    (No. 1296.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 18, 1914.
    Rehearing Denied Dee. 3, 1914.)
    Appeal and Ebeob (§ 79) — Judgments Ap-pealable — “Final Judgment.”
    A judgment which did not dispose of a party to the suit is not a “final judgment,” and no appeal therefrom will lie.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 484-493; Dec. Dig. § 79.

    For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]

      Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action between James Tudle and others and the St. Louis, San Francisco & Texas Railway Company. There was a judgment for the former, and the latter appeals.
    Appeal dismissed.
    • Andrews, Ball & Streetman, of Ft. Worth, and Head, Smith, Maxey & Head, of Sherman, for appellant. J. L. Cobb and Jones & Hassell, all of Sherman, for appellees.

      Kor other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   LEVY, J.

The judgment in this case does not dispose of Hallie Tudle, who was a party to the suit. As there is no final judgment, as we conclude, this court would have no jurisdiction to entertain the appeal. Davis v. Martin, 15 Tex. Civ. App. 62, 53 S. W. 599.

Appeal dismissed.


text:
    CHAVERS et al. v. HENDERSON.
    (No. 1339.)
    (Court of Civil Appeals of Texas. Texarkana.
    Oct. 15, 1914.)
    Logs and Logging (§ 3) — 'Conveyance oe Standing Timbee — Fobeeiture.
    An instrument conveying standing timber on described land, giving the purchaser five years within which to cut and remove the timber, and providing for the extension of the time on the purchaser’s first removing timber from the part of the land the vendor wishes to use for farming, does not create an interest in land, and the timber not removed within, the time is forfeited, where, before the expiration of the time, the vendor gave notice where to cut, and the purchaser failed to cut the timber.
    [Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.]
    Appeal from District Court, Marion County; H. F. O’Neal, Judge.
    Action by Henry Chavers and another against Clark Henderson. From a judgment for defendant, plaintiffs appeal.
    Reversed and rendered.
    April 6, 1908, appellant Chavers, who owned a tract of 160 acres of* land in Marion county, sold the pine and gum timber measuring more than 12 inches at the stump on 135 acres thereof to one John Spearman. The contract of sale was in writing, but it was not copied into the record on this appeal. However, from findings made by the court below it appears that Spearman undertook to remove the timber from the land within five years from the date of the contract, but that it was understood and agreed between him and Chavers that the time for the removal of the timber should be extended if he (Spearman) should first cut off the timber on the part of the land “Chavers wanted to clear up and put into a state of cultivation.” It seems that Spearman was unable to pay for the timber as he had agreed to, and induced one Rhyne to advance for him to Chavers the purchase price of the land. To secure Rhyne in the sum so advanced, by agreement of the parties Chavers conveyed the timber to Rhyne by a deed dated June 15, 1911, as follows:
    “Know all men by these presents that Henry Chavers, of the county of Marion, state of Texas, for and in consideration of the sum of $375 to me in hand paid by A. M. Rhyne, have granted, sold, and conveyed, and by these presents do grant, sell, and convey, unto the said A. M. Rhyne, of the county of Cass, state of Texas, all that certain-tract or parcel of pine and gum timber situated,” etc. “The said timber is to_ be cut down to 12 inches in diameter at the' stump, and said A. M. Rhyne is to have five years time from date April 6, 1908, to remove same, also roads and right of way for moving same; time to be extended if he removes timber from where I want to clear for farming purposes. To have and to hold the above-described premises, together with all and singular the rights and appurtenances thereto in any wise belonging to the said A. M. Rhyne, his heirs and assigns forever. And I do hereby bind myself, heirs, executors, and administrators to warrant and forever defend all and singular the said premises unto the said A. M. Rhyne, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof. Witness my hand,” etc.
    Spearman having paid to Rhyne the money advanced for him as stated, the latter, on December 21, 1912, conveyed the timber to the former, who conveyed same to appellee, Henderson. In the conveyance from Rhyne to Spearman it was stipulated that the timber “must be cut and removed within the time designated in deed from Henry Chavers, and this conveyance is made subject to all the terms of the Chavers deed”; and in the conveyance from Spearman to appellee was a like stipulation. Appellee, after the expiration of five years from April 6, 1908, but at a date not otherwise specified in the record, cut and removed from the land 120,000 feet of timber of the value of $2 per 1,000 feet. The suit resulting in the judgment from which this appeal was prosecuted was brought by Chavers and appellant James Jordan to restrain appellee from cutting and removing any more of the timber and to recover the value of the 120,000 feet cut and removed as above stated. The trial court was of the opinion that the effect of Chav-ers’ deed to Rhyne was to pass to the latter the absolute title to the timber, and concluded that appellants therefore were not entitled to the relief they sought. He accordingly rendered judgment dissolving an injunction he had granted to appellants and awarding the timber and costs to appellee, Henderson.
    R. R. Taylor and Schluter & Singleton, all of Jefferson, for appellants. T. D. Rowell, and W. L. Grogan, both of Jefferson, for ap-pellee.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   WILLSON, C. J.

(after stating the facts as above). This case is distinguishable from Carter v. Clark & Boice Lumber Co., 149 S. W. 278, only in the fact that in this one it was agreed that the time for removing the timber specified in the deed might be extended if the purchaser should first remove the timber from the part of the land Chavers wished to use for farming purposes. With reference to this phase of the case, the trial court found that Chavers did not notify Rhyne, but, “before the expiration of the time limit for cutting the timber, did notify Spearman where to cut the timber on the land he wanted to put into cultivation, and requested him to do so, and that said Spear-man failed to cut said timber.” We do not think the difference noted furnishes a reason why the ruling made in the Carter Case should not be held to control this one. Therefore the judgment of the court below will be reversed, and judgment will be here rendered perpetuating the temporary injunction granted by the court below, whereby ap-pellee was restrained from cutting and removing any of the timber from the land, and awarding to appellants a recovery against appellee of the sum of §240, the value of the timber cut and- removed after April 6, 1913, together with interest thereon from December 3, 1913, and the costs incurred in this court and the court below.


author: WILLSON, O. X

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. DELLMON.
    (No. 1291.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 13, 1914.
    Rehearing Denied Nov. 19, 1914.)
    1. Evidence (§ 471) — Opinion Evidence— What Constitutes.
    In an action by a passenger, who claimed to have contracted a serious cold resulting in tuberculosis because of draughts on defendant’s train, neither the question to a witness who accompanied the passenger as to the passenger’s condition on the trip, nor the witness’ answer that he took cold and was feeling bad when he returned, is objectionable as opinion evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.]
    2.'Evidence (§ 471) — Opinion Evidence-Admissibility.
    Where a passenger claimed that exposure on a train resulted in a cold and tuberculosis, a witness may testify that since the trip the least exertion tired him out.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.]
    3. Evidence (§ 553) — Opinion Evidence-Examination of Experts.
    A hypothetical question is properly excluded, where based upon a premise contrary to the evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2369-2374; Dec. Dig. § 553.]
    4. Appeal and Error (§ 1050) — Review-Harmless Error.
    Where a passenger claimed that a cold contracted on defendant’s train resulted in tuberculosis, the exclusion of a question of a medical expert as to whether that was not unusual is not reversible error.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 106S, 1069, 4153^1157, 4166; Dec. Dig. § 1050.]
    5. Trial (§ 260) — Instructions—Refusal.
    Refusal of requests covered by the charges given is not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    6. Trial (§ 261) — Instructions.
    A special charge should direct the attention of the court and jury to the particular phase of the ease sought to be presented.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 484, 660, 671, 673, 675; Dec. Dig. § 261.}
    7. Damages (§ 208) — Personal Injuries-Jury Question.
    Where a passenger claimed that exposure on defendant’s train resulted in tuberculosis, testimony that he was directed to consult a throat specialist, without any showing that he did not do so, does not raise the issue of whether he was negligent in failing to procure competent medical treatment.
    [Ed. Note. — For other/ cases, see Damages, Cent. Dig. §§ 54, 64, 68, 132, 144, 145, 205, 220, 533, 534; Dec. Dig. § 208.]
    8. Trial (§ 125) — Argument of Counsel.
    Argument of counsel for a passenger claiming to have contracted tuberculosis because of exposure on defendant’s train that he would not have tuberculosis for the railroad is not improper as tending to cause the jury to award excessive damages.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 303-307; Dec. Dig. § 125.]
    9. New Trial (§ 104) — Newly Discovered Evidence.
    A new trial will not be awarded because of newly discovered evidence, which is wholly cumulative.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 218-220, 228; Dec. Dig. § 104.}
    Error from District Court, Hunt County; Wm: Pierson, Judge.
    Action by Joe R. Dellmon against tbe Missouri, Kansas & Texas Railway Company of Texas. There was a judgment for plaintiff, and defendant brings error.
    Affirmed.
    About 6 o’clock of the morning' of October 22, 1911, defendant in error (hereinafter referred to as plaintiff), then about 16 years of age, accompanied by a young man named Stapleton, went aboard one of plaintiff in error’s (hereinafter referred to as defendant) trains then leaving Greenville for Dallas. They took a seat together — ap-pellee next to a window, the curtain to which was so pulled down as to conceal the fact that the glass thereof had been so broken as to permit wind to enter the ear through same. The weather was cold, and, as the car was not heated, plaintiff soon found it to be uncomfortable. He discovered after a while that the glass in the window beside him had been broken as stated, and thereupon he and Stapleton left the seat they were occupying, and, going to the rear part of the car, stood there until about 9 o’clock, when the train reached Dallas. On the ground that defendant was guilty of negligence in using the ear in the condition it was in, and in failing, if it did use same, to have it properly heated, resulting, as he claimed, in his contracting bronchitis and consumption, plaintiff, by Ms next friend, sued and recovered against defendant tbe judgment from wMch this appeal is prosecuted. Tbe sufficiency of tbe testimony to support the finding of the jury involved in their verdict, that defendant was guilty of negligence as charged against it, and that plaintiff was without fault is not questioned by defendant. Therefore we adopt those findings as our own, and further find that plaintiff was damaged in the sum named by the jury!
    Dinsmore, McMahan & Dinsmore, of Green-ville, for plaintiff in error. Evans & Carpenter, of Greenville, for defendant in error.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   WILLSON, O. X

(after stating the facts as above).

After plaintiff’s witness Staple-ton had testified that he accompanied plaintiff on the trip to Dallas and was with him during all of that day after they left Green-ville, plaintiff asked him this question: “What did you observe concerning Ms (plaintiff’s) condition that day?” Defendant’s objection to the question, on the ground that “it was irrelevant and immaterial. to any issue in this case and called for an opinion and conclusion of the witness and did not elicit a fact, and was no part of the res gestso,” having been overruled, the witness answered: “Well, he was sneezing, and said he was feeling bad and began to feel bad and taken a pretty bad cold in the afternoon and was feeling pretty bad when he got home.” The action of the court in overruling the objection is made the basis of the first assignment. Clearly, neither the question nor the answer of the witness, so far as it was responsive to tbe question, was subject to the objection made. 1 Wigmore on Evidence, § 223.

The objection to the testimony of the witness Mrs. Penrich that appellee had “not been able to do,anything about the house. The least thing tires him out”—also was without merit. Railway Company v. Reagan, 34 S. W. 797.

Nor do we think the court erred in sustaining the objection made by plaintiff to the hypothetical question propounded to the witness Dr. French. A premise of that question was that the cold plaintiff suffered from did not develop until the day following the day he made the trip to Dallas, whereas tbe testimony was that the cold developed during the day he made the trip. Hicks v. Ry. Co., 71 S. W. 322.

And certainly if the court erred, as is asserted in the fourth assignment, in sustaining the objection interposed to the question propounded to Dr. French on his cross-examination, as follows: “Well, Doctor, if I was to start out on a train up here and in running a distance of about 16 miles in about 30 minutes I got cold and contracted cold enough to put me in condition that I had to he treated for a whole year, and then developed consumption on it, tuberculosis, that would be a little unusual, wouldn’t it?” —the error was not such a one as to require a reversal of the judgment.

The portion of the court’s charge to the jury set out in the statement under the sixth assignment is not believed to be obnoxious to the criticism made of it. We do not think the jury would have construed the portion of the charge referred to as meaning that plaintiff would not have been guilty of negligence if, after seating himself by the window, he negligently remained there after he discovered the glass thereof had been broken out. Therefore said assignment is overruled, as is also the seventh, in which defendant complains of the refusal of the court to give the instruction it requested with reference to that phase of the case. AMe think the issue of contributory negligence was sufficiently presented in the instruction given to the jury and complained of as stated.

In its eighth assignment defendant complains of the action of the court in refusing a special charge requested by it, submitting to the jury as an issue in the case a question as to whether plaintiff had negligently failed to secure treatment by competent medical men, whereby the injury he had suffered had been aggravated. The testimony relied upon to support the contention made is that of Dr. French, to tbe effect that after he had treated plaintiff about a year he advised him to go to Dr. Swindell, a throat specialist, for treatment. TMs assignment would be sustained but for the fact that it does not appear, from any testimony we have been referred to or been able to find in the record, that plaintiff did not follow the advice so given him, and but for the fact that the special charge requested and refused was so general as to fail to direct the attention of the court and jury to the particular phase of the ease presented by the testimony referred to. Railway Company v. Earnest, 229 U. S. 114, 33 Sup. Ct. 656, 57 L. Ed. 1096, Ann. Cas. 19140, 172. The burden was on defendant to show that plaintiff did not consult a throat specialist as he had been advised to, and in the absence of proof that he did not, an issue as to whether he was negligent or not in not doing so did not arise.

The complaint made in the ninth assignment is that the judgment is excessive. But, plainly, it is not, if it was true, as the jury may have found it to be, that as a result of negligence on the part of appellant plaintiff was suffering from tuberculosis of the lungs.

What has been said disposes of all the assignments' except the fifth, with reference to a portion of the argument of plaintift’s counsel to the jury, and the tenth, presenting for review the action of the court in refusing to grant defendant a new trial on the ground of newly discovered evidence. We do not think either of the matters complained of in these assignments furnishes a reason why the judgment should be set aside. The assertion of counsel objected to (to wit, that he “would not have tuberculosis of the lungs for the Katy Railroad from Denison to Dallas”) reasonably could not be said to have induced a jury of ordinarily intelligent men, as we must assume and have no doubt the jury in this case were, to return a verdict different from the one they would have returned had such an assertion not been made in the argument to them.

As to the testimony discovered after the trial of the ease, it was cumulative merely to testimony admitted on the trial, and did not furnish a reason why the court below should have granted the new trial as prayed for. Ham v. Taylor, 22 Tex. 225; Latham v. Selkirk, 11 Tex. 314.

The judgment is affirmed.