text:
    BRIDGEWATER v. HOOKS et al.
    (Court of Civil Appeals of Texas. Galveston.
    June 25, 1913.
    On Motion for Rehearing, Oct. 9, 1913.)
    1. Appeal and Error (§ 265) — Reservation op Grounds op Review — Necessity op Exceptions.
    Cross-assignments of error filed by appel-lees attacking findings of the trial court to which they did not except in the court below could not be considered.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1461, 1536-1551; Dec. Dig. § 265.] ’
    2. Wills (§ 58) — Contracts to Devise or Bequeath — 'Validity.
    A contract upon a valuable consideration that one of the parties will, at his death, leave property to the other is valid and enforceable.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 164, 165; Dec. Dig. § 58.]
    3. Wills (§ 59) — Contracts to Devise or Bequeath — Consideration.
    While a parent has no property interest in a child that can be disposed of by contract and cannot by contract divest himself of his obligation to support and maintain such child, where a contract by a parent to surrender the possession, custody, and control of a child to a third person in consideration of the third person’s agreement to care for him as his own and leave him all of his property at his death was fully performed by the parent and child, the third person’s agreement was not unenforceable for want of consideration.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 166; Dec. Dig. § 59.]
    4. Frauds, Statute op (§ 129) — Part Performance — Agreements to Devise or Bequeath.
    Where a father, the sole surviving parent of his son, orally agreed with D. to surrender the control, possession, and custody of the son to D. in consideration that D. would take him, raise him as his own son, and leave him all of his property, real and personal, at his death, the contract was performed by the father, and the _ son bestowed upon D. the attention, affection, and obedience that a son usually gives to a father and performed services around D.’s home as needed without receiving any wages or money consideration therefor until the death of D., there was such performance of the contract as removed it from the operation of the-statute of frauds, since while payment of the agreed consideration, coupled with the transfer of possession, is not sufficient to take a parol contract for the sale of land from the operation of the statute, without the making of any valuable improvements on the land, and payment of the consideration in personal services does not necessarily change the rule, a different rule-applies where the services are of such character that their value cannot be, and is not intended to be, measured by any pecuniary standard.
    [Ed. Note. — For other cases, see Frauds,. Statute of, Cent. Dig. 287-292, 303, 306-308, 311, 314, 318-320, 322, 325, 326; Dec. Dig. " 129.]
    5.Wills (§ 67) — Contracts to Devise or Bequeath — Rights on Breach.
    The rights of one to whom an intestate had agreed to leave all of his property upon his death was subject to the right of administration upon the estate if necessity therefor existed, and hence he was not entitled to possession of the intestate’s property as against the-administrator.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 175-177; Dec. Dig. § 67.]
    On Motion for Rehearing.
    6. Frauds, Statute oe (§ 129) — Part Performance — Delivery of Possession.
    The rule that oral contracts for the sale-of land are unenforceable, no matter what equities exist in favor of the vendee, unless he has been placed in possession of the land by the vendor, had no application to an agreement to leave all of a party’s property to another at his death, since it did not refer to any specific property, and from its very nature and purpose could not be evidenced by delivery of possession, as it was not certain that any land would come within its operation.
    [Ed. Note. — For other cases, see Frauds,. Statute of, Cent. Dig. §§ 287-292, 303, 306-308, 311, 314, 318-320, 322, 325, 326; Dec, Dig. § 129.]
    7. Courts (§, 107) — Rules of Decision — Precedents.
    The individual views of the member of a court delivering an opinion are not binding as-stare decisis upon any other court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. | 360; Dec. Dig. § 107.]
    8. Contracts (§ 187) — Contracts to Devise, or Bequeath — By Whom Enforceable.
    An agreement between a fattier and a third; person by which the third person agreed to take a child, raise it as his own, and leave it all of his property at his death was not unenforceable by the child, even though he had no knowledge of its terms or existence.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 798-807; Dee. Dig. § 187.]
    9. Appeal and Error (§ 1175) — Reversal— Rendering Final Judgment.
    That defendants did not introduce any of the witnesses who testified on the trial, and that the testimony for plaintiff was in the-main uncontradicted, did not indicate that the-facts were not fully developed, or make it improper to render judgment for plaintiff upon-the reversal of a judgment for defendants.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. § 1175.]

      10. Appeal and Error (§ 1175) —Reversal —Rendering Final Judgment.
    Under Rev. Civ. St. 1911, art. 1626, providing that when a judgment shall be reversed the Court of Civil Appeals shall render such .judgment as the court below should have rendered, except when it is necessary that some matter of fact be ascertained, or where the damage to be assessed or the matter to be de•creed is uncertain, in which cases the cause shall be remanded for a new trial, where no ruling of the trial court misled defendants as to the necessity of offering evidence, the whole case was submitted to the court on the facts and law, and a general judgment rendered for defendants, but upon the facts found plaintiff was entitled to judgment, and there was nothing to suggest that the facts were not fully developed, or that it was necessary that any matter of fact should be ascertained, a new trial would not be granted to enable defendants to procure evidence contradictory of that introduced by plaintiff, no excuse for the failure to produce which on the first trial was shown.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§, 4573-4587; Dec. Dig. § 1175.]
    Appeal from District Court, Hardin County; L. B. Hightower, Judge.
    Action by Bob Bridgewater against H. A. Hooks, administrator, and others. From a judgment for defendants, plaintiff appeals.
    Reversed and rendered.
    Jas. A. Harrison, of Beaumont, J. L. Manry and S. H. German, both of Livingston, and Ralph Durham and W. D. Gordon, both of Beaumont, for appellant Singleton & Nall, •of Kountze, and Smith, Crawford & Sonfield, of Beaumont, for appellees.

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

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

   PLEASANTS, C. J.

This suit was brought by the appellant against the appellee H. A. Hooks, administrator of the estate of Jno. IV. Davis, deceased, and the heirs at law of said Davis, to recover all of the property of said estate. The material allegations of the petition are as follows: “That heretofore, on or about the year 1895, the plaintiff, who was then about nine years of age, was in the possession, custody, and control of and living with his father, S. A. M. Bridgewater, when John W. Davis, a citizen of Hardin county, Tex., who, desiring to obtain the care, custody, and society of plaintiff, and desiring to take and raise the plaintiff as his son, made and entered into a contract with the said father of plaintiff which was substantially as follows, to wit: That on or about the said year 1895, the said father, S. A. M. Bridgewater, contracted and agreed with the said John W. Davis to surrender said plaintiff, and surrender the possession, custody, and control of plaintiff, to the said John W. Davis, and in consideration thereof the said John W. Davis contracted and agreed to take and receive and raise plaintiff, and to give the plaintiff the care, attention, and rights of a son, and further agreed in consideration thereof to make plaintiff his heir and leave to him all of his, the said John W. Davis’, property at his death. That at the time said agreement and contract was made the plaintiff’s mother was dead, and said S. A. M. Bridgewater was his sole surviving parent. That pursuant to the terms of said agreement the said S. A. M. Bridgewater surrendered and delivered the plaintiff to the said John W. Davis, and never thereafter exercised or demanded any care, custody, control, or possession of the plaintiff; but all such care, custody, control, and possession of the plaintiff was vested in and exercised by the said John W. Davis. That at the time of the surrender of plaintiff, as aforesaid, he was a child of about nine years of age, and plaintiff from said date never lived with his father, but lived with said John W. Davis, gave to him the devotion, filial obedience and assistance that a son usually gives to a father, and said John W. Davis gave to the plaintiff the care, attention, and devotion that a father usually gives to his son, and said plaintiff was under the full control and direction of the said John W. Davis. That after the surrender of plaintiff as aforesaid, the said S. A. M. Bridgewater never had or demanded the possession and custody of the plaintiff, and never exercised- any control over him, and never demanded any of the earnings of the plaintiff, but strictly in all things complied with said agreement up to his death, which occurred in the year-. That plaintiff was informed of said contract and agreement by both said Davis and Bridgewater, and ratified the same and reaffirmed said contract with the said John W. Davis, and in all things complied with the same up to the death of said John W. Davis. ..That said Davis treated the plaintiff as his son and heir, and frequently told the plaintiff that he was his heir and would get all of his property when he died, and the plaintiff was led to believe, and did believe, that said Davis would leave to him all of his property when he died. That at the time of the execution of said contract, and during all of the period of time that the plaintiff lived with the said John W. Davis, as aforesaid, it was never intended by the plaintiff or the said father or the said John W. Davis that plaintiff’s services, changed filial relations and assistance and devotion to the said John W. Davis were to be compensated for, or measured by, any pecuniary standard, but on the contrary, it was never intended to be so measured, but plaintiff was to be rewarded only in the manner provided in said agreement, to wit, that the said Davis should and would leave to the plaintiff at his death all the property that he then owned. That the said John W. Davis died intestate in Hardin county, Tex., about August 15, 1911. That if he left a will such fact is unknown to plaintiff, and defendants received and took possession of all his papers and effects, and have not produced or offered to probate any will of said deceased. That said John W. Davis was a single man and was never inar-ried, and left no kin or gelations. witMn the state of Texas, so far as known to plaintiff.” It is furtlier alleged that appellee H. A. Hooks has been appointed administrator, and is in possession of the property of the estate of said Davis, and the other defendants are the heirs at law of said Davis and claim to own the property as such heirs. A list of the property as far as known to the plaintiff is set out in the petition, and plaintiff prays judgment against the defendants “enforcing said contract and agreement, and that title to all the property, both real and personal, owned by the. said John W. Davis at the time of his death be vested in plaintiff, and that plaintiff have and recover of and from the defendants the title and possession to all of said property.” The defendants answered by general demurrer and general denial, and specially denied that plaintiff performed his part of said alleged contract. They further pleaded “that if any such contract existed as pleaded by the plaintiff, the same was not in writing in whole or in part, and the same is in contravention of the statute of frauds of this state in that it was a contract not to be performed within one year, and it also appears that the same was for the sale and transfer of real estate or the disposition thereof, and is therefore void.” The trial in the court below without a jury resulted in a judgment in favor of defendants.

We adopt as our fact conclusions the following findings of fact, which were filed by the trial judge at the request of appellant:

“First. I find that the contract was made and executed between Jno. W. Davis, deceased, and S. A. M. Bridgewater, the father of plaintiff, as set out in plaintiff’s petition, and that the same was not in writing, but was a parol contract, and that said contract was fully established by the evidence.

“Second. I find as a fact that plaintiff, Bob Bridgewater, and his father, S. A. M. Bridgewater, commonly called Tom Bridge-water, substantially carried out and performed said contract in accordance with its terms, and that John W. Davis performed same in every respect, except that he failed to leave plaintiff his property at his death, and in this connection I find that John W. Davis failed to leave any or all of his property to plaintiff, and died intestate.

“Third. I find that John W. Davis was a single man, having never been married, and had no relations or kin in the state of Texas.

“Fourth. I find that said John W. Davis left an estate, consisting of both personal and real property, which, under agreement of counsel, may and will be set out and described in the statement of facts so far as now discovered, and that said estate may own other property not known to any of the parties to this suit.

“Fifth. I find that S. A. M. Bridgewater and John W. Davis, deceased, entered into a verbal contract in the spring of 1895, in Jefferson county, Tex., wherein said Bridge-water agreed to surrender to said Davis his son, Bob Bridgewater, and the control, possession and custody of said Bob Bridgewater, in consideration that the said John W. Davis would take the plaintiff, raise him as his own son, and leave to plaintiff all his, the said John W. Davis’, property at his death;, that pursuant to said contract said Davis received plaintiff into his custody when plaintiff was 9 years of age, and said S. A. M. Bridgewater never thereafter had possession of plaintiff, or exercised any custody or control over him, but all such was vested in and' exercised by the said John W. Davis.

“I find that the plaintiff always bestowed the attention, affection, and obedience that a son usually gives to a father, and performed chores and services around the home place as needed.

“That plaintiff received no wages or money consideration for his services.

“I find that plaintiff performed said contract substantially to the death of John W. Davis in the year 1911.

“Sixth. That plaintiff’s mother died in the year 1891, and his father died in the year 1895.”

Appellees filed in the court below an exception to the finding of the court that the contract alleged by plaintiff was substantially complied with, and, by cross-assignments presented in this court, attack said finding on the ground that the evidence fails to show such substantial compliance with the contract, but, on the contrary establishes that the alleged contract was not performed by him, and said finding is so against the great weight and preponderance of the evidence as to be manifestly wrong.

Another cross-assignment presented by ap-pellees attacks the finding that the plaintiff always gave the deceased the affection and obedience that a son usually gives a father, on the ground that said finding is against the great weight and preponderance of the evidence, and another assails, as against the great weight and preponderance of the evidence, the finding that the execution of the alleged contract between plaintiff’s father and the deceased was fully established by the evidence.

Appellees having only excepted in the court below to the finding that plaintiff had substantially complied with the contract as alleged in his petition, a cross-assignment attacking other findings of fact of the trial court cannot be considered. Drake v. Davidson, 28 Tex. Civ. App. 184, 66 S. W. 889; Buster v. Warren, 35 Tex. Civ. App. 644, 80 S. W. 1063; Bank v. Improvement Co., 128 S. W. 436. We think, however, the evidence is sufficient to sustain all of the fact findings of the trial court, and for that reason none of the cross-assignments should be sustained if all should be considered.

The questions of law presented by the record are: First, whether without regard to the statute of frauds the contract between the deceased and plaintiff was valid and inured to the benefit of plaintiff and can be enforced by him; and, second, whether the enforcement of said contract by plaintiff would contravene the statute of frauds.

Appellees do not contend that a contract between two persons upon a valuable consideration that one will, at his death, leave property to the other is unenforceable, where not prohibited by statute. That such a contract is valid and enforceable is established by the great weight of authority in England and America, and by the decisions of our Supreme Court. Jordan v. Abney, 97 Tex. 296, 78 S. W. 486.

The contention of appellees is that the contract in this case is unenforceable because the agreement of appellant’s father to divest himself of the custody and control of his child could not have been, enforced by the deceased, and therefore the agreement of the deceased to leave his property to appellant was without consideration. The cases of Legate v. Legate, 87 Tex. 248, 28 S. W. 281, Taylor v. Deseve, 81 Tex. 246, 16 S. W. 1008, Parker v. Wiggins, 86 S. W. 788, and State v. Deaton, 93 Tex. 243, 54 S. W. 901, cited by appellees in support of this contention, do not hold that the surrender by a parent of his right to the control and custody of his child would not be a valid consideration for a contract made for the benefit of the child, and which had been fully performed both by the parent and the child. The extent of the holding in these cases is that the parent cannot, by a contract of this kind, divest himself of the obligations resting upon him of supporting and maintaining his child; that the parent has no property interest in the child that can be disposed of by contract, and in this sense neither the child nor its custody can be the subject-matter of a contract, and that in determining the question of the custody and control of the child, as between the parties to a contract of this kind, the court will disregard such contract, and look only to the best interest and welfare of the child.

In the case of Jordan v. Abney, before cited, our Supreme Court expressly holds that a contract similar to the one in this case when performed by the parent and child Is binding upon the other party to the contract and entitled the child to the property which such party had agreed to leave it at his death. In that case the statute of frauds was not pleaded, and the court did pot determine the question of whether the performance of the contract by the plaintiff rendered the statute inapplicable. Upon this question we have not found any direct authority in this state, but the authorities from other states in support of appellant’s contention that the statute of frauds cannot be invoked to defeat his right to an enforcement of the contract are abundant.

It is the settled rule in this state that the payment of the agreed consideration, coupled with the transfer of possession, is not sufficient to take a parol contract for the sale of land from the operation of the statute of frauds, but in addition to such payment and possession, to entitle the purchaser to the enforcement of such contract, he must, in reliance upon the verbal contract to convey, have made valuable improvements on the land. Lodge v. Leaverton, 42 Tex. 18. The fact that the consideration was paid for in personal services would not necessarily change this rule. Terry v. Craft, 87 S. W. 844. Whether the consideration was paid in money or in personal services, where the services performed were such that they could be adequately compensated in money, it would not operate as a fraud upon the purchaser to deny him specific performance of the contract, because he has his remedy to recover the money paid or the value of the services rendered. But a different rule applies when the services rendered are of such character that their value cannot be computed in money and it is evident that the parties to the contract did not suppose or intend that they could or would be measured by any pecuniary standard. In such case the purchaser cannot be placed in the position he was before he performed his part of the contract. It being impossible to adequately compensate him in money, to deny him the right to specific performance on the ground that the contract contravenes the statute of frauds would be to make that statute, the purpose of which is the prevention of frauds, an instrument of fraud. Courts of equity have always protested against such subversion of the statute.

On page 673, vol. 36, Cyc., it is said: “Certain kinds of service of very personal nature have been recognized by a clear majority of the American cases as a sufficient act of part performance, unaided by possession or other act on plaintiff’s part. Where the services rendered are of such peculiar character that it is impossible to measure their value by any pecuniary standard, and where it is evident the parties did not intend to measure them by any such standard, it is impossible adequately to compensate the party performing the services except by decree for specific performance.” Under this section are cited a number of cases from each of the following states, and most of same involved a verbal contract for the conveyance or devise of real property: California, Illinois, Iowa, Michigan, Minnesota, Missouri, Nebraska, New Jersey, New York, Ohio, South Dakota, Utah, West Virginia, and United States courts. On page 674 it is said: “Another frequent type of contract is found in an informal agreement with the parents of a child to adopt the child and make it heir of the prom-isor or to give it a child’s portion of the promisor’s estate. The total change of position on the part of the child, and its natural parents, the assumption of the filial relation to the adopting parent, and the rendering of such service's and duties of affection as naturally flow from that relation, present a case where the recovery of compensation for the pecuniary value of the services would be' an utterly inadequate remedy.” As sustaining the text a large number of cases are cited from the following states: California, Iowa, Kansas, Michigan, Minnesota, Missouri, Nebraska, New Jersey, South Dakota.

In the case of Weeks v. Lund, 69 N. H. 78, 45 Atl. 249, the court says: “In the case of a contract under which the relation of parent and child is assumed, under the agreement that the child shall receive all of the property of the other at death, the consideration of the contract is not so much the personal service of the child as it is the assumption of the filial relation. In such case it may be argued with great force that the value of that relation to the recipient of such services as naturally flow therefrom is not susceptible of measurement in money. The fact that the consideration for such services and the assumption of such relation is of all the property remaining at death, naturally an undetermined, an indefinite amount, may also authorize the inference that the parties did not intend or expect remuneration for the services rendered according to their pecuniary value.”

In Chehak v. Battles, 133 Iowa, 107, 110 N. W. 330, 8 L. R. A. (N. S.) 1130, 12 Ann. Cas. 140, speaking of a similar contract, it is said: “The obligations of such a contract are mutual, and the peculiarities of it are such as to emphasize the right of him who has faithfully performed his part of it to ■that portion stipulated by the other party. It is impossible to estimate by any pecuniary standard the value to the party receiving a child, nor is there ever any design of so measuring the service and solace bestowed. The nature of the contract necessarily precludes all thought of returning the consideration, and after the mother has yielded the possession of her child, with all that this means, and it has lived until majority as a •dutiful and loving son or daughter with those who have promised to cherish him or her as their own, and that he or she shall share their estate, it is beyond the power of the adoptive parents, or the courts, to place the mother or the child in the situation in which they were before the agreement was entered into. There is no such thing, in cases like this, as placing the parties in statu quo, and the remedy must be by specifically enforcing the contract, or the denial of rights which have been fully earned, and in ¡good conscience and justice ought to be enforced.”

The Supreme Court of Nebraska, in the case of Kofa v. Rosicky, 41 Neb. 328, 59 N. W. 788, 25 L. R. A. 207, 43 Am. St. Rep. 685, in a strong and well-considered opinion in which many of the cases supporting the doctrine above announced are cited and discussed, reaches the conclusion that the weight of authority and reason preponderate in favor of the proposition that a contract of this kind which has been performed by the child is relieved from the operation of the statute of frauds, and that the child can sue upon and enforce the contract made for it by its parent.

The following authorities also sustain the doctrine above announced: Sharkey v. McDermott, 91 Mo. 647, 4 S. W. 107, 60 Am. Rep. 270; Svanburg v. Fosseen, 75 Minn. 350, 78 N. W. 4, 43 L. R. A. 427, 74 Am. St. Rep. 491; Healey v. Simpson, 113 Mo. 340, 20 S. W. 881.

In the case of Svanburg v. Fosseen, supra, the court makes the following quotation from Pomeroy on Contracts (2d Ed.) page 161: “But if the services are of such peculiar character that it is impossible to estimate their value by any pecuniary standard, and it is evident that the parties did not intend to measure them by any such standard, then the plaintiff, after the performance of these services, could not be restored to the situation in which he was before or be compensated by any recovery of legal damages. Under these circumstances the rendition of the services, or the procuring them to be rendered, is a part performance of the verbal agreement, and the case is quite analogous to those in which outlays are made for improvements by a vendee or lessee under a parol contract.”

If this analogy exists, and we think it clearly does, it does not conflict with the doctrine announced in the case of Lodge v. Leaverton, supra, and the many cases in this state which follow that decision, to hold that the performance by appellant of the contract upon which this suit is brought removes said contract from the operation of the statute of frauds, but such holding is in entire accord with the principle upon which the decisions in said cases rest. We think upon the facts found by the trial court judgment should have been rendered in favor of the appellant.

The title of appellant to the property of the estate of the deceased is, of course, subject to the right of administration upon said estate if necessity for such administration exists. Upon the record before us appellant does not show himself entitled to the right of possession of said estate as against the administrator.

The judgment of the court below will be reversed, and judgment here rendered in favor of appellant against, all of the appel-lees, establishing his right and title to all of the property, real and personal, belonging to' the said estate, ^subject to the right of the appellee Hooks to administer said estate under the orders of the county court of Hardin county in accordance with, the law of. this state governing such administration. ■

Reversed and rendered.

On Motion for Rehearing.

Appellees in a motion for rehearing, i supported by an able written argument, very . earnestly contend that the contract upon which appellant’s suit is based is in con- j travention of the statute of frauds. The j main ground of this contention is that under ; the decisions of our Supreme Court no oralj contract for the sale of land is enforceable, ! it matters not what equities may be shown i in favor of the vendee, unless he is shown to j have been placed in possession of the land ! by the vendor. That this is the general rule : in this state in regard to verbal sales or j gifts of land is well settled. Wooldridge v. Hancock, 70 Tex. 18, 6 S. W. 818; Bradley v. Owsley, 74 Tex. 69, 11 S. W. 1052.

In all of the cases, however, in which this rule is laid down the contract was one! of sale or gift of a specific tract of land, in ] which delivery of possession by the grantor j was not an impossible or unreasonable requirement as evidence of the sale or gift. The courts in announcing this rule did not have in mind a contract like the one in this case, which does not refer to any specific property, and from its very nature and purpose could not be evidenced by delivery of possession. The present enforcement of this contract after its full performance by the appellant will result in the transfer of title ¡ to land, but at the time the contract was ' made and at no time prior to the death of . Davis was it certain that any land would come within its operation, and the rule as ' to necessity for delivery of possession is not ’ applicable. The statement of our Supreme Court, in some of the opinions referred to, j that the court would not be inclined to ex-j tend the grounds upon which equity would ’ enforce an oral contract for the sale of •land is but the individual views of the member of the court delivering the opinion, and not binding as stare decisis upon any other court. ¡

It is further contended that because ! appellant is not shown to have been informed of the existence of the contract made for . him by his father, and his performance of the obligations imposed upon him by the contract not having been with reference thereto, no such equities in his favor arose ' from such performance as would entitle him j to an enforcement of the contract. We are not prepared to say that the finding of the court that appellant performed the contract, or his part, does not necessarily include the finding that appellant was informed of the existence of the contract, but we do not think it material whether or not he knew of the existence of the contract. The contract was made by his father for appellant’s benefit, and if performed by appellant, he is entitled to the consideration promised by the contract, regardless of whether or not he knew of its terms or existence. This was the holding in the case of Kofka v. Rosicky, cited in the main opinion. We adhere to the conclusion expressed in our main opinion that the contract is not within the statute of frauds, and in equity and good conscience should be enforced.

Appellees further contend that we erred in rendering Judgment for appellant, even if our conclusion that the contract is enforceable is sound, but should have remanded the cause for a new trial. There is nothing in the record which suggests that the facts were not fully developed upon the trial. It is fairly inferable from the record that appellees did not introduce any of the witnesses who testified on the trial, and the testimony ii^ the record is in the main uncontradicted, but this does not indicate that the facts were not fully developed.

Appellees state in their motion for rehearing that they confidently hope that upon another trial they will be able to produce testimony showing that the contract sued on was not in fact made, and that if it was made appellant did not perform its obligations. This is, in effect, asking this court to remand the cause for another trial to give appellees an opportunity to procure and introduce evidence contradicting the testimony introduced by appellant when if any such evidence exists the record offers no excuse for appellees’ failure to introduce it on the last trial. There was no ruling of the trial court, on exceptions or otherwise, by which appellees were misled as to the necessity of offering any evidence at their command material to the fact issues presented by the pleading. The whole case was submitted to the court on the facts and law, and a general judgment rendered in favor of appellees.. Having reached the conclusion that upon the facts found by the trial judge the appellant was under the law entitled to a judgment in his favor, and there being nothing in the record to suggest that the facts were not fully developed, and no matter of fact being necessary to be ascertained to enable us to render a proper judgment, we felt compelled, under article 1626 of the Revised Statutes, to render judgment for appellant, and we do not feel authorized by anything presented in the motion for rehearing to set aside that judgment.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    ROYSE INDEPENDENT SCHOOL DIST. et al. v. REINHARDT et al.
    (Court of Civil Appeals of Texas. Dallas.
    July 2, 1913.
    Rehearing Denied Oct. 11, 1913.)
    1. Schools and School Districts (§ 55)— Board of Education — Power of Board.
    A board of education is a creature of statute, and has only such powers as are conferred upon it and such implied powers as are necessary to execute the express powers.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig-. §§ 137, 138; Dec. Dig. § 55.]
    2. Schools and School Districts (§ 65)— Powers of Independent School Districts.
    An independent school district, which is a quasi public corporation with its administrative powers vested in a board of trustees, who are given exclusive management and control of the school property, may permit property which is not needed for school purposes to be used for private purposes which do not conflict with its use as school property.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 162-167; Dec. Dig. § 65.]
    3. Schools and School Districts (§ 65)— Independent School Districts — Power.
    Where an independent school district permitted a part of the school grounds to be used during vacation as a baseball field, in consideration of the ball club erecting and maintaining • a fence around the grounds, such use was not-unauthorized; there being no interference with or injury to the school property, and the contract being for the benefit of the district.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 162-167; Dec. Dig. § 65.]
    4. Nuisance (§ 3) — Private Nuisance — What Constitutes.
    An ordinary game of baseball is not a nuisance per se, and the conducting of baseball games will not be enjoined because of the shouts and noises incident to the game, although an injunction may be granted where the game is conducted in an indecent and disorderly manner.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 4, 5, 9-25; Dec. Dig. § 3.]
    Appeal from District Court, Rockwall Coun- . ty; Kenneth Foree, Judge.
    Suit by M. E: Reinhardt and others against the Royse Independent School District and others. From a judgment granting a temporary injunction, defendants appeal.
    Reversed, and injunction dissolved.
    T. B. Ridgell, of Rockwall, and A. H. Mount, of Royse, for appellants. E. D. Foree and H. M. Wade, both of Rockwall, for ap-pellees.

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

   RAINEY, C. J.

This is an appeal from a temporary restraining order or injunction, granted by the district judge of the Fourteenth judicial district of Texas in chambers on June 21, 1913, at the suit of M. E. Reinhardt and others against the trustees of the Royse independent school district of Rock-wall county and the members of the Royse Booster Club, restraining the trustees of said school district and the members of said club from performing a contract between said trustees and the members of said club, by the terms of which the said trustees granted to said club the privilege of using the south end of the public school campus as a ball grounds during the period intervening between the close of school in the spring and the commencement of school in the fall, and for a term of three years, in consideration that such Booster Club erect a fence inclosing the entire campus and public school grounds, and to maintain the same for three years, the fence to be the property of the public school, and the expense of erecting and maintaining the same to be borne entirely by said Booster Club. The said contract provides that the members of said club shall not make use of the privilege therein granted so as to impair any of the property or grounds belonging to-the school district, or in any manner to interfere with or injure the public school or its interests; that said club and its-members shall prevent gambling, intoxication, or the drinking of intoxicating liquors, swearing, vulgar or profane language, or other conduct calculated to provoke a breach of the peace, or to annoy or molest the citizens residing adjacent to such grounds-during the time that such grounds are under their control. The contract further stipulates that the fence to be erected is to be kept in repair by the club during the existence of the privilege granted; that the Royse Booster Club shall execute a bond for the faithful performance of the contract; and that a violation of any of its restrictions or provisions shall terminate the contract.

The plaintiffs’ bill charges in substance-that the effect of the contract in question is to lease the school grounds therein mentioned to be used for public baseball playing for-the amusement of the,general public, and for which a fee will be charged, and at which will be gathered all the rough and rowdy element of the surrounding country, making a noisy and troublesome aggregation hard to-control, and which by yells and shrieks will disturb the inhabitants residing near the-school grounds; that defendants have already permitted baseball games to be played upon said grounds for which an admission fee was charged, and that games have been conducted in noisy and boisterous manner, and the crowds attending same have conducted themselves in a rowdy and obnoxious manner to plaintiffs and others; that they have engaged at all of said games in yelling, shrieking, and other loud and vociferous noises annoying and discomforting to plaintiffs and their families, forcing them to leave their homes to prevent hearing said obnoxious yells and shrieks and noises; that said grounds are dedicated to the use of the public for school purposes only, and that the incorporation of the territory into an independent school district for school purposes precludes the said trustees from turning the same into'a public baseball park; that such use of said grounds will greatly endanger the safety of the school building, and will be a nuisance to every home situated near said grounds, when a ball game is in progress; that the act of said trustees in so leasing said grounds is void, because the law does not give to such a corporate body as an independent school district authority to use, much less to rent, public school property for any other than educational purposes.

Plaintiffs prayed for an injunction restraining the defendants from doing the things complained of, and that upon final hearing the lease contract be canceled, and that R. Z. Dyer, president of the board of trustees, be removed. Notice having .been served on defendants, they appeared, and a hearing was had June 21, 1913, and the temporary injunction granted and issued as above stated. The learned judge before whom the hearing was had found that the contract as alleged by plaintiffs had been entered into, and that the grounds therein leased have on them a large and commodious school building, which is used and set apart to be used for school purposes only; that the playing of public baseball on the school grounds by the Royse Booster Club and others operating under the authority of the lease has greatly disturbed the peace and quiet of the homes of the plaintiffs and others near said school; and that it is in fact a nuisance. As a matter of law, it was concluded that the trustees of the school district had no authority to make the contract in question, and, as the exercise of the rights ’under it would create a nuisance, the contract should be declared invalid, and the use of the grounds for baseball purposes enjoined.

We are of the opinion these conclusions are not justified by the law and the facts. It is true, since a board of education is the creature of statute, that it has only such powers as are conferred upon it and such implied powers as are necessary to execute such express powers.

An independent school 'district, such as appellant, is a quasi corporation under the laws of this state, with its administrative powers vested in a board of trustees. This board of trustees, by the statute under which the school district is organized, is given exclusive power of management, regulation, and control of the schools and school property of the corporation. The powers thus conferred seem to be analogous to the powers granted to a city council of an incorporated city or town over the public property of such city or town. It has been held that a municipal corporation, having erected a building in good faith for municipal purposes, has the right when such building is no longer used by the municipality, or when parts of it are not used for public use, or when at intervals the whole building is not so used, and when it does not interfere with its public use, to permit it to be used either gratuitously or for a compensation for private purposes. This rule has also been applied to cases concerning the use of school buildings, a noticeable example of which is found in Gottlieb-Knabe v. Macklin, 109 Md. 429, 71 Atl. 949, 31 L. R. A. (N. S.) 580, 16 Ann. Cas. 1092. See, also, Bates v. Bassett, 60 Vt. 531, 15 Atl. 200, 1 L. R. A. 166; Lowry v. Forest City, 39 Pa. Super. Ct. 276.

But, if it may be said that the powers of a school district are ordinarily more restricted than those of cities, and that school property over which municipal corporations have control might be used for a purpose which would be unauthorized if such use was attempted by a school district, the answer here is that the Royse independent school district is attempting no such unauthorized act. The primary object in granting the privilege to the Royse Booster Club to use its school grounds as a place to play baseball is to subserve a public purpose, and not to promote some private end. And it clearly appears that such incidental use of the grounds could in no way impair the school buildings, or interfere in any wise with the orderly and successful conduct of the school.

The contract under consideration permits the use of the school grounds only during the period of time intervening between the close of the school in the spring and the beginning of the term in the following fall, and will result in quite a financial advantage to the school district. It may be true that the use to which the grounds will be put under the contract is not actually necessary for the promotion of the schpol, yet, as it will not impede or interfere with its progress, or tend to injure the school property, and will be used at a time when the grounds are not needed and will hot be used by the school, such use is not so inconsistent with the purposes to which the property has been dedicated or set apart as renders the contract permitting it illegal or unauthorized. In other words, we think the contract between the trustees of the Royse independent school district and the Royse Booster Club, whereby said trustees lease to said club a portion of its unused school campus for the purpose of playing baseball thereon during vacation, in consideration that the said club will erect and maintain during the existence of the lease a suitable fence inclosing the entire school campus and grounds, such fence to become the property of the school district, the use of the grounds being so restricted as not to permit of injury to or waste of the school property, or interference with the conduct of the school, is not ultra vires or unauthorized.

The next question is, Does the evidence justify the conclusion that the ball games already played were so conducted as constituted them a nuisance? We think not. The evidence discloses that the noises and incidents of the games of ball played were such only as usually attend games of that character. It reveals no such boisterous,-indecent, or vulgar conduct on the part of the players or those present to witness the games, or discomfort or annoyance to those residing near the ball grounds, or injury to the property as a result thereof, as calls for the restraining power of a court of equity. That the game of baseball is not a nuisance per se is well settled. It is an innocent or legitimate amusement, and, like a legitimate business, to warrant an injunction stopping or destroying it, it must appear that the indulgence in it is necessarily a nuisance. An injunction against the games will not be granted simply because it is feared that it may become a nuisance. Of course, if the games of ball played on the school grounds hereafter should be so conducted as to become a public nuisance, the power of a court of equity to restrain them may be invoked.

It results from what we have said that the judgment appealed from should be reversed, and the temporary injunction dissolved, and it is accordingly so ordered.


author: RAINEY, C. J1.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. WOODALL.
    (Court of Civil Appeals of Texas.
    June 28, 1913.
    Rehearing Denied Oct. 11, 1913.)
    1. CARRIERS (§ 280) — CARRIAGE OF PASSENGERS — Actions fob Injuries — Instructions — Degree of Care.
    An instruction that a carrier of passengers is required to exei'cise the highest degree of care possible'for the safety of its passengers is not erroneous as demanding a higher degree of care than is required by law.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig.' §§ 1085-1092, 1098-1103, 1105, 1106, 1109, 1117; Dec. Dig. § 280.]
    2. Carriers (§ 303) — Carriers oe Passengers — Personal Injuries — Setting Down Passengers.
    Where a passenger on a train, which was not scheduled to stop at his destination, paid the conductor for transportation to the next station beyond, and then, when the train was flagged at his destination, on the invitation of the conductor attempted to leave the train and was injured, the carrier was liable, if the conductor was negligent in not providing a safe place for him to alight.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224, 1226-1232, 1234-1240, 1243; Dec. Dig. § 303.]
    Appeal from District Court, Dallas County; E. B. Meese, Judge.
    Action by John R. Woodall against the St. Louis Southwestern Railway Company of Texas and another. Judgment for plaintiff against the St. Louis Southwestern Railway Company of Texas, which appeals.
    Affirmed.
    1 E. B. Perkins and D. Upthegrove, both of Dallas, for appellant. Allen & Allen, of Dallas, for appellee.

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

   RAINEY, C. J1.

This suit was brought by appellee against appellant and the Houston & Texas Central Railroad Company to recover penalties for overcharges and also to recover damages against appellant for personal injuries received by him in alighting from appellant’s train at Brownsboro, Tex. A trial resulted in a verdict and judgment in favor of both roads on the issue of overcharges and in favor of appellee against appellant for damages in the sum of $300 for personal injuries sustained in alighting from the train, and the St. Louis Southwestern Railway Company appeals.

The facts, briefly stated, are that appellee purchased from the agent of the Houston & Texas Central Railway Company at Dallas, Tex.', on March 27, 1910, a ticket over said railway from Dallas to Corsicana, Tex., and thence over the line of this appellant to Brownsboro, Tex.; that appellee rode on said ticket to Corsicana and then took the night train of appellant, which was .a through or limited train, and did not stop at Brownsboro, and appellee was so advised by the conductor, and when said train reached Brownsboro it was flagged by a freight train, and it was necessary for the passenger train to stop because the side track at that point was not long enough to hold the freight train, and it was necessary for the passenger train to “saw by” the freight train. When the train stopped the conductor told appellee that the train had stopped at Brownsboro and that he would let him off. Appellee followed the conductor to the end of the car, and, the train being vestibuled, the conductor opened the door and. said, “Now you can light.” Appellee looked out and thought he was at the depot. I-Ie had two grips and it was further to the ground than he thought. He struck the ground and tried to hold the grip, and in making the next step he landed in a pile of railroad iron, cross-ties, etc., and was injured.

The trial court in the fourth and fifth paragraphs of his charge instructed the jury as follows:

(4) “On the claim of plaintiff for damages for personal injuries, you are instructed that railway companies, as carriers of passengers, are required to exercise the highest degree of care possible for the safety of their passengers, both while they are being carried on its trains and while alighting therefrom, and a failure to exercise such care is negli gence. They are not, however, to be regarded as insurers of the safety of their passengers.”

(5) “Negligence is the failure to do what a reasonable and prudent person would have done under the same or similar circumstances, or doing what sneh a person would not have done under the same or similar circumstances.”

The proposition of appellant is: “Carriers of passengers are required to use that high degree of care for their safety as very competent, cautious, and prudent persons would exercise under the same or similar circumstances, and it is error for the court to charge the jury that such carriers are required to exercise the highest degree of care possible for the safety of their passengers for the reason that such charge demands a higher degree of care than that required by law.” The contention that the charge demands a higher degree of care than that required by law we do not think is sustained by the authorities. Gallagher v. Bowie, 66 Tex. 26, 17 S. W. 407; Railway Co. v. Horst, 93 U. S. 291, 23 L. Ed. 398; 2 Hutchinson on Car. (3d Ed.) § 896.

In Gallagher v. Bowie, supra, where plaintiff’s wife was injured by the negligence of a carrier of passengers by stage, our Supreme Court held an instruction that it was the duty of carriers to employ a competent driver, and of the driver to use the “utmost care” for the safety of the passengers, stated the degree of care exacted by the law of carriers of passengers.

In Railroad Company v. Horst, supra, where a party was injured while traveling on a cattle train, it was held by the Supreme Court of the United States that an instruction “that a person taking a cattle train is entitled to demand the highest possible degree of care and diligence, regardless of the kind of train he takes,” was not error,

Hutchinson on Carriers, § 806, speaking on the subject of degree of care required of passenger carriers, says: “Although the form of expression is sometimes varied, and the rule is stated as requiring ‘the utmost diligence of very cautious persons,’ ‘the greatest possible care and diligence,’ ‘the most perfect care of a cautious and prudent man,’ and other similar phrases, the real meaning intended by them all is that the care and circumspection to be required is the utmost which can be exercised under all the circumstances, short of a warranty of the safety of the passengers.”

The degree of care imposed by the charge of the court is no greater than that laid down by the authorities cited; therefore the contention of appellant is not concurred in by this court.

Nor do we agree with the appellant that it was under no contractual obligation to let appellee alight from the train at Brownsboro, and that the only duty owing was the use of ordinary care not to willfully injure appellee. Appellant had contracted with appellee to transport him to Brownsboro ; and, while it might have been excused for not stopping and carrying appellee to the next station, it did stop, and it was the duty of appellant to use proper care to provide appellee with a safe place to alight. Being a passenger, appellee was entitled to receive the care stated by the court until he ceased to be a passenger. The court did not assume that the place where appellee alighted was an, unsafe place but correctly left that question to the jury.

Appellant had the right to make time schedules for the running of its trains and was not obligated to stop at Brownsboro to put off passengers, but the evidence shows that, when the conductor first came around after leaving Corsicana, he took up appellee’s ticket and canceled it; then, after waiting about one-half hour, he returned and informed appellee that the train would not stop at Brownsboro, and that appellee would have to get off at Athens. When the train reached Athens appellee paid the conductor a cash fare to Chandler, a station beyond Browns-boro. He was then evidently a passenger on the last contract and so remained until he got off the train at Brownsboro at the invitation of the conductor, and under this contract it cannot be said that he was wrongfully on the train or that the appellant was relieved from the duty of furnishing a safe place for him to alight. Railway Co. v. Elliott, 26 Tex. Civ. App. 106, 61 S. W. 726. We think the court correctly charged the jury and did not err in refusing the charges requested.

The judgment is affirmed.


author: TALBOT, J.

text:
    STEIN DOUBLE CUSHION TIRE CO. v. WM. T. FULTON CO. et al.
    (Court of Civil Appeals of Texas. Dallas.
    June 28, 1913.
    Rehearing Denied Oct. 18, 1913.)
    1. Sauss (§ 8) — Construction of Contract —Sale or Consignment.
    A contract by plaintiff, a foreign corporation, to furnish defendant, a resident of the state, with rubber tires “on consignment,” to be sold, and all sales settled for, any tires remaining unsold at the end of the year to be bought by the consignee, is clearly a consignment on commission rather than a sale, and constitutes the consignee the factor or agent of the manufacturer, though the tires were billed as though sold to the consignee.
    [Ed. Note. — Eor other cases, see Sales, Cent. Dig. §| 18, 19; Dee. Dig. § 8.]
    2. Commerce (§ 40’) — Interstate Commerce-Foreign Corporations — Right to Sue.
    The transaction involved interstate commerce, and the statutes requiring a foreign corporation to procure a permit to do business within the state before it may bring suit for a balance of account are not applicable.
    [Ed. Note. — Eor other cases, see Commerce, Cent. Dig. §§ 29, 30; Dec. Dig. § 40.]
    3. Commerce (§ 40) — Restraint oe Trade-Interstate Commerce.
    The state anti-trust laws did not avoid the contract on account of a provision that the consignee -would sell no other solid or cushion tires, as the manufacture and delivery of the tires under the contract constituted an interstate commerce transaction.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 29, 30; Dec. Dig. § 40.]
    4. Appeal and Ebeob (§ 285) — Motion fob New Teial — Necessity.
    Errors assigned in sustaining general and special demurrers to the petition need not be incorporated in a motion for new trial, particularly where the errors are fundamental.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§, 1684-1690; Dec. Dig. § 285.]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action on a bond by the Stein Double Cushion Tire Company against the William T. Fulton Company and others. From a judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    Robertson & Sergeant and Meador & Davis, all of Dallas, for appellant. John T. Suggs, of Denison, and G. D. Hunt and Allen & Alien, all of Dallas, for appellees.

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

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

   TALBOT, J.

This suit was instituted by the appellant against the appellees to recover the sum of $2,202.64, and interest. The petition, omitting formal parts, is as follows: “Now comes the Stein Double Cushion Tire Company, a corporation with its principal office at Akron, Summit county, Ohio, hereinafter called plaintiff, complaining of William T. Fulton Company, a corporation of the state of Texas, with its principal office at Dallas, Dallas county, Texas, with William T. Fulton as president of said corporation, and the Southwestern Surety Insurance Company, a corporation incorporated under the laws of Oklahoma, with its principal office at Denison, Grayson county, Texas, with W. B. Munson as president of said corporation, hereinafter styled defendants, and for cause of action plaintiff represents to the court: That heretofore, to wit, on or about the 22d day of December, 1910, plaintiff, at the instance and reguest of said de'■fendant William T. Fulton Company, and in accordance with a contract with the said William T. Fulton Company, hereto attached and marked Exhibit A, and made a part hereof, sold and delivered to it certain goods, wares, and merchandise of the value of $2,-202.64, the items of which and the prices therefor, as well as the dates on which the same were sold, appear from the itemized account hereto annexed and marked Exhibit B, and made a part hereof; that defendant William T. Fulton Company, in consideration that plaintiff should sell to it, agreed to furnish and deliver to the said plaintiff a good and sufficient bond issued by a surety company and to be approved by the plaintiff in the penal sum of $5,000.00, to be conditioned upon the complete performance of the contract above referred to and the payment of any and all indebtedness and liability which the said William T. F.ulton Company may owe or become liable for under said contract. Plaintiff further alleges that under the terms of said contract that on or about the 22d day of December, 1910, a bond as above referred to was furnished in accordance with the said contract by William T. Fulton Company, as principal, and the Texas Surety & Insurance Company, a corporation of the state of Texas, with its principal office at San Antonio, Texas, as surety, in the penal sum of $5,000.00, a copy of which bond is hereto attached, and made a part thereof, and marked Exhibit C; that on or prior to September 11, 1911, the defendant Southwestern Surety Insurance Company reinsured from the Texas Surety & Insurance Company, of San Antonio, Texas, the bond given by defendant William T. Fulton Company, and referred to as Exhibit C, and in consideration that plaintiff deliver to said William T. Fulton Company the goods aforesaid, in accordance with the contract marked Exhibit A, reinsured the above bond, and agreed to be answerable to the plaintiff for the payment by said William T. Fulton Company of the prices of the goods sold and delivered in accordance with said contract and the assumption by the Southwestern Surety Insurance Company of the bond marked Exhibit C; that said goods, wares, and merchandise were sold and delivered to the said William T. Fulton Company under the terms of said contract and on the faith of said guaranty of the bond hereto attached and assumed by the Southwestern Surety Insurance Company, and plaintiff duly notified the bond company of same; that, upon failure by said defendant William T. Fulton Company to fulfill the terms of said contract, plaintiff on or about September 14, 1911, notified the defendant Southwestern Surety Insurance Company that payment of amount due herein sued upon and fulfillment of the terras of said contract had been duly demanded from the said William T. Fulton Company, but had totally failed to pay the same or any part thereof, all of which the defendant Southwestern Surety Insurance Company had due notice, whereby the defendant Southwestern Surety Insurance Company had promised and became bound and liable to pay the same, but, though often requested defendants have hitherto failed and refused and still now refuse to pay the same or any part thereof, to plaintiff’s damages in the sum of $2,202.64. Wherefore plaintiff prays the court that defendants be cited to appear and answer this petition and for judgment for its debt, $2,202.64, interest and costs of suit, and such other and further relief, special and general, in law and in equity that it may be justly entitled to,” etc.

The contract referred to in said petition and made a part thereof, which is dated Au•gust 1, 1010, and signed by the parties, is ■as follows:

“This agreement, between the Stein Double Cushion Tire Company of Akron, Ohio, herein called the party of the first part, and William T. Fulton Company, of the city of Dallas and state of Texas, herein called the party of the second part, is as follows:

“First. The first party above named, being desirous of extending its business in the state of Texas, hereby agrees to furnish the party of the second part solid and cushion rubber tires on consignment to the amount of six thousand dollars ($6,000.00), to be stored and held in the name and under the control of the party of the first part under the conditions as hereinafter set forth: Provided, however, that the financial standing of the party of the second part and his surety hereinafter mentioned and all transactions as required are at all times satisfactory to the said party of the first part.

“Second. The said party of the second part is to furnish a suitable place in the city of Dallas, Texas, for the storage of the said rubber tires, and is to keep the same insured at all times in the name of the party of the first part, said insurance to equal at least 80 per cent, of the value of the said material. Insurance policies to be sent to the party of the first part.

“Third. The party of the second part agrees to sell and ship from said stock, and shall report to the party of the first part on the 1st day of each month all sales made, together with a scale or weight inventory of the stock on hand, from said consigned stock, settlements for same to be njade on the 10th of each month for all goods sold the previous month, deducting 2 per cent, as a cash discount.

“Fourth. Said first party agrees to furnish to the party of the second part first-class rubber tires of the best quality they manufacture for the prices herein mentioned, and guarantee same to be free from all defects or imperfections in material and workmanship, and to replace all tires not in accordance with its guarantee.

“Fifth. The price agreed upon for the present is as follows: No. 10% X Round Cushion at 50 cents per pound. This price is regulated by the price of crude rubber, which in case of decline in the market it is agreed and understood that the contract price as above mentioned shall be made correspondingly lower, and, in the event of the still further advance in the price of crude rubber, the contract price will be advanced correspondingly, and this matter to be taken up by both parties hereto and adjusted satisfactorily when occasion shall require.

“Sixth. Said second party agrees that he will not sell or dispose of during the life of this agreement any other solid or cushion rubber tires other than those manufactured by the first party, and will use all reason- ' able efforts to introduce and promote the sale of the goods herein mentioned.

“Seventh. In order to insure the performance of this contract by the party of the second part, and the payment of any and all indebtedness and liability which the said second party may owe to or become liable for under this agreement, the party of the second part agrees to furnish and deliver to the said first party a good and sufficient bond issued by a surety company to be approved by the party of the first part in the penal sum of fivé thousand dollars ($5,000.00), to be conditioned as aforesaid, and, until such bond is executed, delivered, and approved as aforesaid, no part of this agreement shall take effect.

“Eighth. The said first party agrees to brand the tire with a name to be selected by the party of the second part, said brand, however, not to conflict with any other brand now in use.

“Ninth. This agreement to become operative when signed by party of the second part and countersigned by an officer of the Stein Double Cushion Tire Company, and to continue in force one year from date, subject, however, to all the conditions hereinbefore stated.

It is further agreed that at the expiration of this agreement, should there be no renewal made, that the stock of tires at that time remaining unsold is to be purchased by said William T. Fulton Company at the then prevailing price. Terms of payment to be in cash the 10th of each month for all goods sold the previous month, and the balance in full to be paid on or before twelve months from the expiration of this agreement.”

There is also attached to the petition an itemized account, sworn to in accordance with the statute, of the goods alleged to have been delivered under said contract to defendant William T. Fulton Company, and a copy of the bond charged to have been executed by the defendant Southwestern Surety Insurance Company, to secure the faithful performance on the part of the said William T. Fulton Company of said contract. Both defendants filed and presented a general demurrer to plaintiff's petition, and, in addition thereto, the defendant Southwestern Surety Insurance Company specially excepted to plaintiff’s petition on the grounds (1) that it shows on its face that at the time the contract sued on herein was made, and ever since that time, plaintiff was and has been a foreign corporation engaged in business in the state of Texas, and not a corporation incorporated under the laws of the state of Texas, and, further, it is not shown that at the time that said contract was made it had filed its articles of incorporation in the office of the secretary of the state of Texas, and had procured a permit to engage in business in the said state of Texas; (2) that it appears from said petition and especially from paragraph 6 of Exhibit A, attached thereto, that the contract between plaintiff and the defendant William T. Pulton Company declared on in its said petition is in contravention of the anti-trust laws of the state of Texas, and that the alleged obligation or bond entered into by the defendant William T. Fulton company, and upon which it is further alleged this defendant became surety, for the purpose of securing plaintiff in the faithful performance of the contract by the said William T. Fulton Company, are unenforceable and void. The court sustained both the general and special demurrers, and, the plaintiff declining to amend, the case was dismissed, and the plaintiff has appealed.

Complaining of the court’s action in sustaining appellees’ demurrers, appellant contends, among other things, in effect (1) that it appears from the allegations of its petition and the contract, marked Exhibit A and made a part thereof, that the manufacture and delivery of the goods, for the value of which this suit is brought, under said contract was a consignment thereof to be sold, and not a sale, constituted an interstate commerce transaction, and therefore appellant was not required to procure a permit from the state of Texas to engage in such business; (2) that, the consignment of the goods in question being an interstate commerce transaction, the provision therein to the effect that the William T. Fulton Company would not sell or dispose of during the life of said .contract any solid or cushion rubber .tires other than those manufactured by appellant is not subject to the anti-trust laws of Texas.

Our conclusion is that these contentions are well taken. The contract under consideration should, in our opinion, be construed as one of consignment, and not one of sale. Such it purports to be by its very terms. It recites that the appellant, a corporation of the state of Ohio, being desirous of extending its business in the state of Texas, agrees to furnish the William T. Fulton Company, a corporation of Texas, solid and cushion rubber tires on consignment to the amount of $6,000, and obligates the latter company to store and hold such goods in its name and under its control under the conditions named in said contract, and promote the sale of said goods. It provides that the Fulton Company shall keep the goods furnished it under the agreement insured at all times in the name of appellant, the policies to be sent to appellant. It stipulates that the Fulton Company is to sell said goods, and report to appellant on the 1st day of each month all sales made, together with a scale or weight inventory of the stock in hand, from said “consigned stock,” and that “settlements for same shall be made on the 10th of each month for all goods sold the previous month, deducting 2 per cent, as a cash discount.” The price at the time of the making of the contract is therein agreed upon, with the further stipulation that, in case of a decline in the market, the then contract price shall be made correspondingly lower, and, in the event of an advance in the price of crude rubber, the price will be advanced correspondingly. The contract further provides that, -in order to insure its performance by the Fulton Company and the payment of all indebtedness and liability which it may owe or become liable for thereunder, said company shall execute and furnish to appellant a bond in the sum of $5,000, and concludes with a stipulation that, if there is no renewal thereof at its expiration, the Fulton Company will purchase the stock of tires then on hand and unsold.

These provisions of the contract, it occurs to us, clearly indicate that it was the purpose and intention of the parties thereto to constitute the Fulton Company of Texas appellant’s factor or agent to sell the goods delivered to it on' commission; the general property in the goods remaining in the consignor. Milburn Mfg. Co. v. Peak, 89 Tex. 209, 34 S. W. 102; Lasater v. Purcell Mill & Electric Co., 22 Tex. Civ. App. 33, 54 S. W. 425; Allen v. Tyson-Jones Buggy Co., 91 Tex. 22, 40 S. W. 393, 714. In the last case cited it is said: “The plaintiff (a foreign corporation) was not desiring to solicit business in this, state, nor was it desiring to establish a general or special office in this-state. The business which it transacted, as shown by the allegations, was to enter into a contract with the commission merchants to sell its buggies and phaetons on commission. The clear inference is that these buggies and phaetons were introduced into this state from the state of North Carolina, and so far the transaction belongs to interstate commerce, and cannot be regulated in the manner prescribed by the statute quoted. Gunn v. White Sewing Machine Co., 57 Ark. 24, [20 S. W. 591, 18 L. R. A. 206, 38 Am. St. Rep. 223]. The selling of the buggies and’ phaetons, which was to be done by the commission merchants, was not a business done- or carried on by the corporation. It was the business of the commission merchants themselves.” The failure of the appellant’s petition in the case at bar, although it appeared therefrom that it was a foreign corporation, to allege that it had filed a copy of its charter in the office of the secretary of the state of Texas, and procured a permit to do business in this state, did not render it obnoxious to either of appellees’ demurrers. The clear inference from the allegations of the petition and the exhibits attached thereto, and made a part thereof, is-that the transaction disclosed took place in. the state of Ohio, and that the goods were-shipped from that state into this state. The-transaction, therefore, involved interstate-commerce, and the statutes of this state requiring foreign corporations to procure a permit to do business here, and depriving it of the privilege of maintaining a suit in any of the courts of this state, if it fails to do so, is not, applicable. Bateman v. Milling Co., 1 Tex. Civ. App. 90, 20 S. W. 931; Lyons Thomas Hardware Co. v. Reading Hardware Co., 21 S. W. 300; Starch Co. v. Bateman, 22 S. W. 771; Brin v. Wachusetts Shirt Co., 43 S. W. 295.

The fact that the goods were billed to the Fulton Company as if sold to it, and the petition so declared, does not seriously affect the question. Hamilton et al. v. Willing, 73 Tex. 603, 11 S. W. 843. In that case it appeared that the plaintiffs, Hamilton and Young, agreed in writing to- supply one Parks with goods to be sold by him on commission for their account, the stock and accounts to be the property of plaintiffs, subject to their demand, etc. According to the contract Parks ordered goods which were billed to him as if sold to him; but the evidence showed that Parks was to account for the goods at the prices as billed, his profits to be the price obtained by him in excess of the invoice price. It was held that the goods remained the property of plaintiffs, and upon the death of Parks they were entitled to rep’eyy from his administrator such of the stock on hand as could be identified. In discussing the question, the court said, in effect, that the stipulation that the consignors were to remain the owners of the goods in store subject to their demands, taken in connection with other stipulations of the contract, was conclusive that said goods were shipped to and held by Parks on consignment.

Appellant further icontends that, if the goods were delivered to the William T. Fulton Company under, a contract of sale, and not one of consignment, still the transaction was “interstate commerce,” and not subject to the laws of this state requiring a foreign corporation to obtain a permit to do the business within its borders. In support of this contention, appellant cites Miller v. Goodman, 91 Tex. 44, 40 S. W. 719; Albertype Co. v. Gust Fiest Co., 102 Tex. 219, 114 S. W. 791; Eclipse Paint & Mfg. Co. v. New Process Roofing & Supply Co., 55 Tex. Civ. App. 553, 120 S. W. 532; McCall Co. v. J. D. Stiff Dry Goods Co., 142 S. W. 659—but whether these cases are in conflict with or are distinguishable in their facts from the case of Fuqua v. Pabst Brewing Co., 90 Tex. 298, 38 S. W. 29, 750, 35 L. R. A. 241, we need not stop to inquire. We hold the contract in the case at bar one of consignment, and not one of sale, and not ruled by the decision in Fuqua v. Pabst Brewing Co., supra.

It also follows that, since the manufacture and delivery of the goods in question, under the contract between the appellant and the Fulton Company, constitutes an interstate commerce transaction, the same was not in violation of the anti-trust laws of this state. Albertpye Co. v. Blest Co., supra; Eclipse Paint & Mfg. Co. v. New Process Roofing & Supply Co., supra; McCall v. Stiff Dry Goods Co., supra; Moroney Hardware Co. v. Goodwin Pottery Co., 120 S. W. 1088. In Albertpye Co. v. Fiest Co., supra, it is said: “The transaction under consideration was commerce between a citizen of New York and a citizen of Texas, whereby the former agreed to manufacture the albums in New York, and to deliver them at Galveston, Tex., therefore it was interstate commerce, which was not subject to the anti-trust laws of this state” — citing article 1, § 8, clause 4, Const. of U. S.; Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, 5 Sup. Ct. 739, 28 L. Ed. 1137; Asher v. Texas, 128 U. S. 129, 9 Sup. Ct. 1, 32 L. Ed. 368.

There being nothing in appellant’s petition to show that it comes within the class of foreign corporations forbidden to prosecute suits in the courts of this state, unless a permit has been procured to do business in this state, the trial court erred in sustaining appellees’ demurrers, and the case will be remanded.

The objections urged by the appellees to a consideration of the appellant’s assignments of error are not well taken under the decision of the Supreme Court in the case of Railway Company v. Beasley, 155 S. W. 183, even though the errors complained of be not fundamental. They are, however, in our opinion fundamental, and the incorporation and presentation of them in a motion for a new trial in the court below was not necessary to entitle them to consideration on appeal. Jeff Davis et al. v. J. W. Parks et al., 157 S. W, 449 decided by this court, but not yet officially reported.

The judgment is reversed, and the cause remanded.


author: DUNKLIN,'J.

text:
    ANDERSON v. RYDER et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    July 5, 1913.
    Rehearing Denied Oct. 18, 1913.)
    Appeal and Error (§ 1057) — Harmless Error — Exclusion op Evidence.
    Error, in an action on a promissory note, in excluding a note offered in evidence on the ground that it was the note alleged in the petition, was not harmless to plaintiff, though defendant admitted execution of the note declared on, and of the payment of which there was no evidence, where the court directed a verdict for defendant, presumably on the theory that there was no evidence upon which judgment for plaintiff could be based.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4194-4199, 4205; Dec. Dig. § 1057.]
    Appeal from Knox County Court; J. H. Milam, Judge.
    Action by S. S. Anderson against W. A. Ryder and another. From a judgment for defendants, plaintiff appeals.
    Reversed on rehearing, and remanded for new trial.
    Jas. A. Stephens and E. R. Howell, both of Benjamin, for appellant. D. J. Brookreson, of Benjamin, for appellees.

      3Tor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DUNKLIN,'J.

This suit was instituted by S. S. Anderson against W. A. Ryder and J. A. Shaw, on a promissory note for the sum of $250, and from a judgment in favor of defendants the plaintiff has appealed.

It was alleged in the petition that the principal of the note was $250, but by mistake it was written for $200 only, and judgment was sought for $250, with interest and attorney’s fees. In addition to a general denial the defendants pleaded payment. A note was offered in evidence by the plaintiff, but was excluded upon objection urged by the defendants on the ground that it was not such a note as alleged in the petition. An examination of the record, we think, makes it very clear that the court erroneously excluded the note. On original consideration we concluded that the error was harmless, in view of the fact that the defendant Ryder testified that he executed the note in eontro-versy, and counsel for defendants admitted in open court that the note sued on was executed for $250. On reconsideration, however, we hardly feel prepared to say that the ruling was harmless, in view of the fact that notwithstanding the admission of the defendant Ryder that he had executed the note as declared upon, and notwithstanding the further fact that there is in the record no evidence of its payment, the judge peremptorily directed a verdict for the defendant, which the judgment followed. The court, having excluded the note, presumably gave the peremptory charge upon the assumption that there was no legal evidence before the court upon which a judgment for the plaintiff could be predicated. The ruling may also account for the fact that defendants offered no evidence of the payment pleaded by them. At all events we feel unable to say that the court’s erroneous ruling was without prejudice.

It is accordingly ordered that appellant’s motion for rehearing be granted, that our former opinion rendered affirming the judgment be withdrawn, and that the judgment of the trial court be reversed and the cause' remanded for another trial.

SPEER, J., not sitting.