text:
    BURTON et al. v. STAYNER.
    (No. 5565.)

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 5, 1916.
    Rehearing Denied Feb. 2, 1916.)
    1. UsuRY @=»75 — Nature of Usury.
    Where the original transaction was usurious, that vice will follow a debt based on such usury in whatever form it may assume.
    [Ed. Note. — For other cases, see Usury, Cent. Dig. § 148; Dec. Dig. <&wkey;75.]
    2. Usury @=337 — Agreements—What Constitute — “Interest.”
    Where plaintiff invested a sum of money in a land deal under an agreement providing after deduction of the expenses for payment of the principal and twice the amount thereof as profits, in case there were profits, such agreement is not in violation of the usury statutes, the provision for payment of profits not being for the payment of “interest,” defined by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4973, as the compensation allowed by law or fixed by the parties for the use of money, for in case there were no profits plaintiff would be entitled to nothing.
    [Ed. Note. — For other cases, see Usury, Cent. Dig. § 92; Dec. Dig. &wkey;>37.
    For other definitions, see Words and Phrases, First and Second Series, Interest.]
    3.Contracts &wkey;>32d — Actions—Defenses.
    Where defendants wholly repudiated their agreement to invest a portion of the profits to which plaintiff was entitled in another transaction in a second deal, claiming that plaintiff was entitled to nothing, an action by plaintiff to recover the amount to which he was entitled under the first deal cannot be defeated on the ground that it was not then due.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1511, 1585-1588; Dee. Dig. &wkey; 329.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Action by F. D. Stayner against E. O. Burton and another. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    A. J. Bell and R. D. Robertson, both of San Antonio, for appellants. John De Berry Wheeler, of Aransas Pass, and Gillette & Robertson, of San Antonio, for appellee.

       Application for writ of error pending in Supreme Court.

   CARL, J.

Appellee Stayner sued Burton & Danforth, and recovered a judgment for $5,000 as the principal of an investment made by said firm in what was- known as the “Falfurrias Deal.” This cause is based upon the following proposition, which was accepted by appellee:

“Burton & Danforth.
“San Antonio, Tex., April 18, 1910.
“Mr. F. L. Stayner, Peoria, Ill. — Dear Stay-ner: We have invested for you $5,000.00 on the Aransas Pass account in the Falfurrias proposition on the guarantee of 50 per cent, profit according to the talk we had with Holmes. This will be in lieu of a contract and will cover the matter. I can make a separate agreement if you wish it. It is going pretty well now, and should be closed up this year.
“Yours sincerely, Burton & Danforth,
“E. O. B.”

This matter grew out of a prior deal whereby Burton & Danforth induced appellee to invest $5,000 in what was known as the Aransas Pass deal, whereby he received $10,000 profits on the investment. That first contract is as follows:

“Burton & Danforth hereby acknowledge receipt of $5,000.00 (five thousand dollars) from F. L. Stayner to be invested in the Aransas Pass townsite and f^.rm lands in Aransas and San Patricio counties, Texas.
“It is mutually agreed that F. L. Stayner is to have his principal repaid and ten thousand dollars from the profits of the deal, which $15,-000.00 is to he full payment for his interest in the deal.
“The proceeds of sales shall be applied as follows: First, to pay commission to agents and operating expenses; second, the land shall be paid out in full; third, the principal of $5,000 shall be returned to F. L. Stayner; and, fourth, the $10,000.00 profits shall be paid him.
“F. L. Stayner is to be agent in Illinois with a commission of 20 per cent, on sales made by him or his agents, payable in full on cash sales, and on installment sales $10.00 from first payment and $5.00 each from second and third payment.”

When the Aransas Pass deal was closed, appellants paid Stayner the $5,000 invested, paid him $5,000 in stock in the Aransas Pass Channel & Dock Company, and then, by agreement, invested $5,000 of the profits' in the Ealfurrias deal, as indicated in the first instrument copied herein.

Appellants contended that: (1) The contract of 1908, whereby the $5,000 was originally obtained from Stayner, was usurious, and he could not recover any more than the principal, which he had already received; (2) that the agreement to invest $5,000 in the Ealfurrias deal was void because they had no money belonging to Stayner except the usurious interest on the first deal, or Aransas Pass deal, and therefore any contract based on that as an investment was without consideration and void; and (3) if Stayner was entitled to recover said $5,000 in the Falfurrias deal, he was not entitled to a judgment for his money, but only to an interest in the property, because said property had not been closed out, but was still on hand.

Appellee denied the usury, and alleged that it was an investment he made under a guaranty of certain profits; that he ran the risk of losing his principal invested, and, no matter how much profits were made on the deal, he was limited in the profits he might receive. He further alleged that the Ealfurrias deal had been closed and the land sold.

We shall first investigate as to whether the first contract was an usurious interest loan, or simply an investment; because it is immaterial whether the Ealfurrias deal was usurious or not, for he only sued for the principal and made no' effort to collect the 50 per cent, profit therein guaranteed him. And if the $5,000 therein invested was not usurious interest, but was legitimate capital, Stayner would have the right to collect the principal even under the usury statutes.

It will be observed that there is no guaranty in tbe Aransas Pass contract that any certain profit will be made, nor even that the principal will be repaid; but a method is provided whereby appellee is to be paid the capital invested and his profits before Burton & Danforth got anything. The land must first be paid for, and the expenses of sales, before Stayner receives anything, and if the land had not sold for more than enough to pay expenses, commissions, and for the purchase price of the land, there is no provision for the repayment of Stayner’s money. He testified that he did not know whether he would have been liable for assessments, if the deal had not been a success; “but it was generally understood, if it did not pay out, we would lose our investment.” In other words, if Burton & Danforth did not make a success, he would lose his investment.

It is true that, if the original transaction be tainted with usury, that vice would follow the debt in whatever form it might assume. First National Bank of Montague v. Wayburn, 81 Tex. 57, 16 S. W. 554; Bank v. Ledbetter, 34 S. W. 1042. But profits are not the same as interest. “Profit” is the gain made on any business or investment when both receipts and disbursements are taken into consideration. It is the net gain over and above the capital invested after expenditures are deducted. As defined by our statute (article 4973, Vernon’s Sayles’ Civil Statutes:

“Interest is the compensation allowed by law or fixed by the parties to a contract for the use or forbearance or detention of money.”

It contemplates that both the principal and agreed rate of interest shall be returned to the lender.

But in this case there is no element of interest. If the undertaking were a success; and the Aransas Pass deal proved to be such, he was to receive his investment of $5,000 and profits to the extent of $10,000 if they made it. This was guaranteed to the extent that Burton & Danforth was to receive nothing until that was paid. But if the real profits on the $5,000 investment amounted to $20,000, Stayner did not share beyond $10,000. If it had been a failure, the testimony is ample to sustain a finding that Stayner would have lost the money invested. He said he was not able technically to define his situation as to his liability for assessments, but they did consider that he would lose his money if the enterprise should not be a success. Under the usury statutes, the principal may be recovered; but in this ease the principal could not be recovered unless the proceeds of the enterprise were sufficient to pay it. And so we say that under our statutes this is not an interest transaction, but a mere business venture in which ap-pellee staked his $5,000 in the hope of reaping large profits therefrom.

The contract says they received $5,000 to be invested in the Aransas Pass townsite and farm lands. Suppose the venture had been a failure and they had not been able to more than pay expenses and for the land, and Stayner had sued for his $5,000, would he not have been met with the plea that he had invested his money with them and there was nothing left with which to pay him? And if he had sued for his $10,000 profits, and no profits had been made, would that not have been a complete defense to his demand? Burton & Danforth could have said that, “Under the contract you have no just claim, because we did not make any profits.”

It is admitted that the profits were made on the Aransas Pass deal, and were paid by dock company stock and by the investment of $5,000 in the Ealfurrias deal. This $5,000 so invested at Ealfurrias, then, was legitimate capital invested for appellee, and we need not discuss whether this contract was usurious, because only the principal was recovered, and no interest was paid on that.

There is nothing in the contention that the debt, if valid, could not be recovered because not due, for the reason that the Falfurrias deal had not been closed; the land still being on hand. Appellants repudiated any interest appellee had in that matter and asserted that he had no interest whatsoever therein. They sold that land and afterwards took it back and received a good deal of property in the transaction in addition. But this we need not inquire into, because appellants denied that appellee had any interest in that deal whatsoever.

The judgment is affirmed.
      @=oFor otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    DEWEES et al. v. NICHOLSON et al.

    (No. 5561.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 5, 1916.
    Rehearing Denied Feb. 2, 1916.)
    1. Trespass to Try Title <&wkey;38 — Equitable Title — Burden oe Prooe.
    Where plaintiffs in trespass to try title were asserting an equitable title which they contended was acquired on account of transactions with a defendant who had conveyed the legal title to other defendants, the burden was on plaintiffs not only to prove such equitable title, but also that the first defendant’s grantees had notice thereof, or that they did not pay value for the land bought by them.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. c&wkey;>fss.]

      2. Evidence &wkey;>589 — Weight—Testimony oe Party.
    In trespass to try title the unsupported testimony of a defendant alone was legally sufficient to sustain a verdict that the tract of land involved, part of a larger tract conveyed to defendant and by him, with the exception of the tract in litigation, conveyed to plaintiffs, did not •belong, by way of a trust agreement, to plaintiffs under their agreement with defendant.
    [Ed. Note. — For other cases, see Evidence, «Cent. Dig. § 2438; Dec. Dig.- <&wkey;>589.]
    3. Trespass to Try Title <&wkey;41 — Intention oe Parties to Contract — Sueeioiency oe Evidence.
    In trespass to try title, evidence held sufficient to warrant a finding that a defendant and plaintiffs never intended that the 217-aere tract involved, part of a larger one conveyed to defendant, be turned over to a land corporation in which he and plaintiffs owned stock.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dee. Dig. 4&wkey; 41.]
    4. Vendor and Purchaser <&wkey;239 — Right oe Bona Fide Purchaser.
    Parties who purchased tracts of land from the owner of the legal title as shown of record without notice, actual or constructive, of the claim thereto of a land corporation or that of stockholders therein, paying the full and fair value thereof, could hold the land against the stockholders of such corporation, plaintiffs in trespass to try title, claiming equitably in their own right under contract with a defendant, another stockholder, or as successors to the assets of the corporation to which defendant had agreed to convey.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 583-600; Dec. Dig. <@^c239.1
    5. Vendor and Purchaser <&wkey;239 — Assumption oe Payment oe Price — Parties Benefited .
    Where corporate stockholders assumed payment of the price of land bought for the corporation, such assumption inured to the benefit of purchasers of a part of the land, which, by agreement with the corporation and stockholders, the selling stockholder, in whose name title to the land had been taken for the benefit of the corporation, was to own individually.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. §§ 583-600; Dec. Dig. &wkey;>239.]
    6. Vendor and Purchaser <&wkey;239 — Bona Fide Purchasers — Rights.
    Where, with the assent of stockholders in a land company, title to land purchased for it was taken in the name of one, the other stockholders assuming payment of the price, such others could not recover the price per acre, the payment of which they had assumed, from innocent purchasers for value from the stockholder holding the legal title, but only seek to prevent such stockholder who sold wrongfully from transferring such purchase-money notes as he still owned, asking a judgment declaring themselves the owners.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 583-600; Dec. Dig. <&wkey;239.]
    7. Abbeae and Error <&wkey;759 — Bribes — Assignments oe Error.
    Where the rule requiring assignments of error to be copied in the brief is violated to such an extent that a new assignment of error has been created, the one in the brief complaining of the admission of certain testimony of a witness, while the assignment in the motion for new trial complains of the admission of all his testimony, such assignment in the brief will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. <&wkey;>759.]
    8. Costs &wkey;>32 — Propriety oe Award.
    In trespass to try title, where the only relief given plaintiffs was the cancellation of a vendor’s lien retained in the deed from a defendant to plaintiffs, which relief was not prayed for, and the defendant not aware that it was demanded or desired, the only issue submitted being decided for him by the jury, and plaintiff not requesting the submission of others, the adjudging of costs against the defendant was erroneous.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 108-132; Dec. Dig. t&wkey;>32.]
    Appeal from District Court, La Salle County; J. F. Mullally, Judge.
    Action in trespass to try title by S. R. Walker and another against W. I. Nicholson and another, in which A. T. Galloway and another intervened. From a judgment for defendant O’Callaghan and the interveners for the land, that plaintiffs take nothing on their prayers against the named defendant, and that the vendor’s lien retained by the named defendant against the named plaintiff be canceled, plaintiffs appeal.
    Judgment reformed and affirmed.
    Mangum & Townsend and Marshall Hicks, all of San Antonio, for appellants. Covey C. Thomas, of Cotulla, for appellees.

       Application for writ of error pending in Supreme Court.

   MOURSUND, J.

This is an action in trespass to try title, instituted by S. R. Walker and O. S. Dewees, suing in their own right and for tlie use and benefit of tbe Nicholson Immigration Company, a private corporation, and as assignees of the same, seeking to recover 217 acres of land in La Salle county, described in the petition by metes and bounds. The suit was originally against W. I. Nicholson and E. E. O’Callaghan, but A. T. Galloway and A. J. Nichols intervened, each claiming a portion of said land, and in the amended petition plaintiffs sought to recover the land from all of said parties. In addition to the formal allegations plaintiffs alleged that said land, with other tracts, was conveyed by E. C. Davis, about August 15, 1908, to W. I. Nicholson, but that Nicholson paid nothing for the same; that the title was taken by him in trust for plaintiffs, and in trust for a corporation to be formed by Nicholson and plaintiffs, which should sell the lands; that it was agreed that all money derived from such sales over and above the expenses was to be paid to Davis in discharge of the vendor’s lien notes given by Nicholson, and then to the payment of $5,000 advanced and paid on the purchase price of said land by plaintiff Dewees and $2,500 advanced and paid on same by plaintiff Walker, and the sum of $20 for each lot donated by said company to be paid to said Nicholson, and after the payment of all of said sums the remaining land was to be owned by such corporation; that plaintiffs paid $5,000 on the purchase price of said 8,220 acres of land conveyed by Davis at the time the deed was made, and have since paid about $20,000, and Nicholson has never paid anything; that about November 8, 1908, Nicholson, to protect the land from being subject to payment of his debts, executed a deed to plaintiff Walker conveying all of said 8,220 acres except the 217 acres in controversy, and then and there represented to Walker and led him to believe that said deed would, and did, convey to him all the land conveyed to Nicholson by Davis, and recited the same consideration as was x>rovid-ed to be paid by him to Davis; that Nicholson, without delivering the deed to Walker, sent it to Cotulla to be recorded, and after it was recorded it was mailed to Walker, who, believing that it conveyed to him the entire 8,220 acres, without reading it, deposited it in a bank, and he and Dewees paid about $10,000 on the purchase price of the land; that some time afterwards Walker discovered that the deed did not include the 217 acres in controversy, whereupon he demanded that Nicholson convey said land to him, but Nicholson refused to do so. Plaintiffs alleged that such tract was omitted by mistake, but, if wrong in this, then that Nicholson intentionally made said omission and false representations and promises to deceive and defraud plaintiffs, and that they were deceived thereby, and Walker was induced to assume said obligations, and plaintiffs were induced to pay said money; that it was agreed between Walker and Nicholson •that, in consideration of his taking a deed for all the land conveyed by Davis, Walker should agree to pay all the remainder of the debt due against the land; that about April 14, 1909, Nicholson released to plaintiffs all interest he had in the land in controversy; that at the time interveners received their deeds from Nicholson they had notice of plaintiffs’ claim of ownership of said land. Plaintiffs alleged further that there is a vendor’s lien on said land held by Davis amounting to $10 per acre retained in said deed to Nicholson, of which interveners have always had notice; that, although the deed from Nicholson to Walker recites that a note for $77,200 was given by Walker as part of the consideration, in fact no such note was given.

Plaintiffs prayed that they recover the land in controversy, and that the deed from Nicholson to Walker be reformed so as to include said land, and in the alternative for the establishment of the lien against said land to the extent of $10 per acre and interest.

Nicholson alleged that he had sold and conveyed 81.51 acres of land to E. E. O’Callaghan, 72 acres to A. T.. Galloway, and 60 acres to A. J. Nichols prior, to the institution of the suit, and for valuable considerations. As to the remainder, if any, he answered by plea of not guilty, general and special denials, and alleged that it was understood and agreed that the 217 acres was not to be included in the deed to Walker, but was more than offset by 226 acres overplus in the tracts conveyed to Walker; that it was agreed, in consideration of the conveyance made by him to Walker, plaintiffs would assume and pay all indebtedness to Davis, and thereby Nicholson would receive a release of the vendor’s lien held by Davis on said 217 acres.

O’Callaghan answered, claiming 81.51 acres of the land sued for, described in his answer, and as to same he answered by plea of not guilty, and by a' special plea to the effect that he had, on October 22, 1907, contracted with Nicholson for the purchase of said land, and paid $150 on the purchase price thereof, and by deed dated August 20, 1908, Nicholson had conveyed such land to him for a consideration of $1,620, all of which was paid before the institution of this suit; that during all of such time the records of La Salle county showed the fee-simple title to said land to be in Nicholson, and showed no claim of plaintiffs or of any other person except the vendor’s lien in favor of E. C. Davis, which would be released upon the payment of $10 for each acre sought to be released; that the contract was made, the deed delivered, and the payments made in good faith, without any notice, actual or constructive, of any claim by plaintiffs or either of them; that, when Nicholson made the conveyance to Walker, plaintiffs assumed the payment of the entire sum due Davis; and this defendant, in making his payments to Nicholson, relied upon the agreement of plaintiffs to pay said sum to Davis. Said defendant by cross-action sought affirmative relief, and prayed that the title to the 81.51 acres of land be quieted in him.

The interveners’ (Galloway and Nichols’) pleadings are the same, in substance, as those of O’Callaghan, except that they alleged that they purchased the tracts of land dlaimed by them long prior to the institution of the suit, without stating the date; that Galloway agreed to pay $1,200, all of which was paid prior to the filing of the suit, except two notes for ?267 each, and that Nichols agreed to pay $1,254.55, all of which had been paid, except a note for $327.27; that all of said notes had been sold by Nicholson to bona fide purchasers for a valuable consideration before the maturity thereof. The interveners and defendants joined in a trial amendment in which the defensive matter pleaded by Nicholson was alleged more in detail.

The case was submitted upon only one special issue, as follows:

“Did Nicholson tell Walker and Dewees, or either of them, before the deed made by E. O. Davis to W. I. Nicholson, dated August 15, 1908, was taken, that they would have no interest. in the 217 acres in controversy in this suit, and being the second tract described in said deed?”

The jury answered: “Yes.” Judgment was entered in favor of O’Callaghan, Galloway, and Nichols for the tracts of land claimed by them; that said parties take nothing on their prayers against Nicholson; that the vendor’s lien retained in the deed from Nicholson to Walker be canceled; and that plaintiffs recover of Nicholson all costs. The plaintiffs appealed.

Joseph Cotulla conveyed a large body of land to P. C. Davis. During the years 1907 and 1908 Nicholson was in possession of such land, selling portions thereof for Davis. Nichols and O’Callaghan visited the land in 1907, saw Nicholson in possession thereof, and were informed by the'county clerk that Nicholson was selling it for Davis. Galloway was also informed as to this. Nichols and O’Callaghan during the year 1907 made a written contract with Nicholson for the purchase of the tracts claimed by them, and made a small payment thereon. At about the same time Galloway contracted to buy 80 acres, and made a small payment thereon, and afterwards, in the summer or fall of 1908, exchanged same for the tract now claimed by him. By deed dated August 15, 1908, filed for record September 10, 1908, and duly recorded, Davis conveyed to Nicholson certain lands described as 8,220 acres, more or less, the second tract being the 217 acres in controversy, for a consideration of $10 per acre, of which $5,000 was paid, and the remainder, $77,200, evidenced by a vendor’s lien note payable to Davis and signed by Nicholson.

The statement of facts contains an instrument dated September 4, 1908, purporting to be a contract between Nicholson and the Nicholson Immigration Company, a corporation, but in fact not signed by said corporation, but signed and acknowledged by Dewees and Walker. This instrument recites that Nicholson owns 8,000 acres of land, more or less, in La Salle county, being a part of the Joseph Cotulla ranch, and particularly described in a deed from E. C. Davis to Nicholson dated the 15th day of August, 1908, and provides that the corporation shall take charge of, subdivide, and sell the land, and apply the proceeds as therein directed, and provides, further, that Nicholson will make deeds to purchasers, etc. This instrument was never recorded. The Nicholson Immigration Company was incorporated with a paid-up capital of $7,500, which was represented by the $5,000 put in on the land, and $2,500 more that Dewees put up for expense money. Nicholson, Walker, and Dewees were the sole stockholders. Nicholson effected the sale of a half interest in 458 acres of the land at a profit of $40 per acre, and sold other lands at a profit, in the benefits of all of which Dewees and Walker participated. By deed dated November 5, 1908, and filed for record the following day, Nicholson conveyed to Walker all of the land conveyed to him by Davis, except the 217 acres in controversy, which was entirely omitted, the tracts being numbered in each deed, and there being 15 tracts mentioned in the deed from Davis to Nicholson, and only 14 in the deed from Nicholson to Walker, the consideration being described as $5,000 cash, and a vendor’s lien note in the sum of $77,200, payable at the same time as the note to Davis, and calling for the same rate of interest. At the time Nicholson made the deed to Walker he stated, according to Walker’s testimony, that he had become involved in litigation in Oklahoma, and for the protection of Dewees and Walker he thought it best to put the title in the name of one of them. Nicholson testified that he made the conveyance at Walker’s solicitation. The deed was written by the stenographer who did the writing for Nicholson, Walker, and Dewees, who used the same offices, and sent by Nicholson to the county clerk for recording, with instructions to mail it back to Walker. Walker received the deed, read it, and put it in his lock box, and testified that he first discovered the omission of the 217 acres about 7 or 8 months afterwards, whereupon he sent a new deed to Nicholson, who refused to sign, giving as his reason his version of the agreement between himself and Dewees and Walker.

On April 14, 1909, Nicholson, Walker, and Dewees entered into an agreement for the purpose of dissolving the corporation and canceling the contract dated September 4, 1908.' This agreement provides that Walker and Dewees are to take over and own one half of 458 acres, of which the other half was conveyed to Dewees by Walker, and they were to receive certain notes and assume certain obligations; that Nicholson is to pay 'Dewees and Walker within 60 days $8,750,, and upon such payment all other assets and property belonging to the corporation “by virtue of said partnership contract” shall belong to Nicholson, and Walker will deed to Nicholson said assets and property with the understanding that the conveyance is to be subject to vendor’s lien notes against the property aggregating $72,343.44; that the deeds to be executed by Walker “to the said 7,784 acres of land, more or less,” shall be for such consideration as shall be named by. Nicholson; that, if Nicholson fails to comply with such terms within 60 days, all right, title, and claim held by him in the Nicholson Immigration Company or the stock thereof, or growing out of the contract for the sale of the land, is to be at once forfeited by him to Walker and Dewees, and they are to release him from all claims held by them against him. This instrument was never recorded.

By deed dated August 20, 1908, filed for record February 5, 1909, Nicholson conveyed to O’Callaghan the 81.51 acres claimed by the latter for the sum of $550 cash and two notes for $540 each, which notes were paid before the filing of this suit. By deed dated October 29, 1908, filed for record February 4,1910, Nicholson sold Galloway the 72 acres claimed by him for $1,200, of which $666 had been paid before this suit was filed. By deed dated April 21, 1909, filed for record March 12, 1910, Nicholson conveyed to Nichols the 60 acres claimed by him for $600 cash and two notes aggregating $654.45, both of which were unpaid at the time he was notified of the claim of Walker and Dewees. O’Callaghan, Nichols, and Galloway are, and have been for many years past, residents of the state of Mississippi. They honestly believed that the title to the land was good when they bought. The price paid by each for the land conveyed to him was a full, fair, and adequate consideration for the same, and at the time each secured his deed the land conveyed therein, so far as was shown by the records, was owned by Nicholson, and neither of them had any notice that Dewees and Walker, or either of them, claimed any interest in the land in controversy until the summer or fall of 1909. Walker did not execute any note to Nicholson as stated in the deed to him, but it was agreed and understood that he was assuming, along with Dewees, the payment of the note to Davis. The $5,000 cash paid to Davis was furnished by Dewees and Walker, and an agreement was made that the deed should be made to Nicholson, but the testimony conflicts in regard to the terms of their. agreement. Nicholson testified that he was very explicit to explain to Walker that he was buying no interest in the land that was contracted for sale (meaning the 217 acres in controversy); that he counted in the excess of 226 acres, and explained fully to Walker that this excess was in the Bock Water Hole pasture, and that Walker thoroughly understood that he would have nothing to do with the land in survey No. 4, which is the land in question; that in making the trade with Walker and Dewees he laid the map down in front of them and explained that a certain 80 acres had been sold out of 14, and showed that the tract of 77 acres in No. 4 had not been sold, and explained fully to Mr. Walker that he would make a trade and exchange this 77-acre tract in No. 4 for the 80-acre tract in No. 14, and would leave No. 14 in such shape that it would cut in 20-acre tracts; that the deed from Davis, while it stated that it conveyed 8,220 acres, actually conveyed 8,446 acres. Nicholson testified further that it was not the intention in, the agreement of September 4, 1908, to describe the land conveyed from Davis to Nicholson. Walker testified that he and Dewees paid off the balance due on the $77,200 note to Davis. It was admitted that Walker and De-wees assumed the payment thereof when the Nicholson Immigration Company was dissolved about June, 1909. Nicholson’s testimony was contradicted by Walker and De-wees, who denied that he ever made any statements to them about the 217 acres being contracted to be sold or being excepted from the trade between them and Nicholson.

Appellant contends that Nicholson testified to an express trust, and that his testimony was in his own interest and uncorroborated, and therefore insufficient to sustain the finding of the jury. As we understand the pleadings, appellants sought to establish a trust in the 217 acres they sued for, while Nicholson and his vendees contended that plaintiffs had no interest in or title to such land. The evidence shows that there was an agreement between appellants and Nicholson by which a deed was to be taken in his name, and a corporation was to be formed for the sale of lands, the profits to be equally divided between Walker, Dewees, and Nicholson after paying the money advanced by Walker and Nicholson. There is, however, a material conflict upon the terms of this agreement; for Nicholson contends that the 217 acres in controversy which he had contracted to sell before the deed was made to him was not to be included in the lands to be sold by the corporation, but was to be his individual property. Walker and Dewees contend that the agreement was to the effect that,all of the land conveyed to Nicholson was to be sold by the corporation and the proceeds divided. The legal title was vested in Nicholson, and the 217 acres in controversy was never conveyed to Walker with the remaining lands, but was conveyed by him to O'Callaghan, Nichols, and Galloway. Said parties at the time of the trial held the legal title to the lands respectively claimed by them.

As plaintiffs were attempting to assert an equitable title whicli they contended was acquired, on account of certain transactions with Nicholson, who had convoyed the legal title to O’Callaghan, Galloway, and Nichols, the burden was upon plaintiffs to not only prove such equitable title, but also that Nicholson’s grantees had notice of such title, or that they did not pay value for the land bought by them. Hill v. Moore, 62 Tex. 612; Atwell v. Watkins, 13 Tex. Civ. App. 668, 36 S. W. 103; Oaks v. West, 64 S. W. 1033; Turner v. Cochran, 63 S. W. 155. The only issue submitted was not an affirmative submission of the issue made by plaintiff’s pleadings, but was a submission of Nicholson’s theory. The burden of proof was placed on the wrong party, but the affirmative answer amounted to an express finding against plaintiffs’ theory; for, if the fact found was true, Nicholson’s version of the transaction was correct, and plaintiffs’ version incorrect. The jury found, in effect, that the trust agreement did not extend to the 217 acres of land, and that such land was to belong to Nicholson. The testimony of Nicholson fully supports such finding, and no rule of law is applicable which would have the effect of making his unsupported testimony insufficient to sustain the verdict.

Appellants by their third and fourth assignments contend that a verdict should have been instructed for appellants; the contention being that by the contract dated September 4, 1908, the land in controversy was turned over to the corporation for sale and to pay the amounts due Davis, and by the terms of the agreement of April 14, 1909, and the failure of Nicholson to comply with the option given him therein, said land became the property of plaintiffs. The contract of September 4, 1908, does not purport to transfer title to the corporation, and is of no importance, unless it serves to throw light on the original transaction. The description of the lands therein is not as satisfactory as it might be; for it calls for 8,000 acres more or less, while the deed from Davis describes the land therein conveyed as 8,220 acres, more or less, and said contract does not contain the statement that the lands to be sold comprise all those tracts described in the deed from Davis, but the statement is made that such 8,000 acres, more or less, are described in the Davis deed. Nicholson testified that it was not intended in said agreement to describe the land as that conveyed from Davis to Nicholson; that he was so well satisfied that Walker and Dewees knew just what land they were getting, and there would be no hitch in any of the transactions, that he might have been a little careless. We think the description was sufficiently ambiguous to authorize proof of what was meant thereby, and that, in connection with the testimony showing that Nichols had theretofore contracted to sell the 217 acres in controversy, the jury was warranted in deciding that it was never intended to be turned over to the corporation, and that said contract should not be construed as inconsistent with Nicholson’s testimony. If the land in controversy was not included in the contract, it is evident that the agreement of April 14, 1909, did not relate thereto; for it mentions only the assets and property belonging to the corporation by virtue of the contract. The property referred to as held under the contract was treated as the same held by Walker under the deed to him, for it is provided that he shall make the conveyance if Nicholson complies with the terms of the last contract.

But, aside from the fact that the evidence sustains findings to the effect that Nicholson did not agree to hold the 217 acres in trust for plaintiffs, or for the corporation, whose assets and property plaintiffs acquired by virtue of the agreement of April 14, 1909, and that no title was conveyed to the corporation or to plaintiffs by the written instruments relied upon in the assignments of error, there is a good reason disclosed by the record why the court should have refused' to give a peremptory instruction for plaintiffs. This reason is that O’Callaghan, Galloway, and Nichols purchased the respective tracts of land claimed by them from the owner of the legal title, as shown of record, without any notice, actual or constructive, of plaintiffs’ or the corporation’s claim thereto, and paid the full and fair value thereof. This proof was so complete that it would have met the requirements of the law to entitle them to hold their land, had plaintiffs shown a legal title antedating theirs, in which case the burden would have been upon them to establish their good faith, etc.

By the fifth assignment appellants contend that judgment should have been entered that plaintiffs recover from O’Gallaghan, Galloway, and Nichols the sum of $10 per acre for each acre of the land claimed by them, and for foreclosure of lien, because plaintiffs paid off the vendor’s lien retained by Davis. If the transaction was as contended by Nicholson, and found by the jury, Walker and Dewees got what they were to receive, and it is admitted that they assumed the payment of the amount due Davis. This assumption would inure to the benefit of O’Callaghan, Galloway, and Nichols. Had the jury found in favor of their contention, they would still be confronted with the fact that their act in vesting title in Nicholson caused the purchasers from Nicholson to obligate themselves to pay full value, and justice would require that they should not be permitted to recover $10 per acre from such purchasers, but should have their recourse against their trustee, Nicholson, and should seek to stop the transfer of such notes as he still owned, and ask for a judgment declaring them the owners thereof. This was not undertaken. The assignment is overruled.

The sixth assignment will not be considered, because the rule requiring the assignments to be copied in tbe brief bas been violated to sucb an extent that a new assignment of error bas been created. Tbe one in the brief complains of tbe admission of certain testimony of Nicholson, which, by tbe way, is shown by the statement of facts to have been read as offered by appellants, while the assignment in the motion for new trial complains of the admission of all the testimony given by Nicholson.

By cross-assignment complaint is made by Nicholson because the court adjudged the costs against him. As the only issue submitted was decided' in his favor by the jury, and plaintiffs did not reguest that any others be submitted, he contends the costs should not have been adjudged against him. The only relief given the plaintiffs was the cancellation of the vendor’s lien retained in the deed from Nicholson to Walker. This relief was not prayed for, and Nicholson was not apprised of the fact that such relief was demanded or desired, or he could have tendered an instrument correcting the mistake. We think the court erred in adjudging the costs against Nicholson.

The other cross-assignments are based on proceedings not shown in the record, and would have to be overruled were it necessary to consider them.

The judgment is reformed so as to provide that plaintiffs pay all costs, and, as so reformed, will be affirmed.
      <§ns3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    DECATUR COTTON SEED OIL CO. v. TAYLOR.
    (No. 8270.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 20, 1915.
    Rehearing Denied Jan. 8, 1916.)
    1. Master and Servant &wkey;>270 — Actions for Injuries — Issues, Proof, and Variance.
    Where an employé was directed by his foreman to use a running board in oiling machinery, this constituted a furnishing of the board for such use within an allegation that the board was so furnished; and hence evidence as to such direction was not inadmissible, though there was no specific charge of negligence in giving such direction.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. &wkey;^270.]
    2. Master and Servant &wkey;>235 — Liability for Injuries — Contributory Negligence —Duty of Inspection.
    An employs directed by his foreman to use a running board in oiling machinery was not compelled by law to make an inspection to see whether or not the board had been fastened to its supports, but had a right to assume that it was secure.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 710-722; Dec. Dig. <5&wkey; 235.]
    3. Trial <&wkey;412 — Errors—Waiver).
    In an employS’s action for injuries, caused by a running board on which he was standing slipping, a witness testified for plaintiff, over objection, that the running board was replaced and fastened after plaintiff fell from it. Defendant introduced a photograph made after the accident showing conditions to be exactly the same as at the time of the accident, with certain minor exceptions, and a witness testified without objection concerning the running board as shown in the photograph. Held, that any error in admitting the testimony that the board was replaced and fastened after the accident was waived.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 182, 974-977; Dec. Dig. &wkey;412.]
    4. Trial &wkey;>120 — Argument op Counsel — Propriety op Remarks.
    In an employé’s action for injuries, he testified on cross-examination that he had refused C.’s request that he submit to a physical examination by physicians other than his own physician, and on redirect examination that tha employer never asked Mm to submit to examination by any other doctor, that C. did not purport to represent the employer, that the representatives of the employer made no such request. In his argument plaintiff’s counsel, referring to plaintiff’s refusal to submit to an examination by a physician chosen by C., asked who C. represented, stating that the employer did not claim him and was ashamed of him, and that he did not know whom he represented. One of defendant’s attorneys remarked that C. was attorney for the defendant; whereupon plaintiff’s counsel replied that he was also attorney for somebody else. It was claimed that this was calculated to induce the jury to believe that C. was representing presumably an insurance company. The court refused to restrain plaintiff’s counsel or warn the jury not to consider the remarks, but in his written charge instructed them not to consider those remarks. Held that, in view of plaintiff’s testimony, which was not controverted, the argument was not improper, especially as the jury was instructed not to consider it.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 285-287; Dec. Dig. &wkey;120.]
    5. Trial <&wkey;125 — Arigument of Counsel-Propriety of Remarks.
    In an action against a corporation for injuries, plaintiff’s counsel, referring to a request that plaintiff submit to an examination by a physician other than Ms own physician, said that this was a scheme which corporations resorted to, but upon objection by defendant he remarked that he would withdraw the word “corporations” and submit “this corporation.” Held that, even though these remarks were unsupported by proof, they did not constitute reversible error, where no probable harm was shown.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 303-307; Dec. Dig. &wkey;125.]
    6. Trial <&wkey;125 — Argument of Counsel — Propriety of Remarks.
    In an employé’s action for injuries, plaintiff’s counsel in his argument stated that defendant should apply to the payment of plaintiff’s doctor bill, which it owed, money it was paying to a stenographer to take down his argument. Held, that the remark that defendant justly owed the bill was not improper, and it was not likely that the mere hiring of the stenographer to report the argument aroused any prejudice against defendant.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 303-307; Dec. Dig. &wkey;12o.]
    Appeal from District Court, Wise County; F. O. McKinsey, Judge.
    Action by A. N. Taylor against the Decatur Cotton Seed Oil Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.

      Lockett & Rowe, of Et. Worth, R. E. Cars-well, of Decatur, and H. T. Cooper, of Ft. Worth, for appellant. Sullivan & Hill, of Denton, L. D. Ratliff, of Decatur, and Luther Hoffman, of Denton, for appellee.

       Application ior writ ol error pending in Supreme Court.

   DUNKLIN, J.

A. N. Taylor was employed by the Decatur Cotton Seed Oil Company in the capacity of oiler of its machinery. While attempting to oil a bearing of what is called the line shaft, one end of the running board upon which he was standing slipped from its support, and thus caused him to fall to the floor beneath, a distance of some 10 or 12 feet. This suit was instituted by him against the company to recover damages for personal injuries sustained as a result of said fall, and from a judgment in his favor, the defendant has appealed.

Plaintiff alleged, in substance, that the defendant had theretofore fixed and used the running board as a support for the oiler while performing the service he was performing when he fell, and that in furnishing the same defectively constructed and insecurely fastened defendant was guilty of negligence which was the proximate cause of his injury.

One of the contentions of appellant is that the evidence conclusively shows that the running board was placed and used for the purpose of repairing a coupling on the line shaft which occasionally got out of order, and was not provided or intended for the use plaintiff was making of it at the time of the accident, that another and safe place convenient and available to plaintiff for performing that service had been provided, and that in voluntarily abandoning that place and resorting to the running board in its stead he was guilty of contributory negligence which was the proximate cause of his injury.

While the evidence introduced by the defendant strongly tended to establish those facts, yet the same was controverted in a material respect by evidence offered by plaintiff, which was, in effect, that Mr. Mitchell and Mr. Fields, two of defendant’s employes, had instructed him to so use the running board; that he had used it in that manner for some three weeks prior to the accident, oiling the same bearing three times a day; that the oiler who preceded him had made the same use; and that only one side of the bearing in question could be oiled at the place, which, according to defendant’s testimony, was the only place provided for oiling it. According to other testimony, Mr. Mitchell was defendant’s foreman in charge of the operation of the mill, and not plaintiff’s fellow servant, as further contended by appellant.

If plaintiff was directed by the foreman to so use the running board in the discharge of his duties, that would constitute a furnishing of the board for such use within the purview of the allegations of plaintiff’s petition; and hence we overrule appellant’s proposition that such proof was not available to plaintiff, in the absence of a specific charge of negligence in giving such direction to plaintiff. 3 Labatt’s Master & Servant, § 923; Williams v. Hennefield, 51 Tex. Civ. App. 54, 120 S. W. 567.

We are of opinion further that the evidence does not show conclusively, as contended by appellant, that the insecure condition of the running board was so patent and open to common observation that plaintiff must necessarily have known it, and hence should be held to have assumed the risks incident to using the board as he did use it. He was not compelled by law to make an inspection to see whether or not it had been fastened to its supports, but had the right to assume that it was secure, and the absence of nails or some other character of fastenings might well escape the notice of one walking or standing upon it, relying upon the assumption that it was safe for such use.

Complaint is made of the admission of the testimony of W. E. Mitchell that the running board was replaced and fastened after plaintiff fell from it. The ground of defendant’s objection to that testimony was that it was irrelevant, immaterial, and prejudicial to defendant, “in that the jury might infer negligence upon the part of defendant because it replaced the plank and fastened it after the accident.” In approving the bill of exception reserved to that ruling, the trial judge certified that defendant introduced in evidence a photograph made after the accident, showing conditions to be exactly the same as they were at the time of the accident, except that one or two belts had been removed from the pulleys, and that witness Moss, without objection, had testified concerning the running board as shown in the photograph. Under such circumstances the error, if any, in admitting the testimony of Mitchell last referred to was waived. Hitson v. State Nat. Bank (Sup.) 14 S. W. 993; W. U. Tel. Co. v. Gorman, 174 S. W. 925; Jordan v. Johnson, 155 S. W. 1195.

Another assignment of error presented to the action of the court in admitting testimony of W. F. Reynolds, substantially to the same effect as that of Mitchell last discussed, is overruled for the same reason.

Another assignment is predicated on alleged improper argument shown in a bill of exception contained in the record, from which it appears that, in his closing argument to the jury, Mr. Hill, counsel for plaintiff, said:

“No; we did not advise Taylor to submit to examination by a physician chosen by Mr. Cooper. Who does he represent. The oil mill does not .claim him. In God’s name who? I don’t know. The oil mill is utterly ashamed of him.”
Mr. Carswell, for defendant: “He is attorney for the defendant.”
Mr. Hill: “He is attorney for somebody else, too.”

To which language of plaintiff’s counsel defendant tlien and there objected, on the ground that it was not supported by any evidence in the record, immaterial to any issue in the case, and calculated to induce the jury to believe that Mr. Cooper was not representing defendant, but some one else (presumably the insurance company).

From another bill of exception, upon which a like assignment is based, it appears that during the same argument counsel used this language:

“AVky, they sought to show that there was no injury, and yet it was time foolishly wasted, unless you say that I>r. Ingram is a liar. ‘Submit him to our physician!’ That is a scheme the corporations resort to.”
Mr. Carswell, for the defendant: “I object to that remark, your honor, ‘That is a scheme that corporations resort to.’ ”
Mr. Hill: “I recall ‘corporations,’ and submit ‘this corporation.’ ”

To which defendant objected, because not warranted by any evidence, inflammatory, and prejudicial to defendant, in that it was calculated to induce the jury to doubt the sincerity of defendant in requesting plaintiff to submit to an examination by physicians for the purpose of determining the extent of his injuries.

In each instance mentioned the court was requested to restrain counsel for plaintiff and to warn the jury not to consider said remarks. But those requests were refused, except, when the remarks shown in the first bill were made, the court admonished Mr. Hill to “keep in the record.” Later, however, the court by written charges instructed the jury not to consider those remarks of plaintiff’s counsel.

Upon cross-examination of plaintiff by Mr. Cooper for the defendant he admitted that he had refused Mr. Cooper’s request to submit to a physical examination by physicians other than Dr. Ingram for the purpose of determining the extent of his injuries. On -redirect examination by his own counsel he testified as follows:

“The Decatur Cotton Oil Mill never asked me to submit to examination of any other doctor besides Dr. Ingram; never did at any time. This gentleman [referring to Mr. Cooper] did not pui'-port to represent the Decatur Cotton Seed Oil Mill; didn’t tell me who he represented. Mr. Moss, representing the Decatur Cotton Seed Oil Mill, never did request me to submit myself to any other physician than Dr. Ingram, nor did Mr. Mitchell. I did not feel that I was under obligation to submit myself to the examination of a physician chosen by Mr. Cooper.”

In view of that testimony, we do not think that the argument set out in the first bill of exception referred to was improper, especially as it does not appear that the truth of such testimony was controverted by any other witness, and as the' court expressly instructed the jury not to consider the argument.

Even if the court, over defendant’s objection, had admitted proof of a custom of defendant to request all persons claiming damages for personal injuries sustained while in its employment to submit to an examination by physicians for the purpose of ascertaining the true nature and extent of such injuries, perhaps the ruling would be held harmless error at all events, since we fail to perceive how such evidence could in any manner tend to prejudice the jury against the company. Its tendency more likely would be favorable to the company. And, while the remarks of counsel objected to and shown in the second bill of exceptions were without proof to support them, we do not think they show probable harm, and therefore reversible error, especially in view of the court’s written instruction to the jury not to consider them.

Another assignment of error is predicated on further remarks of counsel in the same argument, in effect, that defendant should apply to the payment of plaintiff’s doctor’s bill which it owed, money it was paying to the stenographer for takng down that argument; the court failing to sustain defendant’s objection thereto made at the time on the ground that there was no evidence to support such argument, and failing to exclude the remarks by any instruction.to the jury. It is not likely that the mere fact of hiring a stenographer to report the argument aroused any prejudice against the defendant in the minds of the jury; and the remaining portion of the remarks that defendant justly owed plaintiff his doctor’s bill clearly was not improper.

Upon a careful consideration of the evidence, we are unable to say that the judgment was so excessive as to require a reversal, as is earnestly insisted by appellant in another assignment.

For the reasons noted, all assignments of error are overruled, and the judgment is affirmed.
      (teoFor other oases see same tODic and KEY-NUMBER In all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    KIMBROUGH et al. v. BEVERING.
    (No. 8279.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 27, 1915.
    Rehearing Denied Jan. 8, 1916.)
    1. Sheriffs and Constables <&wkey;157 — Unofficial Character of Seizure.
    AVhere a constable, under direction of his writ of execution, levied upon and sold 39 bales of cotton as the property of a tenant farmer, making due return, and thereafter he took into his actual possession four bales of the cotton, which had been sold, as specified in his return, such seizure was not an official act and the sureties on his bond as constable, who had bound themselves only for the faithful performance of his official acts, were not liable therefor.
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 354-371; Dec. Dig. t&wkey;>157.]
    2. Execution <&wkey;461 — Unauthorized Character — Levy after Sale .by Debtor.
    For an unauthorized levy of execution against a tenant farmer on cotton which the latter had sold to the landlord, the landlord was entitled to recover the value of all cotton appropriated by virtue of the execution and levy, whenever and by whomsoever the appropriation was made.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 13S7,1388; Dec. Dig. &wkey;461.]
    3. SHERIFFS A1ÍD CONSTABLES &wkey;157 — UNAUTHORIZED Levy — Liability on Bond.
    Under Rev. St. 1911, art. 5475, giving a landlord a preference lien on his tenant’s crop to secure his advances to enable the tenant to make such crop, where execution against a tenant farmer was levied on 39 bales of cotton, to enable him to make which the landlord had made advances, there being $200 or $300 yet due him at the time of the levy, such levy and the sale thereunder by the constable was unauthorized as against the landlord, and a later actual seizure of four bales of the cotton by the buyer .at execution sale or by his. agent, whether the ■constable who made the levy or another, was unlawful, and amounted to a conversion for which the landlord could recover; the legal wrong relating back to the levy and rendering the constable and his sureties liable.
    [Ed. Note. — For other cases, see Sheriffs and ■Constables, Cent. Dig. §§ 354-371; Dec. Dig. ■&wkey;157.]
    4. Execution <&wkey;191 — Levy on Property Not Wholly the Debtor’s — Statute.
    By direct provision of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3740, levying on and ■sale under execution of property in which the debtor has merely an interest, without right to ■exclusive possession, is made by giving notice to the person entitled to the possession, and a levy made by taking actual possession cannot stand as legal on the ground that the debtor had an interest in the property, though not exclusive.
    [Ed. Note. — For other cases, see Execution, •Cent. Dig. § 500; Dec. Dig. &wkey;3l91.]
    .5. Execution <&wkey;268 — Levy on Pledged Crop — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3744, providing that chattels pledged, assigned, or mortgaged as security may be levied upon or sold on execution against the pledgor, ■etc., and that the purchaser shall be entitled to the possession, when it is held by the pledgee, on complying with the condition of the pledge, where a tenant farmer pledged his half interest in a cotton crop to the landlord to secure advances, a judgment creditor of the tenant, who levied execution upon the cotton in the tenant’s hands, buying thereunder, was not entitled to its possession without a compliance with the •conditions of the pledge, since the landlord was at least in the position of a mortgagee in possession under a pledge on the tenant’s part that the proceeds of his interest in the cotton should ie applied to payment of his debt to the land-ord.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 762-767; Dee. Dig. &wkey;268.]
    6. Assignments eor Benefit of Creditors &wkey;>52 — Character of Transaction — Statute.
    Where a tenant orally agreed with his landlord that the latter should pay for completing and sell the tenant’s cotton crop and apply the proceeds to reduction of the tenant’s debt to the landlord for advances to make it, accounting to the tenant for any excess, the transaction was not within Rev. St. 1911, art. 91, requiring assignments by insolvent debtors for the benefit of creditors to be in writing.
    [Ed. Note. — For other cases, see Assignments for Benefit of Creditors, Cent. Dig. § 212; Dec. Dig. &wkey;52.]
    Appeal from District Court, Clay County; W. T. Alien, Judge.
    Action by August Bevering against J. B. Kimbrough and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    C. M. McFarland, of Wichita Falls, for appellants. Arnold & Taylor, of Henrietta, for appellee.
   CONNER, C. J.

J. B. Kimbrough, as constable of precinct No. 2, Clay county, and J. M. King, W. A. Duncan, and J. B. Wright, as the sureties on his official bond, suffered a judgment, from which they have appealed, in favor of August Bevering, appellee, in the sum of $148.83, for the conversion of four bales of cotton. The alleged conversion, as presented in the pleadings and as shown in the evidence, arose in substantially the following way: J.. C. Hunt in Wichita county secured a judgment against J. Davis, a farm tenant of appellee in Clay county. By virtue of this judgment an alias execution was issued, and the same was by J. B. Kimbrough, as constable of said precinct No. 2, levied upon some 39 bales of cotton as the property of said J. 'Davis. In the answer of the defendant it was admitted that the levy and sale was as shown by the return of the constable on his execution. This return recites that the execution came to hand and was executed by taking the cotton, which was specifically described, into his possession, after which—

“he [the constable] sold all of the right, title, and interest of the said J. Davis in and to said propex-ty to J. C. Hunt,” etc.

The return also stated that after the sale, the cotton had been delivered to the plaintiff in the execution, J. C. Hunt. The record shows that the constable made his return on the 28th day of November, 1914. On the 5th day of the following month it appears from the evidence that Kimbrough, as the defendants alleged and insist, acting for J. O. Hunt in an individual capacity and not as constable, proceeded to take into his actual possession four bales of the cotton which had been theretofore sold as specified in the constable’s return, and shipped the same to J. C. Hunt at Wichita Falls. It does not clearly appear in the evidence, other than as recited in the constable’s return, that at the time of the sale of the cotton the possession of either J. Davis or of appellee, the landlord, was disturbed. But at all events, it further appears that in some way Bevering had either retained, or had obtained actual possession of the cotton after the constable’s sale. Other circumstances will be hereinafter stated in their proper connection.

It is first insisted that the judgment against the sureties on the constable’s bond is without any evidence to support it in that, as- contended, the uncontradicted -evidence shows that in seizing the four bales of cotton in controversy, the constable was acting, not as an officer, bnt as a representative merely of J. O. Hunt. Appellee earnestly controverts this contention, and insists that in seizing the cotton Kimbrough was but carrying out and completing the official acts by him committed prior to that time. There seems, however, but little, if any, contradiction, ‘of the constable’s testimony on this point, and it being undisputed that prior thereto the direction of the writ had been executed and due return made thereof, the constable’s duty as an officer was ended, and he could no longer act as an officer by virtue of the writ. This being true, if this was the sole basis of the plaintiff’s right to recover, it would certainly seem that the sureties on the constable’s bond should be relieved, for it was for the faithful performance of his official acts only that they bound themselves. See Revised Statutes 1911, art. 7141; Holliman v. Carroll’s Adm’rs, 27 Tex. 23, 84 Am. Dec. 606; Heidenheimer v. Brent, 59 Tex. 533; Brent v. Hohorst, 1 White & W. Civ. Cas. Ct.App. § 343; Sneed v. MeFatridge, 43 Tex. Civ. App. 592, 97 S. W. 113; Stewart v. Gordon, 65 Tex. 344; Goldman v. Spann, 173 S. W. 1015.

We are of opinion, however, that the issue suggested was an immaterial one, and that the judgment must be maintained upon a different theory. The following facts seem to be substantially undisputed, except as hereafter otherwise indicated: J. Davis for the year 1914 was a tenant upon the farm of appellee, Bevering, under a contract by virtue of which Davis was to receive one-half and Bevering the other one-half of all cotton grown upon the premises during the year. Davis and Bevering both testified— and there is no contradiction in this respect —that about the beginning of the cotton picking period Davis contemplated giving up his crop, but he finally agreed, at Bevering’s suggestion, that he, Davis, would continue gathering the crop, Bevering to pay for the services of all cotton pickers except that of Davis himself, and continue furnishing him supplies as he had theretofore done; that pursuant to this agreement Davis turned the crop over to Bevering. They both specifically so testified without contradiction, and they further insist that it was a sale of the cotton. In this connection, however, it was further agreed between them that at the conclusion of the season Bevering would sell the cotton, and if Davis’ one-half of the proceeds should be more than sufficient to pay Bevering for advances that had been theretofore made, that then he (Bevering) would give to such Davis any excess that existed. If this transaction in fact amounted to a sale, as both Bevering and Davis insisted in their testimony, then it must be admitted, without citation of authority, we think, that the levy of the execution against Davis upon the cotton was an unauthorized levy. In such case, the true owner, Bevering, would be entitled to a recovery for the value of all cotton that may have been appropriated by virtue of the execution and levy, whenever and by whomsoever the appropriation may have been made. But whether this transaction between Davis and Bevering amounted to a sale or not, in our view of the matter, is immaterial, for it is undisputed that Bevering, as landlord, had made large advances to Davis, and as such landlord, and to secure said advances, Bevering undoubtedly was entitled to the landlord’s lien, as provided in our statutes. This lien is a preference lien, having priority over all other liens. See Revised Statutes, art. 5475. Bevering, therefore, at the date of the levy of the execution had a lien (whether in possession or not) upon all of the cotton levied upon in order to secure all advances made by Bevering to enable Davis to make the crop. Bevering testified upon the trial that after the sale of the cotton there yet remained due from Davis to him on account of such advances some $200 or $300. So that, whatever view of the facts may be taken, the levy and sale by the constable was unauthorized as against Bevering, and the later actual appropriation of four bales of this cotton, by virtue of said execution sale, whether by J. G. Hunt in person or by any agent, either J. B. Kimbrough or another, was unlawful, and amounted to a conversion for which Bevering was entitled to recover. The legal wrong done Bevering did not have its inception at the time of the actual appropriation, but related back to the unlawful levy and sale under the execution. These acts, which were undoubtedly official, constituted the true basis of Bevering’s right to recover. At the time of the levy and sale Bev-ering was at least in the attitude of lienholder, or mortgagee, in possession, and as such did, at all events, have the right to sue for possession or as for a conversion. See Jones on Chattel Mortgages, §§ 447, 448, 449, 452; Taylor v. Felder, 5 Tex. Civ. App. 417, 23 S. W. 480, 24 S. W. 313; Newman v. Ward, 46 S. W. 868.

Another contention of appellants is that the evidence, to which we have herein-before referred, shows that Davis at least had an interest in the property and hence that the levy was an authorized one, but if this construction of the facts be adopted, we will add, in addition to what we have already said as to the effect of Bevering’s right under a landlord’s lien, that the levy and sale was not made as provided by statute, where merely an interest, without right to the exclusive possession, is shown. In such case the statute provides that the levy is made by giving notice thereof to the person who is entitled to the possession. See Vernon’s Sayles’ Texas Civil Statutes, art. 3740. It is not pretended that this was done in the present case. The return of the officer shows that the levy was made by taking actual possession. Another article of the statute (arti-ele 3744) provides that chattels pledged, assigned, or mortgaged as security for any debt or contract may be levied upon and sold on execution against the person making the pledge, assignment, or mortgage subject thereto, and that the purchaser shall be entitled to the possession when it is held by the pledgee, assignee, or mortgagee on complying with the condition of the pledge, assignment, or mortgage. Bevering was at least in the position of a mortgagee in possession under a pledge on the part of J. Davis that the proceeds of his interest in the cotton should be applied to the payment of his debt to Bev-ering, and Hunt, the plaintiff in execution, was in no event entitled to the possession of the cotton, or of any interest therein, without a compliance with the conditions upon which Davis pledged the cotton to his landlord. It is not contended that Hunt made any effort to do this.

The contention that the transactions between Davis and appellee, Bevering, amounted to no more than an assignment, which was void under the operation of Revised Statutes, art. 91, because not in writing, we think need not be discussed seriously, inasmuch as it seems to us manifest that the transaction in no event can be construed as an assignment for the benefit of creditors under the statute referred to.

We conclude that the judgment must be affirmed.
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author: BUCK, J.

text:
    DUBLIN FRUIT CO. et al. v. NEELY.
    (No. 8278.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 27, 1915.
    Rehearing Denied Jan. 15, 1916.)
    1. Pleading <&wkey;228 — Exception—Effect as Admission.
    An exception, special or general, to the petition admits its allegations as true.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. &wkey;228.]
    2. Frauds, Statute of <&wkey;16 — Promise to Answer fob Debt ob Default of Another —Character of Transaction.
    Where a seller of apples acted as one of the principals in the transaction, his promise, made before acceptance to the buyer, to save the latter harmless from any defects in the fruit was not within the statute of frauds.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 22-26; Dec. Dig. <5&wkey;16.]
    3. Appeal and Error &wkey;>854^-DisposiTioN— Affirmance — Wrong Reason.
    The Court of Civil Appeals will affirm a correct judgment below on special exception to the petition, though the trial court assigned the wrong reason therefor.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3403. 3404, 3408-3424, 3427-3430; Dee. Dig. &wkey;854.]
    4. Principal and Agent &wkey;>136 — Personal Liability of Agent.
    An agent, acting for a disclosed principal, may bind himself personally, either by adding his responsibility to that of the principal or by tendering his responsibility instead of that of the principal, either expressly by words or by implication from words or conduct.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 447-450, 476-491; Dec. Dig. <&wkey;136.]
    5. Principal and Agent <&wkey;193 — Personal Liability of Agent — Question for Jury.
    Where the promise of an agent by which he is sought to be held personally responsible on a contract made in his principal’s behalf is in writing, its construction and effect are ordinarily questions of law for the court, or, where the promise, though not in writing, is of such a character that only one inference can legally be drawn from the fact, the question is likewise for the court, but where the testimony conflicts as to the nature and extent of the words used or conduct involved, the question is of fact for the jury under all the circumstances, the purpose of the inquiry being to ascertain the intent of the parties, which is conclusive if not conflicting with the law.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 721%-726; Dec. Dig. <&wkey;
    6. Principal and Agent <&wkey;136 — Personal Liability of Agent.
    Where one who sold apples as an agent, upon protest as to their quality by the buyer before acceptance, stated that he would be personally responsible for any loss, or his language was reasonably susceptible of such construction, although the agent did not intend to pledge his personal responsibility, but the buyer so understood and acted thereon, the agent was personally liable for any damage, since the fact that an agent did not intend to pledge his own responsibility will not relieve him if the circumstances warranted the construction by the other party that he did so intend.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 447-450, 476^191; Dec. Dig. &wkey;136.j
    Appeal from Erath County Court; A. P. Young, Judge.
    Suit by the Dublin Fruit Company and others against R. P. Neely. From a judgment for defendant, plaintiffs appeal.
    Reversed and remanded for new trial.
    Hickman & Bateman, of Stephenville, for appellants. Marshall Ferguson and Pat L. Pittman, both of Stephenville, for appellee.
   BUCK, J.

Suit was filed in the justice court by the appellants, a firm composed of M. Hoffman and W. H. Novitt, against the Texas Central Railroad Company, the Roswell Fruit Growers’ Exchange, and R. P. Neely, for $188.62, said 'suit arising out of a shipment of a car of apples from Roswell, N. M., by the Fruit Growers’ Exchange through the agency of Neely, who was a broker living at Ft. Worth, and over the defendant railroad company’s line. It was sought to hold the Fruit Growers’ Exchange liable because of the shipment of apples alleged to be defective and differing in kind, grade, and quality from those ordered; to hold the railroad company liable for delays in transportation, whereby the apples, as alleged, were caused to become rotten and unmarketable, and to hold Neely liable on his special promise and agreement with plaintiffs that, if plaintiffs would accept said apples and pay the accompanying draft, he, Neely, would save them harmless, etc. From a judgment In the justice court for the amount sued for in favor of plaintiffs and against the railroad company and said Neely, the Fruit Growers’ Exchange having been dismissed from the suit, an appeal was taken to the county court. There, by agreement, a judgment was entered in favor of the plaintiffs and against the railroad company for $75, in full of claim against said defendant, it being specially provided in said judgment that the rendition thereof would not, in any way, affect plaintiffs’ cause of action against Neely. Later, plaintiffs amended their petition, alleging that they had bought the car of apples from Neely, and that he had warranted and represented them to be good and merchantable fruit; and that said apples were not as represented, but were inferior and defective in several respects enumerated; and that the difference between the value of the apples as received, and as they should have been under the contract, was $Í13.62. They further alleged that before receiving and accepting said apples plaintiffs notified Neely of their condition, and refused to accept the same, but were notified and promised by said Neely that if they would accept the same, he, Neely, would save them from any loss; that plaintiffs relied upon said promises, etc., and accepted the apples. It was further alleged that Neely, in making such promise and agreement, was not agreeing to answer.for the default, miscarriage, or debt of another, but had a personal financial interest in said transaction; he receiving a portion of the proceeds of such sale. Upon a trial between plaintiffs and Neely, judgment was rendered upon an instructed verdict in Neely’s favor, from which judgment the plaintiffs have appealed to this court. The judgment recites that:

“After hearing the evidence, the court is of the opinion that the special demurrer filed herein should be sustained.”

Defendant Neely’s answer did not contain any special exception or special demurrer eo nomine, but did plead that plaintiffs’ cause of action was, as pleaded, an attempt to hold Neely liable upon an oral promise to answer for the debt of another, and therefore in contravention of the statute of frauds.

We believe, in sustaining the special exception, if any there were, the court misinterpreted the cause of action stated. If the allegations of the.petition are admitted as true, as they must be against an exception, special or general, there is nothing in the pleading to suggest that Neely in said transaction was acting as an agent. According to the recitations in the petition, Neely was the principal, or at least one of the principals, upon whose alleged default the cause of action was predicated. It might be claimed that, even though it should be admitted that the court erred in sustaining the exception urged, yet from the evidence introduced no other judgment than the one rendered could have been entered, and that therefore it is our duty to affirm the judgment though the wrong reason was given by the court as a basis therefor. Alexander v. McGaffey, 39 Tex. Civ. App. 8, 88 S. W. 462, affirmed in 101 Tex. 627; Staples v. Word, 48 S. W. 757. The court, it is shown, reserved his ruling on the exception to the pleading until after both parties had rested. But can we say that in this case the evidence would support no_ other judgment than the one rendered? We" think not.

The testimony of Hoffman, one of the plaintiffs, was to the effect that during the year 1913, he received a letter from Neely, stating that he could ship a car of apples from Boswell at $1.50 delivered; that thereupon he wired said Neely:

“All right, if can ship car good apples at $1.50 bill car to Dublin, stop at Mingus and Weather-ford. As we only handle good stuff, this is first car we handle this year, and want good stuff.”

That thereupon Neely wired him that he would ship the apples; that when the shipment reached Mingus and were examined by plaintiffs’ agent there, it was discovered that the apples were not of the kind and character ordered, were rotten, wormy, etc., and that thereupon he wired Neely that the apples were sorry, and that they could not handle them. That Neely answered by telephone:

“Hoffman, go ahead and take those apples, they are good.”

That he told Neely he would call up his man at Mingus and communicate with him (Neely) later. That in about 20 minutes Neely called again and said:

“Hoffman, go ahead and take those apples and pick out the rotten ones and I will see you out. Go ahead and pay the draft and I will make it good.”

That thereupon he did pay the draft drawn by the Roswell Fruit Growers’ Exchange and accepted the apples. It is true that Neely testified that he told Hoffman that he had seen the apples at Ft. Worth, and that in his opinion they were good bulk apples, and that the Roswell Fruit Growers’ Exchange would take care of him on any loss he had, thereby denying that he had made any personal contract of indemnity to plaintiffs against possible loss. But this issue was a question of fact to be passed on by the jury. That an agent, acting for a disclosed principal, even may bind himself personally under certain circumstances is well established by the authorities. It is entirely competent for the agent, although his agency is known and he is fully authorized to bind his principal, to pledge his own personal responsibility. He may do this in two ways, namely, he may add his responsibility to that of the principal, or he may tender his own responsibility instead of that of his principal. 1 Mechem on Agency (1914) § 1419, p. 1048; Dahlstrom v. Gemunder, 198 N. Y. 449, 92 N. E. 106, 19 Ann. Cas. 771; Shordan v. Kyler, 87 Ind. 38. Such pledge or promise may be either made expressly by words or by implication from words or conduct. Where the promise of the agent by which he is sought to be held is made in writing, its construction and effect are ordinarily questions of law to be determined by the court, or where the promise, though in writing, is of such character as only one inference can legally be drawn from the facts it is also a question for the court. But in many cases, especially where there is a conflict of testimony as to the nature and extent of the words used or the conduct involved, it is a question of fact to be determined from all the circumstances of the case. In either event the purpose of the law is to ascertain the intent of the parties, and when so ascertained, such intent is conclusive if it can be made so without conflict with established rules of law. Whitney v. Wyman, 101 U. S. 392, 26 L. Ed. 1050; Worthington v. Cowles, 112 Mass. 30; Phinizy v. Bush, 129 Ga. 479, 59 S. E. 259; Mechem, § 1422.

Therefore we cannot say that the action of the court in sustaining the alleged special exception was not prejudicial error, and that if the question of fact had been submitted to the jury as to whether it was the intention of Neely and Hoffman that if the plaintiffs would pay the draft and accept the apples, Neely would be personally responsible for any loss sustained, or if the language used by I-Ioifman was reasonably susceptible of such construction, even though in fact he did not intend to pledge his personal responsibility, hut Hoffman understood that he did intend to pledge his personal responsibility and acted thereon, that the jury would not have so found. The fact that an agent did not intend to pledge his own responsibility will not itself relieve him if the circumstances warrant the construction that he did so intend. Mechem, § 1423; McConnell v. Holderman, 24 Okl. 129, 103 Pac. 593. Por the reasons mentioned, it is the judgment and order of this court that the judgment of the trial court be reversed, and the cause remanded for a new trial in accordance with this opinion.
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