author: HARPER, J. DAVIDSON, J. HARPER, J.

text:
    MILLNER v. STATE.
    (No. 3200.)
    (Court of Criminal Appeals of Texas.
    June 26, 1914.
    On Motion for Rehearing, Oct. 14, 1914.)
    1. Criminal Law (§ 621

      ) — Trial—Discretion of Court — Order in Which Defendants are Tried.
    Under the express provisions of Code Cr. Proc. 1911, art. 727, where two defendants, separately indicted as accomplices to the commission of the same crime, each filed affidavits asking that the other be first tried, it was in the court’s discretion to direct which one should be tried first.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1382, 1387; Dec. Dig. § 621.]
    2. Affidavits (§ 5) — Powers of Justices of the Peace.
    A justice of the peace is authorized to take affidavits.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 18-27; Dee. Dig. § 5.]
    3. Criminal Law (§ 1167) — Appeal—Harmless Error — Former Jeopardy — Cure by Veedict.
    A bill of exceptions, which shows that the defendant was indicted on two counts, one charging him as an accessory and the other as an accomplice, that at a former trial defendant was convicted on the second count, which conviction was reversed on appeal, whereupon defendant filed a plea of former jeopardy to the first count, which was overruled, presents no reversible error, where he was again convicted as accomplice and no testimony was admitted which was not admissible under the second count.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3101, 3103-3106; Dec. Dig. § 1167.]
    4. Criminal Law (§ 543) — Evidence—Former Testimony of Absent Witness.
    Evidence that the last time a witness for the prosecution was heard from he was in France, that he was a fugitive from justice, and that the sheriff holding the capias for him, had made diligent search and had not been able to locate him, is sufficient to authorize an introduction of the testimony given by such witness at the preliminary examination.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1233, 1236; Dec. Dig. § 543.]
    5. Criminal Law (§ 542) — Evidence—Former Testimony of Deceased Witness.
    Where it appears on the second trial of a criminal prosecution that a witness, who testified at the first trial, has died in the meantime, his testimony at the former trial may be reproduced.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1232, 1236; Dec. Dig. § 542.]

      6. Criminal Law (§ 528) — Evidence—Declarations or Codefendant.
    In the trial of one charged as accomplice to murder, declarations made by the principal are not admissible on behalf of the defendant, since the principal himself is not permitted to testify on behalf of such accomplice under Code Cr. Proc. 1911, art. 791.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1002-1010; Dec. Dig. § 528.]
    7. Criminal Law (§ 829) — Triai-Request-ed Instruction — Instruction Already Given.
    Where the charge of the court presents all the_ issues fairly and fully, and in a way to which the defendant makes no objection, it is not error for the court to refuse special charges requested by defendant.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2011; Dee. Dig. § 829.]
    8. Homicide (§ 300) — Instructions—Prosecution of Accomplice — Self-Defense of Principal.
    In a prosecution of one charged as accomplice to murder, where the principal claimed self-defense, and there was evidence on behalf of defendant tending to show that the principal was a young man, small, sickly, and weak, the charge that the jury, on the issue of self-defense, might take Into consideration the relative strength .of the parties, was proper.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    9. Criminal Law (§ 673) — Prosecution of Accomplice —Evidence — Confession of Principal.
    In the trial of one charged as accomplice to murder, the written confession of the principal, voluntarily made, and admissible against the principal, is also admissible against the accomplice, if limited by the instructions to the sole purpose of showing the guilt of the principal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. •§ 673.]
    10. Homicide (§ 163) — Evidence—Prosecution of Accomplice — Irrelevant Matters.
    In the trial of one charged with being an accomplice to the murder of the husband of a woman with whom the defendant had had illicit intercourse, evidence offered by defendant that the deceased had had illicit intercourse with another woman was inadmissible, since such misconduct would furnish no justification.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 310-317; Dec. Dig. § 163.]
    11. Criminal Law (§ 595) — Continuance-Absence of Witness — Competency.
    The absence of a witness, who would not have been competent to testify for the defendant in a criminal case, furnishes no ground for a continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. § 595.]
    12. Criminal Law (§ 594) — Continuance-Absence of Witness — Probability of Attendance.
    Where a criminal case has been pending for some time, the absence of witnesses, whose residences the defendant admits are unknown, is not sufficient ground for continuance, since there is no probability that their attendance -could be procured for the next term.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1321, 1322, 1332; Dec. Dig. § 594.]
    13.Criminal Law (§ 598) — Continuance-Absence of Witness — Diligence.
    A defendant is not entitled to a continuance of a second trial on the ground of absence of witnesses, who are not shown to have been in attendance at the former trial, where no process had been issued for them since that trial to secure their attendance at the second trial.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 1335-1341; 598.] see Criminal Dec. Dig. §
    14.Criminal Law (§ 595) — Continuance-Absence of Witness — Materiality.
    In the trial of one charged as accomplice to murder, testimony of the principal’s father that the principal was a grown man a year older than the accomplice is not material, and the absence of the principal’s father is not ground for continuance.
    [Ed. Note. — For other cases, see ’Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. § 595.]
    15. Criminal Law (§ 596) — Continuance-Absence of Witness — Cumulative Testimony.
    The absence of a witness, whose testimony would be merely cumulative as to a fact which was undisputed, furnishes no ground for continuance of a criminal case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dee. Dig. § 596.]
    16. Criminal Law (§ 595) — Continuance-Absence of Witness — Materiality.
    In the trial of one charged as accomplice to the murder of the husband of the woman with whom defendant had had illicit intercourse, the evidence as to why defendant separated from his wife is inadmissible, and the absence of a witness, who would testify thereto, furnishes no ground for a continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. § 59k]
    17. Criminal Law (§ 595) — Continuance-Absence of Witness — Character Witness.
    The absence of a witness who would testify as to the character of a defendant in a criminal trial furnishes no ground for a continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. § 595.]
    IS.Criminal Law (§ 595) — Continuance-Absence of Witness — Materiality.
    In the trial of one charged as accomplice to the murder of the husband of a woman with whom defendant had had illicit intercourse, where the defense claimed robbery was the motive of the principal in committing the crime, evidence that at one time the principal attempted to pick another’s pocket was immaterial, and the absence of a witness who would testify to that fact, and furnished no ground for continuance. '
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311,1323-1327; Dec. Dig. § 595.]
    19. Homicide (§ 169) — Evidence—Materiality — Prosecution of Accomplice.
    In the prosecution of one charged as accomplice to the murder of the husband of a woman with whom defendant had had illicit intercourse, evidence that the deceased’s wife knew that her husband had visited houses of ill fame was not material, and was properly excluded.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§.341-350; Dec. Dig. § 169.]

      20. Criminal Law (§ 1091) — Appeal—Harmless Error — Exclusion of Evidence — Cure by Other Evidence.
    A bill of exceptions complaining of the refusal to permit the defendant to answer a question as to what was done at a certain time, which does not state the answer which would have been made, but states that it was sought to prove that defendant and the wife of deceased, who were indicted as accomplices, had made no attempt at that time to induce the principal to commit the crime, shows no error, where defendant did testify fully as to that fact..
    [Ed. Note. — For other cases, see Criminal La w, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.)
    21. Criminal Law (§ 1170) — Trial—Misconduct of Prosecutor — Improper Question.
    In a prosecution of one accused as accomplice to murder, a question by the district attorney, asked the defendant on cross-examination, if he had not debauched the dead man’s wife, to which question the defendant’s objection was sustained, was not error, where the defendant had admitted illicit intercourse with the woman.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. § 1170.]
    22. Criminal Law (§ 1170) — Evidence — Trial of Accomplice — Declarations of Principal.
    In the trial of one charged as accomplice to murder, where it appeared that the principal came to accused the morning after the homicide, and was taken by defendant to his hiding place, and the defendant was allowed to testify that at that time he did not know that the deceased had been killed, it was not error to exclude testimony as to what the. principal said to the defendant on that occasion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. § 1170.]
    23. Homicide (§ 166) — Evidence—Motive.
    In the prosecution of one charged as accomplice to the murder of the husband of a woman with whom defendant admitted he had had illicit intercourse only a short time before the homicide, testimony that the intimacy had extended over several months, and that the defendant and the woman were desirous of marrying, was admissible to show motive.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.]
    24. Homicide (§ 162) — Evidence—Trial of Accomplice.
    In the trial of one charged as accomplice to murder, where there was evidence that defendant had borrowed a $10 bill to aid a friend, who was in trouble, to get out of the country, evidence that when the principal was arrested he had a $10 bill and defendant’s watch on his person was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 303; Dee. Dig. § 162.]
    25. Criminal Law (§ 368) — Evidence—Trial of Accomplice — Declarations of Principal.
    In the trial of one charged as accomplice to murder, declarations of the principal which are part of the res gestee of the killing are admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 812, 814, 815, 821; Dec. Dig. § 368.]
    26. Criminal Law (§ 1170%) — Appeal — Harmless Error — Misconduct of Prosecutor.
    The improper repetition of a question to which objection had been sustained in a different form is not prejudicial, where the question was not such as to tend in the least to show that the defendant had any connection with the crime.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170%.]
    27. Criminal Law (§ 721) — Appeal—Harmless Error — Misconduct of Prosecutor.
    Where the prosecuting attorney was permitted to ask defendant whether he had been informed at his preliminary examination that he could make a statement if he desired to do so, but was not permitted to ask whether he did make such statement, and the court, at defendant’s request, instructed the jury that defendant’s failure to make a statement at that time must not be considered by them, the fact of the failure to make such statement was brought before the jury by the defendant, and he cannot assign error thereon.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.]
    28. Criminal Law (§ 1171) — Appeal—Harmless Error — Statement by Prosecuting Attorney.
    In a trial of one charged as an accomplice for murder, where the codefendant, also indicted as accomplice, was not called to testify, a statement by the district attorney in the hearing of the jury that the codefendant was not a competent witness could not prejudice the defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.]
    29. Criminal Law (§ 957) — New Trial — Misconduct of Jurors — Improper Influence Inducing Agreement.
    A sworn statement by one of the jurors that he at first favored an acquittal and only agreed to a verdict of guilty after other jurymen told him they would join in a petition for a pardon after a certain time does not present a ground for new trial, since a juryman cannot thus impeach his verdict after he has been discharged.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig.. §§ 2392-2395; Dec. Dig. § 957.]
    30. Criminal Law (§ 954) —Appeal — Presenting Questions in Lower Court — Motion for New Trial.
    In a motion for a new trial in a criminal case every error upon which the defendant intends to rely should be presented to the trial court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2341, 2363-2367; Dec. Dig. § 954.)
    On Motion for Rehearing.
    31. Criminal Law (§ 1183) — Appeal—Modification of Erroneous Sentence.
    Where the trial court sentenced a defendant to a definite term instead of imposing an indeterminate sentence as required by law, the Court of Criminal Appeals will reform the sentence.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 3195-3198; 1183.] see Criminal Dec. Dig. §
    Appeal from District Court, Bee County; F. G. Chambliss, Judge.
    Howard Millner was convicted of being an accomplice to murder, and he appeals.
    Affirmed, and on rehearing sentence modified.

      J. Gus Patton, of Goliad, and I. A. Patton, of Alice, and John Baker, of Beeville, for appellant. G. E. Lane, Asst. Atty. Gen., for tlie State.

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

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

   HARPER, J.

This is the second appeal in this case, the opinion on the former appeal being reported in 162 S. W. 348. On this trial appellant was again convicted of being an accomplice to the murder, and his punishment assessed at 20 years’ confinement in the state penitentiary.

The evidence in the case is fully stated in the opinion of Presiding Judge Prendergast, and the concurring opinion of Judge Davidson on the former appeal, therefore we do not deem it necessary to restate the facts. Sufficient to say that the evidence for the state showed that appellant was criminally intimate with' deceased’s wife; appellant visited the camp of deceased on Friday during his absence, remaining at the camp Friday night, and he admits he had sexual intercourse with deceased’s wife that night, deceased being absent from the camp. Eli Pointer, who was convicted as a principal, was present at the camp Friday night, and kept the children of deceased and Mrs. Gos-nell in another tent, while appellant was with Mrs. Gosnell. Saturday morning Eli Pointer carried appellant to the railway station, and he took the train and went to Placedo. Gosnell returned home Saturday, and he and Pointer got in the buggy to go to the camp, and on the way to the camp Pointer killed Gosnell, shooting him in the back of the head three times. Pointer went to the camp, secured one of Gosnell’s horses, and also went- to Placedo, getting to the boarding house where appellant was stopping about daylight.

The state proved by Mr. Bailey that appellant had talked to him before the killing about getting Mrs. Gosnell a divorce, and had inquired about how much of the property they could get from Gosnell; by a witness that appellant on Saturday tried to borrow $30, saying at the time he wanted to aid a friend who was in trouble to escape; that he did borrow $10 from his boarding house keeper, and this bill was later secured from Pointer’s possession, as was also appellant’s watch; that he tried to employ another man, a Mr. Miller, to get rid of Gos-nell, and there were many other facts and circumstances which would authorize a jury to find that he advised, commanded, and encouraged Pointer to commit the offense, and the killing was committed under a prearranged agreement between Pointer and appellant, and the evidence fully sustains the verdict.

There are a large number of bills of exception in the record which is very voluminous, and we will take them up in the order in which they are presented in the record. In the first bill it is again contended that the court erred in placing, appellant on trial before Mrs. Gosnell was tried. Both appellant and deceased’s wife were indicted charged with being an accomplice of Eli Pointer in the killing of Mr. Gosnell. Appellant filed a plea asking that she be first tried, and she also filed a plea of severance, and asked that he be first tried. They being unable to agree, the court, in the exercise of the discretion conferred on him by law, entered an order placing appellant first on trial. Article 727 specifically provides that if two or more of such defendants make such affidavit and cannot agree on the order of trial, then the presiding judge shall direct the order in which the defendants shall be tried. The affidavit of Mrs. Gosnell was in conformity with the statute, and a justice of the peace, under our laws, is authorized to take affidavits.

In the next bill appellant files a plea of former jeopardy as to the offense of being an accessory to the crime. It appears by the record that the indictment contains two counts; one charging him with being an accomplice, the other charging him with being an accessory. On the former trial both counts were submitted, and he was convicted of being an accomplice. If on this trial appellant had been convicted of being an accessory, a more serious question would have been presented, for our decisions seem to hold that, when more than one count is contained in an indictment, a conviction- under either count is an acquittal of the other counts. But as appellant was again convicted of being an accomplice, the same offense for which he was convicted on the former trial, and no testimony was admitted which was not admissible to prove that he was an accomplice, no reversible error is presented by this bill, for in it and in no other bill is it attempted to be shown that any testimony was admitted which might tend to show that he was an accessory to the crime, and was not admissible on the issue of whether or. not he was an accomplice.

The third bill relates to the introduction of the testimony of Pete Miller, taken at the examining trial. On the former appeal this testimony was held admissible, and we see no reason to change our ruling. The evidence on this trial shows that the last time Miller was heard from he was in France, and there is' no suggestion that he has ever again set his foot in the United States. It further appears that he "was a refugee from justice, and the sheriff who held the capias for him had made diligent search and had not been able to hear from him or locate him since he was last heard from in France. We had this question before us in the case of Whorton v. State, 152 S. W. 1082, and Robertson v. State, 63 Tex. Cr. R. 216, 142 S. W. 533, Ann. Cas. 1913C, 440, and therein discussed in full the rules under which a dead or absent witness’ testimony can be reproduced, and we see no reason to reverse our holding. And under those decisions, it appearing that Mr. McBride is dead, and has died since the last trial of the case, there was no error in permitting his testimony at the former trial to be reproduced.

Again, it is contended that statements made by Eli Pointer to Lonnie Smith and others in regard to the killing of Mr. Gosnell should have been admitted. We do not think any one could or would contend that if Pointer himself was on trial such statements would be admissible in his behalf, nor could the state introduce them; he being in jail charged with being a principal in this offense. The law would not and does not permit him to testify in behalf of his codefend-ant, and if he could not testify if called as a witness, certainly statements made by him when he was incompetent as a witness are not admissible. We discussed this question at length in Wyres v. State, 166 S. W. 1150, and cited the authorities, giving the reason for the rule, quoting approvingly the law as laid down by Judge White in Long v. State, 10 Tex. App. 197:

“If he cannot testify in person, how can he state facts to others and thereby enable them to testify to matters wholly derived from Mm? To permit this would be to abrogate the law.” Article 791, C. C. P.

The court presented the issue of self-defense fully in his charge, other than it was contended that it was error to charge on the relative strength of the parties. No other objection to the charge at the time of the trial was made, and no other error attempted to be pointed out therein. The court instructed the jury that if Pointer in killing deceased acted in self-defense, appellant would be guilty of no offense, and should be acquitted, or if Pointer killed Gosnell for the purpose of robbing him, the jury should acquit appellant. Having presented all the issues fairly and fully, and in a way to which appellant’s counsel made no objections at the time the charge was submitted to them for their inspection, the bills complaining of the refusal of the court to give the special charges requested present no error.

As to the objection made that the court erred in instructing the jury to take into consideration the relative strength of the parties, it is without merit, for the record teems with evidence brought out by appellant that Pointer was a young man, small, sickly, and weak, and under such circumstanecs the charge was authorized.

Again, it is contended that the court erred in admitting the confession of Eli Pointer in evidence. This question was passed on in the former appeal in this case, and the confession held to be admissible. It was necessary on this trial to prove that Pointer was guilty of unjustifiable homicide, and all testimony going to show that fact if he was on trial would be admissible on this trial to prove that same fact, and we do not think that any one can contend that if Pointer was on trial the confession would not be admissible. Of course, it was admissible only to prove this—Pointer’s guilt—and not to prove the guilt of appellant as an accomplice, and had the court permitted it to be so used, it would present error. But the court properly limited the purpose for which said testimony was admitted, instructing the jury that same was admitted in evidence “for the purpose of showing and tending to prove that said Eli Pointer killed George Gosnell, and you will consider same for no other purpose in the case.” The contention that the jury would ignore such instruction and might consider it for other purposes cannot be sustained in the face of such positive instructions.

In the record there are several bills of exception complaining that the court erred in refusing to permit defendant to prove that George Gosnell, deceased, had been having illicit relations with a negro woman. If he had, this would furnish no justification for killing him by appellant and Pointer. Such facts would shed no light on any issue in this case, and the court correctly held it inadmissible.

The eleventh bill complains of the action of the court in overruling his fourth application for a continuance. If Mrs. Gosnell had been present, she would not have been a competent witness for defendant. The statute prohibits her testifying in his behalf, and nearly all the other witnesses sought to continue the case for he admits their residences are unknown. This case has been pending since February 12, 1912, and if in that length of time he has not succeeded in locating them, he has not used the diligence required by law, or could not reasonably expect to locate them by the next term of court.

As to the witnesses whose residence he gives, he does not show that they were all in attendance at the former trial of this case, or that any process had been issued for them since that trial in time to secure their attendance at this trial, but if due diligence had been used to secure the attendance of those witnesses whose residence is given, is their testimony admissible or material?

By Pointer’s father he only states he expects to prove that Eli was a grown man, and a year older than appellant. That would be material to no issue on the trial of the case. Mr. Hurst’s testimony would not be admissible, as Mrs. Gosnell was not a witness in the case.

The fact that deceased Gosnell was drinking on the day he was killed is proven by all the testimony, and is an undisputed fact, and the testimony of the witness Eagan would be but cumulative, and furnishes no ground in the fourth application for a continuance. The facts he states he expects to prove by Mrs. George Simmons were proven by the state by her husband, and is a fact amply proven by the record, and such facts were relied on by the state, and were not and could not have been beneficial to the defendant on, any issue in the case.

The testimony of Albert Max, as to why appellant separated from ‘his wife, would have been admissible on no issue made by ibis record.

The other witnesses named, one a character witness as to appellant, and the other a witness to the fact that Pointer at one time placed his band in bis (Small’s) pocket, when he woke up, furnishes no ground for a continuance under the issues involved in this trial, and the court did not err in overruling the application.

There is no merit in the contention that appellant should have been permitted to prove that Mrs. Gosnell was aware that her busband visited a house of ill fame while they were in Victoria. He may have been a libertine, but this did not authorize bis murder. Mrs. Gosnell may have had grounds to separate from ber busband, but this would not authorize a conspiracy to be entered into to have him killed by Pointer. In so far as this record discloses, be bad never done Pointer any injury, or gave him cause or excuse to kill him, nor gave appellant any ground to conspire with Pointer, if be did do so.

Appellant contends in bill No. 14 that he was not permitted to answer the following question, “What was said and done, if you remember, between you all?” referring to the Friday night before the homicide on Saturday evening when be visited Gosnell’s camp. The record discloses that the court permitted appellant to testify:

“I made no effort to procure Eli Pointer on that night to kill George Gosnell. I never offered Eli Pointer money for the purpose of killing Gosnell; never mentioned nothing about killing Gosnell at all. I never gave Eli Pointer two bits with which to buy cartridges. I did not offer Eli Pointer $500 to kill Gosnell, nor did I at the same time tell him that I would pay his attorney’s fees if he got caught up with. I never had anything to offer him or even to give him. I did not offer to give Eli Pointer on that night $500 for the purpose of killing George Gosnell. I did not promise to procure for him his lawyers, in ease he did the killing, to defend him, and I did not tell him that Sirs. Gosnell and I would swear him out of the trouble he would get into by killing Geo. Gos-nell; there was not anything mentioned about killing Gosnell at all. There was nothing mentioned about the death of Gosnell the next morning. After Pointer had gone to his tent, I did not go with Mrs. Gosnell or separate from Mrs. Gosnell and go to his tent and wake him up and have a conversation with him there about the death of Gosnell. I did not mention at any time to Eli Pointer that he had better kill Gosnell or Gosnell would kill him if he did not. I was friendly with Gosnell. I never at any time said to Eli Pointer, ‘Eli, I am the best friend you have on earth, and you had better take the $500 and go and kill him.’ I never said, ‘If you don’t, he will be as sure to kill you, as we are both -living.’ I did not tell Eli Pointer to kill Gosnell, and when he did to get on a horse and meet me in Placedo; there was never nothing said about killing Gosnell, never at any time, between me and Eli Pointer and Mrs. Gosnell, or anybody else, nor between me and Pete Miller.”

Tbe bill does not state wbat answer tbe witness would bave given to tbe question propounded, but in tbe bill it is said tbe defendant desired to testify that be nor Mrs. Gosnell bad made no effort to get Pointer to kill Gosnell. As shown above, tbe court did permit appellant to testify fully on that issue.

By the next bill it is shown that the district attorney asked appellant if “be bad not debauched the dead man’s wife.” The court promptly sustained appellant’s objection to the question, and instructed the jury not to consider it. As appellant in bis testimony on direct as well as on cross examination admitted be bad bad illicit intercourse with deceased’s wife, under such circumstances the bill presents no error.

As the state bad proven that Pointer killed Gosnell late Saturday evening, and that be at once left and went to the boarding house where appellant was stopping, called for him, and appellant gave him his breakfast, and then carried him across the lake, where be was in biding, appellant desired to testify all what Pointer told him at the time, but the court declined to permit him to do so, but did permit him to testify:

“I saw Pointer at Geo. Simmons that morning after day light, between 6 and 7, I guess. I was arrested in this matter Sunday evening, the day after Gosnell was killed on Saturday. I did not know on Sunday morning when I talked to Pointer that Gosnell was dead. I did not know on Sunday morning that Eli Pointer killed George Gosnell. I got some money from Shelley Barber, and at the time I was talking to Shelley Barber I did not know that George Gosnell had been killed by Eli Pointer, nor that Gosnell was dead. I did not know at that time that Eli Pointer was making or attempting to make his escape from the charge of murdering Gosnell or any other party. I had not the least idea that Pointer was dodging for the offense of murdering George Gosnell or anybody else. I did not learn of George Gosnell being dead until after I was arrested. I learned of his death something like 5 o’clock Sunday evening. I learned of the death of Gosnell when I was arrested. This was the first time I knew of the death of Gosnell.”

It appears from the record that every one else about there seems to have known that Gosnell had been killed except appellant, but be that as it may, it is seen that appellant was permitted to testify that be knew nothing of the transaction, and the additional fact be says be desired to testify to would have added no strength to bis testimony as tending to show that he was not an accomplice to the crime.

As appellant contended that be was not criminally intimate with Mrs. Gosnell until just a short time before the homicide, it was permissible for the state to show that this intimacy bad extended over several months, as tending to show a motive for the homicide as this testimony, together with the testimony of Mr. Bailey, tended to show that appellant and Mrs. Gosnell were desirous of assuming the relationship of husband and wife, and the only thing in the way was the deceased, Mr. Gosnell.

There was no error in permitting it to be proven that the sheriff secured a $10 bill from Pointer while in jail. The evidence for the state shows that appellant was trying to borrow money to aid a friend, who was in trouble, to get out of the country; that he did secure a $10 bill from Mr. Geo. Simmons, and the fact that a bill of this denomination, together with appellant’s watch, was in possession of Pointer, was a cogent circumstance in the case.

What Eli Pointer told Charlie Fagan was res gestae of the killing, and admissible. The court did not permit the witness to testify what Mrs. Gosnell said at the time, and while it was improper to repeat the question in different forms, yet the questions were not of the nature to be prejudicial, and they could not, by any stretch of imagination, tend in the least to show that appellant had any connection with the killing. The cogent circumstances in this connection are that Pointer admitted to Fagan he had killed deceased; that he left the camp almost immediately on one of deceased’s horses, and the next place we hear of him at daylight next morning he is at appellant’s boarding house, inquiring for him, and appellant proceeds to place him in a place of concealment, and when discovered he had appellant’s watch, and apparently the money appellant had borrowed to aid a friend who was in trouble to escape from the country.

Pete Miller was the witness who was shown to be in France, and his testimony, given at the examining trial, was admitted in evidence. In this testimony Pete Miller stated that on Saturday night, the evening of the homicide, appellant asked him to go with him to the railroad station, stating he expected Eli Pointer on the train that night. Appellant denied this on the stand, and testified that while he and Pete Miller did go to the Plaeedo depot that night, they went there to get beer for themselves and Geo. Simmons, that he did not go there to get Eli Pointer, and that he did not tell Pete Miller •that was his mission. On cross-examination the state asked him if he was not present when Miller testified, if his attorney was not present, and if he did not hear Miller 'testify, all of which appellant admitted; then the district attorney asked him why he did not ask Miller if their mission was not to buy beer for themselves, and for George Simmons, instead of going to meet Eli Pointer. The only reason appellant gave was that he had just employed his attorney, and that he did not then inform his attorney that they had gone to Plaeedo station to buy beer. Appellant was asked if he was told by the justice of the peace that he had a right to make a statement if he desired to do so, and he answered that he was so told. The bill does not disclose that appellant was asked whether or not he did make a statement, but the objection made is that the question as to whether or not he was told he could make a statement if he desired was a reference to the fact that he did not make a statement. The court says the district attorney was told that he could ask appellant as a witness the simple question if he was informed he had a right to make a statement, and it will end right there. Appellant then asked the court to instruct the jury in regard to the matter, as appellant contended it had been gotten before the jury that appellant did not make a statement at that time, and the court, at appellant’s request, did instruct the jury “that his failure to make a statement could not be used against him as evidence at all of his guilt or innocence on this trial. Tou will not consider it as being in evidence.” Had the fact that appellant did not testify at that time been elicited over appellant’s objection, it would perhaps present error. But the court very promptly sustained appellant’s objection before any such testimony was adduced, and if the fact got before the jury that appellant had not testified at the examining trial, it was by reason of the objections being made by appellant; and, under such circumstances, when the court instructed the jury not to consider the matter, we do not think it presents-reversible error.

In the condition this record is in'the fact that the district attorney stated in the hearing of the jury that Mrs. Gosnell was not a competent witness would not present error. The fact was made manifest that appellant could not call her as a witness, and the state did not do so, and certainly this could not be hurtful to appellant.

The fact that one of the jurors swears that he was at first in favor of an acquittal, and that he only agreed to a verdict of guilty, assessing the punishment at 20 years’ confinement in the state penitentiary, after the other jurymen had told him that, if appellant was given that punishment, after he had served 10 years, if he behaved himself, they would join in a petition for a pardon, presents no ground for a new trial. A juryman is not thus allowed to impeach his verdict after he has been discharged.

We have discussed' each of appellant’s bills of exception, although many of the claimed errors in the bills were not presented in the motion for new trial. In fact in the motion for new trial the only grounds alleged are that the court erred in overruling his fourth application for continuance; in refusing to grant his plea of former jeopardy as to the count charging appellant with being an accessory; that the court erred in permitting the testimony of J. W. McBride, who was shown to be dead, and the testimony of Pete Miller, who was in France the last time he was heard from, to be reproduced; that the court erred in not permitting appellant to give any conversations he had with any one in reference to the charge herein; that the court erred in not permitting the witnesses to testify what Eli Pointer told them while he was in jail charged with the offense; because the court authorized the jury to consider the relative strength of the parties, and because the court erred in refusing to give his special charges Nos. 1, 2, and 3, and because of the fact that a juryman made affidavit that he agreed to the verdict when the others promised to aid him in getting a pardon for appellant after he had served 10 years, there being only nine grounds in the motion, embracing only the above matters, and which alone the court was called on to consider in passing on the motion for a new trial. Yet, the court having adjourned on March 14th, some two months after court has adjourned, appellant prepares and files 23 bills of exception, some of them setting up matters upon which the court was not given a chance to act on in the motion for new trial. This is hardly fair to the trial court. In the motion for new trial everything relied on to secure a new trial should be presented po the trial court, and we hope in future this will be done. As appellant received a punishment almost equivalent to life imprisonment, we have reviewed each and every one of his bills of exception, yet in fairness to the trial judge, we should have only considered such matters as were presented to him as grounds why he should grant a new trial, for on these and these alone he based his ruling. While some of the matters complained of in some of the bills may, as herein shown, present minor errors, yet none of them could possibly have had any influence or bearing on whether or not appellant was an accomplice to the crime of murdering Gosnell. As said by appellant in the record, the fact is plainly manifest that Pointer killed him, and in our opinion the evidence, while circumstantial only, fully justified the jury in finding that appellant knew it would happen when it did; that he advised and encouraged Pointer in the commission of the offense, and when Pointer killed Gos-nell, he at once fled to appellant.

The judgment is affirmed.

DAVIDSON, J.

This case was submitted June 24, 1914. It is a very large record; .therefore I have not had the time to read the record. I express no opinion as to the questions involved.

On Motion for Rehearing.

HARPER, J.

Appellant in his motion for rehearing in this court, but reiterates his motion for new trial filed in the trial court. All these grounds were passed on in the original opinion. Appellant files no brief on his motion for rehearing, cites no authorities in support of his contentions other than were originally cited, and none of which, we think, show any grounds which should necessitate a reversal of this case. Our attention is called, however, to the fact that the court in passing sentence ignored the terms of the indeterminate sentence law, and passed on appellant a definite and fixed term of imprisonment. This he should not have done, but appellant should have been sentenced to a term of imprisonment in the penitentiary for not less than 5 nor more than 20 years. As this court is authorized to reform and correct judgments, it is ordered that sentence and judgment by the trial court be so reformed as to hereafter read that appellant bq confined in the penitentiary for a period of not less than 5 nor more than 20 years, and judgment so decreeing will be entered herein.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    HALFF CO. v. JONES.
    (No. 7168.)
    (Court of Civil Appeals of Texas. Dallas.
    June 27, 1914.
    Rehearing Denied Oct. 17, 1914.)
    1. Principal and Agent (§ 23) — Existence of Relation — Sufficiency of Evidence.
    In a suit to rescind the purchase of an automobile because of false representations, evidence held to show that the purchaser did not know that a dealer in automobiles was not defendant’s agent, but, on the contrary, to show that defendant, by its conduct, led him to believe that such agency existed.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 41; Dee. Dig. § 23.]
    2. Principal and Agent (§ 25) — Estoppel to Deny Agency — Fraud.
    Where, upon the sale of an automobile, defendant failed to inform plaintiff that a dealer was not its agent, but an independent dealer buying and reselling cars, and participated in the sale of the car, guaranteed that it would give satisfaction, and made false representations relative thereto, knowing that the dealer did not want the car for himself, but only for the purpose of selling it to plaintiff, and, if there was in fact a sale by defendant to the dealer, this was but a step in the sale of the car, and the title at once passed to plaintiff, and plaintiff did not know of the sale to the dealer, defendant could not deny that the dealer was its agent, and the rule that rescission cannot be invoked against a third party, upon whose fraudulent representation a purchase was induced, has no application.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 42-45; Dec. Dig. § 25.]
    3. Sales (§ 202) — Operation and Effect— When Title Passes.
    Where a sale is a cash transaction, and neither party intends that title shall pass until inspection and acceptance and payment of the purchase price, the title does not pass until such payment.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 542-551; Dec. Dig. § 202.]
    4. Appeal and Error (§ 1054) — Harmless Error — Admission of Evidence.
    The admission of evidence, if error, was harmless, where appellant proved substantially the same fact by its own witnesses, especially where the case was tried before the court without a jury, and such evidence was not necessary to support the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4185, 4186; Dec. Dig. § 1054.]
    5. Sales (§ 38) — Rescission for False Representations — Effect of Good Faith.
    Where the seller of an automobile represented that it was first class in all respects, that it was a 30 horse power automobile, and that it would develop as much or more power than any other 30 horse power car on the market, and that, if it would not go to plaintiff’s home on high gear, it would not be his car, and the trade might be rescinded, such representations being false, the fact that they were made in good faith in the belief that they were true did not prevent a rescission.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 65-77, 85 ; Dec. Dig. § 38.]
    6. Sales (§ 38) — Rescission — Grounds — Worthlessness for Known Purposes.
    Where an automobile was defective, and practically worthless for operation over the roads over which the purchaser, to the seller’s knowledge, intended to operate it, he was entitled to rescind and recover back the purchase price.
    [Ed. Note. — For other cases, see Sales, Gent. Dig. §§ 65-77, 85; Dec. Dig. § 38.]
    7. Sales (§ 279) — Warranty to Give Satisfaction — Determination by Purchaser —Conclusiveness.
    Where the seller of an automobile guaranteed that it would give satisfaction, the purchaser’s determination that the guaranty was not complied with, made in good faith, was conclusive, since the sale was but a sale on approval.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 783-792; Dec. Dig. § 279.]
    8. Sales (§ 391) — Rescission—Recovery of Purchase Price.
    Upon a purchaser’s rescission, of the purchase of an automobile, for false representations, he was entitled to recover the entire consideration from the seller, though the difference between such consideration and the factory price of the car was paid to agents as commissions, and though the seller may not have actually received any of the purchase price.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1110-1127; Dee. Dig. § 391.]
    Appeal from District Court, Hunt County; C. L. Elder, Special Judge.
    Action by H. E. Jones against the Halff Company and another. From a judgment for plaintiff, the defendant named appeals.
    Affirmed.
    Alex F. Weisberg and Thompson, Knight, Baker & Harris, all of Dallas, for appellant. Clark & Leddy, of Greenville, for appellee.

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

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

   TALBOT, J.

Appellee, H. E. Jones, brought this suit in the district court of Hunt county, Tex., against appellant, the Halff Company, and against Beall Hardware & Implement Company, alleging that the Halff Company is a partnership composed of G. A. C. Halff and Melville Levy, and in business in the city and county of Dallas, Tex.; that the Beall Hardware & Implement Company is its agent in Hunt county, Tex.; that plaintiff was induced to buy a certain automobile from the Halff Company by divers false representations, guaranties, and warranties; that said representations, guaranties, and warranties were made by the agents of the Halff Company, acting within the scope of their employment, or by persons held out by the Halff Company to plaintiff as being its agents; that as soon as he discovered their falsity, and that the automobile could not be made to come up to said representations, guaranties, and warranties, he tendered back the said automobile to the defendants, who refused to receive the same. Plaintiff in his pleading further tenders back said automobile, dis-affirms said contract of sale, seeks a rescission thereof, and judgment for the purchase price of the automobile, which he alleges was $1,675. He does not allege any cause of action for deceit or in the nature of deceit. Plaintiff also seeks judgment for rescission against the Beall Hardware & Implement Company in the event it should be held that the latter was not the agent of the Halff Company. Defendant the Halff Company denied that it, or any one acting with its knowledge or authority, real or apparent, made any false representations, guaranties, or warranties with reference to said automobile. It denied further that said automobile was sold by it to Jones, or by any one acting as its agent, real or apparent, or by any one held out by it to be its agent, and denied in detail the various allegations in plaintiff’s pleadings contained, and alleged further that plaintiff was precluded from-rescinding the sale of said automobile, for that he has used and operated same for a considerable period of time after knowing and realizing its alleged defects. The Beall Hardware & Implement Company answered, and práyed that, if plaintiff procured judgment of rescission against it, a like judgment be rendered in its favor against the Halff Company; but, as no judgment for or against it was rendered, its pleadings become Immaterial. The case was tried without a jury, and judgment rendered by the court on November 25, 1913, in favor of the plaintiff, rescinding the contract of purchase of said automobile, and giving plaintiff judgment against defendant the Halff Company in the sum of $1,675, and decreeing said automobile to defendant the Halff Company. It was further adjudged that plaintiff take nothing against the defendant the Beall Hardware & Implement Company, and the latter was given no judgment against the Halff Company. From the judgment rendered, the Halff Company appealed.

At the request of the appellant, the trial judge prepared and filed conclusions of fact and law. The conclusions of fact are as follows:

(1) A short time prior to December 28, 1913, plaintiff, being then the owner of a Buick automobile, and desiring to get a better and a more up-to-date car than the one he owned, applied to Bob Mitchell, the owner of a garage in Celeste, where the plaintiff lives, and told Mitchell that he would like to have a better and more “classy” ear. Prior to that time plaintiff had been in Dallas, had gone through the salesroom of the Halff Company, defendant herein, and had been shown some of its Chal-mers cars and literature. He told Mitchell that he was impressed with the Chalmers car. Mitchell was an agent for another kind, but was not an agent for the Chalmers. He undertook, however, to get the Chalmers agency and was referred by the company in Detroit to the Halff Company at Dallas. He applied to the Halff Company, and was told by it that the defendant Beall Hardware & Implement Company' was its agent, and referred Mitchell to the last-named company. Mitchell took the matter up with that company, and it was agreed that, if a sale was made, the “commissions” should be divided between it and Mitchell.

(2) After Mitchell and the Beall Hardware & Implement Company had the agreement about “the commissions,” Bert Beall, president and manager of that company,-went to Celeste, and he and Mitchell began negotiations with plaintiff, looking to the sale of a Chalmers car. They examined plaintiff’s Buick car, agreed that it was worth $550, and proposed to accept it at that amount in part payment for any Chalmers car plaintiff might purchase. With this understanding plaintiff delivered to them 'the said Buick car, and the same was at that time of the reasonable cash value of $550.

(3) Plaintiff having explained fully the kind of a car he desired — a 4 cylinder, 4 passenger, 30 horse power car, one that was light and would climb hills, pull over rough roads, and in which he could get about easily and quickly in the black land country where he lives — said Beall phoned to defendant Halff Company to ascertain if they had on hand a 4 cylinder, 4 passenger, 30 horse power Chalmers. Being informed that they had such a car, plaintiff and Mitchell soon thereafter went over to Dallas to inspect the car, and, if satisfactory plaintiff was to pay therefor, and they were to bring it home.

(4) While in the salesroom of the Halff Company at Dallas, and before the car was brought out, Melville Levy, a member of the firm of the Halff Company, stated and represented to the plaintiff that the Chalmers 4 cylinder, 4 passenger, 30 horse power car (the car then under negotiations) was first-class in all respects; that it was a 30 horse power car, would develop as much or more power than any other 30 horse power car on the market; that it would climb hills and pull through sand easily and smoothly; and further stated in effect that if said car, when purchased, would not go from Dallas to Celeste on high gear, it would not be plaintiff’s car; that the trade might be rescinded. The ear was brought to the salesroom to be delivered, but it began raining, and for that reason was not taken at that time. On the following Sunday Mitchell returned to Dallas and drove the car to Celeste and delivered it to the plaintiff. I further find that plaintiff relied on each and all of said statements and representations, and would not have purchased or paid for the car if they had not been made.

(5) The car was defective and failed to be as it was represented. It did not give satisfaction, and could not be made to give satisfaction to the plaintiff, and was in fact entirely worthless for the purposes for which he purchased the same, and these purposes were made known to both defendants before the contract of purchase was made. '

(6) As soon as the car reached Celeste, both defendants were notified of the fact that the car was defective and not as represented. The defendant Halff Company immediately sent an expert mechanic to remedy the defect, but he failed to do so. This was repeated five or six times, with the same result, until plaintiff, finally becoming satisfied that it was useless to wait longer for defendants to remedy the trouble (that it could not be remedied), tendered the car back to defendants and demanded the payment of the amount he paid for the same, to wit, $1,675. This defendants refused to repay, and plaintiff has, since then, held the car subject to the orders of defendants and has not used the same. Under the circumstances, the car was tendered back within a reasonable time.

(7)I find that each of the defendant companies represented to plaintiff that the Beall Hardware & Implement Company was the agent of the Halff Company, and that the plaintiff did not know either actually or constructively of any limitation of the power of such agent or of the existence of any contract defining their relationship, and that, in purchasing the automobile in question, plaintiff acted in the belief that said agency existed.

(S) I find that, in the negotiations leading to the contract of purchase, the Beall Hardware & Implement Company made only such representations respecting the car as the literature of the Halff Company contained respecting the same, but I further find that the car was not as represented by such literature.

The conclusions of law filed, by the court are as follows:

(1) “That the plaintiff is entitled to rescind the contract and recover the purchase money paid by him for the automobile in question, with six per cent, interest thereon from January 1, 1913.”
(2) “I further conclude that plaintiff is entitled to recover said sum from the defendant the Halff Company alone, but, if necessary, 1 would hold that he is entitled to recover the same against the Beall Hardware & Implement Company. In that event, however, I would hold that the latter company is entitled to recover the amount from the Halff Company on its cross-bill. I therefore deem it unnecessary to render any judgment against the Beall Hardware & Implement Company. I accordingly enter judgment for the plaintiff for the sum of $1,675, together with 6 per cent, interest thereon from January 1, 1913, against the Halff Company, and that plaintiff take nothing against the other defendant.”

Appellant’s several assignments of error complain of the admission of certain testimony, over their objections, and challenge the sufficiency of the evidence to authorize the court’s findings of fact and to support the judgment rendered. These assignments will not be stated and discussed in detail. The court’s conclusions of fact were, in our opinion, authorized by the evidence, and they are adopted by this court. We are also of the opinion that the pleadings of the plaintiff and the facts found >by the court warranted the judgment rendered. We agree in the main with the views expressed by counsel for the appellee in reference to the pleadings, and the evidence adduced and the law applicable thereto, and shall adopt largely their line of argument. We think, as contended by them, that as betwe'en appellant and the appellee, Jones, appellant is in no position to deny that the Beall Hardware & Implement Company was their agent in the transaction in question, even if it was not so in fact. If the Beall Hardware & Implement Company was only a “dealer,” and not thé agent, of appellant in the transaction, it devolved upon appellant, under tlie facts of the case, to show not only that fact but that appellee knew it when the sale was made. Appellant not only failed to do this, but, on the contrary, as is reasonably deducible from the evidence, led appellee by its own conduct to believe that the agency existed. The witness Mitchell, after testifying that he was engaged in the automobile business that appellee told him that he wanted a “classier” car than he had, and that he told appellee that he would write and get the agency for a better car, and that he had written to appellant for such agency, said, “They (the Halff Company, appellant) told me the Beall Hardware & Implement Company was their agent.” The appellant was selling the Chalmers ear, and appellee, Jones, went to Dallas to examine one, and, on cross-examination of him by the defendant Beall Hardware & Implement •Company, he testified, without objection, that he had “received information” before the trade that the Beall Hardware & Implement Company was such agent, and the fair and reasonable inference is that he got the information from appellant itself. After testifying about certain conversations with Beall and Mitchell at Celeste, when the negotiations for the purchase of the automobile began, appellee testified that he told Beall and Mifchell that he would go to Dallas, and on the car talk to the Halff people about it, and, if he found it to be what he wanted, he would take it; that several days thereafter Mr. Levy, of the Halff Company, phoned him as follows:

“We have got a car down here I understand you want. When are you coming down to look at it?”

And that he replied:

“Just as soon as the roads dry, and I think I have got a little show.”

He further said:

“I was in Dallas by myself when I saw the Chalmers car the first time. I received information that the Beall Hardware & Implement Company had the agency for the Chalmers cars in this county.”

He further said:

“The Halff Company never did say to me what their relations were with the Beall Hardware & Implement Company further than they said, ‘We will phone Beall.’ They phoned Beall that evening, but didn’t say anything about their relations. When the trade was made (at Celeste), Mr. Beall phoned Mr. Levy about the car.”

Bert Beall testified:

“My first connection with this Jones transaction was Mr. Mitchell, phoned me and says, T have got a customer for a Chalmers car;’ and says, ‘If you will come up here I believe we can sell a car;’ and says, ‘He has a Buick, and wants us to take it in on it;’ and I says, ‘All right, I will come up.’ I don’t know that he said anything over the telephone about a commission for him, but he did that later. I then went to Celeste. I think Mr. Mitchell said he had taken it up with the Halff Company, and they stated we were agents for it in Hunt county, and any sales would have to be made through us. I think this conversation took place between Mr. Mitchell and Mr. Jones and I, in which Mr. Mitchell stated he had written the Halff Company, and they stated that we were agents of the Halff Company for Hunt county. I acted as though we were agents and nothing else, and never said anything about any limitations on my power or authority. In taking the agency for this car, I had their literature.”

Mitchell testified, without objection, as follows:

“Xes, sir; I made an effort to get the agency of the Chalmers car before I phoned Mr. Beall, but I did not succeed. If I am not mistaken, I tried to get the agency from the Chalmers people at Dallas, and learned that the Beall Hardware & Implement Company already had the agency, and knew that fact when I called Mr. Beall. In that conversation with Mr. Beall I asked him if I sold Mr. Jones a Chal-mers if he would make a division of the commission with me, and he agreed to that and did so.”

Under the foregoing and other facts shown in the record, appellant should not be heard to deny, as against appellee, that the Beall Hardware & Implement Company was its agent in the sale of the automobile and allowed to defeat a rescission thereof on the ground that the sale was made by it to Beall Hardware & Implement Company, and not to appellee. As argued by counsel:

“Having stated that Beall Hardware & Implement Company was its agent, having failed to disclose the actual relations, having participated in the sale of the car to appellee with Mitchell, to whom it had made the statement, having guaranteed to appellee that the car would give satisfaction, and made to appellee the representations upon which appellee relied in making the purchase, knowing that Beall did not want the car for himself, but was only doing what he did that the sale to appellee might be made, it seems idle to argue that appellant can escape the consequences of its own acts and its own deliberate agreement made directly to appellee himself, merely because the Beall Company may not have been technically its agent under the special contract appellee knew nothing about.”

The sale was a cash transaction, and it is plain from the facts in the case that neither party thereto intended that the title to the autonjobile should pass until the car was inspected and accepted by appellee and the purchase money paid. In such a case it is the well-settled rule in this state that title does not pass, in the absence of proof of a contrary intention, until the purchase money is paid.

In Victor Safe & Lock Co. v. Texas State Trust Co., 101 Tex. 94, 104 S. W. 1040, our Supreme Court, speaking through Mr. Justice Williams, said:

“In some jurisdictions the right of property is held to pass with the delivery unless at the time the right to retake is expressly declared by the selleV. We have not gone so far. Orneases proceed on the theory that until payment has been made, or waived, the contract remains executory, and that delivery in such case is not a completion of the contract, except as an intention to so regard it, as expressly declared or can fairly be inferred from the circumstances attending.”

The evidence is sufficient to justify the conclusion that the Beall Hardware & Implement Company liad no desire to purchase the automobile in question on their own account; that they had never seen it, and were acting solely in the transaction in order that the sale might be made to appellee, Jones, and that appellant knew this to be true. Indeed, it is clear, we think, from the evidence, that there was in fact but a single transaction — a sale to Jones participated in by all the other parties — and appellant cannot avoid responsibility for its own acts and conduct, its own solemn obligation, by pleading a private agreement between it and Beall. If title to the automobile ever in fact passed to the Beall Hardware & Implement Company, such passage of title was but a step in the sale to ap-pellee, Jones, and title likewise at once passed to him. It is plain that appellee Jones knew nothing of any sale to the Beall Company, and that in truth and in fact the real transaction was a sale made by appellant itself to the appellee upon condition that the car gave satisfaction to him. The general rule, therefore, that rescission cannot be invoked against a third party, upon whose fraudulent representations a purchaser has been induced to buy, has no application. There is not a particle of evidence in the record, so far as we have been able to discover, that appellee knew anything at all of a sale, if there was such, from appellant to the Beall Hardware & Implement Company, and it seems undisputed that appellee knew absolutely nothing of the special contract with Beall of that company or of any limitation on Beall’s authority. Appellant admits, as we understand, that it guaranteed that the automobile would give satisfaction to ap-pellee, and we think the conduct of appellant clearly indicates that it was it making the sale to appellee.

We discover no reversible error in the admission of the testimony to which appellant’s seventh, eighth, ninth, and tenth assignments relate. If this testimony was not admissible to prove that Beall Hardware & Implement Company was appellant’s agent in selling the automobile to appellee, or to show lack of knowledge on the part of appellee of the claim that appellant had sold the automobile to that company before appellee saw it and agreed to take it, then the error in admitting it was harmless, because appellant itself proved substantially the same facts by its own witnesses. Besides, the case was tried before the court without the intervention of a jury, and we do not understand that the evidence objected to was necessary to authorize and support the judgment.

We do not agree with the contention that the court erred in rendering judgment in favor of appellee against appellant for the reason that the statements which appellee attributed to Levy, a member of appellant’s firm, are shown by the undisputed evidence to have been made in good faith by the said Levy, and with every reasonable ground to believe that they were true when made, and hence do not constitute that character of fraud which would entitle appellee to rescission. “One may have a contract of purchase rescinded for false material representations on which' he relied and acted, though they were made in ignorance of their falsity,” and the intent of the party making the representation to induce a contract is wholly immaterial; the question is whether the other party has been misled and injured by the false representations. These declarations’ of the law are supported by numerous authorities, some of which we cite. Jesse French Piano & Organ Co. v. Nolan, 38 Tex. Civ. App. 395, 85 S. W. 821; Cabaness v. Holland, 19 Tex. Civ. App. 383, 47 S. W. 379; Carter v. Cole, 42 S. W. 369; Culbertson v. Blanchard, 79 Tex. 486, 15 S. W. 700; Ramey v. Allison, 64 Tex. 697; King v. McAdams, 145 S. W. 1032; Wilson v. Carpenter, 91 Va. 183, 21 S. E. 243, 50 Am. St. Rep. 824.

The representations in the instant case were that the automobile purchased by appellee was first-class in all respects; that it was a 30 horse power automobile, would develop as much or more power than any other 30 horse power car on the market; and that, if it would not go to Celeste on high gear, it would not be plaintiff’s car, and that the trade might be rescinded. The representations were relied on by appellee in purchasing the automobile, and were not true. The automobile, according to substantial testimony offered by appellee, was defective and practically worthless, at least for operation over the roads that appellant was informed it was to be operated over by appellee, and where he in fact intended to operate it. In addition to the representations referred to, appellant, it seems, expressly guaranteed that the car would give satisfaction. This being true, appellee’s determination of the matter, if made in good faith, was conclusive as to whether or not the guaranty had been complied with. This is so, because the sale of the automobile to him was but a sale on approval. But the law is that if the automobile was worthless for the purposes for which it was known to appellant to have been intended, and appellee, as soon as he discovered this fact, promptly notified appellant and tendered back the automobile, he was entitled to rescind the contract and to recover back the purchase money paid for it. Southern Gas & Gasoline Engine Co. v. Peveto, 150 S. W. 279. Without detailing it, we will say the evidence was sufficient to render applicable the principle of law above stated, and failed to show a waiver of appellee’s right to rescind the contract.

The judgment is not excessive.

“Having induced appellee to purchase the car upon false representations and upon an unqualified agreement that it should prove satisfactory to him, appellant must pay back the entire consideration paid by appellee, including the ‘commissions’ the other parties received.”

The pertinent facts on this phase of the case are that Jones paid $1,675 for the car —$1,125 in cash and a Buick car worth $550. This car was accepted as so much cash, and that amount was its cash market value. Beall was to divide the “commissions” with Mitchell on the sale of appellant’s car. The Buick was sold a “few days” after it was taken by them, and the proceeds divided according to their agreement. The “commissions” were the difference between $1,675, the retail price of the ear, and $1,475, the factory price appellant received. In other words, it was $200, and Mitchell received half of it So, as said by counsel for appellant, that whether appellant actually received any of the proceeds of the Buick automobile and of appellee’s cheek given in payment of the automobile in question is not material. The material fact is that it was paid for the automobile ; that it caused appellee to part with the entire consideration, the sum of $1,675; and the court properly gave judgment for that amount.

Our conclusion is that none of appellant’s assignments disclose any such error as requires a reversal of the ease, and the judgment is affirmed.


author: RAINEY, C. J.

text:
    PASCHAL et ux. v. HUDSON et al.
    (No. 7183.)
    (Court of Civil Appeals of Texas. Dallas.
    June 20, 1914.
    Rehearing Denied Oct. 17, 1914.).
    1. Cancellation of Instruments (§§ 25, 59) —Defenses—Fraud.
    While defendant, in an action to cancel a deed on the ground of his fraud, cannot plead plaintiff’s fraud to defeat a recovery, yet, where he has paid out money by reason of plaintiffs’ fraud, he may plead that fact and have it adjudicated in case a rescission is decreed.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 119-125; Dee. Dig. §§ 25, 59.]
    2. Appeal and Error (§ 1066) — Harmless Error — Instruction.
    In an action to cancel a deed on the ground of defendant’s fraud, where none of the issues submitted related directly to the question of fraud, a charge that, in order for the representation to be fraudulent in law, it must be made, knowing the facts to be untrue, with the intent to deceive and mislead the other party thereby, if error, was immaterial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.]
    3. Appeal and Error (§ 931) — Presumptions — Findings.
    In such action, where there was no complaint of the refusal of the court to submit the issue of fraud, and where the judgment for defendant was supported by the evidence, the presumption was that the court properly found on that issue.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3728, 3762-3771; Dec. Dig. § 931.]
    4. Fraud (§ 4) — “Fraudulent Representations” — Intent.
    It is not necessary to show that a party making fraudulent representations intended to perpetrate a fraud, but if they are such as to create a false impression, causing the other party to act believing them to be true, then, whether innocently made or not, such representations are fraudulent.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 2; Dec. Dig. § 4.]
    5. Cancellation of Instruments (§23) — Placing Other Party in Statu Quo.
    In an action to cancel a deed on the ground of the defendant’s fraud as to the indebtedness upon his stock of goods given in exchange, where it appeared that plaintiff took charge of the stock, and, though having knowledge of such misrepresentation, said nothing to defendant about rescission until the goods were sold and disposed of, and waited for about 12 months before bringing suit, so that it was impossible for the parties to be placed in statu quo, judgment was properly rendered for defendant.
    TEd. Note. — For other cases, see Cancellation of Instruments, Cent.Dig. § 32; Dec.Dig. § 23.]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by J. W. Paschal and wife against T. P. Hudson and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    Hugh W. Peek, of Dallas, for appellants. Wood & Wood, of Dallas, for appellees.

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

   RAINEY, C. J.

The statement of the case taken from appellee’s brief we find to be correct and is as follows:

“This suit was instituted in the district court of Dallas county, Tex., by the appellants, J. W. Paschal and wife, in April, 1912, against the appellees, T. P. Hudson, George Smith and wife, to cancel a deed made by appellant J. W. Paschal to appellee T. P. Hudson, on January 10, 1911, to certain 320 acres of land situated in Lynn county, Tex., and also a deed made by T. P. Hudson to his daughter, Mrs. George Smith, on May 12, 1911, to same land and to recover the land.
“The grounds for cancellation set up in appellant’s pleadings were: First. That the 320 acres of land was the separate property of Mrs. J. W. Paschal at the time appellant J. W. Paschal made the deed, and that his said wife did not join in its execution. Second, that he (J. W. Paschal) was a married man at the time he executed the deed, and that the land was at that time the homestead of himself and wife, and that his wife did not join in the execution of the deed. Third, that said land was deeded by appellant to appellee in exchange for a stock of goods, situated on Elm street, in the city of Dallas, and that appellee T. P. Hudson represented to appellant, at the time of the exchange, that the amount of the indebtedness against the goods amounted to the sum of $2,759.60, which plaintiff agreed to pay, and that in fact the indebtedness amounted to about $800 more. That the misrepresentation was fraudulently made to induce the appellant to make the exchange. The suit was filed more than one year after the deed was made. Fourth. That the deed from T. P. Hudson to his daughter, Mrs. George Smith, was without consideration, and that she had notice of the facts, rendering the deed from Paschal to Hudson void at the time the deed was made to her. There is no allegation in the amended petition, though filed nearly two years after the deed was made, that appellant ever, at any time, called for cancellation and offered to restore appellee to his former position, and no offer in said amended petition to return the goods to appellee or their value.
“The answer of appellees, stated briefly, involved a denial of all the material allegations in-the amended petition relating to the grounds set up for a rescission.
“The appellees further alleged that the appellant X W. Paschal falsely and purposely represented to him, at the time the deed was made, that he (Paschal) was an unmarried man, and that Hudson did not know he was married, and appellees further alleged that Paschal purposely misrepresented the amount of the indebtedness against the land, the fact that the notes were all mature, and fraudulently concealed from appellee Hudson the fact that suit was then pending in the district court of Fisher county, for the amount of all of the four notes, interest, and attorney’s fees, and that costs had been incurred, and that judgment was thereafter rendered on said notes for principal, interest, , attorney’s fees, and costs, and that the appellee Hudson did not learn of the pendency of the suit until after judgment, and the land was advertised for sale. When he learned of it, the appellee George Smith paid the amount, which was then $569.20; the same was paid by Smith May 1, T911, four months after the trade was made between Hudson and Smith.
“The cause was submitted to the jury on special issues. No request was made by appellant to submit any issue other than the court submitted. Judgment was rendered for the appellees, from which this appeal is taken.”

Appellant’s first and second assignments complain of the court’s action, in overruling his exceptions to paragraph 17 of defendant’s answer, which set up fraudulent representations made by appellant in the transaction, which caused appellee to have to pay attorney’s fees in a suit brought to foreclose the notes due on the land, and which appellee had assumed to pay in the transaction.

Appellant’s proposition is that:

“Defendant in a suit to cancel a deed to land given in exchange for other property conveyed, by defendant, the cancellation being sought on the ground of fraudulent representations, cannot retain the land and defeat a recovery on the ground that like fraudulent representations had been made by plaintiff.”

Conceding that said proposition is correct that a defendant cannot plead fraud in plaintiff to defeat a recovery in a suit to cancel a deed (Chaney v. Coleman, 77 Tex. 100, 13 S. W. 850), yet in this case, if defendant paid out money by reason of the fraud of appellant, defendant could show that fact and have it adjudicated in the event a rescission was decreed, and for that purpose it was proper to plead it, and we see no injury resulting to appellant in the action of the eourt

The third, fourth, and fifth assignments complain of the admission of certain testimony, but in our view of the case its admission was immaterial, and said assignments are overruled.

The sixth and seventh assignments complain of the court’s charge, which reads:

“That, in order for a representation or statement to be fraudulent in law, the party making the representation or statement must knowingly make it, knowing the facts to be untrue, with the intent then and there to deceive and mislead the other party thereby.”

This charge, if error, in this case, was immaterial, because it could not have had any effect on the jury, as none of the issues submitted related directly to the question of fraud.

There is no complaint of the refusal of the court to submit such an issue, and, as the judgment is abundantly supported by the evidence, the presumption is that the court properly found on the issues not submitted.

Ordinarily on the issue of fraudulent representations, it is not necessary to show that the party making them intended to perpetrate a fraud, but if they were such as to create a false impression that caused the other party to act, believing such representations to be true, whether innocently made or not, such representations are fraudulent. Loper v. Robinson, 54 Tex. 510.

Under the evidence in this case, we think no other verdict should have been rendered. On January 10, 1911, appellant owned a tract of land in Lynn county on which four notes for $92 each were due and owing. At that date appellee Hudson owned an art store situated on Elm street in Dallas, Tex. Appellant and Hudson agreed to exchange said properties. Appellant deeded the land to Hudson, who assumed the payment of said four notes; Hudson turned over to appellant said store, the stock being worth about $3,500, and appellant assumed an indebtedness of $2,759, which Hudson stated was shown by his ledger, but further stated there might be more or less indebtedness, but, if so, he would arrange the excess, if any. Appellant took charge of said stock and proceeded to conduct the business of selling the goods. He sold about $2,000 of same and paid an indebtedness of $276. About April 11, 1911, with appellant’s consent, a receiver was appointed, and appellant was employed to run the business on a salary. Before the receiver was appointed, appellant became aware that the indebtedness he assumed amounted to more than $2,759, but he said nothing to Hudson about rescinding until the goods were disposed of, and waited about 12 months, when this suit was brought, at which time he had dissipated the stock, and he had no ground for rescission, as it was impossible for the parties to be placed in statu quo, and the court properly rendered judgment for appellees. Chambers v. Grisham, 157 S. W. 1177.

The other errors assigned we think are without merit, and are overruled.

Judgment is affirmed.'


author: RAINEY, C. J. T. A.

text:
    FEATHERSTON v. GREER et al.
    (No. 7175.)
    (Court of Civil Appeals of Texas. Dallas.
    June 20, 1914.
    Rehearing Denied Oct. 17, 1914.)
    1. Evidence (§ 471) — Admissibility—-Facts ob Conclusions.
    In a suit to recover the title and possession of a certificate of stock, pledged by plaintiff to secure a debt, and transferred by the pledgee, plaintiff’s testimony that he did not authorize the plé'dgee to transfer or deal with the certificate in any other way than as collateral security for a loan was as to a fact and not a mere conclusion.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.J
    2. Corporations C§ 123) — Pledge oe Stock —Evidence—Relevancy—Notice oe Plaintiff's Claim.
    In a suit to recover the title and possession of a certificate of stock, pledged by plaintiff to secure a debt and transferred by the pledgee without authority, the admission in evidence of a letter written defendant, by plaintiff', stating that the indorsement on the certificate was a forgery, that the plaintiff had not parted with the ownership of the stock, but had placed it with the pledgee as collateral to secure a loan, and that the loan had not been made, was not error, as the letter merely informed defendant of plaintiff’s claim and its admission could not have injured defendant [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 481, 491, 507-512, 537, 539-54(5, 569, 618; Dec. Dig. § 123.]
    3. Corporations (§ 123) — Certificates of Stock — Transfer on Forged Indorsement.
    Where a plaintiff pledged stock to secure a loan, placing an indorsement that it was deposited as collateral to secure a loan, and the pledgee, alter some one had erased such in-dorsement, and had forged plaintiff’s signature to the power of attorney thereon, transferred the certificate, no title passed to the transferee, as a forged indorsement does not pass title to commercial paper, negotiable only by indorsement.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 481, 491, 507-512, 537, 539-546, 569, 618; Dec. Dig. § 123.]
    4. Corporations (§ 123) — Pledge oe Stock —Authority of Pledgee to Sell.
    Where plaintiff pledged a certificate for 100 shares of stock in a corporation to secure a loan of $1,000, the execution of a contract at the same time, by which the pledgee gave plaintiff the option, after two years from that date, to purchase from the pledgee 100 shares of the stock of such corporation for $1,000 and interest, did not show that the pledgee had authority to sell the pledged stock or estop plaintiff from showing lack of authority.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §S 481, 491, 507-512, 537, 539-540, 569, 618; Dec. Dig. § 123.]
    Appeal from District Court, Grayson County ; W. M. Peck, Judge.
    Action by T. A. Greer against H. H. Featherston and another. From a judgment for plaintiff, the defendant named appeals.
    Affirmed.
    Randell & Randell, of Sherman, and Davidson & Davidson, of Dallas, for appellant. 5. R. Carruth and Jones & Hassell, of Sherman, for appellees.

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

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

   RAINEY, C. J. T. A.

Greer brought this suit against appellant, Featherston, and the Southwestern Surety Insurance Company to recover the title and possession of 100 shares of stock of the said insurance company, and to restrain both parties from transferring same, and that said insurance company be enjoined from entering a transfer of said certificate of stock on its books. Appellee Greer alleged, in substance: That he, as owner and holder of said stock, mailed same to A. J. Boyce & Co. for them to hold' as security for the loan of $1,000. That to perfect said loan he indorsed on said stock certificate, “Deposited with A. J. Boyce & Co. as collateral to secure loan.” That said loan had been promised, but plaintiff never secured same. After mailing said stock to Boyce & Co. plaintiff was notified that A. B. Wood, of Dallas, had bought said certificate bearing plaintiff’s in-dorsement thereon in blank, and that the in-dorsement that plaintiff had placed on said certificate was not, at the time of the purchase by Wood, on said certificate. That he informed Wood that the indorsement in blank was a forgery, and that he had not made said indorsement nor authorized same made, nor had he authorized the sale or transfer of said certificate. That the indorsement made thereon was a forgery, and that the indorsement he had made on said stock certificate had been erased. That Featherston was claiming said certificate of stock, and that he was endeavoring to have a transfer made on the books of the insurance company. Defendant Feather-ston answered, in substance, that for value, and without notice, he bought said stock from J. B. Oldham, who had purchased from Wood. That said certificate was prope-rly indorsed, and that it contained no such indorsement as plaintiff claims he had placed thereon, and that he was a purchaser in good faith. That plaintiff had executed the blank power of attorney on the back of said certificate, anc\ had placed it in the hands of A. J. Boyce & Co., and, they being in lawful possession oi said certificate and he paying value and being innocent of any wrong, he thereby acquired the title and prayed that a new certificate be issued to him. The insurance company pleaded that it had possession of the certificate, that it had no interest in the controversy, and submitted itself to the orders of the court. Verdict and judgment were rendered for plaintiff, and Featherston appeals.

Conclusions of fact.

Plaintiff owned and possessed stock certificate No. 425 for 100 shares in the Southwestern Surety Insurance Company, a corporation. To secure a loan he indorsed on said stock certificate, “Deposited with A. J. Boyce & Co. as collateral to secure loan,” and forwarded same by mail to A. J. Boyce & Co., of Texarkana, who had agreed to make a loan of $1,000. At the same time plaintiff signed tho following contract, and sent it to A. J. Boyce & Co., viz.:

“All Dividends Declared on the Within Named Stock During Life of This Option will be Paid the Holder When Option is Exercised.
“No. 1260. Option Contract. Amt. $1,000.
“A. J. Boyce & Company, “Suite 402 State National Bank Building, “Bankers and Brokers.
“In consideration of one dollar to them paid by T. A. Greer, A. J. Boyce & Co. give and grant to said T. A. Greer the right and option at any time after 15 days after the expiration of 2 years from this date, but not before except by mutual consent, to purchase from the said Boyce & - Company 100 shares of the capital stock of Southwestern Surety Ins. Go., a corporation, at and for the sum of one thousand dollars, with interest from this date until this option is exercised at the rate of 5 per cent, per annum;. upon the payment of said sum of money within the time hereinabove specified, the said Boyce & Company bind themselves to sell and deliver unto the said T. A. Greer the said stock.
“Executed in duplicate this the 26th day of March, 1913.
“[Tour signature.] A. J. Boyce & Co.,
“By M. P. Hinckley.
“T. A. Greer.
“T. A. Greer.”
Written in ink is the word “Original.”

Plaintiff made no other indorsement on said certificate than as above stated, nor did he authorize the sale and transfer of said certificate by said Boyce & Co. On the back of said stock certificate was printed a blank assignment and power of attorney authorizing the transfer on the books of the company. A. B. Wood purchased the certificate from A. J. Boyce & Co., giving a valuable consideration. At the time Wood purchased, the in-dorsement, “Deposited with A. J. Boyce & Co. as collateral to secure loan,” made by Greer, was erased, and the blanks in the power of attorney were filled out, and the signature of T. A. Greer written with dim ink was attached thereto, and that of A. J. Boyce as a witness. The signature of T. A. Greer to said power of attorney was a forgery, but this was not known to Wood, who bought in good faith. Wood sold to Oldham, and he to appellant, Peatherston; Wood not then-knowing of the signing of the "Optional Contract,” which was afterwards found among Boyce’s papers.

Opinion.

1. The court did not err in permitting T. A. Greer to testify that he did not authorize Boyce to transfer, assign, sell, or deal with the certificate in any other way than as collateral security for the loan. The subject of inquiry was whether Boyce was authorized to deal with the stock certificate only as collateral, and the testimony of Greer was as to a fact and not a mere conclusion. Witness having stated fully as to the transaction, which shows that no authority was given to Boyce to dispose of said certificate, if conceded to be error, it was harmless.

2. It is urged by appellant that the court erred in permitting a letter written by Greer to Peatherston to be introduced in evidence. We do not think this was error. The letter merely notified Peatherston that Greer’s indorsement on the certificate was a forgery, that he had not parted with the ownership of the stock, that he had placed it with Boyce & Co. as collateral to secure a loan, and that the loan had not been made when it was indorsed. Greer, by this letter, was merely informing Peátherston of his claim in the premises, and we think it clear that no injury was done Featherston by its admission.

3. The appellant assigns that the court erred in giving to the jury the first paragraph of the main charge, which reads as follows:

“If you believe from the evidence that plaintiff T. A. Greer did not sign the blank power of attorney on the certificate of stock introduced in evidence, or if you believe from the evidence that when the certificate of stock was sent to A. J. Boyce & Co. by plaintiff it had the words, ‘Deposited with A. J. Boyce & Co. as collateral to secure loan,’ indorsed thereon, and signed ‘T. A. Greer,’ and if you further believe from the evidence that said words were erased without the knowledge or consent of plaintiff, then in either of these events you will find in favor of plaintiff.”

In this connection he also assigns as error the refusal to give four special charges, the principle of which is embodied in the following:

“The jury are instructed that if they befieve from the evidence that at the time the said W. H. Peatherston obtained the possession of said certificate there were no such erasures or-alterations thereon which could be detected by a man of ordinary care and prudence, and if you further believe from all the evidence that the dealings in the matter before you, between plaintiff and A. J. Boyce & Co., was on the part of plaintiff to obtain a loan and on the part of Boyce & Co. to secure the loan, and that by agreement between them the stock in question was to be the property of the said A. J. Boyce & Co., and that then the plaintiff could take other stock by the said A. J. Boyce & Co. selling to him the same number of shares in the same company at the same par value per share on which said loan had been made or was to be made, then I instruct you that third parties purchasing from the said A. J. Boyce & Co. the said stock for value, and without notice as to said loan, would acquire good title to said stock; and, if you believe from the evidence that the defendant Peatherston purchased said stock, without notice as to said plaintiff’s hy-pothecation, and that there were no erasures upon said stock at the time of his said purchase, which a man of ordinary care and prudence would detect, then your verdict should be for the defendant Peatherston.”

Appellant insists that under the evidence an issue as presented in the special charges was raised and called for. We think the issue presented by the main charge of the court was all that was required under the evidence.

The issue was whether Greer authorized Boyce & Co. to deal with the certificate in any way other than that of collateral security for a loan, and whether the in-dorsement relied on by Peatherston was a forgery. The settlement of this issue settled the controversy. If Greer only made the indorsement on the certificate he claims he made when the certificate was sent to Boyce & Co., the erasure thereof and the other-in-dorsements were made by some one else without. Greer’s authority; no title passed to Wood; hence Peatherston had none.

In Rolling v. Railway Co., 127 S. W. 302, the court says that “it is well settled law that a forged indorsement does not pass title to commercial paper negotiable only by in-dorsement.”

The certificate of stock in controversy was not negotiable until properly indorsed.

No negligence is charged against Greer in depositing the certificate with Boyce & Co. His doing so gave no right to Boyce & Co. to sell or transfer it The “optional contract” shows no right in Boyce & Co. to sell the stock. It does not even show that certificate No. 425 was placed with them for any purpose. It only shows that Greer, after the expiration of two years, had the right to purchase from Boyce & Co. 100 shares of stock in said insurance company at the sum of $1,000 upon the payment of 5 per cent, interest. This shows no authority for Boyce & Co. to sell the certificate No. 425, and tends in no way to estop Greer from showing no authority in Boyce & Co. to sell.

We think the court properly charged the jury, and that the evidence is sufficient to support the judgment, and it is affirmed.