text:
    HALFF CO. v. WAUGH.
    (No. 7007.)

    (Court of Civil Appeals of Texas. Galveston.
    Jan. 31, 1916.
    Rehearing Denied Feb. 17, 1916.)
    1. Sales <&wkey;467 — Conditional Sales — Compliance with Conditions — Possession of Purchaser.
    An agreement by which plaintiff put a motor truck in defendant’s hands to use, title to remain in plaintiff, defendant to keep and render weekly an account of use, gross income, and operating expenses all in excess of a certain sum to be retained by defendant for operating expenses, to be divided equally, the part coming to plaintiff to be applied on the purchase price of the truck, provided the contract was carried out till the truck was paid for, with provision that, if it should not be paid out, such sums as should be paid to plaintiff should be considered as rent for the use, defendant to have the privilege, however, at any time, of paying out in cash the difference between what plaintiff had received in rent and the purchase price, he in such event to have a 5 per cent, discount on the balance, gave defendant right of possession of the truck till it was paid for, so long as he complied strictly with its terms.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1354, 1358-1364; Dec. Dig. &wkey;467.]
    2. Contracts &wkey;>10 — Validity—Mutuality-Option.
    Defendant having accepted possession of a motor truck for use, and in all things performed his part of the contract giving him right of possession for use so long as he gave plaintiff half of the net income from its use, to be applied on the purchase price, its want of mutuality, in that it did not bind defendant to make payments, does not render it unenforceable in his behalf.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 21-40; Dec. Dig. &wkey;>10.]
    3. Appeal and Error <&wkey;742 — Assignments of Error — Germane Proposition.
    The proposition that it was the duty of the court to construe the contract is not germane to an assignment of error complaining only of the overruling of a general demurrer to the answer.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <¿=3742.]
    4. Appeal and Error &wkey;>1062 — Harmless Error — Submission to Jury.
    The jury having rightly construed a contract, error in submitting its construction to them, when the court should have construed it, was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. <&wkey;> 1062.]
    5. SEQUESTRATION <&wkey;5— GROUNDS — FEAR OE In jury — “Injure. ”
    Inevitable decrease in the sale price of a motor truck from its use in the ordinary manner, which the parties must have contemplated when plaintiff put it in defendant’s possession to use, so long as he paid to plaintiff half of the net income from its use, is not injury, within Rev. St. 1911, art. 7094, authorizing sequestration of personal property, title, or possession of which is sued for, if defendant fears defendant will “injure” it.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. § 4; Dec. Dig. &wkey;>5.]
    6. Malicious Prosecution <&wkey;71 — Malice-Sequestration — Eviden ce.
    Evidence held sufficient to warrant submission of the issue of malice in suing out a writ of sequestration.
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ Í60-167; Dec. Dig. &wkey;7.1.]
    7. Set-Off and Counterclaim <$=^44 — Action against Partner — Cross-Action by Defendant — Damages to Partnership.
    Where action is brought against an individual involving a contract executed between plaintiff and such individual, plaintiff may not assert as against right of recovery by defendant on his cross-action in his individual capacity that the damages sued for by defendant, though arising entirely out of breach of the contract, were suffered by a partnership, the members of which, other than defendant, were not parties to the suit; especially where there is no proof that the contract had been assigned to the partnership, though the article contracted for was used in its business.
    [Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 82-96, 98, 99; Dec. Dig. <&wkey;44.]
    8. Sequestration <&wkey;21 — Wrongful Sequestration — Damages—Evidence.
    Evidence held sufficient to sustain a verdict of $1,500 for actual damages for wrongful sequestration of a motor truck during a period of ten months.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 50-54; Doc. Dig. &wkey;21.]
    9. Sequestration <&wkey;21 — Wrongful Suing Out — Exemplary Damages.
    A verdict for $2,000 for exemplary damages, the amount of which is largely in the discretion of juries, for wrongful sequestration of a motor-truck, where the actual damages were $1,500, is not so large or disproportionate to the actual damages that the jury can be said to have been actuated by an improper motive.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 50-54; Doc. Dig. &wkey;21J
    10. Appeal and Error <&wkey;1040 — Harmless Error — Ruling on Pleadings.
    Overruling exceptions to a pleading of a certain item of damage .was harmless, where the item was not submitted to the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. <&wkey;> 1040.]
    11. Appeal and Error <&wkey;1052 — Harmless Error — Ruling on Evidence.
    Overruling objection to evidence of certain items of damages was not prejudicial, where the items were not submitted to the jury, and the only possible effect of the evidence would be to increase the exemplary damages, and the award therefor was not excessive, even if such evidence should not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171 — 4177; Dee. Dig. <&wkey;> 1052.]
    Appeal from District Court, Harris County.
    Action by the Hawkins-Halff Company against T. D. Waugh. Pending suit, plaintiff! changed its corporate name to the Halff Company. Judgment for defendant on his cross-action, and plaintiff appeals.
    Affirmed.
    Sam Schwartz and Terrell, Walthall & Terrell, all of Houston, for appellant. A, M. John and Hutcheson & Hutcheson, all of Houston, for appellee.

      Application tor writ of error pending in Supreme Court.

   McMEANS, J.

The Hawkins-Halff Company, a corporation, being the owner of a l^rton Mack motor truck, delivered the possession thereof to the appellee, T. L. Waugh, under a written contract which is as follows:

“Houston, Texas, October 25, 1912.
“Mr. T. D. Waugh, City — Dear Sir: Following up our conversation in regard to the one and one-lialf ton Mack truck, would say that we will put the truck in your hands to use, the title to it to still remain in us, you to keep an accurate and careful account of the mileage, the cost of maintenance, and operation and the gross income, giving us a weekly report. We agree to allow you to retain $125.00 a month of the gross income for operating expenses, and all in excess of this amount to be divided equally, the part coming to us to be applied upon the purchase price of the truck, which is $3,150; provided, however, that the contract is carried out until the truck is paid for. In the event that it is not paid out, such sums as have been paid us will be considered as rent for the use of the truck. You to have the privilege, however, at any time, of paying out in cash the difference between what we have received in rent and the , purchase price of the truck, and in the event that you do, we agree to give you a five per cent, discount on the balance that you pay on the truck. If this meets with your approval and is satisfactory, please sign this acceptance.
“Yours very truly,
“Hawkins-Halff Company,
“By 6. W. Hawkins, Pres.
“Accepted: T. L. Waugh.”

At the time of the delivery of the truck to-Waugh, I-Iawkins, who was president of the corporation, furnished to Waugh a blank form for the weekly reports to be made by the latter as provided for in the contract, and in conformity therewith Waugh made to the corporation weekly reports showing an accurate account of the milea'ge, the cost of maintenance and operation, and the gross income from the use of the truck, and once in each month, in strict conformity to the contract, paid to the corporation one-half of the net profits of the earnings of the truck down to January 7, 1914, aggregating $729.-83, when the truck was seized by the sheriff of Harris county under a writ of sequestration sued out by the corporation in a suit brought by the corporation against Waugh for the recovery of the possession of the truck; and the truck remained in the sheriff's possession until the trial of the suit.

Plaintiff alleged in its petition that no time was specified in the written agreement during which defendant was legally bound or obligated to continue to use the truck, and no time was therein specified during which plaintiff was legally bound to permit the defendant to hold the truck in his possession and to use the same in accordance with the terms of said contract, but that it was impliedly, if not expressly, agreed by the terms of the contract that the defendant could terminate and abandon the same at any time he so desired, and that plaintiff could terminate and abandon the same, and demand and resume possession of the truck at any time it so desired, before the defendant had exercised his option to purchase the truck as specified in the contract; that, no time within which defendant was legally bound to exercise his option to purclia'se the property being specified, said option was without consideration, and subject to be withdrawn by plaintiff at any time prior to its exercise by defendant, but that, if mistaken in this, then, by the implied terms of the contract, it was agreed that either party thereto should have the right to terminate and abandon the contract after the expiration of a reasonable time, prior to the exercise by defendant of his option to purchase and pay for the truck in accordance with the terms of the contract, and that one year from the date of the contract was a reasonable time after which plaintiff had the right to terminate the contract and resume possession of the truck; that defendant failed to exercise his option to purchase and pay for the truck in one year, whereupon plaintiff elected to terminate and abandon the contract, and then and there became entitled to the possession of the truck.

Defendant in his answer admitted the execution of the contract, but denied that plaintiff was then the absolute owner of the truck, and alleged that, while the contract provides that the legal title thereto was to remain in plaintiff, the defendant is the owner of an equitable interest therein by reason of the fact that he had paid toward the purchase price of the truck, before the institution of the suit, the sum of $728.83, said aggregate amount consisting of payments made by him in strict compliance with the terms of the contract; that he is now, and at all times has been, willing and anxious to pay the balance of the purchase price upon the terms and stipulations contained in the contract; that he has never breached the obligations of the contract in any way, and was at the time of the filing of this suit, and at all times prior thereto, carrying out said contract in all respects for the purpose and with the intent of paying the purchase price in accordance with its terms, and is entitled to the possession of the truck by reason thereof.

He further alleged that, if the contract was originally void for want of mutuality, plaintiff could not now so evade its obligation, for the reason that defendant has paid the sum of $729.83 towards the purchase price of said machine, as specifically pleaded, and had diligently and industriously used said truck for the purpose of paying out said car under the terms of said contract, as speedily as possible, and for the further purpose of establishing in use and advertising said style of Hack motor truck, and plaintiff had derived the full benefits contemplated by said agreement, and had received this consideration and the payments aforesaid, all of which was done on the reliance of defendant upon the representations and agreement of plaintiff that he should be allowed to pay out the contract in the manner provided, and that plaintiff cannot now avoid its obligation to permit the defendant to remain in possession of said truck so long as he complies with the terms.of said contract, because defendant has acted in good faith upon said contract.

He denied that there was any implied or express agreement that the defendant could terminate or abandon the agreement at any time he so desired, or that plaintiff could terminate and abandon same, and asserted a covenant on defendant’s part that he would use said machine in accordance with the terms of the contract until same had been fully paid for.

He further denied that the plaintiff had the right to terminate the contract after the lapse of a reasonable time prior to the exercise by defendant of his option to purchase, and denied that the defendant was’ required to exercise his privilege within a reasonable time, and asserted that, even if a reasonable time was applicable to the contract, one year was not a reasonable time for the purposes of said contract, and that said truck would have been paid for within a reasonable time, and the contract would have been carried out until the truck was paid for.

He further charged that said payments had been made in strict conformity with the contract, and had been made in reliance upon the right of defendant to continue to make payments upon said contract until total purchase price of same had been paid, and that the defendant was never advised until shortly prior to the institution of this suit that the plaintiff claimed the right to terminate the said contract at the expiration of one year, or at any other time, so long as the terms of said contract were complied with ; that plaintiff led him to believe by the execution of said contract, and by all its acts and conduct pleaded, and by the correspondence, bills, receipts, and conversations passing between the parties, the moneys paid by defendant as applying to the contract purchase price of said car, that defendant would be allowed to retain said truck until the full purchase price was paid so long as defendant continued to comply with the terms of said contract, regardless of the length of time that it might take to pay out said truck.

He further charged that the defendant had up to that time, and has at all times since, paid to plaintiff the full amount due plaintiff under said contract, and that plaintiff’s action in theretofore accepting said payments without in any way complaining with regard to same shows that the construction limiting the defendant to a period of one year, or a reasonable time within which to pay out said truck, now attempted to be placed upon said contract, was never contemplated by the parties or either of them at the time of making said contract, or at any time subsequent thereto, until plaintiff’s assertion of said right so to do, and that by reason of this construction placed upon the contract by both parties plaintiff was and is estopped to now assert that the obligation of this defendant was other than such as was originally recognized by both of said parties, to wit, to pay for said truck under the terms of said contract, no matter what length of time it might take to do so.

By his cross-action defendant sought recovery of damages against plaintiff and the Fidelity & Deposit Company of Maryland, the surety upon the plaintiff’s sequestration bond, which was made a party to the cross-action, for unlawfully seizing the truck by virtue of the writ of sequestration, alleging that the sequestration was illegally, wrongfully, and maliciously sued out, and that the affidavit made for the purpose of suing out the writ was untruthfully, wrongfully, and maliciously sworn out on behalf of the plaintiff company with the intent to illegally, wrongfully, and maliciously secure the issuance of said writ as a means of securing the possession of said truck.

He further alleged that all of said illegal, malicious, and wrongful acts were done with knowledge on the part of plaintiff that they were so, and that they were approved and ratified by plaintiff for the purpose of forcing the defendant to enter into a new contract with plaintiff less advantageous to him than the one under which he held said motor truck, by taking from defendant’s possession the said truck, which was essential to the maintenance of his business conducted under the name of “Gee-Whiz Auto Transfer & Storage Company,” which act it was known to plaintiff would cause the defendant to lose heavily in his business. He further charges that by such acts plaintiff had rendered itself liable to defendant for both actual and exemplary damages. He prayed for judgment against plaintiff and the said surety on the sequestration bond for $5,000. as actual, and $15,000 as exemplary, damages, and that plaintiff be directed to deliver the truck to defendant to be retained by him under the terms of the contract, or, in the alternative, that he have judgment for $729.83, being the sum paid by defendant to plaintiff under the contract.

The court submitted the case to a jury upon special issues, and upon their findings rendered judgment that the plaintiff take nothing against the defendant, and that the defendant recover possession of the truck, or, in the alternative, that the defendant recover $729.83, the amount paid by him to plaintiff under the terms of the contract, and further recover of plaintiff and its surety upon the sequestration bond the sum of $1,500 as actual damages, and the further sum of $2,-000 as exemplary damages, together with all costs of suit. From this judgment, the plaintiff has appealed. During the pendency of the suit the plaintiff changed its corporate name to the Halff Company, and the appeal is prosecuted in that name.

’Appellant’s first assignment of error complains of the refusal of the court to sustain its general demurrer to defendant’s answer. Under this assignment appellant contends by its propositions that:

(1) “Where one receives property to use, with an option to purchase; but otherwise to pay for the use of it, he receives it as bailee only, and does not obtain the property until the option is exercised.”

(2) “A contract for the use of property, where no time is specified, is subject to revocation by either party.”

(3) “Where the performance of the contract rests upon the will of one party, there is a lack of mutuality and the contract is void.”

The first and second propositions may be admitted to be correct in the abstract; and the third is abstractly correct if the term “voidable” be used instead of “void,” subject, however, to certain well-known exceptions ; but it is our opinion that such questions are purely abstract as applied to the pleadings of the defendant, and fufmish no reason for the sustaining of the general demurrer. Both parties pleaded the contract of October 25, 1912. By its express terms appellant retained the title. Whether the defendant acquired any equitable title by reason of making payments to appellant in accordance with the contract, or whether the transaction merely evidenced an option to defendant to purchase the truck, or a bailment or conditional sale, or whether the contract constituted as between the parties a chattel mortgage under article 5654, Revised Statutes of 1911, it is immaterial to determine in considering the assignment. Whatever the instrument may be, the legal effect of it was, as it seems to us, to confer the right of possession of the truck upon defendant until it was paid for, of which he could not be deprived as long as he complied strictly with its terms. Defendant alleged that he had complied strictly with all the obligations imposed upon him by the terms of the contract. The effect of the demurrer was to admit as true all of the allegations of the answer, which, in effect, were that the con-

tract had been executed; the truck placed in his possession in pursuance thereof; that he had kept an accurate account of the mileage, the cost of maintenance, and the gross income; that he had paid to appellant one-half of the net earnings upon the purchase price up to the time of the seizure, aggregating $729.83. All this being admitted, defendant was entitled, under our construction of the contract, to retain possession of the truck until he breached the contract in some of its provisions, and that until he did so the appellant had no right to recover its possession from him.

It is true that the contract does not bind the defendant to perform any of its provisions, and that it is for this reason unilateral; but the mere want of mutuality did not render the contract unenforceable after defendant had accepted the possession of the truck, and in all things performed his part of the agreement, especially after he had paid $729.83 in part performance, and offered to strictly carry out its terms until the full purchase price of the truck should be paid. Hawralty v. Warren, 18 N. J. Eq. 124, 90 Am. Dec. 613; Pittsburg Brick Co. v. Bailey, 76 Kan. 42, 90 Pac. 803, 12 L. R. A. (N. S.) 745; Allegheny Oil Co. v. Snyder, 106 Fed. 764, 45 C. C. A. 604; Schroeder v. Gemeinder, 10 Nev. 355; McAfee v. Grubb, 164 S. W. 925. If this were not so, then the. appellant would have had the right to declare the contract at an end and take possession of the truck at any time, even after the defendant had, in strict conformity to its terms, paid in dividends only a few dollars less than the purchase price of the truck. Nor does the fact that no definite date is specified in the contract within which defendant by the use of dividends might pay for the car render the same unenforceable, in view of the fact that it seems to us to have been clearly contemplated and provided that he should have such use until the purchase price was paid out. of one-half of the net earnings of the truck, whatever the length of time it might require to accomplish this. That the contract may have been, as to appellant, an improvident one, is no reason for its avoidance or for the refusal of the courts to enforce it.

The further proposition under the first assignment is to the effect that, as neither party had pleaded ambiguity in, or fraud or mistake in the execution of, the contract, it became the duty of the court to construe the contract. This proposition is not germane to the assignment under which it is urged, which only complains of the refusal of the court to sustain a general demurrer to the defendant’s answer. We think that the answer was good on general demurrer, and the assignment is overruled.

What we have said above sufficiently disposes of appellant’s second assignment of error, which complains of the refusal of the court to sustain its special exception to defendant’s answer, based upon the assumption that the contract gave to appellant the right to cancel the contract at any time, at will, or upon proper notice.

The fourth assignment complains of the action of the court in submitting to the jury the construction of a portion of the contract; its contention being that the contract was unambiguous and should have been construed by the court. It is true that it is the duty of the court to construe a written contract which is free from ambiguity, and should submit it to the jury for construction only when its meaning is not free from doubt; -still we think that no prejudicial error was committed by the court in the matter complained of, as, in our opinion, the jury gave the only construction thereof of which the contract was susceptible. The jury found that in executing the contract there was an understanding and agreement between the parties as to the matters embraced in their two next findings; and in the two next findings they answered that it was not the understanding that the appellant should be entitled to take back the truck, if appellant so desired, provided the defendant, upon reasonable notice, failed or refused to pay the balance of the purchase price,with 5 per cent, discount, but that it was agreed and understood that defendant’s right to the continued possession of. the truck (under the provisions of the contract in regard to reports, payments, and operation, etc.) was not to be subject to termination at the instance of plaintiff, upon reasonable notice, and with opportunity being given to pay the balance of the purchase price, etc. We think this is clearly the proper construction of the contract, and the interpretation: that the court would have been compelled to give it, and that for this reason the action of the court complained of, even if technically wrong, could not have prejudiced the appellant.

The fifth, sixth, and seventh assignments, are sufliciently disposed of by the disposition we have made of the fourth, and they are severally overruled without further comment.

In special issue No. 7 the court submitted to the jury for its finding the following:

“In making the affidavit on which the writ of sequestration was based [referred to in the pleadings], did the affiant fear that the defendant would injure the truck, as stated in the affidavit?”

The jury answered in the negative. The-eighth assignment is predicated upon the submission of this issue; the contention being that the undisputed testimony shows that the truck would be injured by its continued use. The only testimony on this issue called to our attention by appellant in its brief is that of Hawkins, the president of appellant corporation, and that of defendant, Waugh. The former testified, in effect, that the use of the truck by Waugh would deteriorate its sale value the first year 50 per cent., though its use would not decrease that much; and the latter testified that:

“The sale value of the truck deteriorates after being used ; if you put one out for a short time, it deteriorates in value.”

We think this testimony falls far short of showing that the mere use of the truck in the ordinary manner for which its use was designed would “injure” it as that word is used in article 7094, Revised Statutes. It is known of all men that the use of machinery lessens its sale value; and the lessening of the sale value was the only injury that the witnesses testified would occur by reason of the continuity of possession by defendant. The parties knew and contemplated at the time of the execution of the contract and the delivery of the truck to defendant that this particular injury would inevitably occur from the use to which it would be applied, and we think it is clear that the fear of such injury only did not afford just ground for the suing out of the writ of sequestration and wresting from defendant the possession of the truck thereunder. The ninth assignment presents substantially the same question as the eighth, and both are overruled.

The tenth assignment complains of the submission by the court of the eighth special issue,- which is as follows:

“Was the sequestration affidavit in question sworn out without fear on the part of the affiant that the defendant would injure the machine, as therein stated, or the making of said affidavit, or the causing of the writ of sequestration to be executed in this cause, prompted by malice?”

The contention is that there was no testimony to justify the inference of malice, and it was therefore prejudicial error to appellant to submit the issue, and, further, that the charge is upon the weight of the evidence. The testimony shows the following facts: The truck was delivered to the defendant on October 25, 1912, the date of the contract, and that defendant continuously used it in his business until January 7, 1914, when it was seized by virtue of the writ of sequestration; the defendant in the meantime complying strictly with the terms of the contract. On December 29, 1913, the appellant, through its general manager, Temple Wheeler, wrote a letter to defendant in which, among other things, he said:

“ * * * The payments heretofore made by you are very unsatisfactory in view of what was contemplated when the contract was formed and in view of the mileage and cost of operation and maintenance as far as shown by your previous reports; so that unless your reports show a considerable improvement in the earnings of the' truck and your consequent payments to us, or unless you can arrange to make more satisfactory payments, we are inclined to insist that you will return the truck to us.”

On January 2, 1914, Wheeler, the appellant’s general manager, again wrote to defendant, saying, among other things:

“ * * * In view of the fact that your accounting to this company falls very greatly short of what was contemplated when the contract was made, we now request that you return the truck to this company, or that you arrange to exercise your option to pay the agreed price, less the sums heretofore paid over by you, and keep the truck.”

Defendant testified:

“I had a conversation with Mr. Temple Wheeler, the manager of plaintiff, about this matter some time in December, 1913, at his office. When I got down there, lie stated he wanted to talk to me about the truck. We talked pleasantly for a while, and then he told me he would have to change the contract. He first asked me to change the contract, and I told him, in the first place, I could not, and, in the second place, I did not consider that I had to; that I was living up to the contract, and I would not consider it, at least, right in the worst season that we have. He was complaining about the returns in December. * * * First he wanted me to make him a payment of $250 a month flat on the car, and I told him I could not do that even if I did not have the contract, and I certainly would not where I did have a contract, and he got pretty hot about it, and finally he told me I would change that contract or he would put me on the bum; that was the exact expression he made.”
“He asked me if I knew that the Halff Company was worth a million or a million and a half dollars, and I told him I understood they were rich people, and he says: ‘That is the thing you are up against, and you will be without a car if you do not change contract.’ * * * ”

We think the above facts, which are not disputed, sufficiently raised the issue of malice in suing out the writ of sequestration to warrant the court in submitting that issue to the jury. The assignment is overruled.

The second and fourth propositions under the assignment are not germane and will not be considered in connection with it. The charge was not upon the weight of the evidence, and the fifth proposition, which raises the point, is overruled.

The thirteenth assignment complains of the refusal of the court to give appellant’s special charge No. 2, which submitted the issue as to whether the defendant owned and operated the Gee-Whiz Auto Transfer & Storage Company in his individual capacity or jointly with one or more of his sons. The fourteenth assignment complains of the refusal of the court to give appellant’s special charge No. 3, Which in different verbiage submits practically the same issue, and the fifteenth assignment is based upon the refusal of the court to strike from the record, upon appellant’s motion all testimony in reference to damages suffered by the Gee-Whiz Auto Transfer & Storage Company. The propositions subjoined to the assignments are that, in a suit by an individual for damages, recovery cannot be had where the damages are shown to have been sustained by the firm of which he was a member, and that the burden of proof is upon a party asking damages to prove his right to recover, and that the damages were sustained by him individually. The evidence is sufficient, we think, to show that the truck was used in connection with the Gee-Whiz Auto Transfer & Storage Company, which was a copartnership composed of defendant and one or more of his sons, and that the profits arising from the use of the truck inured to the benefit of the copartnership.

The defendant Urges the following counter proposition:

“Where a suit is brought against an individual involving a contract executed between the plaintiff and such individual, the plaintiff cannot successfully assert, as precluding a recovery on a cross-action by defendant in his individual capacity, a contention that the damages sued for in the cross-action, though arising entirely out of the breach of the contract between the parties, were suffered by an alleged copartnership, the remaining members of which were not parties to the suit, especially where there is no proof that the contract had been assigned to the partnership.”

This proposition seems to be sustained by the following authorities: Mo. Pac. Ry. Co. v. Smith, 84 Tex. 350, 19 S. W.509; Covington v. Sloan, 124 S. W. 690; Cleveland v. Heidenheimer, 92 Tex. 108, 46 S. W. 30; Bryant v. Phillips; 189 Mo.App. 278, 176 S. W. 294.

There was no proof that the contract had been assigned by Waugh to tb,e partnership, and the evidence warranted the jury in finding that the contract had been breached by the appellant. The negotiations in regard to the trrfck were between Waugh and the corporation only, and in their subsequent dealings in reference thereto Waugh, and not the partnership, was recognized by the corporation as the contracting party. The assignments are overruled.

The twenty-eighth assignment complains that the verdict for defendant for $1,-500 for actual damages is excessive. We cannot say that the verdict for actual damages was without the support of evidence. The jury, in response to special issues, found, and upon testimony that warranted them in so doing, that there was no reasonably established .rental value for the truck in question, or for trucks that could have been used in lieu thereof, in defendant’s business; that defendant made reasonable efforts to secure a truck in place of the one he was deprived of, and to replevy the truck in question, but without success; that the reasonable -value of the use of the truck in question from January 7, 1914, when it was sequestered, to the date of the verdict (a little more than ten months), was $150 per month.

The evidence which warranted this last finding consisted of the testimony of defendant, as follows:

“The value of the use of the car to us represents the entire amount we paid to Mr. Hawkins per month, and what we could save per month out of that $125, if any. We also got 50 per cent, of the net proceeds. Our profits for the time the contract ran were $729.83, the same as Mr. Hawkins got. We figured it that there was quite a saving in the expense account for the 14 months ; the $125 per month that we were allowed for expenses amounted to $1,750. Our actual expenses for the 14 months for operating the truck were $776.76, or a saving 'to us of $973.24 to be applied to our profits in operating the machine. We considered the driver as our profits, he being a member of the family, my sons, either T. H. or Alec Waugh. We did not pay our driver a fixed salary; bread and meat was all he got out of it. For the time we used it the total profits were $2,432.90 for 14' months, which represented the value of the use to us during that time, and our operating expenses were $776.76. The total gross receipts of the car for the 14 months I figured was $3,184.-66. The value of the car to us since the seizure would have been under the same figures that it would have earned for us during the same period during the other time. The value in a lump sum would be $150 per month.”

He further testified:

“Yes: my profits during the 14 months were $2,432.90. I figured that I saved about $900 out of the operating expense. I turned over to the Halff Company $729, and the same I kept for my half.”

He further testified:

_ “I have handled motor trucks for something like three years, and by reason of my experience in handling them I know the reasonable value of the use of same. The reasonable value of the use of this truck during the period that it has been detained has been about $150 per month for the truck alone; that is the reasonable value of it; yes. The reasonable value of the use to us was the reasonable value of the truck.”

The jury gave credence to this testimony of the defendant, and found in accordance therewith. The assignment is overruled.

The twentieth assignment complains that the verdict for $2,000 as exemplary damages cannot be sustained. The jury found that the writ of sequestration was sued out maliciously and without probable cause. We have hereinbefore set out the evidence which, in our opinion, justified this finding. The jury further found that the appellant corporation knowingly ratified and adopted the said malicious act on the part of the af-fiant in making the affidavit for the issuance of the writ. This finding is not assailed.

“The amount of exemplary damages is largely in the discretion of the juries, and this court can only set aside their verdict for excess in amount in such cases when the damages are so large as to show passion, prejudice, or partiality.” Mayer v. Duke, 72 Tex. 453, 10 S. W. 569.

The verdict for exemplary damages in this case is not so large or so disproportionate to. the amount of actual damages awarded that we can say that the jury were actuated by an improper motive in making the award. Railway v. Thompson, 108 S. W. 457.

The refusal of the court to sustain appellant’s exception to that portion of the defendant’s cross-bill which alleged damages in the sum of $250 for the loss of a horse and mule by overwork, on account of being deprived of the use of the truck, is not reversible error, for the reason that this damage was not submitted by the court to the jury in its charge, and the appellant could not therefore have been prejudiced by the action of court complained of.

The admission of the testimony of defendant, over the plaintiff’s objection, that lie used lais teams to handle long hauls that should have been done with the truck, and that that was the cause of “knocking out” two of the horses, and that the Gee-Whiz Auto Transfer & Storage Company has a five-year lease upon a storage house, and that because of the loss of the truck they were unable to pay their lease on account of loss of business, was not such error, if error at all, as to require a reversal of the judgment. The only possible effect this evidence could have had would he to increase the amount of exemplary damages. We have already held that the exemplary damages awarded were not excessive, under the evidence, and we think this is true, even though the testimony here complained of was improperly . admitted and considered by the jury. However, these items were not submitted by the court to the jury, and there is nothing in the amount of their award, or otherwise shown by the record, to lead us to the conclusion that the appellant was prejudiced by the action of the court complained of.

We shall not discuss appellant’s other assignments of error in detail; for to do so would extend this opinion, already too long, to an unreasonable length. It must suffice to say, therefore, that we have carefully examined all of the assignments, and find no reversible error in any of them.

The judgment of the court below is affirmed.

Affirmed.
      <&3jFor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes

      iSfesFor otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    GALVESTON, H. & S. A. RY. CO. v. MARTI.

    (No. 7072.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 1, 1916.
    Rehearing Denied Feb. 24, 1916.)
    1. RAILROADS <&wkey;400 — INJURIES ON TRACK— Question for Juey.
    In a suit for injuries, charged to have been occasioned plaintiff by riding in his automobile at night into a freight car left by defendant railroad on its track in a street, in violation of a city ordinance, question whether the car was left standing for temporary work, in which case there was no violation of the ordinance, held for the jury under the evidence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. &wkey;400.]
    2. Raiuroads <&wkey;400 — Injuries on Track— Negligence Pee Se.
    It is not negligence per se for a railway company, which operates a team track located along one side of a street served with electric arc lights, to leave a freight car upon the track for unloading by the consignee, and, in the absence of notice that the car has been unloaded, to permit it to remain on the street during nighttime following the day the car is placed, where the usual time required for unloading is about 48 hours, and sometimes the work is completed in the night, since acts or omissions complained of as negligence cannot be said to be negligence per se, unless in violation of law, or so opposed to the dictates of, common prudence that the minds of ordinary men cannot differ as to the conclusions to be drawn therefrom.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. &wkey;400.]
    3. Trial <©=>139, 140, 143 — Questions for Jury — Credibility of Witnesses.
    It is the province of the jury to judge the credibility of witnesses and' the weight to be given their testimony, and it is their duty to settle any conflict in the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332-335, 338-343, 365; Dec. Dig. &wkey; 139, 140, 143.J
    4. Appeal and Erroe <&wkey;1002 — Review — Finding.
    The finding of a jury upon conflicting evidence is conclusive on appeal.
    [Ed. Note. — For other cases, see Appeal and 1002]' Ceilt ^ 8935-3937; ®=»
    5. Railroads <§=>398 — Injury on Track — Intoxication-Sufficiency of Evidence
    In an action against a railroad for injuries to plaintiff, when he drove his automobile at night into a freight car left for unloading on a street track, evidence held sufficient to sustain the jury’s finding that the plaintiff’s injuries were not proximately caused by his own intoxication.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356, 1358-1363; Dec. Dig. &wkey;
    6. Railroads l&wkey;400 — Injuries on Track— Contributory Negligence — Questions foe Jury.
    In an action for injuries to plaintiff, when he drove his automobile into a freight car at night standing on a street track for unloading,, questions whether plaintiff was guilty of contributory negligence by failing to use proper lights on his automobile, and by failing to keep a lookout on both sides of his course to enable him to avoid collisions, held for the jury.
    [Ed. Note. — For other cases, see Railroads. Cent. Dig. §§ 1365-13S1; Dec. Dig. <©=3400.]
    7. Damages <&wkey;130 — Personal Injuries — Excessive Verdict.
    In an action for injuries, when plaintiff" drove his automobile at night into a freight, car standing on a street track for unloading,, where plaintiff’s iniuries consisted of bruises,, spraining of ribs, a cut through the lower lip, pains in abdomen, wrenched back, and traumatic pneumonia, confining him to his bed for two weeks under opiates, and to his room for a month, the injury being of a serious nature, perhaps permanent, and the period of full recovery likely to be 10 months or a year, where-a reasonable charge for medical services was. $50, and where plaintiff’s wife nursed him at times, hiring other persons to do her housework, .the usual fees for nursing in the neighborhood being $21 to $25 a week, while plaintiff’s automobile was worth $1,000 before the-accident, and after it only $200. verdict for plaintiff for $5,950 was not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 357-367, 370; Dec. Dig. &wkey;130.]
    8. Trial &wkey;>133 — Improper Remarks of Counsel — Withdrawal—Action of Court.
    In a personal injury case, where the remarks of plaintiff’s counsel in presenting the case to the jury were not such as to inflame their passions or to arouse their prejudice-against defendant, and where, upon objection, the remarks were promptly withdrawn by counsel, while the court promptly instructed the jury to disregard them, their making was harmless.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. <©=>133.]

      9. BailRoads <&wkey;365 — Rights in Street.
    A driver of an automobile in a city street had no greater right therein than a railroad, whose team track lay along the side.
    [Éd. Note. — For other cases, see Railroads, Gent. Dig. §§ 1220-1227, 1235; Dec. Dig. &wkey; 355.]
    10. Trial <&wkey;118 — Argument oe Counsel.
    In an action against a railroad for injuries, when plaintiff drove his automobile at night into a freight car placed upon defendant’s team track in a street for unloading, the remark of plaintiff’s counsel in argument that plaintiff had a greater right on the street than any corporation in the world was improper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 290-293; Dee. Dig. <&wkey;118.]
    11. Appeal and Error <&wkey;1031 — Harmless Error — Improper Remark op Counsel.
    Where, upon objection, plaintiff’s counsel stated that his remark in argument that plaintiff had a greater right on the street than any corporation in the world was incorrect, that plaintiff had no superior right on the street, and that he withdrew the remark, whereupon the court instructed the jury to disregard the statement, and that it was not the law, it must be presumed that the jury were not prejudicially influenced.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4038-4046; Dec. Dig. <&wkey;> 1031.]
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Action by F. J. Marti against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and W. T. Armstrong and Eugene A. Wilson, both of Galveston, for appellant. Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for appellee.

      Application for writ of error pending in Supreme Court.

   McMEANS, J.

F. J. Marti brought this suit against the Galveston, Harrisburg & San Antonio Railway Company to recover damages sustained by him on the night of July 28, 1914, resulting from a collision of an automobile, which he was driving, with a freight car of defendant which was standing upon the defendant’s railway track laid upon Church street in the city of Galveston, alleged to have been left on said street by defendant in violation of an ordinance of said city, which reads as follows:

“That it shall be unlawful for any railroad company, or their agents and employés, to permit any loaded or empty freight car or cars to remain standing on any track laid on any street in the city of Galveston, except for the purpose of temporary switching or work. * * * ”

Plaintiff alleged that, while driving his car in a westerly direction on Church street, a public street in the city of Galveston, at night, he met a horse-drawn vehicle, and in obedience to the rules of the road he turned to the right to avoid collision with the vehicle, and when he did so he collided with said freight car, which was left by defendant on said street unlighted. and unguarded, and of the presence of which he did not know, and could not have known by the exercise of ordinary care. In the fourth paragraph of his petition he alleged, in substance, that the defendant was guilty of gross negligence in leaving and permitting to be- left in Church street, at said time and place, said freight car, in violation of said ordinance, and that such negligence was the proximate cause of the injuries and damages sustained by him. Defendant pleaded thát plaintiff’s injuries directly resulted from his own negligence and contributory negligence in several particulars, which we do not deem necessary to specifically set out.

The case w'as submitted to a jury upon special issues, all of which were answered favorably to the plaintiff, and by their verdict they found plaintiff’s damages to be $5,000 for personal injuries, $100 for medical expenses, $200 for nursing, and $700 for damages to plaintiff’s automobile, aggregating $6,000. The plaintiff entered a remittitur of $50 on the item of medical expenses, whereupon the court entered judgment for plaintiff for $5,950, from which the defendant has appealed.

By its first assignment of error the appellant complains that the court erred in not giving its special charge, which requested the court to peremptorily instruct the jury to return a verdict in its favor. The contention is, in effect, that the undisputed evidence shows that the freight car was left standing, on the track for temporary work, and that there was therefore no violation of said ordinance in leaving it there in such circumstances. We think there was sufficient evidence introduced upon this issue to require its submission to the. jury, and that therefore the court did not err in refusing to give the requested charge. It was shown that the car was placed on the track where the collision occurred on July 28, 1914; it was loaded with gravel and placed there for the purpose of being unloaded, and was unloaded on the same day. Usually the hands who did the unloading quit work at 6 o’clock in the afternoon, but sometimes the unloading was continued at night. If was undisputed that the car had been unloaded before plaintiff’s automobile collided with it, which occurred about 11:30 o’clock at night. The car, however, was permitted by the defendant to remain standing upon the track after it was unloaded, and all through the night, and a part, at least, of the next day.

The ordinance forbade the defendant, its agents and employés, from permitting any freight car, such as this was, whether empty or loaded, to remain standing on its track on Church street, except for temporary switching or work. We think that under these facts it was a question for the jury to say whether the defendant had violated the ordinance. This question was propounded to the jury, and they answered it in the affirmative. We are not now concerned with the question of whether there was any evidence to authorize the jury to answer the question negatively. The assignment is that the undisputed, evidence shows that the car was permitted to stand in the street for temporary work. We think it is clear that it was placed there for “temporary work,” but that the evidence justified -the jury in believing that it was permitted to remain standing on the street after the temporary work of unloading had been accomplished, and was therefore permitted by defendant to remain standing on the street for other than temporary switching or work. The assignment is overruled.

The second assignment also complains of the refusal of the court to peremptorily instruct a verdict for defendant. The proposition under this assignment asserts that it is not negligence per se for a railway company, which operates a team track located along one side of a street served with electric arc lights, to leave a freight car upon said track for unloading by consignee, and, in the absence of notice that the car had been unloaded by the consignee, to permit same to remain on the street during nighttime following the day the car was so placed, where the usual time required for unloading such cars was about 48 hours, and sometimes the work of unloading is completed during the nighttime. It is conceded that the proposition is abstractly correct. Acts or omissions complained of as negligence can never be said to be negligence per se, unless in violation of law, or so.opposed to the dictates of common prudence as that the minds of ordinary men cannot differ as to the conclusions to be drawn from them. But, conceding the correctness of the proposition, it furnishes no reason for sustaining the assignment. The plaintiff based his charge of negligence upon the violation by defendant of the ordinance hereinbefore quoted, and not upon the facts suggested by the proposition.

The third assignment also complains' of the refusal of the court to peremptorily instruct a verdict for the defendant; the contention being that the overwhelming preponderance of evidence shows that the plaintiff’s inquiries were proximately caused by the fact that at the time of the collision he was under the influence of intoxicating liquor to such an extent as to impair his ability to operate his automobile with such care as a person of ordinary prudence and care would have operated it under similar circumstances, which condition proximately contributed to cause the injury. There was much testimony introduced on this issue. That offered by the defendant would have well warranted a finding by the jury that plaintiff', a short time before the collision, was drunk. The plaintiff testified, however, that he was not drunk, nor under the influence of intoxicating liquors at the time of the accident, and, in this, was corroborated by his witness Wells, who was with him in the automobile when the collision occurred. The question was directly put to the jury, and they answered that he was not intoxicated at the time. The jury saw the witnesses and heard them testify, and it was their peculiar province to judge of their credibility and of the weight to be given to their testimony, and it was their duty to settle the conflict in the evidence; and having so settled it in favor of plaintiff, their finding in that regard is conclusive upon us. We cannot say that the finding of the jury upon this issue'was so manifestly against the weight and preponderance of the testimony as to be clearly wrong. The assignment is overruled.

Appellant’s fourth assignment also complains of the refusal of the court to peremptorily instruct a verdict for defendant; the contention being that the proof that plaintiff failed to exercise ordinary care in operating his automobile so as to avoid a collision was so overwhelming that the minds of ordinary persons could reach no other conclusion. By its first and second subjoined propositions it is asserted that it was plaintiff’s duty, while driving at night in a street with which he was not familiar, to use such lights on his automobile as would enable him to keep a lookout, and that it was his duty to keep a lookout on both sides of his course, to enable him to avoid collision with nearby objects or persons occupying such portions of the street, in case of his being obliged to turn from his course.

The evidence was such as to justify a finding that, at about 11:30 o’clock at night, plaintiff was driving his automobile on Church street, a public street in Galveston (with which he was unfamiliar), going westwardly, and running near the center of the street upon the track of a street railway, where the surface pi the street was smooth. Just after reaching Thirty-Eirst street, which crosses Church street at right angles, he discovered a horse-drawn vehicle approaching him, and this vehicle was also near the center of the street. When the two came close to each othef, both, in obedience to the rules of the road, turned to the right, and when plaintiff saw that he had turned far enough to avoid contact with the vehicle, and just as he was turning back into the course he had been traveling, he saw the freight car, which he had not before seen, about 10 feet in front of him and too close to avoid a collision, although he used the emergency brake in an effort to stop, and the collision necessarily followed. Plaintiff’s automobile was equipped with presto lights, which threw a bright light ahead and straight in front of the automobile, and the course of his progress being to the left of the car its rays were thrown down the street ahead of him, and not upon the car, which was to his right. There is nothing to indicate that the lights on the automobile were not the usual and ordinary I'-inri, or that they were unfit or insufficient for the purpose of street travel at night. According to the plaintiff’s testimony, he was driving at a speed not to exceed 8 or 10 miles per hour and well within the speed limits prescribed by both the state laws and the city ordinances. He, being unfamiliar with the street, did not know that there was a railroad track upon it, nor that freight cars would likely he standing upon it. He also testified that he was looking ahead, and did observe the approaching vehicle, which he avoided by turning out of his course. We think, in view of these facts, the court did not err in refusing to instruct a verdict for defendant for the reasons stated in the assignment, and the assignment is overruled.

The fifth, sixth, and eighth assignments, all of which further complain of the refusal of the court to instruct a verdict for defendant, must be overruled. There is nothing that leads us to the conclusion that the failure of plaintiff to drive on the right-hand side of the street, under the facts of this case, was negligence upon the part of plaintiff which caused or contributed to bring about his injuries. Nor can we say that the evidence so overwhelmingly established that plaintiff at the time of the collision was driving at a speed in excess of the limits prescribed by the state law or the city ordinances as to have justified the trial court in taking that question from the jury.

The ninth assignment complains that the verdict is excessive. This assignment we must also overrule. Dr. Murray, the plaintiff’s physician, testified that he made an examination of plaintiff’s injuries; that they consisted of a mass bruise of the right side, spraining of five ribs at their junction with the breast bone, a complete cut through and through of the lower lip, continuous pains in the abdomen, wrenched back, mass bruise of face, and traumatic pneumonia; that he was confined to his bed from July 30 to August 14, 1914; that he kept patient under opiates for pain and antiseptics for lip, and applied usual treatment for other conditions ; was confined to his bed and room for a month and not able to attend to his ordinary business; that from subjective symptoms, such as insomnia, vertigo, headache, and pains in the back, he concluded that the injury is of a very serious nature, perhaps permanent, and that plaintiff was still under his care; that he thought plaintiff’s period of convalescence will be wholly controlled by his recuperative powers, and, judging from the present improvement in his condition, that he should recover in about 10 months or a year from the date his testimony was given. Plaintiff, among other things, testified that ever since the accident he had been suffering in his abdomen, becomes dizzy after walking some distance, has constant headaches, which he never before had, and has been spitting up blood ever since he was hurt.

Plaintiff’s wife testified that plaintiff had pains, and that he would choke, and blood would come up in his throat; that he was bruised, spit up blood, and had pains in his side and head. Dr. Murray testified that a reasonable charge for his services to plaintiff was $50. The jury found for him in the sum of $100 for medical expenses, and the plaintiff entered a remittitur of one-half of this amount, which reduced the award for this item to $50. It was shown that plaintiff’s wife nursed him from the time of his injury to the time of the trial, at times hiring other persons to perform her domestic duties, in order to devote her time to her husband, and that the usual fees charged for nursing in Houston, where plaintiff lived, was from $21 to $25 a week. It was further shown that plaintiff’s automobile just immediately before the accident was worth $1,000, and that just after it was worth only $200. Under the foregoing facts, it does not appear that the verdict, after the remittitur of $50 was entered, is excessive.

The remarks of counsel in presenting plaintnr's case to the jury, complained of in appellant’s eleventh, twelfth, fourteenth, and fifteenth assignments of error, even if improper, were not such as to inflame the passion or arouse the prejudice of the jury against' defendant, and in view of their prompt withdrawal by counsel, when objection was made, and of the court’s prompt instruction to the jury to disregard such remarks, it is inconceivable that defendant was injured thereby. The assignments are overruled.

The remark of plaintiff’s counsel, to the effect that plaintiff had a greater right on the street than any corporation in the world, was improper as a matter of argument and incorrect as a proposition of law; but, upon objection thereto being made, plaintiff’s counsel stated that his statement was incorrect, and further that plaintiff had no superior right on the street, and withdrew the remark, and thereupon the court instructed the jury to disregard the statement, and instructed them that the statement was not the law. We must presume that, after being so admonished, the jury were not preju-dicially influenced by the remark against appellant.

We shall not discuss in detail the appellant’s other assignments of error, there being 55 in all. Many of them have been disposed of by the disposition we have made of the assignments hereinbefore discussed. The others have been carefully examined by us, and we are of the opinion that none of them point out' reversible error. We think that the judgment of the court below should be affirmed; and it has been so ordered.

Affirmed.
      ©=>For other oases see same topic and’KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S&wkey;For other cases-see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ROBINSON v. LINGNER.
    (No. 7083.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 17, 1916.)
    1. Courts <⅜^>122 —Jurisdiction—Grounds— Amount in Controversy — Alternative Demands.
    Where the petition pleaded facts, which, if true, justified a recovery of $750, but in another count pleaded further facts of a subsequent agreement barring the original claim and authorizing recovery of $500, it was for the recovery of the lesser sum, although it pleaded the alternative demands.
    [Ed. Note. — For other cases, see Courts, Cent, Dig. §§ 413, 427; Dec. Dig. <§=122.]
    2. Courts <®=121(5) — Jurisdiction—Grounds —Amount in Controversy — Alternative Demands.
    Plaintiff sued on a contract for a broker’s commission of $750. A second count pleaded an oral agreement to pay him $500 in case of an exchange. The district court has jurisdiction only of amounts in excess of $500. Held, that it had jurisdiction of the claim for $500, although recovery of the larger amount was barred by the subsequent agreement, sinoe any interest to be recovered on the lesser amount was in the nature of damages for detention of the money and properly part of the amount sued for, and not interest such as is allowed on an open account, or of a written contract ascertaining the sum payable as provided for in Rev. St. 1911, arts. 4977, 4978.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 419, 420; Dec. Dig. <5=121 (5).]
    3. Brokers <§=82 — Action—Pleading.
    Where a broker suing for an agreed commission pleaded the facts justifying recovery, the question whether the allegation that he was defendant’s agent was a statement of a conclusion and not of fact, and whether exception thereto was erroneously sustained, was immaterial; his right to compensation being the same regardless of that question.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 101-103; Dec. Dig. <§=82.]
    Appeal from District Court, Jackson County ; John M. Green, Judge.
    Action by P. C. Robinson against John Lingner. From a judgment dismissing the action, plaintiff appeals.
    Reversed and' remanded.
    Rose & Sample, of Edna, for appellant.
   McMEANS, J.

P. C. Robinson brought this suit against John Lingner to recover certain commissions alleged to be due him for his services in procuring a purchaser for a tract of land owned by the appellee. He alleged that during the year 1912, prior to September 1st, by a verbal contract entered into between him and appellee, he became the latter’s agent for the sale or exchange of a certain 387.65-acre tract of land in Jackson county; it being stipulated in said contract that appellant should make reasonable efforts to find or procure some person or persons to whom appellee might, within a reasonable time, sell or exchange said land at the price of $75 per acre, a total of $29,073.75, and that in case of a sale to any such person or persons found or procured by appellant he should be paid by appellee a commission of 5 per cent., or, in case of an exchange, 2½ per cent, of the exchange value, at the time of the consummation thereof, for his commission. He further alleged that on or about the 2d day of December, 1912, appellee did convey said land by way of exchange to persons found and procured by him, at an exchange value of $30, 000, and on said date there became due appellant his commission of 2½ per cent., amounting to $750, and he was entitled to recover same, together with interest from its due date. Appellant further alleged that, after he had procured the person to whom ap-pellee conveyed his said land by way of exchange, and had brought them to him, and just before the contract for such exchange was, on the 21st day of October, 1912, made, appel-lee verbally agreed to pay appellant at the time of the consummation of the exchange $500 for his services already performed and which he might thereafter perform in aiding in bringing about the consummation of said exchange. Then follow the allegations that the exchange was finally consummated on or about the 2d day of December, 1912, at which time appellee became liable and bound to pay appellant the said sum of $500, together with interest from its due date, under and by virtue of this second agreement. The petition closed with the following prayer:

“Wherefore plaintiff prays judgment against defendant for the sum of $750 with 6 per cent, interest from December 2, 1912, if such judgment be proper; if not, he prays that he have judgment for the sum of $500 with 6 per cent, interest thereon from December 2, 1912, until paid; that he have judgment for his costs herein and for all relief, general and special, to which in law and in equity he may be entitled.”

The defendant filed a plea in abatement in which he urged that the court was without jurisdiction for the reason that the amount in controversy was only $500 exclusive of interest, and presented a general demurrer to the petition based upon the claim that the amount sued for was below the jurisdiction of tlie court. Both the plea in abatement and the demurrer were sustained by the court, and the suit was dismissed, and from the judgment of dismissal the appellant has pfosecuted this appeal.

By his first assignment' of error appellant complains of the action of the court in sustaining the defendant’s plea in abatement and general demurrer, for the reason, in effect, that appellant pleaded and relied for a recovery (a) upon an express verbal contract, by the terms of which he was entitled to recover of defendant $750 and 6 per cent, interest from December 2, 1912, as damages, or (b) upon an express verbal contract by the terms of which he was entitled to recover of defendant $500 and 6 per cent, interest from December 2, 1912, as damages, his prayer being in tbe alternative; and that the court had jurisdiction of the subject-matter regardless of whether the petition be construed as asserting a cause of action for a recovery of $750 or $500.

Plaintiff in his petition pleaded facts, which, if true, justified a recovery for $750, provided he had not gone further and pleaded facts which showed that his right to recover that sum had been lost as a result of a subsequent agreement by which the obligation on the part of the defendant to pay him that sum had been mutually abrogated and a new contract mutually substituted, whereby he was entitled to recover only $500. These facts appearing in his pleading when viewed as a whole, we think the trial court properly construed his suit to be one for recovery of the lesser sum, even though plaintiff counted upon both and prayed for a recovery in the alternative.

Conceding, then, that plaintiff’s cause of action was for the recovery of the principal sum of $500 and interest thereon from the time the money was contracted to be paid to him, did the district court have jurisdiction of the amount in controversy? We think this question must be answered in the affirmative. Plaintiff alleged that by the terms of the agreement the defendant became obligated to pay him $500 on the day the exchange of the land was consummated, which was December 2, 1912, and that he was entitled to a judgment for said sum and for 6 per cent, per annum interest thereon from said date. That the district court has not jurisdiction of suits where the amount in controversy is exactly $500, exclusive of interest, is well settled in this state. Railway Co. v. Rambolt, 67 Tex. 654, 4 S. W. 356; Garrison v. Express Co., 69 Tex. 345, 6 S. W. 842. But the interest here spoken of is interest eo nomine, such as is allowed by article 4977, Revised Statutes, on all written contracts ascertaining the sum payable, when no specified rate of interest has been agreed upon by the parties to the contract; or by article 4978, upon open accounts. In both classes above mentioned interest is allowed as an incident of the debt, and cannot be added to the principal sum sued for in order to confer jurisdiction upon the court. To illustrate: Suppose the suit is to recover upon a debt for exactly $500, evidenced by a written contract ascertaining the sum payable, or by an open account. Here the right to recover interest would flow from the contract itself as an incident thereof, and could not be added to the principal sum in order to bring the amount sued for within the jurisdiction of the court. But the interest sued for in this case does not fall within the class of an open' account (McCamant v. Batsell, 59 Tex. 363), or within the class of a written contract ascertaining the sum payable (Heidenheimer v. Ellis, 67 Tex. 426, 3 S. W. 666; Watkins v. Junker, 90 Tex. 584, 40 S. W. 11; Railway v. Jackson, 62 Tex. 209; McNeil v. Casey, 135 S. W. 1130), but within that class of cases in which a sum equal to the legal rate of interest may be recovered as damages for detention of money or some other delinquency, and may therefore be taken into consideration in determining whether the entire amount sued for is within the jurisdiction of the court. McNeil v. Casey, above cited, is a case in which the petition filed in the county court alleged that plaintiff purchased land of defendant and paid $1,000 as earnest money, and that by the terms of the contract, if the trade fell through on account of defendant’s default, such amount was to be refunded; that the defendant had defaulted, but had refused to refund the sum in question, and recovery thereof, with interest, was sought, and it was. held that the county court had no jurisdiction, because the amount sued for was beyond the jurisdiction of the county court, in that the interest sued for could be recovered only as damages. In writing the opinion of the court, Associate Justice Rice uses-this language:

“The settled rule in this state with reference-to this matter seems to be that when interest is sought eo nomine, as flowing from and incident to the contract in writing sued upon, it will not be taken into account in determining the jurisdiction of the court; but the contrary is true where the same is sued for as an element of damages arising from the breach of the contract, and where the same is not specially recoverable as due under the contract itself.”

It follows that it is our opinion that the-court erred in sustaining the plea in abatement and general demurrer, and in dismissing the case, and for this error the judgment of the court below must be reversed.

The action of the court in sustaining-the special exception to plaintiff’s petition to the effect that the allegation that plaintiff was the defendant’s agent for the sale of the-land was a statement of a conclusion and not of fact, even if erroneous, is immaterial. Plaintiff pleaded a contract by and under which he was authorized to find a purchaser-for the land, performance thereof upon his-part, and the facts which entitled him to a recovery. Whether the contract constituted him defendant’s agent neither added to nor detracted from his right to recover the amount agreed upon by the parties to be paid to him as compensation for his services.

For the error indicated, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.
      <&=jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    SIMPSON et al. v. ALEXANDER.
    (No. 4553.)
    (Court of Civil Appeals of Texas. Austin.
    March 3, 1916.)
    Appeal and Error @=3621(3) — Limitations— Construction with Reference to Other Statutes.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2079, provides that an appeal will lie from_ an interlocutory order of the district court appointing a receiver or trustee in any cause, provided such appeal be taken within 20 days from the entry of such order. Article 1608 provides that in all cases of appeal the transcript shall be filed within 90 days after the appeal is performed. The defendants filed exceptions to an order appointing a receiver, gave notice, and filed a supersedeas bond within 20 days from the entry of the order, but did not file the transcript until later. Held, that the appeal was perfected upon the notice and filing of the bond, and that the transcript, not being necessary to an appeal, could be filed, under article 6108, within 90 days after the appeal bond was taken, in view of the history of legislation as shown by articles 2084, 2099, 2105, 2108, 4644, 6401, and chapter 20 of title 37, the transcript not being mentioned in describing the steps necessary to take appeal, the delivery of the transcript not being authorized until an appeal has been perfected, and in two instances the Legislature having provided that a transcript be filed in less than 90 days, indicating that if it was not intended that article 6108 should govern, an express provision for the filing of the transcript would have been included in article 2079.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. D-ig. § 2730; Dec. Dig. @=621(3).]
    Appeal from District Court, Burnet County ; N. T. Stubbs, Judge.
    Action by C. H. Alexander against John N. Simpson and others. From an order appointing a receiver, on motion of the plaintiff, the defendants appeal.
    Rehearing granted after affirmance on certificate.
    H. W. Allen, of 'Dallas, White, Cartledge & •Graves, of Austin, and Adams & Stennis, of Dallas, for appellants. W. H. dark and Bird & Bird, all of Dallas, for appellee.
   RICE, J.

On the 10th of August, 1915, Hon. N. T. Stubbs, judge of the Thirty-Third judicial district, in chambers during vacation, upon the application of appellee, appointed E. M. Turner, of Dallas, receiver to take charge of certain properties involved in this litigation, upon his giving bond in the sum of $50,000, conditioned as required by law, which order was subsequently modified on the 17th of August, 1915, but continuing said receivership in force. Both of these orders were filed and entered of record by the clerk, the first on the 11th of August, 1915, and the latter on the 17th of said month. Turner, the receiver, qualified on the 12th of August, 1915, by giving bond and taking the oath, as required by law. On the 27th of said month, appellants filed exceptions to the order appointing the receiver, and gave notice of appeal therefrom to the Court of Civil Appeals, and on the last-named day filed their supersedeas appeal bond in the amount fixed by the court, conditioned as required by law, which was duly approved by the clerk of said court.

On October 30, 1915, no transcript having been filed in this court by appellants, appellee filed and presented his motion to affirm the case on certificate, alleging the facts above set out. Appellants resisted said motion to affirm on certificate, chiefly on the ground that they had 90 days from and after the filing of their appeal bond within which to file such transcript here, in accordance with article 1608, Vernon’s Sayles’ Rev. Civ. Statutes, vol. 1; while appellee contended that such transcript must be filed in this court within 20 days from the entry of the order appointing the receiver, citing in support of his view article 2079, Vernon’s Sayles’ Civil Statutes, vol. 2, which provides that:

“An appeal shall lay from an interlocutory order of the district court appointing a receiver or trustee in any cause; provided, such appeal be taken within twenty days from the entry of such order. An appeal under such cases shall take precedence in the appellate court; but the proceedings in other respects in the court below shall not be stayed during the pendency of the appeal, unless otherwise ordered by the appellate court.”

On a former day of this term we granted the motion to affirm on certificate, holding in accordance with appellee’s contention that the expression in article 2079 of Vernon’s Sayles’ Civil Statutes, vol. 2, “provided such appeal' be taken within twenty days from and after the entry of such order,” meant that the transcript should be filed in this court within such time — which was not done. Upon an able and elaborate presentation of their side of the question in this controversy in their motion for rehearing, appellants have convinced us that we were in error in so holding. We now therefore withdraw our former opinion and hold that appellants, in the instant ease, in accordance with article 1608, supra, had the right to file their transcript with the clerk of this court within 90 days from the performance of said appeal, and, in support of this view, we adopt as our opinion the argument of appellant’s counsel on motion for rehearing, as follows:

“It is the contention of the appellants that the phrase, ‘provided such appeal be taken within twenty days from the entry of such order,’ found in article 2079, does not refer to the date of the filing of the transcript in the Court of Civil Appeals, and does not mean that the transcript shall be filed in the Court of Civil Appeals within 20 days from the date of the entry of the order appointing a receiver, but means that such steps as are necessary to confer jurisdiction upon, the court to hear and determine the appeal shall be taken within said period of time. Our contention is that there is no substantial difference between taking an appeal and perfecting' an appeal. In view of other articles of the statute defining what is meant by taking an appeal, we think it is quite clear that, when notice is given and an appeal or supersedeas bond is filed, an appeal is taken within the meaning of the statute; and that, since article 2079 is silent as to when the transcript shall be filed in such cases, the statute authorizing the same to be filed within 90 days after the appeal is perfected should govern. Had it been the intention of the Legislature, when it enacted article 2079, that the transcript should be filed in the appellate court within 20 days after the order appointing the receiver is made, there would have been some language indicating that fact, as is the case in the provision with reference to appeals in quo warranto proceedings. That statute, article 6401, provides: ‘Every person or corporation who shall be cited as hereinbefore provided shall be entitled to all the rights in the trial and investigation of the matters alleged against him, as in cases of trial of civil causes in this state; and, in eases of appeal to which either party shall be entitled, the said court shall give preference to such case and hear and determine the same at the earliest day practicable; and all such appeals shall be prosecuted to the term of the court in. session, or the first term to be held, if not in session, after judgment has been rendered in the district court.’ The Legislature in this statute made it clear when the appeal should be heard. The article quoted not only provides for the appeal, and that the courts shall give preference to the same as it does in the article in question, but it further provides that the appeal shall be heard and prosecuted to the term of court in session or the next succeeding term.
“Article 4644, provides for appeals from the interlocutory orders granting a temporary injunction, and, like article 2079, it provides that the appeal shall not have the effect of suspending the enforcement of the order appealed from, unless it shall be so ordered by the court or the judge, who enters the order. And it further provides that the transcript in such ease shall be filed with the clerk of the Court of Civil Appeals not later than 15 days after the entry of the record of such order or judgment granting, refusing, or dissolving such injunction. Here, too., the Legislature made it clear that the transcript should not be filed as in ordinary cases, but should be filed within 15 days after the entry of record of the order appealed from. It seems to us that, had the Legislature intended that the transcript in appeals from orders appointing receivers should be filed within 20 days from the entry of such order, it would have so indicated by express language. The Legislature, in effect, provides that the proceedings authorized in article 6401 with reference to quo wan-anto, and in article 4644 with reference to appeal from interlocutory orders granting and refusing injunction, shall have preference in the appellate court, but, in addition to that, each of said articles expressly provides when the transcript shall be filed. Article 4644 makes such provision in express language, and article 6401 does so by requiring that appeal should be heard by the Court of Civil Appeals during the term in session at which the appeal is taken, or at the next succeeding term. Article 2079 under consideration is found in title 37, c. 20, with reference to practice in the district and county courts. And we believe that article 2084 of the same title and chapter upon the same subject defines what is meant by the phrase ‘such appeal should be taken within twenty days from the entry of such order.’ Article 2084 provides that: ‘An appeal may, in cases where an appeal is allowed, be taken during the term of the court at which the final judgment in the cause is rendered by the appellants giving notice of appeal in open court within two days after final judgment, or two days after judgment overruling a motion for a new trial, which shall be noted on the docket and entered of record, and by his filing with the clerk an appeal bond, where bond is required by law, or affidavit in lieu thereof, as hereinafter provided, within twenty days after the expiration of the term.’ This article provides that an appeal is taken by giving the notice and executing the bond required within 20 •days after the expiration of the term. Article 2079 does not provide for a notice of appeal, but provides that the appeal may be taken in 20 days after the entry of the order appointing a receiver, being the same length of time allowed for the filing of an appeal bond after the expiration of a term of court during which judgment had been rendered. It is therefore manifest, it seems to us, that the phrase with reference to the taking of appeal contained in article 2079 means that the appellant shall have 20 days in which to give notice and file the bond after the granting of the order appointing a receiver. The reason for such construction is that when a receiver has beeri appointed without notice, as in the instant case, a number of days might elapse before the party whose property is placed in the hands of a receiver is advised of the action of the court, and a reasonable time should be allowed in which to look into the matter and arrange about giving the required bond. It is not at all impossible nor improbable that where a receiver is appointed without notice, as in this case, the person or corporation whose property is affected by such appointment might not even learn of the appointment until the expiration of 15 or 18 days, and the construction placed by this court upon article 2079 would in effect deprive the interested parties of the right to appeal, for it would be humanly impossible to give the bond, prepare and file the record in the Court of Civil Appeals after the appellant had received notice of the action of the court.
“Our position, we think, is strengthened and fortified by the provisions of article 2099 of the Revised Statutes as to when an appeal or writ of error shall be regarded as having been perfected. That article provides: ‘When the bond, or affidavit in lieu thereof, provided for in the two preceding articles, had been filed and the previous requirements of this chapter have been complied with, the appeal or writ of error, as the case may be, shall be held to be perfected.’ The requirements referred to are the giving of the notice, filing of the bond, in cases of appeals, and the service and return of citation, etc., in cases of writs of error. We believe that it is clearly apparent from all of our statutes upon the subject of appeals that the filing of the transcript in the appellate court is no part of the proceedings necessary to take an appeal, but the filing of the transcript is but a step in the prosecution of the case on appeal which is taken when notice and bond are given within the time prescribed by the statute. Article 2105 exempting state, counties, railroad commission, etc., from the necessity of executing a bond upon appeal, provides that neither the state, county, etc., mentioned in said article ‘shall be required to give bond on any appeal or writ of error taken by it, or either of them in any civil ease.’ It certainly cannot be, and will not be, contended that the ‘appeal or writ of error taken’ referred to in said article 2105 is not complete or perfected until the transcript of the record shall have been filed in the appellate court.
“We contend that an appeal must be taken and perfected before the transcript is prepared, and that the transcript in no case adds anything to, or takes anything from, the proceedings necessary to ‘take and perfect’ an appeal, for the clerk of the lower court is not authorized to prepare a transcript in any case until after the appeal has been perfected. This is shown by the provisions of article 2108 of the Revised Statutes with reference to the preparation of transcript in the following language: ‘When an appeal or writ of error has been pei’feeted, the clerk of the court shall, upon the application of either party, make out, and deliver to him, a transcript of the record of the case.’ To hold that the preparation of the transcript or the filing of the same constitutes any part of the proceedings necessary to the taking of an appeal in any case does violence to, and is in conflict with, the statutory provisions upon that subject above referred to. It is true the articles of the statute last above referred to with reference to appeals do not in express terms refer to article 2079 under consideration, but they serve to furnish a definition of and to show the legislative meaning of the phrase contained in said article 2079 with reference to the taking of an appeal, and we submit that the last step in ‘taking an appeal’ is the filing and approval of the appeal or supersedeas bond, and not the filing of the transcript in the appellate court, and that the court erred in holding in this case that the appeal was not taken until the transcript was filed in the Oourt of Civil Appeals, and that failure to file the same within 20 days deprived the appellants of their right to appeal.
“WTe contend that the court acquired jurisdiction of this case when the supersedeas bond was filed and approved, and that nothing further was necessary to confer jurisdiction upon the court; but if, as the court holds, the right of appeal was lost unless transcript was filed in this court within 20 days after the entry of the order appointing the receiver, and that it was necessary to file the transcript before the appeal was actually taken, the court had no jurisdiction of the matter and had no jurisdiction to affirm upon certificate, and instead of affirming the case the same should have been dismissed, which, of course, so far as appellant is concerned, would have been equivalent to affirming on certificate. But the suggestion is made for the purpose of emphasizing the point that the filing of the transcript was not part of the procedure in taking and perfecting the appeal.
“We submit that the appeal is taken in the trial court, and that the appellate court acquires jurisdiction of the cause only after the same has been transferred by appeal to that court. Chapter 20 of title 37 of the Revised Civil Statutes governing the practice in the district and county courts contains a complete statement of the steps necessary to the taking or perfecting of an appeal. We find no provision in that chapter requiring the filing of the transcript in the Court of Civil Appeals. When we turn, however, to the chapter governing the practice in the Court of Civil Appeals, we find that article 1608 requires the filing of the transcript in the Court of Civil Appeals within 90 days from the performance of the appeal. In the scheme of practice and procedure governing civil cases in the trial and appellate courts in this state, we find therefore that as a part of that scheme the filing of the transcript is contemplated as one of the steps to be taken after the case has been appealed, and the statutory requirement with reference to the filing of the transcript logically is found in the chapter relating to the practice and procedure in the appellate court.
“If the construction placed upon article 2079 by this court is correct, we have the anomalous condition of being required to take an appeal after the statute says the appeal has already been perfected and has already been performed. There is no provision to be found anywhere in the statutes stating the time in which transcripts of the record on appeal from interlocutory orders appointing receivers shall be filed, other than the article 1608, above referred to. The time in which a transcript on appeals from interlocutory orders granting or refusing injunctions is clearly pointed out in the article of the statute upon that subject, and it clearly appears from the article of the statute pertaining to quo warranto that the transcript must be filed and the case must be heard and determined at the term of the appellate court in session when the appeal is taken, or at the next term. But article 2079 is silent as to when the transcript shall be filed. Being silent upon that subject, it seems to us that it necessarily follows that article 1608 should govern in this and similar cases, for it provides that, in all cases of appeal, the transcript shall be filed within 90 days from the performance of the appeal. And it necessarily follows that 90 days after the performance of appeal is allowed in all cases except such as are expressly exempted or excepted from that article. And the only instances excepting are appeals from interlocutory orders granting or refusing injunctions and in quo warranto proceedings.
“We respectfully submit that, by invoking and enforcing the provisions of article 1610 of the statute authorizing an affirmance on certificate, this court has necessarily recognized the fact that an appeal has been taken in this case. We call the court’s attention specifically to the language of article 1610 authorizing the filing in the Court of Civil Appeals of a certificate of the clerk of the district court in which the appeal may have been taken; the very certificate which is required to be filed as a basis for the affirmance under article 1610 is required to state the time when the appeal was perfected. We do not complain of this court’s action in assuming jurisdiction of this case. We concede that jurisdiction attached in the Court of Civil Appeals upon the filing of the supersedeas bond, but we likewise think that the jurisdiction did not attach until the appeal to this court was perfected or taken by the filing of said supersedeas bond; and article 1608, providing that in all cases of áp-peal transcript shall be filed within 90 days after the appeal is performed, and there is no exception in the statute with reference to appeals from interlocutory orders appointing receivers; the transcript can be lawfully filed and was lawfully filed 90 days after the appeal was perfected, and the court erred in affirming upon certificate, as hereinbefore contended.”

For the reasons above stated, we grant the motion for rehearing and set aside our former judgment affirming this case upon certificate, and now overrule the motion to affirm on certificate, and direct the clerk of this court to file said transcript as of the day it was received by him.
      <2=^For other cases see same topic and KEY-NUMBKR in all Key-Numbered Digests and Indexes