text:
    WHITTEN v. WHITTEN.
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 12, 1913.
    Rehearing Denied May 10, 1913.)
    1. Appeal and Error (§ 743) — Assignments of Error — Preparation—New Trial.
    Assignments of error which do not refer to that portion of a motion for new trial in which the errors are complained of, as required by Court of Appeals Buies 24, 25 (142 S. W. xii), will be disregarded.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.]
    2. Continuance (§ 25) — Absent Witnesses —Premature Suit.
    It was not error to deny a motion for continuance to obtain the testimony of an absent witness to testify to facts showing that the suit was prematurely brought, where plaintiff’s testimony on that question was of such an uncertain character that it did not show that the debt was not due.
    [Ed. Note. — For other cases, see Continuance, Cent./Dig. § 73; Dec. Dig. § 25.]
    3. Evidence (§ 222) — Declarations Against Interest — Maturitv oe Debt.
    Where defendant claimed that the debt sued on was not due, evidence of a third person, that defendant stated to him that the -indebtedness would fall due in four months from the date it was incurred, was admissible to support plaintiff’s allegation that the claim had matured.
    [Ed. Note. — For other cases, see -«Evidence, Cent. Dig. §§ 786-800, 803-808; Dec. Dig. § 222.]

      4. Appeal and Error (§ 748) — Assignments of Error — Consideration.
    Errors which are fundamental will be considered on appeal, notwithstanding the assignments are not in proper form.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3058-3064; Dec. Dig. § 748.]
    5. Judgment (§ 253) — Conformity to Pleading — Foreclosure—Amount of Debt.
    Where plaintiff’s petition in a suit to recover $1,900 alleged that $800 of the amount was secured by chattel mortgage on a stallion, it was error to decree a foreclosure of the lien on the stallion for the entire amount of the debt.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 443, 444; Dec. Dig. § 253.]
    Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.
    Action by Pat Whitten against G. P. Whit-ten. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered in part, and affirmed in part.
    Martin & Smith, of Ft. Worth, for appellant. Burns & Brown, of Ft. Worth, for ap-pellee.

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

   SPEER, J.

This is an action by Pat Whit-ten against G. P. Whitten to recover a sum of money, $1,900 of which was alleged to be secured ,as follows: The sum of $800 by a chattel mortgage on a certain bay stallion and the residue of said amount by a mortgage lien on ten acres of land in Tarrant county. The defendant, among other defenses, alleged that the suit was prematurely brought. The trial resulted in a judgment for the plaintiff together with a foreclosure of his liens, and the defendant has appealed.

Appellant’s assignments of error are not in compliance with rules 24 and 25 for the Courts of Civil Appeals (142 S. W. xii), in that they do not refer to that portion of the motion for a new trial in which the errors are complained of, and may therefore be disregarded.

If, however, we were to consider the merits of those assignments complaining of the action of the court in overruling the motion for a continuance, we would overrule them because, in view of the uncertain character of appellant’s testimony upon the issue of his defense that the debt sued on was not due, it is altogether improbable that the testimony of the absent witness Wray could have changed the result of the trial. We think appellant’s own testimony falls far short of supporting his plea, and the facts are more certainly within his knowledge than of any other person.

The testimony of the witness S. A. Whitten to the effect that defendant Whitten stated to him that the indebtedness to plaintiff was to fall due in four months from its date was properly admitted, since the same was an admission by defendant in support of plaintiff’s, allegations as to the maturity of the debt. '

There is an error, however, which we will notice notwithstanding the defects in the assignments, since the error is fundamental in its nature, in respect to the foreclosure of the chattel mortgage lien against the stallion.

Appellee’s petition did not assert such chattel mortgage lien beyond the sum of $800 with interest due on the Mrs. Nettie Steifel note which he held, whereas the foreclosure against the animal was for the entire sum of $1,900. This matter was called to the trial court’s attention in a motion for new trial, and the appellant is not only entitled to a reversal in this respect, but to the costs of this appeal as well. The judgment of the district court is therefore reversed in so far as the foreclosure of the chattel mortgage is concerned, and judgment here entered for appellee foreclosing the chattel mortgage lien against the stallion for the amount of the Nettie Steifel note only; but in all other respects the judgment of the district court is affirmed.

Reversed and rendered in part, and affirmed in part.


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    TEXAS & P. RY. CO. v. TOMLINSON.
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 12, 1913.)
    1. Evidence (§ 472) — Opinion Evidence — Proper Time for Transit.
    It is not proper for a witness, in an action for delay in a shipment of live stock, to give his opinion as to what is a reasonable time for the shipment; since that is the question which the jury are to determine in deciding whether the railroad company was negligent.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2186-2195, 2248; Dec. Dig. § 472.]
    2. Carriers (§ 230) — Carriage of Dive Stock — Instruction—Measure of Damage.
    In an action for damage to live stock in transit, an instruction that the measure of damage was the difference between the market value of the cattle in their condition when delivered and in the condition in which they should have been delivered; that the measure of damage for delay is the depreciation in value while detained at the shipping point, and the difference in the market value at the time of arrival and at the time they should have arrived, was erroneous, since the first part comprehends the entire measure of damage, and the second part authorizes the jury to add additional compensation thereto.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.]
    3. Carriers (§ 222) — Carriage of Dive Stock — Action for Damage — Parties.
    In an action for damage to cattle in transit, the carrier cannot defend on the ground that plaintiff was a joint owner of the cattle with another, where the carrier made the contract of carriage with him alone.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 952; Dec. Dig. § 222.]
    4. Trial (§ 267) — Instructions—Charge in General Terms — Sufficiency.
    Where a special charge presented by the defense is not applicable to the evidence, a charge by the court presenting an affirmative defense in general terms is sufficient.
    [Ed. Note.—Eor other cases, see Trial, Cent. Dig. §§ 668-672, 674; Dee. Dig. § 267.]
    5. Trial (§ 252) — Instructions — Conformity to Evidence.
    Where, in an action against two carriers for delay in a shipment of live stock, no evidence tending to show a delivery to, or delay by, the second carrier was introduced, an instruction asked by the first carrier shifting the burden of explaining the delay and the cause of injury to the second carrier is properly refused.
    [Ed. 'Note.—Eor other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    6. Appeal and Error (§ 1037)—Harmless Error—Refusal to Quash Citation.
    Error in overruling a motion to quash a citation is harmless after defendant’s appearance and answer in the court below.
    [Ed. Note.—Eor other cases, see Appeal and Error, Cent. Dig. § 4032; Dec. Dig. § 1037.]
    Appeal from Stephens County Court; N. N. Rosenquest, Judge.
    Action by J. E. Tomlinson against the Texas & Pacific Railway Company and another. Judgment for plaintiff, against the Texas & Pacific Railway Company, which appeals.
    Reversed' and remanded.
    Earl Conner, of Eastland, for appellant. Alexander, Power & Ridgway, of Et. Worth, for appellee.

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

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

   CONNER, C. J.

Appellee instituted this suit in the county court against the appellant (the Texas & Pacific Railway Company) and the Et. Worth Belt Railway Company to recover damages to a car load of cattle shipped from Cisco, Tex., to Et. Worth, in January, 1912. He alleged negligent delay, rough treatment en route, and decline in market value. Upon the trial the court gave a peremptory instruction in favor of the Et. Worth Belt Railway Company, but as against the appellant the trial resulted' in a verdict and judgment for appellee in the sum of $200.

We are of the opinion that the judgment must be reversed because of two plain errors committed on the trial. The first relates to the evidence of appellee, who. was permitted to testify over appellant’s objection that: “I am familiar with what would be a reasonable time for shipments of cattle from Cisco, Tex., to Ft. Worth, to the stockyards at said city, having shipped cattle on the road for several years, and in my opinion I would say something like 7 or 8 hours would be a reasonable time for a through train, and that from 8 to 9 hours would be a reasonable time for a -local shipment, not exceeding 10 hours for a local shipment. I do not believe that I ever shipped a local train that went through in the same time. I think 1 know what such time is, and I have stated it.” Appellant objected to this testimony, among other things, on the ground that it embodied a mixed question of fact and law which was for the jury’s determination, and we think the objection well within the rule now well established inhibiting the opinion of witnesses on the subject. It was the'duty of the railway company, among other things, to transport ap-pellee’s stock with reasonable dispatch, and the jury were so charged. A failure to do so would constitue negligence, and for a witness to state a mere opinion that a given run was a reasonable one is but another way of stating whether the run constituted negligence, which is an issue in eases of this character peculiarly for the jury. See H. & T. C. Ry. Co. v. Roberts, 101 Tex. 418, 108 S. W. 808; G., C. & S. F. Ry. Co. v. Kimble, 49 Tex. Civ. App. 622, 109 S. W. 234; G., H. & S. A. Ry. Co. v. Noelke, 110 S. W. 82.

Among other things, the court gave the following charge to the jury, to wit: “The measure of damage in this case is the difference in the market value of the cattle at destination in the condition in which they were delivered and the condition in which they should have been delivered, transported, and handled with ordinary care and diligence. The measure of damages for delay in shipping cattle is depreciation in value while detained at shipping point, and the difference in the market value at their destination at the time of arrival and at the time they should have arrived.”

There was evidence tending to show delay at the shipping point as well also as at Et. Worth. The first sentence of the charge quoted evidently comprehended the entire measure of appellee’s damages, and the addition thereto of the second sentence authorizing the assessment of damages for depreciation in value for delay at the shipping point was erroneous as authorizing the jury to add to full compensation additional damages. See St. L. & S. F. Ry. Co. v. Lane, 49 Tex. Civ. App. 541, 110 S. W. 530.

For the errors above noted the judgment must be reversed, but we perhaps should notice several other assignments. It developed upon the trial that appellee was a part owner only of the cattle in question, and it is insisted that for this reason the court should have given a peremptory instruction in appellant’s favor. But we think it must now be considered settled that a joint owner of property may sue the carrier with whom he has.contracted for any violation of its duty in transporting the property. In such cases the wrong is viewed as a breach of the contract of shipment, and the carrier, having entered into the contract with one only of the joint owners, cannot relieve itself from the consequence of a breach at the suit of the joint owner with whom it contracted on the mere ground that others have a joint interest in the property transported. See Mo. Pac. Ry. Co. v. Smith, 84 Tex. 348, 19 S. W. 509; So. K. Ry. Co. of Texas v. Morris, 100 Tex. 611, 102 S. W. 396, 123 Am. St Rep. 834. All assignments, therefore, involving this question, must be overruled.

While it is undoubtedly true that an appellant has the right to have an affirmative presentation of any special defense pleaded, yet upon an examination of appellant’s special charge No. 4, to the rejection of which complaint is made in the seventh assignment, we find that it is not strictly applicable to the evidence, in view of which the court’s charge presenting the defense in general terms must be held to be. sufficient. The said assignment will, accordingly, be overruled.

We find no error in the refusal of special instruction No. 8, as urged in the eighth assignment, for the reason that there is no evidence tending to show a delivery to or a delay of the cattle in controversy at any time by the Ft. Worth Belt Railway Company. It would therefore have been improper on the part of the court to have shifted from appellant to that company the burden of explaining the delays and the cause of the injuries to the cattle shown. For the same reason we find no error in the court’s peremptory instruction in favor of the Ft. Worth Belt Railway Company.

The complaint in the eleventh assignment of the court’s refusal to sustain appellant’s motion to quash the citation herein is evidently now immaterial because of the fact of appellant’s appearance and answer in the court below. M., K. & T. Ry. Co. v. Scoggin, 57 Tex. Civ. App. 349, 123 S. W. 229.

For the errors noticed it is ordered that the judgment be reversed, and the cause remanded as to appellant but left undisturbed as to the Ft. Worth Belt Railway Company.


text:
    HENDRIX v. BRAZZELL et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 19, 1913.)
    1. Frauds, Statute of (§ 150) — Demurrer —Raisins Defense.
    The petition,' not showing on its face that the promise of defendant to pay the debt of his mother, on which it is based, was a verbal one, is not subject to general demurrer.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 360-362; Dec. Dig. § 150.]
    2. Frauds, Statute of (§ 152) — Necessity of Pleading.
    The statute of frauds, to he availed of, must be pleaded.
    [Ed. Note. — For other cases, see Frauds, Statute of. Cent. Dig. §§ 363-366, 371, 372; Dec. Dig. § 152.]
    3. Venue (§ -32) — Plea.
    The allegations of the petition conferring jurisdiction, under Rev. Civ. St. 1911, art. 1830, cl. 4, over the person of a defendant on the court in which the action was brought, the issue of his privilege of being sued in the county of his residence must be raised by plea alleging averments of the petition were fraudulently made to confer such jurisdiction; and a mere exception to the petition on such ground is insufficient.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 47-50; Dec. Dig. § 32.]
    4. Trial (§ 75) — Objections to Evidence-Repetition — Necessity.
    Objection to testimony is waived by other witnesses being permitted without objection to testify to substantially the same effect.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 171-182, 202; Dec. Dig. § 75.]
    Appeal from Somervell County Court; J. H. Farr, Judge.
    Action by J. W. Brazzell against O. B. Hendrix and another. Judgment for plaintiff. Defendant I-Iendrix appeals.
    Affirmed.
    C. D. Spann, of Rising Star, and Theodore Mack, of Ft. Worth, for appellant: Levi Herring, of Glen Rose, and Simpson & Myres, of Ft. Worth, for appellees.

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

   CONNER, C. J.

We think appellant’s general demurrer must be overruled. In Byrd v. Ellis, 35 S. W. 1070, and Low, Adm’r, v. Felton, 84 Tex. 378, 19 S. W. 693, it is held, in effect, under the circumstances alleged by the appellee in his petition, that appellant, as the heir of his mother and as having received her estate in excess of the amount of the claim sued upon, would be personally liable. If so, it is quite clear that plaintiff’s petition states a cause of action. This principle, however, seems to have been questioned if not decided otherwise in the case of Blinn v. McDonald, 92 Tex. 604, 46 S. W. 787, 48 S. W. 571, 50 S. W. 931, stating that in such cases the remedy against the heir is for the enforcement of the lien given by law; but, however this question may be, we do not now find it necessary to decide, inasmuch as we think the plaintiff’s petition is good as against general demurrer on the promise of appellant to pay the debt of his mother. On the face of the petition this promise does not appear to have been a verbal one, nor in defendant’s answer does it appear that the statute of frauds has been pleaded, or that the consideration for the promise has been attacked, so that, as stated, we think the petition is good as against the general demurrer, and the first and sixth assignments of error, presenting substantially the same question, are accordingly overruled.

The second assignment, complaining of the court’s failure to submit the issue involving the statute of frauds, must be overruled for the reason before stated, viz., that defendant did not plead such statute.

The third, fourth, and fifth assignments urging errors relating to appellant’s plea of privilege, must all be overruled on the ground that the plea was insufficient. The plaintiff clearly alleged in his petition that the claim upon which he sued had been transferred and guaranteed to him by Mrs. Kidwell, and further alleged that Mrs. Kid-well was a resident of Somervell county. These allegations clearly conferred jurisdiction over appellant’s person in Somervell county by virtue of the fourth clause of Revised Statutes, art. 1830, and in order to raise the issue of appellant’s privilege of being sued in the county of his residence it was necessary that he allege that the allegations relating to the transfer and guaranty had been made for the fraudulent purpose of conferring jurisdiction in Somervell county. This was not done. True, appellant presented an exception to the plaintiff’s petition on this ground; but the petition on its face did not show the fact, which to be available should have been presented in the plea itself. See Cleveland v. Campbell, 38 S. W. 219; A., T. & S. P. Ry. Co. v. Williams, 38 Tex. Civ. App. 405, 86 S. W. 38; So. Pac. Ry. Co. v. Meadors & Co., 129 S. W. 171.

In the seventh assignment complaint is made of the court’s ruling in permitting Mrs. Kidwell to testify to certain statements of appellant’s mother; but, whether these statements be regarded as hearsay or not, we think the assignment presenting the question must be overruled on the ground that several other witnesses were permitted to testify without objection to substantially the same effect. In such cases, as has often been held, the objection must be considered as waived.

The only remaining assignment questions the form of the judgment; but, after an examination, we conclude that the criticism thereof is not substantial, and that the judgment considered as a whole is final.

No reversible error as presented having been found, the judgment will be affirmed.


author: HARPER, J.

text:
    TEXAS & P. RY. CO. et al. v. CROWDER et. al.
    (Court of Civil Appeals of Texas. El Paso.
    April 10, 1913.
    Rehearing Denied May 29, 1913.)
    1. Carrieks (§ 228) — Shipment oe Live Stock — Actions — Sufficiency. oe Evidence.
    In an action against a carrier for negligence and delay in transporting a shipment of mules, the testimony of a witness that .the reasonable market value of such mules, at the point of destination in the condition they would have been in, was from $50 to $60 was not sufficient proof of the value of the mules or the damages sustained.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    2. Carriers (§ 229) — Shipment oe Live Stock — Negligence and Delay — Measure oe Damages.
    The measure of damages recoverable for negligence and delay, on the part of a carrier in transporting a shipment of mules, was the difference in their market value at the time and in the condition in which they arrived at their destination and their market value at the time and in the condition in which they would have arrived if handled with ordinary care and diligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. § 229.]
    3. Evidence (§ 472)— Facts or Conclusions.
    In an action against a carrier for delay in transporting a shipment of live stock, it was error to permit a witness to testify as to what would be a reasonable time for the transportation of such a shipment.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2186-2195,2248; Dec. Dig. § 472.]
    4. Appeal and Error (§ 1173) — Reversal as to One or More Defendants.
    Where plaintiff recovered against two defendants, and a verdict was directed for the third defendant, the setting aside of the final judgment on the appeal of the defendants against whom plaintiff recovered set it aside as to all, as there can be but one final judgment; and hence the court could not affirm as to the third defendant, although no error was assigned to the court’s action in directing a verdict for it.
    TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4562-4572, 4656; Dec. Dig. § 1173.]
    Appeal from Martin County Court; J. Turner Yance, Judge.
    Action by T. S. Crowder and another against the Texas & Pacific Railway Company and others. Judgment for plaintiffs, and defendants appeal.
    Reversed and remanded.
    Douthit & Smith and H. C. Hughes, both of Sweetwater, and Alexander S. Coke, of Dallas, for appellants. Capps, Cantey, Hanger & Short and Wm. L. Evans, all of Ft. Worth, and A. L. Green, of Stanton, for ap-pellees.

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

   HARPER, J.

This suit was brought by Crowder and Flanagan against the Texas & Pacific Railway Company and connecting roads, in the county court of Martin County, Tex., alleging as cause of action that they delivered to the Missouri, Kansas & Texas Railway Company, at Itasca, Tex., 40 mules to be transported to Stanton, in Martin county, by and through the connecting carriers; that by reason of rough handling they became bruised and skinned, and that they negligently and unreasonably delayed them in transit; that they were, against plaintiffs’ wishes, dipped in crude oil or other solution, which damaged them in that it caused them to become weak and unfit for transportation; that thereafter they were delivered to the Texas & Pacific Railway Company, which failed to promptly transport them to their destination, and failed to water and feed them, by reason of which they were greatly damaged, and that eight of them died, etc., for which they prayed damages in the sum of $927.50. Defendant Texas & Pacific Railway Company and the others plead general denial, and specially plead that if plaintiffs’ mules were injured in the course of transportation over its lines, it was because tbey were poor and weak and not able to stand the sbipment, and, further, that if injured, that it was on account of being dipped as required by the quarantine regulations; further plead a release from damages on account of dipping. Tried by a jury, and verdict for plaintiffs for $810, $480 against the Missouri, Kansas & Texas Railway Company of Texas, and $330 against the Texas & Pacific Railway Company, instructed verdict for the Belt Railway Company, from which this appeal is perfected.

The first assignment of error charges that: “The court erred to the prejudice of the defendants in overruling defendants’ amended motion for new trial, for the reason that there was no testimony adduced in evidence showing the market value of the mules involved at the time and in the condition in which they were delivered to the plaintiffs at Stanton, Tex., the destination.” The plaintiff Crowder testified: “I know the reasonable market value of mules, such as these mules was in Stanton on the 26th or 27th day of April, 1911, in the condition these mules would have been in under these circumstances. The mules varied in price some. Them mules would have been worth $55; all the way from fifty to sixty dollars” —and this is all the testimony shown by the statement of facts upon the measure of damages or value of the mules in question. It will be seen that this evidence falls far short of proof of the measure of damages fixed by law to govern in such cases, viz.: “The difference, if any, in the market value of said cattle at the time and in the condition in which they arrived at their destination, and their market value at the time and in the condition in which they would have arrived at their destination handled with ordinary care and diligence.”

What is said in regard to this assignment disposes of the second and fifth assignments, which raise the same question in regard to the evidence and the charge of the court, because there was no evidence upon which to base the charge.

The third and fourth assignments complain that: “The court erred to the prejudice of the defendants in admitting in evidence the testimony of T. S. Crowder, one of the plaintiffs, to the effect that 20 hours was a reasonable time for the transportation of live stock from Et. Worth to Stanton, Tex., over the line of the Texas & Pacific Railway.” Fourth assignment: “The court erred to the prejudice of the defendants in admitting in evidence, over the objections of the defendants, the testimony of T. S. Crowder, one of the plaintiffs, to the effect that 23 hours would be a reasonable time for the transportation of a car of mules from Itasca via Et. Worth to Stanton over defendants’ lines of railways.” In the case of H. & T. C. Ry. Co. v. Roberts, 101 Tex. 418, 108 S. W. 808, is a full discussion of the same question. It is there held that it was error for the court to permit the witness to give the testimony.

Appellee Ft. Worth Belt Railway Company having had an instructed verdict in the court below, and no error having been assigned to the action of the court, suggests that the case should be affirmed as to it. But the question is settled, so far as we are concerned, that a setting aside of final judgment as against one of several defendants on appeal sets it aside as to all, because there can be only one final judgment. Danner v. Walker-Smith Co., 154 S. W. 295.

For the errors indicated the cause is reversed and remanded for a new trial.


author: SPEER, J.

text:
    TEXAS & N. O. R. CO. et al. v. DRAHN et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 19, 1913.)
    1. Appeal and Error (§ 1068) — Harmless Error — Instructions.
    An instruction giving a definition of ordinary care the very reverse of the law, if not harmless because of the error being so obvious that it could not have misled, could not have prejudiced defendant; the evidence authorizing an instructed verdict against it on the issue of liability.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.]
    2. Carriers (§ 228) — Injury to Stock Shipment — Negligence—Presumption.
    The pleading and evidence showing a contract of through shipment of live stock, a delivery thereof in uninjured condition, and redelivery at destination with many thereof dead and others severely injured, and that no one accompanied the stock for the shipper, a presumption of negligence arises which becomes conclusive in the absence of any explanation.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dee. Dig. § 228.]
    3. Carriers (§ 215) — Injury to Dive Shipment-Liability.
    Carriers of live stock, as of other freight, are liable absolutely for loss of, or injury to, stock intrusted to them for transportation, unless occasioned by act of God, the public enemy, negligence of the shipper, or the natural propensities of the animals.
    [Ed. .Note. — For other cases, see Carriers, Cent. Dig. § 923; Dec. Dig. § 215.]
    4. Carriers (§ 228) — Injury to Shipment-Cause — Burden op Proof.
    The carrier has the burden of pleading and proving that the cause of loss of, or injury to, a shipment of cattle was. something for which it was not liable.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    5. Carriers (§ 204) — Live Stock Shipment —Contract—Statutes.'
    Rev. Civ. St. 1911, art. 731, declaring the contract of a carrier with a shipper of commodities, “freight, baggage, or other property,” to be “for the safe and speedy” transportation from point of shipment to destination, applies to live stock shipments as well as others.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 927; Dec. Dig. § 204.]
    6. CARRIERS (| 228) — Live Stock Shipment —Contributory Negligence — Failure to Accompany Stock.
    In the absence of evidence raising that issue, the shipper of live stock is not to be deemed guilty of contributory negligence in not accompanying his stock.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    Appeal from Denton County Court; S. H. Hopkins, Judge.
    Action by J. F. Drahn and others against the- Texas & New Orleans Railroad Company and another. Judgment for plaintiff, and said defendant appeals.
    Affirmed.
    Head, Smith, Hare, Maxey & Head, of Sherman, and L. J. Polk, Jr., of Brownsville, for appellant. J. A. Templeton, of Ft. Worth, for appellee.

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

   SPEER, J.

This is an ordinary action for damages to a shipment of cattle made by J. F. Drahn and Edgar Kerr over the lines of the Texas & New Orleans Railroad Company and the Texas & Pacific Railway Company, the former handling the shipment from Beaumont to Dallas-and the latter from Dallas to Ft. Worth. There was a verdict and judgment in favor of the plaintiff against the initial carrier, for $270.80 and against the terminal carrier for $54 and the former has appealed.

The court’s definition of ordinary care as “the doing of something which an ordinarily prudent person would not do or the failure to do something which an ordinary prudent person would do” obviously is wrong and the very reverse of the law; but to the mind of the majority the error is so obvious that it is altogether improbable that the jury were affected by it. Whether this view be correct or not, we all agree under the facts the trial court would have been authorized to instruct a verdict upon the issue of liability and the error at most could not affect this issue. The pleading and evidence show a contract for through shipment, a delivery of the cattle in an uninjured condition, and a redelivery at final destination with many of the animals dead and the others severely injured. No one accompanied the cattle for the shipper. Under these circumstances there arises a presumption of negligence on the part of the carrier which, in the absence of any explanation whatever, becomes conclusive. F. W. & D. C. Ry. Co. v. Shanley, 36 Tex. Civ. App. 291, 81 S. W. 1014, and authorities there cited. So that if in every shipping case where live stock are involved negligence must be shown the rule is met in this case.

But it is by no means clear that a shipper must prove negligence where his live stock are either not redelivered to him at all, or are redelivered in an injured condition. On the contrary, “carriers of live stock are liable absolutely for loss or injury to stock intrusted to them for transportation like other common carriers, unless the loss or injuries were occasioned by the act of God, or the public enemy, or the negligence of the shipper, except that they are not liable for loss or injuries caused by the ‘proper vice’ or natural propensities of the animals themselves, and not by negligence on the part of the carriers” (Gal. S. & H. Ry. Co. v. Powers, 54 Tex. Civ. App. 168, 117 S. W. 459; 6 Cyc. pp. 376-381), and that the injuries were thus produced the burden is upon the shipper both to plead and to prove. F. W. & D. C. Ry. Co. v. Greathouse, 82 Tex. 111, 17 S. W. 834. Tested by either rule the appellant is liable in the present case since no excuse for the loss and injuries was shown.

From this last it would follow that the requested charge instructing the jury that the shipper was bound to use only ordinary care in handling and transporting the cattle was not the law. The contract of a common carrier with the shipper of commodities (article 731, Revised Statutes 1911) is “for the safe and speedy” transportátion thereof from point of shipment to destination, not for the exercise of ordinary aire to deliver the property. The statute defining the liability of common carriers contemplates live stock as well as dead freight; the language being “freight, baggage, or other property.”

There is nothing in the evidence to raise the issue that appellee was guilty of contributory negligence in not accompanying his cattle and the sixth special instruction was, therefore, properly refused.

We have examined the evidence and hold it to be sufficient to support the verdict rendered and the judgment is, therefore, affirmed.


author: HABB, J.

text:
    FARMERS’ STATE BANK OF QUANAH v. FARMER et al.
    (Court of Civil Appeals of Texas. Amarillo.
    May 10, 1913.)
    1. Appeal and Error (§ 704) — Record — Waiver op Error.
    Where the record on appeal fails to show that defendant’s motion for findings of fact and conclusions of law was called to the attention of the trial court, and showed no bill of exceptions reserved to the failure of the court to file findings and conclusions, the error if any must be deemed waived.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2900, 2939-2941; Dec. Dig. § 704.]
    2. Appeal and Error (§ 1071) — Review-Harmless Error-Failure to File Findings and Conclusions.
    Where full statements of facts are filed the failure of the lower court to file findings and conclusions must be disregarded in the absence of an affirmative showing that appellant was prejudiced by such failure.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. § 1071.]
    3. Appeal and Error (§ 704) — Affirmance— Absence of Finding and Conclusions.
    In the absence of findings of'fact and conclusions of law, a judgment must be affirmed if sustainable on any ground.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2900, 2939-2941; Dec. Dig. § 704.]
    4. Deeds (§ 68) — Validity — Capacity op Grantor.
    To have the capacity to execute a valid conveyance the grantor must not only have the ability to transact the ordinary affairs of life and to understand their nature and effect, but also to exercise his or her will in relation thereto.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 149-165; Dec. Dig. § 68.]
    5. Mortgages (§ 86) — Validity — Mental Capacity — Evidence.
    In an action where a wife contested the validity of a deed of trust, evidence held sufficient to sustain a finding that at the time of the execution thereof she was mentally incompetent.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1350, 1355, 1364; Dec. Dig. § 86.]
    6. Homestead (§ 122) — Incumbrance — Es-toppel to Deny Validity.
    Where a married man is in actual possession of property, using the same as a business homestead, no representations made, either by him or his wife, to a mortgagee will defeat the constitutional exemption, for those dealing with them cannot ignore the notice conveyed by the actual use of the property.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. |§ 220-222; Dec. Dig. § 122.]
    7. Homestead (§ 122) — Estoppel to Claim-Deeds op Trust.
    The mere statement or declaration in a deed of trust that the land covered by it was not a homestead or business homestead will not estop the grantors from afterwards asserting it to be such.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 220-222; Dec. Dig. § 122.]
    8. Husband and Wipe (§ 254) — Community Property — Wipe’s Separate Property.
    Where property is purchased entirely on credit it cannot become the wife’s separate property ; a wife’s equity arising from the actual investment of her separate property. Therefore property purchased on credit for a business carried on by a husband on the wife’s property and paid for out of the proceeds of such business is community and not separate property.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 897-899; Dec. Dig. § 254.]
    9. Fraudulent Conveyances (§ 52) — Property Transferred — Right of Wife to Separate Property.
    That a wife allowed her son to manage her separate property and conduct the business in his name will not deprive her of any right or equity which she might have, even though the arrangement was fraudulent.
    [Ed. Note. — For other eases, see Fraudulent Conveyances, Cent. Dig. §§ 118-127; Dec. Dig. § 52.]
    10. Homestead (§ 161) — Business Homestead-Abandonment.
    That a husband intended to sell out a livery business belonging to his wife and move to another country will not constitute abandonment of the business homestead so long as he was actually in possession thereof, using and ■ occupying it as such.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 312-314; Dec. Dig. § 161.]
    Appeal from District Court, Cotüe County ; Jo. A. P. Dickson, Judge.
    Suit by Mrs. Eula F'armer and another against the Farmers’ State Bank of Quanah. From judgment for plaintiffs, defendant appeals.
    Affirmed.
    W. T. Perkins, of Quanah, for appellant. J. A. Templeton, of Ft. Worth, for appellees.

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

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

   HABB, J.

This was a suit by appellee Mrs. Eula Farmer joined by her husband, R. A. Farmer, to enjoin a sale under and to cancel a certain deed of trust executed by appellees on May 16, 1911, to secure a note in favor of appellant bank in the sum of $662.50. The trust deed conveyed lots 1, 2 and 3 in block No. 4, in the town of Paducah, in Cottle county. Appellees allege in their petition that at the date of the execution of the deed of trust and for a long time prior thereto, the unincumbered lots were the separate property of appellee Mrs. Eula Farmer; that said property was then being used and occupied by appellee R. A. Farmer as a livery barn, feed stable, etc., which said property had been improved by appellees for that purpose; that the same was then the business homestead of appellee R. A. Farmer and not subject to incumbrance by deed of trust, of all of which appellant had full knowledge; that with knowledge of such facts, appellant induced said R. A. Farmer, and through him the said Eula Farmer, to execute said deed of trust; that the debt secured thereby was the separate and individual debt of said R. A. Farmer and neither the said Eula Farmer nor her property was in any manner liable therefor; that at the time of the execution of said deed of trust said Eula Farmer had been suffering from a malady known as pellagra, and her mind had been affected therefrom to such an extent as to render her incapable of transacting any business; that she did not know what she was doing when she executed the said deed of trust and did not realize that she was executing a deed of trust on her property to secure the debt of R. A. Farmer; that no part of the consideration for which said note was executed was used for the benefit of said Eula Farmer or of her separate property; that she has never in any way ratified said deed of trust and because of said facts appellees allege that said deed of trust is and has always been void.

Appellant answered by general denial and specially that the said deed of trust and note were given by appellees to secure a loan made by appellant to appellees on said 16th day of May, 1911; that appellees were not using or occupying said property for any purpose and never had used or occupied said property ¿or any purpose, but that the same was then and always bad been used and occupied by other persons than appellee; that as an inducement to appellant to loan ap-pellees said money appellees represented to appellant that said property was community property of appellees; that they were not using or occupying same for any purpose and had no interest in the business then being conducted on said lots; that they never had any interest in said business and had specially disclaimed any homestead interest therein; that at the date of the execution of said deed of trust, a firm by the name of Day & Anderson owned and conducted the business carried on in said property and had so owned and conducted said business for a month or so prior thereto. Appellant further alleged that the money so borrowed from appellant, evidenced by said note and secured by said deed of trust, was used to pay off and discharge a lien upon the property owned and claimed by appellees as the separate property of Mrs. Eula Farmer; that appellant relied upon said representations made by the appellees and had no notice or knowledge that the same were not true and that appellees were estopped to maintain said suit without first tendering to appellant said money borrowed. Appellant further alleged that if appellees had ever used said lots as a place to carry on any business, the same had been abandoned by them prior to the execution of said deed of trust and that ap-pellee R. A. Farmer, who was the head of the family, was then engaged in another and different business many miles from the town of Paducah and in a different county.

As constituting appellee Mrs. Eula Farmer’s title to the lot in question, the following evidence was introduced: (1) Deed from J. V. Guyton and wife to Henry Farmer, dated October 1, 1907, and filed for record the same day. Mrs. Guyton was the daughter of ap-pellee, and Henry Farmer, the grantee, was their son. (2) Deed from Henry Farmer and wife to Mrs. Eula Farmer, dated Feb. 9, 1911, filed for record April 11, 1911. This deed .does not recite that the consideration therefor was paid by the said Mrs. Eula Farmer out of her own separate funds and does not purport to convey the property to her for her own separate use and benefit. It appears from the statement of facts that, some time after this deed was recorded, appellees caused the same to be interlined so as to recite that the consideration therefor was paid by Mrs. Eula Farmer out of her own separate funds and conveying the property to her for her separate use and benefit. After this in-terlineation, the deed was never acknowledged by the grantors but was refiled for record June 24, 1911, and again recorded. Henry Farmer, the son of appellees, testified that some time in May, 1911, while he was living in Wise county, he received a letter from his mother, written in her own handwriting, advising him that the deed made in February to her did not convey the property to her for her separate benefit and requested him to make a new deed that did so recite. He stated that he complied with this request, but it seems that this new deed was never recorded and was not introduced in evidence.

One matter raised by appellant and upon which it relied for a reversal is the failure of the court to comply with the written request of appellant to file findings of fact and conclusions of law. The record fails to show by bill of exceptions or otherwise that appellant’s motion was ever called to the attention of the trial judge or that ,he ever knew such a motion or request had been filed with the clerk. The record does not disclose the fact if appellant ever reserved any bill of exception to the failure of the judge to file his findings and conclusions. This must be considered as a waiver of the motion and of any error resulting therefrom. It also appears that a full statement of facts had been filed, and in the absence of an affirmative showing on the part of appellant that it has been prejudiced by such failure, the error complained of must be disregarded.

The two principal questions involved in this appeal are: (1) Was the property covered by the deed of trust at the time of the execution of such deed plaintiff’s business homestead? (2) Were the lots the separate property of Mrs. Eula Farmer, and was she at the time of the execution of the said trust deed mentally incapacitated to execute the same, and, if so, has she since ratified it? If there is evidence in the record to warrant the court in rendering its judgment in favor of appellees upon either of these issues, the judgment must be sustained. Spalding v. Aldridge, 50 Tex. Civ. App. 230, 110 S. W. 560; Appel v. Childress, 53 Tex. Civ. App. 607, 116 S. W. 129; Harris v. Cattle Co., 84 Tex. 674, 19 S. W. 869; Tuggle v. Wakefield, 30 Tex. Civ. App. 393, 70 S. W. 555.

It will not be necessary for us to consider all of the various propositions under the numerous assignments of error presenting the case for review. Appellant’s first contention is that Mrs. Eula Farmer was not, as claimed by appellees, mentally incapacitated at the time the trust deed was executed and that the evidence is not sufficient to sustain the trial judgment, if the judgment is based upon that ground. We have carefully read the entire statement of facts and do not hesitate to say that the evidence, taken as a whole, is extremely weak. However, Mrs. Guyton, the daughter of Mrs. Eula Farmer, testified that she was with her mother all through May, 1911, and was with her on May 16th, when the instrument was executed; that her condition was very bad all through that month; that she did not have any strength; that they could not hear her call unless they were close to her; that she was not capable of doing anything at all and the witness further said: “I think the condition of her mind was bad at that time. I do not believe that she could carry on a connected conversation. Her nerves were wrecked; she had nervous spells and at such times she would gasp for breath. I did not try to talk business with her during that time because she could not have talked it. We did not carry on any conversation in the room where she was. We did not bother her in any way at all, because any noise made her nervous and we could not do it on that account.” Mrs. Diffy, a resident of Dallas and a sister of Mrs. Eula Farmer, testifying as to the latter’s condition iü May, said: “When I got there I did not think she would live a week. She was confined to her bed. We had to keep everything just as quiet as could be. We could not carry on any conversation at all where she was. She was in that condition when I came and when I left. She did not eat at all. She remained in bed all the time and lived on hypodermics. She was a perfect wreck. I tried to talk to her and find out about her business matters, but X could not because she could not talk to me. She could not give me a connected detail about 'anything I asked her about. She could not have understood anything about the character of a deed of trust or anything of that kind. She could not have done anything; at that time I did not think she would live a month.” This testimony is followed by the testimony of Mrs. Eula Farmer, who stated that she did not remember anything about signing the trust deed in question nor did she remember having acknowledged it; that since she had begun to improve she could realize that her mind was not what it ought to have been; that she was not in such condition when the deed was executed as to enable her to transact any business matter. She is corroborated by her husband, R. A. Farmer. As we understand the rule bearing upon this issue, it seems to be that the test of the capacity of one to execute a valid conveyance is that such individual must have the ability, not only to transact the ordinary affairs of life, and to understand their nature and effect, but also to exercise his or her will in relation thereto. Herndon v. Vick, 18 Tex. Civ. App. 583, 45 S. W. 852; 22 Cyc. 1170. A number of strong rebutting facts crop out in the record, which if submitted to us primarily in connection with the above-quoted testimony leads us to the conclusion that we would have held adversely to appellees upon this issue. However, in the condition of the record, we would not be justified in reversing the judgment since the above-quoted testimony is in the light of the adjudicated cases sufficient to sustain the court’s finding, provided the rebutting facts are excluded from consideration.

Upon the issue as to whether or not the three lots in question, with the improvements thereon, constituted the business homestead of appellees, there is this testimony in the record: The property had been conveyed by Mrs. Guyton to her brother, Henry Farmer, to be held in trust by him for their mother. Henry Farmer had erected the livery stable upon the lots, acquired the necessary horses, mules, buggies, and other vehicles for the purpose of conducting a livery stable, and, assuming charge thereof, had been carrying on the business for several years. He left Paducah in February, 1911, when his father, appellee R. A. Farmer, who it ■ seems had been working under Henry’s direction as an assistant in the conduct of the business, took charge of the stable and continued to run it for himself until he contracted to sell -the personal property to Day & Anderson in April, 1911. This contract of sale to Day & Anderson was made about the middle of the month of April, in consideration of which R. A. Farmer accepted a deed to 1700 acres of land in Hardeman county, in which Day & Anderson claimed to have some sort of an equity. R. A. Farmer testified on this point: “I had no other business. I devoted my time and attention to the livery stable business up to the time that we disposed of it. I was running that business at the time this deed of trust was executed on the 16th day of May. I was getting the proceeds of the business at that time. It was turned over to the purchasers on the 17th or 18th of May. Mason Harwell was here on the ground when it was executed and the business was turned over to him on the next morning after it was executed. I was running the business on the day the deed of trust was executed. I was running it for myself and was getting the proceeds.” The record further discloses that prior to the time Henry Farmer left Paducah the business had been conducted in his name although it in fact actually belonged to Mrs. Farmer. It appears that the land for which R. A. Farmer contracted to exchange the horses, vehicles, and other personal property was at the time of that agreement leased to one Richardson, and Day & Anderson were to secure the cancellation of that lease so they could deliver possession of the land to R. A. Farmer and by the terms of the agreement Farmer was to retain possession of the livery business until possession of the land was delivered to him. It further appears that this lease was never canceled and that Farmer never obtained possession of the land. However, Day & Anderson sold the personal property, consisting of horses, buggies, etc., which they were to get for the land, to one Hirstein, who was then the cashier of the appellant bank; whereupon Hir-stein sold a half interest therein to Mason Harwell, who was president of the bank. On this point R. A. Farmer further testified: “The reason I turned the rolling stock over to them before they turned the pasture over to me was because they said they had the release from Richardson, but when we got over there to Quanah they did. not have it and I never did get possession of it. I never was in possession of the pasture that I traded the rolling stock for. I was to keep the rolling stock and run the livery "stable and get the proceeds until the time they turned the pasture over to me. When Harwell came over here to Paducah I turned the horses, rolling stock, and stable over to him but I never did get possession of the pasture. I got the proceeds of the stable on May 16th and Harwell and Hirstein took possession the next morning.” It further appears from the evidence that part of the loan which is represented by the note sought to be canceled was used in discharging a lien held by a corporation engaged in the manufacture and sale of vehicles and designated in the record as “Bmory-McLean people.” It appears that while Henry Farmer was conducting the business he purchased vehicles to the amount of $1,100 from said corporation, of which amount he had paid from the proceeds of the business about $600. The money borrowed was applied to the extinguishment of the balance due upon this debt and a remainder of $33 was, by agreement between R. A. Farmer and Mason Harwell, paid for insurance upon the personal property, the policy being made payable to appellant bank asi its interests might appear.

It seems to be well settled that where a married man is in actual possession of property, using the same as a home or as a business homestead, no representations made, either by him or his wife, will defeat the constitutional exemption. The reason given for such holding is that those’ dealing with them cannot ignore the notice conveyed by its actual use as such. Thompson Savings Bank v. Gregory, 36 Tex. Civ. App. 578, 82 S. W. 802; Dignowity v. Baumblatt, 38 Tex. 363, 85 S. W. 834; Jacobs-Bernheim & Co. v. Hawkins, 63 Tex. 1; Texas L. & L. Co. v. Blalock, 76 Tex. 85, 13 S. W. 12; Marble v. Marble, 52 Tex. Civ. App. 380, 114 S. W. 871; Archibald v. Jacobs, 69 Tex. 248, 6 S. W. 177; Fleeman v. Hamblin, 1 Tex. Civ. App. 157, 21, S. W. 1019; Kempner v. Comer, 73 Tex. 196, 11 S. W. 194.

It is further held that the mere statement or declaration in a deed of trust that the land covered by it was not a homestead would not estop the grantors from - after-wards asserting it to be such. Crebbin v. Moseley, 74 S. W. 815; Hines v. Nelson, 24 S. W. 541; Thomas v. Williams, 50 Tex. 269.

It is further contended by appellant that because money borrowed from appellant, and for which the note in question was executed, was used for the benefit of the separate estate of iMrs. Eula Farmer that appellees were not entitled to judgment canceling the trust deed upon the ground that said appellee Mrs. Farmer was mentally incapacitated to execute it without first tendering to appellant the amount of money so borrowed. We cannot agree with appellant’s contention that the money had been used for the benefit of Mrs. Eula Farmer’s separate property. As was stated above, all but $33 of. the amount borrowed was applied to the extinguishment of the debt and mortgage covering the vehicles purchased by Henry Farmer from the Emory-McLean people. The amount which had previously been paid upon this indebtedness had been realized in the conduct of the livery business and was therefore community property. This property had been purchased by Harwell and Hirstein, the president and cashier, respectively, of appellant bank, from Day & Anderson. This purchase by Harwell and Hir-stein from Day & Anderson is shown by un-controverted testimony to have been made on May 15th. Ño part of the loan was ever paid to Mrs. Farmer and it was clearly not used for the benefit of her separate property. It therefore becomes unnecessary for us to determine the question of law governing the duty of one mentally incapacitated to offer to refund before seeking cancellation of an instrument executed during the period of such mental incapacity, and the further question of want of notice and good faith on the part of the purchaser of such property. It is held in Harrison v. Mansur-Tibbetts Implement Co., 16 Tex. Civ. App. 630, 41 S. W. 842, that a wife cannot acquire land as separate property when it is purchased entirely on a credit. And Rainey, Justice, quoting from Judge Gaines, in Schuster v. Jewelry Co., 79 Tex. 179, 15 S. W. 259, 23 Am. St. Rep. 327, says: “The wife’s equity in such cases arises from the actual investment of her separate money or the transfer of her separate property;” and further uses this language: “As there was no actual investment of Jimmy C. Harrison’s separate money, or the transfer of her separate property for the land in controversy, we are of opinion that the same did not become her separate property,” etc.

A review of the entire record leads us to agree with appellees’ counsel in the statement that R, A. Farmer is and has been since the date of his marriage to Mrs. Eula Farmer “a worthless, shiftless character.” His energy and his talents seem to have been exhausted in an effort to avoid the payment of this debt and many others, and we may properly list him as a consumer rather than a producer. This condition, however, in no manner varies the rules of law governing the rights of his wife and the status of her separate property. The fact that Henry Farmer was allowed to manage the property and to conduct the business in his name would not deprive Mrs. Eula Farmer of any equity or right which she might have, even though the arrangement was fraudulent. King v. Harter, 70 Tex. 579, 8 S. W. 308; Archenhold & Co. v. Evans, 11 Tex. Civ. App. 138, 32 S. W. 795.

And it is further well settled in this state that even though it was the ultimate intention of R. A. Parmer to sell out the livery stable business, lots and all, and move to /Mexico, such fact would not constitute an abandonment of the property as a business homestead so long as he was actually in possession thereof, using and occupying it as such. Newton v. Calhoun, 68 Tex. 451, 4 S. W. 645; Harbison v. Tennison, 38 S. W. 232.

Since the evidence upon either theory of the case might be held sufficient to support the Judgment of the court, it must be and the same is hereby affirmed.


author: TALIAFERRO, J.

text:
    THOMPSON v. PRICE.
    (Court of Civil Appeals of Texas. San Antonio.
    May 7, 1913.
    Rehearing Denied June 4, 1913.)
    1. Appeal and Eeror (§ 193) — Presentation Below — Fundamental Error.
    An objection may be first taken in the Court of Civil Appeals to a petition which does not state a cause of action.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1226^-1238, 1240; Dec. Dig. § 193; Pleading, Cent. Dig. § 1355.]
    2. Brokers {§ 79) — Right to Commissions.
    Where a partnership agreed to pay a broker a share of its commissions for the sale of realty, but fraudulently refused to collect its commissions, or where its members fraudulently prevented the collection, the broker could have his rights adjusted in a court of equity so.as to prevent the fraud from being perpetrated upon him.
    [Ed. Note. — For other cases, see Brokers, Dec. Dig. § 79.]
    Error from District Court, Medina County; R. H. Burney, Judge.
    Action by D. F. Price against C. M. Thompson and others. From a judgment for plaintiff against the defendant named, and also against defendant Thompson in favor of other defendants, defendant Thompson brings error.
    Affirmed.
    Bruchs & Noonan, of Hondo, John T. Bris-coe, of Devine, and C. C. Harris and W. H. Lipscomb, both of San Antonio, for plaintiff in error. J. I. Kereheville, of. San Antonio, for defendant in error.

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

   TALIAFERRO, J.

Suit was filed by defendant in error, L. F. Price, against the Devine Realty Company, a partnership, composed of C. M. Thompson, W. L. Dubose, A. M. Patterson, R. C. Howard, and Lizzie C. Adams. The cause of action was alleged thus: Defendant in error made a contract with the firm whereby he should be paid one-half of the commissions received by the firm for the sale of certain lands, by it or any of its members, to certain people, and the said firm should have one-half of the commissions received by defendant in error, in case he sold any land to the said people. Among the lands which the realty company was expected to sell, and which fell under the agreement, were certain tracts belonging to members of the partnership, among them Thompson. It was alleged: That the defendant firm had sold land to the designated person to the amount of $93,000, and that said firm was entitled to receive therefor commission in the sum of $3,024.75, one-half of which rightfully belonged to defendant in error. That the land so sold was the property of C. M. Thompson and Lizzie O. Adams, members of said partnership, and that the said Thompson and Adams had conspired with each other to defraud the other members of .the firm and defendant in error out of their interest in said commissions by refusing to pay the same into the partnership account. Judgment was rendered in favor of defendant in error against C. M. Thompson, W. L. Dubose, A. M. Patterson, and R. C. Howard for $1,512.37, and against Thompson in favor of the other defendants upon their prayer for judgment over.

The case is before us on writ of error by C. M. Thompson alone. No assignments of error have been filed, and plaintiff in error urges only the contention that the judgment shows fundamental error in that the petition does not state a cause of action against O. M. Thompson. Plaintiff in error urgently insists that since Price was to share in such commissions as the Devine Realty Company received, and further revealed that the commissions claimed by him had not been received by the firm, said petition shows upon its face that no cause of action had accrued in the plaintiff’s favor, and a general demurrer to the petition should have been sustained. And such would have undoubtedly been the ease if the petition had stopped there. But it did not.

The authorities cited by plaintiff in error abundantly support his contention that a judgment rendered upon a petition which does not state a cause of action is fundamentally erroneous, and that objection thereto may be first made in this court. But we think they are not applicable to this case. The plaintiff alleged that the land, for the sale of which the commission was earned, belonged to members of the firm, and that such members had conspired with each other to withhold and refuse to pay the commissions for the purpose of wrongfully and fraudulently depriving him and other members of the firm of their shares therein.

When the commissions were earned by the Devine Realty Company, the right of the defendant in error to a half interest in them attached and was enforceable as soon as the commissions were collected, and the fraudulent refusal of the realty company to collect the money, or the fraudulent action of some of its members which prevented its collection, would not defeat his right

So far as defendant in error was concerned, the action of one member of the partnership was the action of all, and the law will not permit'it to take advantage of its own wrong to defeat defendant in error’s right of action. If the right of action of defendant in error was about to be defeated by the fraudulent action of one or all of the members of the partnership, he had the right to go into a court of equity and assert the wrong that was about to be done to him and have his rights adjusted. That seems to be what was done in this case, as judgment was rendered in favor of defendant in error against the firm and in favor, of the other members thereof over against Thompson. We think the petition on the whole stated a cause of action as to all the members composing the firm of the Devine Realty Company, and that no fundamental error appears of record.

The judgment of the lower court is therefore affirmed.


author: HALL, J.

text:
    WELLS v. GLOBE FIRE INS. CO. et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 21, 1913.
    Rehearing Denied May 31, 1913.)
    GARNISHMENT (§ 88) — AFFIDAVIT— SURETY.
    Where plaintiff sued the maker and in-dorser on certain vendors’ lien notes, the liability of the indorser being several and secondary, plaintiff, in an affidavit for ■ garnishment of a fund belonging to the maker, was only required to aver that he had no property to plaintiff’s knowledge within the state subject to execution! sufficient to satisfy the debt, and was not re-i quired to make the same allegation as against the indorser.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 160-166; Dec. Dig. § 88.]
    Appeal from District Court, Collingsworth County; D. E. Decker, Judge.
    Action by ,H. C. Wells against E. B. Buer-ger, in which a writ of garnishment issued against the Globe Fire Insurance Company. From an order dismissing the writ of garnishment plaintiff appeals.
    Reversed and remanded.
    R. H. Templeton, of Wellington, for appellant. J. L. Lackey, of Wellington, for ap-pellees.

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

   HALL, J.

Appellant filed this suit in the district court of Collingsworth county against appellee Buerger, as the maker of one promissory note and thirteen vendors’ lien notes, and joined as defendant Martha Mooney, as indorser of the vendors’ lien notes. It is alleged that the said notes were given for part of the purchase price of certain town lots in Wellington, upon which there was a house to which the vendors’ lien attached; that said house had been destroyed by fire and $700 insurance adjusted on the same in favor of F. Buerger by the Globe Fire Insurance Company of San Antonio. A writ of garnishment was issued and served upon the insurance company. Appellee Buerger filed his motion in the garnishment suit to quash the affidavit and writ of garnishment because the affidavit does not allege that all of the parties defendant in said suit have not property within the knowledge of the affiant in this state, subject to execution, sufficient to satisfy said debt. The recital in the affidavit for garnishment is “that the defendant Fred Buerger has not within his (affiant’s) knowledge property in his possession within this state, subject to execution, sufficient to satisfy such debt.” The court sustained appellee’s motion quashing the garnishment proceedings and ordering that appellee and the Globe Fire Insurance Company go hence without day and recover all costs incurred by reason of the issuance of the writ and filing of the proceedings. This ruling of the court is the basis of this appeal.

The question is submitted under a number of assignments, which it will not be necessary for us to consider in full. Levy, Justice, in Smith v. City Nat. Bank of Wichita Falls, 140 S. W. 1145, citing Willis v. Lyman, 22 Tex. 268, held that it was necessary for the affidavit to show that neither of the defendants had property subject to execution. Both of the cases, however, were based upon judgments in which the defendants were jointly and severally liable for the amount of the indebtedness. If the instant case was similar to the two cases mentioned in that particular, we would follow the rul'd there announced; but in this ease the liability of Martha Mooney is several and secondary, by reason of the fact that she is the indorser of the note sued upon. Buerger being primarily liable, and the fund garnished belonging to him, we think a different rule applies, and that appellant should have endeavored to subject this particular fund to the payment of his debt. .It is true he had the right under article 312, Sayles Civil Statutes, to join Martha Mooney in the action but he must first exhaust his remedy against Buerger, the principal obligor. In our judgment it was not necessary for him to make affidavit that neither of the defendants had within his knowledge property within the state, subject to execution, sufficient to satisfy the debt.

The judgment is reversed and the cause remanded.


text:
    CITY NAT. BANK OF WELLINGTON v. GLOBE FIRE INS. CO.
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 4, 1913.
    Rehearing Denied May 31, 1913.)
    Appeal from Collingsworth County Court; R. H. Cocke, Judge.
    Action by the City National Bank of Wellington against the Globe Fire Insurance Company. Prom a judgment dismissing the insurance company as garnishee, the bank
    appeals.
    Reversed and remanded.0

      R. H. Templeton, of Wellington, for appellant. J. L. Lackey, of Wellington, for appellee.
   HALL, J.

The issues presented by this appeal are the same as those presented in the case of Wells v. Globe Fire Ins. Co. et al., 157 S. W. 289, and decided April 26, 1913, and for the reasons stated in the opinion filed in that case the judgment in this case is reversed and the cause remanded.


author: DUNKLIN, J.

text:
    FIRST NAT. BANK OF MERKEL v. HARKRIDER.
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 3, 1913.)
    1. Trial (§ 120) — Argument oe Counsel— Improper Argument.
    A comment by a party’s counsel in his argument to the jury on evidence introduced on the trial does not justify an argument by the counsel of the adverse party relating to facts he was not permitted to prove by reason of objections made by the party’s counsel and sustained by the court.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 285-287; Dec. Dig. § 120.]
    2. Appeal and Error (§ 1060) — Harmless Error — Improper Argument op Counsel.
    Where the evidence of plaintiff strongly tended to rebut the allegations of defendant’s special answer supported entirely by the testimony of defendant, the improper argument of defendant’s counsel referring to facts which he was not permitted to prove by the court sustaining objections to the evidence and the statement that the facts were objected to because they would have supported defendant’s contention was reversible error.
    Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.]
    Error to District Court, Taylor County; Thomas L. Blanten, Judge.
    Action by tlie First National Bank of Merkel, Texas, against Coke W. Harkrider. There was a judgment for defendant, and plaintiff brings error.
    Reversed and remanded for another trial.
    Hardwicke & Hardwicke, of Abilene, for plaintiff in error. Harry Tom King and J. P. Cunningham, both of Abilene, for defendant in error.

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

   DUNKLIN, J.

This suit was instituted by the First National Bank of Merkel against Coke W. Harkrider upon a promissory note executed by the defendant in favor of the plaintiff for the sum of $3,173.81 dated December 30, 1909. By a verified answer the defendant admitted the execution of the note, but alleged that he executed to plaintiff a note dated August 28, 1905, for $3,500, of which $2,500 was solely for accommodation and $1,000 for money borrowed ; that with the exception of the amount of such accommodation the balance of the note had been paid; and that the note sued on was a renewal of what plaintiff claimed to be balance due upon the note dated August 28, 1905. Prom a judgment rendered in defendant’s favor upon a trial before a jury, plaintiff has prosecuted this writ of error.

According to the books of plaintiff bank, the correctness of which was strongly vouched for by the bookkeepers of the bank, the note given by the defendant of date August 28, 1905, alleged in defendant’s answer was fully paid, and the note upon which this suit was instituted was a renewal of a balance due on another note executed by the defendant for the principal sum of $3,500 in favor of the bank dated July 16, 1906, and given for money loaned on that date by the bank to the defendant in order to enable him to purchase stock in a private corporation known as the Western Amusement Company organized and promoted by the defendant and Geo. S. Berry, president of the plaintiff bank; but the testimony of the defendant sustains the allegations in the special plea noted above.

A. S. Hardwicke testified that he was induced by the defendant and Geo. S. Berry to purchase stock in the Western Amusement Company; that in the negotiations therefor defendant stated that witness ought to pay 20 per cent, premium on the par value of the stock, as the venture was such a fine proposition, but that Berry stated that as witness was a good friend to himself and defendant they would let witness have the stock at par, and thereupon witness agreed to take stock in the sum of $1,500, which amount he borrowed from the plaintiff bank. The evidence further showed that this venture was not a financial success. Counsel for defendant then asked A. S. Hardwicke if he had not paid the note he executed to the bank for the amount so borrowed by legal services rendered the bank. An objection urged by the plaintiff to this question was sustained by the court. The defendant, having admitted the plaintiff’s cause of action except in so far as the same might be defeated by the facts set up in his special answer, was given the right to open and conclude the argument, and in his closing argument to the jury, upon the sharply contested issue whether the facts set forth in the defendant’s special answer were true or whether or not the note in suit represented the balance due for the amount borrowed by the defendant with which to engage in the Western Amusement Company venture, counsel for defendant used the following argument: “That A. S. Hardwicke, the attorney for plaintiff, herein testified before you that he put in this bank his note for $1,550, and that this note was cashed by the bank and the proceeds of said note was placed to the credit of the Western Amusement Company, along with the proceeds of the $3,500 note that they claim this bank cashed for Coke W. Harkrider, which amounted to $3,200 and was placed to the credit of said amusement company on the books of said bank, and that Geo. S. Berry also paid into said amusement company the sum of $3,250, thereby malting a total amount that reached the credit of the amusement company in the sum of $8,000. Xou, gentlemen of the jury, are not infants or babies; you can see and know things without being told; you can draw conclusions and know facts without being told. Now, you will remember that when A. S. Hardwicke, a lawyer for the bank, had testified that he had given his note for $1,550 to this bank to go into the Western Amusement concern, I asked him if he had paid the note to the bank with money or by legal services; that when I asked him this question, S. P. Hardwicke objected, and the court sustained his objection and would not let him tell how he paid it. I now ask you, gentlemen of the jury, why was it they objected? Why was he not permitted to testify, and why was it they were not willing to turn on the light, and why was it they wanted to keep the facts from you? It was because the facts would have shown that it was paid by legal services, or that Geo. Berry had refunded' the money to Senate Hardwicke on the note he had given the bank.”

Objection was made at the time to this argument as being improper and prejudicial, in connection with the request that the remarks be excluded from the consideration of the jury. This objection and request were overruled by the court, and to this ruling error has been assigned. By way of explanation of the ruling the court appended an explanation to the bill of exception reserved by plaintiff, which is, in substance, that counsel for the plaintiff in his argument to the jury strongly insisted that the defense interposed was fictitious and that Geo. S. Berry, A. S. Hardwicke, and the defendant were close personal friends; that defendant, by posing as a friend of A. S. Hardwicke, insisted on charging the latter a profit of 20 per cent, on the stock he purchased in the Western Amusement Company, which stock was- not worth more than par at the time, thus showing that defendant was willing to “swindle his personal and business friend, A. S. Hardwicke, in this Western Amusement Company proposition just like he now shows himself willing to rob the First National Bank out of their hard-earned money in this cause.” The trial judge further states, in substance, that he considered the argument made by the defendant’s counsel, to which objection was made, a legitimate reply to this argument by plaintiff’s counsel and for that reason overruled the objection now under discussion. The argument by plaintiff’s counsel was no more than a comment upon the evidence introduced upon the trial, while the argument to which the objection was made was upon alleged facts which counsel stated he could prove, but was not permitted to prove by reason of the objection made by plaintiff’s counsel and which objection had been sustained by the court. This argument was clearly improper, and we do not think it was justified by the argument made by plaintiff’s counsel based upon the evidence in the record as noted already. In view of the evidence introduced! by the plaintiff strongly tending to rebut the allegations of defendant’s special answer, while the special plea seems to be supported entirely by the testimony of the defendant, who testified principally from memory only, we-are of the opinion that the argument to which objection was made probably had the effect to prejudice the jury against the plaintiff and in defendant’s favor, and, accordingly, the assignment of error now under discussion is sustained. W. U. Tel. Co. v. Wingate, 6 Tex. Civ. App. 391, 25 S. W. 439; Met. Street R. Co. v. Roberts, 142 S. W. 44; Miller v. Burgess, 130 S. W. 1174, and cases there cited.

As the foregoing conclusions must result in a reversal of the judgment, it will be unnecessary to discuss other assignments of error challenging the sufficiency of the evidence to support the verdict.

For the error indicated, the judgment is reversed, and the cause remanded for another trial.