author: WALTHALL, J.

text:
    ROYAL INS. CO., Limited, v. OKASAKI.
    (No. 451.)
    (Court of Civil Appeals of Texas. El Paso.
    May 20, 1915.
    Rehearing Denied June 10, 1915.)
    1. Trial <@=>358 — Special Findings.
    Where there is an irreconcilable conflict between two special findings, the case must be resubmitted.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 856; Dee. Dig. <@=>358.]
    2. Insurance <§=>146 — Construction oe Policies.
    Insurance contracts are governed by the samo rulos as contracts between individuals.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 292, 294-298; Dec. Dig. <§=>146.]
    3. Insurance <@=3335 — Forfeiture eor Breach oe Warranty — Loss oe Inventory —Negligence.
    Where a fire insurance policy required the insured to take and preserve in a fireproof safe an inventory of the insured stock,, the failure to preserve such inventory or an equivalent thereof forfeits the insurance.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 852, 853; Dec. Dig. <@=3335.]
    4. Insurance <@=3335 — Forfeiture for Breach: oe Warranty — Damage to Inventory-Negligence.
    Where the owner of an insured stock of goods negligently left his inventory outside the safe the night of the fire, and it was thereby damaged so that 15 per cent, of it was unintelligible, there can be no recovery on a policy which required the inventory to be preserved in a fireproof safe.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 852, 853 ; Dec. Dig. <@^335.]
    5. Insurance <@=>335 — Forfeiture for Breach of Warranty — Books.
    The requirement of a fire insurance policy that the insured shall keep a set of books showing a complete record of the business transacted is complied with where the books preserved give sufficient information to establish a complete record of the business without resort to outside sources of information, though the journal was burned.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 852, 853; Dec. Dig. <@=>335.]
    Error from District Court, Harris County; N. G. Kittrell, Special Judge.
    Action by T. B. Okasaki against the Royal Insurance Company, Limited. Judgment for the plaintiff, and defendant brings error.
    Reversed and remanded.
    Thompson, Knight, Baker & Harris and W. C. Thompson, all of Dallas, for plaintiff in error. Gill, Jones & Tyler, of Houston, for defendant in. error.
   WALTHALL, J.

This suit was begun by a petition filed October 9, 1912, by T. B. Okasaki, plaintiff, against defendant, the Royal Insurance Company; Limited, a foreign corporation doing an insurance business in this state, wherein it is alleged that on September 12, 1911, plaintiff was the owner of a stock of Japanese art goods situated at 715 Main street, Houston, Tex., and that on the same date and thereafter, on September 22, 1911, defendant, for premiums paid, issued policies of insurance, Nos. 2539 and 2535, to plaintiff against loss of said stock of goods by fire, each in the sum of $2,500, and each extending for one year; that at the times of the issuance of the policies and at all times, the stock insured was of the value of $9,087.57, and that plaintiff was the owner; that on May 9, 1912, the stock was totally destroyed by fire; that plaintiff performed all of the conditions of the policies and made proof of loss, etc., and demanded payment; that defendant denied liability; that a clause in the policy sued on is to the effect that the defendant shall not be liable under said policies for a greater portion of any loss on said stock of goods than the amount of insurance represented by said policy shall bear to the whole insurance; that the insurance carried in addition to the policy sued on was a policy in the Phcenix Assurance Company, Limited, in the sum of $2,500, and a policy in the Alliance Insurance Company in the sum of $2,500; that by reason of the facts alleged, defendant became liable to him under each of said policies in the sum of $2,271.89, totaling a liability of $4,543.78, with interest.

The defendant answered by general demurrer and special exceptions, general denial and further, that the policies sued on contained a provision known as the record warranty clause, wherein the assured agreed to take an itemized inventory of stock on hand at least once each calendar year, and within 12 months of the last preceding inventory if such had been taken, unless such inventory had been taken within 12 calendar months prior to the date of the policies, which provision in the policy defendant says plaintiff failed to observe, and that plaintiff failed to make and prepare in the regular course of business a set of books clearly and plainly presenting a complete record of business transacted as provided by section 2 of said clause, and failed to keep the inventories as required by section 1 of said clause, and present same after the fire, in so far as any of same had been taken, and failed to keep and after the fire present the books containing complete record of business transacted, in so far as same had been prepared, in accordance with section 3 of said clause. That in consequence of said failures to comply with said warranty clause, the policy became void.

Plaintiff filed supplemental petition, containing exception and general denial; denial that he had failed to comply with the record warranty clause; alleged compliance in all particulars; had made and preserved all inventories and books required, and established the actual loss by reason of the fire; that the books and inventories kept by him were kept in the fireproof safe at night and when his store was not open for business and that all had been tendered to defendant for examination, and tendered in court; and alleged in the alternative, that if the books and inventories were not kept in an iron safe or other secure place that any left out and exposed on the night of the fire were exposed inadvertently, and without intention to fail to preserve same, and that if any were destroyed or injured in the fire, defendant was not thereby injured; that the full intent and purpose of the provisions of the policy were complied with; that the fire originated in another building than that of plaintiff, and through no fault of his ; that his stock of goods was completely destroyed by fire. The court submitted the case to the jury on special issues, and on return of verdict rendered judgment for plaintiff for the sum of $4,468.78 principal, and $201.19 interest. Motion for new trial was overruled. Notice of appeal given, ordered that the original inventory (Exhibit F) be sent up with the record. Case brought up by writ of error.

Appellant’s first assignment of error complains of the refusal of the court to give a peremptory instruction in defendant’s favor, except as to premiums tendered, and undertake to support said assignments by four propositions, to the effect: First, that where an insurance company stipulates that a complete itemized inventory of stock on hand shall be taken within ‘30 days after the issuance of the policy, unless one has been taken within 12 calendar months prior thereto, or the policy shall be null and void thereafter, the policy ceases at the end of the 30 days where the stipulation has not been complied with; second, where the policy contains a stipulation for the keeping, preservation, and presentation of inventories of stock taken during the current year and all those taken during the preceding calendar year which were on hand when the policy issued, to be kept securely locked in a fireproof safe at night, and where the undisputed evidence shows that the inventories relied on by plaintiff were not so kept, preserved, or produced, plaintiff should not recover; third, where the policy stipulated that the assured should keep, preserve, and present all inventories taken after the issuance of the policy securely locked in a fireproof safe at night and at all times when the building mentioned in the policy was not open for business, and 'the undisputed evidence shows that such inventory was left out of the safe, burned and destroyed, the fire occurring at night, plaintiff should not recover ; fourth, a like provision that assured would make, preserve, and present certain books called for and which the undisputed evidence shows was not complied with, assured should not recover. The record warranty clause contained the stipulations covering the several matters referred to in the projiositions.

Defendant tendered special charges on each of the matters contained in the several propositions, stating that the undisputed, evidence in the case shows that there has been a failure upon the part of plaintiff to comply with the provisions in the policy in the matter stated in special charge, and referred to in the proposition to which the charge related; each of the special charges was refused by the court. The court submitted to the jury for their finding in special issues all of the matters stipulated to be done in the warranty clause of the policy and set out in said propositions, aud the jury found that plaintiff had complied with the stipulation requiring the taking of a complete inventory of stock, embraced in appellant’s first proposition. On issues submitted, the jury found that the fire that destroyed plaintiff’s goods occurred at night when the store was not open for business; that the inventory was injured by the fire; that at the time of the fire, the inventory was not in the safe; that the inventory at the time it was offered to he presented to defendant after the fire, contained and showed a substantially complete list of the items of the inventory and values which had been listed on said inventory in connection with said items, with reasonable truth and accuracy; that the inventory shows and furnishes substantially all information which would have been furnished by such inventory, if it had been presented to defendant after the fire in an undamaged condition; that 85 per cent, of the inventory was intelligible and could be read and identified as to the name, number, and value of such items after the fire, and 15 per cent, of the inventory was not intelligible after the fire, at the time defendant’s agent was first notified that the inventory had been found; that the inventory at that time did not show all figures representing totals of values of the items originally contained therein; that plaintiff, in the regular course of business, made and prepared a set of books which clearly and plainly presented and showed with substantial truth and accuracy a complete record of the business transacted in connection with tbe property insured, including all sales, purchases, and shipments; that plaintiff saved and preserved from loss by tbe fire the set of books mentioned, and after the fire offered to present them to defendant; that the defendant or a qualified bookkeeper could have determined with reasonable accuracy from the books tbe amount of plaintiff’s loss; that Euruga made the erasure, after the 15th of January, 1912, in the books showing the entry of the shipment to Galveston; that the journal and blotter kept in tbe regular course of plaintiff’s business were burned in the fire and were never presented or offered to defendant; that tbe plaintiff or tbe witness Cochran for him, in making up tbe proofs of loss, furnished to defendant, was able to make up such proofs without resorting to outside sources of information or facts not found in the books; that the books did not fail to show with substantial truth and accuracy all the sales and shipments made from the stock including a shipment of January 16, 1918, named in the evidence in some parts as a shipment of $182.08, and in the others of $1,182.08; the original ledger, Exhibit D, page 13, shows $1,182.08 with no erasure; that the amount of plaintiff’s loss by fire can be ascertained with reasonable accuracy from tbe books preserved from the fire; that plaintiff did not, on or about January 15, 1912, take an inventory of the stock of merchandise on hand; that the actual cash value at the time immediately preceding the fire of plaintiff’s stock of merchandise insured was $10,010.80; that the actual cash loss to the stock by fire in tbe two policies sued on was tbe sum of $8,937.57; that the total amount of insurance on the stock at the time of the fire was $10,000; that plaintiff was the sole owner of the stock insured; that the value of the salvage was $150.

A careful examination of the evidence shows that the findings of the jury are not without evidence to support them. The jury found and the evidence shows that the inventory stipulated for in the record warranty clause was taken of the stock then on hand in August before the policies were written, in September, 1911. The first proposition cannot be sustained.

Tbe fire occurred at night, at a time when the store was not, open for business, and at the time of the fire, the inventory was not in the fireproof safe as stipulated for in the policy; while the inventory was injured by tbe fire, 85 per cent, being intelligible and 15 per cent, being unintelligible, and did not show all the figures representing totals of values of the items originally contained therein, the jury found that the inventory as a whole did show substantially all information which would have been furnished by such inventory if tbe same had been in an undamaged condition. Does the inventory as found satisfy the stipulation in the policy? We feel inclined to exclude from consideration in determining the question of a substantial compliance with the stipulation in the policy, the findings of the jury that the inventory showed substantially all the information necessary, as being more a conclusion than a fact, in view of the finding that 85 per cent, of the inventory was intelligible, and 15 per cent, unintelligible. If it is considered that there is an irreconcilable conflict in these two findings, the case should be resubmitted that a proper conclusion on the issue might be reached.

In the case of Brown v. Insurance Company, 89 Tex. 594, 35 S. W. 1060, the ¡supreme Court held that insurance contracts are governed by the same rules as contracts between individuals.

In Western Assurance Company v. Kemendo, 94 Tex. 367, 60 S. W. 661, the Supreme Court of this state said that an itemized inventory is one that specifies the different articles composing the stock insured, and, if that which is offered as a substantial compliance with the requirement does not furnish the means of ascertaining the same facts that an inventory would, then it cannot be held to be a substantial compliance with the contract. The object of having the inventory was to ascertain the different articles which went to make up the stock in order to test the correctness of the claim. The failure to preserve and produce the inventory or its equivalent in these particulars would not be a substantial compliance with the requirements of the policy. The failure, through negligence, to preserve and produce such an inventory would work a forfeiture of the policy. Roberts, Wells & Taylor v. Sun Mutual Insurance Company, 19 Tex. Civ. App. 338, 48 S. W. 559.

If the inventory had been in the safe and the condition in which it was found after the fire was the result of the fire, we think a compliance with the terms of the policy might be conceded, as the policy undertook to state the means by which the inventory was to be preserved from loss or injury. But it was not in the safe at a time when it should have been, and its condition was through negligence of the assured. Rivers v. Association of Philadelphia, 77 S. W. 424. It seems to us that where the inventory was left out of the safe at a time when it should have been in the safe under the terms of the policy, and that because of its being left out of the safe, it becomes so defaced by the fire that 15 per cent, of it is wholly unintelligible, in that it does not furnish to the insurance company, substantially, the information that could have been obtained through the inventory, if the policy provision had been complied with, it is not such an inventory as was contracted for in the policy to be preserved and produced, and the insurance company cannot be require^ to accept it Counsel for appellee cite and argue with much force that the case of Hartford Fire Insurance Company v. Walker, 153 S. W. 398 is directly in point, but we do not so regard the case. The objection there was as to the sufficiency of the inventory, first, that the entries as to the articles listed were too indefinite and uncertain in meaning, and second, that the cost or value of the articles listed was lacking. The court said that common usage would explain the characters used. “W. Oats” and “R. Oats” were sufficient to designate “White Oats” and “Red Oats,” and the evidence in that case showed that the two grades only were handled. On the second objection, the court held, after giving a number of definitions of the word “inventory”:

“It does not appear from the language used by the parties that the cost or value of the goods should be stated in the list.”

In this case there is a total absence, through the negligence of the assured to show anything by way of an inventory, to specify from 15 to 25 per cent, of the different articles composing the stock insured.

The second proposition under the first assignment is sustained. Was the stipulation as to the books to be kept and preserved complied with? We need only refer to the findings of the jury on this issue. They found that the journal or blotter was burned, but that the books preserved and tendered to defendant after the fire clearly and plainly showed with substantial truth and accuracy a complete record of the business transacted in connection with the property insured. The policy did not indicate what system of bookkeeping must be observed nor the number or kind or what books must be kept, but a set of books, showing a complete record of business transacted. If the books which the insured kept were kept with such degree of accuracy and in such manner as to show to a man of ordinary intelligence a complete record of the business transacted, including all purchases and sales, both for cash and credit, it seems to us that the stipulation in the policy would be satisfied. The evidence of the expert bookkeeper Cochran shows that this was done, and the jury so found. They found that it was not necessary for Cochran in making up the proofs to resort to outside sources for information, but that he did so for verification, and this finding seems to have evidence to sustain it.

The second, third, fourth and fifth assignments of error seem to be repetitions of propositions discussed and disposed of under the first assignment. The sixth assignment complains that the verdict is excessive. The jury found the actual cash value of the stock to be $10,010.SO, and the actual cash or monetary loss, that is, the cost to defendant in error, as shown in Cochran’s proof of loss, to be $9,0S7.57. There is some uncertainty in the proof as to the value of the salvage. The only witness who testified to its value, so far as we have found, stated that it is not worth over $100. The jury found its value to be $150, and found that the net loss by fire was $8,937.57, and judgment was rendered for $4,468.78 principal, and $201.19 interest. It seems to us that under the evidence and findings of the jury, the judgment is excessive to the extent of at least $50, and we so hold.

For reasons stated in our observations under the first assignment, the cause is reversed and remanded.
      <@=>Ror other cases see same topic and KEY-N UMBER in all Key-Numbered Digests ^nd Indexes


source: Caselaw Access Project

author: CARL, J.

license: Public Domain

text:
    WESTERN UNION TELEGRAPH CO. v. FOREST.
    (No. 5478.)

    (Court of Civil Appeals of Texas. San Antonio.
    May 12, 1915.
    Rehearing Denied June 9, 1915.)
    1. TELEGRAPHS AND TELEPHONES &wkey;>65 — DELAY in Delivery oe Message — Actions— Pleading.
    In an action for delay in delivery of a telegram advising- plaintiff that Ms child was not expected to live through the night, the petition alleged that if the telegram had been delivered with ordinary promptness, plaintiff, by taking a certain route, would have been at the bedside of the child by about 1 o’clock a. m. Held, that this raised an issue as to whether, had the telegram been promptly delivered, he would have reached the child before its death at 6 a. m.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 54-60; Dec. Dig. <&wkey;65.]
    2. Telegraphs and Telephones &wkey;>73 — Delay in Delivery op Message — Actions— Questions eor Jury.
    In such action, evidence held to make a question for the jury as to whether plaintiff would have reached the child’s bedside before it died had the telegram been delivered with ordinary promptness.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 76; Dec. Dig. <S&wkey; 73.]
    Appeal from District Court, Liberty County ; J. Llewellyn, Judge.
    Action by Walter Forest against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.
    Affirmed on condition that plaintiff file remitti-tur.
    See, also, 157 S. W. 204.
    Geo. H. Fearons, of New York City, and Hume & Hume, of Houston, for appellant.

       Writ of error pending in Supreme Court.

   CARL, J.

Appellee sued appellant for damages by reason of the negligent failure of the appellant to deliver promptly the following telegram:

“Groveton, Texas, 5/18/09.
“Walter Forest, Milvid, Texas — Baby is a good deal worse. Do not except he will live through the night. Forby Forest.”

It was alleged that the telegram was received at Milvid, Tex., about 5:35 p. m. on May 18th, but it was not delivered to appellee until about 8 a. m. the next day; that the child died about 6 a. m.; that if the telegram had been delivered with ordinary care or promptness, appellee could and would have taken the Sante Fé train at Milvid about 7:30 p. m., which would have taken him to Cleveland, Tex., where he would have changed cars and caught the Houston, East & West Texas train from Cleveland to Corrigan, and at Corrigan he could and would have hired a team and driven to Groveton, where the child died; that there were two parties conducting livery stables at Corri-gan, and had teams for hire, and by said route and means he would have been at the bedside of his sick child by about 1 o’clock a. m. on the 19th of May prior to its death. The other allegations it is not necessary to state here.

The pleadings and the evidence were ample for the question, as to whether appellee could have reached the child before it died, to be submitted to the jury. The plaintiff testified that he could have gone from Corrigan to Groveton in 3 to 3% hours; that he had done so before, only a short time; and that there was a livery stable there which kept teams for hire, as well as another man from whom he had formerly hired a team for the trip. While this man did not keep a livery stable, he did hire his teams out for this trip, and had hired one to the plaintiff. The defendant’s witnesses place the time necessary to make the trip all the way from 4 to 4y¡¡ hours up to as much as 6 or 7 hours. The train reached Corrigan at 11:59 p. m., and since the child died at 6 o’clock in the morning, if it took 6 hours or more to make the trip, he could not have reached its bedside before it died. The jury evidently believed that appellee could have reached Groveton in less than six hours, and the evidence was sufficient to support that finding.

We have carefully considered all assignments of error, and find them without merit, except the one which complains that the verdict and judgment are excessive, being for the sum of $1,995, the full amount claimed. The trial court required a remittitur of $745, which was entered, so that the judgment of the court finally was for the sum of $1,250. A careful scrutiny of all the evidence leads us to the conclusion that the amount awarded appellee is excessive, and could only have resulted from prejudice or passion on part of the jury, and that the judgment is yet too large.

Therefore, if within 20 days from this date appellee shall file a further remittitur in the sum .of $250, the judgment will be affirmed for the sum of $1,000; otherwise the judgment will be reversed and the cause remanded.


author: MOURSUND, T.

text:
    TURNER et al. v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (No. 5468.)†
    (Court of Civil Appeals of Texas. San Antonio.
    May 12, 1915.
    Rehearing Denied June 9, 1915.)
    1. Railroads &wkey;>397 — Injuries to Licensee —Evidence—Use by Public.
    In an action for the death of a driver of a service automobile, who was killed when his automobile, standing too close to the defendant’s house track, was struck by a train, evidence that the house track, which was between the depot and town, was habitually used by the public for receiving and delivering freight and for other purposes, was admissible.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1344-1855; Dec. Dig. &wkey;397.'J
    2. Appeal and Ebeoe <§=>1056— Harmless Eeeoe — Exclusion oe Evidence — Cube by Verdict.
    The exclusion of such evidence was not prejudicial to plaintiff where substantially similar evidence was admitted, and the jury specially found that the defendant was negligent.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. &wkey;1056.]
    3. Appeal and Ebeoe <&wkey;742 — Assignment oe Errors — Proposition and Statement.
    An assignment of error to the exclusion of such evidence, the proposition and statement under which related to evidence that other vehicles had been struck while on the house track, will be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <@=>742.]
    4. Appeal and Error <@=>742 — Assignments oe Eeboe — Statement—Sufficiency.
    Assignments of error, the first of which failed to state any evidence raising the issues thereby presented, and the others of which referred to the statement under the first assignment, though they raised different issues, will not be considered, since the evidence relied on to raise the issues in an assignment must be contained in the statement.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <@=>742.]
    5. Trial <&wkey;261 — Special Issues — Request— Incorbeot Deeinition.
    The court need not submit an issue specially requested where the definition accompanying the issue was incorrect.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 484, 660, 671, 673, 675; Dec. Dig. &wkey; 261.]
    6. Trial <@=>253 — Special Issues — Request— CONTRIBUTOBY NEGLIGENCE.
    Where plaintiff requested correct issues as to contributory negligence and the court did not submit in any issue whether the acts of plaintiff’s deceased were negligent, the requested issues should have been submitted.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. &wkey;253.]
    7. Appeal and Eeror <&wkey;1067 — Harmless Error — Refusal to Submit Issues.
    Plaintiff is not prejudiced by the refusal of the court to submit special issues as to contributory negligence requested by him, even if the request was necessary to entitle him to question the sufficiency of the verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. <©=>1067.]
    8. Trial &wkey;>350 — Special Issues — Eviden-tiary Matters.
    Special issues which related to merely evi-dentiary matters, most of which were undisputed and some of which were admitted by the pleadings, should not have been submitted to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-S33; Dec. Dig. §§ 350.]
    9. Trial <&wkey;215 — Special Issues — Instructions.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1984a, providing that in submitting special issues the court shall submit such explanation and definition of legal terms as shall be necessary to enable the jury to render a proper verdict, a special charge given in an action for the death of the driver of a service automobile at a railway depot, that the railroad did not owe the deceased any duty to keep its grounds lighted and free from obstructions, and that in determining whether defendant was negligent in the operation of its train they should not consider the condition of the grounds, was not proper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 481; Dec. Dig. <&wkey;>215.]
    10. Trial <©=>362 — Special Issues — Inconsistent Answers — Return to Jury.
    Where the jury first returned answers to special issues which were inconsistent, -it was not error 'for the court to call their attention to the inconsistency and require them to return to their room and answer both issues alike.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 865-868; Dec. Dig. &wkey;362.]
    11. Railroads <&wkey;400 — Injuries to Licensees — Contributory Negligence.
    The fact that the driver of a service automobile stopped his car at the depot platform in such a position that it was struck by a train on the house track, does not show contributory negligence as a matter of law.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. &wkey;400.]
    12. Negligence <@=>142 — Special Issues — Contributory Negligence.
    Where the court submitted special issues to the jury as follows: “Bearing in mind the definition of contributory negligence, did the acts of deceased or his failure to act contribute to his death, and did the certain acts of such deceased specified contribute to its death?” affirmative answers to such issues did not establish contributory negligence.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 400-403; Dec. Dig. &wkey;142.]
    13. Appeal and Error &wkey;934 — Presumptions — Special Vebdict.
    Where plaintiffs requested the submission of proper issues as to contributory negligence, which were refused, no presumption on that issue will be indulged in aid of a judgment for the defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781, 3782; Dec. Dig. <§=>934.]
    14. Appeal and Error <&wkey;934— Presumptions — Special Vebdict-Necessity of Request.
    It is not necessary for plaintiff to request the submission of special issues as to the matters of defense in order to escape the presumption of a finding adverse to him on such issues in support of a judgment for defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3782; Dec. Dig. &wkey; 934.]
    15. Appeal and Ereob <@=>1175 — Disposition of the Case — Gendering Judgment — Special Issues.
    In an action for death where the special issues failed to require a finding that the acts of deceased, which contributed to his death, were negligent, but one of them was not objected to by the plaintiff on that ground, a judgment cannot be rendered on appeal for plaintiff on the special finding of defendant’s negligence, but the case will be reversed and remanded for another trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §.§ 4573-4587; Dec. Dig. <&wkey; 1175.]
    Appeal from District Court, Austin County; Frank S. Roberts, Judge.
    Action by Sallie Turner and others against the Missouri, Kansas & Texas Railway Com-party of Texas. From a judgment for defendant, rendered on special findings by tbe jury, tbe plaintiffs appeal.
    Reversed and remanded.
    O. G. Krueger and Williams & Williams, all of Bellville, for appellants. C. 0. Huff and A. H. McKnigbt, both of Dallas, and Lane, Wolters & Storey and Paul Kayser, all of Houston, for appellee.
   MOURSUND, T.

Appellants’ statement of tbe nature of tbe pleadings is not objected to, and is adopted by us:

Appellants, Sallie Turner, wife of O. B. Turner, deceased, for herself and as next friend for her minor children, Cecil Turner and Alberta Vivian Turner, by C. B. Turner, deceased, their father, and Mrs. Lizzie Turner, mother of deceased, C. B. Turner, brought this suit in Austin county, Tex., on the 25th day of February, 1914, against the defendant, Missouri, Kansas & Texas Railway Company of Texas, for the sum of $40,000, and on the 4th day of June, 1914, appellants filed their first amended original petition against said defendant, upon which petition and defendant’s answer thereto filed on the same date this cause was tried.
Appellants alleged in their said amended petition that they and each of them had been damaged by the defendant in the sum of $40,000, by reason of the negligent acts of the defendant in the town of Sealy, Austin county, Tex., which negligence resulted in the death of the said C. B. Turner on or about the 25 th day of October, 1913; that said injuries, which resulted in said death, were inflicted upon the deceased on or about the 21st day of October, 1913. Appellants, in substance, alleged that the deceased was hilled near the passenger depot of the defendant in the town of Sealy, on a very dark night between 9 and 10 o’clock. That said depot was situated between the main line and the house track; that the house track lay between the town and the depot, and the top of the rails all along by the side of the depot on the house track were practically level with the ground, and that said house track for a considerable distance along by the side of the depot and at each end of the depot was used as a public walk and passageway for passengers and freight. That said depot was a combination freight and passenger depot, and that all freight of every description received at or carried from said depot was hauled and carried across the house track, and that it was customary and had been for many years for draymen, deliverymen, baggagemen and mail carriers to drive their drays, hacks, automobiles, and wagons upon and across said house track along by the side of and at the ends of said depot, and that the defendants, its agents and employés knew of such custom.
That the deceased, O. B. Turner, was operating a service automobile in the town of Sealy, and had been for a long time. That his business was carrying passengers to and from the depot. That on the night of the injury which resulted in his death, he had carried an automobile load of passengers to the depot, which passengers intended and did, a short time after his injury, take passage on the passenger trains of the defendant. That at the time of said injury, said passenger trains were about due in the town of Sealy, and that the deceased was expecting other passengers to get off at Sealy and intended to haul them to the hotels and other destinations, and that deceased was especially looking for one person on the train with whom he had personal business. That he drove his automobile along the accustomed road to the defendant’s depot and drove across the house track at the south or east end of the depot and left his automobile standing by the side of the wharf or platform, and that the back end of said automobile did not sufficiently clear the house track to permit cars being operated upon the same. That after he had unloaded his passengers and had gone around to the front of the depot, he came back to a point at the south or east end of the depot, near a little yax-d and hollooed and asked a negro porter, who had ridden up with him, whether or not there was a train coming in on the house track, and he, together with the negro, went to the automobile and was attempting to push the same forward when the freight train backed in at a rapid rate of speed, without any light or brakeman on the rear end thereof, and ran against the back end of his automobile which knocked the same around and jerked the fx-ont end of it in towards the track and caught the deceased between the automobile and the freight car being propelled by the defendant, and dragged and pulled deceased along some distance, crushed and injured him in such a way that he died on or about the 25th day of October, 1913.
Appellants allege that there was no mode provided for crossing and approaching the defendant’s track in front of the depot. That the defendant was negligent in having several tracks with rails elevated above the ground, which would not permit passage of vehicles for several hundred yards in front of the depot, and in building the depot between the house track and the main line, thus requiring the use of the house track as a public thoroughfare, wharf and passageway, as above set forth. That the defendant was negligent in not having the depot properly lighted. That it was negligent in having coal bins, a pump station, water tank, and other outhouses near to the house track, thereby excluding vision from persons propelling trains approaching the depot on the house track. That it was negligent in propelling said train in on the house track at the time and in the manner that it did at a dangerous and hazardous rate of speed, not knowing whether it could safely do so. That it was negligent in not having a brakeman or watchman on the back end of said train coming in on the house track. That it was negligent in not ringing the bell and blowing the whistle so as to advise persons on the house track along by the depot. That it was negligent in not having a light on the back end of the train so that persons crossing upon the house track all along by the depot could see it.
Appellants further alleged that the defendant, its agents and employes discovered the perilous position of deceased and his automobile in time to have prevented injury to either by the ordinary use of the means at hand at the time and failed to do so, and was .negligent in not preventing the injury to the deceased and to the machine. Appellants alleged that the. automobile of the deceased was injured and damaged to the extent of .$1,000, for which they sue.
The defendant denied each and all of the acts of negligence charged by the appellants, and especially denied that they were negligent in propelling the train of cars along the house track that collided with the automobile of the deceased and that resulted in his death. The defendant further specially denied that said train was being operated at a dangerous or hazardous rate of speed, and alleged that the same was under perfect control. Defendants further alleged that it did have a switchman with a light on the back end of the train, and that the switchman was standing near the rear end of the hind car with a lantern, and was watching and looking straight at and along the track by the side of the depot where deceased’s car was collided with, and that deceased was guilty of contributory negligence in leaving his car that near the track and in going to same and trying to move it.

At defendant’s request, the case was submitted upon special issues wbicb, with the answers of the jury thereto, are as follows:

Special Issue No. 1:
“Bearing in mind the definition of negligence hereinbefore given, and the duty of said defendant as above defined in paragraph 10, you will determine from the evidence and answer the following questions:
(a) “Was the defendant company guilty of negligence in operating and moving its train on said house track at the time of the alleged injury that resulted in the death of A. B. Turner?” Answer: “Yes.” ■ ■
(b) “If you answer the above question (a), Special Issue No. 1, ‘Yes,’ then was said negligence the direct and proximate cause of the injury that resulted in the said death of A. B. Turner?” Answer: “Yes.”
Special Issue No. 2:
“Bearing in mind the definition of contributory negligence hereinbefore defined, you will answer the following question: Under all the attending circumstances at the time of the alleged injury, did the acts of the deceased or his failure to act concurring with, or co-operating with the acts of the defendant contribute to his alleged injuries that resulted in his death?” Answer: “Yes.”
Special Issue A:
“Did deceased, A. B. Turner, leave his automobile so that it did not clear the house track?” •Answer: “Yes.”
Special Issue B:
“Was there room in the passageway between the park fence and the depot platform for the deceased to have driven his automobile so that it would have cleared the railroad track?” Answer: “Yes.”
Special Issue O:
“Did the deceased hear or see the train approach his automobile while he was on the north side of the park fence?” Answer: “Yes.”
Special Issue D:
“Did the deceased halloo to the trainmen before going to his automobile?”' Answer: “No.”
Special Issue E:
“Was deceased going toward his automobile qt the time of hallooing to the trainmen?” Answer: “Yes.”
Special Issue F:
“If you have answered ‘Yes’ to either question C, .D, or E, then answer this question: If deceased had remained where he was when he saw or heard the train approach his automobile, or hallooed to the trainmen, would he have been injured?” Answer: “No.”
Special Issue G:
“Did deceased place himself in a position of danger when he went to his automobile, if you have answered that he did go to his automo.-bile?” Answer: “No.”
Special Issue H:
“Did deceased undertake to move his automobile while the train was approaching it?” Answer: “Yes.”
Special Issue I:
“If you have answered ‘Yes’ to the foregoing question in Special Issue H, then answer this one: Did the deceased know the train was approaching when he began to try to move his automobile?” Answer: “Yes.”
Special Issue J:
“If you have answered ‘Yes’ to questions O, D, E, F, G, and H, then answer this'question: Did the acts of deceased in going to his automobile and undertaking to move it while the train was approaching contribute to his injury and death?” Answer: “Yes.”

In answer to instructions to find .what amount of damages was suffered by the respective plaintiffs in case the court should determine to enter judgment for them upon the jury’s answers to the issues, the jury assessed the damages to Mrs. Lizzie Turner at $2,000, to Mrs. Sallie Turner at $8,000 for the death of her husband, and $1,000 for damages to the automobile, and to the children, Alberta and Cecil Turner, respectively, at $5,000 and $4,000.

The court entered judgment for the defendants.

The first and third assignments of error complain of the refusal of the court to permit the introduction of testimony to the effect that the house track from the place where the accident occurred back to the platform of the freight depot, a distance of about 150 feet, was habitually and almost continuously used by the public in receiving and delivering freight and for other purposes. This testimony was clearly admissible. However, substantially, the same testimony was admitted, and in view of the jury’s findings of negligence on the part of defendant, the error in excluding the testimony was harmless.

The second assignment complains of the exclusion of exactly the same kind of evidence as that covered by the first and third assignments; but the proposition and statement attempt to require us to determine the admissibility of testimony to the effect that other vehicles had béen run into and crushed upon the house track near the place where the automobile of deceased was standing when struck by the train. As briefed, the assignment must be overruled. «

Assignments 4 to 8 inclusive, 10 and 12 will not be considered, because the statements are insufficient. Under the fourth a statement is made which fails to state any evidence raising the issue, and all the other assignments are accompanied by a reference to the statement under No. 4 for statement, although relating to different issues. The evidence relied upon to raise the issues sought to be submitted must be contained in the statements.

The thirteenth assignment is overruled. The definition accompanying the issue was incorrect in using the expression, “or by the use of ordinary care could have discovered deceased and his automobile,” and the court was, therefore, not required to submit the issue. T. & P. Ry. Co. v. Breadow, 90 Tex. 26, 36 S. W. 410.

The fourteenth and fifteenth assignments complain of the refusal of the court to submit special issues raising questions of contributory negligence. These issues were properly drawn and should have been submitted, for the reason that the court did not submit in any of his questions the issue whether the acts of the deceased constituted negligence. However, we do not think it is error of which the plaintiffs can complain. They are not injured by the failure of the court to submit the defensive issues. If it be necessary for them to request their submission in order to avail themselves of the right to question the sufficiency of the verdict as returned, and to prevent any presumptions of a finding by the court from being indulged, in aid of the judgment, they can show that they made the request.

The sixteenth assignment is too general, and will not be considered.

Assignments 17 to 25 inclusive, respectively complain of the submission of special issues A, B, C, D, E, P, G, and H. All of these issues should not have been submitted. They related to merely evidentiary matters, most of which were undisputed, and some were admitted in the sworn pleadings of both parties. To ask the jury to go out and seriously deliberate on the question whether Turner would have been injured if he had stayed where he was when he saw or heard the train approach, served no useful purpose, to say the least. The assignments are sustained.

By the twenty-sixth assignment complaint is made of the submission of special issue J, which was objected to on several grounds, one of which was that it failed to inquire whether Turner’s acts constituted negligence. The objections to these issues are so obviously good that it is unnecessary to discuss them. Questions which serve no useful purpose should not be submitted as they only tend to confuse and mislead the jury. The assignment is sustained.

By the twenty-seventh assignment complaint is made of the giving, at defendant’s request, of the following special charge:

“You are instructed that the defendant did not owe to the deceased, A. B. Turner, on the occasion of his visit to defendant’s depot, when the accident occurred, any duty to keep its depot and surrounding grounds lighted or free from any obstructions, or in a safe condition, and in determining whether defendant was negligent in the manner in which its train was operated at the time of the accident, you will not consider the depot and the surrounding grounds and conditions thereof.”

This charge should not have been given. When a case is submitted upon special issues, the court is authorized to submit such explanations and definitions of legal terms as shall bo necessary to enable the jury to properly pass upon the issues submitted. Article 19S4a, Sayles’ Statutes 1914. The court gave such definition as he deemed necessary, and was not authorized to give said special charge because it was not only unnecessary to the proper consideration of the only issue of negligence submitted, but in addition was apt to mislead the jury in the consideration of such issue. It is impossible to see why the jury, in deciding whether there was negligence in the manner in which the train was operated, should be precluded from considering the location of the depot, the surround-' ing grounds, and the conditions thereof. Had the issue been submitted, whether Turner’s acts constituted negligence, this charge might exercise a potent influence in the decision of that question, for if no obligations with regard to the running of trains arise from the situation of the house track and its known use by the public, Turner’s acts in leaving his automobile partly on the track and attempting to move it with a train coming down the track might impress the jury as those of an imprudent man. We do not think the verdict can be construed as a finding that Turner was guilty of 'contributory negligence; but if it could, this special charge is of such a damaging character that the giving thereof should of itself require a reversal of the judgment. We sustain the assignment upon the ground that the charge was not a proper one to be given in a case submitted on special issues, and that it is prejudicial upon its face. Other questions sought to be raised, the determination of which is dependent upon the evidence adduced, will not be decided, because there is no sufficient statement accompanying the assignment.

When, the jury first returned its verdict, special issue J was answered “No,” whereupon the court orally instructed the jury that its answers to issues 2 and J were conflicting, and that both questions should be answered alike. The jury was again retired, and afterwards returned its verdict answering both issues, “Yes.” This verdict was received and filed'. These proceedings were objected to by both parties, and by assignments Nos. 28 and 29 appellants complain thereof. The charge should have been in writing, but we think it was permissible for the court to require further consideration of the issues by the jury, and that no error is shown which would require a reversal even if issue No. J were a material one. However, we believe that issues 2 and J, although answered “Yes,” furnish no basis for judgment for defendant, because there is nó finding that Turner’s acts constituted negligence, and therefore appellants have not been harmed by the proceedings complained of. The assignments are overruled.

By the thirtieth assignment appellant asserts that the court erred in rendering judgment for defendant, the contention being that the jury having found that the automobile was damaged to the extent of $1,000, on account of the negligence of defendant, and there being no finding that Turner was guilty of contributory negligence in leaving the automobile on the track, judgment should not have been rendered for defendant. Plaintiffs requested the court to submit the issue whether Turner was guilty of contributory negligence in having his car at the place where it was struck by defendant. The request was refused. There is no finding of contributory negligence in leaving the car where it was standing when struck. Appellees, although they did not request the court to find as a matter of law that leaving the car partly upon the track constituted contributory negligence, and instruct the jury that no recovery could be bad for tbe damage to tbe car, now contend that tbe answer to special issue B shows that Turner was guilty of contributory negligence as a matter of law. Tbe evidence was undisputed upon tbe question asked in special issue B, but we do not tbink tbat failing to clear tbe track with tbe car can be said to constitute contributory negligence as a matter of law. Tbe assignment is sustained.

Tbe thirty-first assignment is also directed at tbe rendition of judgment for defendant, while in the thirty-second the failure to render judgment for plaintiffs, upon the verdict returned, is alleged to constitute error. In answer to special issue No. 2 the jury found that tbe acts of Turner or bis failure to act contributed to cause tbe injuries resulting in bis death. In answer to issue J tbe jury found that the act of Turner in going to bis automobile and undertaking to move it while tbe train was approaching contributed to bis injury and death. The answers to tbe other issues add nothing to tbe verdict. Plaintiffs objected to issue J because it did not require a finding, whether tbe act of Turner in going to bis car constituted negligence, and asked the submission of two special issues properly drawn relating to contributory negligence, but the court refused tbe request. Defendant contends that, in view of tbe reference to tbe definition of contributory negligence which was made as a preliminary to tbe question asked in special issue 2, it should be presumed that the jury, in answering tbe question, actually decided that tbe acts of Turner constituted negligence. It would be going into tbe domain of speculation to indulge such a presumption. Tbe jury may have done that very thing, then again they may have confined themselves to answering the very question asked. We are of the opinion that tbe verdict cannot be construed as a finding that Turner was guilty of contributory negligence, to say nothing about a finding that contributory negligence was tbe proximate cause of Turner’s death. The conclusion follows that tbe verdict does not support the judgment.

Plaintiffs requested tbe submission of two issues properly presenting questions of contributory negligence, which tbe court refused to give. Therefore no presumptions will be indulged in aid of tbe judgment on tbe theory that there were issues of fact not requested to be submitted, which should be determined in favor of tbe judgment.

However, we do not wish to be understood as holding that it is incumbent upon plaintiffs to see that defenses are submitted, or that they can be placed in the position of being forced to ask tbe submission of defensive issues, and thereby estop themselves from contending there is no evidence to justify their submission, or else run tbe risk of tbe appellate courts holding that there was evidence to support an adverse finding on a defense, and make such finding to support a judgment rendered by the court in tbe belief that the verdict required such judgment. Tbe statute was intended for the purpose of assisting insufficient verdicts, not for tbe purpose of defeating such as may be returned. The assignments are sustained.

The thirty-fourth, thirty-fifth, and thirty-sixth assignments are too general to require consideration.

Assignments 9, 11, and 33 are waived.

Appellants urge that having secured a verdict to the effect that defendant was guilty of negligence, which was the proximate cause of Turner’s death, and defendant having failed to secure a finding that Turner was guilty of contributory negligence which was' the proximate cause of his death, judgment should be entered in this court in favor of appellants. We doubt whether it would be proper for us to render judgment even had plaintiffs done all they should have done to prevent the case going to the jury upon questions not presenting the issue of contributory negligence, but in this case plaintiffs failed to object to special issue No. 2, and while their failure to object does not cure the defect in the verdict, still by failing to object they permitted the court to think he had in fact submitted the issue of contributory negligence. Under the circumstances, we conclude that the judgment should be reversed, and the cause remanded for another trial.

Judgment reversed and cause remanded.
      (gq^jPor other oases see same topic and KEY-NUMBEiR in all Key-Numbered Digests and Indexes

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


text:
    RAMSEY et al. v. FARMERS’ & CITIZENS’ SAVINGS BANK.
    (No. 5487.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 19, 1915.
    Rehearing Denied June 16, 1915.)
    1. Appear and Ekbor <@=>1011 — Review — Findings.
    A finding of the trial court on conflicting evidence cannot be disturbed on appeal.
    . [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. <@= 1011.]
    2. Bins and Notes <@=92—Consideration— Forbearance to Sue.
    Where the defendants gave vendor’s lien notes for land, and thereafter gave a new note covering arrears of interest on such vendor’s hen notes, in consideration that the payee bank would not sue on such notes until after the due date of the new note covering interest, and the interest due on the vendor’s lien notes, corresponding to the amount of the new note, was credited on such vendor’s lien notes, the new note was based on sufficient consideration.
    [Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 166-173, 175-205, 208-212; Dee. Dig. <@=92.]
    Error from Anderson County Court; E. Y. Swift, Judge.
    Action by the Farmers’ & Citizens’ Savings Bank against E. B. Ramsey and others. Judgment for plaintiff, and defendants bring error.
    Affirmed.
    Jackson & Dickson, of Houston, for plaintiffs in error. S. J. Williamson, of Palestine, for defendant in error.
   CARL, J.

Appellee, Farmers’ & Citizens’ Savings Bank, brought suit in the county court of Anderson county against E. B. Ramsey, W. H. Logan, H. M. Freeman, J. Mercer Johnson, W. M. O. 'Dixon, M. Y. Morris, J. W. Edwards, and Edward Lee, on a promissory note for the principal sum of $765.49, dated April 11, 1913, which said note was given for interest then due on vendor’s lien notes against a certain tract of land in the city of Houston, which had been purchased by plaintiffs in error for the purpose of erecting' a sanitarium thereon for colored people. There were seven of these vendor’s lien notes, the first being for $1,200, payable in 60 days from March 19, 1910, which is the date of all of the notes, and the other six notes were each for the sum of $1,000 and were payable, one each year, and they all oore interest at 8 per cent, per annum. Plaintiffs in error contend that this note sued upon was given to secure the interest on the vendor’s lien notes, and that at the same time that the note sued on was given it was agreed and understood between the parties that the same was to be paid out of the proceeds of a picnic, Tag Day receipts, etc., and that they agreed that if they could not so raise the money to pay same the property would be conveyed to the bank in satisfaction of the entire indebtedness, including the note sued on as well as the vendor’s lien notes. This is controverted by the defendant in error. Price, the cashier of the bank, testified that as soon as he received the present note sued on he credited the interest proportionately on the vendor’s lien notes against the land; and the credits on said notes introduced in evidence corroborate bis statement, showing that the total credits entered of that date aggregated $765.49. He says that the land would not have been taken in satisfaction of the entire indebtedness, including the note sued on. It is further pleaded, and there is evidence to support it, that the bank agreed to refrain from bringing suit at the time the note sued on was given until after the due date thereof. Plaintiffs in error contend that the note is without valid consideration; that they received nothing therefor; and that, when the land was conveyed to the bank in consideration of the cancellation and surrender of the lien notes, this debt, which they contend was a mere security for that, was extinguished. The cause was tried before the court without the assistance of a jury, and is brought to this court on writ of error.

The trial court heard the evidence, saw the witnesses, and was in a better position to judge as to the weight of the evidence than this court would be, and having found against plaintiffs in error, and there being ample testimony in the record to support that finding, this court would not be authorized to disturb that finding. The issues were sharply drawn and testimony introduced in support of the contentions of each side, with the result .that the trial court found in favor of the bank. In this state of the record, such finding will not be disturbed. Mills v. Belden, 162 S. W. 368; Schumm v. Anderson, 172 S. W. 1121; Holbrook v. Thornton, 166 S. W. 6.

If the testimony of Price is to be believed, and the court did believe it, there was a consideration for the interest note, because he agreed on part of the bank to refrain from bringing suit on the vendor’s lien note until after the due date of this note and the interest due on the vendor’s lien notes corresponding to the amount of this note was credited at the time it was given on the other notes.

It is not necessary for us to give detailed consideration to each of the assignments of error, for they simply, in different ■ forms, question the correctness of the judgment rendered by the court, based upon the matters above indicated.

The judgment of the trial court is in all things affirmed.
      <g^xoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALE, J.

text:
    BOYLES v. POTTER COUNTY et al.
    (No. 795.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 29, 1915.)
    1. Schools and School Districts <&wkey;135— TEACHEBS — CONTRACTS — APPROVAL BY County Judge.
    The failure of a teacher, who had unsuccessfully pursued her remedy by appeal to the state superintendent and state board of education, to resort to mandamus to obtain approval of her contract by the county judge, must be construed as an acquiescence on her part in the decision of the judge in refusing to approve the contract, and hence no valid contract existed between the trustees of the district and the teacher.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 139, 292-297; Dec. Dig. &wkey;>135.)
    2. Schools and School Districts <&wkey;144— Contracts to Teach — Compensation.
    The existence of a valid contract between the trustees of a school district and a teacher is a condition precedent to the right of the trustees to issue vouchers and of the county treasurer to pay them, and, until a written contract has been executed and approved, servicés performed by the teacher as such are without authority of law and she cannot recover therefor.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 308-314; Dec. Dig. <&wkey;144.]
    3. Schools and School Districts <&wkey;145— Contracts to Teach — Compensation—Actions — Petition.
    A petition, in a suit by a public school teacher for services for teaching in a district, which alleges that there was during the year in the hands of the county to the credit of the district to pay for teaching in. the district a specified sum, that the same was never paid out to any one for teaching the school of the district for the year, but that the teacher does not know whether the money is still so^ set aside, or whether the same has been distributed to other purposes, is defective for failing to affirmatively show that funds are on hand for the payment of the claim of the teacher.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 316-317; Dee. Dig-. <@=^145.]
    4. Schools and School Districts <&wkey;145— Teachers — Contracts — Compensation —Approval oe Vouchees.
    A public school teacher may not resort to the courts to recover for services rendered until an appeal has been unsuccessfully prosecuted to the state superintendent from the refusal of the county judge to approve vouchers, and this i? true whether controversies arise between the teacher on one hand, and the trustees and county school officials on the other, and a resort to the remedies provided in the school law must precede the right to a resort to the courts for relief.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 315-317; Dec. Dig. &wkey;145.]
    " Appeal from Potter County Court; W. H. Kimbrough, Special Judge.
    Action by Mabel Boyles against Potter County and others. From a judgment sustaining a general demurrer to the petition, plaintiff appeals.
    Affirmed.
    Synnott & Underwood, of Amarillo, for appellant. Gustavus & Jackson, of Amarillo, for appellees.
   HALE, J.

This is a suit by appellant, a public school teacher, against Potter county, W. M. Jeter, county judge, his bondsmen, and school district No. 2, and the trustees thereof, to recover $385 and interest, alleged to be due for services rendered by appellant in teaching Cliffside school, in the above-named district, during the scholastic year 1912-13. The substance of the petition is that plaintiff had a valid certificate; that she entered into a valid contract with the trustees to teach the school beginning September 2, 1912; that she presented her contract to the county judge for his approval in due time; and that he arbitrarily refused to approve it, and has no legal excuse for his failure to do so. It is specifically' alleged that the county judge had no objection to plaintiff as a teacher, either as to qualifications, ability, or moral worth, and that he refused to approve the contract for the sole reason that one patron of the school, to wit, George Overhulls, by reason of his dislike for plaintiff’s father, did not desire to have plaintiff teach the school, and requested the said Jeter to see to it that plaintiff was not so employed; that merely to please the said Overhulls, and to gratify his whim, the said Jeter refused to approve the contract and procured plaintiff’s election to teach in another school in said district; that the only reason the said Jeter had or urged ■for not approving the same was that he had determined she should teach the Bushland and should not teach the Cliffside school, because of his promise to the said Overhulls; and that the same was no sufficient reason and was arbitrarily interfering and meddling with the duties of the trustees without authority of law and an absolute abuse of discretion in the matter; that his acts were a usurpation of the authority of the trustees, and a captious exercise of resentment ; that plaintiff appealed to the state board of education and state superintendent, who affirmed the decision of the defendant Jeter; that, before a ruling from the higher state authorities could be obtained, September 2d arrived, and she was forced to begin teaching or breach the contract herself; that, believing a decision would be rendered in her favor, she began to teach and continued the whole year; that she made out her reports, had her vouchers executed by all the trustees according to law, and the said Jeter arbitrarily refused to sign the vouchers and abused his discretion in so doing; that she did not take a second appeal because it would have been useless; that there was during all the year in the hands of .the defendant county, to the credit of said district, for the purpose of paying for teaching said Cliffside school, the sum of $385; that the same was never paid out to any one for teaching said school for said year, but that plaintiff does not know whether said money is still so set aside, or whether the defendant Jeter reapportioned the same and distributed the same to other' purposes. The prayer is that the trustees and their successors be required to draw vouchers for said amounts and to sign and approve the same, and the further judgment that the said Jeter and his successor in office approve said vouchers. The court sustained a general demurrer to the petition, and from this judgment the plaintiff appealed.

Article 2825, Vernon’s Sayles’ Civil Statutes, requires that contracts made with teachers of public schools shall be in writing and shall be approved by the county superintendent before the school is taught. No effort was made by plaintiff, after she had exhausted her remedy by appeal to the state superintendent and state board of education, to resort to the courts in order to obtain the approval of her contract by Judge Jeter. Her failure to apply for a mandamus must be construed as an acquiescence on her part in the correctness of the position taken by Jeter in refusing to approve the contract when presented to him. The existence of a valid contract between the trustees and the teacher is a condition precedent to the right of the trustees to issue vouchers and of the county treasurer to pay them. Until a written contract has been duly executed and ] approved, the services performed by appellant as teaclier were without authority of law, and she cannot recover.

It must further appear affirmatively from the petition that the funds are on hand for the payment of plaintiff’s claim, and the petition herein is defective in that particular. Harkness v. Hutcherson, 90 Tex. 383, 38 S. W. 1120; Watkins v. Huff (Civ. App.) 63 S. W. 922.

It further appears from plaintiff’s allegations that her vouchers were not submitted to the county judge for approval, and she alleges, as an excuse for not doing so, the fact that she had been informed by the county judge that he would not approve them. Without a valid contract the county judge could not, of course, approve any vouchers issued for services rendered in teaching the Cliffside school. If, however, we admit the correctness of appellant’s position that the county judge should have approved the contract, still the duty rested upon appellant to appeal from his decision in declining to approve her vouchers. It is held, in Plummer v. Gholson (Civ. App.) 44 S. W. p. 1, that a teacher cannot resort to the courts to recover for services rendered until an appeal has been prosecuted to the state superintendent from the refusal of the county judge to approve the vouchers; and this seems to be the rule in all matters where controversies arise between the teachers of public schools upon the one hand, and the trustees and county school officials on the other. In Adkins v. Heard, 163 S. W. 127, Carl, Justice, said:

“The Legislature has seen fit to place the educational affairs of this state within the jurisdiction of a department created especially for that purpose, and has at the same time fixed the method of procedure by giving the right of appeal from the school boards to the county superintendent, and then to the state superintendent and board of education. This is the primary jurisdiction, and the judiciary will not assume jurisdiction in matters coming within the prerogatives of that department until the remedies therein provided are shown to have been exhausted. And when it is made to appear that those remedies have not first been resorted to, as it does in this case, the bill will be dismissed. It is on the same footing with a case appealed to this court from the justice’s court without first appealing to the county court. It is no answer to say that the department of education has ruled on the question in another case. Each case must rest upon its own peculiar facts., There would be just as much logic in a litigant seeking to go direct to the Supreme Court because this court had held adversely on a similar case, and therefore it was useless to pursue the course prescribed by law. This court will assume that the department of education will correctly and faithfully discharge the duties incumbent upon it in all cases, and will never assume jurisdiction of matters placed by law in that department until those remedies are shown to have been resorted to and exhausted.”

It is useless to multiply authorities, many of which are cited in the opinion quoted, to sustain the doctrine that strict compliance with the requirements of the school law, as outlined in the statutes, and a resort to the particular remedies provided in the school law, must necessarily precede the right of any complainant to resort to the courts for relief. Appellant’s petition is a strong appeal to our sens© of justice, and the fact that she labored faithfully during the entire term, upon the request of the trustees of the district to do so, is, as claimed by plaintiff, a condition presenting a strong equity; but the school fund of the state is and has ever been, in a sense, held sacred. The Legislature, in an effort to guard and protect it, has wisely outlined certain rules under which it can alone be disbursed; and the courts of this state have uniformly enforced those rules to the letter. Plaintiff’s petition clearly shows a failure on her part to bring herself within the statutory requirements, and therefore the action of the county court in sustaining the general demurrer was correct.

The judgment is affirmed.
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author: HARPER, C. J.

text:
    FORDTRAN et al. v. CUNNINGHAM.

    (No. 444.)
    (Court of Civil Appeals of Texas. El Paso.
    April 29, 1915.
    Rehearing Denied June 10, 1915.)
    1. A^endor and Purchasee &wkey;>86 — Abandonment of Rights — Title—Cube of Defect.
    The institution of a suit to recover money paid on a contract for the purchase of real estate upon discovery of fraudulent representations leading to the sale amounts to an abandonment of the contract, and it is then too late for the seller to make good the title by curing any defects therein.
    [Ed. Note. — Eor other cases, see Arendor and Purchaser, Cent. Dig. §§ 144-146; Dec. Dig. <&wkey;86.]
    2. A'ENDOR AND PURCHASER &wkey;>35 — RESCISSION BY PURCHASER1 — FRAUDULENT MISREPRESENTATIONS.
    AVhere the vendor of land concealed the existence of a lien thereon, stating that the title was good, and furnished an incomplete abstract, the fact that the purchaser employed an attorney to examine the abstract did not preclude rescission by the purchaser on the theory that it proved nonreliance on the vendor’s statements as to the title, since that would leave out the effect of furnishing a false abstract.
    [Ed. Note. — For other cases, see Arendor and Purchaser, Cent. Dig. §§ 45-51; Dec. Dig. <&wkey;> 35.]
    3. Attorney and Client <®^»104 — Knowledge of Attorney — Defect in Title — Rescission by Purchaser.
    That the attorney employed by the purchaser of land to examine the abstract knew of the existence of a lien which the vendor had concealed and which was fraudulently omitted from the abstract was not, as matter of law, conclusive against the purchaser’s right to rescind on discovery of the lien, where there was also evidence that the attorney agreed with the vendor not to disclose the lien to the purchaser.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 92, 93; Dec. Dig. &wkey; 104.]

      4. Vendor and Purchaser <@=>336 — Recovery ob Money Paid — Deeenses.
    In an action to recover money paid on a contract for the sale of real estate on account of flaws in the title thereto, that plaintiff has permitted a foreclosure and sale upon the lien which constituted the flaw in the title constitutes no defense.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 984; Dec. Dig. <@= 336.]
    5. Vendor and Purchaser <@=341 — Rescission by Pueohaser — Recovery ■ ob Payments.
    The rule that, where failure of title is partial and to a specific part of the land conveyed, the damages cannot exceed the value of the part to which title failed, is inapplicable to a case where the purchaser rescinds for fraud and sues to recover what he has paid.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1008-1017; Dec. Dig. <@=341.]
    Error from District Court, Harris County; N. G. Kittrell, Special Judge.
    Action by W. B. Cunningham against W. B. Fordtran and another. There was a judgment for. plaintiff, and defendants bring error.
    Affirmed.
    Elliott Cage, of Houston, for plaintiffs -in error. K. C. Barkley and Atkinson, Graham & Atkinson, all of Houston, for defendant in error.

       Writ of error pending in Supreme Court.

   HARPER, C. J.

This suit was filed by W. B. Cunningham against W. B. Fordtran and Bassett Blakely for the sum of $1,710, with interest for breach of warranty of title to certain lots in Houston, Tex., or for fraudulently inducing plaintiff to purchase the said lots. The opinion, in a former appeal of this case, is reported in 141 S. W. 562, to which reference is made for a more definite statement of the nature of the case. The last trial was with a jury and resulted in verdict and judgment for Cunningham in the sum of $1,550, with interest from date of judgment, from which this appeal is taken.

The first assignment is that:

“The court erred in overruling defendant’s special exceptions, because the lien complained of by plaintiff was foreclosed and the property sold under said foreclosure and purchased at said sale by defendant Blakely, which purchase inured to the benefit of plaintiff as an after-acquired title; and further because, plaintiff’s title having been perfected by said purchase by Blakely, he could not have been injured by any false representations made by defendant Ford-tran at the time of the purchase.”

The assignment is without merit, for the reason that, after defendant in error discovered the fraud, he instituted legal proceedings to recover his damages, which amounted to an abandonment of his contract to purchase, after which it was too late to cure the defect or offer to make good title The effect of fraud is to vitiate the agreement in toto, and a party who has been guilty of misrepresentation is barred from all right to enforce a contract which that misrepresentation has had any influence in inducing the other party to agree to. Green v. Chandler, 25 Tex. 160; Norris v. Ennis, 60 Tex. 83.

Assignments 2 and 4 are that the court should not have submitted the question of fraud to the jury, because the plaintiff testified that he did not rely on any statements made to him by defendant Fordtran at any time.

The fraud in this case consisted in furnishing an incomplete abstract and by silence concealing from the plaintiff the fact of the existence of the $1,300 lien upon the premises in addition to the statements made by the defendant that the title was good. The fact that plaintiff required an abstract and employed an attorney to pass on it shows that he did not rely on the statement of defendant Fordtran that the title was good. However, this does not free the defendant from the effect of the false abstract, because it was as much a misrepresentation as to say that the title was good. There is some evidence that the attorney of plaintiff knew of the lien, though the jury found that he did not; but, even if he did, there is also evidence that he agreed with defendant not to reveal the fact to plaintiff. Under such circumstances, the defendant cannot claim that such acts of the agent are binding upon the person defrauded, because such agent becomes the agent of the person he collusively serves. Association v. Parham, 80 Tex. 528, 16 S. W. 316.

The tenth is that the court erred in rendering judgment for the plaintiff, because he neither assumed nor paid, nor was he requested to pay, the $1,300 lien of which he complains — is disposed of by what is said under the first assignment.

The ninth and eleventh are to the effect that plaintiff, permitted a foreclosure of the lien which he himself had assumed, and sale made by the sheriff, and that he thereby lost his right to recover upon the covenant of warranty, citing Taylor v. Lane, 18 Tex. Civ. App. 545, 45 S. W. 317. The answer is that this is not a suit on the covenant of warranty, but a case of rescinding of the original contract of sale and a suit for the money paid, which plaintiff was entitled to do under the facts of this case. Buchanan v. Burnett, 52 Tex. Civ. App. 68, 114 S. W. 406.

The fourteenth is that, where failure of title is partial and to a specific part of the property conveyed, the measure of damages could not exceed the value of the property to which the title failed. This proposition of law is correct when the purchaser elects to stand by his bargain and sue upon the warranty. Hynes v. Packard, 92 Tex. 44, 45 S. W. 562. But, as held above, this is not such a case.

Finding no error in the record, the case is affirmed.
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author: MOURSUND, J.

text:
    BARNES v. TEXAS & N. O. RY. CO.
    (No. 5477.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 26, 1915.)
    1. Railroads <@=>398 — Person on Track— Negligence — Sufficiency of Evidence.
    Evidence in an action for the death of plaintiff's son, killed by a train while walking on the track, held to show that the defendant railroad company was not negligent, and to authorize an instructed verdict for defendant.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356, 1358-1363; Dec. Dig. <@=j 39S.J
    2. Railroads <@=>398 — Person on Track— Negligence — Proof.
    In an action for the death of plaintiff’s son, who was killed by a passenger train in front of which he stepped while walking toward the engine of a standing freight train, evidence that the headlight on such engine was not hooded did not show that the defendant railroad company was negligent, especially where there was no evidence that failure to have the headlight hooded was the proximate cause of the accident.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356, 1358-1363; Dec. Dig. <@=> 308.]
    3. Railroads <@=3392 — Person on Track-Negligence.
    That the brakeman on a freight train, on observing the approach of a passenger train behind a person walking between the tracks, called to him in a loud voice, “Look out and get out of the way!” and such person thereupon stepped in front of the passenger train and was killed, did not charge the railroad company with negligence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 902-909; Dec. Dig. <@=>392.]
    Appeal from District Court, Liberty County ; J. Llewellyn, Judge.
    Action by Tabbie Barnes against tbe Texas & New Orleans Railway Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    'Marshall & Harrison, of Liberty, for appellant. Hightower, Orgain & Butler, of Beaumont, and Baker, Botts, Parker & Gar-wood, of Houston, for appellee.
   MOURSUND, J.

Appellee, on April 24, 1912, sued appellant for damages on account of the death of her son, Stafford Barnes, alleging that her son, at about 8 o’clock p. m., was walking in an easterly direction between the main line and the switch track of the railroad company, about 400 yards west of the depot at Dayton; that at said time and long prior thereto the place where he was walking was commonly and customarily used as a walking place by the public, with the full knowledge, consent, and acquiescence of the defendant; that at said time defendant had standing upon its side track in Dayton a freight train headed in a westerly direction, and the light on said train was not hooded or closed; that it gave a light so bright as to blind the eyes of a person coming in contact therewith from the opposite direction; that at said time Barnes approached to within about 200 feet of the engine of said freight train, and at the same time defendant’s passenger train going east upon the main line, and running at the rate of not less than 35 miles per hour, came up behind said Barnes running “without steam” — that is, making no noise with the steam exhaust; that Barnes was in a safe place, but the engineer or fireman on said freight train called out to him in a loud voice, “Look out and get out of the way'!” which caused him to step, from a safe position between said tracks, in front of the passenger train, where he was struck and instantly killed; that Barnes was dazed and bewildered by the light on the freight train to such an extent that he believed said train was moving, and that he was on said track in front of said freight train. Plaintiff further alleged that the rate of speed at which said passenger train was running through Dayton, a thickly populated town, constituted negligence.

The defendant, on July 30, 1912, answered by general denial and plea of contributory negligence on the part of plaintiff. On May 18, 1914, plaintiff by supplemental petition denied that Barnes’ death was caused by contributory negligence as alleged by defendant. Judgment was rendered for defendant, pursuant to an instructed verdict.

Dayton, at the time Barnes was killed, was a town of about 1,000 population, but about half of this number lived out at a sawmill west of the town and about half a mile from the defendant’s track. The track of the Trinity Valley & Northern Railway Company runs from the mill to within about 150 yards of defendant’s track, and then a Y begins, one prong of which runs in an easterly direction towards Dayton, while the other runs in a westerly direction, both connecting with the tracks of defendant. The wagon road was the shortest way from the mill to Dayton, but the railroad track was commonly used, especially in wet weather and at night, and it was testified that at this time the roads were muddy. In using the railroad tracks the shortest way was along the east prong of the Y, and this was the one commonly used by people going from Dayton to the sawmill. The defendant’s tracks were fenced on both sides along the Y. Defendant had a switch track between the main track and the Y, and the space between the two tracks was 8 or 10 feet. On this switch track was standing a freight train, headed west. The engine was west of where the east prong of the Y runs into defendant’s tracks. Barnes was not coming along the east prong of the Y. He came down the defendant’s main track, and when killed was at a point between the two prongs of the Y, where the right of way was not shown to be commonly used by the public. The witnesses did not agree in regard to his location when he was struck; one testifying he was nearer the east prong than the west, while another' thought he was nearer the west prong than the east one. The place where he was hilled was about a third of a mile from the west end of the depot.

Henry Green testified that he was between the tender of the freight train and a box car when Barnes came along the track; that when Barnes was about 15 or 20 feet from the engine, and coming towards it, some one inside of the engine hallooed to “Look out!” whereupon Barnes got out of the space between the tracks, and got over in the main track, and never looked back; that No. 8 passenger train, also going east, struck him; that Barnes came down the track with his head down and his hands behind him; that the headlight of the freight engine did not have a hood over it. Said witness testified further:

“I know where those two tracks come out from the lumber mill to Dayton, one east and one west, and he was killed about half way between those two tracks. I have been living in Dayton about a year and a half, working for the Dayton Lumber Company, and people going from Dayton to the sawmill would always go down the Southern Pacific track, and then on the Trinity Valley & Northern track to the mill. The Trinity Valley & Northern is the tram-road that runs from Dayton to Fouts, and people used those tracks customarily, both in dry and wet weather; yon could see people down that track all the time.”

The train was running at the rate of about 40 miles per hour when it was about 50 or 75 feet from Barnes. It could have been stopped in about 900 feet. It was running “without steam.” The signal for the crossing west of Dayton was given, and when the train was close to Barnes four short blasts were given as a warning to him.

The witness Riley Elkins testified that he heard the train whistle when about a half mile from Dayton; that it must have been a crossing whistle; that about 800 or 400 yards from the place he heard the whistle for the crossing he heard the whistle again, describing it as a “kind of distress whistle,” and saw the train coming to a stop.

The brakeman on the freight train testified that Barnes was about opposite the engine of the freight train when he was struck. He insisted that Barnes was on the main track when he and the engineer first hallooed at him.

There is no allegation in the pleadings of negligence on the part of defendant on account of discovered peril. Nor Is it charged that a lookout should have been kept. In fact, plaintiff’s theory is that Barnes stepped from a place of safety upon the track in front of the fast-moving train, at a time when it was impossible for the engineer to save bim on account of the sp^eed of the train. The evidence fails to show that the engineer did not see him as soon as he got upon the track and try to warn him by giving four sharp blasts. The evidence fails to show that running at the rate of 40 miles per hour at a point more than a third of a mile from the depot, where the track was fenced on both sides, constituted negligence, and fails to show that the high speed of the train was the proximate cause of Barnes’ death. Conceding that the headlight on the engine of the freight train was not hooded, such fact does not establish negligence. The headlight was required by statute. But, even if it was conceded that the headlight should have been hooded, the evidence fails to show that the failure to have same hooded was the proximate cause of Barnes’ death. Plaintiff’s theory that Barnes was confused by the headlight into believing that the freight train was moving, or about to move, rests upon no basis furnished by the evidence. It is a mere conjecture. As a matter of fact, if he was 15 or 20 feet east of the engine, but between the tracks, the light could not have blinded him, as it would shine beyond him. It cannot be said that the giving of the warning cry or cries by the brakeman of the freight train constituted negligence. The undisputed evidence shows that the crossing signal was given.

We conclude that the evidence would not support a finding of negligence on the part of the railroad company. It is therefore useless to discuss the question of contributory negligence. The court did not err in instructing a verdict for defendant.

The assignments of error are overruled, and the judgment is affirmed.
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text:
    ALLEN v. RETTIG.
    (No. 460.)
    (Court of Civil Appeals of Texas. El Paso.
    May 27, 1915.)
    1. Continuance <§=337 — Absence of Witnesses — Matekiauitt of Testimony— Sufficiency of Motion.
    In an action on a note, wherein defendant claimed that he had bought the note from X., to whom plaintiffs attorney had delivered it with instructions to sell it, a motion for a continuance to procure the testimony of such attorney and another was insufficient, where it did not allege that the attorney would testify that he had authority to sell the note, or show that either of the witnesses would testify to any facts material to the issues.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 117-121, 127; Dec. Dig. <§=>S7.]
    2. Lost Instruments <§=>22 — Action on Destroyed Note — Pleading and Proof — Secondary Evidence.
    In an action on a note which had been destroyed, secondary evidence of the contents of the note was admissible on proof having been made of its destruction, though the destruction of the note was not alleged in the pleading.
    [Ed. Note. — For other cases, see Lost Instruments, Cent. Dig. §§ 47-50; D'ec. Dig. <§=>22.]
    8. Lost Instruments <§=>28 — Burden of Proof — Defense.
    In an action on a note which had been destroyed, wherein defendant claimed to have bought the note from X., to whom plaintiff’s agent had delivered it with instructions to sell it, the burden was on the defendant to establish his contention that he bought the note in good faith in the usual course of trade, without knowledge of X.’s lack of authority.
    [Ed. Note. — Por other cases, see Lost Instruments, Gent. Dig. §§ 51-57; Dec. Dig. <@=j23.]
    4. Lost Instruments <@=o23 — Action on Destroyed Note — Evidence—Parties.
    In such suit, it was not error to admit evidence to show X.’s dealings with plaintiff’s agent.
    [Ed. Note. — Por other cases, see Lost Instruments, Cent. Dig. §§ 51-57; Dec. Dig. <§u^>23.]
    Error from District Court, Harris County; Chas. E. Ashe, Judge.
    Action by W. E. Rettig against O. L. Allen. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Dowell & Dowell, of Houston, for plaintiff in error. T. C. Rowe, of Houston, for defendant in error.
   WALTHALL, J.

In this case, W. E. Ret-tig, defendant in error, sued O. L. Allen, plaintiff in error, on a promissory note for $1,000 and a foreclosure of a chattel mortgage lien on a sawmill, fixtures, and tools, described in the petition, given to secure the note, and made T. J. Reed and J. T. Brown parties defendant, as claiming to have some interest in the mortgaged property, obtained after plaintiff’s rights attached. Allen answered by general and special demurrers, general denial, special denials of the allegations in the petition, and alleged that he had paid off and satisfied the note, and that at the time of the filing of the suit was the owner and holder of the said note, in good faith, purchasing the note from N. L. Xar-borough ; that, Rettig, through his wife, having placed the said note in the hands of Xar-borough for settlement and collection, Xar-borough had a right to sell and convey the note to him (Allen); that the note was originally a debt for lumber, and that Rettig, acting through his wife as his agent, agreed to accept in settlement of the note an order on Reed and Brown, then owners of the sawmill, for 105,000 feet of lumber; that the order had been given and the note thereby paid; that if the lumber was not delivered on the order he (Allen) would be liable only for the lumber and not on the note; that to affect a collection of said note, Mrs. Rettig placed the note in the hands of R. W. Harris, an attorney, and that said Harris placed the note in the hands of said Xarborough with instructions to sell the note; and that he (Allen) bought the note from Xarborough for $150 and an interest in- some land. Ret-tig, by supplemental petition, demurred and denied the facts alleged in Allen’s answer; denied that his wife was his agent or authorized to do anything whatsoever about the collection of said note, that if Allen had ever given an order to Reed and Brown for lumber in settlement of said note, he (Allen) had I countermanded said order for the lumber, and that no lumber was ever delivered. The pleadings are lengthy. The case was submitted to the jury on special issues, and any further facts necessary to an understanding of the case will be gathered from the issues submitted to and found by the jury. The jury found as follows:

“1. The plaintiff, Rettig, is indebted to defendant, Allen, in the sum of $40 as rent.
“2. Rettig authorized his wife to collect the note sued on.
“3,4. Rettig authorized his wife to accept lumber from Allen in settlement of the note.
“5. Mrs. Rettig, in settlement of said note, accepted an order from Allen on Reed and Brown for 105,000 feet of lumber.
“6. Neither Rettig nor his wife have ever refused to take lumber in settlement.
“7. Mrs. Rettig called upon Reed & Brown for the purpose of securing the delivery of the lumber.
“8. Mr. Rettig never authorized his wife to sell the note.
“9,10,11. Rettig authorized his wife to employ R. W. Harris, a lawyer, for the purpose only of collecting the note.
“12,13,14. No response.
“15. Allen, before he got possession of the note, knew that it had been turned over to Harris for the purpose of collection only.
“16. Allen got the note from Xarborough.
“17. Xarborough got the note from Harris.
“18. Allen, at the time he got the note, did not know that Xarborough had gotten it from Harris.
“19,20, 21, 22, 23. Allen purchased the note from Xarborough by paying him $150, and took possession of the note at the time he bought it.
“24,25. At the time Allen bought the note of Xarborough, he did not believe that Xarbor-ough was the legal owner and holder of it, but knew that the note belonged to Rettig.”

The first assignment of error is based on the refusal of the court to continue the case on Allen’s motion. In this there was no error. The motion to continue was not sufficient, in that it did not show the materiality of the testimony of either of the two witnesses. It did not state what Allen wanted to prove by Spender, nór in any way undertake to show that his evidence would be material on any issue. The motion stated that the testimony of Harris was material, in that he would testify that he was the agent and attorney for Rettig, and had the note sued on in his possession for settlement, and that he placed the note in. the hands of Xarborough for settlement and payment, and that Xarborough received $150 of Allen and interest in 40 acres of land and delivered said note to Allen. The jury found the facts about as stated in the motion. The material issue tendered by Rettig on these facts was a want of authority of Harris and Xarborough to do more than collect the note. The motion did not allege that Harris would testify that he had authority from either Rettig or his wife to sell the note to Allen. The jury found that Allen knew the note had been turned over to Harris for collection only. Xarborough could have no greater authority to dispose of the note than Harris, from whom lie got it. There was no fact material to any issue in the case stated in the motion, and the court was not in error in overruling it.

The suit was brought on the note. The note had been destroyed, and the court permitted Rettig to prove the contents of the note without any allegation in the pleading as to the destruction or loss of the note. In this there was no error. If it were an equitable suit to establish the existence of the lost note merely, the averment of its loss would probably have been necessary. But the suit was not to establish the existence of the note, but to recover judgment on the note, and a rule of evidence only was involved, and upon proof of its destruction secondary evidence as to its contents was admissible. Houy v. Gamel, 26 Tex. Civ. App. 123, 62 S. W. 76. The assignment is overruled.

The thirteenth and fourteenth grounds in the motion for a new trial are based on the refusal of the court to give special instructions requested, placing the burden of proof on plaintiff to show that at the time Allen bought the note from Yarborough, he (Allen) knew that Yarborough had no right to sell the note, and that he (Allen) had not acquired the note in good faith in the usual course of trade. The court was not in error in refusing these instructions. The matters were defensive, and the burden was on defendant.

Yarborough was neither a proper nor necessary party to the suit and it was not error to admit evidence, to show the nature of his dealings with Allen, as claimed in the sixteenth assignment. The assignment is overruled.

In the absence of a statement of facts, we cannot say that special issues Nos: 24 and 25 are without evidence to support them, and the assignments 15 and 16, raising this issue, are overruled.

Assignments 11, 12, 13, 14, 15, and 16 are without merit, and are overruled. The judgment rendered by the court was the only one that could have been properly rendered on the facts found by the jury.

The judgment is affirmed.
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