author: HALL, J.

text:
    ST. PAUL FIRE & MARINE INS. CO. v. CLARK.
    (No. 1269.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 12, 1917.
    Rehearing Denied Jan. 9, 1918.)
    1. Insurance <&wkey;94 — Ratification of Agents’ Acts.
    Where a fire insurance company ratified the acts of its agents and accepted the benefits, it could not deny their agency or avoid the responsibility growing out of it.
    2. Insurance <&wkey;64S(l) — Actions—Evidence —Statements oe Insurer’s Agents.
    In action on fire insurance policy, testimony of assured’s wife and attorney as to material statements made by agents of the insurer which had ratified the acts of such agents was admissible.
    3. Insurance t&wkey;662(l) — Actions—Evidence —Letter oe Insurer’s Attorneys.
    In action on fire insurance policy, a letter of insurer’s attorneys tending to prove that the insured’s premium note was deducted from the amount agreed to be due in adjustment of. a prior loss on the same policy was admissible.
    4. Insurance <&wkey;64o(3) — Issues and Proof.
    Under Vernon’s .Sayles’ Ann. Civ. St. 1914, art. 1829, as amended by Acts 34th Leg. c. 101, providing that special defenses shall be regarded as denied unless expressly admitted, where insurer, in action on fire insurance policy, pleaded nonpayment of insured’s premium note as avoiding the policy, insured, assuming the burden of* proving payment, had the right to prove it under his implied general denial.
    5. Insurance <&wkey;23<> — Cancellation—Tender of Unearned Premiums.
    A fire insurance policy could not be canceled without tender of unearned premiums.
    6. Appeal and Error &wkey;>173(14) — Presentation of Question Below.
    Where defendant insurer, in action on fire insurance policy, did not plead insured’s failure to make out and furnish proofs of loss, and there was no evidence on the question, it was too late to raise it on appeal.
    Error from District Court, Motley County; J. H. Milam, Judge.
    Action by W. D. Clark against the St. Paul Eire & Marine Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.

      E. G. Senter, of Waco, for plaintiff in error. T. T. Bouldin and G. E. Hamilton, both of Matador, for defendant in error.
   HALL, J.

Defendant in error filed tliis suit upon a policy of fire insurance to collect the sum of $1,500 for the loss of his dwelling and $171 for the loss of household goods. It is alleged that the policy was issued March 11, 1014, insuring the dwelling against loss by fire for a period of throe years from said date, in the sum of $1,500, and insuring the household and kitchen furniture and wearing apparel in said dwelling in the sum of $300; that on the 15th day of December, 1915, the house and contents were destroyed by fire; that the premium for said three years was fully paid up; that the destruction of the house was complete; that the policy had been taken from plaintiff’s possession by one J. R. Meriwether, plaintiff in error’s agent, wrongfully and fraudulently, and was then in possession of plaintiff in error. The stibsian.ee of appellant’s special answer is: That plaintiff did not pay the premium stipulated in the policy, but in lieu thereof executed his note passable to the defendant or its order on the 1st day of January, 1915, in the sum of $89. That one of the terms and conditions of said note is as follows:

“This note being given as a consideration for insurance and interest under tho above-named policy, I consent that in caso of default in payment of same in full when due the policy shall become null and void and so remain until the note is paid.”

That said note was not paid by plaintiff at maturity and has never been paid. That no part of the premium payable for the policy was ever paid by plaintiff. That by reason thereof said policy became null and void on the 1st day of January, 1915, and was not in force as an existing contract of insurance at the time of the fire. That the policy sued on contained the following provision and stipulation:

“This policy shall be canceled at any time at the request'of the insured or by the company, by giving five days’ notice of such cancellation.”

That on or about the-day of April, 1915, defendant gave notice to plaintiff and to his authorized agent of the cancellation of the policy, and the plaintiff, through his authorized agent, to wit, his wife, Mrs. Pearl Clark, surrendered the policy to the defendant for cancellation and same was duly and legally canceled by the defendant and ceased to exist at said time to be a binding contract of insurance between the parties and was not in force at the time of the fire described in plaintiff’s petition. That some time during the fall of 1915 plaintiff brought suit in the justice court of precinct No. 1, of Motley county, Tex., against the defendant, setting up a certain claim against the defendant, arising out of a fire alleged by plaintiff to have occurred after the .issuance of the policy described in his petition and before the 1st day of January, 1915. That at the time plaintiff brought said suit he had been duly notified that the defendant had canceled the policy and had same in its possession. That said suit proceeded to judgment in said justice court and the judgment therein was paid off by the defendant. That by reason thereof and by reason of all the facts herein stated plaintiff is now estopped from asserting that said policy of insurance was to continue to be in force after the 1st day of January, 1915. The cause was tried by the court without a jury, resulting in a judgment in favor of defendant in error in tho sum of $1,580, with interest from the 15th day of December, 1915. The findings of fact and conclusions of law filed by the court upon request are as follows:

“(1) I find that on or about the 14th day o£ March, 1914, plaintiff made application for a policy of fire insurance covering his dwelling house and barn, or granary, at tho solicitation of J. R. Meriwether, agent for the defendant, and at the same time plaintiff applied for a tornado policy covering the same buildings; that plaintiff executed two notes, one for an amount not shown by tho evidence, in payment for the tornado policy, which was paid at maturity and another note for $89.90, which was executed in payment of fire policy dated the 14th day of March, 1914, falling due the 1st day of January, 1915; that in accordance with such application defendant company issued its policy covering said dwelling and granary, dated the-day of-, 1915-, to run for a period of three years, in consideration of said $89.90 note, and delivered the same to plaintiff in this case; that the amount on the house was $1,500, on the furniture, clothing, and contents of the house $300, and on the granary $300, besides some small amounts on the feed and fodder.
“(2) I find that on or about the 18th day of December, 1914, the plaintiff in this case suffered a loss by fire on the granary described in the said policy, which is called by the witness in this case the barn, but I find that it is the same building as covered by the policy and described as a granary. It was totally destroyed. Plaintiff notified defendant, through its agent, Meriwether, of this fire, and thereafter, about tbe latter: part of December, 1914, Meriwether appeared at plaintiff’s place with an adjuster named Buckalew, who investigated the fire and agreed with the plaintiff on an adjustment of the damage at the sum of $272.03, and gave plaintiff a written statement showing such adjustment was made by the adjuster. I find this written statement was afterwards turned over to Meriwether, agent of the defendant.
“(3) I find that the defendant company accepted the adjustment made by Buckalew, and some time in tbe winter of 1915, about January or February, 1915, issued its check in favor of the plaintiff, W. D. Ciark, for the full amount of the adjustment agreement, $272.03, less tbe amount of $89:90, tbe amount of the note given by plaintiff to defendant as a premium for said fire policy, and sent said check to its agent, Meriwether, with instructions to deliver said check to plaintiff, and did not return said note.
“(4) I find at the time Meriwether received the check plaintiff had been arrested and bad been convicted to serve a two-year term in tbe penitentiary on the charge of swindling, which had no connection whatever with this insurance or the fire above mentioned; that instead of delivering the check to plaintiff, or Ms wife, Meriwether returned the cheek to Ms company, the defendant herein, and advised that the plaintiff was in the penitentiary and that he could probably force a better settlement with plaintiff’s wife who had been left alone, than to give her the check.
“(5) I find that defendant, upon receiving Meriwether’s letter, directed him to make the best settlement with plaintiff’s wife t,ati he could, and in pursuance with said directions Meriwether some time in April, 1015, went to the home of the plaintiffs, where his wife resided with the plaintiff, and offered to pay her $25 as a full and complete settlement on what was owing on the granary loss. I find that, after considerable negotiations between Meriwether and plaintiff’s wife, during which time Meri-wether told her that her husband was already in the penitentiary, that he had evidence tending to show that her husband had burned the barn or granary in order to collect the insurance thereon, and that the company would not pay for the same without a lawsuit, and if they had to fight a lawsuit it might cause her'husband to have to go to the penitentiary again, beside the cost, worry, and delay to her of a lawsuit; finally Meriwether offered to give her $75 if she would surrender the policy on the bam and other feed in full settlement of the loss; that plaintiff’s wife thought there were two separate fire policies, one covering the house and one covering the granary, or barn, whereas there was in fact but one policy covering both buildings, and I find that she never intended to agree, and did not agree, to surrender the policy on the house, but did agree to surrender the policy on the barn; that Meriwether paid her the $75 then and there and as he left carried off both the tornado policy and the fire policy, and returned the same to his company, but he did not surrender the note that was given for the premium on the fire policy, which had been given in full statement for a three-year period, running from the 14th day of March to the 14th day; of March, 1917, and that he did not tell plaintiff’s wife that said fire policy would be canceled on said dwelling house. I find that as a fact Meriwether did not have any evidence whatever that the plaintiff had burned said granary, but made such statement to intimidate plaintiff’s wife in making the settlement desired. I find that she did not know he had carried off the policy covering the house until after he had left the place.
“(6) That after such settlement had been made plaintiff’s wife still claimed the balance due plaintiff on adjustment for the granary loss and about $107.50; that suit was brought therefor in the justice court of precinct No. 1 of Motley county against the defendant in the name of plaintiff, about June, 1915, in which a judgment for $125 was rendered for plaintiff against defendant; that such judgment was settled by compromise, defendant paying the plaintiff the sum of $90 in full satisfaction thereof.
“(7) I find that in the settlement that was effected between the defendant and the plaintiff of said judgment the fact that the premium note for $89.90 had been figured out of the adjustment agreement and thereby had been paid by the plaintiff was taken into consideration by both parties in arriving at a final adjustment and settlement of said justice court judgment.
“(8) I find that on or about the 15th day of December, 1915, plaintiff’s dwelling house which was covered by said fire policy was entirely destroyed by fire without any fault on the part of plaintiff, the origin of which was unknown, and that the amount of liability incurred by defendant on account of the burning of said house was'$1,500, and that the contents of the house covered by the $300 item on the furniture, clothing, bedding, etc., were destroyed to the value of $80.
“(9) I find said policy, as the same relates to said house and the contents thereof, had never been canceled, but was in full force and effect on the said 15th day of December, 1915, at the time of said fire, and that defendant had never given notice of its intention to cancel said policy and had not tendered back to plaintiff any portion of the unearned premium which he had paid therefor.
“Conclusions of Law.
“(1) I find that as a matter of law the said fire policy remained in full force and effect and was in such force and effect at the day of the fire on December 15, 1915, and that the defendant was therefore indebted from and after said date to the plaintiff, in the sum of $1,580, and that plaintiff is entitled to interest on said sum from the 15th day of December, 1915, at the rate of 6 per cent, per annum.
“(2) I find that, although Meriwether secured possession of the fire policy in the manner described in the findings of fact herein, neither his actions or any actions thereafter taken by the defendant had the effect of canceling said policy, for the reason that the possession thereof was obtained by Meriwether through fraud and misrepresentations and no notice was given by him to plaintiff or to his wife that said policy would be canceled, and no offer was made to return the unearned premium which had been paid by plaintiff to defendant for said policy, nor was there any tender made of the note which defendant held against plaintiff, although the same had been settled in the process of settlement growing out of the granary fire.”

Many of the assignments of error attack the findings of fact, and it is insisted that the evidence is not sufficient to support the findings. We deem it unnecessary to set out the testimony of the various witnesses, but after a careful reading of the statement of facts it is our opinion that every material fact found by the court is supported by sufficient evidence.

The evidence shows that both Meriwether and Buekalew were the agents of appellant ; that together they adjusted the loss and that Meriwether represented the appellant in the settlement of the justice eourt judgment. It is further shown that the appellant ratified the acts of its agents and accepted the benefits and cannot therefore deny the fact of their agency nor avoid the responsibility growing out of it. Mrs. Clark and the attorney for appellee testified to material statement made by these agents, and the admission of this evidence is the basis for several of the assignments. We think the evidence was all clearly admissible. A letter written by the attorneys of appellant was introduced in evidence for the purpose of proving that the premium note for $98.(30 was deducted from the amount agreed to be due in the adjustment of the first loss. The letter written by appellant’s attorneys for the purpose of proving this fact was also admissible. Railway Co. v. Sullivan, 157 S. W. 194; Logre v. Galveston Electric Co., 146 S. W. 304.

Appellant contends under several assignments that all evidence admitted for the purpose of showing that the premium note above mentioned was paid in the adjustment and settlement of the first loss was inadmissible, because there were no pleadings under which it could be properly introduced. Appellant set up as part of its defense the clause in the policy which provided that if the premium note was not paid the policy should become null and void, and alleged that the note had never been paid. The burden was upon appellant to establish the truth of this allegation. It appears, however, that appellee assumed the burden of proving the payment of the note. Vernon’s Sayles’ Civil Statutes, art. 1829, provides that any fact pleaded by the defense that is not denied (by the plaintiff shall be taken as confessed, but this article has been amended twice, and by the Act of 1915, p. 155, it is provided that it shall not be necessary for the plaintiff to deny any special matter of defense pleaded by the defendant, but the same shall be regarded as denied unless expressly admitted, i'nder the implied general denial appellee had the right to prove the payment of the note, if in fact it had been paid. By the provisions of the policy appellant could not cancel it without giving the required notice, nor could it be canceled without a tender of unearned premiums. Insurance Co. v. Mitchell, 164 S. W. 919; Polemanakos v. Austin Fire Insurance Co., 160 S. W. 1134, and authorities cited. It was not shown that any part of the premium paid upon the policy had ever been returned' or tendered to ap-pellee.

The twentieth and twenty-second as■signments of error attack the findings of the court upon the ground that there is no evidence to support the amount found to he due. We have reviewed the record on this point and find that the testimony of Mrs. Clark is clear and, we think, sufficient to support a judgment for even more than the amount rendered. Appellant did not set up as a defense the failure of appellee to make out and furnish proofs of loss. There was no evidence upon that question, and it is too late to raise it in this court.

We have not considered the 'questions in the brief in the order in which they are presented, and overrule all the assignments not disposed of by what has been said above.

The judgment is affirmed.
      <@=Eor other eases see same topic and KEY-NUMBER in all KeyhSIumbered Digests and Indexes


source: Caselaw Access Project

author: BROOKE, J.

license: Public Domain

text:
    HOUSTON OIL CO. OF TEXAS v. OLIVE STERNENBERG & CO.
    (No. 287.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 19, 1917.
    Rehearing Denied Jan. 23, 1918.)
    Adverse Possession <&wkey;103 — Extent of Possession — Conflicting Surveys.
    Where the purchaser from the patentee of the B. survey, conflicting with an earlier, the E. survey, not knowing of the conflict, went into possession, claiming the whole survey, using parts of it in conflict and other parts not in conflict, with the E., and cleared up and fenced other parts, he acquired by such possession, for the requisite time, title by limitations to all the parts in conflict.
    Error from District Court, Hardin County; L. B. Hightower, Sr., Judge.
    Action by Olive Sternenberg & Co. against the Houston Oil Company of Texas. Judgment ¡for plaintiff, and defendant brings error.
    Affirmed.
    Kennerly, Williams, Lee & Hill, of Houston, for plaintiff in error. D. P. Singleton, of Kountze, for defendant in error.
   BROOKE, J.

Olive Sternenberg & Co., a firm composed of V. A. Petty and Emma Sternenberg, sued in trespass to try title for a part of that tract or parcel of land containing 320 acres granted to Lewis Boullette by the state of Texas, by patent bearing date the 20th of December, 1847, the parts sued for being more particularly described as follows:

“Beginning at the southwest corner of the Boullette survey, which is also the southeast corner of the Joseph Landis survey No. 3; thence east with the south line of said Boullette survey at 702 varas cross the supposed west line of the E. P. Elliott league of land and at 1,344 varas, the southeast corner of the Boul-lette survey; thence north with the east line of said survey to Beaumont creek for corner; thence up said creek to the mouth of the branch which runs south of the old M. Brackin homestead place for corner; thence up said branch crossing west line of the Elliott league to the west line of the Boullette survey and corner; thence south with the west line of said survey, which is also the east line of the Landis survey, to the place of beginning.”

In addition to the usual allegations of trespass to try title, plaintiffs pleaded title to the Boullette survey by three, five and ten years statutes of limitation. Defendant answered, disclaiming as to all the land sued for except that part of same which was in conflict with the Elliott and Hampton leagues, and as to such part in conflict it pleaded in addition to its other titles, title by limitation, but failed to substantiate the limitation claim. Judgment was entered for plaintiffs for all the land sued for. The cause was tried before the court without a jury, and the following findings of fact and conclusions of law were filed:

“Request having been made by the defendant for findings of fact and conclusions of law in the above-styled cause, I hereby file the following as my findings and conclusions:
“(1) I find that the Lewis Boullette survey was patented by the state of Texas to Lewis Boullette on the 20th day of March, 1847. I find that on December 14, 1859, Lewis Boullette, the original grantee, conveyed said survey to M. Brackin, and that by .regular chain of transfers title is now held by the plaintiffs in this suit.
“(2) I find that the Lewis Boullette survey conflicted with the E. P. Elliott league to the extent of something over 600 varas on the east, * * * that is, that the eastern part of the Lewis Boullette survey was actually located and surveyed to the extent of over 600 varas on the west end of the F. P. Elliott league, and the Elliott league is the senior survey.
“(3) I find that M. Brackin went -into possession of said Lewis Boullette survey on or about January 1, 1860, and immediately commenced the cultivation of a field on said survey consisting of 50 or 60 acres, and that within said field there was about 15 acres of land on the conflict between the Boullette and the Elliott surveys, and that said 15-acre field was continuously'held, possessed, cultivated, and enjoyed by the said Bracldn from January 1, I860, until some time in March, 1872, at which time the said M. Bracldn died, and that M. Brackin’s widow, now Mrs. M. L. Patterson, continued to use, cultivate, and possess and enjoy said 15 acres of land on said conflict until 1884; that the said M. L. Brackin, widow of the said M. Brackin, cultivated said 15 acres of land by hired labor until 1875, when she married Patterson; and that the said Patterson, the husband of said M. L. Patterson, cultivated the same until 1884. I find that on the 24th day of April, 1872, M. L. Brackin, widow of M. Brackin, conveyed to W. G. Brackin, son and only heir of M. Brackin, the larfd in controversy in this suit, .and that the said W. G. Brackin immediately went into possession of said land; that prior to the death of M. Brackin he had cleared a field south of the branch which is the present dividing line between the plaintiffs in this suit and M. L. Patterson, and that said field had been" continuously cultivated from some time during the.war up to the death of M. Brackin, and that immediately after the death of M. Brackin, W. G. Brackin went into possession of said field south of the branch and east of the Elliott west line, and continued to use, cultivate, possess, and "enjoy said land so situated on said conflict until the year 1879.
“I conclude as a matter of law that under the facts above found M. Brackin had matured title under the three-year statute of limitation to all of the Boullette survey which was in conflict south of the branch, having been continued in W. G. Bracldn till the year 1879; that title thereto was matured under the ten-year statute of limitation.
“Therefore I conclude that plaintiff is entitled to recover all of the land involved in this suit under both the three and ten year statute of limitation, and give judgment accordingly.”

It is conceded that the findings of fact are amply supported by the evidence.

The first assignment is as follows:

“The court erred in not rendering judgment for the defendant as the owner of the record title to the senior survey, because, as shown by the undisputed evidence and the findings of fact, the possession by the owners of the Boullette survey of that part of same in conflict with the Elliott league consisted entirely of the possession, cultivation, and use of a field which lay partly on the Elliott and partly off of s.ame, and was adjoining and was incidental to the residence houses and all other improvements which were situated entirely without the Elliott league, and such possession as was held on the Elliott league was merely subsidiary and incidental to, and therefore referable to, the home and place of residence, and was therefore insufficiently distinct to afford a basis for the acquisition under the statutes of limitation of more of the adjoining survey than was actually so possessed and used throughout the statutory period.”

It is insisted that the decision in Bailey v. Kirby Lumber Company, 195 S. W. 221, applies to the instant case. On the contrary, it is insisted that this case is in no wise analogous to the case of Bracken v. Jones, 63 Tex. 184, Holland v. Nance, 102 Tex. 177, 114 S. W. 346, nor that line of cases, known as encroachment cases, nor is this case in any wise analogous to the case of Bailey v. Kirby Lumber Company, supra. Inasmuch as the writer was the author of the opinion in the Bailey Case, it is sufficient to say that in our judgment the present ease, like a great many others, is dependent upon the facts in the particular case itself. We have no hesitation in saying that it is not such a case as the Bailey v. Kirby Lumber Company Case.

Plaintiffs’ predecessor in title bought the whole Boullette survey from the patentee in December, 1S57, and immediately went into possession. At that time nothing was known of any conflict between the Boullette survey and the Elliott league, and the then owner of the Boullette went into possession, claiming the whole survey against the world, using parts of said survey in conflict and other parts not in conflict with the Elliott. Furthermore, immediately after going into possession, he extended his invasion of the senior survey by clearing up additional land in two different places which he fenced, and thus emphasized his claim, thereby giving unmistakable notice to the world of the extent of his claim.

We find no difficulty in holding in this case that the trial court was not in error in holding that the law was with the appellee. We are still of opinion and adhere to the holding in the case of Bailey v. Kirby Lumber Company, but we see no occasion to and will not go into detail and discuss the differences between the facts in that case and in the instant case. Suffice it to say we believe that the lower court was not only correct in his findings of fact, but in his conclusions of law, and, there being no error in his action, the' case is in all things affirmed.
      <g=3For other eases see same topic and KEY-NUMBEE in all Key-Numbered Digests and Indexes


text:
    GRIFFITH v. GOHLMAN, LESTER & CO.
    (No. 248.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 11, 1917.
    Rehearing Denied Jan. 23, 1918.)
    1. Venue <&wkey;7 — “Contract in Writing to Perform Obligation in Particular County” — Statutes.
    Where defendant shipped cotton from his county to that of plaintiffs consigned to himself, and forwarded bills of lading to plaintiffs' with drafts calling for advances, and after the cotton was sold plaintiffs applied the proceeds in part payment of the advances, which were also secured by stock placed in plaintiffs’ hands as a pledge, there was no writing to perfprm any obligation in plaintiffs’ county under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, allowing one to be sued in such a county, and a plea of privilege by the defendant in a suit for the balance and for a foreclosure of the lien on the stock should have been sustained.
    2. Venue <&wkey;32 (2) — Privilege to be Sued in Own County — Waiver—Statutes.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, relating to venue, where a plea of privilege is overruled, and a bill of exception taken, the presentation ofl a counterclaim,, whether called a cross-action or a plea for affirmative relief, and an answer, is not a waiver! by one of the privilege to bo sued in his own county.
    Error from District Court, Harris County; Chas. E. Ashe, Judge.

      Suit by Gohlman, Lester & Co. against John Griffith. From art order oyer ruling a plea of privilege, the defendant brings error.
    Reversed.
    J. E. Camfield, of Floresville, and John W. Parker, of Houston, and Dibrell & Mosheim, of Sequin, for plaintiff in error. Andrews, Streetman, Burns & Logue, of Houston, for defendants in error.
   BROOKE, J.

It is, perhaps, well at the outset to set out the original petition filed in this cause:

“Tour petitioners, Gohlman, Lester & Co., a firm composed of S. L. Gohlman, Jr., and J. E. Lester, hereinafter called plaintiffs, complaining against John Griffith, hereinafter called defendant, respectfully represent.
“(1) Plaintiffs reside in Harris county, Tex., and defendant resides in Wilson county, Tex.
“(2) That heretofore, to wit, on the 4th day of September, 1913, and ever since said date, plaintiffs were and have been engaged at Houston, Tex., as cotton commission merchants, receiving, handling, caring for, and selling cotton for a commission, and in the course of said business have been accustomed to advance money upon cotton consigned to them by various persons from various places in the state of Texas, holding said cotton as factors and commission merchants as security for the money advanced thereon.
“(3) On, to wit, the 3d day of September, 1913, and on divers dates thereafter, defendant made various consignments -of cotton from Floresville, in Wilson county, Tex., to plaintiffs at Houston, Tex., and that the uniform method of handling said transactions was that the said defendant would deliver said shipments of cotton to the railroad company at Floresville, Tex., taking a bill of lading therefor and consigning said cotton to himself at Houston, Tex., and then drawing his draft for the sum of money to be advanced thereon, payable to the order of First National Bank of Floresville, and drawn against plaintiffs at Houston, Tex., attaching said draft to said bill of lading and delivering said draft to said First National Bank of Floresville, which would send the same with the bill of lading attached thereto through its regular banking connections for presentation to and collection from plaintiffs at Houston, Texas.
“(4) That, in accordance with the method of transacting said business hereinbefore stated, defendant drew its several drafts, each and all of which were paid at Houston, Tex., by plaintiffs, as follows: [Then- follows itemized list of drafts drawn and dates of same.] That said drafts so drawn, together with interest thereon, at rate of 6 per cent, per annum from the date of the advancement of said money, as aforesaid, aggregated the sum of $154,931.89 on July 27, 1914. That on said July 27, 1914, defendant was entitled to credit on said indebtedness on account of the proceeds of cotton shipped as aforesaid to plaintiffs in the sum of $65,784.02, leaving the balance then due by defendant to plaintiffs the sum of $89,147.87. That thereafter, on August 31, 1914, plaintiffs, at the special instance and request of defendant, advanced and paid to Lehman, Steme & Go., of New Orleans, La., for the benefit of defendant, the sum of $22.62, and that said above-stated balance, together with said sum so advanced and interest thereon to the 5th day of November, 1914, aggregate the sum of $90,259.02 due and owing to plaintiffs by defendant on November 5, 1914. That from and after said 27th day of July, 1914, defendant, by reason of the sale of cotton consigned and delivered to plaintiffs as aforesaid, became and was entitled to a credit upon said indebtedness amounting to the sum of $44,556.63, leaving a balance due on November 5, 1914, from defendant to plaintiffs of the sum of $45,702.39, which said sum, by reason of the premises, defendant promised to pay and became bound and liable to pay to plaintiffs at Houston, in Harris county, Tex., and yet to pay the sum or any part thereof, thoúgh often requested, defendant has wholly failed and refused, to plaintiffs’ damage in the sum of $50,000.
“(5) That in order to secure the payment of said sum or any sum which might be owing by defendant to plaintiffs on account of the transactions aforesaid, defendant transferred and delivered to plaintiffs certain certificates evidencing ownership of capital stock in certain corporations, as follows, to wit: Certificate No. 108, for 100 shares of the par value of $100 each in the Floresville Oil & Manufacturing Company; certificate No. 1, for 120 shares of the par value of $100 each in Holtermann Hardware Company; certificate No. 6 for 20 shares of the par value of $100' each in the First National Bank of Floresville, Tex.; certificate No. 4, for 20 shares of the par value of $100 each of the capital stock of the First National Bank of Floresville, Tex. That said above-described certificates of stock are in the possession of plaintiffs, and that they have and hold a valid pledgees’ lien upon the same to secure above-described indebtedness.
“Premises considered, plaintiffs pray for citation and that upon hearing-they have judgment against defendant for their debt, interest, and costs of suit, and for a foreclosure of their lien upon said certificates of capital stock in said corporations and upon the stock represented by said certificates, together with an order of sale therefore, and for such other relief, both general and special, as they may be entitled to, either at law or in quity, and as in duty bound will ever pray.”'

To this petition the plaintiff in error filed a plea of privilege to be sued in the county of his residence, as follows:

“In the above numbered and styled cause comes now John Griffith, defendant in said cause, and appears only and solely for the purpose of asserting and urging his privilege to be sued in the county of his residence, and he here now pleads:
“(1) He says that he was not a resident of Harris county, Tex., at the time this suit was filed; that he was not a resident of said county at time citation in this suit was served upon him; that he is not now at the time of filing this plea a resident of said county; and that since long prior to the institution of this suit he has at no time been, and is not now, a resident of Harris county, Tex.
“(2) That at the time this suit was filed, and at all times since then, he was and has been and now is a resident of Wilson county, Tex.
“(3) That none of the exceptions to exclusive venue in the county of one’s residence mentioned in article 1839 and article 2308 of the Revised Statutes of Texas exist in this case.
“(4) Wherefore this defendant pleads specially his privilege to be sued in W:isnn county, Tex., and not in Harris county, Tex._ and he now hereby objects and excepts to the district court of Harris county requiring him to answer or plead further in this cause.”

•Upon this plea of privilege the court took the following action:

“And now, on this February 19, 1915, the defendant’s plea of privilege to be sued in th/6 county of his residence coming on to be heard at the first term and in advance of the hearing-on the merits of the cause, and being duly considered by the court, the court is of opinion that the same ought to he overruled.”

Plaintiff In error first assigns error as follows:

“This suit was by the defendants in error against plaintiff in error to recover a large- sum of money alleged to be due for money advanced plaintiff in error upon cotton shipped to defendants in error as cotton brokers, there being no obligation in writing to pay said sum of money in the county of Harris, where the suit was instituted, and it appearing from the pleadings of defendants in error that the plaintiff in error resides in Wilson county, Tex., and not in Harris county, Tex., that no reason is shown by the petition of defendants in error nor by the facts proven upon the hearing of the plea of personal privilege made and presented by the plaintiff in error to the jurisdiction of the district court of Harris county, to be sued in the county of his residence. The plea of personal privilege was duly presented upon the allegations of the petition of defendants in error and other facts proven upon said hearing, but was by the court overruled.
“In overruling the plea of personal privilege so made and presented by the plaintiff in error upon the facts and under the circumstances above set forth, the court erred.”

The proposition under tiiis assignment is:

“It appearing from the allegations of the petition of defendants in error that plaintiff in error was a resident of Wilson county, Tex., and not of Harris county, Tex., where the venue of the suit was laid, and no reason shown by the pleadings or the facts proven giving venue in Harris county, the plaintiff in error was entitled to have this cause tried in Wilson county, the place of his residence, and the trial court erred in refusing to sustain plaintiff in error's plea of personal privilege to be sued in the county of his residence.”

Under the allegations in the petition of defendants in error heretofore set out, and the provisions of article 1830, Vernon’s Sayles’ Statutes 1914, no person who is an inhabitant of this state shall be sued out of the county in which he has his domicile, except, among others, in the following cases, to wit:

“ * * * Where a person has contracted in writing to perform an obligation in any particular county in which case suit may be brought either in such county, or where the defendant has his domicile.”

It is urged that under the allegations in the petition of defendants in error, the provisions of this article of the statute, the venue, of the case at bar could not be maintained in Harris county, unless the cause of action was based upon a contract in writing performable in such county.

It is further urged that the suit was upon open account against plaintiff in error to recover judgment for money advanced him by defendants in error as cotton. factors; that it is not material or pertinent to the issues of venue of this court to consider that the cotton was shipped by plaintiff in error from Wilson county to Harris county, with bills of lading and drafts attached, consigned to his own order, and that such drafts wqre paid by defendants in error, for the reason the cause of action is not based upon the bills of lading, nor upon the drafts drawn by plaintiff in error; that the drafts were paid, or, in other words, defendants in error advanced money on the cotton received, kept the cotton for a time, sold it, and applied' the proceeds in part payment of the amount advanced by them for plaintiff in error’s account. It is further urged that the suit was in no sense a suit upon a contract to pay money in Harris county, or upon a written contract performable in Harris county, but was purely an action in assumpsit.

We are of opinion that this contention is correct. The fact that plaintiff in error, after his plea to the venue had been acted upon by the court, and his bill of exception taken to the court’s action, presented a counterclaim, whether called a cross-action or a plea for affirmative relief against defendants in error, did not waive his privilege to be sued in his own county. It is contended upon this proposition that, where a plea of privilege is filed in due order of pleading, and has been acted upon adversely to the party pleading the privilege to be sued in the county of his residence, a subsequent filing of a plea over and against the plaintiff in the cause does not affect or work a waiver of the pica of privilege, and the case of Hickman v. Swain, 106 Tex. 431, 167 S. W. 209, is cited as holding that doctrine. Judge Brown wrote the opinion in that case, and uses, among other language, the following:

“ ‘Appellant, O. W. Hickman, alleged to reside in Tippecanoe county, Ind., instituted this suit in the district court of Tarrant county, Tex., against M. F. Swain and nine other persons, all of whom were alleged to reside in Knox county, Tex., upon a promissory note executed by the defendants named on March 31, 1908, for the sum of $1,500, and payable to the order of J. Crouch & Son at the Farmers’ State Bank of Knox 'City, Tex., on or before October 1, 1910. It was * * * alleged that J. Crouch & Son was a fii'm composed of Jeptha Crouch and George Crouch, who both resided in the state of Indiana, and who were consequently not made parties to the suit by the petition. All defendants named in the petition were either cited or answered as hereinafter stated, save the defendant J. A. Wood, who does not appear to have been cited or to have joined in an answer of any kind. Of the defendants named in the plaintiff’s petition, appellee M. F. Swain and seven others joined in a plea of privilege to be sued in Knox county. The plea was duly verified, filed, and presented, as hereinafter stated. In addition to this plea of privilege, these defendants at the same time filed an answer in which C. C. Tucker and R. H. Butler, who were not parties to the plea of privilege, joined. The answer, in substance, alleged that the payees of the note, J. Crouch & Son, and J. A. Wood, one of the signers thereto, had, for the purpose of deceiving and defrauding, conspired together in fraudulently representing the value and quality of a certain horse owned by J. Crouch & Son which defendants, by the means stated, had been induced to purchase, and for which they gave the note sued upon and another of like amount which they had therefore paid to J. Crouch & Son. The prayer was, as against the plaintiff, Hickman, for a cancellation of the note, sued upon, it being alleged that he was not a bona fide owner and holder of the note, or, if so, a purchaser after its maturity, and for judgment “against said J. Crouch & Son and said J. A. Wood, jointly and severally, or against such qf them as are brought within the jurisdiction of the court,” for the sum alleged to have been paid to X Crouch & Son on the note previously paid. It should, perhaps, be further stated in this connection that the note as sued upon had, among- other indorsements, the following: “Received of J. A. Wood one hundred and fifty dol. $150.00, this being his pro rata of the within note, this April 1, 1908. J. Crouch & Son.”
“ ‘The trial court in due order heard the plea of privilege, and having found, as the evidence justifies, that its material allegations were true, and that the answer to the merits had been filed subject to the action of the court upon the plea of privilege, sustained the plea of privilege, and, as to all parties, ordered the cause transferred to the district court of Knox county, Tex., and from this order the plaintiff in the suit prosecutes an appeal, which is now pending before us.
“ ‘In this state of the record, we deem it advisable to certify to your honors the following questions, viz.:
“ ‘Eirst. Whether an appeal from such an order is allowable at all under chapter 4 of title 30 of the Revised Statutes, as amended by the act of the Thirtieth Legislature approved April 18, 1907? See Genei-41 Laws 1907, p. 248.
“ ‘Second. If so, whether the answer of. the defendants who joined in the plea of privilege is of such affirmative character as to constitute a waiver on their part of the plea of privilege to be sued in Knox county?
“ ‘And third. If not, did the court err in transferring the cause as to those defendants, Tucker, Butler, and Wood, who failed to-join in the plea of privilege? ’
“The following articles of the Revised Statutes govern the action of the court on the questions submitted:
“ ‘If a plea of privilege is sustained, the cause shall not be dismissed, but the court shall transfer said cause to the court having jurisdiction of the person of the defendant therein; and the costs incurred prior to the time such suit is filed in the court to which said cause is transferred shall be taxed against the plaintiff.’ Article 1832, R. S. 1911.
“ ‘Whenever a plea of privilege to the venue, to be sued in some other county than the county in which the suit is pending, shall be sustained, the court shall order the venue to be changed to the proper court of the county having jurisdiction of the parties and the cause; and the clerk shall make up a transcript of all the orders made in said cause, certifying thereto officially under the seal of the court, and transmit the same, with the original papers in tiro cause, to the clerk of the court to which the venue has been changed; provided, that nothing herein shall prevent an appeal from the judgment of the court sustaining a plea of privilege.’ Article 1833, R. S. 1911.
“Prior to the enactment of the above statutory provisions, when the plea of privilege was sustained, the case was dismissed, from which judgment an appeal would lie. The proceeding was the same then as now, except that the case will not be dismissed. The judgment would be interlocutory, from which no appeal would lie, unless the right is preserved by this language: ‘Provided, that nothing herein shall prevent an appeal from the judgment of the court sustaining a plea of privilege:;
“If the plea of privilege in this case had been tried under the former law, the case would have been dismissed, and plaintiff could have appealed, and the action sustaining the plea of privilege would have been revised. If the plea had been overruled, the defendant, upon appeal, could have had it reversed. The evident purpose of the proviso to article 1833 was to preserve to the plaintiff the right of appeal which existed before that article was enacted. If the law be construed so as to require the plaintiff to await a trial in the county to which it was transferred, the right to have the court’s action revised would be practically denied. The construction we give to the proviso preserves the rights of both parties, and will prevent the delays and expense of a trial the judgment in which might be reversed on the issue of venue alone, requiring a second trial on the merits. The language of the proviso to article 1833 cannot be applied otherwise than as saving to the plaintiff the right of appeal as it formerly existed in such matters, constituting an exception to the general rule that an appeal cannot be prosecuted fz-om interlocutory orders or judgments.
“We answer that the appeal was authorized in this case. If the plea of privilege was filed in the due order of pleading, the filing thereafter of, a plea over against plaintiff did not affect the right of the defendants to insist upon the transfer of the case to the county in which they resided.
“The granting of the plea of privilege had the effect to transfer to Knox county the case entirely as to parties and subject-matter of the suit and plea of defendants over against plaintiff.”

It is contended that the doctrine stated heretofore was held by the Supreme Court of this state in the aforesaid case of Hickman v. Swain, and it is further said that it is inconceivable that the Supreme Court of this state would ever hold that, where the defendant in a case presents and has the trial court to act upon a- plea of personal privilege, and the same is overruled he could be held to subject himself to the jurisdiction of the court by any character of pleadings proper or necessary in that connection; that it is the evident intent, purpose, and meaning of the statute to provide that no person who is an inhabitant of this state shall be sued out of the county in which he has his domicile, except in certain cases enumerated in the statute; that it pannot be successfully contended in this ease that the suit instituted by defendants in error was brought upon any exception under article 1830 of the Revised Statutes, entitling them to sue plaintiff in error out of the county of his domicile. The plea of personal privilege having been submitted to the court upon the evidence, and the plea having been overruled, no act of the plaintiff in error in making and presenting his pleas, whether in the nature of counterclaim or cross-action, could subject him to the jurisdiction of the court, or constitute a waiver of- his privilege to be sued in the county of his residence. It was never contemplated that a party litigant could be limited to an action against him in his defenses and thereby be proscribed.

We believe from the above, and upon consideration of the same, that the reasoning above given is sound legally. The lower court, in our opinion, should have granted the plea and transferred the cause to Wilson county for trial, and, not having done so, the case must be reversed here. It was proper and right to grant the plea of privilege, notwithstanding the fact of plaintiff in error’s cross-bills and answers. Believing this to be the true rule in- this state, we are of opinion that the case must be reversed and remanded, with, instructions that the venue be transferred to Wilson county, Tex.

It is so ordered.
      t&wkey;For other oases see same topic ana KEY-NUMBER in all Key-Numberea Digests and Indexes


author: HIGHTOWER, C. J.-

text:
    HOUSTON TIE & LUMBER CO. v. HANKINS et al.
    (No. 280.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 20, 1917.
    Rehearing Denied Jan. 23, 1918.)
    1. Appeal and Error <&wkey;242(3) — Scope — Preservation op Exceptions — Record.
    In the absence from the record of the ruling by the trial judge on a general demurrer and in the absence of any exception relating thereto, the court’s action, if any, could not be considered on appeal.
    2. Appeal and Error &wkey;>273(2) — Scope — Preservation op Exceptions — Record.
    If plaintiff in action for damage to machinery claimed improper measure of damages, it was incumbent on defendant to call attention to the defect in the petition by means of special exception invoking the court’s action thereon.
    3. Appeal and Error <&wkey;1013 — Review—Excessive and Inadequate Damages.
    Where the testimony variously indicated plaintiff’s damages to be more or less than $600, the award of such a sum would not be reversed merely because no witness estimated the damages at exactly $600.
    4. Appeal and Error <&wkey;733 — Scope op Review-Preservation op Exceptions.
    An assignment of error that the court erred in rendering judgment for the plaintiff because the judgment is contrary to law and not based on the evidence is too general to demand consideration.
    Appeal from District Court, Tyler County; W. R. Blackshear, Judge.
    Action by John W. Hankins against the Houston Tie & Lumber Company, in which the M. Rumley Company intervened. From the judgment, defendant appeals.
    Affirmed.
    R. A. Shivers, of Woodville, and R. W. Franklin, of Houston, for appellant. J. A. Mooney, of Woodville, for appellees.
   HIGHTOWER, C. J.-

This was a suit filed in the district court of Tyler county by ap-pellee John W. Hankins, as plaintiff, against Houston Tie & Lumber Company, a corporation, and since one of the assignments of error, as best we can understand, challenges the sufficiency of the plaintiff’s petition as showing any right of recovery against said defendant, we here set out the plaintiff’s petition, omitting the formal parts, as'follows :

“For cause of action plaintiff says that be and •defendant made and entered into a contract in writing, a substantial copy of which is attached hereto marked Exhibit A, and made a part hereof; that soon after its date in August, 1916, this plaintiff delivered to the defendant in Tyler county, Tex., one certain engine and boiler an'd attachments thereto, and all the sawmill equipments. which was of the value of $2,000; that the defendant promised and agreed to deliver to this plaintiff tbe said property above described at any points on the railroad in Tyler county, to be designated by the plaintiff, in as good condition as when received by it, ordinary wear and tear excepted; that said delivery was to be made on the 1st day of January, 1917; that said contract has been breached, and the defendant has failed and refused to deliver said property as contracted and agreed upon; that said property was destroyed by fire and rendered wholly unfit for any use whatever as sawmill property, and the defendant is unable to perform its contract as aforesaid, and plaintiff now sues for the value of said property as above set out.
“Premises considered, plaintiff prays for citation against the defendant, and upon a hearing that he have judgment for his debt and for such general and special relief in law and equity as he may be entitled to.”

The written contract mentioned in the foregoing petition and attached thereto and designated as Exhibit A is in the record, but, in view of tbe disposition that we haye decided to make of the case, we think it is unnecessary to set out the contents of this written contract.

The defendant, Houston Tie & Lumber Gompany, answered, by general demurrer and general denial. It appears from recitals in the trial court’s judgment that the M. Rumley Company, a corporation, intervened in the suit, alleging that said company had a mortgage upon the property mentioned in plaintiff’s petition, and adopted the allegations of plaintiff’s petition, and prayed for relief and protection as mortgagee, etc. We are unable to discover the intervener’s petition in the transcript in this case, and are only apprised of the intervention by the recitals in the judgment, as before stated.

Tbe cause was tried before tbe court without a jury, and judgment was rendered and entered for the plaintiff, John W. Hankins, and said intervener, M. Rumley Company, against said defendant, Houston Tie & Lumber Company, for damages in the sum of $600 and costs of suit, to which judgment Houston Tie & Lumber Company duly excepted and gave notice of appeal to tbis court, which appeal has been duly perfected.

There were no findings of fact or conclusions of law filed 'by the trial court. The first assignment of error found in appellant’s brief is as follows:

“The court erred in rendering judgment for the plaintiff, because the plaintiffs had no pleadings sufficient to entitle them to a judgment or upon which judgment might be based.”

This assignment is submitted as a proposition. As we construe this assignment, it could only mean that the petition of the plaintiff below, John W. Hankins, who is one of the appellees here, was insufficient in law to show any cause of action as against appellant, and that therefore the same was subject to appellant’s general demurrer, and that such demurrer should have been sustained.

In reply to this complaint, it will suffice to say that we find nowhere in the record a ruling by the trial judge upon this general demurrer, nor any exception reserved by appellant in that connection. We therefore cannot consider any action on the part of the trial court upon this demurrer, if any was had, and the assignment, for that reason, is overruled.

There is a second proposition under this assignment, which is a¡1 follows:

“The court should reverse this case because there is error on the face of the record in this: The petition does not allege any proper or correct measure of damages, as it alleges that the value of the property was $2,000, and that the appellant refused to deliver the same, because it had been destroyed by fire, which had rendered it wholly unfit for any use whatever as sawmill property, but does not allege that the property had no value, or that it could only be used for sawmill purposes, and the proof showed it did have value.”

If it be true that the plaintiff’s petition claimed an improper or incorrect measure of damages, as insisted by this proposition, then we think it was incumbent upon appellant, or at least appellant should have called attention to such defect in the petition, or improper claim of damages, by means of a special exception directed against the plaintiff’s pleading, and the action of the court should have been invoked thereupon. There is nothing in the record to show that this was done, and the complaint in this connection does not point out “error apparent on the face of the record.” Appellant has cited this court to no authority sustaining his contention in this connection. The assignment is overruled.

The second assignment is as follows:

“The court erred in rendering judgment for the plaintiff for $600, for. the reason that there was no evidence upon which a court could base a judgment for said amount, and could only have been based on the court’s private opinion of what must have been the damage, without evidence upon which to rest his judgment.”

The assignment is submitted as a proposition.

We have examined the statement of facts in connection with this assignment, and while we find that no witness fixes the damages to the property in question at exactly the sum of $600, yet we find from the statement of facts that there is evidence in the record which would have warranted the trial court in fixing the appellees’ damages at a sum in excess of $600, and also testimony which would have warranted the court in fixing such damages at a less sum than $600. This being true, we think that it cannot be successfully contended that the court was not warranted in fixing appellees’ measure of damages, and awarding him the sum of $600.

The third assignment is:

“The court erred in rendering judgment for the plaintiffs for the reason that plaintiff failed to fix a measure of damages.”

This is also submitted as a proposition. What we have said in reference to the second assignment of error necessarily disposes of this assignment, and the same is overruled.

The fourth assignment of error is:

“The court erred in rendering judgment for the plaintiff, because the judgment of the court is contrary to law, and not based on the evidence.”

This assignment is also submitted as a proposition. We think that this assignment and proposition are entirely too general to demand the consideration of this court, and the same are overruled.

The fifth assignment of error is:

“The court erred in rendering judgment for the plaintiffs, because it is made the duty of the plaintiff to make out his case by a preponderance of the testimony, and show by testimony the difference between the value of the engine and boiler at the time of the lease and at the time it was tendered back to them, and in this plaintiff failed completely.”

This assignment is also submitted as a proposition. We have examined the record in this case in connection with this assignment, and have concluded that there is evidence in the' record upon which the trial court was enabled to determine the difference in value of the machinery in question at the time it was turned over to appellant and at the time it was returned to appellee. This was an inquiry touching a matter of fact for the decision of the trial court, and the state of the evidence was such that the trial court could determine, with reasonable certainty, what the value of this machinery was at the time of its delivery to appellant, and also what its value was at the time of its return to appellee, and the court having, in effect, so determined by its judgment in this case, the assignment presents no error, and is overruled.

There being no reversible error pointed out in appellant’s brief, the judgment of the trial court is affirmed.
      <Sx»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes