author: BOYCE, J.

text:
    WEST TEXAS NAT. BANK et al. v. WICHITA MILL & ELEVATOR CO. et al.
    (No. 1157.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 18, 1917.)
    Í. Garnishment <i&wkey;218 — Evidence—Burden of Proof.

    Where funds were garnished as belonging to a defendant, on the answer of the garnishee and of claimants brought into the case, that the funds belonged to the claimants, the burden was on the plaintiff to show that such funds belonged to the defendant.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 411-413.]
    2. Carriers <5&wkey;58 — Bill of Ladino — Assignment — Draft. ■
    The fact that a draft drawn by the consignee of a car of wheat in favor of a bank was attached to a shipper’s order bill of lading, in favor of the consignee, standing alone would make the bank the owner of the fund collected, unless they had in turn been assigned to its correspondents.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 179-190.]
    3. Carriers <&wkey;58 — Bill of Lading — Assignment^ — Draft.
    The fact that the bill of lading was not indorsed by the consignee was not material, as assignment could be proven in other manner than indorsement either of the draft or of the bill of lading.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 179-190.]
    4. Carriers <&wkey;58 — Bill of Lading — Assignment.
    The fact that a shipper’s order bill of lading in favor of the consignee was attached to a draft drawn by the consignee in favor of a bank, with notation on the face of the draft to the bill of lading attached, was itself sufficient assignment of the bill of lading upon its delivery with the attached draft to the bank.
    [Ed. Note. — For other cases, see Carriers, Cent.. Dig. §§ 179-190.]
    5. Garnishment <&wkey;218 — Ownership of Fund — Evidence—Presumption.
    The fact that the shipper of the goods, and not the consignee and drawer of the draft, indorsed the consignee’s name on the draft and collected the proceeds, does not discharge the burden of showing that fund belonged to the consignee, since there is no presumption that the shipper was guilty of forgery, or that the bank officials aided him in the commission of the crime.
    [Ed. Note. — Por other cases, see Garnishment, Cent. Dig. §§ 411-413.]
    6. Customs and Usages &wkey;>10 — Bill oe Lading — Nonpayment—Title oe Holder — Liability oe Indorser.
    Where a draft with bill of lading attached was negotiated through several banks, a custom among- banks in accepting drafts with reference to charging back to its immediate indorser or customer the amount of funds for which credit had been given on receipt of the draft, in the event it is not finally paid, would not change the character of a transaction and destroy the effect of successive deliveries of the draft as constituting an assignment of the funds, since the right of the holder of a draft against indorsers on nonpayment does not defeat the ownership of the draft and rights incident to it.
    [Ed. Note. — Por other cases, see Customs and Usages, Cent. Dig. §§ 11-21, 35-39.]
    7. Carriers ¡&wkey;58 — Transeer oe Bill oe Lading — Evidence—Sueeioiency.
    Evidence held not to sustain findings that the funds belonged to the consignee, that the shipper had possession of the draft and bill of lading without the knowledge and consent of the consignee, indorsed his name thereto with; out his knowledge, consent, or authority, and that the credit of the account of the shipper with the amount of the draft was without the knowledge of the consignee, and that the bank knew all these things.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 179-190.]
    8. Appeal and Error 4&wkey;150(l) — Right to Appeal — Interest.
    As the bank to whom the shipper assigned the bill of lading would ultimately bear the loss of the funds declared to be property of the consignee and have a probable right of recovery against the shipper, the fact that they sought a release of the fund so that it might be handled in the usual manner instead of praying that it should be paid direct to such bank would not affect their right to appeal from the judgment that the consignee was the owner of the fund.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 934-946.]
    9. Appeal and Error &wkey;>150(l) — Right to Appeal — Interest.
    Where the claimant of garnished funds prayed for general and special relief, thus entitling it to a payment of the fund if that were proper, it was entitled to appeal from a judgment that the fund belonged to the defendant in the case.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 934r-946.]
    Appeal from District Court, Wichita County ; E. W. Nicholson, Judge.
    Suit by the Wichita Mill & Elevator Company against J. L. Allen, in which plaintiff instituted garnishment proceedings against the Wichita State Bank, and thereafter the West Texas National Bank and others claira-ed the funds in the hands of the garnishee. From the judgment, the named claimant and others appeal.
    Reversed and rendered.
    Morrison & Morrison, of Big Springs, for appellants. Huff, Martin & Bullington and Fitzgerald & Cox, all of Wichita Falls, and William J. Berne, of Ft. Worth, for appel-lees.
   BOYCE, J.

The appellee the Wichita Mill & Elevator Company, having a suit in which judgment was subsequently rendered against J. L. Allen for the sum of $760.32, instituted garnishment proceedings against the Wichita State Bank, of Wichita Falls, Tex. Said Wichita bank answered the writ of garnishment: That it was not indebted to the said J. L. Allen, and did not know of any other persons who might be so indebted or have funds belonging to him except as the facts further stated in said answer might show; that on the 25th day of August, 1915, it received and collected a draft drawn by said Allen on the Wichita Mill & Elevator Company in the sum of $1,139.25, and payable to the West Texas National Bank, of Big Springs, Tex.; that said draft had been forwarded to said Wichita bank by the First National Bank of Ft. Worth as a cash item, and the writ of garnishment was served immediately upon payment of said draft; that the Ft. Worth bank was claiming said funds for the Big Springs bank; and that both of said banks had demanded the payment of said money. Wherefore the garnishee asked that said two banks be made parties to the suit to the end that their rights in and to said funds might he determined.

The Big Springs hank answered that it had received the said draft, to which was attached a bill of lading on a consignment of wheat, from Dell Hatch, and believing that said Hatch was the owner of said draft and bill of lading representing the consignment of wheat, gave him credit therefor; that said draft with bill of lading attached was forwarded to the Ft. Worth bank as a cash item, the Ft. Worth hank being charged with the amount of said draft on the books of said Big Springs bank. Wherefore it prayed that said funds be released so that the Wichita bank might make remittance thereof to the Ft-. Worth bank, as it would be its duty to do, and which it would do if permitted and for general and special relief. Said West Texas bank also requested that Dell Hatch he made a party to the suit

The Ft. Worth bank answered, admitting the receipt of the draft and hill of lading from the Big Springs bank, and crediting the account of the Big Springs bank with the said sum of $1,139.25, alleging, however, that the credit was subject to final payment of said draft and receipt by it of the proceeds thereof; that it forwarded the same to the Wichita State Bank as a cash item, charging said bank with said amount for collection and remittance to it; that on account of the fact that the said funds were being held up it had charged hack said amount to the Big Springs bank as it claimed it had a right to do, but the Big Springs hank refused to recognize its right to so charge back said sum, and claims a credit for said amount against the Ft. Worth hank. It prayed that if it be held that it is entitled to said, funds it have judgment against the Wichita State Bank, and if not that judgment be entered, releasing it from liability to the Big Springs bank.

Dell Hatch answered that under an arrangement with J. L. Allen, whereby Hatch was to furnish the money and buy wheat' which Allen was to test and resell, the profits of the transaction to be divided between them, he had purchased the wheat against which the draft was drawn and paid for the same out of his own funds, loading same on car at Big Springs; that in pursuance to the arrangement between said Hatch and Allen, a bill of lading was issued to Allen, who drew the draft in question on the purchaser on resale, the Wichita Mill & Elevator Company; that said draft with bill of lading, indorsed by Allen, was delivered by the said Hatch to the Big Springs bank, which gave him credit therefor, less amount of exchange, which said credits had been drawn out of said bank by the said Hatch; that he had paid the said Allen one-half of the profits realized from the said sale; that by reason of such facts the title to said funds passed to the Big Springs bank, unless it in turn had passed title to its correspondent, and said funds should not be held to be the funds of said Allen. He prayed that he be adjudged to go hence without day, etc.

The Wichita Mill & Elevator Company, by its supplemental petition, alleged that said wheat was owned by J. L. Allen, and was shipped on a shipper’s order notify bill of lading, and neither the draft nor bill of lading was indorsed by said Allen; that the banks handling the draft never purchased same, but took it for collection; that the Big Springs bank knew that said Allen had not indorsed the draft or bill of lading, but that the manner in which said draft was handled was but a subterfuge on the part of the Big Springs bank and said Allen and Hatch to defraud the plaintiff; that the Big Springs bank was not an innocent purchaser, etc.

The case was tried before the court and judgment entered establishing that the funds in the hands of the Wichita bank belonged to J. L. Allen. Wherefore plaintiff was given judgment against the garnishee for the amount of its said debt against Allen. The defendants,, the Ft. Worth bank, the Big Springs bank, and Hatch, were adjudged to take nothing by their claims of said fund and the Ft. Worth bank discharged from any claims of the said Hatch and the Big Springs bank. The funds remaining with the Wichita bank, after payment of the judgment and costs, including an attorney’s fee of $35 to the garnishee, were directed to be paid to J. L. Allen.

Clpon the trial it was shown that Dell Hatch presented said draft drawn by J. L. Allen on the Wichita Mill & Elevator Company in favor of the Big Springs bank, to which draft was attached shipper’s order bill of lading for one car of wheat shipped by Allen to Wichita Falls, to the Big Springs bank, and that said bank accepted said draft as a cash item, crediting the account of Dell Hatch with the same; such funds being subsequently checked out by said Hatch1. The draft was not indorsed by Dell Hatch or by Allen. Dell Hatch indorsed Allen’s name to the shipper’s order bill of lading. The draft was forwarded to the Ft. Worth bank, and by the Ft. Worth bank to the Wichita bank, passing as cash items through said banks, and charged and credited respectively as stated in the pleadings, and was paid by the Wichita Mill & Elevator Company. Immediately thereafter the writ of garnishment in question was served upon the Wichita Bank. Dell Hatch and the cashier of the Big Springs bank testified that the wheat against which the draft was drawn was (bought and paid for by Dell Hatch personally. Hatch testified that he was a cotton buyer, living in Howard county, and Allen was a wheat buyer, living at Colorado; that during the year in which this transaction occurred some wheat had been raised in Howard county, and he had made an arrangement with Allen, by which he (Hatch) was to buy wheat and pay for the same; that Allen was to test the wheat so bought and resell it, and the profits of the sales were to be divided between them; and that this car of wheat was bought and paid for by him, in accordance with this agreement with Allen, whereupon Allen drew the draft and turned it over to Hatch, because Allen was interested only in the profits. The cashier of the bank testified that Allen had no account with the bank and that he knew that Hatch had paid for the wheat himself, and thus accepted the draft from Hatch, giving him credit therefor. Testimony was offered to the effect that a custom existed among banks at this time, whereby if final payment of drafts of this character were not made or the proceeds not remitted, the successive banks handling the| draft would charge back the amount thereof to its correspondent, the initial bank in turn charging its customer with the amount.

Based on this testimony the trial court found that the ear of wheat belonged to J. L. Allen; that Dell Hatch took possession of the draft and bill of lading without the knowledge and consent of Allen and indorsed Allen’s name thereto without his knowledge, consent, or authority; that the credit of the account of Dell Hatch, with the amount of the draft, was without the knowledge, consent, or authority of Allen and that the Big Springs bank knew that all these things were done by Hatch without said Allen’s authority, knowledge, or consent. He also found that the custom in regard to charging back of items not finally paid or remitted, as above stated, existed.

On the answer of the garnishee and those brought into the case by it, the burden was on the Wichita Mill & Elevator Company to show that the funds belonged to Allen. E. L. & R. R. R. R. Co. v. Terry, 50 Tex. 135; Smith v. Merchants’ & Planters’ Bank, 40 S. W. 1038; Scheuber v. Simmons, 2 Tex. Civ. App. 672, 22 S. W. 72. The production of the draft and bill of lading alone did not show this fact. The draft was drawn by Allen in favor of the Big Springs bank. To it was attached shipper’s order bill of lading in favor of Allen. These facts standing alone would make the Big Springs bank the owner of the funds when collected, unless they had been in turn assigned to its correspondents. Blaisdell v. Citizens’ National Bank, 96 Tex. 626, 75 S. W. 295, 62 L. R. A. 968, 97 Am. St. Rep. 944; Campbell v. Alford, 57 Tex. 161; Dows v. National Exchange Bank of Milwaukee, 91 U. S. 618, 23 L. Ed. 214.

The fact that the bill of lading was not indorsed by Allen would not, we think, under the circumstances, make any difference. The assignment could be proven in other manner than by indorsement, either of the draft or the bill of lading. National Bank v. Ricketts, 152 S. W. 648; Singletary v. Goeman, 58 Tex. Civ. App. 5, 123 S. W. 436. The bill of lading being attached to a draft drawn by Allen in favor of the Big Springs bank, with notation on the face of the draft to the bill of lading attached, would we, we think, itself a sufficient assignment of the bill of lading upon its delivery with the attached draft, to the bank; at any rate, all the parties to this transaction so treated it or recognized that the indorsement of Allen’s name by Hatch was sufficient, for otherwise the Wichita Mill & Elevator Company would have had no right to the possession of the wheat when it took up the draft and bill of lading.

When the further fact is developed that Hatch, and not Allen, took the draft to the bank and himself collected the proceeds of the draft, does this discharge the burden and show that Hatch was acting wrongfully, and that the bank knew that he was doing so? Ordinarily, no presumption of wrongdoing exists, and when, as in this ease, Hatch presented to the Big Springs bank a draft drawn by Allen in favor of said bank on a third person, at the same time indorsing Allen’s name to the bill of lading and collecting the proceeds from the bank, it would seem to us that one who has assumed the burden of attacking the transaction should show that Hatch was acting without authority from Allen; and no presumption that Hatch was guilty of forgery and the bank officials aiding and abetting him in the commission of the crime could be invoked 'by ap-pellee as discharging the burden of proof upon it. It was held in the case of Thornton National Bank v. Robertson, 89 Kan. 509, 132 Pac. 193, that a maker who draws a note in favor of a bank places it in the hands of a third person constitutes such third person his agent to make such use of the note as the party to whom it was delivered and the payee bank might agree upon. This is the case here except that the instrument is a draft. See, also, Corpus Juris, vol. 8, pp. 210, 238.

The face of the transaction then shows that the Big Springs bank became the owner of the funds to be collected on the draft, and the only testimony that explains its acquisition of the draft is that of the bank’s cashier and Hatch, whose testimony given by deposition we have already referred to. If this testimony is true Hatch was the true owner of the fund to be collected on the draft drawn by Allen, and on delivery of the draft to the Big Springs bank assigned his right to the bank. If we disregard this testimony entirely the appellee has failed to make its case. We cannot take the testimony, conclude that it is untrue, and from it deduce presumptions directly contrary thereto that Allen, Hatch, and the bank were in this way attempting to cover up the real transaction and thus defraud Allen’s creditors without any other testimony whatever to support such conclusion. Starkey v. H. O. Wooten Grocery Co., 143 S. W. 692.

We do not think that the custom shown to exist among banks in accepting drafts of this kind, with reference to charging back to its immediate indorser or customer the amount of funds for which credit had been given on receipt of the draft in the event it is not finally paid, would change the character of this transaction and destroy the effect of the successive deliveries of the draft as constituting an assignment of the funds; the holder of a draft on nonpayment has a cause of action against all indorsers and the drawer, but this right does not defeat his ownership of the draft and rights incident to it. The right to charge back under the circumstances is nothing but a method of enforcing the liability of the indorser or drawer of the draft.

We do not think the finding that the funds belonged to Allen and those findings that are collateral to it as made by the court, as above stated, are sustained by the evidence.

The appellee contends that appellants Hatch and the Big Springs bank cannot appeal from the judgment because they made no claim to the fund. The issue in the garnishment case was whether the fund belonged to Allen, and the appellants were brought into the case for the purpose of being concluded by any judgment that might be entered determining this issue. The Wichita bank, upon the coming in of the Ft. Worth bank, the Big Springs bank, and Hatch, became a disinterested holder of the fund. If the pleading and evidence showed that the fund did not belong to Allen, and that the appellants had any interest in it that would be adversely affected by the judgment, we do not understand why they could not appeal from the judgment. It is apparent from the judgment that the B'ig Springs bank will ultimately bear the loss of the funds having a probable right of recovery against Hatch; it is also apparent that this would not have been the result of the transaction but for the interruption of the garnishment. That appellants merely sought a release of the fund so that it might be handled in the same manner as it would have been but for the garnishment instead of praying that the fund be paid direct to the Big Spring bank should, it seems to us, make no difference in their right to appeal from the judgment. Besides, the pleading of the Big Springs bank contained a prayer for general and special relief, and under this a judgment could have been entered, directing the payment of the fund to said bank, if that were the proper judgment in the ease.

«There are other assignments, but because of the holding we have already made it is not necessary to consider them. The judgment will be reversed and such judgment rendered as under the evidence we think the court below should have entered, to wit, that the garnishee, the Wichita State Bank of Wichita Falls, Tex., be discharged, and that the appellee the Wichita Mill & Elevator Company pay all costs incurred in this proceeding, including an attorney’s fee of $35, to be paid to the garnishee.
      ®=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes

      <&wkey;Eor otter eases see same topic ana .KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    MILES v. HARRIS.
    (No. 8378.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 17. 1917.
    Rehearing Denied April 21, 1917.)
    1. Appeal and Error <&wkey;742(l) — Briefs — Assignments op Ebbob — eequisites—Suf-ficiency.
    An assignment of error which does not under the proposition subjoin a statement or reference to the evidence, if any, which raised the issue -sought to be submitted or which in any way shows its materiality, is not in accord with the rules for briefing.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §' 3000,]
    2. Appeal and Ebrob &wkey;>742(l) — Bribes — Assignments oe Ebbob — Eequisites— Sufficiency.
    An assignment of error which under the proposition subjoins a statement of the evidence relating largely to the entire case, including evidence as to issues other than the issue sought to be submitted, is not presented in accord with the rules for briofing.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000.]
    3. Appeal and Ebrob &wkey;>724(3) — Assignments op Ebrob — Sufficiency.
    In an action for malpractice, an assignment of error, complaining of the court’s definition of negligence, which is but_ a verbal criticism and without substantial merit or prejudicial consequence, will be overruled.
    4. Trial &wkey;>352(5) — Submission op Special Issues — Statute.
    In an action for malpractice, various acts of negligence were charged, but the only issue raised was whether the defendant was guilty of negligence which directly and proximately caused a gauze pack to remain in the person of plaintiff’s wife longer than it should have remained therein, the submission of a special issue whether defendant was guilty of negligence as alleged was not a violation of Veruon’s Saylos’ Ann. Civ. St. 1914, art. 1984a, which requires that when a case is submitted upon special issues, the issues must be separately stated and submitted.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. § 841.]
    5. Physicians and Surgeons &wkey;>18(8) — Actions fob Malpractice — Evidence—Sufficiency.
    Evidence held not to show that defendant was negligent in advising or performing the operation or inserting the pack complained of.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. § 43.]
    6. Trial &wkey;>350(2) — Special Issues.
    The questions whether defendant failed to remove the gauze in time, may have permitted the wound to heal without its removal, may have failed to inform the plaintiff or his wife of its presence in her person at or before her removal from defendant’s sanitarium, or that defendant may have failed to advise her family doctor that the gauze had not been removed, are not issues of themselves, but constitute mere evidence of the main fact to be proved, and hence it was not .necessary to submit them in the form of special issues.
    [ISd. Note. — For other cases, see Trial, Cent. Dig. §§ 828, 832.]
    7. Appeal and Ebrob <&wkey;1062(l) — Beview— Prejudicial Ebbob.
    Error if any in such issue was not prejudicial when other special issues submitted comprehended substantially all of the issues of negligence alleged.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4212.]
    8. Appeal and Ebbob &wkey;730(l) — Assignment op Ebrob— Sufficiency.
    An assignment of error that the court erred in instructing the jury “if you answer Nos. 1, 2, 2a, and 3c in the negative, then you need not answer questions Nos. 4, 5, 6, 7, 8, 9, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26,” considered as an objection to the charge as a whole is too general, as the enumerated issues relate to numerous questions involved.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3013, 3016.]
    9. Appeal and Ebbob <&wkey;1064(l) — Beview— Instructions.
    An instruction that if the jury answered special issues regarding defendant’s negligence in the negative they need not answer an issue which inquired whether plaintiff’s wife suffered any injury from the gauze left in her person, and an issue as to whether she suffered any injury, was not prejudicial error, since if the defendant was not guilty of negligence in permitting the pack to remain, it cannot be material that plaintiff’s wife did in fact suffer from that cause.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 4219.]
    10. Appeal and Ebbob <&wkey;1064(l) — Beview— Instructions.
    An instruction that if issues submitted referring to defendant’s negligence were answered in the negative, not to answer an issue as to whether injuries to plaintiffs wife were the di-' root and proximate result of any negligence on the part of the defendant during or after the operation, was not prejudicial error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4219. J
    11. Trial &wkey;352(l) — Special Issues.
    A submitted special issue whether defendant was negligent either in placing the gauze as he did in the person of plaintiffs wife, or in leaving it there during the entire time she was in his sanitarium, or in allowing it to remain as long as it did, was not subject to the objections that it submitted separate and distinct issues of fact, or that it submitted a question of law, or that it submitted a mixed question of law and fact, or that the issues were not separately submitted.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 840.]
    12. Trial &wkey;351(5) — Special Issues.
    Refusal to submit requested special issues substantially embodied in the issues submitted was not prejudicial error.
    [E'd. Note. — For other cases, see Tidal, Cent. Dig. § 834.]
    13. Physicians and Surgeons &wkey;>18® — Action eor Malpractice — Evidence—Sueei-ciency.
    Evidence held, to sustain a verdict for defendant and negative answers to special issues submitting questions of defendant’s negligence upon which the verdict was based.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. § 43.]
    14. Physicians and Surgeons <&wkey;15 — Right oe Patient to Dismiss Physician — Subsequent Liability oe Physician.
    As a patient may at any time discharge or dismiss his physician, and from that moment the physician is relieved from responsibility, defendant was not under any duty to follow the plaintiff’s wife after she left his sanitarium against his wishes, and was not further liable for the due care of her wound.
    [Ed. Note. — For other eases, see Physicians and Surgeons, Cent. Dig. § 32.]
    Appeal from District Court, Tarrant County ; J. W. Swayne, Judge.
    Suit by B. F. Miles against Charles H. Harris. Judgment for defendant, 'and plaid-tiff appeals.
    Affirmed.
    Snodgrass, Dibrell & Snodgrass, of Coleman, and Jo W. Burney, of Ft. Worth, for appellant. McLean, Scott & McLean and Capps, Cantey, Hanger & Short, all of Ft. Worth, for appellee.
   CONNER, C. J.

B. F. Miles instituted this suit to recover damages resulting from alleged negligence in a surgical operation performed by Dr. C. H. Harris upon the person of Mrs. May Miles, the plaintiff’s wife, on the 25th day of November, 1912. Among other things, it was alleged that the operation was in the abdominal region of the person of the plaintiff’s wife, and that during the operation the defendant placed in the abdominal cavity “some kind of gauze packing,” and “negligently and carelessly and unsicillfully left and permitted a large amount of said gauze packing to remain in plaintiff’s^ wife’s said person and body, and with gross negli-i gence and carelessness failed to remove the said gauze packing from the person and body of the plaintiff’s wife, and caused the plaintiff- and his said wife to suffer the injuries and damage, as hereinafter alleged.” It was further specifically alleged that the defendant was guilty of “gross and inexcusable negligence in the manner in which the said defendant placed said gauze pack in the body and person of the plaintiff’s wife,” and “in not removing said gauze pack from the body and person of the plaintiff’s said wife,” and “in permitting plaintiff’s wife to leave” the defendant’s sanitarium “with the said gauze pack in her body and person in the manner in which it had been placed and left therein,” and “in not informing the plaintiff and his said wife, or either of them, of the existence of said gauze pack in the body and person of plaintiff’s said wife before she left said sanitarium,” and “in not informing plaintiff and his said wife, or either of them, of the existence of said gauze pack in the body and person of the plaintiff’s said w£Ce after she left said sanitarium,” and “in not informing the family physician of the plaintiff and his said wife, Dr. C. H. McCol-lum, of Hico, Tex., of the fact that he had so left said gauze pack in the body and person of the plaintiff’s said wife,” and “in not placing said gauze pack in the body and person of the plaintiff’s said wife at the time of said operation in such way that same could be easily observed under the usual and ordinary examinations made by competent and careful physicians after such operations,” and “in informing the plaintiff and his said wife the plaintiff’s said wife was in proper condition to leave said sanitarium,” and in not giving plaintiff nor his said wife proper instructions as to necessary subsequent treatment after leaving said sanitarium.

The plaintiff’s further allegations related to the consequent injuries to his wife and to the loss of her services and decreased capacity on her part to work and to labor and to mental pain and physical suffering on her part; the expenses of necessary treatment, etc.

The defendant filed general and specific denials, and specially averred that the operation upon Mrs. Miles was of a serious character, she being at the time in a precarious and dangerous condition; that in order ta stop the excessive loss of blood, appellee was required to and did insert a gauze pack in her body; that the operation was a successful one, and that appellant’s wife began to recover; that later defendant, upon being informed ¡by the plaintiff that he intended taking Mrs. Miles home, objected to the plaintiff’s doing so, informing plaintiff at the time of the presence of the gauze pack in the body of Mrs. Miles, and that she was not in a condition to be removed, and that serious consequences would most probably and likely attend upon such action; that notwithstanding the defendant’s objections, the plaintiff, during the defendant’s absence, did remove his wife from the sanitarium and take her home, a distance of about 100 miles; that at said time appellant’s wife still had fever and that the gauze pack had not been removed from her person, because to have done so would have been dangerous; that said gauze pack would have been removed by the defendant just as soon as was proper had the plaintiff not taken his wife away; that after leaving the sanitarium the defendant was never consulted with further; that the operation upon and treatment of Mrs. Miles was necessary and proper, etc.

The case was submitted to a jury upon special issues, which, so far as necessary to here notice, together with the jury’s answers thereto, are as follows:

“Special issue No. 1: Was the defendant, Chas. H. Harris, guilty of negligence, as alleged in plaintiff’s petition, which directly and proximately caused the gauze packing to remain in the person of plaintiff’s wife longer than it should have remained therein? Answer of the jury: No.
“Special issue No. 2: Was the defendant, Ohas. H. Harris, guilty of negligence in the manner in which he placed the gauze packing in the person of plaintiff’s wife that directly and proximately caused the physicians treating plaintiff’s wife, after siich operation, not to discover the existence of said gauze packing if they did not fail to discover same? Answer of the jury: No.
“Special issue No. 2a: Was the defendant, Chas. H. Harris, guilty of negligence in not informing Dr. C. H. McCollum of Hico, Tex., that the gauze pack was still in the body and the person of plaintiff’s wife, May Miles, when she left the sanitarium? Answer of the jury: No.
“Special issue No. 2b: Did the defendant, Chas. H. Harris, at the time of the operation, place the gauze pack in the body and person of plaintiff’s wife, Slay Miles, in such a way that the same could not be observed under the usual and ordinary examination made by an ordinarily careful physician in treating the patient after the operation? Answer of the jury: No.
“Special issue No. 2c: If you answer ‘Yes’ to the foregoing question, then you will answer whether or not said Chas. H. Harris was guilty of negligence in so leaving same. Answer of the jury: No.
“Special issue No. 3: Did the gauze packing remain in the person of May Miles, wife of the plaintiff, longer than it should have remained therein? Answer of the jury: Yes.
“Special issue No. 10: ■ At the time May Miles left the Harris Sanitarium did she know of the existence of any gauze pack in her body or person? Answer of the jury: No.
' “Special issue No. 11: Did the defendant Chas. H. Harris, know that plaintiff and hfs said wife would return to Hico, Tex., after the operation, and that they would consult Dr. J. H. McCollum, of Hico, Tex., and have Mm attend on the said May Miles as a physician? Answer of the jury: Yes.
“Special issue No. 12: At the time May Miles left the Harris Sanitarium did her husband, B. P. Miles, know of the existence of any gauze pack in the body of the said May Miles? Answer of the jury: Yes.
“Special issue No. 13: Did the defendant, Chas. H. Harris, inform plaintiff’s wife, May Miles, in substance that she was in proper condition to leave said sanitarium before plaintiff’s wife left same? Answer of the jury: No.
“Special issue No. 14: Did the defendant, Chas. H. Harris, inform plaintiff, B. P. Miles, in substance, that his wife, May Miles, was in proper condition to leave said sanitarium before plaintiff’s said wife left same? Answer of the jury: No.
“Special issue No. 27: Did the defendant, Chas. H. Harris, inform May Miles that the gauze pack was in her person, and that it would not be proper for him to remove her from the sanitarium? Answer of the jury: Yes.
“Special issue No. 28: Did May Miles, the plaintiff’s wife, leave the Harris Sanitarium relying upon any statement of the defendant, Chas. H. Harris, in substance, that it was proper for her to leave for home? Answer of the jury: No.
“Special issue No. 29: Did the plaintiff take his wife away from the Harris Sanitarium with the consent of the defendant, Chas. H. Harris? Answer of the jury: No.
“Special issue No. 30: Did the defendant, Chas. H. Harris, inform the plaintiff before he took his wife away from the Harris Sanitarium that there was yet a gauze packing in the person of plaintiff’s wife? Answer of the jury: Yes.
“Special issue No. 31: Did the defendant inform the plaintiff before he took his wife away from the Harris Sanitarium that the plaintiffs wife had fever? Answer of the jury: Yes.
“Special issue No. 32: Did the defendant, Chas. H. Harris, inform the plaintiff, B. P. Miles, before he took his wife away from the said sanitarium, that it was improper to take her away from same? Answer of the jury: Yes.
“Special issue No. 33: Was the defendant, Chas. H. Harris, the cause of the gauze packing remaining in the person of the plaintiff’s said wife as long as it did? Answer of the jury: No.
“Special issue No. 34: Was the defendant, Chas. H. Harris, guilty of negligence, as that term is heretofore defined, in any of the following respects:
“(a) In placing the gauze as he did in the person of plaintiff’s wife? Answer of the jury: No.
“(b) In leaving the gauze in the person of plaintiff’s said wife during the entire time she was- in the defendant Dr. Harris’ Sanitarium? Answer of the jury: No.
“(c) Was the • defendant, Chas. H. Hams, guilty of negligence in said gauze remaining in &e person of plaintiff’s said wife as long as it did? Answer of the jury: No.”

Upon the above answers of the jury judgment was entered for the defendant, and the plaintiff has appealed.

Appellant presents 36 formal' assignments of error, to a number of which appellee has filed objections, and in order that silence on. our part may not be construed as overruling, all of the objections, we deem it proper to say before entering upon a discussion of the case that a number of such objections are undoubtedly well taken. To illustrate, the twelfth assignment, with its accompanying propositions and statement, is as follows:

“Because the court erred in' refusing to submit the following special issue in writing requested by the plaintiff herein, to wit: ‘If you answer “Yes” to the foregoing question, then you will answer whether or not the said Charles Hi Harris was guilty of negligence in so leaving same in such a way that same could not be easily observed under the usual and ordinary examination made by competent and careful physicians after such operation,’ because: (1) Said special issue was raised by the pleadings of the plaintiff herein and supported by the evidence herein. (2) Was one of the material issues necessary to be found by the jury to authorize a judgment.
“Proposition No. 1: This assignment being a proposition within itself is urged as proposition No. 1 under this assignment.
“Statement: The special issues requested and the objections duly made in writing to the refusal of the court to give same are correctly set out in the assignment as is fully shown by the bill of exception No. 2.
“Proposition No. 2: The issue requested was a material issue in the case, arising under the pleadings' and evidence, and should have been submitted by the court.
“Statement: Same as under proposition No. 1 of this assignment.”

It seems manifest that this assignment is not presented in accord with the rules for briefing. To neither proposition is there subjoined a statement of, or reference to, the evidence, if any, which raised the issue sought to be submitted, or which in any way shows its materiality. Under the assignment immediately preceding, which also goes to the action of the court in refusing to submit a requested issue, the statement, after showing that the action of the court had been duly excepted to, is as follows:

“For additional statement under this proposition, appellant adopts statement under proposition No. 1, second assignment of error.”

The statement referred to in the quotation covers pages 8 to 52, inclusive, of appellant’s brief, and consists of the evidence relating largely to the entire case, including the condition of the plaintiff’s wife rendering the operation necessary, the manner of performing the operation, the circumstances attending the removal of Mrs. Miles from the sanitarium, the progress of her trouble, wlfat the local physician did and advised on her return home, the time and value of the plaintiff’s services in waiting on his wife, the expense in the way of physicians’ fees, the circumstances relating to a later removal of plaintiff’s wife to the coast country, the time and rate of compensation óf the plaintiff’s employment while in the coast region attending his wife, the treatment and final discovery of the hidden gauze by the coast physician, the mental and physical pain suffered by the wife, the final consequences of all the wrongs complained of, etc. Such want of statement and such all-embracing statements have been many times condemned. See Harris’ Annotated Rules, 31; Laird v. Murray, 111 S. W. 780; Gilmer v. Veatch, 56 Tex. Civ. App. 511, 121 S. W. 545; Bynum v. Hobbs, 56 Tex. Civ. App. 557, 121 S. W. 900; F. W. & D. C. Ry. Co. v. Keeran, 149 S. W. 355; Moore v. Miller, 155 S. W. 573; G., C. & S. F. Ry. Co. v. Harbison, 88 S. W. 452; I. & G. N. Ry. Co. v. Jones, 175 S. W. 488.

Without further notice, however, of the many objections to appellant’s assignments of error, we will endeavor to so dispose of the appeal as not to deprive either litigant of any substantial right.

Appellant’s first assignment complains of the court’s definition of negligence, but the objection, we think, amounts to but little, if anything, more than a verbal criticism, which, so far as we can perceive, is without .substantial merit or prejudicial consequence. That assignment, therefore, will be overruled without discussion.

Appellant’s second assignment is made the basis of many of the contentions presented on this appeal. It urges error on the part of the court in submitting special issue No. 1, which has been hereinbefore quoted, and which, therefore, need not he here set out. The objections are several, but all material objections are, substantially, embraced in the first, which is that the issue as submitted is “in violation of the statute in that each of the issues of negligence involved in the «gauze pack remaining in the person of plaintiff’s .wife longer than it should have remained therein should be distinctly and separately submitted.” It is contended, in substance, that each of the special averments of negligence on the part of Dr. Harris, as stated by us in the beginning, are separate issues, which should have been severally presented in the forms alleged, but after a careful consideration we think the assignment of error must be overruled.

Article 1984A, Vernon’s Sayles’ Texas Civil Statutes, requires that when a case is submitted to a jury upon special issues, the issues must be separately stated and submitted, but we incline to the view that the issue now under consideration is not in violation of this statute, and that it presents, substantially, the only issue on the subject of appellant’s negligence that the evidence made necessary. Dr. Harris testified to the effect that the operation was necessary; that he made the usual preparations for an abdominal operation; that there was an unusual flow of blood, the trouble being in an abdominal vein which was incised; and that in order to stop the excessive flow of blood which otherwise .would have resulted fatally, he inserted a piece of iodoform gauze and packed the wound so that by compression the vein could be held and kept from bleeding. He testified that a portion of the pack had been left protruding for the purpose of removal at the proper time. Dr. McCollum, who was the attending physician upon plaintiff’s wife at their home in Hico, attended Mrs. Miles and was present during the operation. He testified that Dr. Harris made all the usual preparations for an abdominal operation; that Dr. Harris opened the abdomen and drained a small abscess in what was called the left broad ligament. He further said:

“I do not know how long she would have lived in that condition, but not long, and I knew of no way to relieve that condition except by an operation. I have seen this operation performed both in Europe and in America, and I looked upon it as performed by Dr. Harris as one of the most classy operations I had ever seen performed in either Europe or America. ■ * * * ”

Dr. Clay Johnson, a well-known physician and surgeon ol Ft. tvorth. was also called upon to testify as to the proper methods of such an operation as was performed upon plaintiff’s wife. His testimony .will not be set out, hut the effect of it was that the operation as detailed by Dr. Harris and Dr. McCollum was the usual and proper one. No material contradiction of the evidence thus referred to seems presented by the record. It can therefore scarcely be reasonably contended that the evidence presents an issue of negligence on Dr. Harris’ part, either in advising or performing the operation, or in inserting the pack complained of. So that, as already stated, it would seem that about the only material issue necessary for submission was the issue of whether Dr. Harris was guilty of negligence which directly and proximately caused the gauze pack to remain in the person of the plaintiff’s wife longer than it should have remained therein. That Dr. Harris may, as appellant insists, have failed to remove the gauze in time may have permitted the abdominal wound to heal without its removal; may have failed to inform the plaintiff or his wife of its presence in the body of Mrs. Miles at and before her removal from the sanitarium; that Dr. Harris may have failed to advise Dr. McCollum that the gauze had not been removed — all seem to constitute circumstances merely from which to infer negligence which resulted in the gauze remaining in the person of Mrs. Miles longer than it should. They are not, as it seems to us, issues of themselves, but constitute mere evidences of the main fact to be proved, and hence not necessary to submit them in the form of special issues.

If, however, we are mistaken in the view expressed and that issue No. 1 under the evidence .should be construed as multifarious and in violation of the statute referred to, it must yet be said that the issue is substantially in the language of appellant’s general allegation of negligence. In addition to which, following the submission of special issue No. 1, special issues Nos. 2, 2a, 2b, 2c, S, 10, 11, 12, 13, 14, 27 to 34 inclusive, were also submitted, as hereinbefore set out. An examination of these subsequent special issues will show that they comprehend substantially all of the special issues of negligence alleged. The error, therefore, if any, in special issue No. 1, can hardly be said to be prejudicial.

The court instructed the jury that:

“If you answer Nos. 1, 2, 2a, and 2c in the negative, then you need not answer questions Nos. 4, 5, 6, 7, 8, 9, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26.”

And appellant insists that the court erred in so instructing the jury, and particularly erred in directing that special issues Nos. 4 and 5 be disregarded. We fail to find error in these particulars. Considered as an objection to the charge as a whole, it is apparent that the assignment is too general; the enumerated issues relating as they do to numerous questions involved in the case, as for instance, whether the attendance of Dr. McCollum was necessary after the operation, what was the reasonable value of the services of Dr. McCollum, whether the attendance of Dr. G. W. Johnson, the coast physician, was rendered necessary by reason of the guaze having been left in the person of plaintiff’s wife, what was the reasonable value of the services of Dr. Johnson, whether the attendance of the plaintiff upon his wife was necessary, and the reasonable value of his time while so attending' upon his wife, whether the plaintiff lost the services of his wife by reason of the gauze packing remaining in her person and the reasonable value of the loss of such services, whether Mrs. Miles suffered any decreased capacity to render services in the future, what would be reasonable compensation for such decreased capacity, etc. And considered with reference to special issues 4 and 5, nothing of a prejudicial nature is developed. Issue No. 4 merely inquired whether plaintiff’s wife suffered any injury directly and proximately caused by the gauze remaining in her person, and issue No. 5 sought to elicit an answer of the jury to the question of whether May Miles suffered any injuries, and, if so, whether such injuries were the direct and proximate result of any negligence on the part of the defendant during or after the operation.

If the defendant, Dr. Harris, was not guilty of negligence in permitting the gauze pack to remain in the person of Mrs. Miles as the jury found, it cannot be material in this case that Mrs. Miles did suffer from that cause, for in such case he at least cannot be legally bound to respond in damages, and in so far as the inquiry of special issue No. 5 relates to the question of whether defendant was negligent during or after the operation, those inquiries in several forms are sufficiently comprehended within the issues that were submitted, and were answered by the jury.

A number of objections are made to issues as submitted. For instance, it is insisted that special issue No. 34 was erroneous in that it submitted separate and distinct issues of fact,' in that it submitted a question of law, in. that it submitted a mixed question of law and fact, and in that the issues were not separately submitted, but we find no error in the particulars specified. Nor do we find error in the action of the court in refusing special issues, as .urged in the eleventh to eighteenth assignments of error, inclusive. We think the issues submitted, while in instances worded differently from those requested, substantially embody all the material issues in the case, and that appellant suffered no injury because of the refusal to submit any of the rejected charges.

In tlie twentieth, twenty-first, twenty-second, twenty-third, thirty-fourth, and thirty-fifth assignments of error the verdict and judgment generally is assailed as unsupported by the evidence, and the several special findings of the jury are, for like reasons, assailed in assignments 35 and 27 to 33, inclusive. But all of these assignments have been carefully considered, and we think must be overruled. The evidence is voluminous, and we cannot set it out within reasonable limits. Appellee’s evidence is to the effect, however, as already shown, that Dr. Harris performed the operation upon plaintiff’s wife in tlie usual way; that the insertion of the gauze pack was necessary; that several days after the operation Dr. Harris attempted to remove the gauze pack, but the removal created or again started ,a dangerous flow of blood, which, under such circumstances as shown by tlie testimony, made it necessary to desist; that plaintiff removed his wife from the defendant’s sanitarium without Dr. Harris’ consent, and over his objection during his temporary absence. Dr. Harris and the attendant physician and nurse all specifically testified to this fact, and further that the plaintiff w,as then informed that the pack had not been removed because of which, and because of the presence of fever, it would be dangerous to remove the patient. The evidence further seems uncontradieted that Dr. McCollum knew that the gauze had been placed in the wound, and that upon a return of plaintiff’s wife to Hico, he suspicioned its presence, but relied wholly upon the assurance of plaintiff and his wife that it had been abstracted. That there was evidence in behalf of appellant of contrary import upon one or more of the submitted issues cannot alter the conclusion. Such1 evidence merely presented a conflict, which it was the function of the jury to determine. Under such circumstances and under the findings of the jury, we know of no rule that made it the duty of Dr. Harris to follow the patient and be further liable for the due care of her wound. See Kendall v. Brown, 74 Ill. 232; Lawson v. Conaway, 37 W. Va. 159, 16 S. E. 564, 18 L. R. A. 627, 38 Am. St. Rep. 17; Dashiell v. Griffith, 84 Md. 363, 35 Atl. 1094; Miller v. Blackburn, 170 Ky. 263, 185 S. W. 864, 866; Merrill v. Odiorne, 113 Me. 424, 94 Atl. 753. In the case of Lawson v. Conaway,' supra, it was said, among other things, that:

“All of the authorities admit that the patient may at any time discharge or dismiss his physician, and from that moment such physician is relieved from responsibility. It would be very strange if the law were otherwise.”

We conclude that the evidence sustains the verdict of the jury, and that tlie court committed no error in entering judgment for the defendant thereon, and that all assignments of error should be overruled, and the judgment affirmed.
      <&wkey;For other cases see same topic anfl KEY-NUMBER in all Key-Numberea Digests ana Inaexes

      (SzaRor other oases see same topic and KET-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    JACKSON v. KNIGHT.
    (No. 1154.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 18, 1917.
    Rehearing Denied May 9, 1917.)
    1. Landlord and' Tenant @^>77 — Assignment oe Lease — Sufficiency.
    Where lessee contracted to transfer café business and lease to defendant and made delivery, this was sufficient assignment of lease without a formal written assignment; the lessee having parted with his whole term in the rented premises, the law implies an agreement on the part of the assignee to assume obligations of the lease.
    [Ed. Note. — Eor other cases, see Landlord and Tenant, Cent. Dig. § 232.]
    2. Landlord and Tenant <g=^76(3) — Assignment of Lease — Landlord’s Waiver of Consent.
    A provision in a lease prohibiting assignment without the landlord’s consent in writing, being for his benefit, could be waived by him.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 229, 230.]
    3. Landlord and Tenant <®=»76(4) — Action for Rent — Evidence—Consent to Assignment.
    In action against assignee for liability on lease, evidence held to show that landlord consented to assignment by accepting rents and by correspondence.
    4. Landlord and Tenant <S=^80½ — Assignment of Lease — Evidence.
    That purchaser of a café business paid rents under lease and attempted to transfer it to another was evidence that he considered and treated the entire lease as his property, although no formal assignment was made.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 231.]
    Appeal from District Court, Wichita County; Wm. N. Bonner, Judge.
    Action by J. L. Jackson against O. C. Knight. Plaintiff appeals from judgment for defendant and from order refusing to direct a verdict and refusing new trial.
    Reversed and rendered.
    A. A. Hughes, of Wichita Falls, for appellant. Martin, Bullington, Boone & Humphrey, of Wichita Falls, for appellee.
   HUFF, C. J.

On the 27th day of June, 1913, J. L. Jackson and Simmons Bros, entered into a written lease contract to a certain piece of property in the city of Wichita Falls, known as the Hearn Café, for two years and eight months from the 1st day of February, 1914, by the terms of which J. L. Jackson, as lessor, leased to Simmons Bros, the property for the term named; the lessees agreeing to pay for the period $4,000, in 32 monthly payments of $125 each, payable on the 1st of each month. It was stipulated in the lease in case of default of any of the covenants the lessor should have the right to forfeit the lease, or the lessor might relet the premises for the remainder of the term for the account of the lessee for the best rent he could obtain, and the lessee should make good any deficiency. It is also stipulated the lessee should not assign the lease or sublet the premises or any part thereof without the consent of the lessor in writing. One of the brothers of the partnership of Simmons Bros, withdrew from the firm, and the business was carried on by L. J. Simmons, on the premises and under the lease, to which the lessor Jackson consented. Afterwards, on the 17th day of August, 1914, Xj. J. Simmons and appellee, C. C. Knight, negotiated a trade and entered into a written contract, by the terms of which Knight sold to Li. J. Simmons a section of land in Dallam county, Tex., and agreed to convey the land by a sufficient warranty deed, and to furnish an abstract of title thereto. In consideration for the conveyance, Simmons agreed to assume $2,100 indebtedness against the land and execute four notes, one for $500 and three for $1,000 each, due respectively August 17, 1915, August 1, 1917, 1918, and 1919, and, as a further consideration for the conveyance, the contract recites that on that day Simmons sold to Knight all the furniture and fixtures then located in the City Café and the Hearn Café, which sale was to be made by the written bill of sale, executed on that day; Knight to assume $510 against a piano therein situated. The fourth clause of the contract is:

“First party (Knight) shall give possession of said land to second party (Simmons) on January 1, 1915, and second party hereby agrees to give possession of said furniture and fixtures and the rooms in which same are located to first party on this date, with a transfer of the leases now held by second party on the rooms in which said furniture and fixtures are now located, and hereby guarantees that his lessor will consent and agree to said transfer of said lease.”

This contract is signed by Knight and Simmons as first and second party, respectively, on the 17th of August, 1914. The evidence shows that Knight, on that day, took possession of the leased property and employed Simmons to run the restaurant for him therein, and that Simmons remained as such employé until September 8th, following, when he left. On the day the contract was made, Simmons went to see Jackson and informed him of the agreement with Knight, and that Knight had and would agree to take the lease. Jackson notified Simmons that he would agree to accept Knight, but said Knight would have to come, over and sign the lease. The café and building were turned over to Knight, together with the lease contract. These instruments Knight took and thereafter paid two months’ rent of $125 each, and afterwards sold the furniture and fixtures to Bowen and placed him in possession of the property. Bowen went to see Jackson, and told him he had bought the property and lease, and asked him if he would accept him as his tenánt. Jackson told him that he would not, and thereupon wrote to Knight that he had accepted him (Knight) in lieu of Simmons, provided he carried out the contract, and that he was informed he had done so, and since that time he was informed Knight had transferred the lease to another and that he (Jackson) was unwilling to agree thereto unless Knight would guarantee payment of the rents and performance of the other terms of the lease. Bowen paid the rents for two months, and Jackson received it on Knight’s account. Afterwards it appears by suit and by agreement, the fixtures were sold to pay the rents then due, and that they sold for the sum of $375, which Jackson applied on the lease for the months of December, 1914, sand January and February, 1915. Thereafter on May 1, 1915, the building was leased for the rest of the term by Jackson, for $75 per month; this being the best terms he could obtain therefor. Knight and Bowen abandoned the premises, and Jackson acted under the terms of the lease contract to relet on account of the lessee for the unexpired term. The evidence by Knight shows he was in possession of the lease turned over to him by Simmons, and that he wrote out a transfer of the lease to Bowen and procured Simmons to sig% the transfer to Bowen. There was never any formal written transfer of the lease from Simmons to Knight further than as set out in the written contract executed by them in the trade of August 17, 1914. The effect of Knight's testimony and his answer to the petition of appellant is that he did not intend to and did not assume to pay the rents, and that he did not buy the lease, and that it did not enter into the trade with Simmons.

The appellant requested the trial court to instruct a verdict for him, and also moved for a new trial because the evidence, under the pleadings and evidence, was not sufficient to support a verdict for the appellee; We believe under the pleadings and evidence the court was in error in refusing the charge and iin refusing to set aside the verdict. It appears to be the contention of the appellee because Knight did not in terms assume to pay the rents that he was not liable, and, further, because there was no formal transfer of the lease; the lease was not in fact assigned. The contract stipulated that Simmons agreed to deliver possession of the furniture and the room in which it was located, together with a transfer of the lease on that room on that day, and guaranteed that he would get the consent of the lessor. On that day he did deliver possession of the room and turned over to Knight the lea'se contract. It was doubtless the theory of the appellee and of the trial court that, in order to constitute a transfer of the lease, it was necessary to obtain a formal written transfer. The written contract to transfer the lease and the delivery of the same would, in our opinion, constitute a transfer. Belcher v. Schmidt, 62 Tex. Civ. App. 411, 132 S. W. 833. It cannot be successfully contended that, under the written contract, Knight, when he took possession of the café, was the tenant of Simmons, or that Simmons could collect the rent from him. In other words, that Simmons was then the lessee, or that he had a .reversionary interest in the lease. The writing as effectually transferred the lease as it did the property, when Knight took possession of the property, the building, and the lease. There was nothing more to do. Knight afterwards treated the lease as his and assigned and transferred it to Bowen by writing out the transfer and by procuring Simmons to sign .it, which he did at the request of Knight and to effect Knight’s purposes.

The transfer was to the entire lease, and not only to a part of the term. Where such is the effect of the transfer, it is an assignment and renders the assignee liable for the rents as a matter of law, and there is no need of an agreement or stipulation to assume to pay the rents — the law fixes the liability. If the lessee parts with his whole term in all the rented premises, no reversion-ary interest remains in him, and a person taking through him is an assignee liable to the payment »of the landlord as the original lessee contracted to pay, and according to the terms of the lease. Such is the effect of the authorities cited by the appellant. Harvey v. McGrew, 44 Tex. 413; Le Gierse v. Green, 61 Tex. 128; Loustaunau v. Lambert, 1 Tex. Civ. App. 434, 20 S. W. 940; Ascarete v. Pfaff, 34 Tex. Civ. App. 375, 78 S. W. 974; Campbell v. Cates, 51 S. W. 268; Davis v. Vidal, 105 Tex. 444, 151 S. W. 290, 42 L. R. A. (N. S.) 1084; Martin v. Stiers, 171 S. W. 836. And we may add Forrest v. Durnell, 86 Tex. 647, 26 S. W. 481; Railway Co. v. Settegast, 79 Tex. 256, 15 S. W. 228; Wooldridge v. Railway Co., 38 Tex. Civ. App. 551, 86 S. W. 942.

We do not think it was necessary for Jackson to give his consent in writing in order to make the assignment valid. This provision, evidently, was placed in the contract for the lessor’s benefit. He could waive this provision and accept Knight, which he did. There could be no doubt from the evidence that he did so. He testifies that he did, and he accepted the rents from Knight as his tenant and applied them on the lease contract. Railway Co. v. Settegast, 79 Tex. 256, 15 S. W. 228; Wright v. Henderson, 86 S. W. 799; Smith v. Price, 22 Tex. Civ. App. 296, 54 S. W. 254. We can see no good reason why his letter to Knight, dated October 28, 1914, is not a substantial compliance with the.terms of the lease contract. In the letter he protested against Knight’s attempted assignment of the lease to Bowen, in which he notified Knight he was holding him under the assignment from Simmons. This was in writing and certainly notified Knight he had accepted him as his tenant for the entire term. Simmons testified before the trade was closed he went to see Jackson and procured his consent and reported the result to Knight, but Knight testified he did not recollect whether Simmons so reported or not; but it is evident he so understood the matter, as there was some discussion shortly thereafter between him and Jackson about reducing the rent and he, each month, posted through the mails the amount of the rents due after he took possession. It does not occur to us, after having entered into the written contract with Simmons, and after taking possession of the lease and the café thereunder, that he should avoid his contract by setting up the want of Jackson’s written consent. The failure to consent woüld only render the contract voidable by Jackson if he desired to declare the lease forfeited. He had a right either to waive or forfeit, tie elected to waive, and in fact agreed to the assignment orally and by letter and notified Knight to that effect. Scott v. Slaughter, 35 Tex. Civ. App. 524, 80 S. W. 643.

In this case we think the evidence establishes a written transfer, and that Knight accepted the transfer by taking possession of the property and the lease, relying upon Simmons’ guaranty to obtain Jackson’s consent to the transfer, which Simmons obtained; that Knight paid the rents under this lease and transfer and thereafter treated the entire lease as belonging to him and attempted to transfer it to Bowen and procured Simmons to sign the transfer for him and for his use and benefit. This action on his part evidences that he considered and treated the entire lease as his property.

The court, under the pleadings and evidence, should have instructed a verdict for the appellant, Jackson. This court will therefore reverse and render the judgment for all the rents unpaid on the remainder of the term according to the terms of the lease contract, less $75 per month paid Jackson by a tenant upon reletting the property, which appears he did under the terms of the original lease contract.

Reversed and rendered.
      (g£s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FT. WORTH & D. C. RY. CO. v. ANDERSON.
    (No. 1164.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 25, 1917.)
    1. Trial <&wkey;261 — Requested Instruction-Failure to Give — Reversible Error.
    In an action for damages to plaintiff’s crop from overflow alleged to have been caused by the improper construction of railway company’s bridge, refusal to grant an instruction to find whether the obstruction caused overflow on plaintiff’s land that would not otherwise have overflowed and the value of the crop on such land was reversible error, although requested instruction contained a clerical error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 484, 660, 671, 673, 675.]
    2. Trial <&wkey;121 (4) — Argument and Conduct of Counsel — Comment on Own Experience.
    In an action against a railroad company, remarks of counsel in comments on a witness’ testimony that he knew from past experience that you could not get anything favorable to plaintiff out of an employé of railroad company was improper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 300.]
    3. Trial &wkey;>120(3) — Argument of Counsel-Assuming Matter Not in Evidence.
    It was improper for attorney to refer in argument to excluded testimony.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 287.]
    Appeal from Wichita County Court.
    Action by G. W. Anderson against the Ft. Worth & Denver City Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Thompson, Barwise & Wharton, of Ft. Worth, and Carrigan, Montgomery & Britain and F. S. Jones, all of Wichita Falls, for appellant. S. Heyser and Smoot & Smoot, all of Wichita Falls, for appellee.
   BOYCE, J.

This appeal is from a judgment in favor of appellee, Anderson, against the appellant' railway company for damages to appellee’s crop resulting from overflow alleged to have been caused by the improper construction of the railway company’s bridge across Holliday creek, in Wichita county. The verdict of the jury, supported by evidence, establishes that the construction of the bridge was improper and impeded to some extent the flow of the water, but the ■contention of the appellant railway company is that the undisputed evidence shows that Anderson’s land would have been overflowed anyway, and that under the evidence a peremptory instruction should have been given for the railway company for this reason. The appellee had a ten-acre truck farm, located something over a mile up the creek from the bridge. There were two overflows occurring close together in point of time. The first overflow inundated about three acres of appellee's land, the water at this time being from three to four feet deep on the lowest part of the land. The second overflow was higher and inundated about seven acres of the land, at which time the water was from five to six feet deep on the lowest land, and practically all of appellee’s crops destroyed. During the flood the water below the bridge was from sixteen to twenty-two inches lower than that above the bridge, but the valleys below the bridge were overflowed. There is considerable testimony that tends to show that the obstruction caused by the bridge did not affect the level of the water as high up the creek as appellee’s land. As the level of the water below the bridge was at the greatest estimate only twenty-two inches lower than the water above, it does seem evident from appellee’s testimony as to the depth of water on the lowest portions of his land that some of his land would have been overflowed in any event, but the testimony is such that we cannot say that the jury could not have found that a part at least of appellee’s land was overflowed that would not have been covered by the water but for the higher level of the water above the bridge; so that we overrule the assignment complaining of the action of the court in refusing the peremptory instruction for appellant.

The case was submitted on special issues, and the jury were instructed, in the event they should find that the flow of the water was obstructed by the bridge, to further specifically find:

First. “Whether or not such obstruction of the flood waters of said creek was the direct and proximate cause of the water overflowing and standing on plaintiff’s land. Answer ‘Yes,’ or ‘No.’ ”
Second. “Whether or not such construction (of the bridge) was the direct and proximate cause of the flood waters standing upon plaintiff’s land for a greater length of time than it would otherwise have done if it did. Answer ‘Yes’ or ‘No.’ ”
Third. “What was the reasonable market value of plaintiff’s probable crop of cantaloupes, tomatoes, watermelons, com, squash, etc., at the nearest market had the same matured, such cost of planting and cultivating of such crop, and the marketing of same for the season of 1915? Answer by stating the amount.”

Appellant requested the court to instruct the jury to find whether the obstruction caused the water from Holliday creek to overflow part of appellee’s land that would not otherwise have overflowed, and to find the value of the crop on such part of said land. We think that some such instruction as this should have been given. If the jury had found that only a part of the land was caused to be overflowed by the construction of the bridge, the requirement to give a “Yes” or “No” answer to the two issues submitted by the court as first above stated would be the source of some confusion to the jury, to say the least, and the jury. would probably conclude that affirmative answers to the issues would be warranted. In the last issues submitted, as above stated, tlie jury were asked to find tbe value of appellee’s crop destroyed without regard to any question as to whether a part of it would have been destroyed in any event. The appellant presented two requested instructions on this subject and complains of their refusal by its second and third assignments. The instruction referred to in the second assignment is perhaps objectionable as being on the weight of the evidence. We think that referred to in the third assignment is reasonably clear and sufficiently presents the issue and should have been given. The fact that this requested instruction refers to the improper construction of “plaintiff’s bridge” instead of defendant’s bridge was manifestly the result of a clerical error, and would not justify the court in refusing it on this account.

One of the attorneys in arguing the case to the jury referred to the testimony of H. M. Snoddy, an employé of the railway company, subpoenaed as a witness by it, but placed on the stand by the plaintiff, who made the following statement:

“That Snoddy was on the pay roll of the railroad company and would not testify to anything favorable to the plaintiff, and that he (the attorney making the argument) knew from past experience that you could not get anything' favorable to plaintiff out of anybody while in the employ of the railroad company.”

While it is proper for attorneys to comment on the relation of a witness as an em-ployé of one of the parties, we think that the reference to the experience of the attorney was improper. M., K. & T. Ry. Co. v. Woods, 25 S. W. 741; M., K. & T. Ry. v. Huggins, 61 S. W. 976. It is not necessary to determine whether this improper statement would require a reversal of the case.

The statement under the fifth assignment is not sufficient to advise us , whether any reference to the matters in the argument which is complained of by this assignment is justified or not. From the statement made by appellee we would conclude that at least no harm would have resulted from this argument.

Plaintiff had upon the trial offered testimony to show that after the flood the railway company had enlarged the opening under its bridge across Holliday creek, but this testimony was, upon objection, excluded. It was not proper for plaintiff’s attorney, in his argument, to insist on reference to this testimony that had been offered only, but had been excluded by the court on objection. First National Bank v. Harkrider, 157 S. W, 290. The court below sustained the objection to the argument, though appellee’s attorney was insistent before the jury that he had the right to argue it. It is also unnecessary for us to determine whether this action would require a reversal of the case.

In view of the conflicting holdings of the court it would at least be the better practice for attorneys, in arguing cases submitted on special issues, not to attempt to explain to the jury what would be the legal effect of a finding on a particular issue in respect to the right of either party to judgment. Southwestern Telegraph & Tel. Co. v. Sheppard, 189 S. W. 799, and authorities cited; Cameron Steam Pump Works v. Lubbock Ice & Light Co., 167 S. W. 256.

Reversed and remanded.
      ¡gzAFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, C. J.

text:
    LANHAM v. COCKRELL.
    (No. 2508.)
    (Supreme Court of Texas.
    May 9, 1917.)
    1. Brokers <&wkey;54 — Commissions — When Earned.
    A broker, employed to procure an exchange of Ms principal’s real estate, must, to recover the agreed commission, show that the party procured was ready, able, and willing to exchange his property for the principal’s property on terms satisfactory to the latter, and where the party procured orally agreed to exchange, but thereafter refused so to do, the broker had not earned a commission.
    [EM. Note. — For other cases, see Brokers, Cent. Dig". §§ 75-81.]
    2. Brokers <&wkey;88(ll) — Commission—Actions —Issues.
    Where, in an action by a broker for commission for procuring an exchange of property, his principal and the other party to the exchange testified to a parol agreement of exchange, and the principal stated that, when they came the next day to put the agreement into writing, the other refused to go on with the trade, instructions, submitting question whether principal and other party reached an agreement for exchange of their respective property, and making a recovery dependent on an affirmative finding were proper.
    [Ed! Note. — For other cases, see Brokers, Cent. Dig. § 127.}
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by J. M. Lanham against J. T. Cockrell. From a judgment of the Court of Civil Appeals (152 S. W. 189), affirming a judgment for defendant, plaintiff brings error.
    Affirmed.
    A. H. Carrigan, of Wichita Falls, and F. W. Householder, of New York City, for plaintiff in error. D. A. Holman and Glasgow & Kenan, all of Seymour, for defendant in error.
   PHILLIPS, C. J.

-Lanham sued Cockrell for a broker’s commission claimed to be due for producing a purchaser for certain property consisting of a large body of land belonging to the latter. Through Lanham’s efforts it appears that negotiations were entered upon between Cockrell and one Campbell for the exchange by Cockrell of his property listed with Lanham for certain property owned by Campbell. They agreed, verbally, it seems, to effect an exchange. While this’ is true, there is a marked issue in the proof whether any commojn agreement, whatever, was reached between them as to the terms of the exchange. Campbell’s property was incumbered for $20,000.00; Cock-rell’s for a less amount. According to Cock-rell, the verbal agreement was that Campbell should pay him $12,000.00, in cash, as representing the difference between the amounts of the incumbrance upon their respective properties. According to Campbell, the agreement was that he should secure Cockrell for that amount by a lien upon the latter’s property he was to obtain in the trade. Upon meeting the following day to conclude the agreement by a formal written contract, this difference of understanding, according to Cockrell, prevented its consummation in written form, which was necessary to bind either of them. Campbell did not have $12,000.00, in cash, to pay Cockrell, as the latter stated was the verbal agreement. Campbell testified' that he was willing to conclude the trade according to his version of its terms, but it is not claimed that he was at any time willing to conclude it upon Cockrell’s understanding of them. According to Cockrell, Campbell, at the meeting had for the purpose of closing it by written contract, refused to make the trade upon the terms as understood by Cockrell. It was never consummated.

The plaintiff was entitled to his commission only in the event he provided a purchaser who was willing, ready and able to effect such an exchange as was satisfactory to Cockrell. The court so charged the jury, with the [explanation thlat an actual exchange of the properties was not essential .to the plaintiff’s right of recovery. This required that the plaintiff establish that a common agreement was reached between Cock-rell and the proposed purchaser. If such an agreement was reached, and Campbell was able to perform it, the plaintiff was entitled to his commission. But it cannot be contended that he had earned his commission unless such an agreement was arrived at. No agreement could be said to have been arrived at if it did not comprehend the essentials of the trade. This included, necessarily, its terms. Merely an agreement to exchange the properties, without any common understanding as to its terms, and as to which the minds of the parties never met, constituted no agreement at all. Such an agreement could be of no benefit to the seller. He could not, in a case like this, be held liajjle for commissions to a broker, the extent of whose services was merely the production of a purchaser who was willing to make a trade for his property, but between whom and himself there was never any unanimity as to the terms upon which it was to. be effected.

The court substantially instructed the jury that if the minds of Cockrell and Campbell met in an agreement for the exchange of their properties, the plaintiff should recover; otherwise, the verdict should be for the defendant. This was the law of the case. A charge was also given, that if they reached an agreement and Campbell failed to comply with it, there could be no recovery. As applied to the proof, this charge was not erroneous. Cockrell testified, as already noted, that they reached a verbal agreement whereby Campbell was to pay him the $12,000.00 in cash, but when they came, the next day, to put the agreement in writing, — which was necessary to give it any force, Campbell refused to go on with the trade on those terms. The charge simply-presented the question of whether a common understanding was ever reached by the parties, as reflected by one phase of the evidence. If Campbell, pending the very negotiation and before it reached any binding form, as intended by both parties, disaffirm-ed the agreement, he was not a willing purchaser; and unless he was, no commission was owing by the plaintiff.

The judgments of the District Court and Court of Civil Appeals are affirmed.
      <fc»I?or other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: YANTIS, J.

text:
    GUARANTY STATE BANK & TRUST CO. et al. v. LIVELY et al.
    (No. 2470.)
    (Supreme Court of Texas.
    May 9, 1917.)
    1. Banks and Banking- <&wkey; 138 — Checks — Fictitious Payees — Payment — Liability.
    Where a swindler, representing himself to be the agent of the owner of realty secured a loan by a check made payable to the purported owner, the name being fictitious, and thereafter signed the check with such name and collected the amount thereof, from a bank which transmitted the check for collection to the drawee bank, which without diligence paid the check, the drawee bank could not avoid liability on the theory that the drawer of the check intended the check to be paid when signed by the name of the fictitious payee, since it could not have known of such intent had it existed, and was in no way misled.
    [Ed. Note. — For other cases, sea Banks and Banking, Cent. Dig. §§ 398-405.]
    2. Banks and Banking &wkey;H38— Checks— Fic-httious Payees — Payment — Liability.
    Though a check made payable to a fictitious person with the maker’s knowledge is payable to bearer and the bank paying it would be protected, a check payable to a fictitious person without the knowledge of the maker is not payable to bearer, and it is the duty of the bank to ascertain the existence and identity of the payee, and, failing to do so, to refuse payment.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 398-405.]
    Error to Court of Civil Appeals, Fourth Supreme Judicial District.
    Suit by H. Y. Lively against the American Exchange National Bank of Dallas, which impleaded the Guaranty State Bank & Trust Company and another. Judgment for plaintiff against first-named defendant, and judgment over against impleaded defendants was affirmed (149 S. W. 211), and the latter defendants bring error.
    Affirmed.
    Leake, Henry & Robertson, of Dallas, for plaintiffs in error. J. L. Goggans and D. A. Eldridge, both of Dallas, for defendants in error.
   YANTIS, J.

This suit was instituted in the district court of Dallas county, Tex., by H. Y. Lively against the American Exchange National Bank of Dallas.

Lively, who is defendant in error here, and who was plaintiff in the district court, alleged that on or about October 20, 1909, he was a depositor in the American Exchange National Bank of Dallas, having on deposit more than $1,500; that on or about the 10th day of December he demanded of the State Bank & Trust Company that it repay to him the sum of $1,500, which it had without authority charged against his account upon a cheek which he had executed payable to the order of E. Crawford for said amount, which said bank had paid without authority, in that the said E. Crawford, the payee in the check, had never indorsed the same or authorized any one to indorse the same for him, and that said bank had not paid out the said sum of $1,500 as directed by him by his said check, and it had no right to debit his account with said money so wrongfully paid out, but it was its duty, as it had agreed when he made the deposit, to pay him said sum of money in such sums as plaintiff might direct from time to time, and that he had made demand for it to pay him said $1,500, which it had refused to do.

The Exchange National Bank answered with a general demurrer, a general denial, and with a special answer, to the effect that it had not paid the said Crawford cheek of $1,500 to Crawford, but said check was paid by it to the Guaranty State Bank & Trust Company, and charged by it to the account of said Lively, and that when the Crawford check was paid by it to the Guaranty State Bank & Trust Company the latter and one S. J. McFarland had indorsed the check and guaranteed to the exchange National Bank the validity of all prior indorse-ments, and that if judgment should be rendered against it in favor of said Lively, it should be awarded a judgment against the said Guaranty State Bank & Trust Company and S. J. McFarland for a like amount. It caused said parties to be served with citation and to answer its cross-bill against them.

The Guaranty. State Bank & Trust Company and S. J. McFarland appeared and answered by special exceptions, a general demurrer, a general denial, and a special answer, which was to the effect that the said check payable to E. Crawford and executed by said Lively was procured from said Lively’s agent by one Joseph W(eil, who represented himself to be the agent of E. Crawford, who was the payee in the check; that the said Joseph Weil claimed to be representing E. Crawford, and secured the check payable to E. Crawford by certain false and fraudulent representations; that in fact E. Crawford was a fictitious person, and did not exist; that the said Lively failed to make any inquiry or investigation to ascertain whether said WTeil was in fact the agent of E. Crawford, or whether said Crawford had an actual existence; and that the said Lively, by reason of his negligence in failing to ascertain that E. Crawford was a fictitious person, and that the statements Weil had made were false and fraudulent, is estopped to complain of the cashing of said check by other persons in good faith on the indorse- [ ment of the said E. Crawford made on said check by the said Joseph Weil. I

The case was tided by a jury in the district court of Dallas county. A verdict was rendered in favor of said Lively for the sum of $1,500, with 6 per cent, interest thereon, and in favor of the American Exchange National Bank of Dallas against the Guaranty State Bank & Trust Company and S. J. McFarland for a like amount.

The court charged the jury that if they believed from the evidence that said Lively was negligent in issuing said check, and that said negligence was the proximate cause of the loss of the money in controversy, to find for the defendants; that if they believed from the evidence that the defendants were also guilty of negligence in the payment of said check, to return a verdict for the defendants ; that if they failed to find that either party was guilty of negligence in the transaction to return a verdict for the defendants; that if they found that both parties were guilty of negligence, but should find that the negligence of the defendants was the proximate cause of the loss of the money,then to return a verdict for the plaintiff, Lively; that if they should-find that both parties were guilty of negligence, but that the negligence of the plaintiff was the proximate cause of the loss of the money, then to find a verdict for the defendants.

Necessarily the verdict of the jury implies a finding in favor of said Lively, the plaintiff in the district court, against the defendants, on the question of negligence and its proximate result.

The American Exchange National Bank appealed from the judgment of the district court, but did not apply to this court for a writ of error. Appeal was also taken to the Court of Civil Appeals by the Guaranty State Bank & Trust Company and S. J. McFarland. The case was decided by the Fourth Court of Civil Appeals, where the judgment of the district court was affirmed. (Civ. App.) 149 S. W. 211. A writ of error was granted by this court on the petition of the plaintiffs in error.

The identical questions presented have not previously been before this court; and we have given careful consideration to the able arguments of counsel, and have made a careful examination of the authorities to which we have been referred, and we have reached the conclusion that the trial court did not err in refusing to give the plaintiff in error’s second special requested charge, which was to the effect that if the jury should believe that it was the intention of H. F. Lively when he drew the check in question that it should be; paid when the same had been indorsed with the same signature of E. Crawford which appeared on the land notes transferred to H. Y. Lively in the deal between H. F. Lively and Joseph Weil, and that said check had in fact been [ I indorsed by the same signature, to return a verdict for the defendants, the Guaranty State Bank & Trust Company and S. J. McFarland. The undisputed evidence shows that E. Crawford had no real existence, but that Lively made the check in question payable to him, believing that he was a real person, which he was represented to be by Joseph Weil, who it appears by the undisputed evidence was a swindler in this transaction', and the evidence indicates that it final-⅛- became known that he had engaged in many such swindling schemes. Lively, who-gave the check, testified that he did not intend it to be paid to anybody except to E. Crawford in person, or upon his indorsement. ■

Joseph ■ Weil secured the check in this manner: He represented to H. F. Lively, who was the agent of the plaintiff in error, that one E. Crawford was a cotton buyer, and lived in Dallas; that he was representing Crawford for the purpose of securing a loan in Crawford’s behalf. 1-Ie presented a note signed by Crawford for $1,500, and offered as collateral security three vendor’s lien notes, with an abstract of title. Lively examined the abstract, which showed to be good, accepted the Crawford note for $1,500, and the three vendor’s lien notes as collateral security, and gave the check in question payable to E. Crawford and delivered it to Weil. WeiFdid not take it to the Exchange National Bank, but took it to the Guaranty State Bank & Trust Company, and there represented that E. Crawford was a cotton buyer, living in Dallas, and placed the check in said bank to the credit of said E. Crawford. Soon afterwards he secured the money from the Guaranty State Bank & Trust Company on the checks of E. Crawford. Said checks, of course, were signed by himself, and not by E. Crawford, as was the indorsement on the check which was given by Lively. The note and the three collateral notes which Weil gave to Lively were not signed by any person named “E. Crawford,” but the name of “E. Crawford” was in fact signed by said Joseph Weil. None of these facts were known to Lively or to either of the banks at the time of the transaction.

We think that if it was the intention of Lively, when he gave the clieqk payable to E. Crawford for the American Exchange National Bank, to pay it when it liad been indorsed by the same signature as was upon-the note signed “Crawford,” and the collateral notes signed “Crawford,” but which intention was denied hy Lively, still this intention could not act as an estoppel against Lively and in favor of the Guaranty State Bank & Trust Company and McFarland unless it had misled them and induced them to part with their money in its payment to the wrong person. It did not so mislead them, because there is no evidence that they had any knowledge of the existence of such intention on the part of Lively. There is no evidence in tile record showing that the bant which paid the check was in any manner influenced by such intention, or that it had any kind of knowledge of such intention on the part of Lively. Neither is there any evidence that the -bank which paid the check used any diligence or did anything to ascertain if the indorsement on the check was Crawford’s real indorsement, or to ascertain if Crawford had a real existence except to rely upon the statement made to it by Joseph Weil.

A check made payable to a fictitious person with the knowledge of the maker is payable to bearer, and a bank which paid the cheek would he protected in its payment to any one presenting it. But a check which is made payable to a fictitious person without the knowledge of the maker is not payable to bearer, and it is the duty of the bank before paying it to ascertain the existence and the identity of the payee, and, failing to do so, to refuse its payment..

The case of Armstrong v. National Bank, by the Supreme Court of Ohio, 46 Ohio St. 512, 22 N. E. 866, 6 L. R. A. 625, 15 Am. St. Rep. 655, involves facts almost identical with the facts involved in this case. In discussing the question of the bank’s liability in paying the check that court, sneaking through Mr. Chief Justice Minshall, said:

“If the drawer of a check, acting in good faith, makes it payable to a certain person or order, supposing there is such person, when in fact there is none, no good reason can be perceived why the banker should be excused if he pay the chock to a fraudulent holder upon any less precautions than if it had been made payable to a real person; in other words, why he should not be required to use the same precautions in the one case as in the other; that is, determine whether the indorsement is a genuine one or not. The fact that the payee is a non-existing person does not increase the liability of the bank to be deceived by the indorsement. The fact is that an ordinarily prudent banker would be less liable to be deceived into a mistaken payment by a fictitious indorsement such as this was than by a simple forgery. The determination of the character of any indorsement involves the ascertainment of two things: (1) The identity of the indorser; and (2) the genuineness of his signature; and no careful banker would pay upon the faith of the genuineness of any name until he had fully satisfied himself both as to the identity of the person and the genuineness of his signature. Now_, a careful banker may be deceived as to the signature of a person with whoso_ identity he may be familiar ; but he is less liable to be deceived where both the signature and the person whose signature it purports to be are unknown to him. In making the inquiry required in such case to warrant him in acting, he will either learn that there is no such., person, or that no credible information can be obtained as to his existence, which, with an ordinarily prudent banker, would be the same as actual knowledge that there is no such person, and he would withhold payment, as he would have the right to do in such case. But still, if he should be deceived as to the existence of the person, he would nevertheless require to be satisfied as to the genuineness of the signature. Of this, however, he could not be through his skill in such matters, and on which bankers ordinarily rely, for he would be without any .standard of comparison, and he could have no knowledge of the handwriting of the supposed person, for there is no such person. So that, if he acts at all, it must be upon the confidence he may place in the knowledge of some other person, and if he choose to act upon this, and make, instead of withholding, payment, he acts at his peril and must sustain whatever loss may ensue.”

To the same effect is the holding of the Court of Appeals of the state of New York in the case of William D. Shipman et al. v. Bank of the State of New York, 126 N Y. 318, 27 N. E. 371, 12 L. R. A. 791, 22 Am. St. Rep. 821. There are numerous authorities to the same effect.

We believe that upon reason and principle the doctrine announced in this line of cases is sound, and we think the special charge should not have been given, and that the trial court did not commit error in refusing to give the charge.

We have examined the other questions presented, and believe they, too, are without merit, and should be overruled.

The judgment of the Court of Civil Appeals and the judgment of the district court should be, in all things, affirmed; and it is so ordered.
      <ES=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes