text:
    MARSHALL & E. T. RY. CO. v. RIDEN et al.
    (No. 1778.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 10, 1917.
    Rehearing Denied May 3, 1917.)
    1. Master and Servant 3=>204(1), — Injuries to Servant — Assumption oe Risk — Statute.
    Under Yernon’s Sayles’ Ann. Civ. St. 1914, art. 6645, providing that, as applied to railway employés the defense of assumed risk when based upon the fact that the employé knew of the defect or danger which caused his injury should not be available where the employer had been informed by the employé of the defect in time to enable him to repair it or knew of the defect without having received such information from the employé, or where a person of ordinary prudence would have continued in the service of the employer with knowledge of the defect and danger when the master knows of the defect, there is no assumption of risk on the part of the employe because he also knew of it.
    [E'd. Note. — For other cases, see Master and Servant, Cent. Dig. § 544.]
    2. Master and Servant &wkey;>280 — Injury to Servant — Evidence—Sueeiciency.
    In an action for death of a railway conductor resulting from a derailment of the train in which he was riding, evidence held to show that the defective condition of the trucks under onp or more of the coaches which caused the derailment of the train was known to the defendant’s master mechanic, whose duty it was to make the repairs, so that the defense of assumption of .risk was not available.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 981-986.]
    8. Master and Servant <⅜=3296(1) — Injuries to Servant — Contributory Negligence.
    As it was neither alleged nor proved that the condition of the coach trucks were such that an ordinarily prudent person situated as the deceased would not have operated the train with knowledge of that condition, or that he was negligent as alleged in the management of a box which struck him, the court properly ignored the issue of contributory negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1180.]
    4. Death &wkey;>99(4) — Excessive Damages.
    As the evidence shows that the deceased was about 84 years of age was earning a regular salary of $125 a month, and sometimes made more by working overtime, an award of $13,000 in favor of a minor child was not so excessive as to require a reversal of the judgment or a re-mittitur as a matter of law.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 125, 126, 129.]
    5. Death &wkey;j86(2) — Measure oe Damages— Loss oe Parent by Minor.
    In determining the pecuniary damages which a minor sustains in the loss of a parent, the jury may consider the reasonable value of the nurture, care, and education the child would probably have received from the deceased parent.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 108, 109, 112-114, 117, 119.]
    Appeal from District Court, Harrison County ; H. T. Lyttleton, Judge.
    Action by Mrs. C. M. Riden and others against Marshall & East Texas Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    F. H. Prendergast, of Marshall, for appellant. Beard & Davidson, of Marshall, for appellee.
   HODGES, J.

On October 18, 1915, C. M. Riden, a conductor in the service of the appellant, was injured in a railroad wreck resulting from a derailment of the train on which he was riding. A short time after-wards he died as a result of those injuries. This suit was instituted by his widow and minor child and his father and mother for damages. A trial before a jury resulted in a judgment against appellant for $21,000, which was apportioned as follows: To the widow, $7,000; to the minor son, $13,000; and to the father aDd mother, $1,000.

The facts show that the train was on its return trip from Winnsboro to Marshall, and while rounding a curve the trucks under one of the coaches- left the track, which derailed the train while passing over a trestle.

Complaint is made of the following portions of the court’s charge:

“(12) You are instructed that, where a personal injury is sustained by an employé of a railroad corporation, and such injury is caused by the negligence of such corporation, the plea of assumed risk shall not be available as a defense by said corporation when the ground of such plea is knowledge, or means of knowledge, by the injured party of the defect, if any, which caused the injury, provided the employer or master, or the employe’s superior, intrusted by the master with the authority to remedy or cause to be remedied such defect, if any, also knows of such defect, and in such, cases the employe is not required to report the defect, if any, to his employer or superior.
“(13) You are therefore instructed that, although you believe from the evidence that the trucks under the passenger coaches, or either of said coaches, were defective, and that such defect was known to deceased, Clifton M. Riden, he did not assume the risk or become guilty of contributory negligence in remaining in the employ of the defendant company, if you believe that his superiors or employers, whose duty it was to repair and maintain the said trucks, also knew of their defective condition, and had promised, or impliedly promised, to remedy said defects.
“(14) On the contrary, if the defendant, or its employés intrusted with, the duty of maintaining its trucks, in the exercise of ordinary care to perform their duty, did not know of such defect at the time that the deceased was injured, and you believe from the evidence that deceased did know of such defect and had an opportunity before being hurt or injured to inform the defendant, or such agents as were charged with the duty of maintaining and repairing said trucks, of their defective condition, if they were defective, and that the failure on his part to report such condition was negligence, and you further believe that a person of ordinary care, under the same or similar circumstances, with a knowledge of such defects, if any, and the danger incident thereto, would not have continued in the service of the defendant company, then you will find for the defendant.”

These different paragraphs were objected to substantially upon the ground that the issue of contributory negligence resulting from the known defective condition of the trucks was ignored. The thirteenth paragraph is objected to upon the further ground that there was not evidence of an express or implied promise to repair the defect; and the fourteenth paragraph is objected to upon the ground that it placed too great a burden upon the railway company.

The above paragraphs refer principally to the defense of assumed risk. Under the common-law rule the servant assumed the risk of injury from any defect in the appliances he was to use of which he had notice, whether the defective condition resulted from the negligence of the master or not. The statute of 1905, which appears as article 6045 of our present Code, modified that rule as applied to railway employés. It is in substance there provided that the defense of assumed risk, when based upon the fact that the employé knew of the defect or danger which caused his injury, should not be available in the following cases: Eirst, where the employer had been informed by the employé of the defect in time to enable him to repair it, or knew of the defect without having received such information from the employé; and, second, where a person of ordinary prudence would have continued in the service of the employer with t^e knowledge of the defect and danger. From this it follows that when the master knows of the defect there is no assumption of the risk on the part of the servant because he also knew of it. The evidence in this case justifies the conclusion that the defective condition of the trucks under one or more of the coaches caused the derailment of the train, and it is undisputed that the appellant’s foreman and master mechanic, whose duty it was to make those repairs, had actual notice of that condition some time previous to the accident. There would therefore have been no error had the court assumed such notice and instructed the jury that the defense of assumed risk was not available, without reference to any promise on the part of the employer to repair the defect.

There may be instances where the defective condition of the cars is such that an ordinarily prudent person, acting in the capacity of a conductor, would not risk the danger of being injured by their operation. When an injury occurs under those circumstances, the issue of contributory negligence arises and may be a partial defense to the suit for damages; but such negligence, to be available as a' defense, must be pleaded, except under certain well-known conditions. In this case the appellant pleaded contributory negligence duly with respect to the management of a box carried on the train, in which were contained the conductor’s lantern and some other appliances. The evidence showed that in the derailment this box fell on Riden and caused the injuries from which he died. There is no evidence from which the jury might have concluded that he should have managed this box in a different manner in the exercise of proper care for his own safety. It was neither alleged nor proved that the condition of the trucks was such that an ordinarily prudent person situated as Riden would not have operated the train with a knowledge of that condition; hence the court committed no error in ignoring the issue of contributory negligence in that respect.

There are other assignments of error based upon the refusal of the court to give a number of special charges. We have examined all of these special charges, and deem it unnecessary to discuss them in detail. Some of them are sufficiently covered by portions of the court’s general charge, and the others are either inapplicable or erroneous.

It is contended that the verdict of the jury was excessive. The evidence shows that Riden was a few months over 34 years of age, and was earning a regular salary of $125 per month., and that he sometimes made more than that by working overtime. It was shown that he was a man of prudent habits and was disposed to save his earnings. The complaint of excessive allowance is directed mainly to the award of $13,000 in favor of the minor child. The evidence showed that the child was a boy about two years of age. It is true the allowance is a liberal one, but we cannot say as a matter of law that it was so excessive as to require a reversal of the judgment or a remittitur. *

It is well settled by the decisions in this state that in determining the pecuniary damages which a minor sustains in the loss of a parent the jury may take into consideration the reasonable value of the nurture, care, and education the child would probably have received from the deceased parent. I. & G. N. By. Co. v. McVey, 99 Tex. 2S, S7 S. W. 328. This opens up a wide field, which should be limited by the facts of each particular case.

The judgment is affirmed.
      ■.«csjEor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BAINEY, C. J.

license: Public Domain

text:
    BRAY v. UNION NAT. BANK OF DALLAS et al.
    (No. 7787.)
    (Court of Civil Appeals of Texas. Dallas.
    April 14, 1917.
    Rehearing Withdrawn May 12, 1917.)
    Judgment <&wkey;822(2) — Fobeign Judgment — Full Faith and Ceedit.
    Where a wife in Texas signed notes as surety, and mortgaged her separate property to secure payment, and the payee sued in Oklahoma, and in such suit the wife, by authority given to her husband, filed an answer setting up the defense of the invalidity of the transaction as to her under Texas laws, but the payee secured judgment, such judgment was entitled to full faith and credit, and to be enforced in Texas.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1498, 1499.]
    Error from District Court, Dallas County; Kenneth Foree, Judge.
    Suit by the Union National Bank of Dallas, Tex., and others, against Erminia C. Bray. Judgment for plaintiffs, and defendant brings error.
    Affirmed.
    Short & Feild, of Dallas, for plaintiff in error. J. E. Gilbert, of Dallas, D. Upthe-grove, of St. Louis, Mo., and Spence & Haven, of Dallas, for defendants in error.
   BAINEY, C. J.

Plaintiff in error, Erminia C. Bray, being a married woman and being joined by her husband, did in 1910, in the city of Dallas, Tex., sign as surety two promissory notes, and to secure payment of same did execute a mortgage on certain lots in the city of Hugo, Choctaw county, Okl., said lots being her separate property. Said notes becoming due and default in payment being made, suit was brought thereon in Choctaw county, Okl., and judgment was rendered for the amount of same and foreclosure of said mortgage on said lots, which were sold by virtue of said judgment and proceeds of sale credited on said judgment, leaving a balance due on same.

This suit was brought by appellees in Dallas county, Tex., to establish said judgment and recover the balance due on same against Erminia C. Bray, and others. Erminia C. Bray answered by general and special demurrers, general denial, and specially: That the Bray Company, for which she went security, was a Texas corporation domiciled in Texas, and the business carried on in Dallas, and in which her husband was a shareholder.' That she signed said notes with her husband as surety. That she received no consideration therefor, but said notes were for money loaned and merchandise sold to said Bray Company. That the consideration for same was not for necessaries for herself or children, nor was it for the benefit of her separate property. That at the time said notes and mortgage were executed she and her husband were domiciled in Dallas, Tex., and same were executed in said city of Dallas and were Texas contracts. That she had no personal knowledge of the suit in Oklahoma. That she never resided without the state of Texas, and was never served with citation to answer. That her husband, E. F. Bray,1 was living when said action was brought, but is now deceased, and that so far as she knows he authorized her appearance in that behalf, and she is now advised that an answer was filed in said cause in which it was charged that she was a married woman, the wife of her codefendant in said action, at the time said notes and mortgage were executed. That no consideration of any kind had passed to her from the plaintiffs for said notes and mortgage. That she did not owe the same or any part thereof, and pleaded the disability of her coverture in defense of said action. She repeated her statement that she signed the notes as security for the corporation in which her husband was a stockholder, and that under the laws of Texas no obligation was imposed upon her. by signing the same, and that she was not liable for the payment thereof under the laws of the state of Texas, where said contract was made, notwithstanding her signature thereto. That she was advised during the pendency of said action that no recovery could be had against her personally upon said notes. That she trusted her husband to protect her from liability, and never knew that no defense had been made in said cause, nor that a judgment had been rendered against her fixing and establishing any personal liability as the result of said action until she was cited to appear in answer to plaintiff’s petition in this cause. That she is now advised that the counsel who appeared at the instance of defendant’s husband after filing her answer made no further appearance, but permitted a judgment to be rendered against her, without urging the defense he had pleaded in her behalf. That being a married woman at the time, the notes which were the basis of the judgment upon which this action is founded were of no effect so far as they relate to defendant, because of her coverture. That there being no liability against her under the laws of the state of Texas, the courts of Oklahoma were powerless to make something out of nothing or create a liability by their judgment where none existed, and that she is not precluded by the judgment purporting to have been rendered against her in said case from now pleading her disability as a married woman to contract any liability on account of signing said notes as security for her husband or for her husband’s company, the Bray Company, a corporation, and that plaintiffs are not entitled to recover anything against her on account of said judgment.

Plaintiff by supi>lemental petition pleaded to defendant’s answer general demurrer and special exceptions, general denial, etc.

Special exception to paragraph 4 was:

“Because the plaintiff’s action is based upon a judgment .obtained against the defendants in a foreign state, and imports verity and precludes an examination of the merits of said judgment, therefore the allegations contained in said paragraph constitute no legal defense to plaintiff’s cause of action and should be stricken from the pleadings; and because said allegations on the part of defendants constitute a collateral attack upon the judgment of a foreign state, and thereby deny the judicial proceedings of said state the full faith and credit to which they are entitled, therefore said allegations constitute no legal defense to plaintiff’s cause of action, and should be stricken from said pleadings. Said supplemental petition contains eight additional special exceptions directed to the several paragraphs of defendant’s answer, repeating the exception to the fourth paragraph already cited. The sixth special exception is directed to that part of the answer in which it is averred that no citation was ever issued or served upon defendant, because the suit is based upon a judgment of a foreign state, which imports -verity and precludes an examination of the merits of said judgment. The allegation of lack of service constitutes no legal defense, and should be stricken from said pleading, and because said allegation would deny to the judicial proceedings of a foreign state the full credit to which they are entitled. The seventh special exception is directed to that part of the defendant’s answer charging that no consideration of any kind had passed to her from the plaintiffs for said notes and mortgage; that she had signed the same as security for the corporation in which her husband was á stockholder, and that under the laws of Texas no obligation was imposed upon her by signing the same, and that she was not liable for the payment thereof under the laws of the state where said contract was made, for the reason that the plaintiffs’ cause of action is based upon a judgment of a foreign state and imports verity and precludes an examination of the merits of said judgment; that said allegations constitute no legal defense to the plaintiffs’ cause of action, and should be stricken from said pleadings; and because they constitute a collateral attack upon a judgment of a foreign state, and thereby deny the judicial proceedings of said foreign state the full faith and credit to which they are entitled, they should therefore be stricken from said pleadings.”

Plaintiffs’ supplemental petition alleged the appearance and answer of Mrs. Bray, and pleadeS the defenses here pleaded by her.

This case was submitted to the court without a jury. Defendant’s exceptions to non-joinder were overruled, exceptions to defendant’s answer were sustained, and judgment was rendered in favor of plaintiffs against defendants for $13,722.62, and defendant Erminia O. Bray appeals.

Hie main question involved in this controversy is: Di'd the judgment rendered by a court of competent jurisdiction in the state of Oklahoma against Erminia 0. Bray entitle it to such faith and credit under the federal Constitution and laws of Congress as authorized a court in this state to enforce it by rendering judgment thereon? Or, rather, was the fact that Erminia C. Bray was a married woman and the defense interposed by her being good in Texas, should it prevail against a judgment rendered against her in Oklahoma, where such a judgment was authorized? Erminia O. Bray and her husband were parties to the suit as defendants in Oklahoma. They were both residents of Texas, but the husband filed an answer for both, which she authorized. The case was tried without her appearing, and judgment was rendered against both for the amount of the notes and a foreclosure of the mortgage. The record does not show in the trial of that case whether or not the Texas law was shown, and that she was not individually liable on a promissory note as surety. We presume it was not or that court would not have adjudged her liable. It is not claimed or pleaded by Mrs. Bray that the demurrer and answer by her attorney in the- Oklahoma suit were filed without her authority. The court in Oklahoma had jurisdiction of Mrs. Bray by reason of her answer, and also had jurisdiction of the subject-matter. Therefore the said judgment rendered in Oklahoma against Mrs. Bray is entitled to full faith and credit in this state, and is not subject to the attack made in this case. The courts of this state have ,in many cases recognized and enforced the federal law relating to judgments of sister states. Houston v. Dunn, 13 Tex. 476; Norwood v. Cobb, 24 Tex. 551; Express Co. v. Undertaking Co., 179 S. W. 908.

Defendants insist, in effect, that such a judgment would not have been rendered under the circumstances in a Texas court as contrary to law and the policy of this state, and that the judgment rendered in Oklahoma is not entitled to absolute verity, but in a suit in Texas brought to establish it a defense of coverture is proper and should be allowed. In support of this contention is cited, among others, the dissenting opinion in Fauntleroy v. Lum, 210 U. S. 230, 28 Sup. Ct. 641, 52 D. Ed. 1039. The opinion was rendered by a 'divided court, five in favor of affirmance and four against, Mr. Justice Holmes writing the opinion for the majority, and Mr. Chief Justice White for the minority. The case was an action 'upon a Missouri Judgment, brought in a court of Mississippi. The declaration set forth the record of the judgment. The defendant pleaded:

“That the original cause of action arose in Mississippi out of a gambling transaction in cotton futures; that he declined to pay the loss; that the controversy was submitted to arbitration, the question as to the illegality of the transaction, however, not being included in the submission; that an award was rendered against the defendant; that thereafter, finding the defendant temporarily in Missouri, the plaintiff brought suit there upon the award; that the trial court refused to allow the defendant to show the nature of the transaction, and that, by the laws of Mississippi, the same was illegal and void, but directed a verdict if the jury should find that the submission and award were made, and remained unpaid; and that a verdict was rendered and the judgment in suit entered upon the same. (The plaintiff in error is an assignee of the judgment, but nothing turns upon that.) The plea was demurred to on constitutional grounds, and the demurrer was overruled, subject to exception. Thereupon replications were filed, again setting up the Constitution of the United States (article 4, § 1), and were demurred to. The Supreme Court of Mississippi held the plea good and the replications bad, and judgment was entered for the defendant.”

The majority of the court reversed the judgment of the Mississippi court and upheld the Missouri court.

We feel inclined to follow the dissenting opinion of the minority, as we do not think a judgment of a sister state obtained under such circumstances should carry verity on its face, but should be subject to such defenses that show the transaction illegal in the state where it is attempted to be enforced. While we believe the dissenting opinion is more in consonance with law and equity, the majority opinion is the law of the land, an'd we feel constrained to follow it. The Supreme Court is the final arbiter of this question, and the majority opinion in the case of Eauntleroy v. Lum, supra, is the last expression on this subject, and we feel it our duty to bow to the highest tribunal in the land. Therefore the judgment is affirmed.

Affirmed.
      <&z»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WIDDSON, C. J.

text:
    LYON-GRAY LUMBER CO. v. WICHITA FALLS BRICK & TILE CO. et al.
    (No. 1790.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 12, 1917.)
    1.Assignments <®=o58 — Equitable Assignments — Defects in Performance.
    Where defendant school district, in acceptance of an order drawn upon it by one having contract for construction of school building, agreed to pay to plaintiff’s order any sums due contractor up to a certain amount upon condition that it was not to be bound until contractor had completed schoolhouse to satisfaction of building committee, it was not liable to plaintiff for the balance in its hands where contractor had not completed work in a manner entitling him to demand and receive balance.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 121-123.]
    2. Schools and School Districts <§=^>85— Building Contracts — Waiver or Defects —Conditional Acceptance.
    Acceptance of the new school building with exceptions noted in architect’s letter to the building committee was not an unqualified acceptance of work of contraccor.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 202.]
    3. Schools and School Districts <®=»85— Building Contracts — Waiver op Defects.
    Taking possession of an unfinished school building with consent of builder and with understanding that it shall not operate as a waiver of any right to insist on completion according to contract is not a waiver of any condition.
    [Ed. Note.' — For other cases, see Schools and School Districts, Cent. Dig. § 202.]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Suit by the Wichita Falls Brick & Tile Company against John T. Fields and another, in which the Lyon-Gray Lumber Company and others intervened, and in which the Wolfe City Independent School District was made a party at request of the Lumber Company. From a judgment for School District on issues between it and the Dumber Company, the latter appeals.
    Affirmed.
    This was a suit by the Wichita Falls Brick & Tile Company against John T. Fields and the Commonwealth Bonding & Casualty Insurance Company, in which appellant and various other parties intervened. At appellant’s instance the Wolfe City independent school district was made a party. The controversy on this appeal is entirely between appellant and that district, and the statement to follow is confined to matters affecting that controversy.
    It appears that the school district and Fields entered into a contract whereby Fields undertook to “construct and complete a brick school building” for the district, according to plans and specifications prepared by one Lindsey, an architect. Fields was “to furnish all material, tools, and labor necessary for the erection, construction, and completion of the building”; that is, it was to pay him “80 per cent, of satisfactory labor and material in the building and material on the ground, as estimated by the architect,” and the remainder “when the building was completed and accepted.”
    Appellant alleged and proved that on November 10, 1913, Fields, being indebted to it in the sum of §3,595 for material it had furnished to him to go into the building, delivered to it an order on the district as follows:
    “To the Trustees of Wolfe City, Independent School District, Wolfe City, Texas — Gentlemen: Please pay to Lyon-Gray Lumber Company the sum of $3,595.00 (thirty-five hundred and ninety-five dollars), balance due me in payment for repairing of the old school building and the construction of the new one-story building in the city of Wolfe City, Tex., said amount being for lumber and building material used in repairing and constructing the above mentioned buildings; also all vouchers in connection with the above now and hereafter shall be made payable to the said Lyon-Gray Lumber Company.
    .“[Signed] John T. Fields.”
    Appellant further alleged and proved that on the same day the district accepted said order by a writing as follows:
    “Hess. Lyon-Gray Lumber Co., Wolfe City, Texas — Gentlemen : Referring to order upon the trustees of the Wolfe City independent school district and signed by Mr. John T. Fields requesting that we pay yourselves any balance due him for labor, material, etc., to the sum of $3,595.00, we beg to submit that we will assume to pay to your order any sums due Mr. John T. Fields, contractor, as a balance on his account, when the money is received by us from the state board, no interest to be charged by yourselves, and this agreement or assumption not to be considered final or binding until the said Fields has completed and satisfied his contract to the satisfaction of the building committee of our board; total amount assumed not to exceed the sum of $3,295.00.
    “Trustees of Wolfe City Independent School District,
    “By H. E. Vaughan, President.
    “E. E. O’Neal, Secretary.”
    Appellee further alleged and proved that the district thereafterwards, having received from the state the money referred to in the acceptance, paid to it on the order the sum of $2,000, and refused to pay $1,295 in addition thereto, which, it alleged, the district had by the acceptance of the order agreed and hound itself to pay.
    Appellant further alleged and proved that the architect on December 29, 1913, wrote to the building committee of the public schools of Wolfe City a letter as follows:
    “Building Committee Public Schools, Wolfe City, Texas — Gentlemen: I have inspected the buildings and find them done according to the plans and specifications except the following defects: The two pair concrete steps leading to the side entrance on the east and west side are not satisfactory. The top coat of cement should be taken off and replaced. Some of the flooring is bulged on account of getting wet and should be nailed down and boards removed and replaced where they will not come down. Out in scuttle hole in passing behind stage. The walls that are wet should be scraped and rekalsomined, but not until the walls had dried out. Go over ceiling and nail up bad joints. Proper allowance should' be made for contractor failing to take out crack on northwest corner of old house and the amount deducted from the contract. I believe that Job as it is [stuccoed] is as good as if the crack had been taken out, but you are entitled to credit on account of the specifications covered. Taking the work as a whole you have a good job and I accept the building with the above-described work to be made good.
    “Respectfully, George Lindsey.”
    Appellant further alleged and proved by minutes kept thereof that on December 30, 1913, proceedings as follows were had at a meeting of the members of said building committee:
    “Purpose of meeting, to discuss whether we shall accept the new school building and transact any other business that might come before the board. Moved and seconded we accept the new school building with the exceptions as noted in Mr. Lindsey’s letter to the building committee dated December 29, 1913. Feeling we are entitled to damages on brick unless adjustment is made to our satisfaction, we proceed to bring suit against the brick company of Wichita Falls and make Mr. Lindsey party to the suit, as he made purchases of same. Motion carried unanimously, except Dr. Vaughan, who voted ‘No’ because he did not think best to accept the building at the present time.”
    Appellant further alleged:
    “That by the action of the said school board said building was by it and by said building committee accepted, and that by said action said school board of the independent school district of Wolfe City, Tex., became liable to this inter-vener for the full amount of $3,285, and that by the action of said John T. Fields in executing to this intervener the order for an assignment of said funds and the said action of said school board aforesaid assigned and transferred said funds to this intervener, and that this intervener is and was therefore entitled to the full sum of $3,295.
    “That after said school board had so accepted the assignment of said fund and in pursuance of its promise to this intervener to pay said sum of $3,295, did pay on, to wit, December 18, 1913, $500, on January 2, 1914, $450, and on February 25, 1914, $1,050, making the total amount paid to this intervener the sum of $2,000, which was credited on said amount, leaving a balance due this intervener of $1,295, which amount has never been paid, though often requested to do so.
    “That on the 30th day of December, 1913, the said John T. Fields completed, or practically completed, the performance of said contract above mentioned, and this intervener alleges that if said building was then not entirely finished the said contractor did abandon said contract, and that by the action of the said board of trustees for the independent school district of Wolfe City, Tex., said trustees accepted same and entered into the use thereof and has ever since occupied and used same for school purposes and by its act has accepted same.
    “That by reason of the premises above set out and under the terms and conditions of said contract and by the action of said school board as above set out and under the provisions of the law of the state of Texas, said board of trustees of the independent school district of Wolfe City, Tex., has become liable and has promised to pay this intervener the said sum of $1,295, together with interest thereon from December 30, 1913, at the rate of 6 per cent, per annum.”
    In its answer, admitting that $1,369.36 of the sum it had agreed to pay Fields for constructing the building had never (been paid and was still in its hands, the district alleged a failure on the part of Fields in various particulars, which were set out at length, to comply with his contract with it, and further alleged that the part of the contract price of the work remaining in its hands would not be sufficient, when used for the purpose, to complete the building in accordance with the plans and specifications thereof. It prayed, among other things, that it “be permitted to hold out the amount of money in its hands” to compensate the district for the defects in the building.
    The appeal is from a judgment in favor of the district on the issues between it and appellant.
    In the judgment are recitals as follows:
    “The court further finds that the defendant John T. Fields failed to comply with his contract, failed to complete the work he contracted to do in accordance with the plans and specifications and the contract based thereon, and used defective material, and did the work in a de-feetive manner, on account of which there was difference of $1,994.70 in the value of the building when he quit work thereon and what they would have been worth had the contract been complied with; that, except in the matters pointed out by the architect in his report of December 29, 1913, these defects of material and workmanship were hidden, concealed, and substantially unknown to the Wolfe Oity independent school district until long after said report was made; and that said district is entitled to be awarded the money in its hands deducted from the contract price of the work, amounting to $1,369.36.”
    Hamp P. Abney, of Sherman, for appellant. Clark & Leddy and Sherrill & Starnes, all of Greenville, for appellees. •
   WIDDSON, C. J.

(after stating the facts as above). [1-3] The contention appellant makes is that it appeared as a matter of law that it was entitled to judgment against appellee for the $1,369.36 in its hands which Fields, had he complied with the terms of his contract with appellee, would have had a right to demand and receive of it. We do not think it so appeared from the testimony. Appellee’s liability to appellant was predicable on nothing else than its acceptance of the order drawn by Fields on it. In the instrument evidencing the acceptance it was expressly stipulated that it was “not to be considered as final or binding until Fields has completed and satisfied his contract to the satisfaction” of appellee’s building committee. It not only did not appear as a matter of law from the testimony that Fields had performed his undertaking under the contract to the satisfaction of the building committee, but, on the contrary, it appeared that he had not done so. The action of the building committee, shown by the excerpt from the minutes of its proceedings set out in the statement above, could not be construed as an unqualified acceptance by it of the building. If its action should be construed as an acceptance of the building at all, instead of a mere indication that the committee would accept it when completed in the particulars specified in the architect’s report, certainly the acceptance was a restricted one. It showed that the building was incomplete, and that the committee was not then satisfied that Fields had complied with his contract covering its construction. As it appeared from other testimony that Fields never afterwards completed the building in the particulars specified by the architect and referred to in the entry on the minutes of the proceedings of the building committee, we think the trial court did not err in refusing to render judgment for appellee against appellant. The condition upon which ap-pellee accepted Field’s order on it and agreed to pay $3,295 of the sum it was drawn for never arose, and therefore it did not appear that appellee ever became bound to pay appellant anything on account of its acceptance of the order. The contention made by appellant that the committee’s acceptance of the building as shown by the excerpt from the minutes .of its proceedings had the legal effect to make appellee liable to it for the part appellee had not before that time paid to Fields of the sum it agreed to pay him for constructing the building, less the sum necessary to be expended to complete it in the particulars specified in the architect’s report, is not, we think, tenable. By the terms of appellee’s contract with Fields 20 per cent, of the sum it agreed to pay Fields was payable only “when the building was completed and accepted.” The part of the contract price which had not been paid to Fields at the time of the committee’s alleged acceptance of the building amounted to less than 20 per cent, of the whole, and appellee never became bound to pay same or any part of it to Fields; for the building was never completed according to the plans and specifications forming a part of the contract. The part of the contract price which had not been paid to Fields’ order in appellant’s favor only undertook to pay to the latter “any sums due to Mr. John T. Fields, contractor, as a balance on his account, * * * not ⅛> exceed the sum of $3,295.” Nor do we think that the contention made by appellant that appellee became bound to pay it said part of the contract price of the building because appellee took possession of and used the building in its unfinished condition is sound. There was testimony which would have authorized a finding that appellee took possession of and used the building with Fields’ consent and on the faith of an understanding between them that it should not operate as a waiver of any right it had to insist on his completion of the building in accordance with the contract. 4 Elliott on Contracts, § 3706 et seq.

There is no error in the judgment, and it is-affirmed.
      <S=?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    FARISS et al. v. BEEVILLE BANK & TRUST CO.
    (No. 5848.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 25, 1917.
    Rehearing Denied May 23, 1917.)
    1. Appeal and Error <®=>744t — Scope op Review — Record—Sufficiency.
    Assignments of error filed nearly six months after adjournment of court, none of which was-based upon a motion for new trial, will not be considered except as they concern fundamental error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3043-3048.]
    2. Appeal and Error <©=>911(1) — Scope op Review — Presumptions.
    Where the record showed that the county judge entered his disqualification, whereupon “counsel for plaintiff and defendants agreed upon” another judge, it would be conclusively presumed on appeal that all the defendants agreed to such judge, although two of them had not. answered at the time the entry was made, but had left the defense in the hands of their co-defendant, and were afterwards represented by his attorneys.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 86S2-3684.]
    Error from Bee County Court; J. J. Carmichael, Judge.
    Action by the Beeville Bant & Trust Company against Mrs. J. T. Fariss and others. Judgment for plaintiff, and defendants bring error.
    Affirmed.
    Cox & Cox and Beasley & Beasley, all of Beeville, for plaintiffs in error. 'Dougherty & Dougherty, H. S. Bonham, and James F. Odem, all of Beeville, for defendant in error.
   FLY, C. J.

This is a suit on a promissory note for $150, with interest at 8 per cent, per annum from its date, August 25, 1909, and 10 per cent, attorneys’ fees, executed by J. T. Fariss, A. ¡H. ICnolle, and T. C. Price. The cause was tried by the court, without a jury, and judgment rendered against the makers of the note for $267.33, with interest at 8 per cent, from date of judgment and for attorneys’ fees. Two banks had been joined in the action by the defendants in the lower court, but were dismissed from the suit. The judgment as to Price and Knolle was by default.

A motion for new trial was made by J. T. Fariss, and nearly six months after the court adjourned assignments of error were filed, none of which are based upon the motion for new trial. They will not be considered except in so far as they set up the disqualification of the judge to try the cause, which would be fundamental error.

The record shows that on January 16, 1912, the county judge entered his disqualification to try the cause, “when counsel for plaintiff and defendants agreed upon Hon. J. J. Carmichael to preside upon the trial of said cause.” That recital shows that all of the defendants, although two of them had not filed an answer, agreed on the special judge to try the cause. The principal, Fariss, was defending against the demand of the defendant in error, not only for himself, but for the sureties, and they cannot, in law or equity, have a trial set aside because they failed to answer in the case. They were duly cited and did not appear, but left the defense in the hands of their codefendant. This case is not parallel to one in which the plaintiff alone, in case of the disqualification of the regular judge, selects a judge to try the case, as was done in a suit mentioned in the case of Latimer v. Logwood, 27 S. W. 960. To the same effect is Castles v. Burney, 34 Tex. 470.

The recital in the judgment that the defendants agreed on the special judge will be taken as true, although the sureties may not have filed an answer. The attorneys for Fariss appeared for Knolle and Price, as well as for Fariss in requesting conclusions of fact and law, which request was made immediately after the motion for new trial was overruled. They were to all intents and purposes Being represented by the same attorneys from the inception of the suit. It is recited in the motion to vacate the judgment that all of the defendants joined in the motion for new trial. The record as to the agreement for a special judge to try the case is conclusive, and there is nothing in the record that conflicts with the recital.

The judgment is affirmed.
      <§=For otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, G. J.

text:
    BILLINGS v. SOUTHERN SUPPLY CO.
    (No. 5857.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 2, 1917.
    Rehearing Denied May 23, 1917.)
    1. Couets <&wkey;169(l) — Counts: Court — Jurisdiction.
    Where, in action in county court on a note for $327.50, defendant set up in cross-action claim for $954, and in addition asked for cancellation of the note, such cross-action was in excess of the court’s jurisdiction, since the amount of the note was to be counted with the other amount sought to be recovered in ascertaining the jurisdiction of the court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413, 414, 416, 421, 423, 429^36, 443, 456, 458, 465.]
    2. Dismissal and Nonsuit <&wkey;80 — Dismissal or Cross-Action — Eitfect.
    In such case, there being also in the answer a plea of failure of consideration, such plea should have been submitted to the jury, notwithstanding dismissal of the cross-action, since such defense was separable from the cross-action.
    [Ed. Note. — For other cases,-see Dismissal and Nonsuit, Cent. Dig. §§ 178-1S1J
    Appeal from Uvalde County Court; T. M. Milam, Judge.
    Action by the Southern Supply Company against Mrs. L. C. Billings. From judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    J. E. Friestman, of Rock Springs, and Will A. Morriss and W. E. Engel, both of San Antonio, for appellant. L. Old and D. H. Jones, both of Uvalde, for appellee.
   FLY, G. J.

Appellee instituted suit against appellant on a promissory note for $327.50, bearing interest at 8 per cent, per annum from date, on which was a credit for $75. The court, after hearing all the evidence of both parties, dismissed the cross-action, because the same was founded on a sum in excess of the jurisdiction of the county court, and instructed a verdict for appellee for the sum claimed by it.

Appellant set up in her cross-action a claim for $954.76, and in addition asked for a cancellation of the promissory note; in other words, she was seeking a recovery of $1,206.76, which was clearly in excess of the jurisdiction of the court, if the note be counted as a part of her suit. It has been held in similar cases that the amount of the notes sought to be canceled should be counted with the other amounts sought to be recovered in ascertaining the jurisdiction of the court. Cable Co. v. Rogers, 44 Tex. Civ. App. 620, 99 S. W, 736; Smith Sales Co. v. Connellee, 147 S. W. 1197. In the Cable Co.-Rogers Case, the suit was in the justice’s court, and the plaintiff sued on three promissory notes for $25 each, with interest and attorney’s fees. The' defendant answered that the notes were given for a part payment on a piano, valued at $280, on which she had paid $205 in property and money, and that the consideration had failed, tire piano being worthless, and she sought the cancellation of the three notes and judgment for $100 cash paid and an organ and cow valued at $95, making a demand for $195, and the cancellation of notes for $75. The court held that it was virtually a suit to cancel the trade, which involved $2S0. “Of this amount affirmative relief for $270 was sought, being the contract price, less $10 remitted by the defendant.” The court said, “The relief sought by appellee involved an amount greater than that over which the justice court had jurisdiction.” In the Smith Sales Co. v. Connellee Case, the appellee had sued in the justice’s court for the cancellation of seven notes for $10 each, and for $200 damages for the wrongful levy of a writ of sequestration upon a typewriter machine. Judgment was rendered for $140, for damages and the cancellation of the notes, amounting to $70; the whole being $210. The court held that the amount in controversy was $270, and that the justice’s court did not have jurisdiction. The two cases are conclusive against appellant, on the point mentioned.

In the court’s charge to the jury and in the judgment it is recited that the cross-action of appellant was dismissed, and not that exceptions were sustained to the whole answer of appellant. There was in the answer a plea of failure of consideration, which, if proved, formed a conclusive defense to the cause of action. That defense can easily be separated from the cross-action for damages, and after the cross-action was dismissed that defense remained. The cause should have been submitted to the jury on the plea of failure of consideration. In the case of Cable Co. v. Rogers, the court did not dismiss the cause on account of the cross-action being beyond the jurisdiction of the court, but merely reversed the judgment and remanded the cause for another trial. Had the Court of Civil Appeals been as severe in its treatment of that case as the county judge was of this case, the judgment would have been reversed and judgment rendered in favor of appellee. It was sent back to be I tried on the plea of failure of consideration or any new answer that might be filed by the appellee which did not transcend the jurisdiction of the court.

No exceptions or objections were filed or urged to the answer of appellant until all the testimony had been presented and the case was ready for the jury. No opportunity was given appellant to dismiss her cross-action or amend her pleadings, but the jury was peremptorily ordered to return a verdict for appellee regardless of the fact that the evidence tended to show that there was a failure of consideration. This is not a parallel case to one in which a plaintiff declares on a claim of which a court has no jurisdiction, for in that event the case is, from its inception, improperly in court. In this case the cause is properly brought, and the defendant will not be deprived of his defenses, because an action pleaded by him is not within the jurisdiction of the court.

The judgment is reversed, and the cause remanded.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    MESSIMER et al. v. ECHOLS et al.
    (No. 1786.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 25, 1917.
    Rehearing Denied May 17, 1917.)
    1. Appeal and Error <&wkey;237(6) — Objections Below.
    Appellant cannot complain of findings of the jury where he filed no motion to set aside the findings.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 1302½.]
    2. Trial <@=»351(2) — Submission of Special Issues.
    It was not reversible error to refuse to submit special issues where the questions were submitted to the trial court in such shape the trial court could not submit one without submitting all of them, and part of the questions were submitted in the main charge.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 837.]
    3. Husband and Wife <&wkey;254b — Community Property.
    Under Rev. St. 1911, art. 4622, as to community property, land bought during marriage and within two or three years after the husband was committed to an insane asylum, and paid for by the labor of the wife and of the children, who were not emancipated, was community property; notwithstanding an agreement between the wife and children that if they would work and assist her in paying for the land she would later give it to them.
    [Ed. Note. — Eor other cases, see Husband and Wife, 'Cent. Dig. §§ 897-899.]
    4. Husband and Wife &wkey;>267(2) — Gift of Land — Feaud on Husband.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, sat. 3966, as to fraudulent conveyances, where a wife was indebted to her divorced husband for an accounting and settlement of the community property, a deed of gift by her to her children by such husband of land belonging to the community estate, made immediately after both she and the children had knowledge that an accounting and 'settlement was being demanded by her divorced husband, was in fraud of his rights.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 896, 031.]

      Appeal from District Court, Wood County; R. M. Smith, Judge.
    Suit by W. M. Messimer against M. A. Echols and others. Erom a judgment against Ira Messimer and others, they appeal.
    Affirmed.
    W. M. Messimer and M. A. Messimer were married in 1884, and had four children, Ira, Harmon, Sherman, and Dewey. W. M. Mes-simer was legally adjudged a lunatic and sent to the state asylum on August 29, 1899, where he remained confined until discharged as sane on October 24, 1913. At the time W. M. Messimer was sent to the asylum the property accumulated and acquired during the marriage consisted of 15 acres of land, some money, and personal property. Mrs. M. A. Messimer was appointed by the county court of Wood county administratrix of the community estate in October, 1902. The application for community administration alleged that the husband was insane and confined in tire asylum. Mrs. Messimer qualified as community administratrix, gave bond, and returned an inventory and appraisement of the estate. The 445% acres of land in this suit was purchased by Mrs. Messimer during the time her husband was confined in the asylum. In February, 1904, a decree of divorce of M. A. Messimer and W. M. Messimer was granted, at the instance of Mrs. M. A. Messimer, by the court in Oklahoma. Mrs. M. A. Messimer then married G. A. Echols in February, 1905. On Xfebruary 12, 1914, Mrs. Echols, joined by her husband, made a1 deed to the 445% acres of land to the children, Ira, Harmon, Sherman, and Dewey. The suit is by W. M. Messimer, the husband, for an accounting and settlement of the property rights betwen himself and his former wife, and asking that one half of the lands set out in the petition be decreed to be the property of plaintiff, and that he have a lien upon the other half of said lands to secure whatever may be owing to him by his said former wife. The petition further alleged that on the 12th of February, 1914, Mrs. M. A. Echols (formerly M. A. Messimer), joined by her husband, executed a deed to Ira, Harmon, Sherman, and Dewey Messimer to the 445% acres of the community land, and that said deed was fraudulently made to defeat the plaintiff in his rights and to place said land beyond his reach, and that the said grantees are not innocent purchasers of the same. The said appellants appeared and answered. There was a trial before a jury on special issues; and, in keeping with the verdict and upon facts specially found by the court, judgment was entered in favor of the plaintiff. As the defendants Ira, Harmon, and Sherman Messimer are the only parties appealing, it is unnecessary to make statement except as pertains to them.
    The court made the finding of fact: (1) That the 445% acres of' land in suit was community property of W. M. and M. A. Messimer; and (2) that the uncontroverted evidence showed that the deed of February 12, 1914, executed by M. A. Echols (formerly M. A. Messimer) and her husband to Ira, Harmon, Sherman, and Dewey Messimer, conveyed the 445% acres of land, was without consideration, and made in fraud of plaintiff’s rights. The jury made findings, as here necessary to state, that Mrs. M. A. Echols was owing plaintiff in account and settlement of the community estate, and on the verdict the court awarded the plaintiff a judgment against M. A. Echols in the sum of $1,786.75, with interest from March 1, 1905. The court on his findings canceled the deed above mentioned and awarded the plaintiff and Mrs. M. A. Echols each a one-half undivided interest in the land, and also decreed the plaintiff an equitable lien on the half of the land belonging to Mrs. M. A. Echols, and ordered the same sold to satisfy the lien indebtedness.
    M. D. Oarlock and T. M. Newsome, both of Winnsboro, for appellants. Harris & Brit-ton, of Quitman, and J. H. Beavers, R. B. Howell, and H. L. Wilkinson, all of Winns-boro, for appellees..
   LEVY, J.

(after stating the facts as above). [1, 2] The appellants, not having filed a motion to set aside the findings of the jury, are not in a position to complain of the same. Railway Co. v. Weems et al., 184 S. W. 1102. And the appellants prepared and asked the court to submit to the jury certain special issues, which were by the court refused for the reason, as given by the court, that the 32 questions “were submitted to the court in- such shape the court could not submit one without submitting all of them, and part of these questions were submitted in the main charge.” Therefore this ruling of the court may not be said to be reversible error; and assignments of error Nos. 18 to 27, inclusive, and No. 36 are overruled.

It is not a ground for complaint by the children as to the amount owing by Mrs. Messimer to her husband in accounting and settlement of the estate, and Mrs. Messimer does not appeal. The only issue in the case between the appellants and the plaintiff is that pertaining to the deed of February 12, 1914, conveying the 445% acres of land. If the appellants were entitled to hold the land under the. deed, then judgment should have been rendered in their favor for the land or for one-half of it, free of any lien against it arising from their mother’s debt owing to the plaintiff. But if, as found by the court, the land was community property, and the conveyance was without consideration and fraudulent, then appellants were not legally entitled to hold the land or any part of it. And it is believed that the court did not err in finding that the 445% acres was community property. According to Mrs. Messi-mer’s testimony, the land was bought during the marriage and within two or three years after W. M. Messimer was sent to the asylum, and was paid for by “my labor and the labor of my children.” Article 4622, R. S. 1911; Johnson v. Burford, 39 Tex. 242. The earning through labor of the children was community property, unless the children were emancipated. And it may not, it is thought, be legally said in the circumstances of the record that there was an emancipation of the children. And so any agreement between Mrs. Messimer and her children that if the children would work and assist their mother in paying for the land that she had already bought, which was in fact community property, she would later give them the land, would not change the relation of the property, and it would still be community property. Bank v. McWhorter, 179 S. W. 1147.

The court, it is concluded, did not err in holding that the deed to the appellants was made in, fraud of the plaintiff’s right. It appears that Mrs. Echols (formerly Messi-mer) was a nonresident and had no property unless it was an interest in this estate, and that she was indebted to the plaintiff for an accounting and settlement of the estate. The deed was executed February 9, 1914, and was, by the evidence and its recital, purely a deed of gift, and was made immediately after the grantors and grantees had knowledge that, plaintiff was demanding an accounting and settlement. Article 3966, Vernon’s Sayles’ Statutes; C'oughran v. Edmond-son, 106 Tex. 540, 172 S. W. 1106.

We have carefully considered such remaining assignments as appellants may properly predicate error upon, and think they would not warrant reversal of the case. They are therefore overruled.

The judgment is affirmed.

        <S=oFnr other cases see same topic and ICEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    NEWBY et al. v. W. T. RAWLEIGH CO.
    (No. 699.)
    (Court of Civil Appeals of Texas. El Paso.
    April 19, 1917.
    Rehearing Denied May 17, 1917.)
    1. Monopolies ⅛=317(1) — Restraint op Trade — Sale oe Goods.
    A sales agreement that the buyer should sell the goods only within a certain territory and engage in no other business violates Rev. St. 1911, arts. 7796-7798, prohibiting combinations to maintain prices and prevent competition in a certain territory.
    [Ed. Note. — For other eases, see Monopolies, Cent. Dig. § 13.]
    2. Monopolies <§=^21 — Contracts—Legality of Object — Restraint of Trade.
    Where a seller, after the sales contract was signed but before shipping the goods, required the buyer to agree not to sell outside a certain territory, and to devote all his time to the business, such agreement rendered the sale void under Rev. St. 1911, §§ 7796^-7798, prohibiting combinations preventing competition, etc., and' precludes recovery of the purchase price.
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 15.]
    Appeal from Erath County Court'; A. P. Young, Judge.
    Action by the W. T. Rawleigh Company against W. H. Newby and others. Judgment for plaintiff, and defendants appeal.
    Reversed and rendered.
    Smith & Palmer, of Comanche, for appellants. J. A. Johnson and J. B. Keith, both of Stephenville, for appellee.
   Opinion.

HARPER, C. J.

This suit wasi instituted by “the W. T. Rawleigh Company, a private corporation, against W. H. Newby, principal debtor, and J. F. Newby, L. H. Capell, and M. D. Williford, as sureties, to recover a balance due of $534.88 for certain medicines, extracts,” etc., furnished by plaintiff to W. H. Newby and the other defendants in writing guaranteed payment. For defense, it is alleged that: (1) The plaintiff corporation was not authorized to do business in Texas; (2) the contract between the parties is illegal and unenforceable, because violative of the anti-trust laws of Texas. Tried by court without jury, and) judgment rendered for plaintiff for the amount sued for with legal interest.

By their five assignments, appellants urge:

(1) The appellee is a foreign corporation without a permit to do business in Texas, therefore cannot maintain the suit.

(2) The undisputed facts being that, as a part of the contract sued on, W. H. Newby was to devote his entire time to selling plaintiff’? products and would have no other occupation, such contract is in violation of the anti-trust laws of Texas.

(3) The facts showing that the goods in question were not sold and delivered under the written contract set up in original petition under and by virtue of a subsequent agreement between appellee and W. H. New-by, which provided that the goods should be sold within a certain defined territory and no other, it was in restraint of trade and void under the statute of Texas.

(4) Because the court erred in rendering judgment against the defendants L. H. Ca-pell, J. S. Newby, and M. D. Williford, in that these defendants were only sureties or guarantors for the principal, W. H. Newby, and the plaintiff and said Newby entered other contracts and agreements other than that shown by the written guaranty executed by these defendants, by which other agreements it was contracted between plaintiff and W. H. Newby that said Newby would sell said products of plaintiff company only, and would have no other business or vocation and would sell said products within certain defined and limited territory, within Milam county, Tex., which agreement was without the knowledge or. permission of these guarantors, and because thereof these guarantors were discharged from liability on the alleged contract sued on.

Eindings of Pact.

The writing in evidence is simply a contract between the foreign corporation and the defendant Newby, with no illegal provisions in it. Following the execution and delivex’y of this contract and the suretyship contract of even date therewith, and before any goods were shipped, a printed slip, entitled “Territory Selection,” was sent to defendant, signed by him; thereupon the first order for goods was sent in. The shipment was held up until the question of the territory was settled.

It is agreed that, after the question of territory was settled, defendant received through the mail a booklet entitled “Guide Book for Rawleigh Men,” which contained the following:

“All Rawleigh men have definitely described territories within which each must confine his sales. It is well settled from 8 to 10 townships is large enough to keep the most industrious man busy thoroughly working- it three or four times a year. But if more sparsely settled, 10 or 12 townships, and, in extreme cases, even a little larger territory is necessary to give steady employment the year round. ⅜ ⅜ ⅜ When we accepted your contract, it was with the distinct understanding that you would devote all of your time and attention to selling Rawleigh products. Our rules do not permit any' Raw-leigh man to divide his time, devoting part of it regularly to any other occupation, such as farming, homo work, soliciting or anything else which will interfere with the sale of our products. Our reason for this is that our experience teaches that no man can divide his time between this business and some other occupation and make a success of it. No man can successfully serve two masters. No Rawleigh man can thoroughly work his territory, call on all the farmers in it every three or four months and present the large Rawleigh line well and give customers the service and attention their needs require, unless he puts in praetically all of his time traveling. And to keep out competition and secure the best results, this is absolutely necessary. So a Raw-leigh man must have no other occupation.”

Also, a letter containing the following:

“We have a report from our solicitor Mr. J. H. Shore, the substance of which is that you want $1,000.00 damages for an alleged error which you claim was made in your selection of territory. He also reports that instead of being out on the road selling products, as you are expected to be, you are doing other work. He also reports that you not only refuse to accept any other territory, but to go ahead with your work in the territory you have been operating in. In other words, it seems that you have not only become contrary with relation to this matter, but you are setting up a claim for damages which you have never had, which, of course, is ridiculous on the face of it. As a matter of fact you have no grounds on which to claim damages because the voucher for your territory selection which you signed August 2, 1913, and which we have on file here reads as- follows: ‘Territory: State — Texas: County — Milam, south of Little River and west of S. A. & A. P. Ry.’
“Now, instead of confining your sales to your own selection of territory as above indicated, it appears that you have made sales in that part of Milam county east of the S. A. & A. P. Ry. and south of Little River. That is, we suppose this is so, we do not know; but we do know that the last described territory was selected by Mr. W. H. Newby on September 19, 1913, and when he started to work in it he wrote that you were making sales in it. We then requested yon to confine your sales to your own selection of territory,. and informed Mr. Newby that he should continue to operate in the territory he had selected. * * *
“Under these circumstances, there are just three things that we will do for you: (1) Let you retain your original selection of territory; (2) you may choose that part of Milam county south of the G., C. & S. W. Ry. Co. and north of the J. & C. L. Ry. and the line running through Isaacs, Milam, Tracy and San Gabriel; or (3) terminate your contract and require you or your guarantors to pay the balance due us on your account. We inclose territory selection blanks on both the above territories; take your choice; sign the one you want and return it promptly. If we do not hear from you inside of ten days from this date it will be necessary for us to terminate your contract and require settlement of the balance due us on your contract. We do not like to do this, especially as it seems you have the ability to make some money selling our products, but if you do not value your business and seem disposed to take advantage o-f us we might just as well part company now with you as later.”

Defendant testified that he read the booklet, and that, in handling and selling the goods shipped to him, followed the instructions contained in them, confined himself,to the territory designated, and that he had no other business or occupation, except when it was so rainy that he could not travel. “I pursued these instructions, because I thought I had to.” It is further undisputed that the guarantors had no knowledge of these subsequent requirements by booklet and letters.

If the booklets and letters are to be construed to be a part of the original writing, or if they constitute the contract of sale between the parties, the transaction is viola-tive of title 130, c. 1, arts. 7796-7798, R. S. 1911; for they clearly show an intention to combine the capital, skill, and acts of the parties to fix and maintain a standard of prices upon certain commodities and to prevent competition in a given territory.

Appellee insists that, the original contract being legal, the subsequent agreements, though illegal, in no sense vitiate the transaction. True, the original writings are free from vice, but the question here is; Do they constitute the whole agreement between these parties? Without going into any lengthy discussion, it seems clear to us that the medical company did not so consider it; for, before any goods were shipped, they required Newby to designate his territory, sent him the-booklets, and after some sales had been made in writing called his attention to the contract in the following language: “All Raw-leigh men have definite territory.” It will he noted that the booklet contains the following:

These booklets and letters contain the exact matters which were incorporated in the contract quoted in full in the case of Armstrong v. Rawleigh Medical Company, 178 S. W. 582, held to be void because it contravened the statutes above cited. See, also, Watkins Medical Co. v. Johnson, 162 S. W. 394.

“When we accepted your contract, it was with the distinct understanding that you would devote all of your time and attention to selling Rawleigh products,” etc.

And the appellant testified that he observed the said provisions because he thought he had to. Thus they declare that the writings were not all of the contract.

However, it seems clear that the subsequent correspondence and understandings between the parties form just as definite and distinct a contract as the original writings. And this is clearly the basis of the sales to Newby, for no sales or shipments were made until the things above enumerated were done and agreed to by appellant.

The statute upon which this defense is based reads, in part:

“A trust is a combination of capital, shill or acts by two or more persons, firms, corporations or associations of persons * ⅜ * for * ⅜ ⅜ the following purposes: (1) To create, or which may tend to create or carry out restrictions in trade or commerce or aids to commerce * ⅜ * or to create or carry out restrictions in the free pursuit of any business authorized or permitted by the laws of this state.” Contracts and agreements violative of this act are void.

That the acts of these parties constituted a combination to restrain the free pursuit of the business of selling' products after they had become the property of Newby there there can be no question, and, being such, are violative of the statute quoted; are therefore void.

It is therefore the order of this court that the judgment of the trial court be reversed, and judgment is here rendered for appellants.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    WHISENANT et al. v. SHORES-MUELLER CO.
    (No. 710.)
    (Court of Civil Appeals of Texas. El Paso.
    May 10, 1917.
    Rehearing Denied May 24, 1917.)
    1. COMMERCE <®^>40'(1) — RESTRAINT OE TBADE —Monopolies—Sale oe Goods.
    A sales agreement that the buyer should sell the goods only within a certain territory and engage in no other business violates the Anti-Trust Law (Acts 28th Leg. c. 94), although the sale and delivery of the goods involved transportation in interstate commerce.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 29, 30.]
    •2. Monopolies <g^21 — Contracts—Legality oe Object — Restraint oe Trade.
    Where a buyer, after a sales contract was signed, but before the goods were shipped, impliedly agreed not to sell outside a certain territory and to devote all his time to the business, such agreement rendered the sale void under Anti-Trust Law, and precludes recovery of the purchase price.
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 15.]
    Appeal from Comanche County Court; J. H. McMillan, Judge.
    Action by the Shores-Mueller Company .against J. H. Whisenant and others. Judgment for plaintiff, and defendants appeal.
    Reversed and rendered.
    H. N. Goodson, of Comanche, for appellants. Smith & Palmer, of Comanche, for appellee.
   Statement of Case.

HIGGINS, J.

This suit was instituted by appellee against J. H. Whisenant as principal debtor, and T. J. Hanson and A. N. Steele as guarantors, to recover a balance of $394.06 due on open account for goods sold and delivered to Whisenant. It was alleged that the goods were furnished Whis-. enant under a written contract which reads:

“Whereas, J. H. Whisenant of Comanche, Texas, hereinafter called the salesman, desires to engage in the business of selling the extracts, spices, toilet goods, household medicines, veterinary remedies, and other goods, manufactured or sold by Shores-Mueller Company, a corporation organized under the laws of Iowa, hereinafter called the company, to consumers, and desires to purchase the same from the company at wholesale prices and to pay therefor in installments :
“Therefore, unless prevented by strikes, fires, accidents or causes beyond its control, the company agrees to sell and deliver to the salesman f. o. b. cars at Cedar Rapids, Iowa, such reasonable quantities of the said extracts, spices, toilet goods, household medicines, veterinary remedies, and other goods as the salesman may order from time to time, and charge- the same to his account at current wholesale prices; also to notify the salesman promptly of any change in wholesale prices.
“The salesman agrees to pay his said account to the company at its office at Cedar Rapids, Iowa, as charged at said wholesale prices, which prices shall be conclusive both as between the parties hereto, and as to the guarantors whose guarantee is a part of this agreement. The salesman agrees and shall have the right to pay his said account by remitting in cash each week to the company, an amount equal to one-half the receipts from his business until his account is balanced, and as evidence of good faith he shall make to the company weekly reports of his business; provided, however, if he pays his account in full on or before the 10th day of each month he-is to be allowed a discount of 10 per cent, from said wholesale prices, and shall be relieved from making weekly reports so long, and so long only, as he continues to pay his account on or before the 10th of each month, as aforesaid.
“The company further agrees to furnish free of charge, on board cars at factory, a reasonable amount of its advertising matter, report and order blanks, and printed return envelopes, for the salesman to use in conducting his business, also to give him free of charge, instructions and advice, through letters, bulletins and booklets which the company may have on hand from time to time as to the best method of selling its products to consumers.
“If for any reason the salesman wishes to discontinue the work at any time the company agrees to take back all goods in possession of the salesman at the time and give him credit for same at the prices originally charged, less freight, provided said goods are returned to the company in the same condition as when first shipped, otherwise a charge of not over twenty per cent, will be made for putting such goods into merchantable condition, and the balance due the company shall be paid the company at Cedar Rapids, Iowa, in cash, within a reasonable time.
“This contract is subject to acceptance at the home officé of the company and is to continue in force so long as the account of the salesman is satisfactory to the company, provided, however, that the salesman and his guarantors may be released from all liability under this contract at any time by paying in cash the balance due the company.
“Dated at Cedar Rapids, Iowa, August 31, 1012.
“Shores-Mueller Company,
“By G. A. Shores, President.
“X H. Whisenant.”

Hanson and Steele guaranteed the obligations of Whisenant under the contract. The amount sued for is the balance due by Whisenant for goods sold and delivered to him by appellee. The contract mentioned was accepted by appellee on November 30. 1912. Whisenant did not begin to sell goods under the same until after January 1, 1913. Prior to the time the contract was signed, Whisenant received several letters from ap-pellee relative to same and a book entitled “Convincing Proof,” also a pamphlet entitled “Read this booklet carefully. It explains how to get your contract signed so there will be no question but what it will be accepted.” After the contract was signed by Whisenant and accepted by appellee, Whis-enant received from appellee the wholesale and retail price lists of the products, and “Shores .Special Instruction Book No. 2.” The price list simply showed the wholesale and retail prices of the various articles.

On December 6, 1912, appellee wrote Whis-enant as follows:

“Glad to receive your order for goods Mr. Whisenant. They have gone to you by freight, and we hope they will arrive promptly. We will look for your photo as soon as you have it taken.
“Tour territory will be Comanche county, Texas. We think we wrote you about this when we accepted your contract.”

Findings of fact and conclusions of law were filed by the court as follows:

(1) I find' that the defendants .executed the contract sued on.
(2) I find that the defendant J. H. Whisenant, in his settlements with plaintiff, fell behind in the amount sued for, and that, in accordance with the terms of the contract sued on, all the defendants are liable to plaintiff for said sum.
(3) I find that if there were any parol agreements or agreements by correspondence, between plaintiff and defendant J. H. Whisenant before the execution of the contract sued on, the same were merged into said contract, and that the contract sued on was not changed or superseded to any subsequent contract, either oral or written.
(4) That the printed instructions or rules sent out by plaintiff to defendant J. H. Whisenant, after the execution of the contract sued on, did not amount to either a new contract or subsequent conditions ingrafted on the contract sued on, but amounted merely to advice in the conduct of his business.
(5) I find and conclude that there is no condition in the contract sued on and whereby it might be forfeited by reason of the failure of the defendant-J. H. Whisenant in following the printed rules or instructions of the plaintiff in regard to territory, prices, or the exclusive handling of plaintiff’s products, and that said contract was and is not in violation of the antitrust laws of this state.
I therefore conclude that plaintiff o.ught to recover the amount sued for.

Additional findings of fact were, filed by the court at request of defendant, from which we make the following condensed statement:

1. That Whisenant had not received or’ sold any goods under the written contract in Comanche county before he received the letter of December 6, 1912, assigning Comanche county his territory to him and before receipt of the instruction books and pamphlets above mentioned. That the contract was accepted by appellee on November 30, 1912.
2. That all goods ordered, received, and sold by Whisenant in Comanche county were ordered, received, and sold after the receipt of the letter of December 6th and after the receipt by Whisenant of the Shores Special Instruction' Book No. 2.
3. After the receipt of said, instruction book No. 2 and the letter of December 6th, Whisenant never sold or offered to sell any of the products in any territory other than Comanche county.
4. After the receipt of said instruction book No. 2, Whisenant, up to the time that the contract was terminated, never had or engaged in any other business except the sale of the products of plaintiff in Comanche county.
5. After the receipt! of) said instruction book No. 2, Whisenant devoted his time and attention exclusively to selling the products-of appellee.
6. After the contract sued upon was signed and accepted by appellee, appellee furnished Whisenant retail price list above mentioned, at which prices therein listed Whis-enant was to sell the products of the appel-lee to consumers.
7. At no time or place did Whisenant ever sell or offer to sell to consumers any of said products except at the retail price list so furnished to him by appellee.
8. That said instruction book No. 2 instructed Whisenant that “our rules and instructions must be complied with,” and that “the products of the plaintiff should only be sold at the prices shown in retail price list,” and that “we positively never allow any salesman to canvass outside the territory we have assigned to him.”
9. .After the contract sued on had been accepted, appellee by a letter dated December 6, 1912, notified Whisenant that “your territory will be in Comanche county, Tex.”
10. Each and all of the above matters were expressly communicated to Whisenant by appellee before he received any goods from appellee or sold any of the goods and after the contract sued on had been executed.
11. After the matters were so communicated to Whisenant, he acquiesced in the same and complied with and observed each and all of them in the conduct of his business with appellee and with his customers in th» state of Texas.

In addition to the facts found by the trial. court, it appears, and we find, that the booh entitled “Convincing Proof” informed Whiser.ant that he “was expected to live up to the reasonable rules of our company”; that they “must protect our salesman in the territory they are working”; that he “was to indicate your choice of territory when you send in your application and we will give you the county you pick if we can do so.” The pamphlet entitled “Read this booklet carefully, etc.,” informed him:

“The essential features of our agreement are embraced in only a few words.
“Briefly speaking, you want to buy our goods; you want to know what you will have to pay for them; you want a good territory to sell them in and you want time to pay for the goods.
“We want to sell our goods to you; we have good vacant ten-itory where you can make sales, and we are willing to wait for our pay. We therefore make a written contract as follows:
“We agree to furnish you our products on credit at current wh'olesale prices, and to accept pay for them in installments; to furnish you free instruction in salesmanship; free advertising matter, report and order blanks. We also are to let you select your choice of territory, provided it is vacant to operate in.
“The above are the obligations we assume in the contract. Now let’s see what your part is.
“You agree, on your part, to devote your time and attention exclusively to the business; to sell our products only ; to make installment payments on your account until it is balanced, and to furnish weekly reports of your business. You are also expected to comply with all other reasonable rules of our company.
“The above embraces the obligations you assume.”

By Instruction Book No. 2, he was informed:

“Never canvass outside of your own territory.
“We positively never allow any salesman to canvass outside of the territory we have assigned him. , You would not care to have any Shores man in an adjoining county sell your customers, and he would not allow you to do so in his. According to our contract we must protect all our men and we must insist that you stay strictly in the territory assigned. If you hear of any Shores man selling goods in your territory, let us hear from you at once, giving his name and address, and if possible all the information you have at hand, and we will at once write the salesman and insist that he discontinue this practice. You must, however, not sell goods in another Shores salesman’s territory, so there will be no reason for complaint.”

Opinion.

Under the decisions of our courts, it is well settled that an agreement which would obligate Whisenant to sell no products except those of appellee, and which required him, after receiving the products in Texas, to sell the same at the prices fixed by appellee, would be in restraint of trade within the meaning of the Texas Anti-Trust Law (Acts 28th Leg. c. 94); Segal v. McCall Co. (Sup.) 184 S. W. 188; Armstrong v. Rawleigh Med. Co., 178 ,S. W. 5S2; Rawleigh Med. Co. v. Gunn, 186 S. W. 385; Rawleigh Med. Co. v. Fitzpatrick, 184 S. W. 549; Watkins Med. Co. v. Johnson, 162 S. W. 394; Rawleigh Med. Co. v. Mayberry, 193 S. W. 199. An'd the same authorities hold that the obnoxious features of the contract preclude a recovery of the purchase price, notwithstanding the interstate commerce nature of the transaction in so far as the sale and delivery of the goods was concerned. It would be profitless to discuss this feature of such a transaction as the authorities cited definitely settle the question.

So it remains to be determined whether there was a contract between the parties containing the features1 indicated. No such provisions are embraced within the written contract which was executed by the parties dated August 31, 1912; but the literature sent by appellee to Whisenant before and after the consummation of such contract imposed the condition that Whisenant should devote his time and attention exclusively to selling the products of appellee. This necessarily would preclude him from selling any other products. And the further condition was imposed that the products should he sold at the retail price list furnished by ap-pellee. These conditions were impliedly assented to by Whisenant, and thus created a contract to abide by and observe such conditions. Such contract related to matters collateral to the obligations assumed by the respective parties in the writing of August 31st. It did not in any wise alter, vary, or contradict the latter contract, but was entirely consistent therewith. It therefore follows that in order to ascertain the complete contract between the parties, under which the sale was afterwards made, we must look, not only to the writing of August 31st, but also to the conditions imposed in the printed literature sent by appellee to Whisenant and by the latter assented to and observed. Coverdill v. Seymour, 94 Tex. 1, 57 S. W. 37; Henry v. McCardell, 15 Tex. Civ. App. 497, 40 S. W. 172; Womack V. Wamble, 27 S. W. 154; Rubrecht v. Powers, 1 Tex. Civ. App. 282, 21 S. W. 318; Peel v. Giesen, 21 Tex. Civ. App. 334, 51 S. W. 44; Davis v. Sisk, 49 Tex. Civ. App. 193,108 S. W. 472; Downey v. Hatter, 48 S. W. 32; Blair v. Slosson, 27 Tex. Ciy. App. 403, 66 S. W. 112; Preston v. Breedlove, 36 Tex. 96; Thomas v. Hammond, 47 Tex. 42; Hansen v. Yturria, 48 S. W. 795; Pishkos v. Wortek (App.) 18 S. W. 788; Ackerman v. Bundren, 1 White & W. Civ. Cas. Ct. App. § 1306. The goods were not ordered by Whisenant and were not shipped until the writing of August 31st had been signed by both of the parties and the conditions imposed in the printed literature had been acquiesced in by Whisenant. The contract of sale out of which this action arises was thus finally consummated under the writing and imposed conditions, which constituted the complete contract as theretofore agreed upon.

It thus follows that the sale was made under a contract violative of our Anti-Trust Law, and no recovery can ]?e had for the purchase price.

In all of its material aspects, the case is in line with Newby v. W. T. Rawleigh Co., 194 S. W. 1173, recently decided by this court, not yet officially reported, in which thq same conclusion was reached.

Appellee contends that the conditions in the printed literature to which we have adverted were mere suggestions in the nature of advice, were not binding on Whisenant, and constituted no part of the contract under which the goods were sold. We do not construe same as being mere suggestions, but regard them as conditions plainly imposed as a condition of the subsequent sale, and, when expressly or impliedly assented to by Whisenant, consummated a contract between the parties.

Reversed and rendered.
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text:
    GERMAN-AMERICAN INS. CO. v. SHADDIX.
    (No. 1784.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 19, 1917.
    Rehearing Denied May 3, 1917.)
    Insubance <§=>66S(4) — Tbial—Questions bob Jtjby.
    In an action on fire insurance policy, where defendant pleaded unauthorized vacancy of the premises, and the evidence conclusively showed that premises were vacant from February 1st until about March 10th and that the company issued a permit authorizing vacancy from February 10th to noon of March 10th, and where it appeared that a fire occurred March 25th, two days after the house was left unoccupied by a tenant, the court properly refused to submit to the jury the question whether or not the building had become vacant for full 10 days before the fire and whether or not such lack of occupancy was waived by the insurance cbmpany.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1735,1736,1737-1740, 1758-1760.]
    Error from District Court, Bowie County; H. F. O’Neal, Judge.
    Action by G. A. Shaddix against the German-American Insurance Company. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Plaintiff in error issued and delivered to defendant in error its policy of fire insurance in the sum of $800 for a term of three years, beginning March 7, 1914. The insured dwelling was burned and damaged by fire on March 25, 1915. The action is upon the policy of insurance to recover the amount of loss. The plaintiff in error, besides denial, pleaded in avoidance a stipulation in the policy material to the risk, reading:
    “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.”
    Defendant in error replied by supplemental petition that the insurance company waived any vacancy of the house prior to February 10, 1915, by issuing, with knowledge of the prior vacancy, a vacancy permit for a period between February 10 and March 10, 1915. ■The two special issues submitted to the jury, and upon which they made findings, pertain to the cause of the fire and the amount of the damage or loss to the building.
    The evidence shows that the dwelling covered by the insurance policy became vacant on the 1st day of February, 1915, and so remained until about the 10th day of March following. Defendant in error testified, and his testimony was not contradicted, that about the 7th of February, before the house had been vacant for 10 days, he notified the insurance company’s agency at Texarkana that it was unoccupied. The vacancy permit asked for was issued by the said agency on-February 10, 1915, reading as follows:
    “Permission is hereby given that the premises herein described may remain vacant or unoccupied from the 10th day of February, 1915, to the 10th day of March, 1915, at noon.
    “And in consideration of 'the increased hazard by reason of such nonoccupancy, it is hereby understood and agreed that during such nonoccu-pancy one-third of the amount of the insurance hereunder upon above-named premises shall be and remain suspended and of no effect, and in case of loss while vacant or unoccupied this company shall not be liable to pay or make good to the assured exceeding two-thirds of the amount insured on said premises during such vacancy or nonoccupancy.”
    Mr. Gilley moved out of the house on the 1st of February, and Mr. Ford, the new tenant, moved in about the 10th of March and occupied it almost two weeks, or until -March 28d. The fire occurred March 25, 1915, two. days after Mr. Ford’s tenancy expired, and while the house, was unoccupied.
    Thompson, Knight, Baker & Harris and Will O. Thompson, all of Dallas, for plaintiff in error. Mahaffey, Keeney & Dalby, of Texarkana, for defendant in error.
   LEVY, J.

(after stating the facts as above). The defendant in error made request, and the court refused it, to submit to the jury for finding the question of whether or not the building had become vacant or unoccupied for full 10 days before the fire, and whether or not such lack of occupancy was waived by the insurance company. The evidence so conclusively shows that the house was vacant during all the time from February 1, 1915, until about March 10, 1915, that it is believed the court was fully warranted in not requiring the jury to find such established fact. But there is a vacancy permit in evidence, purporting to be issued by the insurance company through its agents, authorizing vacancy or nonoccupancy of the building from February 10, 1915, to noon of March 10, 1915. And it is not suggested by the evidence that the instrument as such was not genuinely executed by the agents of the insurance company, nor that the recitals on its face are incorrectly stated in point of fact. And the instrument was introduced in evidence without objection thereto. The instrument would therefore be sufficient of itself to show that the house was vacant with the written, consent of the insurance company from February 10, 1915, and could continue vacant and unoccupied until noon of March 10, 1915.

In this state of the evidence, it is concluded that reversible error may not be predicated upon the ruling of the court as complained of.
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