author: PLEASANTS, C. J.

text:
    WESTERN UNION TELEGRAPH CO. v. CITY OF HOUSTON.
    (No. 7276.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 4, 1917.
    Rehearing Denied Feb. 1, 1917.)
    1. Commerce <®=»73 — Taxation on Franchise oe Telegraph Company — “Property.”
    A franchise granted 'by a municipality to a telegraph company to use its streets for the erection of its lines is a species of -property taxable as such, and, though the telegraph company was engaged in interstate commerce, imposition of taxes on such franchise is not improper as bur-, dening interstate commerce.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 124-134.
    For other definitions, see Words and Phrases, First and Second Series, Property.]
    2.’ Licenses- <@=>1 — “License Tax” — Nature op Tax on Corporate Franchise — “Property Tax.”
    A tax imposed upon the value of the franchise in the public streets and grounds of a city in which a telegraph company had placed its poles and wires must be construed a property tax, and not a “license tax” upon the right of the company to do business in the city.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. § 1.
    For other definitions, see Words and Phrases, First and Second Series, License Tax; Property Tax.]
    3. Taxation — Power op State — Franchise op Telegraph Company.
    Act Cong. July 24, 1866, c. 230, 14 Stat. 221 (U. S. Comp. St. 1913, §§ 10072-10077), entitled “An -act to aid in the construction of telegraph lines, and to secure to the government the' use of the same for postal, military, and other purposes, authorized telegraph- companies to establish their .lines over and along any of the_ military or post roads of the United States which have been', or may hereafter be, declared by law. The streets of a city along which a telegraph company laid its lines were post roads. The municipality granted the telegraph company a franchise, and thereafter attempted to tax the franchise. Held that-the act of Congress did not authorize the telegraph company to occupy the streets of the city, without obeying reasonable regulations imposed, but merely forbade the municipality from denying such right to the telegraph companies subject to the imposition of such regulations, and so the impbsition of a tax on the franchise was not improper as imposing -a tax on a privilege granted by the federal government.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 21.]
    Appeal from District Court, Harris County; Wm. Master son, Judge.
    Action by the City of Houston against the Western Union Telegraph Company. From a judgment for plaintiff, defendant. appeals.
    Affirmed.
    N. L. Lindsley, of Dallas, and E. G. Senter, of Waco, for appellant. J. C. Hutcheson, Jr., of Houston, for appellee. • - •
   PLEASANTS, C. J.

This suit was brought by the city of Houston against the Western Union Telegraph Company to collect taxes levied by the plaintiff against the defendant for the years 1912 and 1913, upon what was designated by entry upon the tax rolls of the city as “franchise in the public streets and grounds of the city of Houston,” which are valued at $15,000 for 1912 and at $18,000 for 1913. The defendant pleaded that it is incorporated under the laws of New York; that it had rendered its properties for taxation to the plaintiff for the years 1912 and 1913, and had paid it the taxes due thereon for said years; that it transacted no business wholly within the confines of the corporate limits of the plaintiff; that all messages handled by it either came from outside of said city for delivery therein, or went from said city to places outside the city; that it constructed its telegraph lines into Houston pursuant to the provisions of the act of the Legislature of Texas approved April 23, 1874 (Acts 14th Leg. c. 97), relating to telegraph lines; that on the 8th day of June, 1867, it accepted the provisions of the act of Congress of July 24, 1866, relating to the construction of telegraph lines, and built its lines in accordance therewith, and thereby became an instrument of interstate commerce; that by reason of acceptance of the provisions of said act, defendant was entitled to construct its lines over and upon the streets of plaintiff, which are post roads in accordance with federal statutes; that during the years 1912 and 1913 defendant transmitted messages for the government of the United States into Houston, and from points in other states and territories into said city, and from said city to other points in Texas, and in other states and territories; that said levies are void, in that they are in violation of section 1 of the Fourteenth Amendment to the Constitution of the United States; that said levies are a burden upon interstate commerce and in contravention of subdivision 3, § 8, art. 1, of the Constitution of the United States; that they are void and contrary to subdivision 7, § 8, art. 1, of the Constitution of the United States; that said levies are in violation of subdivision 18, § 8, art. 1, of the Constitution of the United States; and that said levies are in violation of the Constitution and laws of the state of Texas. Plaintiff by supplemental petition alleged that the levies in controversy were made on the value of franchises and rights enjoyed by the defendant by reason of franchise grants made by the plaintiff. The cause was tried without a jury and upon an agreed statement of facts, and the trial resulted in a judgment in favor of plaintiff.

The agreed statement of facts shows that the defendant, Western Union Telegraph Company, is incorporated under the laws of the state of New York, and its business is the transmission of telegraph messages by wire for the public. On the 8th day of June, 1867, said company duly accepted the conditions, requirements, and burdens of the act of Congress of the United States passed July 24, 1866 (chapter 230, 14 Stat. 221), entitled “An act to aid in the construction of telegraph lines, and to secure to the government the use of the same for postal, military, and other purposes,” said acceptance having been filed as required by law with the Postmaster General of the United States on June 8, 1867, as by that act provided.

During the years 1912 and 1913 said Western Union Telegraph Company, the defendant, maintained offices in Houston, Tex., and transacted a telegraph business therein, but handled no messages except such as either originated outside of said city and were delivered within its limits, or originated within its limits and were delivered outside said city. Much of its business consisted of messages transmitted to and from points outside of the state of Texas from and to said city of Houston.

The defendant company rendered for taxes for the years 1912 and 1913, and paid the taxes levied by said city upon its physical properties of all kinds therein situated. The value of the property so assessed, and upon 'Which said taxes were levied and paid, was for the year 1912, $21,849.23, 'and for the year 1913, $21,850. It did hot include the value of its city franchise in its rendition for either of said years. The tax authorities of the city added to the renditions made by the defendant for the year 1912, “Franchises on the public streets and grounds of the city of Houstpn valued at $15,000.00, rate $1.50, tax $225.00,” and for the year 1913, “Franchises in the public streets and grounds of the city of Houston, valued at $18,000.00, rate $1.85, tax, $333.00.” The defendant has never paid said additional taxes, and has always denied liability therefor.

Pursuant to the provisions of and rights and privileges conferred upon said telegraph company by its formal acceptance in 1867 of the act of Congress of the United States, approved July 24, 1866, and pursuant to the provisions of the act of the Legislature of the state of Texas relating to magnetic tele: graph lines, approved April 23, 1874, said telegraph company constructed, long prior to 1912, its telegraph lines into and through the said city of Houston, and over and along and under its streets and highways, and has ever since down to the present day maintained and operated its said telegraph lines on the said streets and highways, all such streets and highways being post 'roads or post routes of the United States.

The defendant company applied for and received from the city of Houston the following franchises, which it accepted and has continuously enjoyed since the respective grants thereof. The first franchise now in force was adopted in 1888, and was captioned as follows:

“An ordinance granting to the Western Union Telegraph Company the right to place and maintain its poles and lines in the streets, alleys and public ways of the city of Houston on the terms and conditions herein stated.”

The next ordinance granting franchises to that company was passed March 14, 1892, and was captioned as follows:

“An ordinance granting to the Western Union Telegraph Company the right to place and maintain its poles and.lines in the streets, alleys and public ways of the city of Houston on the terms and conditions herein stated.”

And the last ordinance, passed on July 15, 1907, is captioned as follows:

“An ordinance, granting to the Western Union Telegraph Company the right to construct and place its wires in an underground conduit under certain portions of certain streets in the city of Houston, Texas.”

Each of said ordinances granted to defendant the rights and privileges indicated in its caption. By section 11 of the ordinance last mentioned it is provided that the franchises thereby granted are for a period of 30 years. By section 12 it is provided:

“It is further expressly agreed that any lawful amounts which may become due the city of Houston under this ordinance, as well as any lawful taxes which may be imposed and become due and payable to the city of Houston, either upon the privileges granted by this ordinance or any property of the Western Union Telegraph Company, or its successors and assigns, situated in the city of Houston, shall be a lien and charge upon this franchise and all rights herein granted.”

By the final' paragraph of said agreed statement it is stipulated as follows:

“It is further agreed that all forms of law wore fully complied.with in making said assessment, and the amendments thereto, and said ' assessments are legal and valid, unless by reason ■ of the facts .set out..in, .the statement of, facts said company is not subject to pay taxes on its franchises.”

The only assignment of error presented in appellant’s brief assails the judgment on the ground that the undisputed and agreed facts show that appellee had no lawful authority to levy the tax for which the judgment was rendered. The several propositions submitted under the assignment are based upon the assumption that the tax is not one upon property owned by the defendant in the city of Houston, but a tax upon the defendant’s right to transact business, both state and interstate, and, said tax being upon both hinds of the business, is void under the Constitution and laws of the United States. Appel-lee concedes that:

“Since under the agreed statement of facts the Western Union Telegraph Company has qualified under the ‘Post Roads Act of 1866,’ the city of Houston can neither prevent its use of the streets, nor levy a tax in the way of a license or privilege tax upon its business done in the city of Houston.”

The controlling question in the case is therefore whether the tax is what it purports to be, an ad valorem tax upon property of the defendant in the city of Houston, or a mere license or franchise tax upon the right of the defendant to conduct its business in said city. Appellee’s counter proposition to all of appellant’s propositions is as follows:

“The federal Post Roads Acts of 1866 did not grant a franchise, but merely imposed a prohibition upon a state to refuse a franchise, and the granting of such franchise by state or municipality may have attached to it such reasonable conditions as a state or municipality may see fit to impose, and, when granted, becomes a property right of grantee, assignable and taxable as any other property,- and, it being admitted in this case that the city of Houston has assessed this franchise as other property for the purpose of' ad valorem taxation, judgment of the court below must be affirmed, since no federal question is involved, nor is there any basis for the claim that the city of Houston is taxing or in any manner interfering in interstate commerce or the operation of the federal statute of 1866.”

There can be no question that a franchise is property and taxable as such. In the case of Owensboro v. Telegraph Company, 230 U. S. 64, 33 Sup. Ct. 990, 57 L. Ed. 1389, the Supreme Court of the United States, speaking through Justice Lurton, says:

- “That an ordinance granting the right to place and maintain upon the streets of a city poles and wires of * * * a company is the granting of a property right has been too many times decided by this court to need more than a reference to some of the later cases” (citing Detroit v. Detroit Citizens’ Street Ry. Co., 184 U. S. 368, 22 Sup. Ct. 410, 46 L. Ed. 592; Louisville v. Cumberland Telegraph Company, 224 U. S. 649, 32 Sup. Ct. 572, 56 L. Ed. 934; Boise Artesian Water Co v. Boise City, 230 U. S. 84, 33 Sup. Ct. 997, 57 L. Ed. 1400).
“As a property right it is assignable, taxable, and alienable, and a principal basis for credit.”

In the Boise Artesian Water Co. v. Boise City, 230 U. S. 84, 33 Sup. Ct. 997, 57 L. Ed. 1400, the Supreme Court said:

“The right which is acquired under an ordinance granting the right to a water company to lay and. maintain its pipes in the streets is a substantial property right. It has all of the attributes of property. It is assignable and will pass under a mortgage sale of the property and franchises of the company which owned it.”

The right of a state or municipal government to tax franchises granted by it to a telegraph company that had also acquired the rights granted by the act of Congress before mentioned is upheld by the Supreme Court of California in the cases of Telegraph Co. v. Hopkins, 160 Cal. 106, 116 Pac. 558, and Telegraph Co. v. Los Angeles City, 160 Cal. 124, 116 Pac. 565.

The levy, by its terms, having been made upon the value of the franchise which was property and subject to taxation as such, the tax must be held to be a property tax and not a license or privilege tax upon the right of the defendant to conduct its business in the city of Houston.

It is further contended by appellant that if it be conceded that the franchises granted to it by the city of Houston are taxable, the assessment in question, having been made in general terms, covers also the franchise granted by the act of Congress of 1866, before mentioned, and, there being no separation of the value of the two franchises, the whole assessment falls. This contention cannot be sustained for the reason .that the act of Congress granted appellant no franchise in the streets of the city of Houston. The scope and purpose of the act of Congress is defined in an opinion of the Supreme Court of the United States in the case of Telegraph Co. v. City of Richmond, 224 U. S. 165, 32 Sup. Ct. 451, 56 L. Ed. 710. In that case the city of Richmond, as a condition of laying telegraph lines and poles upon the streets of the city, made certain requirements which the telegraph company deemed unreasonable, among the requirements being a charge of $2 for each pole, and $2 for each mile of underground work. Mr. Justice Holmes, in discussing the case, says:

“Appellant says that it has the right to occupy the streets of Richmond under the act of Congress, and therefore, although subject to reasonable regulation, it cannot be subjected to a discretion guided by no rules. Neither branch of this proposition, * * * commands our assent. * * * In view of what we have said, and the appellant’s admission that it is subject to- reasonable regulation, it would be unnecessary to consider its rights under the act of Congress, but for some further complaint that the appellant’s property is taken without due process of law. That complaint opens the question what property the appellant has. The act of Congress, of course, conveyed no title and did not attempt to found one by delegating the power [to the telegraph company] to take by eminent domain. Western Union Telegraph Co. v. Pennsylvania Railroad Company, 195 U. S. 540 [25 Sup. Ct. 133, 49 L. Ed. 312, 1 Ann. Cas. 517], -It made the erection of telegraph lines free to all submitting to its conditions, as against an attempt by a state to exclude them because they were foreign Corporations, or because of its wish to erect a monopoly of its own. Pensacola v. Western Union Telegraph Company, 96 U. S. 1 [24 L. Ed. 708]. It has been held to prevent a state from stopping the operation of lines within the act by injunction for failure to pay taxes. Western Union Telegraph Company v. Attorney General, 125 U. S. 530 [8 Sup. Ct. 961, 31 L. Ed. 790]. * * * Except in this negative sense the statute is only permissive, not a source of positive rights. The inability of the state to prohibit the appellant from getting a foothold within its territory, both because of the statute and of its carrying on of commerce among the states, gives the appellant no right to use the soil of the streets, even though post roads, as against private owners, or as against the city or state where it owns the land. * * * When the appellant, without the right to exercise the power of eminent domain, desires to occupy land belonging to others, prima facie it must submit to their demands.”

No question is raised as to the method by which the value of the franchise was determined, and if the equality or fairness of the assessment could be attacked in this proceeding, appellant has not sought to defeat the collection of the tax upon such grounds.

We think that the trial court was correct in holding that the tax was not unlawful upon any of the grounds presented by appellant. It follows that the judgment should be affirmed; and it has been so ordered.

Affirmed.
      ^u=>Eor other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: ELY, C. J.

license: Public Domain

text:
    COLGROVE v. FALFURRIAS STATE BANK et al.
    (No. 5793.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 14, 1917.)
    1. Fraudulent Conveyances @=>299(1) — Evidence — Sufficiency.
    Evidence held to justify a finding that the maker of a note conveyed all his land in Texas and Nebraska to hinder, delay, and defraud creditors.
    [Ed. Note. — Eor other cases, see Fraudulent Conveyances, Cent. Dig. § 876.]
    2. Appeal and Error @=>965 — Review—Discretion of Court — Change of Venue.
    As a change of venue is in the discretion of the trial court, and it must be made to appear that the court has abused its discretion before its action will be set aside, an order refusing an application to change the venue will not be disturbed, in the absence of the evidence on which it was based.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3836.]
    3. Trial @=>214 — Instructions —Question of Law.
    In a suit to set aside a conveyance of land as fraudulent, an instruction that, if the property was the homestead of the grantor at the time the conveyance was made, it could not have been a fraudulent conveyance, was a proposition of law, which was not essential to aid the jury in answering issues of fact, and hence was properly refused.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 480.]
    4. Evidence <3=»591 — Documentary Evidence.
    In a suit to set aside a conveyance of land as fraudulent, where plaintiff introduced the deed in evidence to show that it had its inception in fraud, he was not bound by any of its recitals.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2440-2443.]
    5. Evidence @=419(2) — Parol Evidence Affecting Writing — Consideration of Deed.
    The consideration recited in a deed may always be attacked, no matter by whom introduced in evidence.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. § 1912.]
    6. Fraudulent Conveyances @=3271% — Homestead — Evidence—Burden of Proof.
    In a suit to set aside a conveyance of land as fraudulent, that the property was a homestead was a defense, which rested with defendant to sustain, and the only burden that rested on plaintiffs, if the homestead character was established, was to show that there had been an abandonment of the homestead.
    7. Trial @=>214r — Instructions—Matters of Law.
    A special charge, which merely stated the law which would follow the finding of certain facts submitted to the jury, and which would not have aided the jury in answering the proper issues, .was properly refused.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 480.]
    8. Appeal and Error @=51032(1) — Record— Burden to _$how Prejudice.
    Where assignments of error complain of the action of the court in not excluding jurors, thereby compelling appellant to challenge them, appellant must show that he exhausted his challenges, or was in some way injured by being compelled to exhaust his peremptory challenges.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4047, 4051.]
    9. Appeal and Error @=>742(2) — Assignments of Error — Propositions.
    Assignments of error, which, although seeking to raise different points made in the motion for new trial, are grouped, and are followed by five propositions on different subjects, some of them vague and very abstract, should not be considered.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000.]
    Appeal from District Court, Brooks County ; V. W. Taylor, Judge.
    Consolidated actions by the -Ealfurrias State Bank and by the Ealfurrias Mercantile Company against James F. Colgrove and others. From judgments for plaintiffs, defendant Elmer L. Colgrove appeals.
    Affirmed.
    W. R. 'Perkins, of Alice, and J. E. Leslie, of Edinburg, for appellant. Jno. C. North, of Ealfurrias, for appellees.
   ELY, C. J.

The Palfurrias State Bank instituted suit against James F. Colgrove, John A. With, and appellant, Elmer L. Col-grove, to recover on a promissory note for $795, executed to it by James E. Colgrove and John A. With. It was alleged that when said note was executed the said James F. Colgrove owned certain real estate in the state of Nebraska and in Duval county, Tex.; that he had conveyed all of said land, after executing the note; that the land in Duval county was conveyed to appellant, the consideration in the deed being recited to be $4,000 cash; that the conveyances were made to hinder, and delay the creditors of the said James F. Colgrove, and that no consideration was paid by appellant for the Duval county land, and that the conveyance was fraudulent and void. The hank prayed for judgment for its debt; that the conveyance to appellant be set aside; that the attachment obtained by the bank be foreclosed, and the land ordered sold to satisfy the debt. Afterward suit was instituted by the Falfur-rias Mercantile Company against the same parties on a note for $1,076.78; it levied an attachment on the land, and prayed for the same relief as had been sought by the Fal-furrias State Bank. The causes were consolidated and tried as one suit. The court instructed a verdict for each of the plaintiffs on its promissory note, and all questions as to the fraudulent conveyance were submitted as special issues to the jury, and upon the answers thereto judgment was rendered, declaring the conveyance fraudulent, and the attachment liens were foreclosed on the land.

The evidence justifies a finding that James F. Colgrove conveyed all of the real estate he had in Texas and Nebraska to his sons for the purpose of defrauding his creditors. The evidence tends to show that appellant had no money and that he paid no consideration for the Duval county land. One of the payments that he claimed to have made to his father was drawn through a, check by his father, and another payment claimed was borrowed, and a note given by his father. The jury was justified in finding that the sale of the lands was made to hinder, delay, and defraud appellees.

The first assignment of error assails the action of the court in refusing an application to change the venue. The bill of exceptions upon which the assignment of error is based contains no statement of the facts shown on the hearing of the application, and the testimony thereon is not preserved in any other manner in the record, and this court has no way in which to test the correctness of the order of the court. The application for change of venue was contested in the statutory manner, and the court recites that the evidence was heard and that the facts were with the contestants. It will, in the absence of the facts, be presumed that the court was justified in refusing the change of venue. Change of venue is in the wide discretion of the trial court, and it must be made to appear that the court has abused its discretion before its action will be set aside. The order on an application to change the venue will not be disturbed, in the absence of the evidence on which it was based. Williams v. Bank, 44 S. W. 617. The facts should be set out in the bill of exceptions. Rule 55, District and County Courts (142 S. W. xxi); American Warehouse Co. v. Ray, 150 S. W. 763; Levy v. Lupton, 156 S. W. 362.

The court defined a homestead in the country, informed the jury as to what in law constituted an abandonment of the homestead, as bearing upon the testimony as to James F. Colgrove leaving the Texas land, where he had lived some time previous to his conveyance to appellant, and then submitted the issue to the jury as to whether the land was the homestead of James F. Col-grove, and as to whether James F. Colgrove, at .the time of execution of the deed, had abandoned the homestead with the intention not to return and reoccupy it. Then, at the request of appellant, the court further instructed the jury that, when property has once been invested with the homestead character, the same will be retained until the family leaves it with the intention never to return. The court also submitted this issue:

“Had the defendant James Colgrove abandoned the said property in Duval county, Tex., as a homestead, if same was a homestead, at the time of the execution of the deed by him to Elmer L. Colgrove?”

This statement is made in view of the complaint, through the second assignment of error, that the court refused to charge the jury, as requested by appellant,- that if the property was the homestead of James F. Col-grove at the time the conveyance was made it could not have been a fraudulent conveyance. The assignment is overruled. The proposition contained in the requested charge was one of law, with which the jury had no concern, and had no bearing on the issues of fact upon which the jury was to pass. The jury not only found that the homestead character had never attached to the property, but it was abandoned with the intention never to return, and it then became the duty of the court to apply the law as to the effect of a conveyance of the property under such circumstances. No questions of law are to be submitted to the jury; the only law given, in cases of submission of special issues, is that which is essential to aid the jury in properly answering the issues of fact.

Appellant sought an instruction to the effect that when a party introduces documentary evidence he is bound by the recitals therein, with a view to binding appellees by the recital as to a consideration of $4,000 in the deed from James F. Colgrove to appellant, which appellees had introduced in evidence. The rule sought to be invoked would not apply where a party introduces an instrument for the purpose of assailing it. Appellees had described the deed in their pleading and denounced it as fraudulent, and they did not adopt its recitals as true by placing it in evidence. It was introduced for the purpose of attacking it, and that alone. The authorities cited by appellant have no applicability to the facts of this ease. A party may introduce in evidence any instrument in writing, and then show that it had its inception in fraud. Elliott, Ev. § 987. The consideration recited in a deed may always be attacked, no matter by whom introduced in evidence.

The fourth assignment of error is overruled. The court instructed the jury that the burden of proving that the land was not a homestead when it was conveyed to appellant was on appellees, and the court properly refused a special charge embodying the same proposition. If there was an error in fixing the burden of proof, it was in reference1 to appellees, and not appellant. That the property was a homestead was a defense, and it rested with appellant to sustain that defense, and the only burden that rested on appellees, if the homestead character was established, was to show that there had been an abandonment of the homestead.

The court properly refused to give the special charge, the rejection of which is complained of in the fifth assignment of error. It merely stated the law which would follow the finding of certain facts submitted to the jury. The charge would not have aided the jury in answering the proper issues, and the court did not err in refusing it.

The sixth and seventh assignments of error complain of the action of the court in not excusing two jurors, thereby compelling appellant to challenge them. There is no statement that appellant exhausted his challenges, or was in any way injured by being compelled to exhaust his peremptory challenges. No bill of exception was reserved to the action of the court as to the juror named in the seventh assignment, and the bill of exception as to the juror named in the sixth assignment fails to indicate that any injury resulted to appellant. Railway v. Steele, 50 Tex. Civ. App. 634, 110 S. W. 171, and authorities cited therein.

The eighth, ninth, tenth, eleventh, twelfth, thirteenth, and fourteenth assignments of error, although seeking to raise different points made in the motion for new trial, are grouped, and are followed by five propositions on different subjects, some of them vague and very abstract. They are followed by several pages of evidence. They should not be considered, hut, if they were, they would be overruled under our conclusions as to the facts.

The evidence tends to show that the land was not paid for when abandoned by James E. Colgrove, and that he, after the abandonment of the property, sought to cover it up by. conveying it to his son, the appellant, who had nothing, and paid nothing to his father for the land. The whole transaction was tainted with fraud, and the court properly set aside the conveyance and made the land subject to debts, the validity of which are not denied. James E. Colgrove disposed of all his real estate in Nebraska and Texas, and very singularly conveyed it all to his two sons, just after he had left Texas and his debts behind. Appellant claimed that the land in -Texas was his portion of his father’s estate, and yet that he paid his father $4,000 for it, which from his showing was an erro-. neous price, as he stated he did not think “it is worth much more than what is against it.” Nothing was shown against it, except the debts to appellees, amounting to about $2,-000. It seems that $2,000 of the money he claimed to have paid his father was borrowed on a note given by the father alone in Nebraska and secured by a mortgage on land in that state. Appellant also stated that his father gave him land in Nebraska about the time he executed the deed to him to land in Texas. The deed to the land in Texas was executed on June 26, 1912, at least three months after James E. Colgrove had left Texas, and the deed to appellant for the Nebraska land and the mortgage to Julia A. Hook were executed on April 1, 1932. The mortgage, according to the testimony of appellant, was given by his parents to raise $2,000, which their son was to pay them for their home in Texas. The father still owes the $2,000, which he borrowed to pay himself for the Texas land. Under such a state of facts, can it be astonishing that the jury found that appellant paid nothing for the land and that the transaction was fraudulent? The evidence was sufficient to sustain the findings of the jury.

The judgment is affirmed.
      <Ex=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    HOLTZCLAW v. MOORE.
    (No. 5733.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 14, 1917.)
    1. Landlord and Tenant <&wkey;190(l) — Tenant’s Eviction by Landlord’s Breach — Aseeement by Tenant to Pay foe Repairs.
    If a tenant, renting for a certain term and agreeing to pay for certain repairs to be made, after the repairs are made is compelled to remove because of landlord’s wrongful breach of the rental contract, this does not entitle the landlord to apply upon such repairs the rent already paid.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 765, 767-769.]
    2. Trial <&wkey;139 (1) — Directing Verdict. Whenever there is a question of fact for the
    jury, no matter how slight the evidence in support of such issue may be, the court should not instruct a verdict for either party, but should leave the issue to the jury for their determination ; it being the province of the jury, and not the court, to determine it.
    [Ed. Note. — Eor other eases, see Trial, Cent. Dig. §§ 332, 333, 338-341.]
    Appeal from Milam County Court; John Watson, Judge.
    Action by George T. Moore against E. T. Holtzelaw. From judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    M. G. Cox and Morrison & Lewis, all of Cameron, for appellant. Chambers & Wallace, of Cameron, for appellee.
   RICE, J.

This suit was brought in the justice’s court by appellee against appellant to recover a balance of $128 claimed to be due as rent for a store building in Cameron, praying for distress warrant, which was issued and levied on certain goods of appellant, which were thereafter replevied by him.

Trial resulted in a judgment in favor of ap-pellee against appellant and the sureties on his replevy bond for the sum of $36.65, from which an appeal was taken to the county court, in which court appellant, after a general demurrer and general denial, set up a cross-action wherein he claimed $199 as damages against appellee for breach of the rental contract, álleging that he rented this building from appellee to be used as a saloon, under the distinct understanding that the latter should open and permit to be kept open the back door of the building during the term of the lease, and that appellee breached this contract, and the door was wrongfully closed with his acquiescence and consent, and remained closed over appellant’s protest during his entire occupancy of the building, appellant alleging that but for this agreement he would not have rented the building; that the back door trade was valuable to the saloon business, and that he lost profits by reason of its being closed; that it was the only means of access to the closets in the rear, and was necessary for the ventilation of the building; that on account of appellee’s failure to keep the door open he was compelled to remove from the building, by reason of all which he was damaged to the extent claimed by him; that he only occupied the building for 2% months, the rent for which he had paid — praying for judgment against appellee for the amount of his damages.

Appellee in reply claimed that appellant agreed to take the building for the balance of the term for which it was rented to one Joe Rice, and agreed to pay for certain repairs to be made thereon; that he removed from the building after the repairs had been made, for which appellee had paid the sum of $62.90; that by reason of the breach of his contract appellee was entitled to recover' said amount, which should be deducted from the amount of the rent paid by appellant, leaving due the balance as sued for.

After the issues of fact had been settled, and before the commencement of the trial, appellant, under district and county court rule 31 (142 S. W. xx), for the purpose of obtaining the privilege of opening and concluding, admitted that appellee had a good cause of action, as set forth in his pleading, except so far as it might be defeated in whole or in part by the facts stated in appellant’s answer constituting a good defense, which might be established on the trial.

Upon the conclusion of the evidence ap-pellee moved, the court to peremptorily instruct the jury to return a verdict in his behalf for the amount sued for, which was done, and judgment entered accordingly for appellee against appellant and the sureties on his replevy bond for the amount sued for; and this is the chief ground of complaint on the part of appellant in several assignments of error.

This instruction seems to have been given upon the idea that there was no issue of fact to be determined by the jury, as set forth in appellee’s motion therefor. In this, however, appellee is mistaken. There was evidence on the part of appellant going to establish the facts set forth in his cross-action, which, if true, would have entitled him to a verdict. Besides, there is testimony on the part of appellant denying any agreement on his part to reimburse appellee for the repairs made tó the building. If, however, there had been such agreement on his part, and he was compelled to remove therefrom on account of appellee’s wrongful breach of the rental contract, still this would not have entitled appellee to apply the rent to be paid upon such repairs. The rule is well .settled ini this) state that, wherever there is a question of fact to be determined by the jury, the court should not instruct a verdict in behalf of either party, but should leave the issue to the jury for their determination. No matter how slight the evidence may be in support of an issue, still it is the province of the jury, and not the court, to determine same. See Heatherly v. Little, 40 S. W. 445; Ward v. Powell, 127 S. W. 851; Eastham v. Hunter, 98 Tex. 580, 86 S. W. 323; Gray v. Fussell, 48 Tex. Civ. App. 261, 106 S. W. 454; Bowman v. Texas Brewing Co., 17 Tex. Civ. App. 446, 43 S. W. 808.

Believing that the court erred in peremptorily instructing a verdict in behalf of ap-pellee, the judgment is reversed, and the cause remanded for a new trial not inconsistent with the views expressed in this opinion.

Reversed and remanded.
      ©ssFor other oases see-same topic and KB'S-NUMBER in'all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    ROBERTSON v. BALKAM.
    (No. 5781.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 14, 1917.)
    1. Appeal and Error c&wkey; 1091(3) — Intermediate Courts — Jubisdiotion.
    A justice court is a domestic court of general jurisdiction, and it will be presumed that it had power to make the judgment rendered by it until the contrary is shown by the record; therefore a judgment of a justice, in an action on a note for $79, and to foreclose a lien on household furniture, cannot, though the justice’s record did not show the value of the furniture, be attacked on the ground that the value of the furniture was not within the jurisdiction • of ,the justice court.
    [Ed. Npte. — For other cases, see Appeal and Error, Cent. Dig. §§ 4304^4306.]
    2. Appeal and Eebob <&wkey;1091(3) — Intermediate Courts — Jurisdiction.
    A judgment of a justice foreclosing, in an action on a note, a lien on furniture, cannot be attacked on the ground that the value of the furniture was beyond the justice’s jurisdiction, where the record on appeal to the county court showed that its value was less than $150.
    [E'd. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4304^-4306.]
    3.Bills and Notes &wkey;>534 — Actions — Attorney’s Eees.
    Where a note provided for 10 per cent, attorney’s fees if not paid at maturity, and suit was instituted on the third day of grace, attorney’s fees were properly allowable where trial was not had until nearly two months thereafter; the error in prematurely filing the action having been cured.
    [Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. §§ 1946, 1947.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by Mrs.H. Balkam against J. PI. Robertson, begun in justice court and appealed to county court. Erom a judgment there for plaintiff, defendant appeals.
    Affirmed.
    Alex C. Bullitt, of San Antonio, for appellant. Wm. C. Church, of San Antonio, for appellee.
   SWEARINGEN, J.

The appellee, Mrs. H. Balkam, filed suit in the justice court against appellant, J. H. Robertson, on a promissory note for $79, together with 10 per cent, interest and 10 per cent, attorney’s fees, and to foreclose a lien on household furniture of the value of less than $150. The pleadings of appellee in the justice court were oral. Judgment was rendered against appellant for the amount, and foreclosure sued for. Appellant appealed to the county court, where judgment was again rendered against him.

Appellant assigns two errors for review by this court.

The first is that it does not appear of record that the valué of the mortgaged personal property was within the jurisdiction of the justice court. This is overruled, because a justice court is a domestic court of general jurisdiction, and the law will presume that it “had power to make the judgment rendered by it, unless the contrary is shown by the record.” Williams v. Ball, 52 Tex. 607, 36 Am. Rep. 730; Koehler v. Earl, 77 Tex. 191, 14 S. W. 28. The record of the proceedings in the justice court did not show that the value of the furniture was beyond the jurisdiction of the court. However, the record before us from the county court shows affirmatively that the value of the furniture was less than $150, of which the justice court had jurisdiction.

The second assignment complains of error because the judgment contained an attorney’s fee of 10 per cent, of the amount of the note. The point made is that the 10 per cent, was promised to be paid only in the event the note was not paid at maturity, and that the note had not matured when suit was filed because the payer had three days of grace, and suit was filed on the last one of the three days of grace. The record before. us shows that the third day of grace, upon which suit was filed, was October 18, 1915; that the cause was tried on an amended oral pleading December 17, 1915; and the cause of action, if prematurely filed, having in the meantime accrued, the objection was cured. Dalton v. Rainey, 75 Tex. 520, 13 S. W. 34.

Both assignments are overruled.

The judgment is affirmed.
      @=»For other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests ancj Indexes


author: HIGGINS, J.

text:
    RUSSEK v. WIND, EMS & CO.
    (No. 662.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 15, 1917.
    Rehearing Denied March 8, 1917.)
    1. Courts <&wkey;7 — Jurisdiction—“Transitory Action.”
    A German corporation’s cause of action against a resident of Mexico on an open account for goods, wares, and merchandise was transitory, and the courts of Texas had jurisdiction over the subject-matter of the litigation.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 14, 16, 22-31.
    For other definitions, see Words and Phrases, First and Second Series, Transitory Action.]
    2. Appearance <&wkey;19(4) — Jurisdiction Over Person.
    Jurisdiction over the person of defendant, a resident of Mexico, was acquired by his appearance before the court, in person and by attorneys, and his answering to the merits.
    [Ed. Note. — For other cases, see Appearance, Cent. Dig. § 82.]
    3. Corporations <&wkey;661(3) — Foreign Corporations — Maintenance oe Suit — Statute.
    Rev. St. 1911, art. 1318, providing that no foreign corporation can maintain any suit on a contract unless, when the contract was made, it had filed its articles of incorporation in the office of the secretary of state to procure its permit to do business, had no application to the case of a German corporation suing a resident of Mexico in the courts of Texas on an open account for goods sold defendant and shipped to him in Mexico from Berlin.
    [Ed. Neto. — For other cases, see Corporations, Cent. Dig. §§ 2539, 2542-2544, 2564.]
    4. Account, Action on <&wkey;6(3) — Pleading in Foreign Language — Translation.
    In a German corporation’s suit against a resident of Mexico on an open account, the account, in a foreign language, but accompanied by an English translation, was sufficient.
    [Ed. Note. — For other cases, see Account, Action on, Cent. Dig. § 10.]
    5. Pleading <&wkey;205(3)— General Demurrer —Itemization op Account.
    Insufficient itemization of an account does not subject a petition to general demurrer.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 499.]
    Appeal from El Paso County Court; Adrian Pool, Judge.
    Suit by Wind, Ems & Co., a corporation against Jacobo I. Russek. From a judgment for plaintiff, defendant appeals.
    Judgment affirmed.
    W. M. Coldwell, of El Paso, for appellant. R. M. Reed, of El Paso, for appellee.
   HIGGINS, J.

Wind, Ems & Co. brought this suit in the county court of El Paso county against Russek upon an open account ior goods, wares, and merchandise which it was alleged were sold to defendant and shipped to him at Santa Barbara, Mexico. An itemized list and prices of the items of the account was attached to the petition. This list was in a foreign language, but it was accompanied by an English translation. It was alleged that Wind, Etas & Co. was a corporation having its general place of business in the' city of Berlin, Germany, and that Russek resided in the city of Parral, Mexico.

The defendant appeared by attorneys and in person. He filed an answer consisting of general and special exceptions and a general denial. The exceptions were overruled. Upon trial the court found from the testimony of the defendant himself that the account was true and correct and rendered judgment against him for the amount thereof, less a credit of §50 ‘ to which it was admitted he was entitled. Prom this judgment Russek appeals, assigning as error the overruling of his general demurrer. He advances three propositions, viz.:

(1) The county court of El Paso county was without jurisdiction in the cause because the petition discloses that the parties were nonresidents and did not allege that either party was to be found in said county, or that either did business in Texas, or that Russek had any property therein.

(2) That the demurrer should have been sustained because it is averred the plaintiff was a foreign corporation, and there is no allegation that it had filed its articles of incorporation with the secretary of state 'and obtained a permit! to do business in Texas, nor did it aver any facts which would remove the case from the operation of article 1318, R. S.

(3) The demurrer should have been sustained because the itemized account was in a foreign language and the law of this state requires all pleadings to be in the English language. Our conclusions are:

1. The cause of action was transitory, and the courtsi of this state had jurisdiction over the subject-matter of the litigation. Jurisdiction over the defendant’s person was acquired by his appearance in person and by attorneys and answering to the merits. York v. State, 73 Tex. 651, 11 S. W. 869.

2. The petition does not disclose that plaintiff was transacting or soliciting business in Texas. There is nothing to show that the cause of action was in any wise based Upon any transaction originating in Texas. The .fair inference from the facts alleged is that the goods were shipped from .Berlin, Germany. The petition sufficiently shows that article 1318, R. S., had-no application. Brin v. Wachusetts Shirt Co., 43 S. W. 295; King v. Monitor Drill Co., 42 Tex. Civ. App. 288, 92 S. W. 1046; Adams v. Hardware Co., 153 S. W. 650.

3. The account, being accompanied by an English translation, was sufficient. And if the account should be stricken out and entirely disregarded, the petition would be still .sufficient against a general demurrer. An insufficient itemization of an account does not subject a petition to general demurrer.

Affirmed.
      (gsjFor ether cases see same topic and-KKY-NÜMBER in all Key-Numbered Digests and Indexes


author: BOYCE, J.

text:
    TEXAS & N. O, RY. CO. v. PATTERSON & ROBERTS et al.
    (No. 1114.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 21, 1917.)
    1.- Carriers i&wkey;85 — Carriage oir Goods — -Notice of Arrival.
    A railway company in discharge of its duties under Rev. St. 1911, art. 712, to give notice of arrival of freight at destination, is hot bound to look for such person at any place other than that of destination.
    [E'd. Note. — For other cases, see- Carriers, Cent. Dig. §§ 316-321.) " ' ,
    2. Carriers <&wkey;140 — Carriage oe Goods— Notice oe Arrival — Sufficiency.
    . Where freight bill provided for notice of arrival to be given tola- designated party, notice to such party was sufficient, and' thereafter upon refusal to accept goods railroad company held property as warehouseman.'
    [Ed. Note. — For other cases,' see Carriers, Cent.. Dig. §§ 609, 609%, .611-616.)
    3. Trover and Conversion <&wkey;4 — Nature oe — “Conversion.” .
    “Conversion” is an act of malfeasance and not of mere nonfeasance, and any distinct act of dominion wrongfully exerted over property is a “conversion.”
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 25-37.
    For other definitions, see Words and Phrases, First and Second Series, .Conversion.)
    4.Carriers <&wkey;89 — Storage oe Goods Refused by Consignee.
    Where consignee refused shipment of maize, railway company was not required to store same at place of destination, but was justified in removing it to the most convenient and suitable storage provided it held itself ready to deliver on demand.
    [Ed. Note. — For other' cases, see Carriers, Cent. Dig. §§ 324-330.)
    5.Evidence <&wkey;591 — Sufficiency—Conolu-siveness on Party Introducing It.
    Where plaintiff introduced in evidence the defendant’s answer without limitation, and this was all the evidence offered on this phase of the case, plaintiffs were concluded thereby.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2440-2443.)
    6.Carriers <&wkey;89 — Carriage oe Goods— “Conversion” — Evidence.
    Where plaintiff’s shipment of maize was refused by consignee and railway company shipped to another place and stored it without plaintiff’s knowledge or consent, the railway company’s action held not “conversión.”
    [Ed. Note. — For other cases, see .Carriers, Cent. Dig. §§ 324-330.)
    7.Carriers &wkey;>94(4) — Conversion by^Damages.
    The measure of damages for conversion of goods by carrier" is the value of such goods at the destination less legal .transportation charges.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 388-395, 456.) ■ , .

      Appeal from Cottle County Court; W. 0. Jones, Judge.
    •’ Suit by Patterson & Roberts against the Texas & New Orleans Railway Company and otheis. Judgment for plaintiffs, and defendant named appeals.
    Reversed and remanded.
    D. B. Decker and J. A. Clarke, both of Quanah, and Baker, Botts, Parker •& Gar-wood, of Houston, for appellant. Bell & Bell and Hawkins & Sneed, all of Paducah, for appellees.
   BOYCE, J.

This suit was brought by the appellees Patterson and Roberts against Qua-nah, Acme & Pacific Railway Company, the Et. Worth & Denver City Railway Company, and Texas & New Orleans Railway Company, carriers, participating in the transportation of a ear of maize from Paducah, Tex., to Kleberg, in Dallas county, Tex., and also the Plano Grain & Hay Company, who had agreed to purchase said grain of the plaintiffs. It was alleged that the railway companies allowed said grain to become wet and damaged in the course of transportation, and that the Texas & New Orleans Railway Company thereafter converted the same, and the railway companies were sued for the value of said grain, and judgment was asked against the Plano Grain & Hay Company for the value thereof .in the event it should be found that said company wrongfully refused to accept said grain under its contract of purchase with the plaintiffs. The court found that said grain was converted by the defendant Texas & New Orleans Railway Company by its removal to Dallas, Tex., under the circumstances hereinafter set out, and entered judgment for the plaintiffs against said railway company alone and in favor of the other defendants.

Patterson and Roberts having made a contract with the Plano Grain & Hay Company for the sale of a car of maize delivered f. o. b. the car at Paducah, at $14 per ton, to be shipped to Kleberg, Tex., loaded the maize into a car at Paducah, on May 10, 1915, and the initial carrier, Quanah, Acme & Pacific Railway Company, issued and delivered to the said Patterson and Roberts a bill of lading which shovys that said car was “consigned to the order of Patterson & Roberts, destination Kleberg, state of Texas. Notify Plano Grain & Hay Company, at Kleberg.” The said bill of lading provided that, if the property was not removed by the party entitled to receive it within 48 hours after notice of its arrival had been duly sent, it might be kept in the car, depot, or place of delivery of the carrier, or warehouse, subject to a reasonable charge for storage, or might, at the option of the carrier, be moved to and stored at a public or licensed warehouse at the cost of the owner, etc.

• The said Patterson & Roberts attached the bill of lading to a draft on the Plano Grain & Hay Company for $304.50, the value of the maize loaded at $14 per ton. Payment of this draft was refused because it was claimed that the maize was in a damaged condition on arrival at Kleberg, and the draft and bill of lading were returned to Patterson & Roberts; the date of its return not being shown. The Texas & New Orleans Railway Company, the terminal carrier, some time after the arrival of the car at Kleberg, shipped it back to Dallas, and had the maize unloaded in Haughton’s warehouse at Dallas, Tex.; the exact date of this unloading not being shown. The plaintiff Patterson testified that the plaintiffs did not consent to the car being moved to Dallas; that the railway agent at Paducah phoned him, “some several weeks after the maize had been shipped,” that the maize had been shipped back to Dallas, but did not tell him where it was in Dallas, and said “that he did not know where it was unloaded there. We tried to locate the maize, but couldn’t. We never did know where the maize was until about the 1st day of October, 1915.” At this time said Patterson & Roberts received a letter from the general manager of the Quanah, Acme & Pacific Railway Company, advising them that maize had been unloaded in Haughton’s warehouse at Dallas in public storage, and notifying them of the charges against the same. The record does not show what efforts the said Patterson & Roberts had made to locate the grain, except that on August 25th the attorneys for the said Patterson & Roberts had written the agent of the Texas & New Orleans Railway Company at Kle-berg, to which letter said agent replied on August 26th that the grain, after it had been refused by the Plano Grain & Hay Company, had been shipped to the agent of the Texas & New Orleans Railway Company at Dallas. Plaintiff also introduced in evidence, without limitation, the answer of the defendant Texas & New Orleans Railway Company, in which it was stated that said railway company had handled the grain from Dallas to Kleberg and tendered delivery to plaintiffs, and the Plano Grain & Hay Company, as directed by plaintiffs, and which further contained the following statement:

“That both plaintiff and Plano Grain & Hay Company refused to accept said car of maize and still refuses to accept same, although often requested, and it became necessary for this defendant to unload and store said grain in Haughton’s warehouse in Dallas county, Tex., in the city of Dallas; the same being the most suitable and cheapest storage place accessible.”

It is not shown that the plaintiffs had ever made any demand for the delivery of the grain, or that said delivery was refused by the defendants. It was agreed that the storage charges due for storing the grain in Haughton’s warehouse at Dallas were reasonable, and that said grain was at the time of the trial still in said warehouse, and was rapidly deteriorating in value.

The court found that the grain had been damaged in the course of transportation, but tlie evidence was not sufficient to show the amount of damage, and that the Plano Grain & Hay Company was justified in refusing to accept said grain, because it was damaged, and that after said maize reached Kleberg it was shipped back to' Dallas and there unloaded in Haughton’s warehouse, and that the plaintiffs, Patterson & Roberts, did not know of its whereabouts until about October 1, 1915. The court also found as a matter of fact and as a matter of law:

“That the acts done by the defendant, Texas & New Orleans Railway Company, in shipping the car of maize back to Dallas, Tex., without the consent and knowledge of plaintiffs and without giving them any notice of the arrival of the maize at Kleberg, or its whereabouts at Dal--las, Tex., was conversion of the said maize by the said defendant, and that the said defendant is responsible for the value of said maize, in the sum of $304.50.”

In the foregoing "statement we have quoted the evidence most favorable to the conclusion of the court as above announced, disregarding the conflicting evidence offered by the defendants to show that notice was given to the plaintiffs and that they refused to makel any order for the disposition of said car before it was shipped back to Dallas for storage, as the principal question of this appeal is as to whether the facts as we have detailed them are sufficient to warrant the finding that the Texas & New. Orleans Railway Company thereby converted the maize.

It has been held that a railway company in discharge of the diligence required of it to give notice to the owner of freight upon arrival at destination, under Revised Statutes, art. 712, is not bound to look for such person at any place other than the place of destination, as it is the duty of the owner to put himself in position to receive such notice at such place. G., C. & S. F. Ry. Co. v. Patten Mfg. Co., 101 S. W. 1158; St. L., I. M. & S. Ry. Co. v. Townes, 93 Ark. 430, 124 S. W. 1036, 26 D. R. A. (N. S.) 572. Since the bill of lading in this case provided for notice to Plano Grain & Hay Company at Kleberg, Tex., we are inclined to the opinion that notice to said parties was sufficient under the law and the contract, and that thereafter the railway company held the grain as warehouse-men. But the question as to whether' the grain was held on the one liability or the other, or as to whether the railway company was negligent in not notifying consignees elsewhere, may not, under the authorities hereinafter cited, be important in determining whether there was a'conversion; for, “a conversion is an act of malfeasance — not a mere nonfeasance — a positive wrong, and not the mere omission of what was right.” The act of conversion here, if any, was, in the removal of the property to Dallas without the knowledge or consent of the plaintiffs. There are numerous definitions of “conversion” to be found in the authorities. That given by •Cooley on Torts (7th Ed.) p. 524, states a very generally accepted definition thus:

“Any distinct act- of dominion wrongfully exerted over one’s property in denial of his right, or in conflict with it, is a conversion.” "Words and Phrases, First Series, vol. 2, pp. 1562-1566; Second Series, vol. 1, pp. 1030-1032; Crawford v. Thomason, 53 Tex. Civ. App. 561, 117 S. W. 183; Slayden-Kirksey Woolen Mills Co. v. H. & T. C. Ry. Co, 132 S. W. 77; Cyc. vol. 38, p. 2004 et seq.

Was the act of the railway company, in removing the property to Dallas, under the circumstances wrongful? Neither the contract nor the statutes provide expressly that the railway company, after the transportation has been completed and it has been unable to make delivery of the property, is required to store it at the depot or a warehouse at the place of destination. In many cases, readily conceivable, this would be impracticable, on account of the class or character of the property and facilities for handling or storing the same at the point of destination, and we are of the opinion that under such circumstances the railway company would be justified in removing the property to the1 most convenient and suitable place for safe-keeping and storage; provided, of course, it held itself in readiness to deliver the property on demand of the consignee. This view is supported to a certain extent by the cases holding that in the event of ultimate sale of unclaimed property such' property may be removed to and sold at some place other than destination. G., O. & S. F. Ry. Co. v. Patten Mfg. Co., 151 S. W. 1158; Slayden-Kirksey Woolen Mills Co. v. H. & T. C. Ry. Co., 132 S. W. 77. The appellee asserts that there is no evidence that the property was taken to Dallas for storage, etc. We do not assent to this, however. Plaintiffs introduced in evidence the answer of the defendant Texas & New Orleans Railway Company without limitation, and such answer contained the statements of facts above quoted. This is all of the evidence on this phase of the case, and we believe the plaintiffs, “having made the statements of his adversary evidence,” are “concluded by them.” Baker v. Cook, 13 Tex. 80.

The result of the testimony, most favorably considered for the plaintiffs, is that for a considerable length of time they could not ascertain where their property was, but they did know where it was prior to the time of the suit, and there was never any demand and refusal of delivery. Whatever may be the liability of the defendant for negligence, in the'transportation of the grain or in failing to answer the plaintiffs’ inquiry or give information as to the location of the property, we do not believe that the act of removing the grain to Dallas for storage, under the circumstances above detailed, is such an exercise of dominion over the property and denial of plaintiffs’ rights as would justify the conclusion that the grain was thereby converted and that plaintiffs are entitled to recover full value thereof. St. L. & S. W. Ry. Co. v. Tyler Coffin Co., 81 S. W. 827; Direct Navigation Co. v. Davidson, 32 Tex. Civ. App. 492, 74 S. W. 790; Davis v. T. C. Ry. Co., 133 S. W. 297; Staley v. Colony Union Gin Co., 163 S. W. 381; G., C. & S. P. Ry. Cb. v. Humphries, 4 Tex. Civ. App. 333, 23 S. W. 556; Hutchinson on Carriers, § 1372; Shea v. Millford, 145 Mass. 525, 14 N. E. 769; Sparks v. Purdy, 11 Mo. 218.

The measure of damage for conversion would be the value of the grain at destination, less the legal transportation charges. Hutchinson on. Carriers, § 1375; M., K. & T. Ry. Co. v. Rines, 37 Tex. Civ. App. 618, 84 S. W. 1092; Carter & Corey v. I. & G. N. Ry. Co., 93 S. W. 681. We say this for the information of the lower court on another trial, in the event the issue of conversion shall be again before the court, as the court seems to have applied a different rule on the former trial.

The case is reversed and remanded for a new trial.
      ■<@s»For other cases see same topic and KEY-NUMBBR in-all Key-Numbered Digests, and Indexes ■


author: JENKINS, J.

text:
    PIPPIN v. SIMMONS et al.
    (No. 5709.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 24, 1917.
    Rehearing Denied Feb. 28, 1917.)
    Advekse Possession <@=»85(4) — Evidence — Pebmissive Tenancy.
    In trespass to try title claimed under the ten-year statute of limitation, the defense being permissive tenancy under defendant, evidence held sufficient to show such tenancy.
    [Ed. Note. — Por other cases, see Adverse Possession, Cent. Dig. §§ 313, 503, 688.]
    Appeal from District Court, McLennan County; E. C. Street, Judge.
    Action by Duard Pippin, administrator, against H. H. Simmons and others. Prom judgment for defendants, plaintiff appeals.
    Affirmed.
    Sleeper, Boynton & Kendall, of Waco, for appellant. Williams & Williams, of Waco,' for appellees.
   JENKINS, J.

This is an action of trespass to try title, brought by Duard Pippin, administrator of the estate .of H. L. Brown, deceased, against Lucy Ann Brown, H. H. Simmons, Guy McNamara, and J. W. Brinegar, to recover about 23 acres of land. Defendants Simmons, McNamara, and Brinegar filed disclaimers. Lucy ■ Ann Brown and Austin Brown, deceased, were negroes. H. L. Brpwn was the ■illegitimate son of Austin Brown. Austin Brown purchased about 53 acres of land, of which the land in controversy is a part, while he and Lucy Ann Brown were living together as man and wife. Subsequently .they w.er.e divorced. The court found that the land in ¡controversy, was community property, and appointed commissioners to divide the same. The commissioners1 divided the 53-acre tract, setting apart the land in controversy to Austin Brown, deceased, .but they .never made any report as to this .partition, and no further action was ever taken in the divorce case. ' Austin Brown, for several years prior to his death, returned to Lucy Ann Brown, and they lived together as they had prior to the divorce suit. After the death of Austin Brown, I-I. L. Brown held possession of the land in controversy for about twelve years and until his death. After his death Lucy Ann Brown, through her tenant, took possession of the land, and was so holding the same at the time this suit was tried. The appellant herein alleged that I-I. L. Brown, deceased, was the owner of said land under the ten-year statute of limitation. Lucy Ann Brown alleged that H. L. Brown held under her as life tenant.

The case was submitted upon special issues. In response to the same the jury found that there was hot a common-law marriage between Lucy Ann Brown and Austin Brown, deceased, after they were divorced. They also found that H. L. Brown, deceased, did not have adverse possession of the premises sued for for a period of ten years- prior to his death. Special issue No. 3, submitted to the jury, was as follows:

“Did H. L. Brown during his lifetime have and hold peaceable and adverse possession of the premises sued for for a period of ten years pri- or to his death, cultivating, using, and enjoying the same?”

In connection with this issue the court charged the jury as follows:

“Xou are further instructed in connection with and explanation of special issue No. 3 that if you should find from the evidence that H. L. Brown, deceased, went into possession of the property in controversy under and in pursuance of an agreement, if any, entered into with those legally entitled to the possession of said property to the effect that he would remain thereon only during his natural life, then if you so find your answer to special issue No. 3 must be ‘No,’ unless you find that at a time ten years prior to .the death of said.H. L. Brown he repudiated such agreement, if any, and held said property as his own.”

To this question-the jury answered “No,” the effect of which is to- sustain the allegation of Lucy Ann Brown that H. L. Brown went into .possession of said property as her tenant for life. The evidence is sufficient to sustain this finding. Lucy Ann Brown testified that after Austin Brown’s death she and her son Burrell Thompson and Frank Harrell got together and made an agreement, whereby Harreíl agreed to .rent the property for $100,.and that she and H. L. Brown agreed to divide this rent, she giving him a part of the rent in order that he would pay the taxes, and pay off a mortgage on some mules; that she afterwards agreed that he should live on the place as long as he lived, and that he was to pay her rent from time to time, which he did; that for the last four or five years of his life, he was an- invalid, and that she did not demand that he pay. any rent. That during the last four or’five years of his life he was yirtually blind, and had to be cared for, and that she took care of him and helped him in every way that she could, and that he spent much of his time with her, but lived in the house on the land in controversy. Burrell Thompson, a son of Lucy Ann Brown, corroborated this testimony, and stated that his mother gave H. L. Brown the place upon the agreement that he should have a home on it as long as he lived on the place; that H. L. Brown paid rent to his mother. J. M. Polk testified that H. L. Brown, deceased, told him that he had the place only for his lifetime, and that if he wanted to buy it, he would have to see his mother, referring to Lucy Ann Brown, whom he called Mother.

Appellant submits this proposition:

“Prior possession of land raises a presumption of title in the occupant, and is sufficient proof of title for recovery against a trespasser, especially where possession is taken by force by the defendant.”

This doctrine has no application where, as in the present case, the prior possession was as the tenant of the party who takes peaceable possession after the expiration of the tenancy.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.
      Éépí’or o'ther cases sée sámetopic and KfiY-NUMBER in all Key-Num&ered Digests and Indexes


author: HUFF, C. J.

text:
    METROPOLITAN NAT. BANK v. VANDERPOOL.
    (No. 1107.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 31, 1917.
    Rehearing Denied March 7, 1917.)
    1. Bills and Notes &wkey;>163 — Negotiability —Reference to Consideration.
    That a note recited it was payment on a named contract did not destroy its negotiability.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 390-392.]
    2. Bills and Notes &wkey;j378 — Alterations —Validity.
    Any alteration which is material and made without the consent of the party sought to be charged upon a note at any time after its execution renders it void as to them, even in the hands of an innocent holder, notwithstanding the alteration has been so skillfully made as to escape detection upon close scrutiny.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 985-992.]
    3. Alteration oe Instruments &wkey;>9 — Materiality — N OTE.
    Where a note recited that it was payment on contract L 854, and before negotiation to plaintiff the number was erased, the alteration was a material one which would defeat an action on the note, for in its altered form it did not, though paid, show payment on the contract.
    [Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 47-53.]
    Appeal from Hale County Court; W. B. Lewis, Judge.
    Action by the Metropolitan National Bank against F. W. Vanderpool. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Y. W. Holmes and W. W. Kirk, both of Plainview, for appellant. H. C. Randolph and P. B. Randolph, both of Plainview, for appellee.
   HUFF, C. J.

The appellant bank brought this suit against appellee, Vanderpool, upon the following note and indorsement:

“$768.00. Minneapolis, Minn., June 29, 1914.
“One year after date I promise to pay to the order of the O. W. Kerr Company seven hundred sixty-eight and no/100 dollars at the office of the O. W. Kerr Company, Minneapolis, Minn., with interest after date at the rate of six per cent, per annum until fully paid, value received. Interest payable annually. Deferred payments of interest to draw same rate as principal sum.
“- Payment on Contract No. L-.
“F. W. Vanderpool.
“Plainview, Texas.
“The O. W. Kerr Co.,
“Per P. W. Endsley, Atty. in Fact.
“For value received I hereby waive protest, demand, and notice of protest on within obligation, and guarantee payment thereof at maturity or any time thereafter.
“The O. W. Kerr Co.,
“Per P. W. Endsley, Attorney in Fact.”

The appellee answered and alleged material alteration of the note after its delivery and execution to the O. W. Kerr Company. The alteration consisted in erasing the contract number, which was part of the note at the time of its execution, and referred to a certain contract made between the appellee and the O. W. Kerr Company, and that the alteration was made without the knowledge or consent of appellee. The original number of the note when executed was “Contract No. L 854,” and that since that time the No. 854 had been erased, without the knowledge, consent, or authority of appellee. It is further alleged that the O. W. Kerr Company sold to appellee a certain 320 acres of land situated in Alberta, Canada, by a contract in writing, in which the company agreed to convey good title in consideration of $5,440, $500 thereof was paid in cash; the balance of the consideration was evidenced by six promissory notes executed by appellee, and that the note sued on was a renewal of the last of the notes, all the others having been paid off and discharged. It is alleged that the O. W. Kerr Company could not and would not deliver title to the appellee for the land, all of which appellant knew and had notice, and that the note had been altered as above set out, an4 for the purpose of destroying the appellee^ right tc plead failure of consideration, or such other defense as he might justly be entitled to, and in order that the holder of the note might claim that he was such without notice of the contract to which it referred.

The appellee introduced in evidence a duplicate of the agreement betwen himslf and O. W. Kerr Company, dated June 29, 1909, with the number thereon at the top and left-hand corner of the contract as follows: “No. L 854,” which is then followed by the agreement of- the parties. It is recited therein, in consideration of a full performance of the conditions and stipulations and the payments made as thereinafter specified, that “the performance of each and every of the said conditions and stipulations, as well as said payments being hereby expressly declared a condition precedent and of the essence of this agreement.” The company agreed to sell and convey, or would' cause to be conveyed, to appellee the one-half section of land described as situated in the Province of Alberta, Dominion of Canada, for the sum of $5,440, with six per cent, interest per annum. The contract shows there are six payments provided for, five for the sum of $768, due, respectively, June 29, 1910, 1911, 1912, 1913, and 1914. The first payment being due August 1, 1909, for $1,100, which is shown by the contract not to have borne interest to that date. The interest on the other notes being shown by the contract on the due date of the other notes. After the stipulation with reference to improvements, taxes, etc., providing for the punctual payment of the several amounts, with interest, it is stipulated the purchaser, appellee, would be entitled to a deed, transfer, or patent, conveying the land in fee simple free of all incumbrances. The agreement had indorsed on it:

“Duplicate agreement, No. D 854. The parties to this appeal have agreed in the statement of facts in the record, as follows: The evidence introduced shows a failure of consideration for the note in that the O. W. Kerr Company never delivered the land because same is insolvent. The evidence introduced shows that the note was altered after execution and delivery, without the consent of the defendant, as plead by him, and as found by the jury.”

The trial court submitted one issue to the jury:

“Was this note altered by erasure of the figures 854 since its execution and delivery, without defendant’s authority?”

The jury answered:

“We, the jury, find for the defendant, believing the figures 854 were erased from note after execution without consent of the defendant.”

The trial court rendered judgment for the defendant under this verdict, and recites in the judgment entry that he found that the erasure was a material alteration, and also that there was a total failure of consideration for the note.

The appellant presents in this court three assignments of error: (1) To the action of the court in overruling exceptions 1, 2, and 3. Because the alteration is not shown by the answer to be material; (2) in submitting the issue of alteration because if there was an alteration the evidence shows it was not material; (3) In rendering judgment because the alteration was not material and because the appellant was a purchaser in due course of business for value without notice, and before maturity: Under these assignments appellant-presents two-propositions: (-1) The' negotiability of the note is not- affected by : mere reference to a contract which is the consideration for the note, where it is not thereby burdened with the conditions of the contract, and therefore the erasure of such reference cannot constitute a material alteration; (2) if the reference was sufficient to give notice to the contents of the contract and its execution, there is no evidence that it was breached before the note was indorsed, and that the appellant had knowledge of the breach, and that it was therefore entitled to recover as an innocent purchaser.

The mere fact that the note states the consideration, “if the note be genuine,” does not put the holder upon inquiry whether or not it really passed or had failed in any respect. The holder of such note is not required to exercise diligence upon the purchase of such a note, nor is the negotiability of the note by such a recitation destroyed; in other words, the note sued on in this case, with the recitation “payment on contract No. L 854” did not destroy its negotiability. The authorities cited by appellant will support appellant’s proposition to the extent stated by us. Buchanan v. Wren, 10 Tex. Civ. App. 560, 30 S. W. 1077; Turner v. Grobe, 44 S. W. 898; Mulberger v. Morgan, 47 S. W. 379; Herman v. Gunter, 83 Tex. 66, 18 S. W. 428, 29 Am. St. Rep. 632; R. C. L. Bills and Notes, vol. 3, § 69. But it will not necessarily follow that the erasure of such reference is not a material alteration. This depends upon other facts or circumstances, together with the note itself. The second proposition we are disposed to think under the authorities a correct statement of the law, or substantially so. This, however, does not necessarily render the action of the court in overruling the exceptions submitting the issue to the jury and in rendering judgment error.

If the erasure was material the note sued on was not appellee’s obligation. “The general rule is that any alteration which is material and made without the consent of the party sought to be charged thereon at any time after its execution renders it void as to them, even in the hands of an innocent holder.” R. C. L. vol. 3, Bills & Notes, § 214. “Where an instrument has been materially altered it cannot be sued upon in its altered form nor read in evidence to support an action, even when brought by a bona fide holder without notice, and even though the alteration has been so skillfully made as to escape detection upon close scrutiny. ' But when the party making the alteration discharges the burden of proof upon him by showing that the material alteration was made by mistake and without fraudulent intent, the right of aGtion upon the consideration for which it was given remains.” 2 Dan. on Neg. Insts. § 1413 ; Otto v. Halff, 89 Tex. 384, 34 S. W. 910, 59 Am. St. Rep. 56; Landon v. Holcomb, 184 S. W. 1098; Spencer v. Tripplett, 184 S. W. 712.

The appellant, except inferentially, does not present a proposition that the court erred in holding the alteration material. True, it is asserted, because the reference to the contract did not destroy its negotiability, therefore the erasure was immaterial. The negotiability of the note before and after the erasure is not the only issue to be determined, but, is the erasure so material as to destroy the identity of the obligation or its legal effect, and to mate a new contract for appellee? If it is, the alteration is material. “Any change in the terms of a written contract which varies its original legal effect and operation, whether in respect to the obligation it imports or to its force as a matter of evidence, when made by any party to the contract, is an alteration thereof, unless all other parties to the contract gave their express or implied consent to such change. And the effect of such alteration is to nullify and destroy the altered instrument as a legal obligation, whether made with fraudulent intent or not.” 2 Dan. on Neg. Insts. § 1373; 2 ft 3. S 6. “Alteration of Instruments”; Ford v. First National Bank, 34 S. W. 684;. Baldwin v. Haskell National Bank, 104 Tex. 122, 133 S. W. 864, 134 S. W. 1178; Barton v. Stephenson, 87 Vt. 433, 89 Atl. 639, 51 L. R. A. (N. S.) 346.

The legal effect of the recital in this note, which was part of the note, was to make it a payment upon a certain designated contract. The erasure of the number of the contract on which it was payment was, in effect, to make it a payment on a different contract and to alter the ultimate responsibility on that contract of which it was a payment. It was no longer evidence of a payment on the contract for which it was given, but was made to evidence the payment on a different one. This altered appellee’s undertaking. The erasure caused it to appear that it was executed upon consideration of one contract when the consideration was for a different one. If appellee had demanded of the payee in the note a fee-simple title to the land, which contract L 854 obligated it to convey, and presented the note as his right thereto, the note would not, as altered, evidence his right to such title. 2 Dan. on Neg, Insts. § 1394; Richardson v. Fellner, 9 Okl. 513, 60 Pac. 270; McDaniel v. Whitsett, 96 Tenn. 10, 33 S. W. 567; Bowser v. Cole, 74 Tex. 222, 11 S. W. 1131; Kalteyer v. Mitchell, 110 S. W. 462; American Copying Co. v. Thompson, 110 S. W. 777; Goldman v. Blum, 58 Tex. 630; Pope v. Taliaferro, 51 Tex. Civ. App. 217, 115 S. W. 309.

The true test as to materiality of the alteration is whether it is the same contract. Measured by this test, we believe it must be determined in this case that the altered contract is different. It is the payment on a contract as altered which appellee did not agree to make and which would affect his rights very materially in the contract he had with the O. W. Kerr Company, which was executed at the same time and as part of the same transaction. Whether the alteration in the note would materially affect the contract of sale may be a question upon which -the courts are not in entire accord, and which perhaps would not defeat the enforcement of, their contract but in order to do so, appellee would be required aliunde the note, to prove he had made the payment which was made a condition precedent to a conveyance of the legal title to the land. Edward Thompson Co. v. Baldwin, 62 Neb. 530, 87 N. W. 307. But we believe these two instruments, being part of the same transaction, may be examined together, for the purpose of determining the materiality of the alteration and the effect it may have upon the obligation and the. consideration. The alteration, as made, would appear to increase appellee’s obligation, destroy the identity of the original obligation, and evidence a different consideration. This erasure was not a mere memorandum on the note, but was part of the obligation agreed to between the parties and written in the fact of the note.

We believe the trial court correctly held that the alteration was material. The judgment is affirmed.
      <S3=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ALAMO LIVE STOCK COMMISSION CO. et al. v. HEIMER.
    (No. 5778.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 14, 1917.
    Rehearing Denied March 7, 1917.)
    1. Principal and Agent &wkey;s21, 121 — Evidence-Testimony oe Agent.
    Testimony of an agent is competent to prove a parol agency, and to establish the nature and scope of the agent’s authority.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 39, 413-415.]
    2. Principal and Agent &wkey;>22(l), 122(1) — Evidence — Declarations oe Agent.
    Declarations of an agent are not competent to prove his authority or the existence of the agency.
    [Ed. Note. — For other eases, see Principal and Agent, Cent. Dig. §§ 40, 416, 418.]
    3. Appeal and Error &wkey;>994(2) — Review — Credibility of Testimony — Province of Jury.
    Credibility of testimony of defendant’s alleged agent as to existence of agency and authority of witness, held question for jury, not for appellate court to determine.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3902, 3903.]
    4. Factors <&wkey;41 — Ownership—Property — Liability of Factor.
    As a general rule, a factor commission merchant or broker receiving property from his principal and selling the same under the latter’s instruction, and paying him the proceeds of the sale, is guilty of conversion if his principal has no title to the property and no right to sell, and is liable in trover to the real owner for its value; his good. faith, want of knowledge, or notice of owner’s, title being no defense.
    [Ed. Note. — For other cases, see Factors, Cent. Dig. § 44.]
    5. Factors <®=o41 — Transfer of Title — Rights of Seller.
    Plaintiff sold cattle to one representing himself to be defendant’s agent, and received a check drawn on defendant,, and cattle were delivered to defendant, a commission merchant, who sold them and applied proceeds to the payment of the indebtedness of cattle buyer. Held, that regardless of agency relationship of defendant and buyer, defendant was liable to the seller as a factor or commission merchant for the proceeds of the cattle.
    [Ed. Note. — For other cases, see Factors, Cent. Dig. § 44.]
    Appeal from Bexar County Court for Civil Cases; John I-I. Clark, Judge.
    Action by W. Heimer against the Alamo Dive Stock Commission Company and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Davies & Davies, of San Antonio, for appellants. C. J. Carter and Ernest Fellbaum, both of San Antonio, for appellee.
   SWEARINGEN, J.

This is a suit from the county court-by W. Heimer against T. A. Eldridge, doing business under the name of Alamo Dive Stock Commission Company, to recover $242.50 for cattle purchased from ap-pellee by appellant, through his agent. It is alleged the cattle were delivered to appellant, sold by him, and the proceeds partly used to liquidate a prior existing debt due. appellant by his agent, but no payment of any amount to appellee.

Appellant’s answer contained a general demurrer, denial, and specially pleaded that he had no agent, but did a regular commission business; that he had no interest in 'the cattle, merely received them from Graham, the apparent owner, sold them in accordance with instructions of Graham, and applied a part of the proceeds to reimburse appellant moneys advanced as overdrafts to Graham; alleged that appellee sold the cattle to Graham in consideration of a worthless check; that appellant had no interest in the cattle other than that of a commission merchant.

The jury found in answer to special issues that Graham was the agent of appellant in the transaction, that appellant at the time said cattle were delivered to him on April 6, 1914, had reason to believe that said cattle had not been paid for by Graham, the agent, and that Graham would give the seller of the cattle a draft upon appellant. The jury found- the reasonable value of thh cattle to be $242.50. The jury further found that appellant sold’"the cattle and appropriated the larger portion of the' proceeds to reimburse himself moneys claimed to be due him by the agent, Graham, .ithe balance of the proceeds from the sale of the cattle was paid to Graham; nothing was' ever paid appellee, the owner of the cattle..-

The‘evidence shows that the cattle were delivered to appellant in San Antonio, where all parties lived. Graham, the agent, gave a check for the purchase of appellee’s cattle for the amount agreed upon. The check' was drawn on appellant, payable to appellee, and signed by Graham. When- the check was presented for payment appellant refused payment, though he had already sold appellee’s cattle and had received the proceeds. Judgment was rendered upon the findings of the jury in favor of appellee for $242.50.

Appellant presents four assignments. The first two assignments contend that the courts refusal to instruct a verdict for appellant was error. The third assignment contends that the judgment is contrary to the evidence. The theory of law relied upon by appellant in support of the above three assignments is that the fact of agency cannot be proven by the agent himself, who testifies to- the fact as a witness on the trial of the cause. To support such a proposition, counsel for appellant cite us to those decisions which hold that the declarations of an agent are not admissible in evidence to prove agency. Appellant’s theory of the law is wrong, though the decisions cited are right. The law on the subject is clearly stated in Mechera on Agency, as follows:

“If it be deemed essential to prove the authority by the agent himself, he must be called as a witness; his testimony both as to the fact, and as to the nature and extent, of his authority, where it rests in parol, being as competent as that of any other witness. The rule upon this subject has been stated by a learned judge as follows: ‘It is competent to prove a parol agency and its nature and scope by the testimony of the person who claims to be the agent. It is competent to prove a parol authority of any person to act for another, and generally, to prove any parol authority of any kind by the testimony of the person who claims to possess such authority. But it is not competent to prove the supposed authority of an agent for the purpose of binding his principal by proving what the supposed agent has said at some previous time. Nor is it competent to prove a supposed authority of any kind, as against the person from whom such authority is claimed to have been received, by proving the previous statements of the person who, it is claimed, had attained such authority.’ ” 1 Mechem on Agency (2d Ed.) § 291; American Telephone Company v. Kersh, 27 Tex. Civ. App. 127, 66 S. W. 74; Rainey v. Kemp, 54 Tex. Civ. App. 486, 118 S. W. 630; Bybee v. Embree-McLean Co., 135 S. W. 203; Autrey v. Linn, 138 S. W. 197; Cannel Coal Co. v. Luna, 144 S. W. 721; 2 Modern Law of Evidence, Chamberlayne, § 1338, note 3.

- The -distinction between the admissibility of declarations of the agent and -the admissibility of his testimony on the trial, in which the fact of agency is the issue, is- even more clearly stated in 2 Corpus Juris; 933, § 689, notes 10-16.

The agent, Graham, testified on the trial concerning the issue of agency as follows:

“When I bought said cattle from the plaintiff [appellee] I was acting as agent for the Alamo Dive Stock Commission Company [appellant]. I was not.acting for myself. My arrangement with the company was to- buy hogs and cattle for the company and give a draft on said company for the am.ount of the purchase price. A draft book was given me by Mr. El-dridge for this purpose. Said company was to pay for the cattle and hogs, and then to resell them.”

This was admissible testimony, and it was the jury's province to determine the credibility of the witness and the weight to be given his testimony, and its verdict thereon is binding upon this court.

The assignments could not be sustained for another and altogether distinct reason. The pleadings of all parties and the evidence present the question discussed and decided against appellant’s contention in the case of C. M. Keys Commission Co. v. Beatty, 42 Okl. 721, 142 Pac. 1102. See many cases cited therein. Evans-Synder Buell Co. v. First National Bank of Amarillo, 15 Tex. Civ. App. 163, 39 S. W. 213; Kemper Grain Co. v. Harbour, 89 Kan. 824, 133 Pac. 565, 47 L. R. A. (N. S.) 173 (see note).

The correct rule is most succinctly and lucidly expressed in 11 Buling Case Law, p. 7S0, § 34, as follows:

“The general rule, however, according to the weight of authority, is to the effect that a factor, commission merchant^ or broker, receiving property from his principal, and selling the samé under the latter’s instruction and paying him the proceeds of the sale, is thereby guilty of .unlawfully converting the property if his principal has no title thereto, and no right to sell the same, and is liable in trover to the true owner of the property for its value; and his good faith, want of knowledge or notice of an outstanding title in a third person, or belief in his principal’s title, is no defense to the action.”

The assignments are overruled.

The fourth assignment must also be overruled, because the jury found that the cattle were purchased by the agent for his principal, and were received and sold by the principal, and no part of the contract price was ever paid to the owner, the appellee.

The judgment is affirmed.
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