author: MONTGOMERY, P. J. SADLER, J. PHILLIPS, 0. J.

text:
    AUSTIN FIRE INS. CO. v. POLEMANAKOS.
    (No. 24-2644.)
    (Commission of Appeals of Texas, Section B.
    Jan. 15, 1919.)
    1. Insurance <§=>230 — Cancellation of Policy — Tender of Unearned Premiums.
    Where a fire insurance policy provided for cancellation at any time upon notice by the company, unearned premiums to be returned on surrender of the policy, a tender of such premiums was unnecessary as a prerequisite to cancellation; notice of cancellation, when properly given, canceling the policy.
    2. Insurance <§=>246 — Cancellation of Policy by Agreembn:u-Waiver of Repayment of Premiums — Evidence.
    In an action on fire insurance policy, evidence held to show that the insured agreed to a cancellation of the policy and that he waived present repayment by the company of unearned premiums.
    3. Insurance <§=3246 — Reinstatement of Policy — Submission to Examination as to Loss.
    Where insurer gives notice to insured of cancellation of a fire insurance policy to which cancellation insured agreed, a demand by the insurer’s adjuster that insured submit to examination under oath as to liability thereunder, which was complied with, did not create a new insurance contract or reinstate the old contract.
    4. Insurance <§=>388(1) — Forfeiture — Waiver.
    Whenever there arises a condition under which an insurer has the right on account of any failure of the insured to comply with any condition or warranty contained in the policy, to forfeit the same, the doing of any act inconsistent with the claim of forfeiture or any recognition of the existence of the policy waives the forfeiture if insurer had knowledge of the facts authorizing it.
    5. Insurance <§=>246 — Estoppel in Pais— Cancellation of Insurance Policy.
    Where a fire insurance policy was canceled by mutual agreement, a demand by the insurer’s adjuster for an examination under oath as to liability thereunder, and submission thereto by insured, did not estop the company from asserting the cancellation where insured had obtained other insurance, and the expenses incurred by reason of the examination were but insignificant.
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by A. D. Polemanakos against the Austin Fire Insurance Company. A judgment for defendant was reversed by the Court of Civil Appeals (160 S. W. 1134), and defendant brings error.
    Reversed as recommended by the Commission of Appeals.
    The facts necessary to a proper understanding of our conclusions in this case are; This is a suit by the defendant in error, A. D. Polemanakos, against the Austin Fire Insurance Company to recover upon two fire insurance policies issued by said insurance company to Polemanakos on a certain building situated in Houston, Harris county, Tex. Said policies were for $1,000 and $1,-500, respectively.
    In addition to the insurance of $2,500 above referred to said Polemanakos had another policy for $2,500 in another company. All these policies were in force on January 18, 1910, and on that day the plaintiff in error telegraphed its Houston agent to cancel the policies held by Polemanakos. The agent called the insured on the telephone, and a conversation occurred between them. As this is an important feature of the case, we will set out the version of the conversation testified to by Polemanakos:
    “On Saturday before the fire, Saturday.being 18th of March, 3011, I received a telephone communication from Mr. John R. Young, this gentleman that sits over here, the agent of the fire insurance company, in which he told me that the Austin Fire Insurance Company had telegraphed to him directing him to cancel and take up the two policies of the Austin Eire Insurance Company which I held on that building. That is exactly what he told me; and those two policies that he had reference to were the same two policies I am suing on here. At the time he communicated with me the fact that the Austin Eire Insurance Company demanded the surrender and cancellation bf my two policies I was in my home in Houston Heights. Mr. Young, I think, was in his office down in the city of Houston at that time. In that conversation I never asked him for any premium to be given me. I never said anything to him about the policies not being canceled before I got the premium. I didn’t say nothing. Mr. Young did the talking. I just sat at the other end. That was all that was necessary. In this talk with Mr. Young I asked him to get me some other policies in place of the two he was canceling, I think so, and he told me he couldn’t do it. He didn’t tell me that he had applied to Mr. Raphael for policies on there and couldn’t get them issued. He never mentioned any names, but he did tell me that he wasn’t able to get any policies on my property. Told me he wasn’t able to get them. I did not ask him to apply to any other agent. I don’t think I told him to apply to Mr. Dumble.”
    “Q. After he told you he wasn’t able to procure any policies to be issued on that property for you in place of the Austin Eire Insurance Company’s policies which he was canceling, did you not tell him ‘All right,’ that you would look after it yourself then? A. I told him ‘All right,’ and that was all to it. Q. That you would look to getting other insurance? A. I said ‘All right.’ I didn’t tell him I would see to the getting of insurance in the place of the two Austin fire insurance policies. I told him ‘All right,’ I would see about it; that is, I would see whether I could get the insurance or not. At that time I held policies, one in the Rochester-German Insurance Company for $1,000 and in another company for $1,500 and these two policies I sue on here by the Austin Eire Insurance Company, making $2,500 more. There had been no increase in the value of my buildings that day. I had not contemplated or intended increasing my insurance above $5,000. It was my desire simply to carry $5,000 insurance on the property. That is what I usually had.”
    “Q. When you asked him to get you insurance, you asked Mr. Young to get you insurance to take the place of those Austin fire insurance policies that he telephoned you about canceling, did you not? A. I guess so as I didn't want to cancel the policies to get policies. That was my purpose, idea, and intention. When he told me he couldn’t get any written for me, and I told him I would see about it myself, I had the same purpose and intention in mind; that was the same thing, and I didn’t have any other purpose or intention. When Mr. Young telephoned me the Austin Eire Insurance Company had directed him to cancel the two policies I didn’t offer any objection to him. After I had had my talk with Mr. Young on Saturday evening I called up Mr. Dumble and asked him if he couldn’t issue me some policies on this property to take the place of the ones which the Austin Fire Insurance Company canceled, and Mr. Dumble told me ■ he didn’t have any companies in his office that ho could write any insurance on that building in at that time without, submitting it to them, and I told him I wanted my insurance for that day, for Saturday. I think he told me something like he wouldn’t be able to hear from the companies about whether they would carry the policies or not before the Tuesday following. I am not sure about that. After he told me that I rang off, and I then called up the office of Tor-rey & Co., insurance agents' at Houston, and told them the Austin Fire Insurance Company had canceled my two policies and I wanted to know whether they could issue me $2,500 insurance to take the place of it. Q. Mr. Torrey, this gentleman sitting over here, told you ho would furnish $2,500 insurance to take effect that day on that property to take the place of these Austin policies? A. Mr. Torrey never mentioned the Austin policies. Q. The ones you spoke to him about? A. I spoke to him. Q. To take the place of that? A. Yes, sir; that was .Saturday. I didn’t pay him any premiums at that time, and I had not at that time carried my policies in the Austin Fire Insurance Company which Mr. Young had demanded the surrender of to him. I don’t know how I could carry it to him. It was nighttime. I guess it was dark.”
    This witness further testified that the insurance requested was written by Torrey & Co. and after the fire, which occurred the following night, was paid by the companies represented by Torrey & Co.
    The premiums on the Austin Fire Insurance Company policies had been paid in advance, and up to the time of the fire the policies had not been surrendered, nor had the unearned premium been returned. After the fire the insured, Polemanakos, collected the $2,500 covered by the two policies which he had in the Rochester-German Insurance Company and the International Fire Insurance Company and the $2,500 policies written by Torrey & Co. on the day before the fire. He also gave the Austin Fire Insurance- Company notice of the fire and furnished propfs of loss. The adjuster of the Austin Fire Insurance Company, after the company had received notice of the fire, wrote Polemanakos the following letter:
    “R. W. Mayo, Adjuster of Fire Losses, 358 Wilson Building.
    “Phones: Main 5945.
    “Haskel 851.
    “Houston, Texas, March 25, 1911.
    “Mr. A. D. Polemanakos, Houston, Texas— Dear Sir: The Austin Eire Insurance Company received through its agents at Houston, Texas, March 20, 3911, a notice of a fire which occurred on the same date, destroying or damaging building known as No. 519 Texas avenue. This notice further states that you hold policy No. 517 for $1,000.00 and policy No. 518 for $1,-500.00 on this property. The Austin Eire Insurance Company does not know whether or not you are claiming liability against the company on account of these policies, but it assumes that you have given this notice in compliance with line No. 74 of such policies, if you hold them. In the event you are claiming any liability on the part of the Austin Eire Insurance Company on account of these policies, you are advised that the Austin Eire Insurance Company requests of you an examination, under oath, in reference thereto. You are advised that I shall be glad to hold this examination at the office of Messrs. Young & Felker, Houston, Texas, at 4:00 p. m., March 25, 1911, unless some more convenient time and place will better suit you. Upon being advised in this regard, I shall be glad to conform to your wishes.
    “You are requested to have and produce 'at said examination all policies of insurance covering this property, or any part thereof, and any and all evidence that you may have bearing on the value and ownership of said property. The examination referred to is provided for in the policies which* you claim to hold, more especially lines 87 to 91, inclusive. You are advised that the Austin Eire Insurance Company in requesting this examination, and in conducting same, does not thereby waive any of the rights that it may have under the above-mentioned policies, nor any of the terms or conditions of said policies, nor does it thereby admit a liability on account of said policies, nor a forfeiture of said policies, if such exists, nor does it intend thereby so to do. Please advise me, at the earliest possible moment, if the time and place mentioned heroin will suit your convenience.
    “You can reach me at the office of Messrs. Young & Eelker. Yours truly, [Signed] R. W. Mayo, Adjuster for Austin Eire Ins. Co.”
    Polemanakos, as requested in the letter, appeared at the place agreed upon by the parties and submitted to an oral examination.
    The insurance company refused to pay the loss upon the ground that the policy had been canceled prior to the fire and this suit was brought by Polemanakos to recover on the two policies. The district court, upon conclusion of the testimony, gave the jury a peremptory charge to find á verdict for the defendant except as to the unearned premium which it had tendered. Upon the verdict thus rendered the court entered judgment for the insurance company except as to the amount tendered. Polemanakos appealed, and the Court of Civil Appeals (160 S. W. 1134) reversed the judgment and remanded the cause for a new trial. Writ of error in this case was granted upon application of the insurance company. There is no question raised on the pleadings, and such other facts as are necessary will be stated in connection with the opinion.
    Wm. Thompson, of Dallas, John S. Patterson, of Austin, and Will C. Thompson, of Dallas, for plaintiff in error.
    L. B. Moody, of Houston, for defendant in error.
   MONTGOMERY, P. J.

(after stating the facts as above). The policies of fire insurance involved in this controversy are on what is known as the New York standard form, and each of them contains this provision:

“This policy shall be canceled at any time at the request of the insured, or by the company by giving notice of cancellation. If this policy shall be canceled, as hereinbefore provided, or become void, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy.”

In this case it is contended that the policy was not canceled by the notice of cancellation, because at the time the notice was given the unearned portion of the premium was not tendered or paid to the insured.

There are many cases, some decided by the courts in this state, holding that without actual tender of the money the notice of cancellation is of no effect. There are many other cases holding that the tender is not necessary, and that the company is under obligation to return the money only upon surrender of the policy by the insured. The authorities on both sides of this mooted question are collected in the notes in L. R. A. See 13 L. R. A. (N. S.) 884, and L. R. A. 1916F, 444.

The cases in Texas which decide this question are Hartford Fire Insurance Co. v. Cameron, 18 Tex. Civ. App. 237, 45 S. W. 158, decided by the Court of Civil Appeals for the Second District, Niagara Fire Insurance Co. v. Mitchell, 164 S. W. 919, decided by the Court of Civil Appeals for the Fourth District, and Assurance Co. v. Manufacturing Co., 92 Tex. 297, 49 S. W. 222. These Texas eases all hold that in order to effect a cancellation it is necessary that the unearned premium should be returned at the time the notice is given, or at least that the notice is not effective until the unearned premium is tendered or paid. The last case cited above contains the only expression upon the subject by our Supreme Court that we have been able to find. In that case there is no analysis of the provision nor any discussion thereof. There is in the opinion a statement to the effect that the' policy involved in that case was not canceled because no tender of the unearned premium was made before the fire.

There is nothing in the opinion to disclose the circumstances under which the notice was given nor whether the insured demanded a return of the premium.

Without discussing this question, we think that under the plain provisions of the contract no tender was necessary as a prerequisite to the cancellation of the policy, and that the notice, when properly given, had the effect to cancel the policy, and that the obligation of returning the unearned premium was to be performed only upon the return of the policy by the insured.

This question has been discussed so often by the courts of the various states that we feel sure we would not be able to say anything new on the subject.

In the case of Mangrum v. Insurance Co. decided by the Supreme Court of California in 1916, 172 Cal. 497, 157 Pac. 239, L. R. A. 1916F, 440, Ann. Cas. 1917B, 907, will be found an exhaustive discussion of this provision of the policy. The cases on both sides of the question are reviewed, and we think that the conclusion reached in that case that no tender of the premium is necessary to the cancellation of the policy is sound. We have said this much because in granting the writ of error in this case Justice Hawkins indicated that he was of opinion that no tender or repayment of the premium was necessary to effect a cancellation of the policy.

If we are mistaken in the above views, or if they do not meet the approval of the Supreme Court, we further think that, even if under the terms of the policy it is held that a tender or repayment of the unearned premium was necessary, it would not control this case. The facts, we think, show that the insured, Polemanakos, consented and agreed to the cancellation of the policy and waived the present repayment of the unearned premium. The facts are fully set out above, and, without restating them, we think they show that- the policies were canceled by agreement. No other reasonable construction, we think, can be given to the .words and acts of the insured. The case of Bingham v. Insurance Co., 74 Wis. 498, 43 N. W. 494, and numerous cases cited therein, we think, support our conclusion.

Having arrived at the above conclusion, the only other question involved is: Did the act of the adjuster in requesting Pole-manakos to submit to examination, and his response to the request, have the effect of reviving the policy and making the insurance company liable thereon?

The view we take of this matter is that the provisions of the policy that “the insured, as often as required, shall exhibit to any person designated by this company all that remains from any property herein described and submit to examinations under oath by any person named by this company and subscribe the same,” and the further provision “that this company shall not be held to waive any provision or condition of the policy or any forfeiture thereof by any requirement, act, or proceeding on its part relating to the appraisal or to any examination herein provided for,” have no application to this case. If, as we have found, the 'policy was canceled by agreement, there remained no subsisting contract of insurance between the parties. The only right either party had was that of Polemanakos, growing out of the contract of cancellation, to have the unearned premium returned.

After the fire Polemanakos disregarded what we have found to be his agreement , to cancel the policy, gave notice of the fire, and in effect demanded that the insurance company should pay the loss. He at that time had no subsisting contract with the insurance company, and therefore had no right to make such claim or demand. Upon receipt of this claim the adjuster of the insurance company wrote the letter set out in the statement above, and Polemanakos, in response to said letter, submitted to an examination.

We do not think that this demand of the adjuster under the circumstances of this case, and the compliance therewith by the insured, had the effect of making a new contract or reinstating the contract of insurance. We do not care to go into the question of the effect of an insurance company claiming a right under a policy upon any subsequent claim or contention by it that the policy has been forfeited, further than to say: That whenever there arises a condition or state of facts under which the insurance company has the right, on account of any failure of the insured *to comply with any condition or warranty contained in the policy, to forfeit the same, that the doing of any act inconsistent with the claim of forfeiture, or any recognition of the fact that the policy is still in existence, will ordinarily waive such forfeiture, provided the insurance company has knowledge of the facts authorizing the forfeiture. This principle is so well established that no authorities are necessary.

This principle, however, is not, in our opinion, applicable to this case. The case here is not one where a waiver of forfeiture is claimed. The insurance company does not claim that the policy had terminated by reason of any breach on the part of the insured of any condition or warranty contained therein. It was claimed that the policy had been canceled by mutual agreement.

If, as we have found, this claim was well founded, then, as against the insurance company, the insured had no right under the contract, and could recover on it only by pleading and proving such a state of facts as would amount to an estoppel on the part of the insurance company to deny the existence of the contract.

We do not think the facts plead or proved are sufficient to estop the insurance company from insisting that the policy had been canceled. If before the fire the insurance company had by any act recognized the policy as being in force, and relying thereon the insured had failed to obtain other insurance, or otherwise acted to his disadvantage on the assumption that the policy was still in force, the insurance company would have been estopped. But we do not think the act of the adjuster in this case, and the fact that the insured submitted to an examination, is sufficient to estop the company.

“In order to create an estoppel in pais, the party pleading it must have been misled to his injury; that is, he must have suffered a loss of a substantial character, or have been induced to alter his position for the worse in some material respect.” 16 Cyc. 744; Waxahachie National Bank v. Bielharz, 94 Tex. 493, 62 S. W. 743.

In this case Polemanakos knew that the policy had been canceled, and he in fact had obtained other insurance before the fire to take its place. After the fire the demand for an examination was preceded by a demand on his part for the payment of the loss occasioned by the fire. The trouble and expense incurred by him in response to the request of the adjuster was not a loss of a substantial character, but was insignificant.

Our conclusion is that the Court of Civil Appeals erred in reversing and remanding this cause for a new trial, and we think that the judgment of the Court of Civil Appeals* should be reversed, and the judgment of the trial court affirmed.

SADLER, J.

(concurring).

The holding in Assurance Co. v. Manufacturing Co., 92 Tex. 297, 49 S. W. 222, mentioned in the foregoing opinion, is differentiated from the holding in the instant case by the facts. In the Assurance Case, supra, an examination of the original pleadings and statement of facts contained in the record discloses that in that case the minds of the insurance company and of the assured did not meet with reference to the question of cancellation of the policy. The insurance company, through its agent, notified the assured of its purpose to cancel the policy, and inclosed a cancellation receipt to be signed and returned when the cancellation would be completed by the .credit and return of unearned premium. The assured did not accept the cancellation; did not sign the receipt. In the instant case the insurance agent notified the assured of the cancellation of the policy, and, acting upon the notification of cancellation, the assured sought tó and did obtain insurance, manifesting a clear acceptance of the act of cancellation on the part of the company and a waiver of the tender of the unearned premium as a condition precedent to cancellation.

It is therefore apparent that the holding in the Assurance Case is not of controlling effect under the condition of the present record.

The writer is further of the opinion that those cases in which it is held that a written request for examination amounts to a waiver are not applicable to the case made here. In the present case the cancellation was completed and the policy of none effect before the loss. The subsequent request for examination of the assured on the part of the company arose by reason of the assertion of claim by the assured under the contract of insurance; he still having possession of the policy. It is therefore believed that the correct conclusion to be drawn from the facts is that the request for examination arose by reason of the act of the assured, and that it did not amount to a reinstatement of the policy. In those cases where it has been held that the demand for examination was a waiver, it will be seen that the waiver is of a right to declare invalid the policy by reason of the breach by the assured of some condition contained in the contract, and not where the right of forfeiture had already been exercised and the policy declared void by reason of the breach. In the present case the policy had already, by reason of the act of the insurance company, concurred in and accepted by the assured, been rendered nugatory. The request for the examination, therefore, is believed not to amount to a waiver of the cancellation and a reinstatement of the policy, since it came in response to an assertion of claim by the assured.

I concur in the conclusion reached in the opinion in this case and in the reasoning submitting these additional views which I hold.

PHILLIPS, 0. J.

The judgment recommended by the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.
      <&=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, J. LATTIMORE, J.

license: Public Domain

text:
    WATKINS v. STATE.
    (No. 5105.)
    (Court of Criminal Appeals of Texas.
    Nov. 27, 1918.
    On Motion for Rehearing, Jan. 15, 1919.)
    1. Larceny <®=57 — Intent — Evidence — Sufficiency.
    In prosecution for theft of 200 pounds of cotton by the owner’s employe, evidence held sufficient to show that defendant stole the cotton with intent to depidve the owner of its value and to appropriate it to his own use and benefit.
    2. Criminal Law <§=>723(5) — Argument of Prosecuting Attorney.
    That the county attorney in a larceny case, referring to defendant, said, “He is no account trifling negro,” and asked the jury if they would like to credit Mm with $20, did not constitute reversible error.
    3. Criminal Law <§=723(5) — Argument of Prosecuting Attorney.
    In a prosecution of a negro for larceny of cotton, a statement by the county attorney to the jury that they knew “that last fall cotton was good, and any negro could have had money sufficient to go to the Dallas fair,” did not constitute reversible error.
    On Motion for Rehearing.
    4. Larceny <®=»15(3) — Fraudulent Taking by Bmployé.
    The fraudulent taking of cotton by an employs engaged merely in weighing the cotton and paying other employés, where the owner and employer was absent for the day, constituted theft, and not embezzlement.
    5. Larceny <§==>77(4) — Instructions — Possession of Recently Stolen Property.
    In a prosecution for larceny from the owner, evidence that defendant, when stolen cotton was found in his possession, stated that he had bought it, and later that he took it thinMng it would be all right with the owner, and that he intended to pay for it, justified an instruction on explanation of possession of property recently stolen.
    6. Larceny <§=>68(3) — Ownership and Control-Issues and Proof.
    Where cotton was stolen by defendant from the owner’s premises, in his temporary absence, such absence did not change the ownership and control of the stolen property, so as to justify a directed verdict on the ground that the property was not taken from the owner’s possession.
    Appeal from Fannin County Court; S. F. Leslie, Judge.
    Bill Watkins was convicted of petty theft, and he appeals.
    Affirmed and rehearing denied.
    R. T. Lipscomb, of Bonham, for appellant.
    E. B. 'Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of petty theft, and his punishment assessed at 30 days in jail.

The stolen property was about 200 pounds of seed cotton, of the value of about $19, the property of Buck Wallace.

The facts show that about October 20,1917, said Wallace had appellant and several other negroes picking cotton for him. Before they concluded their week’s work he went to the Dallas fair, and left money with his wife to pay the negroes for picking the cotton, which she did. Said Wallace also arranged with one Dunlap to haul the negroes from his place where they were' picking back to town at the end of the week, which he did. Mrs. Wallace, the wife of Buck Wallace, noticed the bundles appellant and the other ne-groes had put in the wagon to be hauled off, and thought they put in more bundles of bedding than they had, and became suspicious that they were taking some cotton. She told her father, and he advised her to go and get the sheriff and find out about the matter. She got in a car, went to town, got the sheriff, went back, and met the appellant and the other negroes about a mile east of town. She and the sheriff both swore that, when they asked appellant if he had any cotton in the wagon he, appellant, expressly denied that he had any cotton in the wagon. The sheriff then told them to get out, which they did, and he searched the wagon, and found two sacks of seed cotton in the bottom of the wagon, covered up with their bedclothes and cooking outfit. Appellant introduced his brother, Son Watkins, who testified that he was present at the time appellant took this cotton, but he said that appellant claimed that he was taking it to raise sufficient funds for himself to go to Dallas, and when he came back he said he intended to pay Mr. Wallace for the cotton; and claimed that the reason he wrapped it up in the bedding and put it in the bottom of the wagon was that he did not want his wife to know that he was going to Dallas. After the sheriff had made him and the other negroes get out of the wagon, and he searched the wagon and found the cotton therein, appellant told the sheriff that he did not intend to steal the cotton, but thought it would be all right with Mr. WaK lace for him to take and sell it, and after-wards pay Mr. Wallace for it. Mr. Dunlap, who hauled appellant and the other negroes into town, said that when he went out to get them he did not see and did not know that there was any cotton being hauled away; that it turned out the cotton 'Was rolled up in the bedding and put in the wagon in such way he did not know and could not tell that it was there until after the wagon was searched by the sheriff. Mr. Wallace, the owner of the cotton, swore that he did not give appellant his consent to take the cotton, and that it was taken without his knowledge and consent.

The evidence was amply sufficient to show that appellant stole the cotton with the intent to deprive the owner of the value thereof, and to appropriate it to his own use and benefit. The court did not err in refusing his peremptory charge to acquit.

Appellant requested several special charges. The court in his charge gave those requested by appellant, which should have been given substantially as he requested them.

Appellant’s defense was that although he took the cotton — stole it — that when he took it he had no fraudulent intention, but took it with a view and intention of paying for it, and that he thought his taking it would be satisfactory to the owner. This was all fully submitted by the judge’s charge to the jury, and before they could convict they were instructed that they must believe from the evidence beyond a reasonable doubt that he fraudulently took the cotton from the owner without the consent of the owner, and with the intent to deprive the owner of the value of it, and appropriate it to his own use and benefit.

He submitted appellant’s claimed defense as follows:

(5) If you believe from the evidence that the defendant when he took the cotton had no fraudulent intention, but took the same with the view and intention of paying for same, or if you have a reasonable doubt as to whether or not he did so take the same, then you will find the defendant not guilty.
(6) If you should believe from the evidence that defendant took the cotton without the knowledge and without the consent of Buck Wallace, and you further believe from the evidence that at the time of taking the cotton the defendant intended to pay for same, and believed that it would be satisfactory to Buck Wallace, or if you have a reasonable doubt as to whether or not the defendant believed it would bo satisfactory with Buck Wallace, or whether he intended to pay Buck Wallace for the cotton, you will acquit him.

These charges submitted appellant’s de-" fense completely, and were all that should have been given on the subject.

However, appellant requested a charge on 'recent possession and explanation of stolen property, and evidently the court in deference to his request submitted that question to the jury. This question really should not have been submitted at all, but, as appellant requested it, he cannot complain at the court submitting it. The evidence did not really raise that question. On this subject Mr. Branch in his 2 Ann. P. O. § 2469, lays down the undoubted principle applicable to this question as follows:

“Possession of property recently stolen being a circumstance only, no inference of guilt is deduced therefrom as a matter of law; therefore it is no more necessary to single out and charge on the circumstance of such possession than it would be to' single out and charge on the circumstance of. flight or motive. Nor does the fact that an explanation of such possession is in evidence require a charge on the subject of possession and explanation. An explanation is of no consequence to either side unless it involves some defense; hence an affirmative charge on the defense involved in the explanation is all that is required, and is the safest and fairest way of submitting the issue to the jury.”

He cites some 23 cases of this court in point supporting the principle announced by him.

So that in no event did the court err in charging as he did and in refusing appellant’s special charges.

Appellant has two bills of exception to the claimed argument of the county attorney. ' In one (No. 6) he complains that .the county attorney said, “He is no account, trifling negro,” and asked the jury if they would like to credit him for $20. He excepted to that argument of the county attorney. The court sustained his exception, and gave his written charge at the time, telling the jury not to consider for any purpose whatever the said argument of the,county attorney. The court in approving this bill qualified it by stating that he.charged the jury in writing not to consider said remarks of the county attorney on appellant’s request. He further said:

“However, I do not think the attorney used the above language, and in my judgment the language he did use could have been properly used in answer to the argument of defendant’s attorney.”

In another bill, No. 7, he complained of this language of the . county attorney, “You gentlemen well know that last fall cotton was good and any negro could have had money sufficient to go to' the Dallas fairto which language appellant objected. The court sustained his objection, and at the time verbally charged the jury not to consider the said argument. In the qualification of his bill the judge stated that the appellant’s attorney in 'his argument talked of the reasonableness of defendant’s action, and the judge further said in his qualification, “In my judgment the above argument was justified in replying to defendant’s attorney;” that he charged the jury orally not to consider said remarks by the county attorney, and would have charged them so in writing, but the appellant did not request a written charge on that subject until after the jury had retired.

Appellant has another bill to the action of the court in qualification of his bill No. C, above stated. He shows that he prepared his bills, submitted them to the county attorney, and turned them over to the judge just a few days after the trial was concluded; that the judge kept them until the evening of the last day, the 20th, after adjournment, and then made the qualification above noted to his bill No. 6, and filed it with the clerk. He excepted in hnother bill to this action of the court, in substance stating that it was without his knowledge and consent, but in that bill he nowhere contends or claims that the qualification placed on his bill No. 6 by the judge was not in fact true, and by not objecting on that account he impliedly admitted that the judge’s qualification, as a matter of fact, was true. Disregarding the judge’s qualification of this bill, it shows no error.

None of these bills present any reversible error. They are somewhat of an unimportant nature. However, appellant’s claimed defense, and doubtless, as the court stated in his qualification of his bill No. 7, his attorney’s argument would naturally suggest such a reply thereto as the county attorney made, and in no event would either of these matters justify this court to reverse this case.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

This case was affirmed at a former date of this term in an opinion hy PRENDERGAST, J. Appellant presents a vigorous motion for rehearing, which has received our careful consideration.

The case is one of misdemeanor theft, the property taken being certain seed cotton, in quantity about 200 pounds. It was undisputed that the cotton was taken, without the knowledge and consent of the owner, from his premises during his temporary absence. Appellant was picking cotton, along with a number of other hands, and was paid by owner $1 for his services in weighing the cotton of the other hands and in paying them on the day of the owner’s absence. On the afternoon of the alleged theft appellant was going away from the owner’s premises in a wagon in which was the alleged stolen cotton. When asked if he had any such cotton he denied it, according to two witnesses, the wife of the owner of the cotton and another person.

His principal defense on the trial was that, even though he took the cotton, he intended to pay for it, and thought it would be all right with the owner.

Appellant makes several contentions in his motion for rehearing, which we will briefly notice:

(1) That his defense was misunderstood by this court on the former hearing; he claimed that, if guilty of any offense, it was embezzlement and not theft. We do not agree with him in this contention under the record, for no witness testified that appellant had the care, management of, control of, the cotton when taken. The owner was absent only for the day, and appellant was acting for him merely in weighing the cotton and in paying the hands. If he took the cotton fraudulently it was theft, and not embezzlement.

(2) Appellant contends, as set out in his bill of exceptions No. 5, the trial court gave an erroneous charge on appellant’s explanation of his possession of recently stolen property, and that this court erred in holding that such charge was given at request of appellant. It seems to us that a mistake was made in the former opinion in stating that the charge was given at the request of appellant, and same is modified to that extent, but the giving of the charge by the trial court was not error. It appears from the record that, before the alleged stolen property was found in the wagon being driven away from the premises of the owner, appellant was asked about the cotton and denied having it, and when it was found in said' wagon rolled up in some bedclothes — it appears from his bill of exceptions No. 5 and the sixth ground of his motion for new trial — that he then said that he bought the cotton from a negro, but later stated that he took it from the owner’s premises thinking it would be all right with Mr. Wallace and intended to pay him for it. These facts justified the charge on explanation of possession of recently stolen property.

(3) Appellant contends in his motion that the trial court should have given his special charge No. 1 directing a verdict for him upon the main ground that the property was not taken from the possession of Buck Wallace, the owner. We cannot agree with appellant in this contention. Wallace was away from home for the day at the Dallas fair, and says positively 'that he did not leave his cotton in chárge of appellant. The temporary absence of the owner does not change the ownership and control in theft prosecutions.

(4) Appellant strongly complains that his bills of exceptions have been “explained away” ; that they and the statement of facts were not filed till the last day permissible, and that thereby he has been injured. The trial was had on April 2d, and the court adjourned on April 27th, and on May 17th the statement of facts and bill of exceptions were filed. No reason is shown why appellant could not have had the time extended if the statement of facts and bills as approved by the court were not satisfactory to-him, and no reason is shown why the same matters were not pressed upon the court for action sooner. Of course, every man tried in the courts is entitled to have his case come before the upper court upon the exact record as made upon the trial, and it is unthinkable that a judge or other person would willfully attempt to take away this unquestioned right of every defendant. And the matter is so serious that charges of conduct of this kind ought to be made only in plain cases.

All errors complained of in the bill of exceptions so “explained” by the court were as to statements made by the county attorney in his argument to the jury. The court gave the written instructions asked by appellant, telling the jury not to consider one of said statements. The court refused to give the requested charge for the jury to disregard tho other statement, and when the bill of exceptions was presented which was taken to his action he qualifies same by saying, in substance, that the county attorney’s statement was in response to the argument oí appellant’s attorney along the same line. In this we can see no error. We are inclined to think the able counsel for appellant, actuated by commendable zeal for his client’s welfare, overestimates the effect upon the jury of the statements of the county attorney complained of.

The- real merit of appellant’s defense lay in his claim that he tools the cotton without fraudulent intent, and expecting to pay for it, and believing it would be all right with the owner. This defense was fully presented to the jury in two separate ways by the trial judge, and the jury found against appellant thereon.

Believing there was no material error in the original opinion, the motion is overruled.
      <S=nFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      tg^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MARTINEZ v. STATE.
    (No. 5197.)
    (Court of Criminal Appeals of Texas.
    Nov. 20, 1918.
    On Motion for Rehearing, Jan. 15, 1919.)
    1. Criminal Law <0=1090(16) — Review— Necessity oe Statement oe Pacts — Bill oe Exceptions.
    Where the only question suggested in the motion for a new trial is that the judgment is contrary to the law and the evidence, the same cannot be considered in the absence of a statement of facts; there being no bill of exceptions.
    On Motion for Rehearing.
    2. Criminal Law 3=742(1) — Credibility-Question eor Jury.
    The credibility of witnesses is a question for the jury.
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    Daniel Martinez was convicted of violation of the Prohibition Law, and appeals.
    Judgment affirmed.
    J. B. Larazola and P. E. Gardner, both of El Paso, for appellant.
    E. B. Hendricks, Asst. Atty. Gen,, for the State.
   PRENDERGAST, J.

This is an appeal from a conviction for violation of the Prohibition Law. There is neither a statement of facts nor a bill of exceptions. The only question suggested in the motion for a new trial is that the judgment is contrary to the law and the evidence, which, of course, cannot be considered in the absence of a statement of facts.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

This case is before the court on appellant’s application for rehearing.

At a former time the case was affirmed, the only complaint being that the evidence was insufficient to support the verdict, and there being then on file no statement of facts or bills of exception, as shown by the opinion of the court.

In connection with this motion for rehearing, appellant flies a sworn statement from the clerk of the district court at El Paso that a statement of facts was filed with him in time and that it was his neglect in failing to send the same up to this court. The statement of facts is now on file in this court and -has been duly considered before rendering this opinion.

As stated in the original opinion, the only contention of appellant is that the evidence is insufficient to support the conviction. Two witnesses testified positively to appellant’s guilt. The testimony of one of them was attacked, and to some extent contradicted, by testimony introduced by the appellant. The evidence of the other witness is pointed and positive as to appellant’s guilt, and this witness is in no wise impeached or contradicted except by the statement made by appellant’s wife.

The question of the credibility of the witnesses is for the jury, and, that issue having been decided in favor of the state, we do not feel that there is anything to show prejudice on the part of the jury or that they acted without due regard for the appellant’s rights.

The motion is overruled.


author: MORROW, J.

text:
    BRYANT v. STATE.
    (No. 5225.)
    (Court of Criminal Appeals of Texas.
    Nov. 27, 1918.
    Rehearing Denied Jan. 15, 1919.)
    1. Criminal Law 3=1144(19) — Appeal — Record on Appeal — Presumptions.
    Where a qualification by the trial judge of a bill of exceptions is criticized by appellant, but without taking an exception thereto, it will be presumed on review that the explanation was attached with appellant’s approval; the law not requiring him to accept a qualified bill.
    2. Criminal Law 3=404(4) — Evidence — Clothing oe Deceased.
    In a murder trial it was not error to allow the introduction of clothing, worn by deceased during the time of the homicide, to show by the location of shot holes the position of deceased at the time he was shot, whether facing defendant or not, as bearing on the question of self-defense.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    Jobn.Bryant was convicted of murder, and he appeals.
    Affirmed.
    S. J. Osborne, of Kaufman, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of murder, and his punishment fixed at confinement in the penitentiary for a period of ten years.

The only question raised for review by the record is that involved in the court overruling appellant’s objection to the introduction of the clothing worn by deceased at the time of the homicide. The statement of facts' discloses that the appellant was occupying a house upon the farm of deceased, the state’s theory and evidence being to the effect that the deceased, while on his way to his field, and while passing near the house occupied by the appellant, was assassinated by the appellant.

Appellant’s theory and testimony was that, as the deceased walked in front of appellant’s house, appellant remarked, “I see you have your gun now.” That deceased was leading a horse, walking in front, and said, ‘‘Get back, or I will shoot your head off,” and raised his gun; that appellant then went in the house, got his gun, and walked back to the door, when deceased stepped behind his horse and attempted to draw his gun over the horse’s head. The horse reared tack, when appellant shot. The appellant said the deceased had his gun in both hands, pointing at appellant, and that he was standing in a position that one would stand in trying to shoot.

The physician who attended deceased said that he was shot in the left side with small shot; some took effect behind the arm, some in front of it, and some across his breast; that the shot took effect in the left side, penetrating the skin from about the shoulder to aboiit the waistline; some behind and some in front; some scattered behind the arm, and some close to the arm in front. Those in front appeared to be glancing shot. As to whether there were any directly in the arm, witness had made no close examination and could not state.

The witness Young testified, describing the clothes introduced, and that the shot marks in the pants started above the front left-hand pocket and ranged in behind the left-hand hip pocket; that there were no holes in the shirt under the arm, but there were on top of the arm, on the front of the arm probably a little on the top of the front of the arm.

The trial judge in qualifying the bill of exceptions stated that the position taken by the state was that the deceased when he was shot was leading a mule with one hand and holding the gun in the other hand, his arm down beside his body, and had gotten just in front, or a little past the door of defendant’s house, when defendant fired the gun, the shot taking effect more nearly in the back than in front of the side of his body, and on the outside of his arm, and no shot penetrated the body immediately under the arm, or In the underside of the arm. That the defense contended that the deceased’s gun was in position to shoot, his arm raised from the body, and in an entirely different position from that claimed by the state, and that deceased was facing appellant when the shot was fired.

The qualification of the bill is criticized by the appellant, but, in the absence of exception to it, brought up in the record, the presumption must be indulged in this court that the explanation was attached with the appellant’s approval. The law did not require him to accept a qualified bill. Exon v. State, 33 Tex. Cr. R. 461, 26 S. W. 1088; Thomas v. State, 204 S. W. 999.

We have carefully examined the statement of facts, however, and are of the opinion that the court’s qualification of the bill is not without support in the evidence. The location of the shot holes in the clothing appears to have had a material bearing on the controverted issue touching the position of the deceased at the time he was shot, and relating to the question of whether the homicide was unlawful or justifiable.

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


text:
    CAMPOS v. STATE.
    (No. 5177.)

    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.
    Rehearing Denied Jan. 15, 1919.)
    1. Larceny ⅞»15(3) — Theft by Bailee — Necessity oe Contractual Relation.
    Where defendant in prosecution for theft was sent by his employer to deliver oil, with a bill for 90 cents, and through the storekeeper’s mistake, in thinking that the bill was for $9, was given that amount,, and kept $8.10, there was no theft by bailee; the money not coming into defendant’s possession by virtue of a contract.
    2. Larceny <g=>15(3) — By Bailee — Intent.
    Where accused was sent to a store to deliver 90 cents worth of oil, and by mistake was paid $9, and kept $8.10 of it, if, when receiving such money from storekeeper, he formed the criminal design to appropriate it to his own use, and did so appropriate it, the appropriation would be theft, but if he subsequently formed such fraudulent purpose, he could not be convicted under the general charge of theft under Vernon’s Ann. Pen. Code 1916, art. 1332.
    Appeal from Bexar County Court; Nelson Lytle, Judge.
    S. C. Campos was convicted of misdemean- or theft, and appeals.
    Affirmed.
    Diedrich A. Meyer and W. C. Linden, both of San Antonio, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of ' misdemeanor tlieft, and Ais punishment fixed at three months’ confinement in the county jail.

He was an employé of one Dielmann, who sent him to deliver a five-gallon can of oil to the Sherwin-Williams paint store, giving him the bill for the oil against one Roeglein for 9.0 cents. The purchaser of the oil was-a customer of the paint store, and the contention of the state is that when the bill was presented one Connor, a clerk in the store, was told by another employe to pay the bill, stating, “Here is a $9.00 C. O. D. order.” Whereupon Connor paid the appellant $9, whereas the bill called for but 90 cents. Appellant accounted to his employer for the 90 cents, and his conviction is based upon the proposition that he was guilty of theft of the remainder of the $9, namely $8.10. Complaint was not made by Connor until two days after the transaction, when he called on appellant’s employer and claimed that he had by mistake paid $9 to appellant instead of 90 cents. Appellant denied that he received the amount, claiming that he received but $1, and gave Connor 10 cents in change. He said that on his return he gave his employer the dollar and received 10 cents in change. His employer testified that the appellant did on his return give him the dollar, receiving 10 cents in change. Appellant claimed that he had no further money, and that he had gotten special permission subsequently on the same day to obtain 25 cents on his wages for the purpose of getting his lunch. He was corroborated by his employer with reference to obtaining this 25 cents on the statement that he wanted it for the purpose named. He bore a good reputation, and had been in the employ of Dielmann for a long time, and had frequently collected money for him, and always accounted for it. Connor’s testimony was corroborated by another employs of the Sherwin-Williams Company, who stated that he had handed the bill to Connor telling him it was a $9 C. O. D. bill, and that he had seen Connor pay the appellant money; he remembered a $5 bill and two silver dollars.

The indictment charged theft and theft by bailee. Both counts were submitted to the jury, and the jury found appellant guilty of theft.

Appellant complains of the refusal of the following special charge:

“Xou are instructed that before you can find the defendant guilty of the offense of theft charged in the information you must believe from the evidence beyond a reasonable doubt that the defendant took the money wrongfully at the time of the taking. If you believe from the evidence beyond a reasonable doubt that the defendant obtained the money by means of a false pretext or representation, and that the defendant at the time he received the money, if he did receive it, had the intent to deprive the owner of the value thereof and to appropriate it to his own use and benefit, then he would be guilty ; otherwise not.
“So, of course, if you should believe from the evidence that these facts did not exist, you will find the defendant not guilty, and this even though you should believe from the evidence that the defendant, after he received the money, if he did receive it, formed the intent to appropriate the money to his own use and benefit and to deprive the owner of the value thereof.”

The transaction from the state’s standpoint did not justify the submission of the issue of theft by bailee. A prosecution for that offense must be based upon the conversion of property which comes into the possession of the accused by virtue of a contract. There could be no contract implied from this transaction. From his standpoint Connor simply delivered to appellant $8.10 by mistake. Appellant claims to have received but one dollar, of which he returned 10 cents. If he received the other $8, it was not his money and was not his employer’s money, and no contractual relation between him and Connor resulted. See Fulcher v. State, 32 Tex. Cr. R. 624, 25 S. W. 625.

If when appellant received the money he formed the erdmirial design to appropriate it to his own use and did so appropriate it, it would be theft. Fulcher v. State, 32 Tex. Cr. R. 624, 25 S. W. 625. If he received it without the criminal design and subsequently formed the purpose to fraudulently appropriate it, he could not be convicted under the general charge of theft under article 1332, Vernon’s Ann. Pen. Code 1916, under which this prosecution is had. If there was evidence upon which to base such charge, it would have been proper to tell the jury that appellant could be convicted of theft only in the event he formed the intention to fraudulently appropriate the money at the time he received it. The special charge requested in a sense suggests this theory, though it is not framed so as to properly present it. The evidence, however, as we view it, does not raise this issue. It does not suggest that, if appellant received $9, he did not know it was not more than the amount of his bill. There seems to have been but one issue, namely: Did Connor pay him $1, or did he pay him $9. This issue could be solved under a general charge of the court instructing the jury that the right to convict was conditioned upon belief beyond a reasonable doubt that appellant fraudulently took the money from the possession of Connor. This issue the jury solved against appellant on conflicting evidence, and we do not feel authorized to disturb the finding which has been approved by the trial court. The suggestion that it was necessary to prove the value of the money seems not well founded. See Branch’s Ann. P. C. p. 1422, § 2620, and cases cited: Britain v. State, 52 Tex. Cr. R. 169, 105 S. W. 817; Dennis v. State, 74 S. W. 559; Butler v. State, 46 Tex. Cr. R. 289, 81 S. W. 743; Jackson v. State, 60 Tex. Cr. R. 273, 131 S. W. 1076.

The judgment is ordered affirmed.
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author: DUNKLIN, J.

text:
    LOVELADY et al. v. HARDING et al.
    (No. 8912.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 2, 1918.)
    1. Landlobd and Tenant @=230(8) — Action fob Rent — Vaeiance.
    The petition, in action for rent, alleging -written lease of second and third floors of building, lease offered in evidence in terms of second floor, is subject to objection of fatal variance.
    2. Pleading @=376 — Necessity of Proof— Admission in Plea.
    Plaintiff must prove the lease as alleged in petition, notwithstanding special pleas in answer admitting it, they following and being subordinate to a general denial of allegations of petition, coupled with demand for strict proof.
    3. Frauds, Statute of @=158(4) — Parol Evidence — Vaeting Lease.
    In view of statute of frauds as to lease for more than a year, parol evidence that written lease in terms of second floor, was intended to also cover third floor, is unavailing.
    4. Landlobd and Tenant @=230(8) — Action foe Rent — Vabiance.
    There is no fatal variance between lease executed by husbands alone, and petition of husbands and wives for rent, expressly alleging it was so executed, coupled with allegation that it was executed on behalf of all the plaintiffs.
    5. Landlobd and Tenant @=61 — Estoppel of Tenant.
    Lessee is estopped to deny lessors’ title, though the proofs show the property belonged to the lessors’ wives.
    6. Refoemation of Instbuments @=44 — Mutual Mistake — Numbee of Leased Building-Evidence.
    To show mutual mistake, claimed by lessor, for reformation of lease describing leased building as No. 10, evidence that the building occupied by lessee under the lease was No. 11 is admissible.
    7. Landlobd and Tenant @=231(2) — Change of Tenant — Evidence.
    To meet plea and testimony of lessee, sued for rent, that there was an agreement acted on, that another should be substituted in her place as tenant, lessors’ agent for collection of rents could testify that he made no such agreement.
    8. Landlobd and Tenant @=200(1) — Substitution of Tenant — Re-entby of Oeiginal —Rate of Rent.
    If written lease was abrogated by agreement substituting another as tenant, then for any part of the term that the original lessee occupied under re-entry, after the substituted tenant vacated, the measure of recovery is not the rent stipulated in lease, hut the reasonable rental value, in the absence of another contract fixing rent for such period.
    9. Appeal and Ebboe @=742(1) —Assignments of Ebboe — Statements.
    Assignment of error will not be considered, statement following it being foreign to it.
    10. Release @=52 — Agbeement foe — Mutual Mistake — Plea.
    A plea, whereby defendant sought to avoid an agreement for release, alleging that she executed it with a certain understanding and under a certain belief as to its legal import, is insufficient as a plea of mutual mistake.
    11. Release @=52 — Agbeement for-Fraud —Plea.
    A plea whereby defendant sought to avoid an instrument executed by her and a company, alleging that she was induced to sign by contemporaneous oral agreement of company’s agent that in consideration therefor the company would do certain things, and that she executed it with the understanding and under the belief that such was its legal import, and that she was not indebted to the company in the amount named in it, is insufficient as a plea of fraud.
    12. Evidence @=443(3) — Pabol Agreement— Considebation.
    The indebtedness mentioned in an instrument, executed by defendant and a company, which the company agreed to satisfy on payment of a certain sum by defendant, not being definitely stated, and the instrument contemplating that a pending suit, in which the company and another asserted claims against defendant, should be dismissed, she, so pleading, could testify that the company’s agent, who procured her signature, agreed as consideration that the company would satisfy all claims asserted against her in the suit.
    13. Tbial @=194(8) — Insteuctions — Disee-gabding Testimony.
    The court in its charge could not assume as untrue proof sufficient to support allegations as to actual application of payments.
    14. Landlobd and Tenant @=254(2) — Lien —Waiver—Suing Out Writs.
    Plaintiffs do not waive a landlord’s lien by suing out a writ of sequestration and distress warrant, though the writs are levied on part of the property on which the lien is claimed.
    Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.
    Action by R. E1. Harding and others against Maud Lovelady and others, with cross-action by defendant Fakes & Co. From adverse judgment the named defendants appeal.
    Reversed and remanded.
    McLean, Scott & McLean, L. M. Levy, M. H. Brown, and Chas. T. Rowland, all of Ft. Worth, for appellants.

      Ross, Ross & Alexander, W. P. Young, M. I/. Massingill, and Glover 0. Johnson, all of Ft. Worth, for appellees.
   DUNKLIN, J.

R. E. Harding and C. T. Burns executed a lease for a period of 42 months to Maud Lovelady on a portion of a building situated in the city of Ft. Wbrth, which was the separate property of Mrs. Merle R. Harding, wife of R. E. Harding, and Mrs. Ella R. Burns, wife of O. T. Burns. The property was used by the lessee as a hotel and rooming house.

This suit was instituted by R. E. Harding and wife and C. T. Burns and wife to recover a balance alleged to be due as rents for the period of time covered by the lease and for 10 months after the termination of that period. It was alleged in plaintiffs’ petition that by the terms of the lease, which was in writing, a lien was created upon all property which the lessee might place in the leased premises, and plaintiffs prayed for a foreclosure of that lien, and also the statutory landlord’s lien upon certain articles of furniture which the lessee had used in conducting a hotel and rooming house.

It was further alleged that Mrs. J. A. Nay-lor had, by written instrument and for a valuable consideration, agreed to pay and guaranteed the payment of $350 of the rents accruing under said lease, and she was made a party defendant in order to recover of her that sum with interest thereon. It was further alleged that Fakes & Co. and the Ft. Worth Wlarehouse '& Transfer Company, both private corporations, had wrongfully converted to their own use the furniture upon which plaintiffs claimed a lien for the rents alleged to be due, and those two corporations were likewise made defendants, and judgment was sought against them for the value of the property so alleged to have been converted.

Fakes & Co. filed a cross-action, in which it sought judgments over against Maud Love-lady and also Mrs. J. A. Naylor for the purchase price of some of the furniture which had been placed in the leased premises, and also for foreclosure of a chattel mortgage given to secure the payment of the same.

After the institution of the suit plaintiffs sued out a writ of sequestration, which was levied upon certain articles of furniture; but later the same was replevied by Maud Love-lady by giving a statutory replevy bond with sureties thereon. Plaintiffs recovered judgment against Maud Lovelady for the balance of the rents claimed in their petition, also for foreclosure of the lien alleged to secure the same, said foreclosure being against all of the defendants, and the lien being decreed as superior to the chattel mortgage lien claimed by Fakes & Co. upon the same property. In the judgment it was recited that the property so replevied by Maud Love-lady had since been disposed of by her, and that she was unable to return the same to the ’ officer who levied the writ of sequestration, and accordingly a personal judgment was rendered in plaintiffs’ favor against the sureties on the replevy bond for the value of the property so replevied, but no personal judgment was rendered in plaintiffs’ favor against Fakes & Co. or the Ft. W|orth Warehouse & Transfer Company.

Judgment was also rendered in favor of Fakes & Co. against Maud Lovelady for the sum of indebtedness, it claimed she owed, and for a foreclosure of its mortgage lien against the furniture, upon which plaintiffs were given a foreclosure, but subject to plaintiffs’ lien, which was decreed to be a prior and superior lien. Fakes & Co. also recovered a personal judgment against Mrs. J. A. Naylor for the amount shown to be due upon promissory notes executed by her in favor of Fakes & Co.

From the judgment so rendered Maud Lovelady and Fakes & Co. have appealed.

In plaintiffs’ petition it was alleged that the lease contract executed by Maude Lovelady was in writing, and by its terms plaintiffs—

“demised and leased to said defendant Maud Lovelady property located in precinct No. 1, Tarrant county, Texas, and known and described as the second and third floors of the building known as 1007½ Houston street, in the city of Ft. Worth, Tarrant county, Texas, the ground floor of which was at the time and is now occupied by the Wm. Henry Hwd. Co.”

Upon the trial plaintiffs introduced in evidence a lease describing the leased premises as follows:

“Being 2nd floor of building of which ground floor is now occupied by the Wm. Henry Hwd. Co., better known as 1107½ Houston street.”

Defendant Maud Lovelady objected to the introduction of the lease on the ground that it was a different instrument from that alleged in plaintiffs’ petition, and that the variance was fatal. In overruling that objection we think the court erred.

It will be observed that the written lease was to the second floor only of the building, while the pleading of the plaintiffs alleged it to cover the second and third floors, and this discrepancy, we think, constituted a fatal variance, even though it should be said, but which we do not feel called upon to decide, that the designation of the premises in the pleadings and the lease as being a building, the ground floor of which was occupied by the “Wm. Henry Hwd. Co.,” would be sufficient to render unimportant the further variance in the description of the building in the lease as 1107½ instead of 1007½ Houston street.

Appellees insist that it was unnecessary to introduce proof of the lease, in view 6f the fact that the answer of Maud Lovelady contained special pleas in which she admitted the execution by plaintiffs R. EL Harding and C. T. Burns as lessors, and herself as lessee, of a lease of the property described in plaintiffs’ petition, upon the terms and for the length of time therein alleged, and for that reason the assignment of error now under discussion should be overruled.

While the answer of Maud Lovelady did contain such special pleas, nevertheless those pleas followed and were subordinate to a plea containing a general denial of all the allegations contained in plaintiffs’ petition, coupled with a demand for strict proof of such allegations.

In Bauman v. Chambers, 91 Tex. 111, 41 S. W. 472, our Supreme Court used the following language:

“When a fact alleged in the petition is denied, either generally or specially, by the defendant in his answer, the plaintiff must prove it, although the defendant may, in another plea, aver the same fact. We have so held at the present term of this court. Silliman v. Gano, 90 Tex. 637 [39 S. W. 559, 40 S. W. 391].”

As said in substance in that decision, to hold otherwise would virtually destroy the right given by our statutes to file inconsistent pleas, if they are filed in the due order of pleading.

By reason of our statute of frauds, it was necessary to the validity of the lease of the property for a longer period than one year that it be in writing. As noted, the lease introduced in evidence was for one story only of the building, while the lease alleged was for two stories, and all the parol proof showed that the lease was intended and understood to cover the third floor of the building as well as the second floor. But such parol proof was unavailing in view of the statute of frauds, and there was no written evidence whatever to show that the third floor was leased. Nor was there any allegation in plaintiffs’ pleadings of mutual mistake in the drafting of the lease nor any attempt to reform it.

There is no merit in the contention that there was a further fatal variance in that the lease was executed by R. E. Harding and C. T. Burns alone, without being joined therein by their wives, who owned the property in their separate rights, since in plaintiffs’ petition it was expressly alleged that the lease was so executed, coupled with the further allegation that the same was executed in behalf of all the plaintiffs. Furthermore, the lessee was estopped to deny the title of her landlords ’named in the written lease under which she occupied the premises; and for this reason wei overrule another assignment in which complaint is made of the refusal of Maud Lovelady’s request for an instructed verdict in her favor) because the proof showed that the property leased was the separate property of Mrs. Harding and Mrs. Burns, who did not execute the lease jointly with their husbands. Standley v. Currey, 161 S. W. 416; Juneman v. Franklin, 67 Tex. 411, 3 S. W. 562.

With respect to two other assignments, in which complaint is made of proof admitted to identify the building, we suggest that upon another trial, if there is a proper plea of mutual mistake of the parties in the written lease in describing the property as No. 1107½ instead of No. 1007½ Houston street, then we believe that testimony to show that the latter number was the number of the building that was occupied by the lessee under the lease would be admissible as tending to sustain such a plea.

There was no error in permitting tile witness Taylor, who was agent for plaintiffs ini the collection of the rents, to testify that he never made any agreement with Miss Lovelady or Mrs. Naylor that the latter should be substituted as tenant in the place and stead of the former, in view of the plea and testimony of Miss Lovelady, in effect, that there was such an agreement, and that in accordance therewith Miss Lovelady vacated the premises, which were thereafter occupied by Mrs. Naylor for several months, and that during such occupancy plaintiffs looked to Mrs. Naylor alone as the tenant, and the rents were paid by her as such.

In connection with that plea of substitution of Mrs. Naylor as tenant, and the resulting release of Miss Lovelady from her rental contract, the latter further pleaded that, after Mrs. Naylor had occupied the premises for a few months, she, too, vacated the premises, and Miss Lovelady then re-entered the same, and thereafter occupied the property as a tenant, not under the original lease contract, but under an implied contract to pay the reasonable value of the rental, and not under any contract to pay any fixed sum. Some testimony was introduced tending to support those allegations, after the introduction of which Miss Lovelady offered testimony tending to show that the reasonable rental value of the premises during her second occupancy was less than the amount stipulated in the written lease, but upon objection by plaintiffs, this proffered evidence was excluded. This ruling, we think, was error, since, if the written contract was abrogated before the termination of the rental period stipulated therein, then, in the absence of another contract fixing the amount of rents for the time Miss Lovelady occupied the premises after Mrs. Naylor vacated them, the measure of plaintiffs’ recovery for that period clearly would be the reasonable rental value of the property; but such proof would not be admissible to reduce the rents stipulated in the lease accruing prior to the alleged occupancy by Mrs. Naylor, if such lease was legally effective.

The respective statements following the sixth and seventh assignments of error in the brief of Miss Lovelady are entirely foreign to those assignments, which therefore will not he considered.

Eakes & Co. sought a recovery of Miss Lovelady for $625, with interest, 'upon the following written instrument, which was introduced in evidence:

“October 30, 1916.
“Miss Maud Lovelady, Eort Worth, Texas:
“Dear Madam: Upon receipt of your check for $625, and the return of the Yictrola, Buck Range, all records, and six carpets, we will give you a receipt in full of all indebtedness. This, of course, includes the goods delivered to our warehouse off of the Interurban. Dismissal of suit now pending. Yours very truly,
“Eakes & Company,
“E. A. Martin, Mgr.
“Accepted:
“Fakes & Company.
“F. A. Martin.
“Maud Lovelady.”

Miss Lovelady sought to avoid the instrument by a special plea to the effect that she was induced to sign it by reason of an alleged contemporaneous parol agreement of the agent of Eakes & Co. that in consideration therefor said company would pay off and discharge all the claims against her in this suit by all parties, and that she executed the instrument with that understanding, and under the belief that such was the legal import of the instrument, and that she was not then indebted to Fakes & Co. in the amount named in the instrument. Upon the trial she offered to testify substantially to the facts so pleaded, but upon objection of plaintiffs such testimony was excluded by the court, although the ground of the objection was not stated. Furthermore, the objection was addressed to the testimony as a whole. The special plea mentioned was wholly insufficient as a plea of mutual mistake or fraud inducing the execution of the instrument, and none of the testimony excluded was admissible upon that theory, which is the theory upon which appellant now insists that it was admissible. But in view of another trial we deem it proper to say that, in view of the fact that the indebtedness mentioned in the instrument therein which Fakes & Co. agreed to discharge upon payment of the $625 is not definitely stated, and in view of the further fact that the instrument also contemplated the dismissal of the present suit which was then pending, we think it would be permissible for Miss Lovelady to testify that the agent of Fakes & Co. who procured her signature to the instrument agreed as a consideration therefor that said company would satisfy all claims asserted against Miss Lovelady in this suit:

■ The alleged lease contract by its terms expired July 7, 1915, and according to allegations in plaintiffs’ petition Miss Lovelady paid all the rents accruing thereunder up jto November 14, 1914, but still owes a balance for the remainder of the term covered by the lease, aggregating $350, and she also owes a balance aggregating $575 for the period of ten months during which she held the property after the expiration of the period fixed by the lease, and in that connection it is alleged that she made partial payments of rents during that period, aggregating $675. Plaintiffs alleged that, by virtue of the fact that Miss Lovelady held the premises over after the expiration of the lease, she was obligated to pay rents at the rate per month stipulated in the lease, thereby invoking the rule announced in Woodward v. F. W. & D. C. Ry. Co., 35 Tex. Civ. App. 14, 79 S. W. 896, and authorities there cited. They also alleged and sought to foreclose the statutory landlord’s lien for the rents accruing during the period following that covered by the lease.

Fakes & Co. claimed a chattel mortgage lien upon some of the furniture situated in the building, which the proof shows was dated April 6, 1914, and was filed for record on the following day. And said company now insists that the payments made after the termination of the lease should be by the court applied, first, to the liquidation of the balance due upon the written lease, and then to the satisfaction of the rents accruing from month to month during the hold-over period. This contention is based upon the further contention that there was never any application made of these payments to any particular demands, and therefore the court, should apply them to the satisfaction, of the debts in the order named. And upon the assumption of the correctness of those contentions complaint is now made of the refusal of said company’s request for an instructed verdict to the effect that its chattel mortgage pleaded was a superior lien to plaintiffs’ contract lien stipulated in the written lease, as well as their alleged liens for rents accruing during the' hold-over period, thus invoking the rule announced in such cases as H. R. E. B. & B. Ass’n v. Cochran, 60 Tex. 620.

In answer to all assignments presenting this contention, it is sufficient to say that the proof was sufficient to support the allegations by plaintiffs that the payments of rents mentioned were applied by plaintiffs exactly as pleaded, and the trial court could not in his charge assume that such proof was untrue.

Said appellant further insists that plaintiffs waived their cause of action against it by reason of .the fact that they sued out a writ of sequestration and also a distress warrant, each of which writs was levied upon a part of the property upon which they claimed a lien and sought a foreclosure thereof. We fail to perceive how the lien was waived by the steps so taken, even though it could be further said that plaintiffs could not claim damages for a conversion of the property so impounded by the levy of such writs.

For the reasons indicated the judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.
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author: HODGES, J.

text:
    BOY et al. v. McDOWELL.
    (No. 2011.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 13, 1918.
    Rehearing Denied Nov. 28, 1918.)
    1. Adverse Possession <§=>66(2) — Notorious Possession.
    An encroachment upon the land of another, due solely to a mistake in the location of the true boundary, is inconsistent with a claim of ownership to any portion of the land beyond the limits of the inclosure.
    2. Adverse Possession <§=>85(1) — Presumptions — Claim op Title.
    Possession of premises usually carries with it the presumption, of a claim of title.
    3. Adverse Possession @=>100(1) — Possession .Under Deed.
    When a deed is the basis of possession of land, it defines the extent of the hostile claim.
    4. Adverse Possession <§=>28 — Hostile Possession — Necessity.
    One of the essentials required to perfect a title by limitation is that the adverse claim must be open and notorious in order to inform the true owner that his title is contested.
    5. Adverse Possession <§=>66(2) — Hostile Possession.
    An encroachment upon the land of another, due solely to a mistake in the location of the true Boundary, may he converted into an adverse claim to land beyond the inclosure sufficient to mature into a title by limitation by acts showing a hostile intent, such as actual notice to the owner that legal title to the entire tract was claimed.
    ' Appeal from District Court, Cass County; H. F. O’Neal, Judge.
    Suit by J. M. McDowell against Mabe Boy and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Turner & Smitha and T. N. Graham, all of Texarkana, for appellants.
    O’Neal & Allday, of Atlanta, for appellee.
   HODGES, J.

Claiming to be the owner of the Gilbert survey of 63 acres situated in Cass county, the appellee instituted this suit in the form of an action of trespass to try title against the appellants. The contest was mainly between him and the appellant Mabe Boy, under whom the appellant R. W. Lewis claims. The evidence shows that the principal portion of the Gilbert survey lies between the Stevenson on the north and the Downey on the south, both of which are older surveys than the Gilbert. The appellee, McDowell, relies for title upon a purchase and conveyance from W. C. 'Henderson in 1902, and adverse possession and payment of taxes thereunder for more than five years before this suit was filed. The appellant Boy claimed under a conveyance from Womack & Sou made in 1900. At the time these conflicting deeds originated, the Gilbert land was un-inclosed. The Downey survey consisted of' 177 acres, and in 1895 had been divided between its respective owners by a line running north and south. Vaughan, the father-in-law of the appellee, owned 100 acres on the west side of the Downey, and Stewart 77 acres on the east side. There appears to be no controversy about the true location of the south boundary line of the Downey, but the location of the north boundary line could not be fixed except by a survey. Many years before this suit originated, the owners of the Downey caused a survey to be made, and marked upon the ground a line which they then believed was the boundary line between it and the Gilbert; and this line seems to have been regarded as the true division line until some time in 1964. Vaughan died in the year 1904, and the same year the appellee acquired the interest of the Vaughan heirs in the 100 acres in the Downey survey. At that time there was a fence running along the line formerly established as the north line of the Downey, which had been placed there by Vaughan. Some time after the ap-pellee acquired the Downey land, he caused another survey to be made in order to locate the division line between the Gilbert and the Downey. This could only be done by running according, to course and distance from the undisputed south boundary line of the Stevenson or the well-recognized south boundary line of the Downey. The survey resulted in locating another line several varas south of that which Vaughan had regarded as the true boundary between the Downey and th6 Gilbert. According to the line last run, the appellee, McDowell, had inclosed eight or ten acres of the Gilbert tract;. that was the beginning of the controversy between him and the appellant Boy. The appellee testified that his father-in-law, Vaughan, owned the Dow-ney land before he moved onto it; that there are about nine acres of the Gilbert under his fence, four or five of which are in cultivation. He first discovered that this inclosed land was a part of the Gilbert in the-fall of 1904. He had paid taxes on the entire Gilbert tract since 1902. All of the land in the inclosure had been cut over; but, on account of its being low and fiat, all had not been put in cultivation. He had used and occupied that land every year since, and had also sold timber off the other portions of the Gilbert tract. He admitted, however, on cross-examination, that the fence had been put where it then was by Vaughan under the impression that it was the true boundary line between the Downey and the Gilbert surveys.

The appellee’s title to the Downey was undisputed, but the appellant Boy claimed ex-elusive ownership of the Gilbert. It appears that in 1908 he instituted a suit in the district court of Cass county against the appel-lee for the purpose of recovering the Gilbert tract, together with rents and damages. That suit remained upon the docket of the district court of Cass county for nearly five years, and was then voluntarily dismissed by the appellant Boy.

In the trial of this case in the court below, a verdict was rendered in favor of the appel-lee, McDowell, for the land; and it is from that judgment that this appeal is prosecuted. The only errors assigned are, in substance, that the evidence does not support the verdict.

It is contended: First, that McDowell never had possession of any portion of the Gilbert survey; and, second, that if it should be held that he did have possession of a portion of that survey, such possession was not adverse within the meaning of the statute of limitations. There was ample testimony to support the finding that McDowell had inclosed about nine acres of the Gilbert survey, and that he had been cultivating and using the greater portion of that inclosed land for more than five years before the institution of this suit. We deem it unnecessary to discuss in detail the testimony of the witnesses upon that issue. While it was conflicting, yet there is sufficient to support the finding involved in the jury’s verdict.

The contention that McDowell’s ownership was not notoriously adverse is based, upon the proposition that, his occupancy having originated in a mistaken location of the north boundary line of the Downey, his title by limitation would at most be restricted to the land which he had actually inclosed. In support of that proposition we are referred to the case of Holland v. Nance, 102 Tex. 177, 114 S. W. 346, and others of similar import. In that case it was held that an adverse claim based upon the mistaken location of a boundary line, and which resulted in an encroachment of a few feet upon the land of an adjoining owner, was not sufficient, as a matter of law, to establish the essentials necessary to constitute a title by limitation. In Smith v. Jones, 103 Tex. 632, 132 S. W. 469, 31 L. R. A. (N. S.) 153, Judge Williams, after pointing out the controlling facts in Holland v. Nance and other similar decisions, says:

“The facts were held to present a question of law, and not one of fact for the jury. It must be kept constantly in mind that, in applying a proposition like that, the facts of particular cases must be carefully regarded, and that additional facts may easily take the question, whether the evidences of possession and the adverse claim were sufficiently certain and unequivocal to give notice to reasonably diligent owners, out of the province of the court and into that of the jury.”

It seems that in the cases referred to the decision of the court turned on the sufficiency of the evidence to show a notice to the true owner of the adverse claim relied upon. An encroachment upon the land of another, due solely to a mistake in the location of the true boundary, is inconsistent with- the claim of ownership to any portion of the land that lies beyond the limits of the indosure. Possession of premises usually carries with it the presumption of, a claim of title, and in that sense operates as notice to the true owner that his title is disputed. When a deed is the basis of the possession, it defines the extent of the hostile claim. But this presumption is one of fact, and may be rebutted by proof that the possession is not adverse, or that it was due to a mistake in locating a boundary line, and that there was no intention on the part of the trespasser to claim beyond the limits of his actual inclosure. When possession begins in this manner, it would be unfair to permit the intruder, in order to claim the benefits of the statute of limitations, to show that he had secretly altered his intention and had for more than the statutory period quietly nursed the design to claim as his own all of the land which the character of Ms possession would permit. One of the essentials required to perfect a title by limitation is that the adverse claim must be open and notorious, in order to inform the true owner that his title is contested. But it does not follow that a possession unaccompanied at the beginning by any hostile intent, or one which is limited to the actual inclosure placed by mistake upon the premises, may not be thereafter converted into an adverse claim sufficient in the course of time to mature into a title by limitation beyond the amount actually inclosed. One whose possession originated without a hostile intent, or which was accompanied by a claim limited to the boundaries of the land actually inclosed, is not reqúired to abandon his possession and then renew it under an adverse claim before he can put in operation the statute of limitations. Udell v. Peak, 70 Tex. 547, 7 S. W. 786; Carter v. Lagrange, 60 Tex. 636; Word v. Drouthett, 44 Tex. 370; Bryson v. Boyce, 41 Tex. Civ. App. 415, 92 S. W. 820; Buford v. Wasson, 49 Tex. Civ. App. 454, 109 S. W. 275. The notoriety required may be supplied in other ways. In this case the actual notice which the evidence shows was given to the appellant Boy by the appellee that the latter was claiming the entire Gilbert tract under his deed was just as effective in starting the running of the statute as if the appel-lee had first abandoned his possession and' then renewed it to an equal extent under an adverse claim. The statute in tMs instance began to run in the appellee’s favor, not from the time the land was inclosed or his possession began, but from the time he gaye actual notice to the appellant Boy that he was claiming the entire tract under his deed from Henderson. This occurred more than five years before this suit was filed. There appears to be no dispute about the record of the appel-lee’s deed and his payment of taxes for the period required by the statute.

We are therefore of the opinion that the ap-pellee proved upon the trial a title perfected by limitation, and the judgment is affirmed.
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