author: TALBOT, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. KEMP.
    (No. 7260.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 6, 1915.)
    1. Carriers <&wkey;2S0 — Care fob Passengers Alighting.
    The care to be exercised by a carrier to prevent injury to a passenger alighting from a train is that high degree that a very cautious and prudont person would exercise under the circumstances.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1085-1092, 1098-1103, 1105, 1106, 1109, 1117; Dec. Dig. &wkey;280J
    2. CARRIERS &wkey;>303 — Care for Passengers Alighting — Special Contract.
    As regards passengers not parties to, or acquainted with the terms of, a special contract of a carrier to run a train and transport passengers to a place where it had no station, or facilities for discharging, and ordinarily did not receive or discharge, passengers, the carrier is not absolved from its duty as to their safety in alighting.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224, 1226-1232, 1234-1240, 1243; Dec. Dig. &wkey;303.]
    3. Carriers &wkey;>320 — Care for Passengers Alighting — Question for Jury.
    Whether the carrier, in the exercise of the high degree of care imposed on it for the safety of a passenger in alighting, where there were no facilities therefor, should have provided a step box, or some such appliance, is a question for the jury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315-1325; Dec. Dig. &wkey;320.]
    4. Carriers &wkey;»284 — Injury to Passenger Alighting — Negligence of Volunteers.
    The carrier is not liable for injury to a passenger in alighting because of persons assisting her, though not employés of, or authorized to act for, the carrier, being incompetent therefor or negligent in so doing.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1125, 1127-1135, 1173, 1222; Dec. Dig. <&wkey;>284.]
    5. Carriers &wkey;>284 — Injury to Passengeh Alighting — Negligence of Assistant Liability of Carrier.
    Where by the agreement between a society and a railroad for running a special train and stopping at a place where there was no station members of the society were to assist passengers off, the carrier would be liable for incompetency or negligence of members so assisting a passenger to alight.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1125, 1127-1135, 1173, 1222; Dec. Dig. &wkey;>284.]
    6. Appeal and Error &wkey;>736 — Riaiilr to CUmplain of Ebroe> — Inconsistent Positions.
    Defendant’s assignment of error to the giving of an instruction, as unauthorized by the evidence, will not be overruled because it also complains of the exclusion of testimony, which, if admitted, would have authorized the instruction, where it was not admissible on the theory on which it’was offered, which was that under it the law would be the opposite of that given by the instruction.
    [Ed. Note. — For other cases, see Appeal and •Error, Cent. Dig. §§ 3028, 3029; Dec. Dig. &wkey; 736.]
    Appeal from District Court, Grayson County ; W. J. Mathis, Judge.
    Action by K. M. Kemp against the Missouri, Kansas & Texas Kailway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    C. C. Huff, of Dallas, and Head, Dillard, Smith, Maxey & Head, of Sherman, for appellant. E. J. Smith, of Denison, and Freeman & Batsell, of Sherman, for appellee.
   TALBOT, J.

The appellee instituted this suit against the appellant to recover damages on account of personal injuries received by his wife, Mrs. E. P. Kemp, on October 12, 1913. The plaintiff alleged, in substance, that on that date there was a public unveiling ceremony conducted at Fairview Cemetery, near Denison, Tex., by the Woodmen of the World, and that a passenger train was operated from appellant’s depot in Denison to a point opposite said cemetery for the purpose of transporting people to and from said cemetery on the occasion of said unveiling; that his wife, Mrs. Kemp, boarded said train and was a passenger on same; that when the train arrived at the cemetery and stopped, the point at which it stopped was in a cut, and was provided with no platform and facilities for the convenience and use of the passengers in disembarking, and was an unsafe and dangerous place for passengers, and especially ladies, to alight; that the lowest step of the coach in which Mrs. Kemp was riding, and from which she attempted to alight, was three or four feet from the ground, and that in alighting from said train Mrs. Kemp sprained her ankle and broke ■one of the small bones in her leg, and sustained serious personal injury; that the defendant, its agents, servants, and employés, negligently failed and refused to furnish a step of any kind for the use of passengers in alighting from said coach; that it was not reasonably safe for passengers, especially ladies, to alight from the said train without the use of a suitable step or other appliance for use in so alighting, and it had long been the custom to supply said step or other appliances suitable for said purpose; that on this occasion the defendant, its agents, employés, and servants, negligently failed and refused to furnish any sort of appliance for said use. Plaintiff further alleged that the defendant was guilty of negligence in that there should have been, and was not, present a competent employé of the defendant to assist passengers, and especially ladies, in alighting from said coach at said place; that, if plaintiff be mistaken in saying that no one assisted the'said Mrs. Kemp to alight, then he says that the person or persons who undertook to assist her in alighting were not competent, skillful, and careful persons for rendering such assistance, and said person or persons, if any, were negligent, in that they failed to exercise the degree of care, skill, and prudence then and there proper and requisite in and to said service; that the defendant, its said agents, employés, and servants, were likewise guilty of negligence, in that they knew, or by the exercise of proper care would have known, the danger attendant upon alighting from said coach while in said position, and, with such knowledge, failed to warn the said Mrs. Kemp and other passengers on said train of said danger; that all of the aforesaid facts and dangers were known to the defendant, its agents, servants, and employe's, or, by the exercise of ordinary care, would have been known to them, but all of said dangers were unknown to the said Mrs. Kemp, and the said Mrs. Kemp, while in the exercise of ordinary care for her own safety, in a prudent and careful manner undertook to alight from the said coach, and in so doing stepped from the last or lower step thereof to the ground, and was compelled to jump or descend a distance of three or four feet. As a consequence or result of said descent from said step to the said ground, she received serious and permanent injuries which were the direct and proximate cause of the negligence set out.

Defendant, for answer, denied specifically the allegations of plaintiff’s petition, and for special answer alleged: That it is true, as alleged, that the Woodmen of the World and Woodmen Circle, certain organizations, had a celebration or ceremony, at Fairview Cemetery, near Denison; that plaintiff’s wife belonged to one of said organizations, and that a committee from said organizations, being agents of said organizations, and the agent of plaintiff’s wife, with full knowledge of the situation at Fairview Cemetery where defendant’s road passed the same, entered into an agreement with defendant to run a train and transport the members of said organization to said cemetery for the purpose of attending said unveiling ceremonies; that the point to which said parties were transported was not a station on defendant’s line; that said committee knew that same was not, and that the members of said organization knew that same was not a station, and knew that no facilities were provided for passengers to disembark at said point, and that plaintiff’s wife knew of said condition at the time she embarked on said train to go to said cemetery, at the time she disembarked from the same, and at the time the committee representing the organizations contracted with the defendant to run its train to said point, and defendant says that no duty devolved on it to construct a station or platform to facilitate passengers in disembarking from trains at said point; that the dangers incident to disembarking at said point were well known to plaintiff’s wife at the time she attempted to disembark, or, if she had exercised ordinary care in disembarking from said train at said point at the time of her alleged accident, such condition would have been known to her in ample time for her to have avoided disembarking at said point, if she had so desired. Defendant says that plaintiff’s wife well knew of said situation at the time she attempted to disembark, and assumed the risk of said situation in disembarking from said train, and that plaintiff’s said wife was guilty of contributory negligence in attempting to disembark from said train at said point at said time, and was guilty of contributory negligence in the manner in which she disembarked from said train, and that those assisting her in disembarking from said train were negligent in the assistance rendered her on said occasion.

The case wras tried February 9, 1914. The general issue was submitted to the jury, and the trial resulted in a verdict and judgment in favor of appellee for $3,2S7.50, from which defendant appealed.

The first and second assignments of error complain, respectively, of the court's definition of negligence, and the term proximate cause. In the first the jury was told that negligence, “as that term is used in this charge, means a failure to use that high degree of care that a very cautious, prudent person would have used or exercised under the same or similar circumstances.” In the second the jury was instructed that the term “ ‘proximate cause’ of an injury, as that term is used in this charge, is a cause which in a natural and continuous sequence, unbroken by any new cause, produces an event, and without which the event would not have occurred. But, in order to warrant a finding that negligence is the proximate cause of an injury, it must appear from the evidence that the injury was the natural and probable consequence of the negligence, and ought to have been foreseen as likely to have occurred by a very cautious, prudent person, in the light of attending circumstances.” The proposition contended for under both of these assignments is as follows:

“The duty that devolves on railway companies as to providing and maintaining depots and appurtenances and facilities to be used by passengers in boarding trains and disembarking therefrom when such trains are standing for such purpose is the exercise of ordinary care.”

The proposition should not be sustained. The care to be exercised by railway companies to prevent injury to ioassengers alighting from their trains is that high degree of care that a very cautious and prudent person would exercise under the same or similar circumstances, and this duty continues under the contract of carriage after the train has stopped until the passenger has alighted from the car. Railway Co. v. Finley, 79 Tex. 85, 15 S. W. 266. The passenger, of necessity, must trust to the railway company to provide reasonably safe- means and measures for his disembarkation, and until he has alighted from the train is, in a sense, the bailee of the company. “The transit cannot be considered as ended until the passenger has left the car,” and alighted therefrom. Railway Co. v. Miller, 79 Tex. 78, 15 S. W. 264, 11 L. R. A. 395, 23 Am. St. Rep. 308; Railway Co. v. Finley, supra; Street on Personal Injuries, § 205.

The third assignment of error complains of the eighth paragraph of the court’s charge, wherein the jury was directed to bear in mind the definitions of “negligence” and “proximate cause” theretofore given them, and instructed that:

If “defendant’s servants and employes stopped the coach in which plaintiff’s wife was riding at a place which was not reasonably safe for passengers to alight therefrom with a reasonable degree of safety, and further believe from the evidence that, by reason of so stopping said coach, it was reasonably necessary for defendant to provide a step box or other appliance for plaintiff’s said wife to use in alighting from said coach, or to furnish a competent person to assist her in alighting therefrom, and if you further believe from the evidence that defendant failed to provide such step box or other appliance for said purpose, and failed to furnish a competent person to assist plaintiff’s said wife in alighting from said coach, or believe from the evidence that certain parties did assist her in alighting from said coach, but you do not believe from the evidence that said parties were competent for such service, or if you believe from the evidence that they were competent for such service, but you further believe from the evidence that, in so assisting plaintiff’s said wife, said parties failed to exercise that degree of care which a very cautious, prudent person would have exercised under the same or similar circumstances, and further believe from said evidence that, in alighting from said coach, plaintiff’s said wife sustained injuries to her person, as alleged in his petition, and further believe from the evidence that defendant was guilty of negligence in any or all of the above-mentioned particulars, and that such negligence, if any, was the proximate cause of her injuries, if any, to find for plaintiff.”

Appellant propounds under this assignment the following propositions:

First. “The railway had the right to make a contract to run a special train and transport passengers to a place where it had no station and facilities for discharging them, and where it did not ordinarily receive and discharge passengers, and, having made such contract, negligence could not be predicated on the fact that it carried out its contract and stopped the train where it agreed to stop it.”
Second. “Where the company makes such a contract, and the parties with whom the railway makes the contract have full knowledge of these facts, negligence cannot be predicated upon its failure to provide step boxes and appliances at such point for the discharge of passengers from such train.”
• Third. “So much of the charge as submits the issue of the failure to furnish a step box and appliances to facilitate the disembarking of passengers is not authorized by the evidence.”
Fourth. “Where passengers who were not em-ployés of the railway offered to assist plaintiff’s wife in disembarking from a train, and she availed herself of their services, liability of the railway cannot be predicated on their lack of competency for, or care in, the performance of' that service.”

Neither of these propositions, except the fourth, will be sustained. If„ under the special contract referred to in the first proposition, negligence, in a suit by one of the parties making such contract with the railway company, “could not be predicated on the fact that the company carried out its contract and stopped the train where it agreed to stop it,” a question we are not called upon to decide, yet the railway company, by reason of such contract, would not be absolved from the performance of that duty imposed upon it by law for the safety and protection of its passengers not parties to such contract. The appellant, and not the parties with whom it made the contract, was in control of the train, and, at least as to passengers not parties to the contract, it was not absolved from the performance of the duty imposed upon it by law for their safety and protection, no matter what the terms of the contract were. As we understand the evidence, it shows that appellee’s wife was not a party to the contract in question, was not acquainted with its terms, and hence not bound thereby. The proposition that so much of the charge objected to as submitted the issue of the failure to furnish a step box and appliances to facilitate the disembarking of passengers was not authorized by the evidence is not, we think, supported by the record. Whether the appellant, in the exercise of that high degree of care imposed upon it for the safety of Mrs. Kemp in alighting from its train, should have provided a step box or some such appliance for her use, was a question for the jury. We think, however, appellant’s fourth proposition must be sustained. It will be noted that the charge under consideration instructed the jury to find for the appellee, if the appellant negligently failed to provide a step box or other appliance for appellee’s wife to use in alighting therefrom ; or if certain parties assisted appellee’s wife in alighting from the train who were incompetent for such service; or if certain parties assisted appellee’s wife in alighting from the train who were competent for such service, but in-so assisting her to alight failed to exercise that degree of care which very cautious, prudent persons would have exercised under the same or similar circumstances. Thus the court submitted three separate and distinct grounds of negligence, upon the existence of either of which a verdict in favor of the appellee could be predicated. The submission of the last two grounds mentioned were, in our opinion, unauthorized by the evidence, and should not have been submitted. On direct examination appellee’s wife testified:

“As to what assistance, if any, was rendered me in getting off the train, well, I had no assistance. Of course, a man stood on each side, but didn’t assist me any. There was no member of the crew there, either brakeman or porter. In getting off I got off of the steps from the lower step to the ground. I jumped. I jumped from the lower step.”

On cross-examination she testified:

“With reference to whether there was two gentlemen assisting the ladies off at every opening of the train, I don’t know that there was only at one opening. At that opening there were two gentlemen standing there; Woodmen, I presume. I don’t know that they were assisting the ladies. Each one taken hold of my hand, just my hand, and didn’t assist me; didn’t have any effect on me. They did catch hold of me and went through the motion.”

The evidence fails to show that the parties who Mrs. Kemp says made some pretense of assisting her off the train were directed or authorized by the appellant to assist her. That they were not members of the train crew provided by the appellant is clear from her testimony. There is a general statement in the testimony of appellant’s agent, Gerlach, to the effect that parties assisted the ladies in getting off the ears, the Woodmen and everybody, and that he helped himself, but that the parties so assisting, other than himself, were acting by authority of the appellant is not sustained by any evidence we have discovered. It certainly was not sufficient to authorize the court to assume, as it did in the charge complained of, that paid parties were acting for and at the instance of appellant. This being the status of the evidence, the effect of the charge was to authorize a verdict in favor of the appellee if the jury believed the parties who assisted his wife off the train were incompetent for that service, or, being competent, failed in the assistance rendered to exercise that degree of care imposed upon appellant by law, regardless of whether these parties were employes of appellant or authorized to act for it,- and constitutes reversible error. To cure this error, as far as possible, the appellant requested the court to give special charges prepared by its counsel instructing the jury to the effect that:

If “when the train arrived at the point where the alleged accident occurred Woodmen who were passengers on said train undertook to assist lady passengers to disembark from said train, and further believe from the evidence that plaintiff’s wife availed herself of their assistance, and that said Woodmen were incompetent or were-negligent in the way that they assisted plaintiff’s wife to disembark from said train, and that such negligence caused plaintiff’s wife’s injuries, if any she received, then you will return your verdict in favor of the defendant.”

These charges embraced correct propositions of law applicable to the facts, and should have been given, instead of that portion of the court’s charge upon the subject. The record shows that appellant offered testimony, which, upon objections of the appel-lee, was excluded, to the effect that at the time the agreement was made to run the train and stop it near the cemetery there was an understanding between the witness Ger-lach, as the representative of the railway company, and the committee representing the Woodmen, that the Woodmen would assist the ladies in getting off at the cemetery, and that this was a condition in making the contract to run the train, dnd that the Woodmen, in pursuance of that agreement, stood at the steps of the cars when the ladies were disembarking from the train, and did assist them in alighting therefrom. Had this testimony been admitted, the court’s charge, which we have just held was erroneous, would doubtless have been authorized, but, this testimony being excluded, and there being no other testimony authorizing the charge, it was error. The appellant complains of the exclusion of this testimony, but it also complains of the charge we are discussing, and these apparent inconsistent positions urged in this court would not warrant us in overruling the assignment asserting that the court’s charge, in view of the evidence admitted, was prejudicial. The said testimony offered by appellant, however, was offered upon the theory, as we understand, that under its contract with the committee representing the Woodmen, the Woodmen assumed the responsibility of assisting passengers off the train at the cemetery, and therefore it was not responsible for the incompeteney of those assigned to perform that service, nor liable for the negligent manner in which it was performed. This is shown by appellant’s assignment of error complaining of the exclusion of the testimony, and the contentions thereunder. But, in our opinion, the testimony was not admissible upon the theory and for the purpose offered, and appellant is in no position to complain of its exclusion.

The other assignments of error need not be discussed. They are either disposed of adversely to appellant by what we have already said, complain of the refusal of special charges covered by the court’s main charge, or point out no reversible error.

For the reason indicated, however, the judgment of the court below is reversed, and the cause remanded.
      <&wkey;>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    CUMMER MFG. CO. OF TEXAS v. FIRST NAT. BANK OF CENTER.
    (No. 1352.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 4, 1915.)
    1. CORPORATIONS &wkey;>432 — AUTHORITY 03? AGENT — BURDEN 03? PROOF.
    Where an agent of defendant lumber company agreed to pay S. a commission on a lumber purchase, and S. drew on the cosnpany for the commission, and negotiated the draft to plaintiff bank, the burden of proving the agent’s authority was on the bank in a suit on the draft.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1717, 1718, 1724, 1726-1735, 1737, 1743, 1762; Dec. Dig. &wkey;432.]
    2. C0R3?0RATI0NS &wkey;>432 — Authority of Agent — Contract foe Payment of Commissions— SUFFICIENCY OF EVIDENCE.
    Evidence held insufficient to show that defendant lumber company had authorized its agent to contract on its behalf to pay commissions on lumber purchases for it.
    [Ed. Note. — For other cases, sec Corporations, Cent. Dig. §§ 1717, 1718, 1724, 1720-1735, 1737, 1743, 1762; Dec. Dig. &wkey;432.J
    3. Pbinoipai. and Agent <&wkey;99 — Authority of Agent — Implied Autiioeity — Acts Necessary to Execute Expressed Authority.
    Express actual authority of an agent carries with it implied actual authority to perform all acts necessary to the execution of the express authority.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 254-261; Dec. Dig. <®=^99.]
    4. Corporations &wkey;>407 — AuriroRiTY of Agent — Implied Authority of Buyer and Inspector of Dumber for Lumber Company.
    One employed by a lumber company to inspect and buy lumber is not also authorized, as incidental and necessary to the execution of his express authority, to contract on behalf of the company to pay commissions on his purchase of lumber" to one indicating where such, lumber may be secured.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1615-1619; Dec. Dig. ,<&wkey;>407.]
    Appeal from Shelby County Court; Edgar W. Hooker, Judge.
    Action by the First National Bank of Center against the Cummer Manufacturing Company of Texas and T. T. Sanders. From the judgment, deie33<lant Manufacturing Company appeals.
    Ailirmed as to Sanders, and reversed as to the appella33t.
    The appellee hank was the plaintiff, and the appellee T. T. Sanders and appellant were the defendants, in the court below. In its petition the bank alleged that on March 12, 1913, Sanders gave it a draft drawn by him in its favor on appellant for $250, “which,” quoting from said petition, “was commission due by the defendant Cummer Manufacturing Company to the defendant Sanders on 500,000 feet of lumber shipped from Texas Manufacturmg Company, I-Ioney Island, Tex., to the defendant Cummer Manufacturing Compaiiy, which was 50 cents per 1,000 feet commission due the said T. T. Sanders by said Cmnmer Manufacturing Company of Texas on the sale of said lumber, and the said commission being due by the defendant Cummer Manufacturing Company to the said T. T. Sanders, and the said T. T. Sanders executing said draft in the name of this plaintiff for said sum of $250, the said Sanders and the said Cummer Manufacturing Company of Texas became liable and bound to pay the plaintiff the said sum of $250 as aforesaid. Plaintiff says that about April 1, 1911, the Texas Manufacturing Company, Honey Island, Tex., had a great quantity of hardwood lumber 03i their yard at Honey Island, Tex., of more than 500,000 feet, consisting mostly of oak and gum lumber, known ns hardwood, and the defendant Cummer Manufacturmg Company negotiated with the defendant Sanders for the purchase of said lumber, and agreed to pay said Sanders the sum of 50 cents per 1,000 feet commission on all the lumber of Texas Manufacturing Company as aforesaid, a?id the said Cu3nmer Masiufacturing Company of Texas purchased all of said lumber, amounting to more than 500,000 feet, through the defendant Sanders, and by such purchase and agreement to pay the said Sanders the 50 cents per 1,000 feet commission as aforesaid the defendant Cummer Manufacturing Company of Texas became liable and bound to pay to the defendant Sanders the commission as aforesaid amounting to the sum of $250. Plaintiff says it is now the legal owner ai3d holder of the indebtedness due by the Cummer Manufacturing Company to the defendant Sanders,” etc.
    Appellant’s answer consisted of a general denial and a plea setting up the statute of limitations of two years. Sanders did not file an answer to the suit.
    From testimony hoard it appeared that the basis of the suit was a claim by Sanders, which he had assigned to the bank, that appellant, by the terms of a contract between him and one Broimiier, acting for aispellant as its agent, owed him $250. With refer-C3ice to that asserted contract Sanders testified that about March 1, 1911, Brommer was looking for hardwood lumber which ho could purchase for appellant; that he (Sanders) then told Brommer he was in a position to let liim know where he (Brom-mer) could buy between 350,000 asid 500,000 feet of such lumber; that Brommer then stated to him that if he would furnish him such information appellant would pay him 50 cents per 1,000 feet for all the lumber it might purchase from the party he referred it to; that he then stated to Brommer that he understood that the Texas Lumber Manufacturing Company of Honey Island had between 300,000 and 500,000 feet of such lumber which could, he thought, be purchased at a reasonable price; that Brommer then stated to him that some time in the very near future he would go down and look over the lumber, and if the grades and prices were satisfactory appellant would pay him 50 cents per 1,000 feet for all thereof it purchased; that within a few weeks afterward he met Brommer again, and was informed by him that he 'was then on his way to Honey Island to inspect the lumber for appellant, and that Brommer then again stated to him that appellant would pay him 50 cents per 1,000 feet for “all the hardwood lumber he took up for it from the yard stock of the Texas Lumber Manufacturing Company then on hand.” Sanders further testified that he had no contract with the Texas Lumber Manufacturing Company to sell its lumber, had never been to Honey Island, and did not know at the time he had the conversation with Brommer, what lumber, if any at all, the Texas Lumber Manufacturing Company then had on its yards, “but understood from correspondence that they had something about 500,000 feet.”
    If appeared from other testimony that from March 14, 1911, to March 29, 1912, the Texas Lumber Manufacturing Company sold to appellant 362,164 feet of hardwood lumber.
    Brommer testified that from October, 1910, to October, 1911, he was employed by appellant as an inspector and buyer of lumber for it; that he had no authority to make, and did not make, with Sanders any such contract as the one Sanders claimed he had made with him; that Sanders talked to him about selling lumber, and was informed by him that he could not make a contract with him (Sanders); that he told Sanders to “go to the Cummer Manufacturing Company himself”; and. that he “never offered Sanders any commission on any transaction, and was not advised by him that this [the Texas Lumber Manufacturing Company’s] lumber was for sale, as I knew long before it was for sale.”
    On special issues submitted to them the jury found: (1) That Brommer contracted with Sanders as the latter claimed he did; (2) that Brommer, as the agent of appellant, had authority to so contract; (3) that appellant, within the terms of that contract, purchased 362,164 feet of hardwood lumber of the Texas Lumber Manufacturing Company.
    On the findings made by the jury and findings made by himself, the court rendered judgment in favor of the bank against appellant and Sanders for $165.23, and against Sanders for the difference between that sum and $250, to wit, the sum of $S4.77. The appeal is prosecuted by appellant alone.
    Davis, Davis & Davis, of Center, for appellant. J. M. Sanders, of Center, for ap-pellees.
   WILLSON, C. J.

(after stating the facts as'above). As we think that the contention made that the testimony was not sufficient to support the finding that Brommer, as appellant’s agent, had authority to bind it by the contract Sanders claimed Brommer made with him should be sustained, it will not be necessary to consider the further contention made by appellant that the judgment is erroneous because it was not shown how much of the lumber, if any, purchased by appellant of the Texas Lumber Manufacturing Company was lumber covered by that contract.

The burden of proving that Brommer had the authority claimed for him was on the bank. The testimony heard went no further than to show that Brommer was an inspector and buyer for appellant, and that in November, 1911, he, acting for appellant and in its name, contracted with Sanders in writing that appellant would act for him (Sanders) in the sale on commission of the output of a sawmill he was then operating. As it was not shown that appellant acted upon or in any way recognized the contract as its own, or even that it ever knew of the existence thereof, the fact that Brommer made it was without probative force on the issue as to whether he was authorized to make the contract in question here or not. The finding of the jury, therefore, must be treated as without other support than that furnished by the proof showing Brommer to have been an inspector and buyer for appellant.

It was not pretended that the authority claimed for Brommer could be referred to a custom or usage binding upon appellant. The contention was, it seems, that appellant should be held to be bound by the contract in question because it was incidental to authority it conferred upon Brommer when it employed him to inspect and buy lumber for it. It is true that every express power conferred by the principal upon his agent carries with it, as an incident, “the authority to do whatever is usual and necessary to carry into effect the principal power.” 1 Am. & Eng. Enc. Law, p. 997; 1 Clark & Skyles on the Law of Agency, § 209. But the principle has no application to the facts of this case. It did not appear that it was either usual or necessary for a person employed, as Brommer was, to inspect and buy lumher, to employ at his principal’s expense another or other persons to assist him in the discharge of his duties.

The judgment will be affirmed in so far as it is in favor of the bank against Sanders. In so far as it is in favor of the bank against appellant it will be reversed, and judgment will be here rendered that the bank take nothing by its suit against appellant.
      (g^jFor other cases see same topic and K33Y-NUM333DR in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    WADE v. CRUMP.
    (No. 1425.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 11, 1915.)
    1. Injunction <&wkey;33 — Suits in Otieeb States — Restraining Pbosecutjon — Geounds.
    Injunction does not lie to restrain defendant, a resident, from prosecuting bis action in a sister state, against petitioner, a resident, on the ground that petitioner will be deprived of his right to be sued in the county of his residence.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 70, 71; Dec. Dig. &wkey;33.].
    2. Injunction <&wkey;118 — Suits in Other States — Restraining Prosecution — Grounbs.
    A petition for an injunction to restrain defendant from prosecuting his action against petitioner in a sister state, which states that the suit in the sister state was to harass petitioner, but which states no facts in support of it, and which does not show that he will not be accorded the right to interpose every defense available in Texas, and which avers that he will be compelled to incur expenses in defending the suit, but not stating that the expenses would be greater than would be incurred in Texas, states no cause for relief.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 223-242; Dec. Dig. &wkey;>118.]
    3. Evidence <&wkey;10 — Judicial Notice — Location oe Counties.
    The court judicially knows that Bowie county lies along the eastern border of Texas, adjacent to the Arkansas line.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 9-14; Dec. Dig. <&wkey;>10.]
    4. Venue <&wkey;32 — Right to be Sued in County 03? Residence — Personal Privilege.
    The right of defendant to be sued in the county of his residence, though a valuable right, is only a personal privilege which may be waived.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 47-50; Dec. Dig. &wkey;32.]
    5. Courts <@=»514-Jurisdiction — Comity.
    Where a case may be brought in either of two courts, the one first obtaining jurisdiction will retain it, and this extends on principles of comity to cases brought in the courts of sister states.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1434 — 1436; Dec. Dig. <&wkey;>514.]
    6. Courts &wkey;>516 — Jurisdiction — Foreign . Courts.
    Where complete justice may be done, as between citizens of Texas, in a suit in the courts of the sister state, a court of Texas will not interfere to prevent the foreign suit, unless there is oppression or fraud, and the mere fact that the judgment obtained in the sister state is not enforceable against property in Texas, unless a second judgment is obtained in Texas, is not alone ground for injunctive relief.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1441, 1442; Dec. Dig. &wkey;516.]
    Appeal from District Court, Bowie County; I-I. F. O’Neal, Judge.
    Action by C. G. Crump against M. C. Wade. From a judgment for plaintiff, defendant appeals.
    Reversed.
    R. P. Dorough, R. W. Rodgers, and C. A. Wheeler, all of Texarkana, for appellant. R. I-I. Jones, of De Kalb, for appellee.
   HODGES, J.

On December 2, 1914, the appellee, C. C. Crump, filed a petition asking for a writ of injunction restraining the appellant, M. C. Wade, from prosecuting a suit against the appellee in the circuit court of Miller county, Ark. The petition alleges, in substance, that both the appellee and the appellant reside in Bowie county,. Tex., are citizens of the state of Texas, and have been such for many years; that some time during the year 1914 the appellant, Wade, instituted a suit against the appellee in the circuit court of Miller county, A’rk., in which he seeks to recover the sum of $600 claimed as commissions for a land sale; that the appellee does not own any property in Miller county, Ark., which might be subjected to the payment of a judgment. It is further alleged that the suit referred to was instituted for the purpose of harassing and annoying the appellee; that if its prosecution is permitted the appellee will be compelled to employ attorneys to defend the suit, at a cost to him of about the sum of $600. He also alleges that under the laws of the state of Texas he is entitled to be sued in Bowie county, the county of his residence. The petition concludes with a prayer for a writ of injunction restraining the appellant from further prosecuting the suit in Miller county, Ark. Upon presentation of the petition, the court entered an order directing the writ to issue upon the plaintiff’s executing a bond in the sum of $250 conditioned as required by law. The bond was subsequently executed and the writ issued. This appeal is from that order.

The only question presented is: Do the facts alleged in the petition state grounds for granting this writ? It has been held in this state that, if the averments of the petition for an injunction are of such a character as to make it the duty of the court to restrain or enjoin the party from instituting or conducting like proceedings in a court of this state, it would be a proper case for restraining him by a similar process from prosecuting such a suit in the courts of another state. Moton v. Hull, 77 Tex. 80, 13 S. W. 849. That was a case in'which a citizen of this state was restrained from prosecuting a suit against another citizen of this state in Missouri. The petition alleged that the prosecution of the suit in the foreign state was for the purpose of evading the laws of this state exempting current wages for personal services from garnishment. The rule there announced is recognized and followed in many other jurisdictions. See notes to Rader v. Stubblefield, 10 Ann. Cas. 20. But in the case before us the only ground presented as the basis for the issuance of this writ is the right of a resident of this state to be sued in the county of his residence. It is not contended that in the circuit court of Miller county, Ark., where the suit is pending, the petitioner will not be accorded the right to interpose every defense that might be urged in a court of this state. Neither is it alleged that the prosecution of that suit will have the effect of depriving the appellee of any property right which could not be taken from him had the suit been prosecuted in a court of this state. It is true that the petition does state that the suit in Arkansas is for the purpose of harassing the petitioner; but that averment is a mere conclusion of the pleader, unaccompanied by any facts to sustain it. It is also alleged that the complainant will be compelled to incur expense in employing attorneys to defend that suit, but it is not stated that those expenses will be greater than what would probably be incurred in making a similar defense in a court of this state. We judicially know that Bowie county lies along the eastern border of Texas, next to the line of Arkansas. If we may not also judicially know that Miller county lies adjacent to and east of that line in Arkansas, we may at least assume that such a geographical arrangement may exist, in the absence of any averments to the contrary. If this should be true, it may be just as convenient and no more expensive to the parties to prosecute and defend this litigation in Arkansas than it would be in Texas.

The mere fact that the appellee will be deprived of the right to be sued in the county of his residence furnishes no ground for interfering by injunction with the jurisdiction of another court. While it is true this is a valuable right, it is only a personal privilege which may be waived. Ward v. Odem, 153 S. W. 634. To sue one in a county other than that of his residence is not a legal wrong for which such party may claim redress. It deprives him of no property, but, on the contrary, merely ignores a privilege which can be made available only by its timely assertion.

As said in Carson v. Dunham, 149 Mass. 52, 20 N. E. 312, 3 L. R. A. 202, 14 Am. St. Rep. 397:

“The general rule is that, where a case may be brought in either of two tribunals, that court which obtains jurisdiction of the case retains it; and this extends upon principles of comity to cases of conflicting suits brought in the courts of sister states. This court, in the exercise of its judicial discretion, will not restrain the prosecution ol' such a suit unless a clear equity is made out, requiring the interposition of the court to prevent a manifest wrong and injustice, or a clear waiver of our laws which should govern the rights of the parties.”

If full and complete justice may be done as between the citizens of the same state in a suit in the courts of a sister state, a court of this state will not interfere to prevent the foreign suit unless there is oppression or fraud. And the fact that the defendant who is sued in the courts of a sister state prefers to have the matter determined by the courts of his domicile is no ground for an injunction against the plaintiff, if the courts have concurrent jurisdiction. Wyeth Hardware Co. v. Lang, 127 Mo. 242, 29 S. W. 1010, 27 L. R. A. 651, 48 Am. St. Rep. 626; Bellows Falls Bank v. Rutland R. R. Co., 28 Vt. 407; Donnelly v. Morris (Super. N. Y.) 13 N. Y. Supp. 427. It is clear that, if a judgment is rendered against the appellant in the suit complained of, before any property of his can be subjected to that judgment a second judgment will have to be obtained in this state. This condition, so far from being a ground for the issuance of a writ of injunction, may be regarded as a reason why it should not issue. If the ap-pellee desires to avoid the expense and trouble of a second suit, he can do so by satisfying the judgment in Miller county should one be there rendered against him.

The judgment of the district court will therefore be reversed, and the order granting the temporary writ vacated, and all costs of this court adjudged against the appellee.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    SANDERS et al. v. BLEDSOE.
    (No. 1418.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 4, 1915.)
    1. Execution <&wkey;172 — Injunction — Failure to Fix Amount of Bond as Required by Statute — Effect.
    The action of the judge of the district court in vacation in enjoining a sale under execution was erroneous, where the order did not fix the amount of petitioner’s bond, as required by Rev. St. 1911, art. 4650, providing that, in case of injunction to stay execution, the order shall specify the amount of the bond.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 519-539; Dec. Dig. &wkey;172.]
    2. Execution <&wkey; 172 — Injunction Against —Lack of Jurisdiction.
    The action of the judge of the district court in vacation in enjoining a 'sale under execution was improper, where .the application was to restrain action by one alleged not to be authorized to demand issuance of execution, while the order was not definite enough to make it clear that the real owner of the claim or his authorized representatives might not be enjoined under it, though he was not a party to the proceedings, and the enforcement of his judgment by execution in future proceedings was not within the authority of the judge under the application.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 519-539; Dec. Dig. &wkey;172J
    3. Evidence <&wkey;41 — Judicial Notice — Terms'of Inferior Courts.
    Judicial notice will be taken by the Court of Civil Appeals of the terms of the district court for Harrison county.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 56-60; Dec. Dig. <&wkey;41.]
    4. Appeal and Error &wkey;>1152 — Duration of Temporary Restraining Order as Affected by an Appeal from Its Issuance.
    Under Rev. St. 1911, art. 4644, providing for appeals to Courts of CfvU Appeals m suits wherein a temporary injunction may be granted or refused, an appeal from a vacation order, restraining a sale under execution “until fur-tlier orders to be made * * * at the next regular term of this court,” was not continued in force by an appeal beyond the time fixed by the judge, so that after that time, there was no need for the appellate court to modify the erroneous order of the judge.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4483-4496; Dec. Dig. &wkey;> 1152.]
    Appeal from District Court, Harrison County; H. T. Dyttleton, Judge.
    Application for injunction by W. F. Bled-soe against John C. Sanders and others. Injunction granted, and respondents appeal.
    Reversed and remanded.
    G. W. Barcus, of Waco, and Dane & Lane, of Marshall, for appellants. S. P. Jones and J. H. T. Bibb, both of Marshall, for appellee.
   LEVY, J.

The appellee presented an application for injunction, with affidavits in support of same, to the judge of the district court, who in vacation .acted on such application and affidavits attached, and granted an interlocutory injunction without any notice upon the opposite party and without fixing or requiring any bond of the applicant. The appeal is made under the statute from such order. The writ was in accordance with the order of the judge. The order of the judge restrained the sale of specific property, of the defendant in execution under an execution from the district court of McLennan county, and further enjoined the “employés” of particular parties “from levying upon any property or enforcing or collecting said judgment of the district court of McLennan county.” The judge provided the duration of the interlocutory injunction to be “until the further orders of this court to be made in this cause at the next regular term of this court.” The fiat of the judge was dated November 27, 1914.

The statute expressly requires the judge to fix the amount of the bond in his order for the injunction, and it is essential to directing the issuance of the writ. Article 4650, R. S. The allegations of the application may have shown equities to authorize the direction of injunction to prevent sale of the specific property through means of the execution procured on the application of one alleged not to be authorized to demand and insist upon its issuance. But the owner of the judgment was not a party to the application, and the future enforcement of the judgment by execution at any time by the owner or its authority was not a subject-matter within the authority of the judge on the application here. And it is not made clear by the wording of the order that the restraint of “employés” of the alleged parties did not include the real owner or its authorized representatives.

It is concluded that the order of the court and the extent of the writ is erroneous. It would serve no purpose for this court to correct and modify the order of the judge. It is apparent from the fiat of the judge that he intended the interlocutory injunction to operate only until the first regular term of court thereafter, perhaps conceiving that on a full hearing under answer it would be better ascertained whether ap-pellee would be entitled to a further restraining order or not. This court judicially knows that the “next regular term” of the district court in Harrison county was in January. Acts 32d Leg. p. 93 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 30). And the appeal in this case did not have the effect to continue in force the temporary restraining order beyond the time fixed by the court for its duration. Article 4644, R. S.; Railway Co. v. Railway Co., 68 Tex. 163, 7 S. W. 381; Riggins v. Thompson, 96 Tex. 154, 71 S. W. 14.

The order of the judge is reversed, and the cause remanded for such other and further orders as may be legally warranted.
      <2&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. KELLY.
    (No. 1409.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 4, 1915.)
    1. Carriers <&wkey;407 — Baggage — Stobage Charges.
    Where unmarked and unidentified baggage was called for on the evening after the arrival of the train on which the baggage was due to come, and the carrier’s agent was notified of the circumstances of the shipment of the baggage, the carrier, failing to deliver it, could not claim storage charges.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 155A-1556; Dec. Dig. &wkey;407.]
    2. Appeal and Errob <&wkey;750 — Questions Reviewable — Taxation oe Costs — Assignment oe Error. •
    Where the county court, on appeal from a justice’s judgment, rendered judgment for plaintiff, which recited that defendant introduced no testimony in the lower court in support of its cross-action, nor offered any defense, and ordered that all costs should be taxed against defendant, and overruled defendant’s motion to retax the costs, an assignment of error that the testimony failed to support the finding which the court -determined to be good cause to adjudge all costs against defendant was sufficient to authorize a review of taxation of costs.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3074-3083; Dec. Dig. <&wkey;> 750.]
    3. Costs <&wkey;230 — Justices oe the Peace-Appeal to County Court.
    Where the record, in an action begun in justice court, and appealed to the county court, showed a cross-examination by plaintiff of three witnesses of defendant testifying in the county court that they had not testified in justice court, and there was no evidence that defendant offered no testimony in justice court, or in a way prevented a fair trial, the court could not tax all the costs against defendant on plaintiff recovering a judgment for a sum less than recovered in justice court.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 869-876; Dec. Dig. &wkey;230.]

      Appeal from Franklin County Court; J. J. Walker, Judge.
    Action by W. T. Kelly against the St. Louis Southwestern Railway Company of Texas. From a Judgment for plaintiff, defendant appeals.
    Modified and affirmed.
    J. M. Burford, of Mt. Pleasant, for appellant. B. O. ShurtlefC and G. E. Cowan, both of Mt. Vernon, for appellee.
   LEVY, J.

The suit is to recover the possession of two trunks and a box containing wearing apparel, or their value, and for damages for the loss of the use of the goods. The appellant entered a denial and asked for legal storage charges that had accumulated. The suit was tried in the justice court, and appealed to the county court. The judgment of the county court allowed recovery of the baggage, or its value if not delivered in a reasonable time, and damages for loss of use, and denied a recovery to the company of storage charges.

The company had the trunks and box in its possession, but failed to deliver same to the owner because they were unmarked and without any check to identify them. According to the testimony of Jones, offered in behalf of appellee, he informed the agent at Mt. Vernon of the circumstances under which the agent at Dallas had forwarded the baggage, and that, as a consequence, the agent at Mt. Vernon knew whose baggage it was and how it had gotten to the depot at Mt. Vernon. And in support of the court’s judgment it should be assumed, and we do so assume, that Jones informed the agent of the circumstances of the shipment at the time he called for such baggage, as testified by him, on the evening after the arrival of the train on which the baggage was due to come. It does not appear from his testimony to the contrary. In this fact the storage charges claimed in this record would not be allowable, and the court’s finding would be sustained by the evidence.

The judgment of the county court provides:

“And it further appearing to the court from the evidence that the defendant introduced no testimony in the lower court in support of its cross-action, nor offered any defense whatever, it is therefore ordered, adjudged, and decreed that all costs in this behalf expended be taxed against the defendant, and that plaintiff have his execution.”

The appellant moved to retax the costs, and it was overruled. The error assigned is to the point that the testimony fails to support the findings of fact which the court determined to be “good cause” to adjudge all costs against the company. The appellee recovered a less judgment in the county court than in the justice court. It is thought that this court, under the assignment as made, can review the action of the court.

The only evidence in the record pertaining to any action or conduct on the part of appellant in the justice court lay in the following: The plaintiff’s counsel on cross-examination asked the three witnesses of the company, testifying in the county court, if they testified in the justice court, and they answered that they had not. ■ There is no evidence that appellant offered no testimony in the justice court, or acted in a way to prevent a full and fair trial of the case in that court. Clearly the evidence does not present even a similar case to Railway Co. v. Milliron, 53 Tex. Civ. App. 325, 115 S. W. 655. The court’s finding of fact which was by him given the effect of “good cause” is not, it is thought, warranted by the testimony; and therefore such finding of fact is set aside. This necessitates modifying the court’s judgment in so far as it taxed costs of the county court against appellant. As modified, the judgment is affirmed^ with costs of this appeal taxed against appellee.

Modified and affirmed.
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text:
    PAGE v. VAUGHAN et al.
    (No. 1381.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 27, 1915.
    Rehearing Denied Feb. 10, 1915.)
    1. Homestead <$=^81 — Title oe Claimant— Parol Agreement eor Sale oe Land.
    Where plaintiff’s contract for the purchase of land rested wholly in parol, and there was no evidence that he had made valuable improvements or even resided ■ thereon, he was vested neither with a legal nor an equitable title to sustain a claim to homestead.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 114-118; Dec. Dig. <®=>81.]
    2. Frauds, Statute oe <$=>158 — Parol Agreement eor Sale oe Land — Change of Possession and Improvement — Burden oe Prooe.
    One relying upon a parol contract for the sale of land has the burden to prove the facts, such as change of possession and improvements, that take the ease out of the statute.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 373-376; Dec. Dig. <$=> 158.]
    3. Frauds, Statute of <$=>129 — Parol Agreement eor Sale oe Land — Exception to Statute — Requisites.
    . The' improvements upon premises by a purchaser, relied upon to take a parol contract for the sale of land out of the statute of frauds when there has been a change of possession, must be of substantial value and in excess of the value of the use of the property for the period in question.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 287-292, 303, 306-308, 310-312, 314, 318-320, 322, 323, 325, 326; Dec. Dig. <$=>129.]
    4. Vendor and Purchaser <$=>253 — Vendor’s Lien — Assignment oe Lien.
    Where plaintiff, in possession of land under a parol contract of purchase that had vested him neither with legal nor equitable title, gave a note in consideration of receiving a deed, the vendor’s lien recited in the note was good, since plaintiff had no title to the land save through the transaction in which it was given, and the lien was a valid incumbrance in the hands of the note’s assignee which should have been foreclosed on cross-petition against plaintiff seeking- to remove a cloud on title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. • Dig. §§ 637-640; Dec. Dig. <@=3-253.]
    5. Pleading <@=>67 — Facts Alleged and Not Denied Taken as Confessed — Advance Denial oe Allegations oe Cboss-Petition.
    Under Acts 33d Leg. c. 127, §' 4, amending Rev. St. 1911, art. 1902 (Vernon’s Sayles’ Ann. Civ. St. 1913, art. 1902), and providing that facts not denied by defendant in his answer shall be taken as confessed, vague aver-ments of plaintiff in his original petition as to some unspecified, unlawful claim being asserted by defendant against the land in question, are not such an advance denial of specific allegations in defendant’s cross-petition regarding an unpaid note given by plaintiff in payment for the land and reciting a vendor’s lien, as to prevent the facts in the cross-petition, otherwise unanswered, being taken as confessed and rendering proper the foreclosure of the lien reserved in the note upon the land.
    [Ed.^Note. — For other cases, see Pleading, Cent. Dig. § 139; Dec. Dig. <@¿=67.]
    Appeal from District Court, Bowie County ; W. T. Armistead, Judge.
    Action by James Vaughan against E. T. Page and others, in which defendants filed a cross-petition. Judgment for defendants for insufficient relief, and defendant named appeals.
    Reformed and affirmed.
    C. A. Wheeler, of Texarkana, for appellant. Chas. S. Todd, of Texarkana, and Louis E. Elkins, of Dyer, Tenn., for appellees.
   HODGES, J.

The appellee James Vaughan instituted this suit for the purpose of removing a cloud from his title to a tract of land which he describes as the east half of 160 acres situated in Bowie county. He pleads as evidence of his title a conveyance to him from Durant Whaley, executed October 10, 1910. The petition, after describing the land, is as follows:

“Plaintiff states that the defendants, Durant Whaley, E. T. Page, and W. K. Cameron, are wrongfully setting up an unlawful claim to or against said land, and are disturbing the plaintiff in his peaceable possession and enjoyment thereof, and threatening him with eviction therefrom, to his great injury and annoyance and damage, to wit, in the sum of $2,000, which amount the plaintiff alleges to be the -value of said land and the value of permanent improvements made and placed thereon by .the plaintiff. Wherefore plaintiff sues and prays for judgment quieting plaintiff in his possession of said land and removing all clouds therefrom; that all said defendants be required to account to plaintiff for all moneys, stock, and cotton that plaintiff has turned over to them or that they have taken, and for damages,” etc.

The amended original petition, from which this extract is taken, was filed May 19, 1913. Previous to the filing of this pleading, W. I-C. Cameron, one of the parties mentioned above, filed a disclaimer; but Whaley made no defense. E. T. Page, the appellant, answered by a general denial and a plea of not guilty. He also, by way of cross-action, alleged that on the 10th day of October, 1910, Whaley sold to the plaintiff the premises described in his petition; that in consideration of that sale the plaintiff and one P. Thomas executed and delivered to Whaley their promissory note for the sum of $155.84 as the purchase price of the land, due one year after date, in which note a vendor’s lien was retained to secure its payment; that the deed of conveyance executed by Whaley to the plaintiff provided for a retention of the vendor’s lien; and that the deed should become absolute only upon payment of this note. It was further alleged that this note was transferred by Whaley to Page for a valuable consideration before maturity; that it is now due and unpaid except to the extent of certain credits mentioned. He asked for a judgment against Thomas and the plaintiff for the amount of the note, principal, interest, and attorney’s fees, and for a foreclosure of the vendor’s lien upon the premises described in the plaintiff’s petition. This answer and cross-bill appear to have been filed March 23, 1914. To this pleading no reply of any kind was filed. Upon a trial before the court, a personal judgment was rendered in favor of Page, the appellant, against Vaughan and Thomas for the balance due on the note; but the court refused to foreclose the lien on the land. Judgment was entered in favor of Vaughan quieting his possession. Page alone has appealed, and assigns as error the refusal of the court to foreclose the vendor’s lien asserted by him. The court filed no findings of fact or conclusions of law, and we must look to the evidence in order to determine the grounds for this ruling.

In making out his case, the appellee, plaintiff below, introduced in evidence a deed to himself from Whaley, which recited that:

It was executed “for and in consideration of the sum of $155.84 to be paid by James Vaughan, as evidenced by the note of the said James Vaughan of the same date, of the county of Bowie and state of Texas, the receipt of which is hereby acknowledged, etc. * * * The above amount of $155.84 being- due for advances. This deed is made with the understanding that said James Vaughan is to pay said amount from the rent off the land herein conveyed, and at the time said amount is paid in full this deed shall be come absolute.”

In his testimony, Vaughan admits that he made the note referred to in this deed, and it is nowhere denied that this is the same note which Page holds and sues on in his cross-action. According to Vaughan’s testimony, he first went into possession of this tract of land in 1903 under a verbal contract of purchase from Cameron, who at that time was the owner. He was to pay Cameron $320 as the purchase price. Cameron conveyed the land to Whaley in 1908, and Whal-ey made the deed referred to above in October, 1910. It appears that, in the interval between the time Vaughan went on the land under his verbal contract of purchase and the making of the deed by Whaley, Vaughan had considerable dealings with both Cameron and Whaley about other matters, and that he had paid them at different times several hundred dollars on debts which they claimed against him. Taking his testimony as a whole, Vaughan shows that during the time he was having those dealings with Cameron and Whaley he paid them more than enough money to satisfy all debts which they held against him, including the purchase price of the land. But, for some reason which does not clearly appear, no deed was made until October, 1910, and then in consideration of the sum mentioned in the note and deed. Previous to the execution of this deed, Vaughan had let Whaley have some stock. We quote from Vaughan’s testimony:

“Whaley took the stock and came back the next year and wanted to try to collect some more for rent. When I signed that paper (what paper does not appear), he came back and wanted to get the rent, and I would not agree to it, and Mr. Page agreed to take up that $155.-84, and he kept on until I just agreed to pay it all. I did not really think I owed that money. Although it says it was given for advances, he really did not advance me anything. * * * X just signed it because I thought I would go ahead and pay that and would not have to bring it to court. I got the deed when I signed that paper.”

This is probably the most explicit and intelligible of any portion of Vaughan’s testimony regarding’ this transaction. Neither Whaley nor Cameron testified. The note was offered in evidence, and shows upon its face that it was given as alleged as the consideration for the purchase of the tract of land described in Vaughan’s petition. Page testified that on the day the note was executed it was transferred to him by Whaley, for which he gave his check to Whaley for the full amount of the note. He also corroborates Vaughan in saying that, although the note recites advances, none were in fact made.

In his testimony, but not in his pleadings, Vaughan claimed this land as-his homestead. We gather from the argument of counsel that the lien was resisted upon that ground, the contention being that the note was not a part of the purchase price, of the land.

We may even concede that Vaughan had paid for the land all that he agreed to pay, and had fully complied with his contract of purchase in every respect; yet, according to his own testimony, he had neither a legal nor an equitable title to the land. His contract rested entirely in parol, and there is no evidence that he had made any valuable improvements on the land. He does not even say positively that he resided upon it. He says he cleared up the land and had cultivated it since 1903. There is nothing to indicate the extent or value of the improvements made. The value of the use of the land may have far exceeded the cost of clearing. These facts are not sufficient to invest him with an enforceable equitable title necessary to sustain a prior homestead claim. Bradley v. Owsley, 74 Tex. 71, 11 S. W. 1052; Ann Berta Lodge v. Leverton, 42 Tex. 18; Robertson v. Simpkins, 61 Tex. 261; Bringhurst v. Texas Co., 39 Tex. Civ. App. 500, 87 S. W. 893; Cobb v. Johnson, 101 Tex. 440, 108 S. W. 811. In the Bringhurst Case, cited above, Justice Gill lays down the essentials required to take a parol contract for sale of land out of the statute of frauds:

“First, the minds of the parties must have met in an oral agreement to sell; second, the purchase money must have been paid, and possession delivered by the vendor to the vendee; third, on the faith of the transaction the ven-dee must have made valuable improvements upon the property.”

In the last case referred to, it is held that one relying upon a parol contract for the sale of land has the burden of proving the facts that will take the transaction out of the statute of frauds. It is also there held that the improvements must be of some substantial value and in excess of the value of the use of the property. This ruling, however, is but a reiteration of a well-established doctrine in this state.

If it be true that Vaughan had neither a legal nor an equitable title to this land prior to the execution of the deed by Whaley, there is no basis for the homestead claim, even if it be admitted that the original contract price had previously been paid. Under the facts stated, the note was in fact the consideration for the sale of the land, and the lien was therefore a valid incumbrance which should have been foreclosed.

There is another reason why we think this-judgment should not stand without a foreclosure of the lien set up by the appellant. It will be observed that the cross-action by Page was filed after the amendatory act of 1913 became effective, which requires specific denials on the part of the defendant of all the facts alleged in a plaintiff’s petition. As to the right to recover upon this note and to the foreclosure of the vendor’s lien, Page was a plaintiff and Vaughan a defendant, as those terms are used in the statute relating to pleadings. Article 1902, as . amended, reads as follows:

“The defendant in his answer shall plead to each fact alleged in the plaintiff’s petition, and either admit or deny the same, or deny that he has any knowledge or information thereof sufficient to form a belief. And any fact not denied by the defendant or which he does not deny that he has any knowledge or information thereof sufficient to form a belief, shall be taken as confessed.” Acts of 1913, page 256 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1902).

We do not think the vague and indefinite averments as to some unnamed unlawful claim to or against the land set out the original petition of Vaughan should be treated as an advance assault upon the validity of the note in question, or the lien which it evidenced. Unless the petition can be so construed, then the averments in the cross-action must be taken as admitted, and with such admissions the court could not refuse the foreclosure of the lien pleaded.

The judgment of the district court will therefore be reformed, so as to include an order foreclosing the lien in favor of the appellant.
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text:
    KANSAS CITY SOUTHERN RY. CO. v. COOMBER.
    (No. 1376.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 21, 1915.
    Rehearing Denied Feb. 4, 1915.)
    1. Master and Servant <@=>284 — Injuries to Servant — Jury Question.
    The question of the cause of the derailment of the locomotive held, under the evidence, for the jury, in an action by the injured engineer.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1000-1090, 1092-1132; Dec. Dig. <@=>284.]
    2. Trial <@==>260 — Instructions—Refusal.
    The refusal of requests covered by the charge given is not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <@=>2G0.]
    3. Trial <@=>194^-Instructions — Weight oe Evidence.
    Where the instructions, in their entirety, required the jury to find as facts the particular acts of negligence complained of, they were not objectionable as on the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. <@=>194.]
    4. Trial <@=>296 — Instructions — Sueei-ciency.
    Indefiniteness in an instruction is not error, where the "instruction, read in connection with a special charge, could not have misled the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. <@=> 296.]
    5. Master and Servant <@=>129 — Injuries to Servant — Negligence.
    Where the negligence of a railroad company was either the sole cause of the derailment of a locomotive, or without its negligence the derailment would not have occurred, the company was liable to an employé injured in the accident.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. <§=> 129.]
    6. Master and Servant <@=>291 — Injuries to Servant — Contributory Negligence.
    Where an engineer, when the lead wheels ■of his locomotive left the tracks, set the emergency brakes, and then went to the steps' to alight, but was crushed under the locomotive, which overturned before he alighted, there was no question of contributory negligence an voluntarily jumping from the train.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1133, 1134, 1136 — 1146; Dec. Dig. <&=291.]
    Appeal from District Court, Bowie County; I-I. F. O’Neal, Judge.
    Action by A. R. Coomber against the Kansas City Southern Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    The passenger engine that the appellee was operating was suddenly derailed on the main line, inflicting upon him grievous bodily injury. He alleges that his injuries were caused by the negligent acts of appellant in furnishing for service an engine having the flanges on the wheels of the truck worn sharp and vertical, and in maintaining the track at the place of derailment out of alignment, with depressions and low joints, having rotten ties, and the rails not sufficiently spiked to the ties. The appellant denied the allegations of negligence, and pleaded, as a defense, that the derailment was caused by the wanton act of unknown parties in placing spikes on the rails, and assumed risk and negligence on the part of the plaintiff. The jury returned a verdict in favor of appellee.
    Appellant’s regular passenger train had left the station of Anococa, La., going south, and was running at the rate of speed between 20 and 25 miles an hour. At a point three-fourths of a mile from the station, the track is so constructed as to have a three degree curve. On this curve the front or lead wheels of the engine trucks suddenly mounted the rail, and the flanges of the wheels ran on the ball of the rail about a rail’s length, then left the rail, got on the outside of the curve and ran on the ties for a distance of about 11 rails, or about 330 feet, when the engine turned over. The appellee, the engineer, after applying the air in the emergency, got on the second step of the engine in an effort to alight, but the engine entirely left the track and overturned before he alighted. Appellee had both of his legs crushed and broken, and suffered injuries to an extent to justify the amount of the verdict. According to the evidence given by the witnesses in behalf of ap-pellee, it was established that the flanges on the front left, and the rear right, wheels of the engine trucks had, through use, become worn and sharp and vertical, while the front right, and the rear left, wheels of the same trucks were not worn and had no vertical flanges, which condition caused the trucks to run on the rails in an insecure and unsafe way for operation, and was dangerous and likely to cause derailment of the engine. It was also established by the evidence in behalf of appellee that for a distance of between 400 and 500 yards, both north and south of the point where the wheels of the engine trucks first mounted the rail, the track had low joints, high centers, and rotten ties, all of which caused the engine to rock in passing over the track, and' gave it a tendency to leave the track; and that, at the very point where the wheels first mounted the rails, there was a low joint, caused by not having sufficient dirt tamped under it. The testimony of the witnesses in behalf of appellant shows that the track and the flanges of the wheels of the engine trucks were in good condition and not out of repair. Appellant further introduced evidence showing that, where the wheels of the engine trucks first got on the rail, the pieces of two spikes, which appeared to have been recently cut into two parts by the wheels of the engine, were found at the time of the derailment, underneath or i near the rail. It was shown that the spikes were of the kind ordinarily in use on the railway, and about nine-sixteenths of an inch thick. It was the idea and theory of appellant’s witnesses that these spikes, by indications on the rail, were on the rail, and that they caused the wheels of the engine to mount the rail and to derail. A regular passenger train passed over the same place about two hours before the wreck occurred, at which time nothing unusual or irregular was observed by those operating the engine. Ap-pellee testified that he was looking out for obstructions on the track, and that, if there had been any spikes on the top of the rail, he would have seen them.

       Under all the evidence, which was conflicting, it was for the jury to determine the proximate cause of the wreck. The verdict of the jury comprehends the findings of fact, which have support in evidence and are here adopted, that the appellee suffered injuries that were either solely caused or proximately caused in part by the negligence of appellant in respect to the acts, either and both, pleaded by appellee.
    Glass, Estes, King & Burford, of Texar-kana, for appellant. S. P. Jones, of Marshall, for appellee.
   LEVY, J.

(after stating the facts as above). It is thought that the evidence objected to in the second and third assignments of error, bearing, as it did, upon negligence bringing about the injury, was not improperly admitted ; and these assignments are overruled.

As the court’s main charge sufficiently embodied, it is believed, the applicable rule of law, there was no reversible error in refusing to give the special charges made the basis of assignments of error Nos. 6, 12, and 15.

The seventh and eighth assignments of error object to portions of the thirteenth and fourteenth paragraphs of the court’s charge as being upon the weight of evidence. Taking each instruction in its entirety, there is not, it is concluded, ground afforded for reversible .error, inasmuch as the instructions ultimately required the jury to find as a fact, not only that the particular conditions of the engine and the track existed, but also that they were negligent acts.on the part of the railway company.

The eleventh assignment of error challenges the seventeenth paragraph of the court’s charge as being unintelligible, an erroneous statement of the law, and conflicting in principle with a special charge given. The instruction is lacking in concise expression, and a portion of it is somewhat indefinite in meaning. But, when the instruction is read in connection with the special charge, the meaning of the whole is sufficiently definite and apparent, and not likely to have misled the jury in an understanding of it. The effect of the two instructions was to leave to the jury the decision of the proximate cause of the derailment and injury. By the court’s instruction the jury were in substance and meaning informed that upon a finding by them that spikes were placed on the rail by persons for whose conduct the railway company was not responsible, and that the spikes being on the rail was the proximate cause of the derailment, the appellee could not recover; but that upon a finding by them of negligence on the part of the railway company in respect to the engine or track, either or both, and that such negligence was the proximate cause of the derailment, and that such injury would not have happened but for such negligence, then appellee could recover. The special charge concisely informed the jury that, if the derailment was found from the evidence to be solely due to and caused by spikes being on ■ the rail, the appellee could not recover. The evidence clearly raised an issue of fact as to the proximate and sole cause of the derailment; and the instruction, in connection with the special charge, was not legally erroneous. Appellant may have been relieved of liability if the spikes were on the rail through no fault of its, and the spikes were either the sole or the proximate cause of the derailment. But if appellant was guilty of the alleged negligence, and such negligence was the sole cause of the injury, or if the injury proximately resulted in whole or in part through the negligent acts, the company would not be relieved of liability. Bonner v. Wingate, 78 Tex. 336, 14 S. W. 790; Railway Co. v. Boyce, 39 Tex. Civ. App. 195, 87 S. W. 395; 4 Labatt’s Master and Servant (2d Ed.) § 1580. See principle in Markham v. Navigation Co., 73 Tex. 247, 11 S. W. 131; Railway Co. v. McWhirter, 77 Tex. 350, 14 S. W. 26, 19 Am. St. Rep. 755.

The court’s charge in respect to assumed risk, as complained of in the thirteenth and fourteenth assignments of error, is not, it is concluded, affirmatively erroneous.

By the sixteenth assignment of error the appellant complains of the refusal to give a special charge in respect to contributory negligence on the part of appellee, based on voluntarily jumping or alighting from the train. The record does not disclose or raise an issue that appellee jumped from the engine. On the- contrary, the appellee, according to the record, did not succeed in alighting from the engine before it turned over. It is thought that, in the circumstances appearing here, any question of contributory negligence is not raised, and the court did not err in refusing the special charge.

We have considered the remaining assignments of error, and conclude they present no reversible error.

Judgment affirmed.
      <@=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ADAMS v. A. A. PATON & CO.
    (No. 1397.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 28, 1915.)
    1. Appeal and Error <@==>866 — Questions Reviewable — Findings.
    On appeal from a judgment on a directed verdict, the question is not whether the evidence sustained the verdict, but whether the evidence may not support a contrary verdict, and in determining that question the court must give such weight to the testimony of the defeated party as the jury might have given, and also consider the fact when it is so, that the successful party had the burden of proof.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3467-3475; Dec. Dig. <@=> 866.]
    2. Landlord and Tenant <@=>252 — Lien op Landlord — Waiver—Burden op Proof.
    A purchaser from a tenant, when sued by the landlord for the value of the crop, has the burden of proving that the landlord has waived Ms lien for rent and advances.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1002, 1022-1026, 1029; Dec. Dig. <@=>252.]
    3. Contracts <@=>262 — Rights—“Waiver.”
    A “waiver,” as applied to contracts, is the intentional relinquishment of a known right, under the contract, based on a consideration, and the intention to waive must be proved like any other fact.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1181-1183; Dec. Dig. <@=>262.
    For other definitions, see Words and Phrases, First and Second Series, Waiver.]
    4. Landlord and Tenant <@=>254 — Lien of Landlord — Waiver.
    The law will not imply a waiver by a landlord of his lien for rent and advances, against his actual intent, in the absence of any grounds for estoppel in favor of a purchaser of the tenant.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 986, 1034-1044; Dec. Dig. <@=>254.]
    5. Landlord and Tenant <@=>254 — Lien of Landlord — Estoppel.
    A landlord, who used the proceeds of a sale of a crop by the tenant, who deposited the same in a bank to the landlord’s credit, was not thereby estopped from suing the purchaser for conversion, where the landlord did nothing to induce the purchase, and did not know of it until after his application of the proceeds.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 986, 1034=1044; Dec. Dig. <@=>254.]
    6. Landlord and Tenant <@=>252 — Lien of Landlord — Purchaser from Tenant — Actions.
    An action by a landlord, having a lien for rent and advances, against the tenant’s purchaser, though termed one for conversion, is in reality one by a mortgagee for damages for the loss or impairment of his security, so that the amount of the recovery is measured by the extent of the damages caused.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1002, 1022-1026, 1029; Dec. Dig. <@=>252.]
    7. Landlord and Tenant <@=>252 — Lien of Landlord — Action Against Purchaser-Condition Precedent.
    A landlord, having a lien for rent and ad-vanees, may sue a tenant’s purchaser of the crop without first returning the part of the proceeds appropriated by the landlord for rent.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1002, 1022-1026, 1029; Dec. Dig. <@=>252.]
    8.Landlord and Tenant <@=>254r — Lien of Landlord — Waiver.
    A waiver of a landlord’s lien for rent and advances is not inferred from a mere transfer of the ownership by the tenant of the crop, but by the fact that the transfer is made with the understanding, assented to by the landlord, that the property is to be appropriated by the purchaser free from the incumbrance; and, where a "sale by tjie tenant does not imply that the property is to be removed from the premises without consent of the landlord, the latter need not signify whether he assents or dissents.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 986, 1034=1044; Dec. Dig. <@=>254.]
    Appeal from Lamar County Court; Rube S. Wells, Judge.
    Action by W. H. Adams against A. A. Patón & Co. From a judgment for defendants on appeal from a justice’s court, plaintiff appeals.
    Reversed and remanded for new trial.
    Wright & Patrick, of Paris, for appellant. Long & Wortham and Park, Moore & Hardi-son, all of Paris, for appellees.
   HODGES, J.

This suit was originally instituted in the justice court of precinct 1 of Lamar county, by the appellant against the appellees, to recover the sum of $131, alleged to be the value of certain cotton converted by the appellees upon which the appellant had a landlord’s lien. The appellant recovered a judgment in the justice court for $111.18. The appellees perfected an appeal to the county court, where a verdict was rendered in favor of the appellees under a peremptory instruction from the court. The only question presented in this appeal is that which assails the correctness of that instruction.

It appears to be conceded that the evidence was sufficient to establish the following facts: During the year 1911 W. F. Adams was a tenant on the farm of W. H. Adams in Lamar county, and raised a crop of cotton, on which W. H. Adams held a landlord’s lien for both rents and advances amounting to several hundred dollars. On the 23d of September of that year W. F. Adams sold two bales of the cotton raised on the rented premises to the appellees, for which he received $87.75, and on October 6th he sold two other bales to the appellees, for which he received the sum of $90.67; the two sales aggregating $178.42. The rent due the landlord from this cotton amounted to $67.24, which was deposited by W. F. Adams to the credit of the appellant, W. H. Adams, in a bank at Petty, Tex., with which the appellant had an account and transacted his business. The remainder, $111.18, was retained by W. F. Adams. W. H. Adams subsequently appropriated and used the money which had been placed to his credit by bis tenant. About the 1st of December, 1911, the appellant and W. F. Adams had a disagreement growing out of their business transactions, and the appellant instituted a suit against W. F. Adams to recover what was then due for advances and rents. At the same time a distress warrant was sued out and levied upon the entire crop of the tenant. A judgment was finally rendered in appellant’s favor for about $1,500, which was reduced to about $800 after applying the proceeds resulting from the sale of the crop seized under the distress warrant.

In defense of the instruction given in the trial of this case, it is contended that W. H. Adams accepted and appropriated a part ofi the proceeds of the sale made to the appel-lees by his tenant, and that such acceptance and appropriation conclusively shows an acquiescence on his part in that sale, and a waiver of his lien upon the cotton disposed of.

There is considerable conflict in the testimony as to the conditions under which those sales were made and the appellant’s conduct -with reference to them. The tenant, W. F. Adams, testified that the appellant expressly agreed in advance that the cotton should be sold in order that the tenant might raise the funds necessary to meet pressing expenses; that after the gale had been made he deposited the appellant’s rent to his credit in the banli, and on the same day delivered to the appellant a deposit slip showing the credit entry in the bank. The appellant testified that early in the season, before any of the cotton was gathered, he told his tenant not to sell any of the cotton raised on the premises; that they would wait until all of the cotton had been gathered and sell it in bulk, hoping to get a better price. He also says that later he forbade any selling of the cotton from the rented premises. He further testified that he knew nothing of this cotton having been sold till just before he filed his suit against his tenant in November or December, 1911; that he did not know any money had been deposited in the bank to his credit till some time in March, 1912, when he had his passbook balanced. If the testimony of the tenant be true, appellant consented to the sale of the cotton, under circumstances which implied a waiver of his lien. But if the testimony of the appellant be true, he did not, but, on the contrary, was ignorant that any sale had been made for more than a month afterward, and did not know that the money had been placed to his credit in the bank for approximately five months thereafter. The question before us is, not whether the evidence is sufficient to sustain the finding that the appellant had waived his lien, but whether the evidence may not support a contrary finding. In determining that question we must give such weight to the testimony of the appellant as the jury might have given, and regard as proven all the material facts to which he testified.

We must also give due consideration to the fact that the appellees had the burden of proving that the lien had been waived.

A waiver has been defined to be the intentional relinquishment of a known right, based upon a consideration. M., K. & T. Ry. Co. v. Hendricks, 49 Tex. Civ. App. 314, 108 S. W. 745; 29 Eng. & Amer. Ency. of Law, 1091. That definition, of course, refers to contracts and agreements relinquishing rights. In such instances the intention to waive the right must be proved like any other fact.

According to the testimony of the appellant in this case, there was no intent upon his part to waive his lien on the cotton in controversy. It cannot be said that he impliedly waived his rights in a transaction of which he was ignorant, unless he was guilty of conduct from -which the law would conclusively presume that this had been done for some equitable reason. If the appellant’s testimony is to be relied on, he did nothing in advance of the sale from which the inference could be drawn that he was willing to waive his lien. There is no pretense that the agent of the appellee, to whom the cotton was sold by the tenant, was influenced in anything he did or failed to do by the appellant’s conduct. In fact, this agent testified that he did not know that the cotton was raised on the appellant’s premises, indicating that he did not suspect that the appellant had any claim on it. The law will not imply a waiver under such conditions, in opposition to the actual intent of the lienholder; there being no grounds for invoking an estoppel.

The only grounds relied on for an estoppel in this case is the act of the appellant in using the proceeds of the sale of the cotton after it had been placed in the bank to his credit. Viewing the transaction from the testimony of the appellant, the question is: Did his appropriation of money equal to the value of his rents in that particular cotton, in ignorance of the fact that it was a part of the proceeds of that sale, and the retention of the money after he ascertained that fact, estop him from saying that he had not waived his lien for other debts due him? We think not. The appellant was not called upon to make an election as to what course he would pursue regarding this transaction till he knew the cotton had been sold and the money placed to his credit. According to his testimony, he was not placed in that situation till about five months after the date of the sale. What was he then to do? Was there more than one remedy available to him at that time? The evidence does not show what disposition had then been made of the cotton. It is to be inferred from the record that the appellees were buying cotton in the ordinary course of trade for speculative purposes, and that this cotton was acquired in the open market with the expectation that it would he shipped out of the country at once, or probably so mingled with other cotton that it could not be identified five months later. It follows that when the appellant became aware of the true situation there was but one course open to him — to sue the purchasers of the cotton for damages.

Actions of that character are usually termed suits for conversion, but they are in reality suits by a mortgagee for damages for the loss or impairment of his security, and the amount of his recovery in the suit is measured by the extent of the damages inflicted. In this case the evidence shows that the appellant held a lien against this cotton for a debt which exceeded in value the cotton itself. Hence he was entitled to have applied on that debt the entire value of the cotton sold.

Having the right to sue for this amount, the law would not require him, as a condition to its exercise, to do so foolish a thing as to first return a portion of that which he would clearly be entitled to recover back. It would be different should the appellant undertake to follow the cotton itself and subject it to the payment of his debt. If permitted to subject the property to the payment of his claim without returning the money received, the landlord would be the gainer, and the purchaser a .corresponding loser, to the extent of the proceeds retained from the previous sale. The injustice of such a- proceeding is apparent at a glance. But no such inequitable conditions grow out of a suit for damages for the loss or impairment of the -security. An action for damages to the security involves an abandonment of the lien on the property, and is an affirmance, rather than a repudiation, of the transaction by which the property passed to the purchaser.

The law imposes no restraints whatever upon the right of the tenant to sell or otherwise dispose of the crops upon which the landlord may have a lien. It is the removal of those crops from the rented premises without the landlord’s consent which the statute forbids. If the sale by the tenant does not carry with it the implication that the property is to be removed from the rented premises without the consent of the landlord, the latter is not called upon to signify whether he assents or dissents. His rights are not jeopardized as long as his security remains undisturbed. There is no impairment of the security in the mere assignment of the title to the property subject to the lien. Hence a waiver of the landlord’s lion is not to be inferred from the mere transfer of the ownership of the property by the tenant, but by the fact that such transfer is made with the understanding that the property is to be appropriated by the purchaser free from the incumbrance. If there is a sale by the tenant, consummated under conditions which imply such an understanding, and a portion of the proceeds is paid over to the landlord, when he is entitled to all of them, we see no reason why the landlord cannot even then retain what he gets, and immediately bring an action for the remainder. Unless he consented to such sale, or has been guilty of conduct from which the purchaser had a right to infer such consent, the latter cannot complain of an injustice in such a proceeding. The familiar doctrine that one should not be permitted to repudiate a sale made for him, or for his benefit, «while retaining a part of the proceeds, has no application to this case.

Counsel for appellees refer to the following authorities as supporting the ruling of the trial court: McCollum v. Wood, 33 S. W. 1087; Planters’ Compress Co. v. Howard, 41 Tex. Civ. App. 285, 92 S. W. 46; Melasky v. Jarrell, 131 S. W. 856. What has been said sufficiently distinguishes this case from the one first cited. If the testimony of the appellant is to be accepted as true, the value of the second case referred to as a precedent is destroyed. The third ease is still less applicable.

The judgment of the county court is reversed, and the cause remanded for another trial.
      (gz^>Por oilier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes