author: CARL, J.

text:
    SOUTHERN SURETY CO. v. FIRST STATE BANK OF MONTGOMERY.
    (No. 5295.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 27, 1914.
    Rehearing Denied June 17, 1914.)
    Insurance (§ 654) —Action on Fidelity Bond — Sufficiency of Evidence — Compliance with Warranties — “Once a Month.”
    Evidence, in a bank’s action on the fidelity bond of its cashier, held to show that the bank had complied with its warranties as to when his accounts were last examined, that there was then no shortage or indebtedness to the hank, and as to monthly examinations and reports as to his accounts; the warranty of an examination “once a month” not requiring an examination exactly every 30 days, but once during each month.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1677, 1680, 1681, 1683-1685; Dec. Dig. § 654.]
    Appeal from District Court, Montgomery County; L. B. Hightower, Judge.
    Action by the First State Bank of Montgomery against the Southern Surety Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Arthur G. Moseley, of St. Louis, Mo., and William N. Foster, of Conroe, for appellant. C. W. Nugent and C. A. Toler, both of Con-roe, Dean, Humphrey & Powell, of Huntsville, and Jas. T. Rucks, of Conroe, for ap-pellee.

       For other casés see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CARL, J.

The First State Bank of Montgomery sued the Southern Surety Company, an Oklahoma surety corporation doing business in Texas under a permit, and alleged, substantially: That on August 3, 1908, the defendant executed a fidelity bond to the bank wherein and whereby it undertook to make good and reimburse to the bank any pecuniary loss which the' bank might sustain during the period of one year, beginning July 31, 1908, and ending July 31, 1909, by any act of N. O. Lauve, as cashier of the bank, not to exceed $5,000, the amount of the bond; that during the life of the bond .N. O. Lauve converted and misapplied $5,489 of the funds of the bank; and that the bank did not discover the defalcation until on or about February 15, 1910, and that immediately upon said discovery the bank notified the surety company of the loss and demanded payment in the sum of $5,000.

The surety company alleged that the bond was based upon warranties therein contained which constituted conditions precedent to the accrual of any obligation thereon against the company, and pleaded specially this clause in the bond:

“Whereas, the employer has heretofore delivered to the company certain representations and promises relative to the duties and accounts of the employé and other matters, it is hereby understood and agreed that those representations and such promises and any subsequent representation or promise of the employer herein required by or lodged with the company are hereby expressly warranted to be true.”

•It is- claimed that- the contract was breached by the bank, in that question No. 5 was incorrectly answered. That question was:

“Q. To whom and how frequently will he account for his handling of funds and securities?”

And the answer was:

“A. Once a month to board of directors, and to commissioner of banking of the state of Texas, whenever called upon as required by law.”

It is alleged that Lauve did not so account to the board of directors during the period covered by the bond. Question 6 was:

“What means will you use to ascertain whether his accounts are correct? How frequently will they be examined? By whom will they be examined?”

And the answers were:

“Monthly reports and state examinations; not less than six times a year; committee of directors — state examination.”

It is claimed that these requirements were not met, and that they were warranties with which the bank was bound to comply. Questions 7 and 8 and the answers given to samo were:

“(7) When were his accounts last examined? June 30, 1908. (8) Were they reported correct? Yes.”

It is claimed that the answers to these questions were not true, and that no examination was made on June 30, 1908, and reported correct, and that by reason of such false answer's these warranties were breached.

In a trial amendment the surety company alleged that, in answer to questions 9 and 10 made by the bank, it was stated that Lauve was not indebted to the bank, when in fact he'Owed the bank $400, and that said false statements were material to the risk assumed, and, by making such false answers, the bank breached its agreement and warranty and thereby rendered the bond void.

The bank denied these allegations, and alleged that if Lauve was short with the bank at the time the answers were made, or owed it, the bank did not know it, and that all of the answers were made in good faith; that the answers made were true, but, if not, they did not increase 'the risk; but, if 'not true, then defendant cannot insist upon same as a bar of the right of action, because it did not accompany the bond with a written or photographic copy of the application made for the bond and a copy of all questions asked and answers given thereto, as required by statute.

The trial was before the court, without a jury, and judgment was rendered for $6,025, same being principal of $5,000, and interest to that date, and for costs, in favor of the bank.

There is one assignment of error briefed which is to the effect that the court erred in rendering judgment for the plaintiff, for the reason, it is claimed, the defaulting cashier’s accounts were not examined by the directors of the bank as they should have been under the alleged warranties shown by the answers to the questions propounded in securing the bond sued upon; that such examinations as were made were not such as were contemplated by the alleged warranties, and were not reasonably'calculated to disclose the defalcations of the cashier; and that no verification of the amounts with depositories was made.

The trial court filed conclusions of fact. We will not here set out the substance of the same, except that which bears upon this assignment of error. Some of the questions asked and answered by L. A. Peel, vice president of the bank, in the application for the bond for N. O. Lauve, are as follows:

The bond executed contained this clause:

“Whereas, the employer has heretofore delivered to the company certain representations and promises relative to the duties and accounts of the employé and other matters, it is hereby understood and agreed that these representations and such promises and any subsequent representation or promise of the employer herein required by or lodged with the company are hereby expressly warranted to be true.”

The application upon which the bond was based was not attached to the bond, nor was any written or photographic copy of the said application attached, or delivered to the bank, accompanying the bond or otherwise. On June 30, 1908, there was no shortage due the bank from N. O. Lauve, and he was not indebted to the bank in any amount on July 1b, 1908, when said application was signed by L. A. Peel, vice president of the bank. The accounts of -Lauve with the bank were examined as of date June 30, 1908, and reported correct. During the period covered by the bond the said Lauve made his reports accounting for the handling of the funds i and securities of the bank once every month to the board of directors, and also during said time accounted to the commissioner of banking of the state of Texas whenever called upon as required by law. The bank required and obtained monthly reports from Lauve showing the condition of the bank in order to ascertain that they were correct, and examinations were made ~by the commissioner of banking when required. These reports were examined much oftener than six times a year by the auditing committee of the directors of the bank, and the usual state bank examinations were made. The monthly reports were checked over by a committee of the board of directors at each monthly meeting, and in addition thereto W. B. Wood, president of the bank, during the entire time of the bond, assisted by other directors as an auditing committee, made frequent and thorough examinations of the books of the bank, and of the accounts of the said Lauve, and of the accounts of the bank as kept by Lauve, and of the securities of the bank. Wood, with other directors, counted the cash and securities at frequent intervals, and more than six times a year, and as an auditing committee aforesaid took every precaution required by the terms of the questions and answers contained in the application for said bond.

During the life of the bond, between September, 1908, and the 24th day of June, 1909, N. O. Lauve abstracted and converted from the funds of the bank $5,589.20, and covered and concealed such abstractions of funds by false and fraudulent entries made in the bank books. He concealed $5,458.15 of said abstractions by false and fraudulent entries in the T: J. Peel account on the bank books, and $131.05 of the defalcation was in the E. C: Wise account. The said N. O. Lauve made all the entries in these two accounts, and so completely concealed such defalcations in said accounts in the bank as to make it impossible to detect the same, except by calling in the passbooks of the individual depositors and checks and vouchers, which Was impractical, and is never done in examinations made under order of the state banking commissioner or by the hoard of directors of the' bank. Lauve personally made the entries in the Peel and Wise accounts and in their passbooks and was assisted therein by no one else. These passbooks showed the true status of the T. J. Peel and E. O. Wise accounts; but the general and individual ledgers of the bank did not. On the general and individual ledgers, these accounts were so kept that the shortages and defalcations' were effectually concealed.

The bank bad no notice oí any of these defalcations until about the 11th or 12th of February, 1910, and, as soon as the bank officials discovered the same, the surety company was notified, and it sent F. A. Ungles to Montgomery to examine the bank, and the bank officials afforded him every facility to make an effective and thorough examination of the books of the bank and its affairs, and furnished the surety- company* an itemized bill of particulars of the defalcations.. The surety company, in response to said bill, denied liability.

AVe have carefully reviewed the evidence and conclude that it justifies the findings of fact made by the trial court. And the finding of the court that the representations as to existing and past facts made in said warranties were true is in consonance with the facts given in evidence. The minutes of the board of directors of the bank were introduced and showed a meeting of that body each month beginning July 9, 1908, and ending August 81, 1909; and it was testified by the directors that at each of these meetings statements were submitted by Lauve, the cashier, and examined and compared with the books of the bank. Mr. AVood, the president, w.as' active in looking after the bank’s affairs, and made frequent examinations, and says that he, with' the committee, went over the accounts, books, and cash, and compared them with the various monthly statements submitted by Lauve. More than six examinations by the state banking department are shown during the life of the bond.

The shortage occurred in the two accounts of Peel and AVise, and it was shown beyond question that the defalcations exceeded the face of the bond. Ungles, the surety company’s representative, was afforded every opportunity to examine the bank and its affairs, and the depository accounts were reconciled to the bank balances as entered by Lauve. It is not within the usual duties of the directors of a bank, or a committee representing them, to examine each month into the depository accounts, and to call in passbooks and vouchers and verify the same each month. In the very nature of things, they cannot be expected to do this. But, even if that had been done in this instance, it would have accomplished nothing, because the depository accounts were shown to be correct, and the places where the losses occurred were fixed at the Peel and AVise accounts. The facts showed that the board of directors did comply with the warranties; that Lauve did not owe the bank July 15, 1908; that his accounts were examined June 30, 1908; that monthly reports were made thereafter by Lauve and during the life of-the contract; and that these reports were examined and compared with the bank books by a committee of the directors. Further, the state banking department made the necessary examinations.

AVhen the surety company wrote that bond, based upon the application, it must be held to have known the usual and customary method of conducting a bank by a board of directors. The fact that it is stated an examination will be made once a month does not mean exactly every 30 days, but just what the answer says, “once a month.” That means once during each month. There was no dereliction on the part of the bank directors, and we hold that they did comply with these warranties.

The judgment is affirmed.


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    SUPREME LODGE K. P. v. MIMS.
    (No. 6997.)
    (Court of Civil Appeals of Texas. Dallas.
    March 14, 1914.
    On Motion for Rehearing, May 30, 1914.)
    1. Courts (§ 97) — Precedents — Federal Questions — 'What Aee.
    That a mutual benefit society was chartered by a special act of Congress which authorized it to amend its constitution at pleasure, provided the amendment did not conflict with the laws of the United States or any state, did not make the question whether an unreasonable raise in rates constituted a breach of the society’s existing contracts one of exclusive federal jurisprudence, so as to render the decisions of the federal courts binding precedents.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 329-333; Dec. Dig. § 97.]
    2. Insurance (§ 705) — Mutual Benefit Societies — Reorganization.
    Defendant, on its incorporation .by a special act of Congress, -absorbed the membership and entire insurance business of a prior corporation which had issued certificates to plaintiff and of an unincorporated society which succeeded it, and continually from the date of its incorporation in 1894 to January, 1911, received and accepted dues and assessments from plaintiff; defendant’s charter providing that all claims, accounts, debts, things in action, or other matters of business of whatever nature, existing for or against the pre-existing order, should survive and succeed to and against defendant, etc. Held, that defendant thereby became liable on such pre-existing contracts and was answerable for a breach thereof.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1840; Dec. Dig. § 705.]
    3. Insurance (§ 719) — Mutual Benefit Societies — Contract—Breach — Raise in Rates.
    Plaintiff accepted certain mutual benefit certificates in a corporation the constitution of which provided that the supreme lodge had power to alter and amend its constitution and bylaws at will. Plaintiff’s contract did not stipulate that the society or defendant, its ultimate successor, might increase the rate of assessment at will, but merely recited that it was issued on condition that plaintiff should pay all monthly assessments as required, and fully comply with the laws governing that rank then in force or that might thereafter be enacted. Plaintiff changed the class of his membership in May, 1885, when h@ was required to pay $3.60 per month. In 1888 this was raised to $4.50, in 1904 to $4.05, and later to $7.35. Assessments at these rates he continued to pay • under protest until January, 1911, when he was notified that his rate thereafter would he $34.80 per month. This he refused to pay and sued for breach of contract. Held, that the laws and amendments passed after plaintiff’s contract of insurance was entered into should be regarded as prospective only in their operation, and the reservation of the general power to amend applicable only to the member’s duties and obligations as such, and did not authorize a radical change in the terms of his insurance contract, and that such an increase in assessments was a breach of contract.
    [Ed. Note. — Por other cases, see Insurance, Cent. Dig. § 1855; Dec. Dig. § 719.]
    4. Insurance (§ 741) — Mutual Benefit Societies — Illegal Assessments — Payment-Estoppel.
    That the holder of a mutual benefit certificate pays illegal assessments levied against him in violation of his contract rather than take the chance of having his certificate forfeited does not estop him or his beneficiary to thereafter question the legality of subsequent similar assessments.
    [Ed. Note. — Por other cases, see Insurance, Dec. Dig. § 741.]
    5. Appeal and Ebbob (§ 742) — Assignments of Ebbob — Requisites—Statement.
    Where a statement under an assignment of error did not show that the alleged errors complained of were made grounds for a motion for new trial, and contained no part of the evidence relating to or bearing on the propositions advanced thereunder, the assignment could not be considered.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    6. Appeal and Erbor (§ 1050) — Review — Rulings on Evidence — Prejudice.
    Where, in an action for breach of a mutual benefit certificate issued by defendant’s predecessor, defendant’s supreme secretary testified that plaintiff in May, 1885, became a fourth-class member of the old corporation to the extent of $3,000 benefit, and fully defined his rights as such, and that the.contract was assumed by defendant pursuant to the requisite notice in October, 1910, defendant was not prejudiced by the alleged erroneous admission in evidence of plaintiff’s old certificate over the objection that its execution and assumption by defendant were not properly proved.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    On Motion for Rehearing.
    7. Insurance (§ 743) — Mutual Benefit Societies — Change of Certificate — Breach of Contract — Damages.
    Where plaintiff, holding certificates in a mutual benefit society, applied to change them for a single certificate in another class, and for this purpose signed an application by which he surrendered all his right, title, and interest in and to the certificates to ,be changed, and thereafter, and after he had become uninsurable,. defendant, the successor of the original society, breached the contract by an improper raise in rates, plaintiff was only entitled to recover assessments paid and interest thereon from the date of the change in his certificates.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1888; Dec. Dig. § 743.]
    Appeal from District Court, Dallas County; E. B. Meese, Judge.
    Action by S. Mims against the Supreme Lodge Knights of Pythias for breach of a contract- of insurance. Judgment for plaintiff, and defendant appeals.
    Modified on rehearing and affirmed.
    Crane & Crane, of Dallas, and H. P.-Brown, of Cleburne, for appellant. Cockrell, Gray & McBride, of Dallas (Thomas P. West, of Ft. Worth, of counsel), for appellee.

       For.other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig: Key-No. Series & Rep'r Indexes

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   TALBOT, J.

Appellee brought this suit against the appellant May 19, 1911, to recover damages for the breach of a benefit certificate, or contract of insurance, issued to the appellee on the 29th day of May, 1885, by a corporation inown as the Supreme Lodge Knights of Pythias of the World. Prom a judgment in favor of plaintiff, the defendant appealed.

The material facts are substantially as follows: On or about August 5, 1870, a fraternal beneficiary association designated the Supreme Lodge Knights of Pythias of the World was incorporated under and by virtue of an act of Congress of the United States approved May 5, 1870 (16 Stat. 98, c. 80). By the terms of the act of incorporation of said fraternal association, the charter thereof expired on or about the 5th day of August, 1890. The defendant in this case, the Supreme Lodge Knights of Pythias, was incorporated by an act of Congress of the United States approved by the President June 29, 1894 (28 Stat. 96, c. 119) and since said date the appellant continued to act under and by virtue of said original act of incorporation and the amendments thereto, up to the date of this suit, and since said time. Between the date of the expiration of the charter of the old corporation known as the Supreme Lodge Knights of Pythias of the World, which charter expired, as above stated, on the 5th day of August, 1890, and the date of the incorporation and the charter of the appellant in this case, an unincorporated society, known as the Supreme Lodge Knights of Pythias, or Supreme Lodge Knights of Pythias of the World, carried on business under the .laws existing in 1890. On April 11, 1879, appellee made his application to the Endowment Rank of the old corporation referred to, chartered in 1870, for certificates of insurance in what was known as the first and second class of said Endowment Rank, and said application contained the following stipulation:

“I hereby agree to conform to and obey the laws, rules, and regulations of the order governing this rank now in force, or that may hereafter be enacted, or submit to the penalties therein contained.”

Upon said application two contracts of insurance or benefit certificates, one for the sum of $1,000, and the other for the sum of $2,000, to be paid to plaintiff’s wife upon notice and proof of his death and good standing in the rank at the time of his death, were issued to plaintiff on the 30th day of April, 1879. The application upon which these certificates were issued was made a part thereof, and the respective amounts therein agreed to be paid were payable upon condition that the plaintiff paid all assessments to the Endowment Rank as required and a full eompli-anee -with all the laws governing said rank “now in force, or that may hereafter be enacted.” Each of these certificates also contained the following:

“And it is -understood and agreed that any violation of the within mentioned conditions, or the requirements of the laws in force governing the rank, shall render this certificate and all claims null and void, and that the said Supreme Lodge shall not be liable for the above sum, or any part thereof.”

On May 7, 1885, plaintiff made application to be transferred to what was known as the fourth class of the Endowment Rank of the corporation, chartered in 1870, and surrendered all his right, title, and interest in and to the two certificates mentioned. There was then issued to plaintiff, on the 29th day of May, 1885, a benefit certificate, wherein—

“in consideration of the representations and declarations made in his application bearing date of April 11, 1879, and his absolute surrender of the certificates heretofore held by him in first and second classes for cancellation, as requested in his application for transfer to the fourth class bearing date of May 7, 1885, all of which is made a part of this contract, and the payment of the prescribed admission fee, and in consideration of the payment hereafter to said Endowment Rank of all monthly payments as' required, and the full compliance with all the laws governing this rank, now in force or that may hereafter be enacted and shall be in good standing under said laws, the sum of three thousand dollars will be paid by the Supreme Lodge Knights of. Pythias of the World to Mary J. Mims, wife, as directed,” etc.

This certificate, like the two first issued, contained the following clause:

“And it is understood and agreed that any violation of the within mentioned conditions, or the requirements of the laws in force governing this rank, shall render this certificate and all claims null and void, and that the said Supreme Lodge shall not be liable for the above-sum or any part thereof.”

The two certificates issued to plaintiff in 1879 were issued upon what is known as the “post mortem plan,” ’by which, upon death of a member in one of said classes, an’ assessment was levied upon the remaining members, and out of the proceeds of such assessment the certificate issued was paid. Article 5,.§ 1, of the laws passed in 1884 by the corporation chartered in 1870 provides:

“In addition to the three classes specified in section 2 of article 4 of this constitution, there shall be a class endowment designated as the fourth class. ' In said class the benefit to be obtained, may be one thousand dollars, two thousand dollars, or three thousand dollars, at the option of the applicant.”

Section 4 provides: -

“The endowment fund for the payment of benefits in the fourth class shall be derived from monthly payments by each member, said payments to be for each one thousand dollars of endowment, and to be graded according- to the age of the member at the time of making application, and his expectancy of life, the age to be taken at the nearest anniversary of his birthday. So much of the monthly payments as shall equal the actual cost of the endowment shall constitute the endowment fund, and the residue of such monthly payments shall be placed in the reserve fund. Said monthly payments shall be based upon the average expectancy of life of the applicant, .and shall continue the same so long as his membership continues. The said monthly payment for endowment and reserve shall be according to - the following table.”

Then follows a table of rates varying from ages 21 to 60, inclusive, in which was:

“Age at admission, 42. Cost or amount of endowment fund, 50$. Amount of reserve, 70$. Table monthly payments for each one thousand dollars, $1.20.”

The plaintiff, at the date of his application in April, 1879, was 42 years old. Section 5 is:

“Until one monthly payment by members holding an equal amount of endowment, less the amount placed in reserve, shall be sufficient to pay the amount of endowment held by a brother, the benefit to be paid in case of death shall be a sum equal to one payment by each member holding an equal amount of endowment, less the amount to be placed in reserve.”

Section 7 is:

“The expenses of conducting the business of the fourth class shall be paid out of the reserve fund.”

Section 9 is:

“All the laws, forms and business details of the Endowment Rank heretofore made and hereafter enacted shall apply with full force to the fourth class and the members thereof, so far as they are applicable thereto, and so far as they are not changed-by the provisions of this article.”

In the laws adopted in July, 1888, it is provided:

“Each member of the Endowment Rank shall, on presenting himself for obligation, pay the secretary of the section, in accordance with his age, and the amount of endowment applied for, a monthly assessment as provided in the follow*-ing table, and shall continue to pay the same amount each month thereafter as long as he remains a member of the Endowment Rank, unless otherwise provided for by the Supreme Lodge Knights of Pythias of the World.”

Then follows a table of monthly payments provided for in said laws. Section 3 of ,said laws provides that special assessments may be made upon all members of the Endowment Rank by the board of control when necessary to meet the liabilities of the rank, and section 17 of said laws is as follows:

“The board are hereby empowered and directed to rerate the members transferred from ‘the first, second and third classes under resolutions passed by the Supreme Lodge at the session of 1884 permitting such members to enter the fourth class at the age they were when becoming members of the first, second and third classes. The board is instructed to rerate this class of membership so as to require them to hereafter pay as of their age when becoming members of the fourth class, said rerating to take effect at such date as the board shall prescribe on and after the 1st day of August, 1888, and the board is further empowered to rerate the present tables of the fourth class, applying it to all members should such action become necessary for the proper protection and perpetuity of the rank.”

In July, 1901, at its biannual session, the Supreme Lodge of the defendant passed a law that each applicant for membership in the Endowment Rank should, upon completion of his application for transmission to the board of control, pay the secretary of the section, in accordance with his age, occupation,' and tlie amount of endowment applied for, a monthly payment as provided in section 5, and that, if accepted, such member should continue to pay, the same amount each month thereafter as long as he remained a member of the Endowment Rank, except as provided in section 6 of the article, or unless otherwise provided for by enactment of the Supreme Lodge or board of control of the Endowment Rank Knights of Pythias of the World. (Said sections 5 and 6 do not, appear in the record.) The plaintiff, upon the expiration of the charter of the old corporation in 1890, paid to the unincorporated society above referred to from the year 1890 up' to June, 1894, when defendant herein was incorporated, the dues upon the certificate made the basis of this suit, according to the laws under which said unincorporated society was transacting business, and,, after the defendant was incorporated, he paid to it dues and assessments required by it to be' paid up to some time in 1910, but there seems to be no direct testimony that plaintiff knew of the unincorporated society or defendant, or had knowledge of the laws of either. The defendant was incorporated in 1894, as stated, by an act of the Congress of the United States, and then acquired and took over the membership, insurance business and all the assets of the said former corporation and unincorporated society. The rate plaintiff was required to pay when he went into the fourth class was $3.60 per month, and in 1888 it was raised to $4.50 per month, in 1894, to $4.65 per month, and in 1901, to $7.35 per month. These raises in the rates were paid by plaintiff, but he swears he paid them under protest. In August, 1910, the defendant, in convention assembled, enacted a law declaring that every member of the fourth class, on January 1, 1911, should be rerated according to his attained age and occupation, and the amount of benefit provided for in his certificate, unless the member should elect to take some one of certain options offered him, and plaintiff was notified that, if he did not elect to take one of said options and desired to continue the amount of his certificate, beginning with the month of January, 1911, and for each month thereafter, his monthly payment would be $34.80. The law then passed also provided that:

“Any member of the fourth class who shall fail to pay, when due, said monthly payment, shall thereby ipso facto cease to be a member and his certificate, with all rights thereunder in said, fourth class shall thereby terminate, subject to the provisions of the laws with reference to reinstatement.”

Plaintiff declined to accept either of the options tendered him, refused to pay the raised rate of $34.80, and on January 20, 1911, tendered the local secretary at Pt. Worth, where his membership was, $22.05 for the three months of January, February, and March, 1911, at the old rate of $7.35 per month, which tender was made in writing and declined. Plaintiff was then 74 years of age, and uninsurable, it seems, in any other fraternal order. It is provided in the laws passed in 1884 that:

“These laws may be altered, or amended at any regular session of the Supreme Lodge Knights of Pythias by ‘a two-thirds vote.”

The amended laws of 1910 contained the further provisions that the right to change, increase, or adjust the schedules of rates in the fourth and fifth class.es, respectively, or any of them, is expressly reserved to the Supreme Lodge, as is also the right to apply any such change, increase, or adjusted schedule of rates to all the members as of the date of their adoption, without regard to the date of any member’s certificate. This right of adjustment includes the right to advance members without reference to the plan or class of which they are members to their attained age at any time, and apply the new rates applicable thereto when deemed necessary by the Supreme Lodge to. carry out the purposes of the insurance department; and further, that no member of the insurance department should have any divisible interest in the funds or properties of the insurance department, and, except as provided for in the laws with respect to the members of the fifth class, there should be no apportionment of any of said funds at any time, etc. The defendant’s charter granted in 1894 provides that:

“All claims, accounts, debts, things in action or other matters of business of whatever nature now existing for or against the present Supreme Lodge Knights of Pythias, mentioned in section 1 of this act, shall survive and succeed to and against the body corporate and politic hereby created; provided that nothing contained herein shall be construed to extend the operation of ■any law which provides for the extinguishing of claims or contracts by limitations of time.”

The charter further provides:

“That said corporation shall have a constitution and shall have power to amend the same at pleasure; provided that such constitution or amendments thereof do not conflict with the laws of the United States or of any state.”

By an amendment thereto approved February 26,1907, it is provided that:

“Said corporation shall have the power to take and hold real and personal estate, which shall not be divided .among the members of the corporation, but shall descend to their successors for the promotion of the fraternal and benevolent purposes of said corporation.”

The plaintiff charged, among other things, that the defendant, by'the rerating of the members and raising the dues and assessments required of plaintiff, breached its contract with plaintiff; and he prayed that he have judgment against the defendant for the amount of all dues, assessments, or other sums paid to it, or any of its subsidiary lodges, with interest upon each such payment from its respective date, or for the value of plaintiff’s policy at the time of its breach, with interest thereon as allowed by law, for judgment directing the payment to plaintiff by defendant out of its Endowment Rank fund, or any other fund or funds, of defendant into which, upon trial it may he shown ■ the payments to defendants have been made, and for a lien npon said fund, with foreclosure thereof, to the amount of the judgment. After the introduction of the evidence the court instructed the jury peremptorily to return a verdict in favor of plaintiff for the sum of $3,663.35, being -the aggregate amount of all payments made by plaintiff upon his certificates issued by the old corporation in 1879, and in 1885, to said old corporation, to the unincorporated society, and to defendant herein, and interest thereon from date of each payment. The jury returned a verdict as directed, and judgment was entered in accordance therewith.

Appellant presents several assignments of error, and urges many propositions thereunder in support of its contention that the trial court erred in directing the jury to return the verdict rendered. We do not regard it necessary to state and discuss seriatim the propositions contended for by appellant, and shall state, without regard to the order'in which these propositions appear in the brief, our conclusions, which will sufficiently indicate the questions raised.

1. We are not aware of any authority supporting the contention of appellant that the question (or any of the questions) presented for decision is to be one of exclusive “federal jurisprudence,” and making it incumbent upon this court to follow the rules laid down by the Supreme Court of the United States in determining the rights of the plaintiff, as against the defendant, in this case. It is true that the charter of the defendant was granted by a special act of Congress, which conferred upon the corporation general authority to amend its constitution, at pleasure, provided such amendment did not conflict with the laws of the United States, or of any state, but this fact does not sustain the proposition that such is the character of the questions involved. It may be said, however, in passing, that the conclusion we have reached upon the main question presented for determination is, we think, supported by decisions of both federal and state courts.

2. The evidence is sufficient to show that the defendant, immediately upon its incorporation, took over and absorbed the mem- . bership and entire insurance business of the corporation which issued the policies or contract of insurance involved in this suit, and of the unincorporated society which succeeded it, and that continuously from the date of its incorporation in 1894. up to January, 1911, received and accepted from appellee monthly payment of dues and assessments as a consideration for carrying out his contract of insurance, and these facts rendered it responsible in law for a breach of said contract in the same way and to the same extent as if the contract had been issued in the first instance by it and broken. Evidently defendant contemplated this when it applied for and obtained its charter. Besides, we think the provision in the defendant’s charter which is set out in our statement of the facts obligated the defendant to perform the contract of insurance upon which appellee’s suit is predicated, and made it liable in damages to appellee for a breach thereof.

3. The contention that the undisputed evidence shows that any claim plaintiff may have had against defendant was barred by the statute of limitation of two years is not sustained. This contention is based upon the assertion that in his original petition the appellee alleged that the defendant ■ had issued and executed to appellee the certificates set up in said petition, and that subsequently appellee abandoned said cause of action, and on February 14, 1913, more than two years after the passage of the laws complained of, filed an amended petition, in which he predicated his claim against defendant upon its implied liability to him. It need only be said, in disposing of this contention, that a careful reading and comparing of appellee’s original and amended petitions discloses no material difference in the causes of action alleged. Both petitions, upon substantially the same alleged facts showing liability on the part of defendant, seek the same relief, namely, damages for the breach of the written contract set up, as evidenced in part by said contract itself and in part by the laws of the defendant and the corporation making it.

4. The rerating of appellee, whereby the assessments against him were so greatly increased, was, we believe, unauthorized, and constituted such a repudiation or breach of his insurance contract as entitled him to recover in this action the sums paid upon it. Ericson v. Supreme Ruling Fraternal Mystic Circle, 105 Tex. 170, 146 S. W. 160; American Legion of Honor v. Batte, 34 Tex. Civ. App. 456, 79 S. W. 629; Morton v. Supreme Council of Royal League, 100 Mo. App. 76, 73 S. W. 259; Smythe v. Supreme Lodge Knights of Pythias (D. C.) 198 Fed. 967; Pearson v. Knights Templars & Mason’s Life Ind. Ins. Co., 114 Mo. App. 283, 89 S. W. 588; Beach v. Supreme Tent of K. of M., 177 N. Y. 100, 69 N. E. 281; Wright v. Maccabees, 196 N. T. 391, 89 N. E. 1078, 31 L. R. A. (N. S.) 423, 134 Am. St. Rep. 838; Dowdall v. Supreme Council Catholic Mutual Benefit Ass’n, 196 N. Y. 405, 89 N. E. 1075, 31 L. R. A. (N. S.) 417; Rockwell v. Knights Templars & Masonic Mut. Aid Ass’n, 134 App. Div. 736, 119 N. Y. Supp. 515; Ayers v. Order of United Workmen, 188 N. Y. 280, 80 N. E. 1020.

As has been seen, the plaintiff in his application for the certificates issued to him in 1879 and 1885 agreed to conform to and obey the laws, rules, and regulations of the order governing the Endowment Rank of the old corporation “now in force, or that may hereafter be enacted, or submit to the penalties therein contained”; that the certificates issued to him were conditioned that “in consideration of the payment hereafter to said Endowment Rank of all monthly payments as required, and the full compliance with all the laws governing this rank now in force, or that may hereafter be enacted,” there would be paid to Mary J. Mims, plaintiff’s wife, the sums therein specified, and declared that it was understood an,d agreed that any violation of the mentioned conditions therein or the requirements of the laws in force governing said rank should render the certificate void; that in the laws passed in'1884 it is provided that “these laws may be altered or amended at any regular session of the Supreme Lodge Knights of Pythias' by a two-thirds vote”; that the amended laws of 1910 provided that “the right to change, increase or adjust the schedules of rates in the fourth and fifth classes, respectively, or any of them, is reserved to the Supreme Lodge, as is also the right to apply any such change, increase or adjusted schedule of rates to ali members as of the date of their adoption, without regard to the date of any member’s certificate,” and that the constitution of the old or original corporation concluded with the provision that “said Supreme Lodge Shall have power to alter and amend its constitution and bylaws at will,” etc. It is upon these provisions of appellee’s certificate and laws of the order that appellant’s claim of right to re-rate appellee is predicated, and from time to time, after he 'became a member, up to and Including .the last raise in August, 1910, his assessments were gradually increased. But at the time the certificate for $3,000 mentioned in appellee’s petition was issued to him he, according to his undisputed testimony, was furnished by the local secretary of the order with a schedule of what the rate of his assessment would be if he went in the fourth class of the Endowment Rank, and this rate of monthly assessment was fixed at $3.60, said .assessment being based upon the average expectancy of appellee’s life, and was to continue the same so long as his membership continued. The contract of insurance entered into with the appellee did not stipulate that appellant should have the right to increase the rate of assessment against him; and neither the reservation of a general power to amend its by-laws, nor the recitation in said contract to the effect that it was issued upon the condition that the appellee paid to the Endowment Rank “all monthly payments as required and the full compliance with all the laws governing this rank now in force, or that may hereafter be enacted,” authorize appellant to increase the rate of assessments, as the record discloses was done. While a fraternal insurance society or association may so amend its constitution and by-laws as to make “reasonable changes in the methods of administration, the manner of conducting its business and the like, no change can be made which will deprive a member of a substantial right conferred expressly or impliedly by the contract itself.” And it seems clear that such a corporation may expressly reserve the right and power to increase the monthly assessments of its members, but such reservation must be so explicitly and clearly stated in the contract itself or in some paper forming a part of the contract that the member insured is fully advised that the terms of the contract he is entering into may be changed by the insurer in that respect By the terms of the certificate issued to him, and the by-laws fixing the rate of his monthly assessment at the time of its issuance, which became and was a part of said contract, ap-pellee knew what he was obligated to pay and what he was entitled to receive, and under the general reservation to amend its constitution and by-laws and the general stipulation in the contract to the effect that appel-lee would pay “all monthly payments as required and fully comply with all the laws governing the Endowment Rank, as a condition upon which the money therein specified was to be paid to his beneficiary, no amendment materially changing and impairing the contract as made with him could be enacted or adopted that would be binding upon him. Numerous cases hold to this doctrine, many of’ which arose in the state of New York.

Prom the syllabus in Dowdall v. Supreme Council of the Catholic Mut. Ben. Ass’n, supra, we quote the following:

“The defendant, a mutual benefit life insur-ancee association, issued to plaintiff a certificate of membership therein, upon the condition that he should ‘in every particular while a member of said association comply with all the laws, rules, and requirements thereof.’ Plaintiff also received a printed book containing the constitution and by-laws of defendant. One of the articles of the constitution provided, in substance, that all members should be assessed according to their age when admitted. The question presented is whether, by subsequent amendment of the constitution or any of the rules or regulations made after the issuance of the certificate, defendant may increase the rate of a single assessment against plaintiff. Held, that the covenant on the part of plaintiff that he would comply with all the laws, rules, and requirements of the association refers only to such as existed at the time he entered into his contract, and that any chang-es or alterations thereafter made therein, or additions thereto, seeking to modify or alter said contract do not bind him.”

In Rockwell v. Knights Templars & Masonic Mut. Aid Ass’n, 134 App. Div. 736, 119 N. Y. Supp. 615, it is said:

“It is repugnant to the idea of a contract that one of the parties may, at his election, from time to time change the amounts which he is to receive from the other party under the contract and the consideration which he is to render to the other contracting party, and, if it is possible to make such contract, the language used must permit of no other construction. * * * The period and rate table indorsed upon the plaintiff’s policy became a part of it, and there is no suggestion in it, or in the policy itself, that that table may be changed.”

In that case it is further said:

“Every corporation has the right to make and change its by-laws in a manner not inconsistent with law, but such right does not give it the power to change its written contract or impose upon a party contracting with it obligations which were never assumed.”

Morton v. Supreme Council of Royal League, cited above, reviews the authorities upon the subject at considerable length. In that ease, after a review of the authorities, the court say:

“The foregoing cases were all deckled, on the theory that subsequent by-laws, despite the member’s agreement to comply with them, cannot defeat or abridge the essential rights created by the policy, but affect only the member’s duties as such, not his interests as a contracting party. In all of them we find the same argument here advanced and accepted by some courts that the business experience of companies shows them what regulations ought to prevail, and that it is necessary that they be permitted to avail themselves of the teachings of experience by enacting new regulations, as needed, to bind all members and control all agreements. There is some merit in that argument, and it is pertinent to any legislation respecting contracts. It has not been thought, however, sufficiently meritorious to permit state Legislatures to impair obligations, and we think it is not sufficiently so to permit insurance societies.”

This view is approved by our Supreme Court in Ericson’s Case, and, adhering to the principle therein announced and as announced in the other cases cited above, it must be here held that the laws and amendments passed after appellee’s contract of insurance was entered into were prospective in their operation, and should not be given a retroactive effect; that the reservation by appellant of the general power to amend its constitution and by-laws, and the provisions in appellee’s certificates to which we have referred, relate only to the member’s duties and obligations as such, and do not authorize a radical change in the terms of his insurance contract, as was attempted to be made by the raised assessments. This being true, it is immaterial that the appellee may have, occupied, the position of insured and insurer and whether the increase in the rate of appellee’s assessments was reasonable or necessary to continue the financial existence of the corporation. In Rockwell v. Knights Templars & Masonic Mut. Aid Ass’n, supra, it is said:

“But every contract has at least two parties who stand as separate entities, each dealing with the other at arm’s length. The fact that one of the contracting parties is a stockholder or member of the corporation does not permit the corporation by an alleged change of its bylaws to alter the terms or effect of contracts which it has already made. The fact that a contract proves unprofitable, or will bring ruin upon one of the contracting parties is no reason why the courts can permit the party who has made such an unwise contract to change its terms at will, and make for itself a more profitable contract.”

The plea of necessity is never a valid defense against the performance of a contract. Poole v. Supreme Circle, Brotherhood of America (N. J. Ch.) 85 Atl. 821.

We may also add in this connection, without expressly deciding the question, as it is not raised by any specific assignment of error, that the fact that a holder of a certificate issued by a benefit association pays illegal assessments levied against his certificate in violation of his contract, as was done in the case at bar, rather than take the possible chance of having his certificate forfeited, does not estop him or his beneficiary from questioning the legality of subsequent similar assessments. This view is affirmed in the case of Benjamin v. Mutual Reserve Fund, 146 Cal. 34, 79 Pac. 517. In that ease the point was made that the member had legalized the insurance company’s action in demanding an otherwise illegal assessment by reason of having paid a number of prior such assessments without question or protest, and the court, in holding against the contention, said:

“Assuming this to be true, it affords the association no ground for invoking an estoppel, for at least two reasons. In the first place, the appellant cannot take advantage of its own wrong,' which would be the result if its claim of estoppel was sustained. * * * These prior calls were demanded under an implied threat that, unless paid, his policy would be forfeited, and were paid under a moral compulsion. And, as said in Duggans v. Covenant Mutual, 87 Ill. App. 416: ‘It certainly cannot be said that Tuttle, in paying previous illegal assessments, acted fraudulently, or that he willfully did anything calculated to mislead others to their injury. When he paid illegal assessments he did so under a moral compulsion and a threat, implied at least, that if be did not pay his certificate would be forfeited, and the provision made for his wife at the time of his death would be thereby lost. Can appellant be permitted to take advantage of its own wrong? We say it cannot.’ ”

We shall not undertake to review the many cases cited by able counsel for appellant in support of this contention that the rerating of appellee was authorized, and hence not a violation or repudiation of his contract. It will suffice to say that, as we understand, those cases mainly relied on were not followed or were ■ not regarded applicable by our Supreme Court in Ericson v. Supreme Ruling Fraternal Mystic Circle, supra, and that we see no distinction in principle in that case and the case at bar.

5. The measure of damages as fixed by the court in his peremptory instruction to the jury is the correct one in a case of this character. Having breached appellee’s insurance contract, appellant is liable to him for the aggregate amount of all premiums or assessments paid under said contract, with legal interest on each payment from the date it was paid. Ericson v. Supreme Ruling, etc., supra; Washington Life Ins. Co. v. Lovejoy, 149 S. W. 398; Black v. Supreme Council, etc. (C. C.) 120 Fed. 580.

6. The fourth assignment of error is not presented in accordance with the rules, and is not therefore entitled to consideration.' The propositions under said assignment are, in substance, to the effect that the court erred in permitting the twofold benefit certificates issued to appellee to be read in evidence: (1) Because there was no proof of their execution; (2) because there was no authority either in the charter of the old corporation or of the defendant herein for the assumption of said certificates by the defendant; and (3) because the testimony showed that these certificates had been surrendered for a new one issued in 1885. It does not appear in the statement made under this assignment and the propositions urged thereunder that the alleged errors of the court were made grounds for a new trial in a motion filed therefor in the district court, and the statement is otherwise defective, and not in compliance with the rules, in that no part of the evidence relating to or bearing upon the propositions is given. We are simply referred to “preliminary statement, pp. - of this brief, and to the statement umjer propositions under first assignment of error, p. -of this brief.” The preliminary statement covers 28 pages of the brief, including much matter that does not bear upon the questions raised by the assignment, and the statement under the propositions urged under the first assignment, to which we are referred, covers about 32 pages of the brief, and contains much evidence relating to entirely different questions from those presented in this assignment. To determine whether or not the propositions here contended for are supported by the record, we would have to search the entire evidence stated in the preliminary statement and under the first assignment of error. This we are not required to do.

Practically the same questions, however, are raised by the fifth assignment, which we have concluded to consider with the conclusion reached that the assignment should be overruled. As pointed out by counsel for appellee, the execution of the insurance contract by the old corporation was charged in plaintiff’s pleadings, as well as the assumption thereof by defendant, and neither allegation was denied by defendant, under oath. In fact, it occurs to us that defendant, in its pleadings, practically admits the issuance of this contract, and its assumption by it. However, the admission of the contract or certificate could not have so prejudiced appellant as to require a reversal of the case, because the uncontroverted evidence, independent of said contract, shows appellee’s rights as fully and practically to the same extent as the contract in question. The supreme secretary of the appellant testified fully that appellee in May, 1885, became a fourth-class member of the old corporation to the extent of $3,000 benefit, and fully defined his rights as such. The execution of said contract and its assumption is sufficiently shown by the evidence of said witness, wherein he testified that the written notice as sent to appellee by appellant in October, 1910, mentioned said contract, giving the appellee’s name, the number of the certificate, the amount of the benefit, and the monthly rate then being paid thereon. This and other evidence in the record so fully shows the execution of the certificate or insurance contract and appellant’s assumption of it that to reverse this case for want of more direct and positive proof thereof would be highly technical.

7. The assignments complaining of the rejection of certain evidence offered by appellant, the admission of evidence offered by appellee, and the refusal of appellant’s requested instruction to the effect that there was no evidence that appellant assumed the payment of the contract of insurance upon which this suit is based disclose no reversible error, and are overruled.

Believing the proper judgment has been rendered in the case, it is affirmed.

On Motion for Rehearing.

Upon a reconsideration of this case, on appellant’s motion for a rehearing, we conclude that the court erred in affirming the judgment of the trial court in awarding appellee, Mims, a recovery for' the amount of the payments made upon the certificates or contracts of insurance issued to him in 1879, but which were surrendered for the new certificate or contract issued in 1885. An ingenious argument is made by counsel for appellee in support of their theory that it was not the intention of appellee and the old corporation that the rights of the parties under the certificates of 1879 should be surrendered upon the acceptance by app.ellee of the certificate issued in 1885, and that such surrender could not take place and a new contract be created, unless there was an actual performance, and not merely the promise to perform the agreement contained in the new certificate, but it is not believed the contention is sound, at least not so under the facts of this c&se. The application of appellee to enter the fourth class and to receive the certificate issued to him in that class in 1885 in lieu of certificates issued in 1879 in the first class contained the following:

“The undersigned, bom on the 6th day of June, 1837, a member in good standing of Sec. No. 278, Endowment Rank K. of P. and holding certificate No. 5383 in first class which is hereto attached, hereby makes application to enter the fourth class, in which I desire to hold an endowment of one thousand dollars, and I hereby surrender all- my right, title, and interest in and to the within certificate, the benefit upon my death to be paid as follows: To my wife, Mary J. Mims.”

A like application was made when appel-lee surrendered his certificate for $2,000 in the second class. The certificate appellee received in 1885, in lieu of the certificates mentioned above, and which is sued on in this case, contains, among others, the following stipulation:

“In consideration of the absolute surrender of the certificates heretofore held by him in first and secopd classes, for cancellation as requested in his application for transfer to the fourth class bearing date of May 7, 1885, and in consideration of the payment hereafter to said Endowment Rank of all monthly payments as required, and the full compliance with all the laws governing this rank, now in force, or that .may hereafter be enacted, and shall be in good standing under said laws, the sum of three thousand dollars will be paid by the Supreme Lodge of Knights of Pythias of the World to Mary J. Mims, as directed by said brother in his application.”

These stipulations show, we think, that ap-pellee agreed to surrender and to have canceled his certificates in the first and second classes in consideration of the issuance to him of the certificate in the fourth class, the acceptance of which operated, in the absence of evidence to the contrary, as a discharge and satisfaction of the former certificates of 1879, and an adjustment of all rights thereunder. Supreme Lodge Knights of Pythias v. Neeley, 135 S. W. 1046. It follows that appellee was not entitled to recover the premiums or assessments paid on the certificates issued to him in 1879, and the judgment rendered in his favor for the amount of said assessments and the interest thereon is erroneous, and must be set aside.

We believe the other questions arising on the appeal have been correctly decided. The recent case of Provident Savings Life Assurance Society v. Ellinger, reported in 164 S. W. 1024, is not, under the facts of this case, authority for appellant’s contention that the amount of the premiums or ¿ssessments paid by appellee, with interest thereon, is not ap-pellee’s measure of damages. The record, without contradiction, in the case before us shows that appellee was not reinsurable at the time of the breach of the contract sued on, while in the Ellinger Case it showed that he was. ^This is an important distinction, differentiating the cases with respect to the. rule of damages. Washington Life Ins. Co. v. Lovejoy, 149 S. W. 398. This distinction seems to be recognized in both the Ellinger Case and the Neeley Case, supra. That ap-pellee, Mims, was 74 years of age and unin-surable at the time of the breach of his contract was pleaded and proved, and the fact stands unchallenged by anything appearing in the record sent to this court. Appellee is therefore entitled to recover only the amount of premiums paid since the issuance to him of the certificate in 1885, with interest, and the judgment of the trial eourt and thfe judgment of this court heretofore rendered, affirming the judgment of the trial eourt, will be reformed so as to deduct therefrom the amount of premiums and - interest paid on the insurance contracts of 1879. The principal amount of the premiums paid on these contracts, as appears without dispute from the - record, is $201, and, while these payments were in all probability made monthly, yet the record does not affirmatively show that fact. The certificates of 1879 were issued on the 30th day of April of that year, and the date of the'judgment of the district court is March 14, 1913, a period of little less than 34 years. The rate of interest recoverable and allowed appellee is 6 per cent, per annum, and he agrees in writing in this court that, in the event we hold he is not entitled to recover the premiums paid on the 1879 contracts, to remit all interest recovered by him in the lower court on said premiums, which amounts to $410, and which, added to the $201, principal, makes $611.

It is therefore ordered that the judgment of the district court and the judgment of this court heretofore rendered at this term, affirming said judgment of the district court, be reformed so as to deduct from said judgments the sum of $611, and that the judgment of the district court, as reformed, stand affirmed; that appellant’s motion for a rehearing in all other respects be overruled; and that the costs, of this appeal be taxed against appellee.


author: HARPER, J.

text:
    SMITH v. STATE.
    (No. 3159.)
    (Court of Criminal Appeals of Texas.
    June 3, 1914.)
    1. -Criminal Law (§ 1090) — Appeal and Error — Necessity op Bill op Exceptions.
    In the absence of a bill of exceptions bringing the evidence into the record, a finding of fact of the trial court cannot be reviewed.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §| 2653, 2789, 2803-2822, '2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    2. Criminal Law (§ 1052) — Appeal and Error-Necessity op Exceptions.
    The action of the trial court in overruling defendant’s application to withdraw his announcement of ready for trial and move for a continuance was not reviewable; no exceptions having been taken.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2659; Dec. Dig. § 1052.]
    Appeal from District Court, De Witt County; John M. Green, Judge.
    Buddie Smith was convicted of murder, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at imprisonment in the penitentiary for life.

No bills of exception and no evidence accompany the record. Appellant filed a motion to abate the indictment, on the ground that one member of the grand jury returning the indictment was not a citizen of De Witt county, and therefore a person unauthorized by law was present when the indictment was being considered and voted on. A contest of this issue was filed by the district attorney, evidence was heard by the eourt, and he finds that R. J. Poth was a citizen of De Witt county when he was impaneled and during the time he served on the grand jury. In'the absence of any testimony, we cannot review this finding of the eourt.

Appellant, during .the trial, alleging surprise, asked leave to withdraw his announcement of ready for trial, and permission- to move to continue the case. The court overruled the application. No exception was reserved to the action of the court, and it may be that the attendance of the witness whom appellant named was secured at the trial-. At least, in the absence, of a bill of exceptions to the action of the court, we cannot review the guestion.

No evidence accompanying the record, the judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    Ex parte CRUMPTON.
    (No. 3138.)
    (Court of Criminal Appeals of Texas.
    June 3, 1914.)
    Habeas Corpus (§ 113) — Appeal — Admission to Bail — Dismissal of Appeal.
    Where a party sues out a habeas corpus, and is remanded, and allowed to enter into a recognizance on appeal, the Court of Criminal Appeals has no jurisdiction, and the appeal will be dismissed.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §| 102-115; Dec. Dig. § 113.]
    Appeal from Special District Court, Bowie County; W. T. Armistead, Judge.
    J. S. Crumpton sued out a writ of habeas corpus to be released from custody for contempt of court. Relator remanded, and a recognizance on appeal entered into.
    Appeal dismissed on motion of State.
    L. C. Boswell, of Now Boston, and Mahaf-. fey, Thomas & Hughes, of Texarkana, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, P. J.

On January 2, 1914, Judge O’Neal, judge of the fifth judicial district of Texas, fined said Crumpton $5 for contempt of court. The proper order to that effect was duly and legally entered in the minutes of the court. Based thereon, the proper writ was issued to the sheriff commanding him to take possession of Mr. Crumpton and keep him in custody to collect the fine. The sheriff duly executed the writ and took Mr. Crumpton in custody and held him in restraint. Thereupon Mr. Crumpton applied to Judge Denton, judge of the Sixth judicial district, for a writ of habeas corpus. Judge Denton granted the writ, made it returnable and to be heard before Judge Armi-stead, judge of the Special Fifth judicial district of Texas for Bowie county. When the matter came on to be heard before Judge Armistead, upon the sheriff’s (the respondent’s) motion to guash and dismiss, the court guashed and dismissed the writ of habeas corpus and remanded Mr. Crumpton to the custody of the sheriff, in accordance with the original order and commitment of Judge O’Neal. Mr. Crumpton excepted to Judge Armistead’s action, gave notice of appeal to this court, and entered into a recognizance, and thereupon was discharged, and is at liberty, and has been so ever since.

Under these circumstances, the Assistant Attorney General moves the court to dismiss this attempted appeal because this court has no jurisdiction thereof, and his motion must be granted under the uniform decisions. Ex parte Parvin, 63 Tex. Cr. R. 512, 140 S. W. 439, and cases there cited; Ex parte Eldridge, 162 S. W. 1149.

The case is therefore dismissed.


text:
    LOPEZ v. STATE.
    (No. 3145.)
    (Court of Criminal Appeals of Texas.
    June 3, 1914.)
    Burglary (§ 39*) — Prosecution — Admissibility of Evidence.
    Where the only contested issue, in a prosecution for burglary, was whether the prosecuting witness had given defendant permission to enter her house and take the money therefrom, in order that he might leave town, evidence that, on the day after the alleged offense, defendant wrote the witness a postal card, stating where he had gone, when he would return, and that he had got the money, was material on that issue, and its exclusion was erroneous.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 87; Dec. Dig. § 39.*]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Willie Lopez was convicted of burglary, and he appeals.
    Reversed and remanded.
    Fellbaum & Carter, of San Antonio, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of burglary, and his punishment assessed at two years’ confinement in the penitentiary.

A number of guestions are presented by the record, but only one of them, in our opinion, presents reversible error. Mrs. Jackson testified that appellant entered her house in the daytime and without her knowledge and consent went into a trunk and stole $80 in money. Appellant admitted going into the house and taking the money out of the trunk, but he says he did so with the consent of Mrs. Jackson; the only contested issue, as made by the testimony, being whether or not appellant had the consent of Mrs. Jackson to go in the house and get the money. The testimony shows: That appellant was a fre-guent visitor in this house, and he says that Mrs. Jackson told him her husband was copi-ing from his ranch to San Antonio on a visit to her, and she wanted him (appellant) to leave San Antonio while her husband was in that city. That she did not want her daughter to know that she let appellant have the money. That she would go over to her cousin’s about 4 o’clock, and for him to go to the house there and get the money, saying, “You can go ahead and take the money, because I cannot give it to you in front of Babe (her daughter).” He says he wrote a postal card to Mrs. Jackson telling her about the matter. Mrs. Jackson admitted that she got a postal card from him, but, when asked about the contents of the card, the state’s objection to such testimony was sustained, although it was shown the card had been lost. Appellant in his bill states that, if Mrs. Jackson had been permitted to testify to the contents of the postal card, he could have shown by her that, “on the next day after this alleged offense was committed, he wrote Mrs. Jackson stating he had gone and where he *had gone, when he would return, and that he had gotten the money.” This evidence was admissible on the issue of whether Mrs. Jackson gave her consent for appellant to enter the house and take the money, and the court erred in excluding it. And on another trial this defensive matter should be clearly and affirmatively submitted in the charge of the court. If Mrs. Jackson gave appellant per-niission to go in the house and get the money, he would be guilty of no offense in so doing.

The judgment is reversed, and the cause remanded.


text:
    Ex parte BARNETT.
    (No. 3163.)
    (Court of Criminal Appeals of Texas.
    June 3, 1914.)
    1. Habeas Corpus (§ 113) — Appeal—Decisions Reviewable.
    An order refusing to grant a writ of habeas corpus is not appealable.
    [Ed. Note. — Eor other cases, see Habeas Corpus, Cent. Dig. §§ 102-115; Dec. Dig. § 113.]
    2. Habeas Corpus (§ 4) — Existence op Other Remedies.
    Pending an appeal from a judgment of conviction, the defendant was not entitled to a writ of habeas corpus, as the jurisdiction of the Court of Criminal Appeals had attached, and the questions raised could be heard and determined on the appeal.
    [Ed. Note. — Eor other cases, see Habeas Corpus, Cent. Dig. § 4; Dec. Dig. § 4.]
    Appeal from District Court, Grayson County ; W. M. Peck, Judge.
    Application by J. H. Barnett for a writ of habeas corpus. From an order denying the writ, the applicant appeals.
    Appeal dismissed.
    C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was convicted of violating the prohibition law on a trial held in the district court of Grayson county. A motion for new trial was overruled, and notice of appeal given. Subsequent thereto, and after the adjournment of court, relator applied to Judge Peck for a writ of habeas corpus, who set the application down for hearing as to whether or not he would grant the writ. Upon the hearing he refused to grant the writ. Upon such state of facts no appeal lies to this court. Magee v. State, 44 Tex. Cr. R. 385, 71 S. W. 599. Another reason why this case must be dismissed is that, notice of appeal having, been given and entered of record, the jurisdiction of this court attached, and all questions raised can be heard and passed on in that appeal, and, as said by Judge Hurt in Ex parte Barfield, 44 S. W. 1095, “relator has no right to the writ of habeas corpus under such a state of facts.”

The appeal is dismissed.


author: HIGGINS, J.

text:
    SLOAN v. GILMORE et al.
    (No. 368.)
    (Court of Civil Appeals of Texas. El Paso.
    May 28, 1914.
    Rehearing Denied June 25, 1914.)
    1. Bills and Notes (§ 523) — Transfer—In - D ORSEMENT — AUTHORIZATION.
    In an action on a note, evidence held to support a finding that the payee did not authorize its indorsement in her name by a third person.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1822-1825; Dec. Dig. § 523.]
    2. Bills and Notes (§ 524) — Possession— PRESUMPTION OE OWNERSHIP.
    The presumption that possession of a negotiable instrument is prima facie evidence of title is applicable only to such instruments as pass by delivery, and does not apply to instruments payable to order.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1826-1831; ■ Dec. Dig. § 524.]
    3. Principal and Agent (§ 171) — Transfer of Negotiable Paper — Estoppel.
    Where plaintiff, being the owner of a negotiable note, procured its delivery to her brother-in-law, and he. without her authority transferred it to another, the fact that she received $200 from him out of the proceeds of a sale of the note, not knowing that the money came from such source, did not estop her to deny his authority to transfer the note.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 644-655; Dec. Dig. § 171.]
    Appeal from District Court, Harris County ; Chas. E. Ashe, Judge.
    Action by Sadie Morriss Gilmore against J. M. Sloan and another. Judgment for plaintiff and defendant Sloan appeals.
    Affirmed.
    Haynes Shannon, of Navasota, and Robt. J. Sullivan and W. N. Foster, both of Con-roe, for appellant. R. W. Franklin, N. G. Kittrell, Jr., and N. G. Kittrell, all of Houston, for appellees.’

      For other eases see same topic and section NUMBER in-Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HIGGINS, J.

This suit was instituted by Mrs. Sadie Morriss Gilmore against R. H. Berkley, to recover upon a promissory note executed by the latter, .payable to order of plaintiff, dated December 19, 1910, due one year after date. Berkley answered, admitting his obligation upon the note, tendered the amount due into the registry of the court, and impleaded J. M. Sloan, who he averred claimed to be the owner of the note. Sloan appeared and set up his claim, and the suit resolved itself into a contest over the ownership of the note between Mrs. Gilmore and Sloan. This issue was resolved in Mrs. Gilmore’s favor, and Sloan appeals from the judgment rendered.

. The note was given in part payment for land conveyed by Mrs. Gilmore to Berkley. Mrs. Gilmore had separated from her husband and, with her three children, had lived for six or eight months in the city of Houston at the residence of I. C. Davis, whose wife was a sister of plaintiff. Some time in summer of 1911, Mrs. Gilmore left the city for about three weeks and, upon her departure, gave to Davis an order upon J. V. Deal-ey, who had the note in his possession, to deliver same to Davis. In accordance with this order, Dealey delivered the note to Davis, who had his wife to indorse the name of plaintiff in blank upon the back thereof. He thereupon sold and delivered it to Sloan, who in good faith purchased same for a valuable consideration before maturity. Davis and wife testified plaintiff authorized them to make such indorsement and to negotiate same. Mrs. Gilmore testified she had the note delivered to Davis to hold for her until her return, but denied she had authorized the indorsement and negotiation thereof.

Appellant’s appeal involves a considera'tion of two controlling questions which, in ■their logical order, may be stated: First. Did Mrs. Gilmore authorize the indorsement and negotiation of the note? Second. If, in fact, such authority did not exist, can the doctrine of estoppel to question the validity of the indorsement and negotiation be successfully invoked against her?

As to the first, the testimony of Mrs. Gilmore is sufficient to support the court’s finding that authority did not in fact exist for the indorsement and negotiation of the note, and we cannot disturb the same.

As to the next, it is in effect contended that mere possession of a note payable to order and unindorsed is sufficient authority for the holder to so deal with it as to pass title to a bona fide purchaser, for value, before maturity. The basic proposition upon which such a position must necessarily rest is that possession alone is such an indicium of ownership and title that parties dealing with such rightful possessor as its true owner will be protected.

As to negotiable instruments, in which the right of property passes and is transferable by delivery, such a rule is doubtless applicable. Ross v. Smith, 19 Tex. 171, 70 Am. Dec. 327; Walker v. Wilson, 79 Tex. 185, 14 S. W. 798, 15 S. W. 402; Wilson v. Denton, 82 Tex. 531, 18 S. W. 620, 27 Am. St. Rep. 908; Bank v. Turnley, 61 Tex. 368. But as to instruments, to which the legal right and title does not pass by delivery, possession alone is not sufficient evidence of title and ownership to support a recovery therebn. It is not .even prima facie proof of title. Ross v. Smith, supra; Merlin v. Manning, 2 Tex. 351; Merrell v. Smith, 22 Tex. 53; Ball v. Hill, 38 Tex. 241; Gregg v. Johnson, 37 Tex. 558. In 1 Dan. on Neg. Instr. (6th Ed.) §§ 573, 574, it is in substance stated that bare possession of an unindorséd note not payable to order of the payee does not authorize the holder to receive payment so as to bind, and indorsement is necessary to its negotiation. Since possession alone is insufficient evidence of title to maintain an action thereon, or to authorize receipt of pay- went, a fortiori, such possession does not authorize the holder to indorse or negotiate it, and an estoppel against the rightful owner cannot be predicated upon the fact alone that he had intrusted the bailee with possession. So intrusting the possession of such a note is not to be construed as a representation that he is the owner or otherwise authorized to deal with it as his own. The only evidence of ownership plaintiff conferred upon Davis was that she intrusted him with the possession of the nbte, and this is insufficient to preclude her from' asserting her title. If a contrary holding were made, no owner of á note payable to order could afford to intrust its possession to a bailee. The fact that Mrs. Gilmore was a sister-in-law of Davis and had lived with him for several months has no bearing upon the question. Furthermore, Sloan testified he assumed the indorsement to be all right, and it is quite evident he relied upon no extraneous circumstances whatever.

The receipt by Mrs. Gilmore of $200 from Davis out of the proceeds of the sale of the note involves a question of ratification. According to the testimony of Mrs. Gilmore and her attorney, it seems she received this sum in part payment of a balance of the cash payment made when the land was conveyed to Berkley and which had been received by Davis. According to their testimony, they did not know at this time from what source Davis obtained the money to pay the $200 or that the note had been negotiated. She did not know Davis had disposed of the note until several months after she received the $200. Under such circumstances, she cannot be held to have ratified the indorsement and negotiation.

The third assignment complains of the allowance of attorney’s fees to Berkley as part of the costs and taxation thereof against Sloan; it being contended Berkley had not made tender of amount due upon note at the proper time or in proper manner. To this it may be replied that no exception seems to have been taken to either the time or manner of tender, and furthermore, since Sloan was not the rightful owner of the note, he had no concern or interest in the sufficiency of the tender in either respect.

Affirmed.


author: HALL, J.

text:
    WILSON v. SEIGEL.
    (No. 632.)

    (Court of Civil Appeals of Texas. Amarillo.
    June 6, 1914.)
    1. Adverse Possession (§ 41) — Time Required for Acquisition of Title.
    Defendant in trespass to try title, who purchased the land involved in February, 1903, recorded his deed in-March of the same year, and to whom in February, 1905, plaintiff, under a mistake as to his own boundaries, attorned and paid rent to November, 1910, and who paid all taxes on the land from 1903 to 1912, inclusive, was entitled to the land under the five-year-statute of limitations.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 18A-206; Dec. Dig. §• 41.]
    2. Adverse Possession (§ 31) — Notice of Claim — Presumption.
    An owner of premises is presumed to know the true location of his boundaries, and is bound to take notice of the nature and extent of possession by a claimant.
    [Ed. Note. — For other cases, see' Adverse Possession, Cent. Dig. §§ 128-133; Dec. Dig.

    Appeal from District Court, Archer County; P. A. Martin, Judge.
    Trespass to try title by L. F. Wilson against Phillip Seigel, Sr. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    A. H. Carrigan, of Wichita Falls, for appellant. W. E. Forgy, of Archer City, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

       Application for writ of error pending in Supreme Court.

   HALL, J.

Appellant, Wilson, instituted this suit against appellee February 14, 1912, in the district court of Archer county, in the ordinary form of trespass to try title, to recover 30.45 acres of land, being a part of the Geo. S. Kinsman survey, and known as part of lot No. 4, in block 22, according to the American Tribune New Colony Company’s, map and subdivision.

The appellee answered: (1) By plea of not guilty; (2) statute of three years’ limitation; (3) statute of five years’ limitation; and (4) statute of ten years’ limitation.

Upon a trial before the court without a jury, judgment for appellee Seigel resulted; the court holding that appellee was entitled to the land in controversy by virtue of his plea of limitation of five years. We-think this • holding is correct. The appellee established without controversy that he purchased the land involved from the American Tribune New Colony Company in February, 1903, and in March of the same year his deed, was duly recorded; that in February, 1905, appellee leased the land in controversy to the appellant, and that appellant attorned to and paid rents to appellee to November, 1910; that appellee had paid all taxes against said land from 1903 to 1912, inclusive. It appears that the land in controversy had been conveyed by appellant to the American Tribune New Colony Company, together with other lands, and in such conveyance a vendor’s lien had been retained to secure the payment of $38,000, evidenced by a promissory note; that, after the conveyance to the American Tribune New Colony Company, it plotted the lands purchased from appellant, subdividing it into lots and blocks, and that lot No. 4, in block No. 22, according to its plot and subdivision, included that portion of the Kinsman survey described in plaintiff’s petition; that in February, 1906, plaintiff obtained a judgment in the district court of Tarrant county against the American Tribune New Colony Company, foreclosing his vendor’s lien on the southwest quarter of the Kinsman survey and other lands, for the payment of the $38,000 note, and purchased this, with other property, at foreclosure sale made under said judgment, and received a sheriff’s deed therefor on June 5, 1906. The appellant testified:

“X did not know where the dividing line between the Geo. -S. Kinsman survey on the west and the Edward Hall survey on the east was situated until 1911. I supposed that lot No. 4, in block No. 22, was situated west of the Geo. S. Kinsman southwest quarter. In February, 1905, I did lease from the defendant lots 2, 3, and 4, in block 22, of the American Tribune New Colony Company’s lands, but did not know that this lot No. 4, in block 22, embraced any portion of the southwest quarter of the Geo. S. Kinsman survey of land. * * * I was simply mistaken as to where lot No. 4, in block No.' 22, of the American Tribune New Colony Company lands were situated, and I did not intend to hold any portion of the Kinsman survey as a tenant for the defendant in this case and did not know that I was paying rent to the defendant in this suit on the southwest quarter of the Kinsman survey.”

Appellee was not made a party to the foreclosure proceeding in Tarrant county, and so far as this record shows, being a nonresident of the state, had no actual notice of the foreclosure. In purchasing the premises in controversy from the American Tribune New Colony Company, he did not assume any part of the $38,000 debt due appellant.

In Brownson v. Scanlan, 59 Tex. 222, Willie, C. J., said:

“The party holding the superior title would not be excused for ignorance of the particular claim of right under which the premises were held by those in possession. He is not in the condition of an ordinary and casual observer but must diligently look to his own interests, know the boundaries of his own land, and ascertain the extent, meaning, and locality of any settlement made within them without his authority.”

In Sanders v. Moore, 157 S. W. 441, it is held that the owner of premises is presumed to know the true location of his boundaries and is bound to take notice of the nature and extent of possession by a claimant.

The appellant’s assignments are overruled, and the judgment of the trial court is affirmed.


text:
    O’CONNOR v. CITY OF LAREDO.
    (No. 5309.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 10, 1914.)
    1. Statutes (§ 279) — Municipal Charter-Public Acts — Pleabings.
    The charter powers of a city granted to it by public act need not be pleaded in an action by it, but the statutory powers are known to the court.
    [Ed. Note. — Por other cases, -see Statutes, Cent. Dig. § 378; Dee. Dig. § 279.]
    2. Municipal Corporations (§ 978) — Actions — Right to Sue — Statutory Provisions.
    Under Laredo City Charter (Sp. Acts 32d Leg. c. 10), providing for a city attorney to represent the city in all litigation to which the city may be a party, and authorizing the city to sue for taxes due, an action by the city for taxes due, brought by the city attorney on behalf of the city, is presumptively brought pursuant to due authority, and want of authority is available as a defense under a sworn plea.
    [Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 2104-2119; Dec. Dig. § 978.]
    3. Municipal Corporations (§ 978) — Actions eor Delinquent Taxes — Petition— Sufficiency.
    A petition in an action by a city for back taxes and for the foreclosure of a tax lien, which describes the personal property assessed for the taxes as “personal property in the nature of merchandise,” sufficiently describes the property, in the absence of any denial that the taxpayer owed the aggregate amount of taxes.
    [Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 2104r-2119; Dec. Dig. § 978.]
    4. Municipal Corporations (§ 978) — Taxation — Collection—Statutory Provisions.
    Laredo City Charter (Sp. Acts 32d Leg. e. 10), providing that taxes become due October 1st of the fiscal year and shall be paid on or before May 1st following, and, if not so paid, the same become delinquent, and making .taxes a lien on the property of the delinquent taxpayer, and giving the city the right to sue for the taxes and to foreclose the lien, and repealing conflicting laws, creates a statutory remedy for the collection of delinquent taxes, and Rev. St. 1911, arts. 7692, 7693, providing for the collection of delinquent taxes, are inapplicable.
    [Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 2104-2119; Dec. Dig. § 978.]
    Appeal from District Court, Webb County; J. P. Mullally, Judge.
    Action by the City of Laredo against Thomas O’Connor. Prom a judgment for plaintiff, defendant appeals.
    Affirmed.
    H. G. Dickinson, of Laredo, for appellant. A. Winslow, of Laredo, for appellee.

      ITor other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CARL, J.

The city of Laredo, appellee, brought this suit against Thos. O’Connor, appellant, for the recovery of taxes, interest, and penalties for the years 1909, 1910, 1911, and 1912, and for the foreclosure of a tax lien on the property of appellant situated in the city of Laredo.

Appellant answered by general demurrer and special exceptions substantially as follows: (1) That it does not appear from any averment in the petition that the city council has authorized this suit or directed the city attorney to enter and prosecute the same. (2) That there is no sufficient description of defendant’s personal property that was assessed as alleged in the petition. (3) And because it .appears from the petition that, on the dates when the taxes sued for were due, the defendant owned personal property in the city of Laredo subject to seizure, levy, and sale for the purpose of collecting said taxes as provided by law, and “nowhere in said petition is it alleged that said remedy provided by law was pursued by plaintiff or its officers, which remedy defendant alleges was and is a prerequisite to any legal suit against Mm for the recovery of any part of said alleged taxes.” (4) That it appears from said petition that there never had been any legal assessment of defendant’s property for said years because both real and personal^ property were assessed in bulk as one piece of property.

Appellant, upon the overruling of his exceptions, did not,further defend, and, upon a trial before the court, judgment was rendered in favor of the city of Laredo for the taxes, interest, and penalties in the sum of $825.89, foreclosing the lien on one-half of lot No. 8, block 2, and lots 3, 4, and 5, in block 681, all in the city of Laredo. The court overruled a motion for new trial, and the appellant has perfected this appeal.

The present charter of the city of Laredo was granted by the Thirty-Second Legislature (Special Laws 1911, c. 10, p. 58), and section 116 of said act makes this charter a public act. The power to sue and be sued is specially granted. Section 115 gives the city the right to bring suits in any court of competent jurisdiction for the recovery of any taxes due. Section 3 of that act or of the charter provides, among other officers of the municipality, for a city attorney. Section 35 makes it the duty of the city attorney to represent the city in all litigation and cases to which the city may be a party, as well as to advise the city officers when requested.

The charter powers of a city, where it is granted by public act, need not be pleaded. Wright v. City of San Antonio, 50 S. W. 406, affirmed in 93 Tex. 723, no opinion. The corporate powers of a city chartered by public act are known to the courts and need not be pleaded. Dwyer v. City of Brenham, 65 Tex. 526. And it has been held that, where an incorporated city sues as such, a plea denying its incorporation must be sworn to. Heller v. Alvarado, 1 Tex. Civ. App. 409-411, 20 S. W. 1003; article 1906, subd. 7, Rev. St. 1911.

So, by the public act of the Legislature granting the charter to the city of Laredo, the power to sue and be sued is given the city as a municipal corporation; a city attorney is therein provided; and it is made his official duty to represent the city. When that official brings a suit on behalf of the city, the courts will presume that he is discharging his duty and that the suit was duly authorized unless the want of authority to bring the action is properly presented and the issue made upon sworn plea. That is a matter of defense, and appellant must, if he desires to raise the question of proper authority, tender the issue on Ms own pleadings. If he sought to defend upon the ground that the city was not a municipal corporation, he would have to file a sworn plea to that effect, and, when he seeks to bring in question the authority of one of the sworn officers of that municipality, he has no less a burden. The first assignment is overruled.

The second assignment complains of the court’s action in overruling appellant’s second special exception to the petition because same is described as “personal property in the nature of merchandise.” This suit is for back taxes, and, merchandise being daily exposed to sale and constantly changing and varying, we do not see how it would be better referred to. The city is not required to set out an inventory in a suit for taxes, and in the very nature of things-could not do so, where the goods constituting the stock at the time of the rendition have been sold, or the stock changed. No denial is made that he owed the aggregate amount of taxes, and, if he owed it all, then the relative amount due upon personal and real property would not be of sufficient importance to .require a reversal. No injury is shown to have been done appellant. We overrule the assignment.

Under section 112 of the charter the taxes become due October 1st of the fiscal year and shall be paid on or before May 1st next following, and, if not so paid, the same become delinquent; and section 113 provides a penalty not to exceed 10 per centum. Section 114 makes such taxes a lien on all property of the delinquent taxpayer, while section 115 gives the city the right to sue for such taxes and to foreclose the lien. The third exception complains that the petition shows that:

“On the several dates when the alleged taxes were due and payable, defendant owned personal property situated in the city of Laredo, Tex., subject to seizure, levy, and sale for the purpose of collecting said alleged taxes as provided by the laws of this state, particularly as provided by articles 7692 and 7693 of the Revised Statutes of the state; and nowhere in said petition is it alleged that said remedy provided by law and by said articles of the Revised Statutes was pursued by plaintiff or its officers, which remedy the defendant allesres was and is a prerequisite to any legal suit against him for the recovery of said taxes or any part of them anu to any judgment foreclosing any tax lien on his real estate.”

The petition shows the fiscal years during which the taxes accrued, and that those taxes were not paid between October 1st, and the succeeding 1st of May of that fiscal year. That fact itself shows a delinquency, and we have seen that the city had a lien on the property. Article 7699 of the Revised Statutes would not apply here, because tire charter of the city of Laredo is itself a statutory enactment and fixes when and how property becomes delinquent and the proceedings to be had thereon. Section 112 of the charter expressly states that after May 1st the taxes shall bear interest, and the “city council shall not have the power to extend the time for the payment of taxes.” Section 117 repeals all laws or parts of laws in conflict with this charter. There is no doubt about the taxes being due, nor that they were delinquent, as defined by the charter and as shown in the petition, nor of the right of the city to sue for same and foreclose the lien given by law to secure the same. The authority of the city attorney to bring tbe suit will be presumed in the absence of sworn pleading denying such authority, especially in view of the provisions of the charter which define a delinquency and set forth the duties of the city attorney.

We have examined all the assignments of error, and what we have said disposes of them adversely to appellant.

The judgment is affirmed.