text:
    YARBROUGH v. ETHEREDGE.
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 19, 1914.)
    1. Judgment (§ 315) — Modification — Grounds.
    A decree can. only be modified on record evidence, such as a verdict or written instruments contained in the record of the suit in which the decree was rendered.
    [Ed. Note. — For other eases, see Judgment, Cent. Dig. § 613; Dee. Dig. § 315.] '
    2. Judgment (§ 315) — Modification — Record Evidence.
    On a motion to modify a decree, so as to permit plaintiff to recover all of the property sued for, instead of a half interest therein, plaintiff introduced in evidence the petition, which alleged that plaintiff owned a one half interest in the property, and that F. owned the other half; that plaintiff had purchased F.’s interest, and afterwards exchanged the property with defendant for other property; that F., pursuant to an arrangement between him and plaintiff, deeded the interest plaintiff had bought from him directly to defendant; and further alleged that defendant was guilty of fraudulent misrepresentations, and prayed that the deeds to defendant from plaintiff and F. be canceled, and that plaintiff have judgment for the property. There was an entry on the trial docket, “Judgment for plaintiff as prayed for in his petition.” The decree recited that, it appearing to the court that plaintiff had sued to set aside a deed executed to defendant, and to rescind certain transactions, and recover from defendant an undivided interest in the tract described, and that plaintiff should recover as prayed in his petition, it was therefore decreed that the deed to defendant be canceled. Held, that there was sufficient record evidence to authorize the amendment of the decree as prayed.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 613; Dec. Dig. § 315.]
    3. Evidence (§ 43) — Judicial Notice.
    The district court could take judicial notice of a judgment entered by it.
    [Ed. Note. — For other cases, see Evidence,' Cent. Dig. §§ 62-65; Dec. Dig. § 43.]
    Appeal from District Court, Reeves County; S. J. Isaacs, Judge.
    Action by N. J. Etheredge against W. C. Yarbrough. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Ross & Hubbard, of Pecos, Odell & Turner and W. L. Mathis, all of Ft. Worth, Gibson & Callaway, of Dallas, and Homer L. Baugh-man, of Ft. Worth, for appellant. Ben Ran-dals, of Pecos, and S. W. White, of Yan Horn, for appellee.

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

   HARPER, J.

On April 20, 1913, appellee, N. J. Etheredge, plaintiff below, filed in the district court of Reeves county a motion to amend or correct a judgment theretofore entered in the same cause. In said motion appellee alleges that on the 20th day of April, 1912, he filed in said cause his second amended original petition, and in said motion substantially sets out said petition, same showing that plaintiff sought the recovery of the entire property therein described. Appellee further alleges in said motion that on a following date, to wit, April 30, 1912, judgment was rendered for plaintiff in all things as prayed for in his petition, but that in preparing and entering the decree, through inadvertence, a mistake was made in the record of said judgment, and it was erroneously recited that plaintiff should recover from defendant (appellant) an undivided one-half interest in and to said property, whereas, it should have recited the recovery of said property in its entirety, and that it was apparent from said erroneous decree that it was intended plaintiff should recover as prayed for in his petition. On May 7, 1913, after due hearing, the trial judge granted said motion, and amended or corrected said judgment, making it conform to the prayer contained in said petition, from which action the defendant appeals to this court.

Appellant’s first assignment of error reads: “The only evidence in the record is the first amended original petition of the plaintiff, Etheredge, and the memorandum of the court’s table docket, which within themselves are not sufficient to support a judgment correcting the original judgment, allowing the plaintiff to recover all of said property, instead of one-half. There was no judgment or other evidence introduced to show that plaintiff recovered one-half or any other interest in the original judgment as entered. This evidence is fully set out in said petition and the same memorandum, and is insufficient to support a judgment, correcting any other judgment in any particular.”

The second and third assignments and all propositions raise substantially the same questions. Plaintiff introduced, in support of his motion: First. The petition upon which the original judgment entry was made, which contained, among others, the following allegations: That plaintiff, Etheredge, owned a one-half interest in certain Tar-rant county property, describing same; that T. E. Hefner owned the other one-half interest; that plaintiff had purchased said Hefner’s interest in order to make the exchange thereafter mentioned; that said property was exchanged to defendant, Yarbrough, for certain other property and consideration; that the said Hefner, by an arrangement between themselves, deeded the interest which plaintiff had bought from him direct to Yar-brough. These allegations are followed by others of fraud and misrepresentations upon the part of Yarbrough, concerning the lands, etc., he was exchanging for the property mentioned, and prayed that the deeds made to Yarbrough by plaintiff and said Hefner be canceled, and that plaintiff have judgment for the Tarrant county property above described; that the cloud upon plaintiff’s title by reason of said deed to Yarbrough be removed, and for possession of the said land in Tarrant county. Second. The following entry upon the trial docket made by the court at the time the judgment was granted: “April 20, 1912. Judgment for plaintiff as prayed for in his petition. [Signed] S. J. Isaacs, Judge.”

The portions of the judgment sought to be amended, essential to this opinion, are as follows: “On this 30th day of April, 1912, came on to be heard the above-entitled cause, * * * and it appearing to the court that defendant had been duly cited, * * * that plaintiff should recover in this cause as prayed for in his petition, and it appearing to the court that plaintiff has sued to set aside a certain deed executed to the defendant, Yarbrough, for cancellation of notes, * ⅜ * to rescind certain transactions with respect to said land, and to recover back from the said Yarbrough the following described land, to wit: An undivided one-half interest in and to a certain tract, etc., * * * Tarrant county, Tex. [describing same], * ⅜ * notes to be canceled [describing them], * * * it is therefore ordered, adjudged, and decreed • * * that the deed described in plaintiff’s petition from plaintiff to defendant ⅜ * ⅜ is hereby canceled, set aside, and held for naught.”

Plaintiff’s motion to correct said decree contains: First, recital of facts of petition upon which it was rendered; second, allegation that judgment was rendered for plaintiff in all things as prayed for, but that, through inadvertence, a mistake was made in the judgment as entered upon the minutes, in that it was erroneously recited that plaintiff recover * * * an undivided one-half interest in and to said property, * * * whereas, it should have recited the recovery of said property in its entirety, and prayed that the decree be amended accordingly. This is a motion to materially change a decree or record of the court already entered, and only record evidence can be considered (M. & P. Ry. Co. v. Haynes, 82 Tex. 448, 18 S. W. 605); the rule in such case being that amendment or correction may be made if there shall be among the records of the proceedings in the suit in which judgment or decree shall be rendered any verdict or instrument of writing whereby such judgment or decree may safely be amended (Messner v. Hutchins, 17 Tex. 597).

The pleadings, the note on the court’s trial docket made by the judge at the time, and the judgment as entered, of which the trial court could take judicial notice, which recites in part of it that the plaintiff should recover judgment as prayed for, are sufficient to authorize the trial court to amend the judgment, as was done. Article 2016, Rev. Civ. Stat. of Texas 1911.

The assignments are therefore overruled, and the judgment of the lower court affirmed.


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    J. C. STEWART PRODUCE CO. v. HAMILTON-TURNER GROCERY CO.
    (Court of Civil Appeals of Texas. Austin.
    Jan. 14, 1914.
    On Motion for Rehearing, Feb. 25, 1914.)
    1. Set-Ofe and Counterclaim (§ 33) — Actions in Which Remedy is Available.
    A cause of action for tort cannot be pleaded as a set-off in an action upon contract.
    [Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 1, 32, 54, 55; Dec. Dig. § 33.]
    On Motion for Rehearing.
    2. Contracts (§ 346) — Issues, Proof, and Variance.
    Where, in an action by a principal against his agent, the petition alleged that the agent had received §5440, and failed to account therefor, proof that the amount so received was less than $440 would not defeat recovery.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1714, 1718-1751; Dec. Dig. § 346.]
    3. Courts (§ 122) — Jurisdiction Dependent upon Amount or Value in Controversy-Allegations in Pleadings.
    In the absence of an allegation that the amount sued for was fraudulently alleged in order to give the court jurisdiction, jurisdiction will be determined by the allegations of plaintiff’s petition, regardless of the fact that the evidence may show that the amount which the plaintiff is entitled to recover is below the jurisdiction of the court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413, 427; Dec. Dig. § 122.]
    Appeal from McLennan County Court; Geo. N. Denton, Judge.
    Action by the J. C. Stewart Produce Company against the Hamilton-Turner Grocery Company. From a judgment for defendant, plaintiff appeals.
    Reversed and rendered.
    W. L. Eason, of Waco, for appellant. J. D. Williamson and M. C. H. Part:, both of Waco, for appellee.

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

   JENKINS, J.

Appellant sued appellees for the proceeds of a car of potatoes, shipped by appellant to appellees to be sold on commission. Appellees admitted in their answer that they had received the potatoes, as the agents of appellant, to be sold on commission, and that they had sold the same for the sum of $409.51, that they had paid freight on said potatoes to the amount of $223.50, and were entitled for their services as brokers to. the sum of $40.95, leaving a net balance, the proceeds of said potatoes, of $145.06; and the undisputed evidence in this case shows such to be the fact. They further alleged that appellant was indebted to them in the sum of $455, by reason of its failure to deliver five cars of potatoes upon a previous contract at an agreed price, by reason of which they were damaged in said sum of $455, and pleaded this as an offset against the sum of $145.06 admitted to be owing on the potatoes which they had sold for appellant as above stated, and sought to apply this amount of their damages to the amount owing on the potatoes herein sued for, and asked for judgment over for the balance of $309.95.

Appellant excepted to this answer upon the ground that it was an attempt to plead an action in tort against an action upon contract. The court sustained this exception, but rendered judgment for appellees, and that appellant take nothing by its suit

There was no error in sustaining appellant’s exception to appellees’ answer; but, under the undisputed facts in this case, appellant was entitled to judgment in the sum of $145.06, with 6 per cent, interest from January 1, 1910, and the judgment of the trial court is here reversed and rendered for appellant for said amount

Reversed and rendered.

On Motion for Rehearing.

Appellant seems to be laboring under the impression that, because the appellee sued upon a demand for $440 arising out of a contract, it could not recover unless it proved that exact amount to be due. Such is not the law. Appellee alleged that appellant had received as its agent $440, which it failed and refused to pay over to appellee. Proof that the amount actually so received by appellant and withheld from appellee was less than that alleged - would not defeat recovery by appellee. There was no uncertainty as to the amount alleged to be due, nor as to how such indebtedness arose. Tested by appellee’s pleading, its suit was for a liquidated demand arising out of a contract.

Appellant admitted its indebtedness in the manner and form, though not in the exact amounts, alleged, and claimed a set-off arising out of said transaction which reduced its indebtedness to appellee to $145.06. The evidence of appellee, which was not contradicted, showed this amount to be due on the transaction upon which the suit was brought. Had nothing else been pleaded by appellant, it is clear that appellee would have been entitled to a judgment for this amount. Appellant, in the third and fourth paragraphs of its answer, pleaded damages growing out of a tort in no wise connected with the transaction sued upon. The court properly sustained an exception to this portion of appellant’s answer.

Appellant suggests that, if appellee was entitled to recover only $145.06, the county court was without jurisdiction to try the case. Appellant did not allege that the amount sued for was fraudulently alleged in order to give the court jurisdiction. In the absence of such allegation jurisdiction will be determined by the allegations of the plaintiff’s petition, regardless of the fact that the evidence may show that the amount which the plaintiff is entitled to recover is below the jurisdiction of the court. Ablowich v. Bank, 95 Tex. 432, 67 S. W. 79, 881.

For the reasons stated, appellant’s motion for a rehearing is overruled.

Motion overruled.


author: RICE, J.

text:
    CASWELL v. J. S. McCALL & SONS.
    (Court of Civil Appeals of Texas. Austin.
    Dec. 3, 1913.
    On Motion for Rehearing, Feb. 11, 1914.)
    1. Dasiagbs (§ 12) — Nominal Damages.
    Where, in an action for breach of contract, the evidence showed a breach, plaintiff was entitled to i:eeover nominal damages, notwithstanding there was no evidence of damages.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 31; Dec. Dig. § 12.]
    2. Sales (§ 416) — -Breach of Contract — Action by Buyer — Issues, Proof, and Variance.
    Where, in an action by a buyer for breach of a contract for the sale of cotton, the petition did not allege the facts constituting damages, but only that plaintiff was damaged in the sum of $500, it was proper to exclude evidence of damages, since the allegation as to damages was a mere conclusion of the pleader.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1171, 1172; Dec. Dig. § 416.]
    On Motion for Rehearing.
    3. Pleading (§ 236) — Amended Supplemental Pleadings.
    The trial court abused its discretion in refusing to permit plaintiff to amend his petition during trial to allege the facts constituting damages so as to render admissible evidence of damages, where the court had sustained the petition on demurrer.
    [Ed. Note. — For other cases, see Pleading, Cent Dig. §§ 601, 605; Dec. Dig. § 236.]
    Appeal from Bastrop County Court; J. B. Price, Judge.
    Action by W. T. Caswell against J. S. McCall & Sons. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded on rehearing.
    C. W. Webb, of.Elgin, for appellant. Or-gain & Maynard and P. C. Maynard, all of Bastrop, for appellee.

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

   RICE, J.

On the 3d of September, 1912, plaintiff, through his agent, purchased from appellees 100 bales of cotton, to be delivered to him on the 20th of said month at Elgin, Tex., agreeing to pay therefor the sum of 10% cents per pound, based upon the current price of middling cotton at Elgin on said date. Notwithstanding appellant held himself in readiness and was able and willing at all times to pay for said cotton according to the contract price, appellees failed and refused to comply with said contract, whereupon this action was brought to recover damages therefor. The petition, after alleging the contract and its breach, averred that plaintiff had been' damaged by reason thereof in the sum of $500, but failed to allege any advance in the price of said cotton at the time the same was to be delivered over the contract price. Appellees interposed a general demurrer, general denial, and special answer, the allegations of which need not be stated. The demurrer being overruled, and a jury being waived, the case was tried before the court, who rendered judgment for ap-pellees, from which this appeal is prosecuted.

When appellant offered to show the price of cotton of the character purchased at Elgin on September 20th, objection was made that there was no allegation in the petition that would authorize the introduction of this testimony. The objection was sustained, whereupon appellant moved to amend the petition in this respect; but the motion was overruled, and error is assigned on the action of the court in refusing to permit this amendment, as well as in rendering judgment for defendant, insisting by proper assignment that, although the proof had failed to show actual damages, he was, nevertheless, entitled to recover nominal damages. We think this contention is correct. The evidence shows that the contract was breached, and, notwithstanding there was no' evidence of any actual loss shown by reason thereof, yet, under such circumstances, appellant was entitled to nominal damages. See Pierce v. Aiken, 146 S. W. 950; Davis v. T. & P. Ry. Co., 91 Tex. 505, 44 S. W. 822; Hope v. Alley, 9 Tex. 395.

But it is not made to appear that the court abused its discretion in refusing to allow appellant to file an amended petition, for which reason no error is shown in this respect. See R. S. 1911, art. 1824; White v. Provident Nat. Bank, 27 Tex. Civ. App. 487, 65 S. W. 498; McCormick v. Jester, 53 Tex. Civ. App. 306, 115 S. W. 278; Hastings v. Townsend, 136 S. W. 1143. The petition failed to state a cause of action, for the reason that it did not specifically allege facts authorizing a recovery on the part of appellant. It alleged a contract and its breach, and then averred that the plaintiff was damaged in the sum of $500 by reason thereof, without alleging any fact or facts showing-how such damage arose. “A cause of action is said to consist of three elements: The plaintiff’s right, the violation of this right by the defendant, and the legal injury to the plaintiff by reason of such violation — and ordinarily a full and clear statement of the cause of action must contain a direct allegation of every fact going to make up each of these elements.” Page 307, Townes on Pleading. The allegation that he was damaged is the mere conclusion of the pleader, and not the statement of a fact. See 13 Cyc. p. 173 et seq.; 31 Cyc. p. 109, subd. 14. In 13 Cyc., supra, it is said: “A complaint under which evidence of the alleged damage may be received must allege facts'constituting a cause of action; alleging damages as a mere conclusion of the pleader being insufficient.” See Welder v. Dunn, 2 Willson, Civ. Cas. Ct. App. §§ 96, 97.

“Unless the damages are such as may be presumed necessarily to result from a breach of contract, they must be stated specifically and circumstantially, in order to apprise the opposite party of the facts intended to be proven. Thus, in an action against a vendor of an estate, it is held that, if the purchaser proceed for interest and expenses, he must declare specially, stating such expenses and the loss arising from not having the use of the money,” etc. Sutton v. Paige, 4 Tex. 142; Gould v. Allen, 1 Wend. (N. Y.) 182; McKay v. City of Henderson (Ky.) 71 S. W. 625; Herfort v. Cramer, 7 Colo. 483, 4 Pac. 896.

In the present case it cannot be inferred from the facts stated that plaintiff was damaged in any definite amount. If the price of cotton had advanced from the time of purchase to the time of delivery, then, of course, he would have been damaged to the extent of such difference, and, in order to claim such amount, the enhanced price should have been stated. But the mere declaration of the pleader that he had been damaged to a certain amount was not equivalent to the allegation of such fact. We therefore hold that the court did not err in excluding such proffered testimony, and, since no abuse of his discretion is shown in failing to permit the filing of the amendment, the assignments presenting these questions must be overruled. But, for the error of the court in failing to render judgment for appellant for nominal damages, the judgment of the court below will be reversed and here rendered for appellant for the sum of $1 and costs.

Reversed and rendered.

On Motion for Rehearing.

Appellant, in his motion for rehearing, contends that the court erred in not reversing and remanding this cause, instead of reversing and rendering, for the reason that the trial court erred in refusing to permit him to file an amendment setting forth his grounds for actual damages, thereby showing that the court had jurisdiction of the amount in controversy. We think it was properly held that the petition failed to state a cause of action, except for nominal damages. This being true, the court below should have sustained the demurrer, instead of overruling it, as there was nothing involved other than the claim for nominal damages; hence the court was without jurisdiction. See Connor v. Sewell, 90 Tex. 275, 38 S. W. 35. Having failed to do this, then it was error (after proceeding with the trial upon sustaining an objection to the evidence offered to show actual damages) not to have permitted plaintiff to amend his petition in this respect.

It is held, in T. & P. Ry. Co. v. Hughes, 94 S. W. 130, that, where it appears from facts imperfectly pleaded that plaintiff by amendment might plead a good cause of action, on the reversal of a judgment in his favor, the case will be remanded in order that he may amend. See, also, Miller v. Drought, 102 S. W. 145; Mullaly v. Ivory, 30 S. W. 259. Notwithstanding the fact that article 1824, R. S. 1911, provides that pleadings shall not be amended after announcement of ready, still our courts have held that this limitation is directory, and that it is within the sound discretion of the trial court to grant such amendment, even after announcement, and that this discretion should be liberally exercised with the view of attaining justice. See Parker v. Spencer, 61 Tex. 155; Obert v. Landa, 59 Tex. 475; Whitehead v. Foley, 28 Tex. 10; Railway v. Goldberg, 68 Tex. 685, 5 S. W. 824; Colorado Canal Co. v. McFarland & Southwell, 94 S. W. 400; Boren v. Billington, 82 Tex. 137, 18 S. W. 101; Telegraph Co. v. Bowen, 84 Tex. 477, 19 S. W. 554; First Nat. Bank v. Sharpe, 12 Tex. Civ. App. 223, 33 S. W. 676; Cotton v. Thompson, 159 S. W. 455.

In the present case the court had overruled the demurrer, thus indicating to the plaintiff that his petition was good. The latter proceeded with the trial* under the mistaken belief, no doubt, that his evidence would be admitted when offered. He was met, however, with objection, which was sustained by the court, on the ground that the allegations of his petition would not justify evidence going to show that the cotton purchased had advanced in price. When this objection, which was well taken, was sustained, plaintiff offered to amend his petition so as to make the evidence admissible thereunder. This was refused by the court, and judgment went against him. It is evident from the allegations of the petition that he had imperfectly pleaded his case. This being true, we think that the court ought to have permitted this amendment, with the view of affording him an opportunity to introduce evidence in support thereof. In Allen v. Clopton, 135 S. W. 242, where plaintiff’s case was imperfectly pleaded, it was held that: “If defendants’ demurrer had been sustained, as it should have been, plaintiffs could, and doubtless would, have supplied such defect in their petition by an amendment, and then proved such reasonable compensation as they were entitled to recover. In view of this, we will not reverse and render judgment, but simply reverse the judgment ⅜ ⅞ * for another trial.” See, also, Telegraph Co. v. Farrington, 131 S. W. 609; Carter v. Olive, 128 S. W. 478.

We think, in the present state of the record, that we are justified in holding that the court abused its discretion in failing to permit the amendment, for which reason the motion for rehearing is granted, and the judgment is reversed, and the cause remanded for another trial.

Motion granted. Reversed and remanded.


author: HALL, J.

text:
    HARDY et al. v. CARTER et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 10, 1914.
    On Motion for Rehearing, Feb. 21, 1914.)
    1. Associations (§ 16) — Powers and AUTHORITY.
    A voluntary association, before adoption of its constitution and by-laws, could adopt any means to accomplish its object, and hence the validity of a loan obtained by a committee, and the execution of notes therefor, could not be challenged by parties who had signed the association contract and executed their notes to the committee, nor could the obligation to the lender he impaired by a provision of the subsequent constitution defining the powers of its directors.
    [Ed. Note. — For other cases, see Associations, Cent. Dig. §§ 26-28; Dec. Dig. § 16.]
    2. Associations (§ 16) — Rights or Members.
    Members of a voluntary association, which had executed notes to secure a loan, had the right, upon the maturity of such notes, to pay them and, at the proper time, to demand contribution of their co-obligors.
    [Ed. Note. — For other cases, see Associations, Cent. Dig. §§ 26-28; Dee. Dig. § 16.]
    S.Associations (§ 16) — Members—LIABILITY.
    Each member of a voluntary association is liable for its debts, necessarily contracted to carry out its objects, and, where its directors might have agreed to extend original notes and pay interest on such extension from time to time, they had the right to secure the postponement of the note by making new notes to different payees.
    [Ed. Note. — For other cases, see Associations, Cent. Dig. §§ 26-28; Dec. Dig. § 16.]
    4. Bills and Notes (§ 140) — Extension as to One Joint Maker — Effect.
    Giving time to one joint maker of a negotiable note does not discharge the other joint makers.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ S55-359; Dee. Dig. § 140.]
    5. Associations (§ 16) —Rights of Co-obligors — Renewal.
    Members of a voluntary association who consented to a loan obtained by the association, which debt was primarily theirs could not object to a renewal of such note by their co-obligors, when made necessary by their own failure to pay it at maturity, especially where such action was beneficial to them.
    [Ed. Note. — For other cases, see Associations, Cent. Dig. §§ 26-28; Dec. Dig. § 16.]
    6. Associations (§ 16) — Acts of Officers— Ratification.
    Members of a voluntary association primarily liable on notes for a loan to the association, who acquiesced in and accepted the benefits of a renewal by their co-obligors, thereby impliedly ratified such renewal.
    [Ed. Note. — For other eases, see Associations, Cent. Dig. §§ 26-28; Dec. Dig. § 16.]
    7. Associations (§ 18) — Rights of Third Persons — Presumption of Agent’s Authority.
    A bank, which had made a loan to a voluntary association, secured by notes executed by part of the members, and upon which all the members were primarily liable, which note had been renewed from time to time, was justified in presuming that the president and the secretary treasurer had power to execute it and could hpld the members liable on the transaction, as being within the apparent authority of such officers.
    [Ed. Note. — For other cases, see Associations, Cent. Dig. §§ 31-35; Dee. Dig. § 18.]
    8. Associations (§ 20) — Judgment — Conformity to Pleading and Issues.
    In an action on a note executed by a voluntary association and upon which its members were primarily liable as co-obligors, in which part of such defendants filed a cross-action asking for judgment over against their co-defendants over and above the pro rata part which they were themselves bound to pay, a judgment for plaintiff against defendants jointly and severally, and against each defendant in favor of each, apportioning against each defendant the total amount due the plaintiff, was not without support in the pleadings.
    [Ed. Note. — For other cases, see Associations, Cent. Dig. §§ 36-43; Dec. Dig. § 20.]
    9. Associations (§ 12) — Rights of Directors — Application of Funds to Indebtedness.
    The directors of a voluntary association, not required by anything in the contract or constitution to apply funds derived from any assessment to the payment of any particular debt, might apply the funds to any debt without becoming liable to the members.
    [Ed. Note. — For other cases, see Associations, Cent. Dig. § 15; Dec. Dig. § 12.]
    10. Associations (g 20) — Taking the Case from Jury — Peremptory Instruction.
    On the evidence in an action against the members of an association upon a note on which they were primarily liable as co-obligors, held that a peremptory instruction to find for plaintiff against the defendants jointly and severally was proper.
    [Ed. Note. — For other cases, see Associations, Cent. Dig. §§ 36-43; Dec. Dig. § 20.]
    On Motion for Rehearing.
    11. Associations (§ 20) — Form and Requisites — Penalty.
    In an action against members of a voluntary association primarily liable upon a note as co-obligors, a judgment for plaintiff against the defendants jointly and severally, and in favor of each defendant against each other defendant for the amount he should be required to pay over his own pro rata obligation, was not objectionable, because the several amounts which the plaintiff was permitted to recover against each defendant was calculated and entered therein.
    [Ed. Note. — For other cases, see Associations, Cent. Dig. §§ 36-43; Dec. Dig. § 20.]
    12. Associations (§ 16) — Officers and Committees — Powers.
    Where directors and officers of a voluntary association, which had obtained a loan upon notes, on which the members were primarily liable as co-obligors, renewed the note, the members of the association, having no legal status and independent of the question of partnership, were personally liable.
    [Ed. Note. — For other cases, see Associations, Cent. Dig. §§ 26-28; Dec. Dig. § 16.]
    13. Associations (§ 16) — Members—Liability.
    In such case it was too late, after the purpose had been .accomplished and the money expended by such officers, for the members to insist that they were not responsible, because they were not present and actually participating as members of the committee when a new party was substituted for the party in the original railroad promotion contract, in furtherance of which the association had been organized.
    [Ed. Note. — Eor other cases, see Associations, Cent. Dig. §§ 26-28; Dec. Dig. § 16.]
    Appeal from District Court, Swisher County; E. S. Kinder, Judge.
    Action by A. E. Carter against J. R. Hardy and others, with cross-action by defendants Q. E. Brown and others against the other defendants. Judgment for plaintiff against defendants, jointly and severally, and, as between defendants, judgments rendered against each in favor of each, and defendants J. R. Hardy and others appeal.
    Affirmed.
    Martin & Zimmerman, of Tulia, and J. E. Daniel, of Silverton, for appellants. Mathes & Williams, R. C. Joiner, and Randolph & Randolph, all of Plainview, for appellees:

      For other oases 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

   HALL, J.

On the ISth day of February, 1909, one Edward Kennedy, as a promoter, entered into a contract with certain of the citizens of Silverton, Tex., by the terms of which the said citizens, defendants in this suit, obligated themselves to pay the said Kennedy $70,000, one-seventh to be paid in cash, and the remainder upon the happening of certain contingencies not necessary to be set out here. In consideration of this undertaking, Kennedy agreed to build a railroad through Briscoe county and through the town of Silverton “within two years from said date, and as much sooner as may be possible.” Among other stipulations contained in the written contract, we find this: “The parties of the second part do hereby agree to be collectively responsible for the performance of this contract.” On April 14, 1909, the defendants in this suit, designating themselves the railway guarantee committee, drew up a constitution and set of by-laws, from which we quote the following:

“Preamble. We, the railroad guarantee* committee of Briscoe county, Texas, consisting of the persons whose names hereinafter appear, in order to dispatch business, finance and meet the obligations we have assumed by the contract, with Edward Kennedy, do hereby bind ourselves, heirs, and executors to be governed by the following constitution and articles of agreement:
“Section 10. Powers of Board of Directors. The board of directors shall have power to pay, out money on monthly estimates of the surveyor as per contract with Edward Kennedy or on interest and loans made by the railroad guarantee committee and recording and attorneys’ fees. They shall have power to negotiate loans for said guarantee only upon order of the committee and the signatures of the president and secretary to a note so ordered shall bind the entire railroad guarantee committee of Briscoe county, Texas; also said board of directors shall prorate each assessment among the entire number of subscribers, according to their several amounts or cash subscribers.”

On February 15, 1909, 29 of the 50 members constituting the guarantee committee including appellants Harris, Daniel, and Bur-son, executed to the First National Bank of Silverton three notes in the sum of $3,000 each, stipulating for 10 per cent, interest from date, and 10 per cent, attorneys’ fees-, all three being payable on demand. This money was borrowed to pay Kennedy the cash payment under the contract. On May 22, 1909, the directors, for the purpose of paying the balance due on this loan, borrowed $6,000 from the First National Bank of Tulia for six months. Thereafter, in the same way, money was borrowed from the Silverton' Bank & Trust Company to pay the balance due the First National Bank of Tulia on the $6,000 note above mentioned, and this loan was renewed from time to time, resulting in the note here sued upon, dated March 4, 1911, for $2,524. This note is payable April 17, 1911, and contains this recital: “I, we, or either of us, jointly and severally, promise to pay to the order of the First State Bank & Trust Company, the sum of twenty-five hundred and twenty-four and no one hundred dollars.” It provides for interest, at the rate of 10 per cent, from maturity, and 10 per cent, attorneys’ fees, and is signed as follows: “Railroad Guarantee Committee of Briscoe county, Texas, J. Ed. Crawford, President, R. B. Braley, Secretary Treasurer” — and bears this indorsement: “Payable to the order of A. F. Carter, without recourse, previous indorsements guaranteed. The First State Bank & Trust Company, Silverton, Texas. A. F. Carter, Cashier. April 11, 1911.”

By amended petition, plaintiff, Carter, ap-pellee herein, made each of the signers of the contract with Kennedy parties defendant. In the trial of the case, the defendants seem to have been divided into two clans. The defendants Q. E. Brown, R. L. McMurtry, J. H. Burson, and J. M. Harris and J. E. Daniel answered by general denial and plea of non est factum. They further alleged that, if they were liable on said note at all, then all the other defendants were jointly and severally liable on said note with them and prayed that if plaintiff recovered anything against them, that they recover against the other defendants herein such amounts over and above the pro rata part of the indebtedness which the said defendants would have to pay. By cross-action they allege that their •liability, if any, on said notes grew out of the constitution of the guarantee committee and of the contract made with Kennedy by said committee, and that November 6, 1909, an assessment of 35 per cent, of all subscriptions was levied, which was sufficient to include and pay up everything due by the guarantee committee at that date; that these defendants have paid said 35 per cent, assessment, and that the note in controversy was made necessary by the failure of other subscribers to pay their part of said assessment, and, bad the amounts paid on said assessment been credited on said notes and not used for other purposes, there was sufficient paid in to have paid off said note in full; but that said money was used for other purposes; that defendants Fred Biffle, R. B. Braley, Bruce Gerdes, K. E. Baine, J. L. Francis, A. P. Donald, J. Ed. Crawford, M. P. Stone, and J. B. Porter were the officers of said association and authorized to spend the money of same only in accordance with the terms and conditions of the constitution and by-laws, and that they collected on said 35 per cent, assessment enough to pay off said notes, but did not apply the same thereon, but paid it out to other and different parties than Edward Kennedy on said note, and to whom they were not authorized to pay the same, and that by reason thereof said defendants were individually liable on said note. They prayed that if plaintiff recover against them, that they have judgment against said Biffle and the other officers and directors mentioned above. The answer of appellant J. R. Hardy was the same, except that, in addition thereto, he pleaded that, at the time of the delivery and execution of the note, he was not a member of the guarantee committee, having on June 4, 1909, especially repudiated all further liability under the constitution of said committee and withdrew from any connection therewith.

Defendants Biffle, Braley, and others mentioned above, constituting the directors and officers of the association, together with other members of the committee, answered by'general denial and specially that they and all of the other defendants associated themselves together as a railroad guarantee committee and executed the contract hereinbefore set out, which said agreement was placed of record in Briscoe county; that said railroad committee authorized and empowered the executive officers, among other things, to secure a sum of money necessary to assist them in the pursuance of said enterprise and in the payment of the bonus due Kennedy, and that the money borrowed from the First State Bank & Trust Company was borrowed by said officers from the First National Bank of Silverton to pay the same; and that other moneys were borrowed, until finally the note herein sued upon was executed and delivered for the purpose of paying off said original loan; that the liability of all the defendants was joint and several.

In reply to the cross-action of the defendants J. R. Hardy, Q. E. Brown, J. H. Bur-son, and others, they alleged that on the 11th day of April, 1909, Edward Kennedy turned over to the Texas Construction Company his contract entered into with the committee, and that such transfer was made by and with the consent of said railroad committee, and executed by said committee, and that said Construction Company and said committee did, in all things and in good faith, attempt to carry out the terms of said original contract, and that the moneys thereafter paid out were paid by reason of all the obligations named and by reason of said transfer.

A jury was impaneled, and, after the evidence closed, the court gave the special charge No. 1, requested by J. Ed. Crawford and others, peremptorily instructing the jury to • return a verdict in favor of plaintiff against all the defendants jointly and severally for the sum of $3,336.08, which should be paid by the defendants in the amounts set opposite their names. The verdict is in part as follows: “We, the jury, return a verdict in favor of plaintiff in this cause, as against the defendants, as charged by the court, jointly and severally except John A. Baine, 'for the sum of $3,336.08, which judgment, as between the defendants herein, shall be paid by the defendants named below in the amounts set opposite their names, the original members of the guarantee committee who have died, having their heirs substituted in their stead as follows, to wit.” Then follows a detailed statement of the amounts found against each member of the guarantee committee, and the verdict concludes: “And we hereby return a verdict against all the defendants on all other cross-actions herein filed.”

Upon this verdict, the court entered judgment in favor of plaintiff, A. F. Carter, against the members of the guarantee committee jointly and severally, and provided as follows:

“And it is further ordered, adjudged, and decreed by the court that, as between the defendants herein, judgment is hereby rendered against each, in favor of each, as set forth in the above recited and copied verdict of the jury, said judgment being made payable under the order of the court as follows, to wit:
“First. Any defendant herein, shall by paying his or her proportional part of said judgment, as set forth in the verdict above copied, be entitled to have plaintiff’s execution levied upon property pointed out by the defendants who have paid their proportional part of said judgment belonging to the other defendants or either of them, who have not paid their proportional part of said judgment in favor of plaintiff.
“Second. Each defendant herein who shall pay any proportion of this judgment over and above the proportion thereof that has been adjudged against the said defendant shall have execution against the other defendants hereinabove named who have not paid such proportion of the judgment as shall equalize same between said defendants.
“Third. Each defendant herein who shall pay any proportion of this judgment due by any other defendant herein shall have execution in his or her favor against each of the other defendants who have not paid their proportional part of said delinquent defendant’s interest in this judgment,” etc.

As between tbe bank and tbe guarantee committee, tbe members of tbe committee were principals on tbe note, provided it was executed under proper authority, or its exe-éution bad been subsequently ratified, and no question of suretyship or guaranty arises. As between Kennedy and tbe guarantee committee, tbe contract above set out was a joint undertaking in wbicb all of tbe defendants were principal obligors. Tbe contention of J. R. Hardy, Q. E. Brown, J. M. Harris, 3. H. Burson and J1. E. Daniel, et al., is, first, tbat tbe judgment, having been rendered upon tbe note for tbe full amount claimed, was without proper pleadings to support it. It is true tbat plaintiff filed suit upon tbe note, and under his petition was entitled, if at all, to a judgment against tbe guarantee committee jointly and severally for tbe full amount; but tbe defendants, by their pleadings, requested tbe court to enter a judgment giving each one tbe right of contribution against his co-obligors, and, under this state of the pleadings, tbe judgment was properly rendered, if tbe court bad the right to render judgment on the note at all.

Tbe serious question . in this appeal is raised by appellant’s first proposition under tbe first assignment, wbicb is tbat tbe court erred in peremptorily instructing the jury to find for plaintiff against these appellants, because tbe evidence failed to show tbat tbe note in controversy was executed by the board of directors acting under sufficient authority from these appellants to bind them or by or with the knowledge, acquiescence, or consent of them, and fails to show that they ratified tbe same. It is contended under this proposition that, this being a voluntary association, and tbe officers thereof acting under a special and limited authority, their acts must be in strict conformity therewith, or tbe remaining members of tbe association would not be bound, and that the burden of proof rested upon tbe plaintiff to show tbe authority of tbe directors in tbe execution of the note. Tbe evidence in tbe record upon this question'is in substance as follows: “Minutes of Meeting Feb. 15, 1909. Tbe Guarantee Committee of Briscoe County, Texas. A number of citizens of Briscoe county met Monday, Feb. 15, 1909, at Silver-ton, Texas. There was a motion that there be a committee of three appointed to confer with tbe First National Bank of Silverton, Texas, to see if the committee could secure tbe first payment of money tbat is required by Mr. Ed. Kennedy. Motion carried. Mr. J. B. Porter, Mr. M. P. Stone, and Mr. P. L. Crawford were appointed upon this committee. Tbe committee made a favorable report in regard to securing tbe necessary money. There was a motion tbat three men be appointed to carry three notes for $3,000.00 each to the First National Bank of Silverton, Texas, to secure tbe $9,000 payment to Mr. Ed. Kennedy. The motion carried. Mr. P. L. Crawford, M. P. Stone, and R. B. Braley were appointed upon this committee. This committee went with others of tbe guarantee committee to tbe First National Bank and secured tbe $9,000.00 from tbe bank for Mr. Ed. Kennedy, and delivered tbe $9,000.00 to Mr. Ed. Kennedy. Adjourned to meet Feb. 17 and 20, 1909. R. B. Braley, Secretary. Accepted.”

This loan was negotiated tbe same day on wbicb the guarantee contract binding tbe appellants and others to pay Kennedy tbe $10,000 cash was executed. (For some reason, unexplained in tbe record, Kennedy bad waived tbe immediate payment of $1,000 of this sum.) It is uncontradicted tbat tbe loan was authorized by the mass meeting of citizens which met on February 15th, and which gave birth to tbe contract with Kennedy, and tbat this.was two months before section 10 of tbe constitution, Wbicb limited tbe power of tbe directors to borrow money, was framed and adopted. There being no directors at tbat time, a special committee was appointed to arrange for tbe loan, and the first notes were signed, not by tbe president and secretary treasurer of tbe association, as was afterwards provided for in tbe constitution, but by 29 of those who bad signed tbe guarantee contract with Kennedy. Tbe notes were executed in this way simply to satisfy tbe bank. Each subscriber to tbe bonus of tbe enterprise, including appellants, bad made bis note to tbe guarantee committee in tbe amounts subscribed by him, but, this being tbe day of organization, no cash bad been paid by tbe subscribers, so, in order to carry out tbe purposes of the association and to meet tbe obligation to pay $10,00Q cash, this loan was effected. Appellants, having signed tbe contract, knew that tbe cash payment must be made and they were each, as individuals, responsible therefor.

There being at tbat time no constitution or by-laws, tbe association had no check upon- its powers, and could adopt any means to accomplish tbe object for wbicb it was formed. 4 Oyc. 308 (II). We think tbe validity of tbe first loan and tbe execution of the three' notes therefor cannot be challenged by appellants, nor could tbe obligations to tbe bank be impaired by the subsequent adoption of article 10 of tbe constitution. This loan bad been made beforehand, and, in paying interest upon it afterwards, tbe directors did not exceed their authority even under tbe constitution, because tbe first sentence of said section 10 empowers tbe board of directors to pay out money on interest and loans.

Appellants bad tbe right, upon the maturity of tbe three original notes, to pay them, and at tbe proper time to demand contribution of their co-obligors. This they failed to do. Although tbe evidence of tbe indebtedness has changed from time to time as to amount, payee, and date of maturity, tbe debt sued upon is part of tbe original obligation. We do not hold that, after the adoption of the constitution, the directors could have, as an original undertaking, negotiated a loan, in the absence of an order to that effect by the committee. While the directors borrowed from one bank to pay another, the effect of their act is simply a renewal and extension of the debt, for which all the defendants were jointly and severally liable, and does not come within the inhibition of said section 10 of the constitution.

“Each member of an association is liable for the debts thereof incurred during his period of membership and which have been necessarily contracted for the purpose of carrying out the objects for which the association was formed.” 4 Cyc. 311. It cannot be successfully contended that the directors, under the constitution, could not have agreed with the first bank to extend the original notes and to pay interest upon such extensions from time to time, and that, too, without releasing their co-obligors. Giving time to one joint maker of a negotiable note does not discharge the others. Dan. Neg. Inst. (5th Ed.) § 1297. If this be true, then they had the right to secure the postponement of the debt by making new notes and to different payees. The effect is the same.

Having previously consented to the loan, they cannot be heard to object to its renewal by their co-obligors, when made necessary by their failure to pay it at maturity. Meachem’s Agency, §§ 72, 74. The debt was primarily theirs. They must be held to have known the date of its maturity. Having failed to give it proper attention at that time, appellants cannot complain because their co-obligors took whatever action was necessary, and especially so when such action did not result to the injury of appellants, but, on the contrary, was beneficial to them.

They knew the loan had been made and had not been paid, and they must be held to have known that its maturity had Been postponed in some satisfactory way. Having acquiesced and' accepted the benefits, there is an implied ratification of the acts of the directors. 1 Elliott on Contracts, § 459.

Even if we should admit that the directors transcended their authority in the execution of the note in suit, still we think the payee bank was justified in presuming that the president and secretary treasurer were empowered to execute it. This note was a renewal of one for $2,500-previously given to the same bank, and, as heretofore stated, the debt had been renewed from time to time for more than a year. As said in 2 Page on Contracts, § 965: “Persons who do not know what the agent’s authority really is are justified in dealing with him upon the assumption that he has the authority which the principal indicates by his conduct that the agent possesses. Thus dealing with the agent, such persons may hold the principal on contracts outside the real authority of the agent but inside his apparent authority.” Note: “Persons dealing with an agent have the right to presume -that his agency is general, and not limited, and notice of limited authority must be brought to their knowl-ede before they are bound to regard it. Trainer v. Morison, 78 Me. 160, 3 Atl. 185, 57 Am. Rep. 790; quoted in Wood v. Finson, 89 Me. 459, 36 Atl. 911.” “The principles of es-toppel find application in cases where contracts are made by an agent in excess of his real authority but within the scope of his apparent authority. As a general rule, one who holds out another as his representative, authorized to act for him in a given capacity, or has knowingly or negligently permitted such other to act as his agent in a given capacity, without dissent or when his acts and the circumstances of the case are such as to reasonably warrant the presumption that such other is his agent, that authority to act in a given matter will be held as principal. Whether it involves one or more transactions, he will be conclusively presumed so far as it is necessary, to protect the rights of an innocent third person, who in the exercise of reasonable prudence, has dealt with such other in good faith to have authorized such other to act for him and will be held as principal and not heard to deny that the other was his agent, authorized to do the act performed so long as such act is within the scope of his apparent authority.” 1 Elliott, § 454. This disposes of appellant’s first, second, fifth, sixth, seventh, eighth, and ninth assignments.

In view of what has heretofore ■ been said, we think there was no error in rendering judgment against appellants on the note, including attorney’s fees and interest. The pleadings of the defendants converted this suit, as between themselves, into one for an accounting and settlement, and the judgment and verdict, in apportioning the total amount due plaintiff among the several defendants, does nothing more than could have been done by separate suits for contribution. We think there was no error in this.

There is nothing in the constitution of the association or in the‘contract requiring the directors to apply the funds derived from any assessment to the payment of any particular debt, and, in the absence of specific directions, they had the right to pay either Parks and Lemon or appropriate the funds to the extinguishment of the note without becoming liable to appellants. None of the appellants testified in the case, and the appel-lee’s evidence bearing upon the several issues is undisputed.

As we see the record, there is no controverted issue of material fact to be submitted to the jury, and we think the court did not err in giving the peremptory instruction. The judgment is therefore affirmed,

On Motion for Rehearing.

The appellants Hardy, McMurtry, Burson, Brown, Harris, and Darnel have filed quite a lengthy motion for rehearing, supplemented by an extended argument, in which the original opinion of the court in this case is reviewed and criticized. One ground insisted upon in the motion is that this suit was prematurely brought, because it was not shown by any of the pleadings that the railroad had been completed, or that the project had been abandoned. This is a question which seems to have been raised for the first time on appeal. No exception was urged by any one in the court below, and, upon that' ground and for that reason, we did not consider the question in the original opinion.

We are cited by appellants in their motion to Meachem on Agency, § 706, announcing the doctrine that third persons dealing with an assumed agent are bound to ascertain the nature and extent of the agent’s authority. The rule announced does not apply to the facts of this case. The uncontroverted evidence is that the directors and the officers of the railroad guarantee committee Were not assumed agents. They were duly elected and constituted officials of the association, acting within the limits of their powers as such. The contract and by-laws creating the offices which they held and from which their authority was derived were matters of public record, and had been subscribed by the appellants. It is said in the motion that we erred in the opinion in stating that the pleadings of the parties authorized the court to enter a judgment giving the defendants the right of contribution, and appellants say that the only kind of a judgment which the pleadings and prayer authorized was a joint and several judgment against all of the defendants and then a right of contribution among the defendants as to an equal pro rata part of the amount of the principal of the note and 6 per cent, per annum and interest thereon and no attorney’s fees. The plaintiffs’ action was brought upon the note alone. The appellants, except Daniel, filed answers containing several prayers, which we give, in substance, as follows:

Wherefore this defendant prays upon final hearing hereof, if plaintiff recover anything against him, he have and recover of and from said defendants Biffle, Braley, Crawford, etc., such amount as may be recovered against him by plaintiff; at least such amount of said funds as were negligently expended by said defendants, for costs of suit and for such other and further relief, both general and special, in law and in equity to which he may be entitled.

Again, wherefore this defendant prays that plaintiff take nothing by his said suit against him, and that he be permitted to go hence without day and recover his costs herein, but that in the event plaintiff recover anything against him, that he have judgment over against the other defendants herein for such sum as may be recovered of him by plaintiff, for costs of suit, and for such other and further relief, general and special, in law and in equity, to which he may be entitled.

Again, wherefore these defendants pray that upon final hearing hereof, if plaintiff recover against them herein, then that they recover over and. against all of said above-named parties according to their respective liabilities shown by said contracts, and that, should plaintiff recover any judgment against these defendants for any sum over and above their pro rata part determined according to the terms of said agreement, then that they have judgment over and against said parties named above and said other named defendants for such sum or sums as they may be required to pay in excess of their pro rata parts, and for such further relief, general and special, in law and in equity, that they may show themselves entitled to.

Again, wherefore they say that if plaintiff recover anything against them, that, by reason of the facts above stated, they ought to have and recover over and against each and all of said other defendants jointly and severally the amounts so recovered against them by plaintiff, or at least 35 per cent, of the amount of each of said defendant’s subscription to the building of the railroad guaranteed by said railroad guarantee committee of Briscoe county, Tex., and for costs of suit and for such other relief, general and special, in law and in equity, to which they may be entitled.

And finally, wherefore these defendants pray that, upon final hearing hereof, if plaintiff recovers anything against them, that they have and recover of and from said defendants Biffle, Braley, etc., such amounts as may be recovered against them by plaintiff, or at least such amount of said funds as were negligently expended by said defendants, for costs of suit and for such other and further relief, both general and special, in law iand in equity, to which they may be entitled.

We are not prepared to criticize the judgment of the court and the verdict of the jury, because the several amounts which plaintiff was permitted to recover against each of the defendants was calculated and entered therein. Some of the objections urged by appellant might have been obviated if the court had rendered a joint and several judgment against the guarantee committee with the right of contribution between them. We think, however, that the particularity apparent in the judgment and verdict does not render it void or even voidable, nor limit the rights of the defendants in the judgment inter se. The pleadings which we have outlined in brief in the original opinion, when considered in connection with the various prayers appearing from time to time and set out in substance above, certainly authorized the court to render exactly the judgment which appears in the record. We have not taken the time to figure the exact amounts clue from each member of the committee to ascertain whether or not any mistake has been made in the calculations, but, since no objection is urged upon that ground, we take it for granted that the amounts named by the court are correct.

In their argument, supplementing the motion in this case, the appellees insist that no case can be found bearing upon the right of a comaker to make a new note to a different payee for a different amount and upon different terms and bind his comaker thereon. If such a case could be found, it would have no application to the facts of the case under consideration. This is not a question of one comaker making a new note to a different party containing different stipulations and endeavoring to bind his comaker. The question here is primarily one of agency and the right of the directors and officers of a voluntary association, organized as this has been, to bind the other members. In Fredendall v. Taylor, 23 Wis. 538, 99 Am. Dec. 203, it is said that the members of a committee of a voluntary association are individually liable on a contract made by a subcommittee of their number under authority delegated by the whole committee with one who contracted on a credit of the committee personally and not of the association, although in making the contract the subcommittee assumed to act as officers of the association. In that case Taylor and Kreiss and Leich were members of a committee 'appointed by the State Firemen’s Association to make the necessary arrangements for holding the annual tournament, and, as such, they made a contract with Fredendall for a tank for the use of the association. Paine, J., said: “It is true, they did not act personally in contracting with the plaintiff, the committee having delegated its authority to a subcommittee composed of Spencer and Leitch; but the latter, in making the contract, were acting as agents of the committee, so that the liability of the whole committee is the same as though all had acted in making the contract. It was not claimed that the contract was not within the scope of the committee’s authority, or of that delegated to the subcommittee. On the contrary, it is conceded, that the well was necessary to the tournament, and it was used for that purpose, * * * and, where such is the case, a committee which assumes a contract for services for such an irresponsible, intangible association must become personally liable, else there is no liability whatever. One professing to act as agent, if he does not bind his principal, binds himself. Dennison v. Austin, 15 Wis. 334. And it can make no difference that the reason why he does not bind his principal, is because the principal for whom he professed to act has no existence. It is not to be presumed .in this case that the plaintiff contracted upon the credit of the association,' and there is proof tending to show, that, although he only understood that the committee was acting for the association, yet' he relied on the personal, liability of the committee, including Taylor and Kreiss. The case is not distinguishable in principle from that of McCartee v. Chambers, 6 Wend. (N. Y.) 649, 22 Am. Dec. 556, where the committee, acting by an agent, as in this case, are all held personally liable. Such a rule is salutary, and tends to the motion of justice, by preventing the procurement of services from too incautious and confiding laborers, by putting forward an irresponsible committee to act for an irresponsible public gathering.” In the instant case, the officers who signed the note may be considered as the subcommittee, and the rule announced is in point.

In Wehr et al. v. Germ. Evan. L. St. M. C. of Baltimore, 47 Md. 194, it is said: “We think this a case when the general principle applies that, where a corporation, or other organization of persons, is represented by a select body of its members, unless there be something in its rules, or in the delegation of authority to the contrary, the act of the majority is to be taken as the act of the whole. It is the general understanding, as observed by Lawrence, J., in Witchnell v. Gartham, C. T. Rep. 388, that ‘When a body of persons is to do an act, a majority of that body will bind the rest.’ ”

In Augusta Musical Club v. Cotton States Mechanic’s & Agricultural Fair Ass’n, 50 Ga. 436, where certain musicians sued for services rendered to the defendant, the court said: “It is nevertheless very clear that the plaintiffs did act as musicians for several days at the defendant’s fair, and that they were recognized as musicians by the officers in authority at the fair. Whether they were mere volunteers or went there in the employment of somebody else than the defendant or its agents is, in truth, "the principal question. Without doubt, they thought they were playing for the defendant, and, if they were not, they were imposed upon by Mr. Cohen, who represented to them, in writing, that he was chairman of a committee appointed by the defendant. In our judgment, it was within the scope of the authority of such committee to procure music, and to agree to pay for it. When Mr. Cohen says he had no such authority, we presume he means express authority, but if he was one of the appointees of the defendant to make preparations for the coming fair, the authority to employ musicians would be implied in the committee, and the act of their chairman might fairly be taken as the act of the committee itself. Mr. Cohen says he did not contract with them as chairman of the defendant’s committee; but the fact is he did so contract, for the letter which he admits was written by him, not only styled him the chairman of defendant committee, but appeals to them for a low charge, in consideration that the fair association is itself acting .liberally in giving the entertainment.”

In Winona Lumber Co. v. Church et al., 6 S. D. 498, 62 N. W. 107, the appellant sold cfertain lumber to the Watertown Trotting Association, of which Charles G. Church was the president. Judgment was rendered that the lumber company take nothing, and on appeal the trial court was reversed and the case remanded. Kellam, J., speaking for the Supreme Court, said: “Complaint shows that these defendants were the general officers of an incorporated association, under the name of the Watertown Trotting Association. Its purpose and object is disclosed only as suggested by its name. • It is further stated that with the knowledge, approval, and sanction of these defendants, as its general managing officers, the association purchased the materials named in the com-' plaint from the plaintiff, and that.such materials were used in the construction of buildings for such association. The association itself was the nominal or theoretical principal, of which these defendants were the officers and agents, but the nominal principal had no legal existence. As said by Judge Seevers, in Lewis v. Tilton, 64 Iowa, 220, 19 N. W. 911, 52 Am. Rep. 436, it was a myth. The members of the association, as a matter of convenience, transacted their business connected with this enterprise under an assumed associate name. The acts of the association, it not being a legally responsible body, were the acts of its members, who instigated and sanctioned the same. They made the purchase in the name of a fictitious principal. As a matter of law, the plaintiff, in giving credit to the associate name, gave credit to the parties who adopted and operated under such name. To hold otherwise would defeat the plain requirement of justice. It is not sought in this case to impose liability upon any except those who were actively responsible for the purchase. Possibly others besides those named as defendants may also be liable in this case, but there is nothing in the complaint so showing. It does appear that the defendants named instigated and sanctioned the purchase, and they are liable on the ground that one who, as the agent, assumes to represent a principal who has no legal existence or status is himself liable. Meach-em on Agency, § 557. The principle which seems to us controlling in this case is tersely stated in Lewis v. Tilton, supra: ‘But it is said these defendants did not contract. They certainly represented that they had a principal for whom they had authority to contract. They, for and in behalf of an alleged principal, contracted that such principal would do and perform certain things. As we have said, there is .no principal, and it seems to us the defendants should be held liable, and that it is immaterial whether they be held liable because they held themselves out as agents for a principal that had no existence or on the ground that they must, under the contract, be regarded as principals, for the simple reason that there is no other principal in existence.’ That members of an incorporated association, having no legal status, are personally liable, independent of the question of partnership, on contracts which they have assented to or assisted to make in its name is fully declared in Lewis v. Tilton, supra; Davison v. Holden [55 Conn. 103] 10 Atl. 515 [3 Am. St. Rep. 40]; Herod v. Rodman, 16 Ind. 241; Ash v. Guie, 97 Pa. 493 [39 Am. Rep. 818], The same doctrine was distinctly recognized, though not so definitely stated, and applied in Ray v. Powers, 134 Mass. 24; Sizer v. Daniels, 66 Barb. (N. Y.) 432; Fredendall v. Taylor, 23 Wis. 538 [99 Am. Dec. 203]; and again in 26 Wis. 286.”

In Bennett v. Lathrop, 71 Conn. 613, 42 Atl. 634, 71 Am. St. Rep. 222, it is said: “The members of a voluntary association are * ⅜ * liable for an indebtedness * ⅜ * for which it was organized, during the time of their membership, although they did not agree to become, nor did they hold themselves out as, partners, or as personally responsible, and although the creditors gave credit to the associate name.”

In contracting with the Texas Construction Company, the officers and directors of the guarantee committee were certainly endeavoring to carry out the very purpose which the guarantee committee had bound themselves to have performed, and it comes too late at this time, when the work has been done, the money expended by the officers elected by themselves, to insist that they are not responsible because the appellees failed to show that appellants were present and actually participated as members of the committee when the Texas Construction Company was substituted for Kennedy in the original contract. The Danforth Trotting Park Association had been organized as a volunteer association, with the ultimate purpose of organizing a corporation, and before the organization of the corporation the treasurer executed a note. In Kierstead v. Bennett, 93 Me. 328, 45 Atl. 42, it was held that Bennett, the treasurer of such an association, giving his note in his official capacity for money which was used in promoting the purposes of the association, thereby bound all of his associates, including himself. The court said: “Now the defendant claims that the note sued on must be held to be the note of the Danforth Trotting Park Association, and that, when the defendant promised in his official capacity, he promised for and in behalf of the association. Assume it to be so, then he promised for and on behalf of all the associates, including himself. That being so, all the members, himself included, are liable upon the promise which he made. All are copromisors. He is sued; the others are not; but the nonjoinder of a copromis- or is available only by plea in abatement, hence it follows- that, whichever view may be taken of the note, the defendant is liable.” Otto v. Journeyman Tailors’ Union, 75 Cal. 308, 17 Pac. 217, 7 Am. St Rep. 161; Jenne v. Matlack (Ky.) 41 S. W. 11; McKenney v. Bowie, 94 Me. 397, 47 Atl. 918; Giles v. Ortman, 11 Kan. 59; Pelton v. Place, 71 Vt. 430, 46 Atl. 63; Hess v. Werts, 4 Serg. & R. (Pa.) 356; Ferris v. Thaw, 72 Mo. 446; Dow v. Moore, 47 N. H. 419.

Motion overruled.


author: PLY, C. J.

text:
    GALVESTON, H. & S. A. RY. CO. v. CHOJNACKY.
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 20, 1914.)
    1. Damages (§ 206) — Physical Examination — Wounds and Other Injuries.
    Where plaintiff, in a personal injury action, at the request of the jury after both sides had rested, removed dark glasses from his eyes, and offered them for the inspection of the jury, he thereby waived the inviolability of his person, and it was error to refuse defendant’s request for an examination by experts.
    [Ed. Note. — Por other cases, see Damages, Cent. Dig. § 531; Dee. Dig. § 206.]
    2. Master and Servant (§ 265) — Actions for Injury to Servant — Burden of Proof —Negligence on Part oe Master.
    When a servant sues his master for an injury caused by the negligence of the master, the servant must prove the negligence and proof of the accident, and injury only will not authorize a recovery.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 265.]
    3. Commerce (§ 27) — Interstate Commerce —Subjects of Regulation.
    An assistant gardener, employed by a railroad company engaged in interstate commerce to cultivate the yard about one of its stations and gather trash and burn it, is not engaged in interstate commerce.
    [Ed. Note. — Por other cases, see Commerce, Cent. Dig. § 25; Dee. Dig. § 27.]
    4. Master and Servant (§ 265) — Action for Injury to Servant — Burden of Proof —Contributory Negligence.
    In an action by a servant for an injury, the burden is upon defendant to prove contributory negligence.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 265.]
    Appeal from District Court, Bexar County; 5. G. Tayloe, Judge.
    Action by John Chojnacky against the Galveston, Harrisburg & San Antonio Railway Company. Prom a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, of Houston, and Templeton, Brooks, Napier & Ogden, and W. P. Ezell, all of San Antonio, for appellant. Don A. Bliss, of San Antonio, for appellee.

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

   PLY, C. J.

Appellee sued to recover damages alleged to have accrued through the negligence of appellant in allowing a torpedo or other explosive to be present in paper and other refuse, which it became incumbent on him to ' bum in pursuance of his duties as an employs of appellant. Appellant pleaded contributory negligence and assumed risk. A trial by jury resulted in a verdict and judgment in favor of appellee for $9,000.

In this case appellee claimed that his eyes were seriously and permanently injured through the explosion of some substance that was among paper and other trash gathered about the station of appellant in San Antonio. During the trial appellee wore dark glasses, and it seems that during a recess of the court two jurymen expressed to the trial judge their desire to have appellee take off his glasses and let the jury see his eyes. This occurred on Saturday afternoon, after both parties had closed their testimony, and after the case had been postponed for the argument until the succeeding Monday morning, and the judge informed appellee’s attorney of the request of the jurors, and asked him to inform counsel for appellant. This was not done, but Monday morning appellee was called before the jury by his attorney and caused to remove his glasses, so that his eyes could be inspected by the jury. Before, at the time, and after the inspection took place, appellant claimed the right to have doctors, who might be selected by it, to examine the eyes of appellee. Counsel for appellee objected to the examination because there was no decision holding that, after a plaintiff exhibits his person to a jury, a defendant has the right to have his person inspected by experts, and because he had a case for trial in Sherman, Tex., and he had to start Monday night to reach there on Tuesday afternoon, and, if an examination was allowed, he could not reach Sherman in time. The court refused to permit an examination. A physician had testified that he had treated appellee’s eyes, and had in January, 1913, discharged him from treatment, and he “could find nothing that would hinder him from seeing as a person normally ordinarily would.” He also stated that with instruments he could look into the eyes and see whether they were injured or defective. Appellee testified: “I could not see at all immediately after the accident, it was about six weeks later before I could see even a yellow light — passed in front of me all the time — my eyesight is just about the same ever since; both eyes just alike, see just as well with one as with the other, no difference in the sight, no difference at all; the smallest object I can see is a person; I can just see the shadow of a person, about 10 feet — no object smaller than a human being, not even shadow.” He testified that he could not see a man’s hand held before him. Under this state of facts it became very important that appellant should be able to contradict the statements of appellee. The most effective way to contradict the testimony of appellee was to have an examination of his eyes by experts, who could test the extent of his vision. But that examination could not, at any time, be demanded by appellant unless appellee permitted an inspection of his eyes by the jury. The moment, however, that he submitted his eyes for examination to the jury, he doffed the armor placed on his person by the hand of the law, and was the subject of examination of experts.

The leading case in Texas on the subject under consideration is Railway v. Langston, 19 Tex. Civ. App. 568, 47 S. W. 1027, 48 S. W. 610, in which the able opinion of a majority of the court was delivered by Associate Justice Stephens. The case went to the Supreme Court on a dissent, and the-majority opinion was affirmed. 92 Tex. 709, 50 S. W. 574, 51 S. W. 331. It was cited and approvingly quoted from in the case of Railway v. Anglin, 99 Tex. 349, 89 S. W. 966, 2 L. R. A. (N. S.) 386. The rule enunciated by the Court of Civil Appeals and approved by the Supreme Court is as follows: “But inasmuch as appellee invited an inspection and examination of her wounded limbs. by making profert of them on the trial, we have finally concluded that the case presents a different question from that so often considered, and that its solution should not be influenced by our cherished Anglo-Saxon principle of personal security. In our opinion it would be a perversion of that principle to apply it in a case like this, where the plaintiff, unfortunate and pitiable though she may be, voluntarily lays bare before the court and jury her afflicted members for the inspection of judge, jury, and advocate. For all the purposes of the trial she thus waived her right to object, upon the ground of an invasion of her right of personal security, to a reasonable and proper examination, under the direction of the court, of the wounded parts. She thus, by her own voluntary act, conferred upon the court jurisdiction to compel what otherwise she might have refused to submit to. Having conferred the jurisdiction, she could not take it away at pleasure without trifling with the court. It lasted as long as the trial lasted.” The Supreme Court said: “The rule acted upon in that case that, where a party has once exhibited ins person to the jury to show the extent of his injuries, he may be required during-the course of the trial to re-exhibit them has never been modified by this court.”

Rule 62a (149 S. W. x) cannot be applied in regard to what might have been the result of the inspection and examination of the eyes of appellee by experts, because appellant could not set out what the result of the examination would be. It had been shown that the eyes of appellee were in a normal condition when he was last treated, some four or five months before the trial, but he swore that he was almost blind at the time of the trial, leaving the inference, either that the physician who treated him was mistaken about the condition of his eyes, or they had changed much for the worse since his examination. Appellant had no way to refute either theory, except by an examination of the eyes, but that examination could not be had at any time before or during the trial until appellee invited an inspection of his eyes by the jury. What their apparent condition may have been no one but appellee or the jurors could know, in the absence of an examination by experts. The eyes may have had an inflamed appearance, or the pupils may have been dilated so as to give them an abnormal appearance, and yet there may have been no organic trouble which would permanently affect the vision. However that may be, when appellee offered his eyes for inspection to the jury, he waived the right of inviolability of his person, and appellant had the right to demand and be given an examination of his eyes by experts of its own selection. Appellee had the right to exhibit his person1 to the jury, and an objection to such exhibition by appellant could have availed nothing. Appellant might have waited until the inspection was made before claiming the right of examination, but appellee was given notice before the inspection that an examination would be demanded. The court had no discretion as to permitting or refusing the examination of appellee’s eyes, but when profert was made of his eyes by appel-lee, the right to an examination became absolute under the facts of this case, no matter if it did delay the trial or inconvenience counsel. Delay and inconvenience amount to nothing when the -attainment of justice is the end in view. The Missouri cases cited by appellee refer to orders of the court requiring an examination of wounds, and recognize the right to such examinations without the consent of the injured parties, but make such examination conditional on convenience of the court and prompt demand for such examination upon the part of defendants.

The case of Railway v. Underwood, 64 Tex. 463, was rendered at a time when the Supreme Court held that an examination of the person of a plaintiff in a personal injury suilt could be demanded by the defendant, but held that the motion for an examination was insufficient. We have seen no case in which an examination was refused when pro-fert of the wounded- part of the body had been made. If the demand was made only after the argument to the jury had begun, it was because the inspection was never made until that time, and, if delay would have been caused thereby, appellee caused the delay. The inspection was made after the evidence of both parties had closed, and appel-lee reopened the case by offering other testimony.

We do not desire to comment on the evidence, as the case will be sent back for another trial. The court held that the evidence was sufficient to take the case to the jury, and appellee may have been induced thereby not to produce testimony which tended to show clearly that the explosives were among the trash through the negligence, of appellant, or that their presence in the trash should have been known by appellant. “It is the general rule that, when a servant sues his master or employer for damages arising from injuries caused by the negligence of the latter, the plaintiff must prove the negligence of the defendant, and that proof of the accident and injury alone will not be sufficient to authorize a recovery.” That is the rule laid down by the Supreme Court in McCray v. Railway, 89 Tex. 170, 34 S. W. 96, but the qualification sought to be made, to the effect that “the circumstances attending the injury may be sufficient to establish the fact of negligence without any direct proof thereof,” amounts to nothing but a statement that the negligence, as any other fact in any case, can be proved by circumstantial evidence. Broadway v. San Antonio Gas Company, 24 Tex. Civ. App. 603, 60 S. W. 270. Negligence of the master must be proved by direct or circumstantial evidence.

We cannot go to the extent of holding that an assistant gardener employed, by a railroad company engaged in interstate commerce, to cultivate the yard about one of its stations, and gather trash and burn it, is engaged in interstate commerce. The Supreme Court of the United States may go to that extent, as it has gone to extreme lengths in depriving the states of control over railroads operating within their borders, but it may be hoped that better counsels will prevail,, and the advance of judicial centralization be stayed; for, while the Supreme Court in a late case refused to commit itself as against further aggression upon the rights of the states in controlling railroads, it did not commit itself further in the other direction. Grand Trunk R. R. Co. v. Michigan Railroad Com’rs, 231 U. S. 457, 34 Sup. Ct. 152, 58 L. Ed. -. The court sustained the right of' the Michigan Railroad Commission to control the interchange of traffic between an interstate road and intrastate roads, and said: “We will not dwell on the contention of appellants that Congress has taken over the whole subject of terminals, team tracks, switching tracks, sidings, etc. We need make no other comment than that it cannot be asserted as a matter of law that Congress has done so.” The state law is applicable on the subject of assumed risk under the facts of this case.

The eighth and ninth assignments are overruled. The law as to assumed risk was properly given in the charges as to which complaint is made.

The eleventh assignment is overruled. There was nothing in the testimony of ap-pellee that tended to show contributory negligence, and the burden rested on appellant to show contributory negligence.

For the reasons herein given, 'the judgment is reversed and the cause remanded.


author: PLY, C. J. PLY, C. J.

text:
    WILMOT et al. v. FORE et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 21, 1914.
    On Motion for Rehearing, March 4, 1914.)
    1. Limitation of Actions (§ 199) — Question foe Jury — Evidence.
    Where in trespass to try title there was evidence that would have justified a finding in favor of the defendants on the issue of limitations as to a portion of the land, the court erred in refusing to submit such issue at defendant’s request.
    [Ed. Note. — Por other cases, see Limitation of Actions, Cent. Dig. §§ Y27-730; Dec. Dig. § 199:]
    2. Evidence (§ 106) — Relevancy—Reputation.
    It was not error to exclude evidence of the reputations of the members of a real estate firm who had been instrumental in transferring a land certificate under which plaintiffs claimed, where no effort had been made to impeach the reputations of such persons for truth or veracity, or for honesty and fair dealing.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 177-187; Dec. Dig. § 106.]
    On Motion for Rehearing.
    3. Lost Insteuments (§ 23) — Proof.
    A lost deed or other instrument may be shown to have existed, by circumstantial evidence and testimony other than that specified by statute.
    [Ed. Note. — Por other cases, see Lost Instruments, Cent. Dig. §§ 51-57; Dec. Dig. § 23.]
    Error from District Court, Dimmit County; J. P. Mullally, Judge.
    Trespass to try title by H. M. Pore and others against E. P. Wilmot and others. Judgment for plaintiffs, and defendants bring error.
    Reversed and remanded.
    Ike D. White, N. A. Rector, and E. Cart-ledge, all of Austin, for plaintiffs in error. J. O. Rouse, of Carrizo Springs, and Warren & Briggs, of Gilmer, for defendants in error.

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

   PLY, C. J.

Defendants in error, H. M. Pore and M. P. Nichols, joined by her husband, P. C. Nichols, instituted this action of trespass to try title to 1,280 acres of land known as the A. M. Pore survey in Dimmit county against plaintiffs in error, consisting of 25 persons. The suit was dismissed as to 4 of them. The cause was tried by jury, resulting in a verdict in favor of Pore and Nichols for all of the land, except 746⅝ acres sold by Dr. M. A. Taylor to A. Eardley. This writ of error is prosecuted by E. P. Wilmot arid T. B. Cochran, as executors of the estate of M. A. Taylor, deceased, J. W. Maxwell, Joe S. Wooten, M. O. Bunton and her husband, J. H. Bunton, D. W. Bouldin, and Helen Lee Bouldin.

The evidence shows that a certificate for 1,280 acres of land was issued by the state to A. M. Pore, the father of H. M. Pore and M. P. Nichols, on account of his being a disabled Confederate soldier; that he placed it in the hands of one Bob Harris, after having transferred it in blank; that it was sent to Johns & Spence, land agents in the city of Austin; that they sold it to Dr. Taylor; that A. M. Pore was probably notified of such sale; that he never asserted any claim to the land in controversy, and did not pay any taxes on it; that appellees did not make any claim to the land until long after the death of their father; that Dr. Taylor in the fall of 1882 located the certificate on the land in controversy, said certificate having been sold to him by Johns & Spence; that from 1882 taxes were paid on the land by Dr. Taylor and those claiming under him, and they have at all times claimed the land. A. M. Pore died in 1891 or 1892, and this suit was instituted on July 11, 1911, by appellees. The circumstances tend very strongly to show a transfer of the certificate to Dr. Taylor by A. M. Pore, but there were facts which perhaps justified a submission of the matter to the jury, and we would not feel authorized, although not at all satisfied with the proof offered by defendants in error, to disturb the verdict.

There was evidence, however, tending to show that Dr. Taylor and those holding under him had perfected a title, not only to the 746% acres adjudged to a portion of the defendants in error, but to the whole 1,280 acres of land. The court did not submit the issue of limitations as to the remaining 533⅛ acres of land claimed by plaintiffs in error, and refused a charge requested by plaintiffs in error which sought to present the issue. This was error.

There was no effort to impeach the reputations of Johns & Spence for truth and veracity, or honest and upright dealing, either directly or indirectly, and the court did not err in rejecting evidence as to their reputations for honesty and fair dealing. The presumption prevails that such was their reputation and plaintiffs in error could have argued to the jury that such was their reputation.

Because of the error of the court in refusing the special charge presenting the issue of ten years’ limitation, the judgment is reversed, and the cause remanded.

CARL, J., entered his disqualification, and did not sit in this cause.

On Motion for Rehearing.

PLY, C. J.

The motion for rehearing is overruled, except to grant the request to pass upon the cross-assignments of error.

The witness Yon Rosenberg swore to the acts of Dr. M. A. Taylor in connection with his location of the certificate, and stated that he claimed it. Even if the statement that Taylor claimed the certificate which he had in his possession and which he located upon the land was not admissible, we fail to see how it could have possibly injured appellee. If the acts of ownership in connection with the certificate did not show a claim to it, no language would. The testimony of Von Rosenberg was permissible.

A deed or other instrument may be shown to have existed by circumstantial evidence, and testimony not authorized by statute may 'be used in proving up the lost instrument. Crain v. Huntington, 81 Tex. 614, 17 S. W. 243. In the cited case the claim of the party to the land is given as a circumstance showing the existence of a deed. The circumstances in that case are no stronger in proving up a lost deed than the circumstances in this case.

The letter of Johns & Spence to Baines & Chrisman was properly admitted in evidence as tending to show a transfer of the certificate, and its destruction by fire. The evidence showed that the communication was sent by the parties to whom it was written to H. M. Fore. The cross-assignments are not sustained. Guffey v. Hooks, 47 Tex. Civ. App. 560, 106 S. W. 690.


text:
    JOHNSON v. SULLIVAN.
    (Court of Civil Appeals of Texas. Austin.
    Feb. 4, 1914.
    Rehearing Denied March 4, 1914.)
    1. Appeal and Error (§ 926) — Presumptions — Burden oe Proving Error.
    It is presumed that the trial court’s ruling was correct, so that appellant must show the contrary.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1279, 2809, 3729, 3730, 3735-3747; Dec. Dig. § 926.]
    2. Adverse Possession (§ 60) — Sueekhency oe Possession — Possession by Tenant.
    Defendant’s husband, before his death- in 1905, claimed the lot in controversy, and defendant claims title by warranty deed, dated September 7, 1906, and continues possession thereunder to the date of this suit, March 4, 1913, with payment of taxes for each consecutive year. In 1906 defendant’s tenant at will inclosed the lot and continuously used it adversely up to the time of suit. Held, that defendant had title to the lot by limitation.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 282-312, 323, 328; Dec. Dig. § 60.]
    3. Adverse Possession (§ 19) — Sueeioiency oe Possession — Inclosube oe Lot.
    The fact that a lot, claimed by adverse possession, was inclosed generally with other lots and not inclosed separately would not prevent it from being claimed by adverse possession.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 99-105; Dec. Dig. § 19.]
    Appeal from District Court, Tom Green County; J. W. Timmins, Judge.
    Suit by Dan Sullivan against Bertha Johnson. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    J. T. Thomson, of San Angelo, for appellant. James P. Dumas, of San Angelo, for appellee.

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

   RICE, J.

This suit was brought by appel-lee against appellant in trespass to try title for lot 18 in block 5, main town of San Angelo. Appellant relied for defense on a plea of not guilty, and the statute of five years’ limitation. The case was tried before the court without a jury, who rendered judgment in favor of appellee, from which judgment this appeal is prosecuted.

There are but two assignments of error which will be necessary to consider. The first relates to the ruling of the court on the admission of a deed offered in evidence by appellee, and the second assails the finding of the court holding that appellant’s plea of limitation was not supported by the evidence. On the trial appellee offered in evidence a deed from G. H. Sherwood to Bart J. Dewitt, signed by G. Schleicher, attorney in fact for G. H. Sherwood, but acknowledged by J. S. Schleicher. This was objected to on the ground that the acknowledgment was insufficient. The court, however, after an inspection of the deed, admitted it in evidence. There is nothing in the bill of exceptions negativing the fact that the deed may have been on record for a period of ten years before any adverse claim was asserted to the lot by appellant, which, if true, would authorize its admission, notwithstanding the defective acknowledgment.

The presumption of law is that the ruling of the court is correct, and it devolves upon appellant to show the contrary. Lindly v. Lindly, 102 Tex. 135, 113 S. W. 750; I. & G. N. R. R. Co. v. Smith (Sup.) 14 S. W. 642; McEachin Ency. Dig. vol. 1, pp. 747, 748. The bill' failing to negative the fact that the deed may have been on record for a sufficient period of time to authorize and warrant its admission in evidence under the act of 1907 passed by the Thirtieth Legislature (chapter 165, p. 308; R. S. 1911, art. 3700), it must be presumed that the ruling of the court was justified on this ground; for which reason the first assignment is overruled.

We have carefully examined the evidence, and have arrived at the conclusion that appellant’s third assignment, assailing the judgment on the ground that the court erred in failing to sustain her plea of limitation, is well taken. The suit was filed on the 4th of March, 1913; and the evidence shows that her husband, prior to his death in 1905, claimed the lot, and she asserts title thereto by warranty deed, duly recorded on the 7th of September, 1906, and continuous possession thereunder from said time to date of suit, with the payment of taxes for each consecutive year. It appears that the lot was inclosed some time in 1906 by the Colored Benevolent Association, who, under the evidence, must be regarded as appellant’s tenant at will, and was continuously used by it in such manner and for such purposes as would show an actual adverse use of the lot by it; for which reason we think the court erred, in holding that appellant had failed to show title by limitation. See Richards v. Smith, 67 Tex. 610, 4 S. W. 572; McDow v. Rabb, 56 Tex. 160; Angel on Limitation, 395, and notes.-

It was immaterial that the lot was not separately inclosed, since there was a general inclosure, even though other lots were embraced therein. Smith v. Kenney, 54 S. W. 801; Cunningham v. Mathews, 57 S. W. 1115. Nor was it material to show that the lot was actually occupied by appellant herself; the occupancy and use thereof by a tenant is sufficient.

In view of the disposition we have made of the case, it will be unnecessary to consider the remaining assignments. Believing that the court erred in failing to sustain appellant’s plea of limitation, it becomes our duty to reverse the judgment of the court below, and here render the same in her behalf, which is accordingly done.

Reversed and rendered.