text:
    NORTH TEXAS LUMBER CO. v. McWHORTER.
    (Court of Civil Appeals of Texas. Texarkana.
    April 10, 1913.
    Rehearing Denied April 17, 1913.)
    Logs and Logging (§ 3) — Conveyance of Standing Timber — Time fob Removal-Construction of Deed.
    A deed conveying all the mechantable pine timber, 12 inches at the stump, with warranty of title and right to enter, cut, and remove the timber, but providing that the right to remove shall be limited to two years from date, with the further agreement to extend the time to not exceeding five years, cannot be construed as conveying an interest in the land, giving the right'to remove timber after five years, but the title to timber not removed remains in the grantor.
    [Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3 ; Sales, Cent. Dig. § 591.]
    Appeal from District Court, Cass County; P. A. Turner, Judge.
    Trespass to try title by the North Texas Lumber Company against Mrs. N. H. Mfc-Whorter. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    The suit was brought by appellee in the form of trespass to try title and for the value of certain timber cut and removed from the land, and an injunction was asked for and granted restraining the appellant from further going upon and trespassing on the premises. The appellant, besides a plea of general denial and not guilty, set up ownership of the timber on the land by deed from appellee,- and averred that if by reason of the recitals in the deed it did not have the right at the present time to enter upon the premises, except upon payment of an additional and reasonable compensation for such right of entry, then it was ready to pay such compensation which the court, after hearing evidence on the subject, might determine, or, in the alternative, asked that the interest of the parties be partitioned and sold, and the proceeds of the sale be awarded to the parties as their interests might appear. The case was tried on an agreed statement of facts, and the court rendered judgment for the appellee. It was agreed that on July 23, 1902, the appellee was the owner of the land and executed and delivered to the Clark-Boice Lumber Company the following timber deed: “The State of Texas, County of Cass.. Know all men by these presents: That I, Mrs. N. H. McWhor-ter, of said county, and state, for and in consideration of the sum of $1,353.00 thirteen hundred and fifty-three and No/100 dollars, to me in hand paid by the Clark & Boice Lumber Company, of Dallas county, Texas, the receipt of which is hereby acknowledged, have bargained, sold and ’ conveyed, and do by these presents bargain, sell and convey to the said Clark & Boice Lumber Company all the merchantable pine saw timber measuring 12 inches and above at the stump, standing, being, and growing upon the following. described lands situated in Cass county, Texas, to wit: [Here follows description of three tracts of land making a total of 451 acres.] To have and to hold the above-described timber unto the said Clark & Boice Lumber Company, or their assigns forever, herein warranting and defending the title to the same together with the right to enter in and upon the above-described land, and to cut, fell and remove therefrom all the merchantable pine saw timber contained thereon from 12 inches at the stump and above standing, being and growing upon said described land, with the right of ingress and egress to, from and over said land for the purpose of cutting and removing said timber from said land. But the right to enter upon said land and to cut and remove said timber is limited to two years from date hereof, but I further agree that in the event said timber is not removed within two years to extend the time to not exceeding five years from date hereof, provided the said Clark & Boice Lumber Company will pay thirty (30) cents per acre per annum in advance on each tract of timber cut within two years, but in no event will the time to remove said timber be extended beyond five years from this date.” The deed was duly acknowledged and recorded. The 160 acres of the Wilson survey described in the deed is the only tract in controversy. Appellant by proper conveyance owns all the interest acquired through the deed by the Clark & Boice Lumber Company. Appellant during the year 1912 cut and removed from the land 30,000 feet of pine timber of the value of $45, the timber cut being over 12 inches in diameter at the stump.
    Glass, Estes, King & Burford, of Texarka-na, for appellant. Bartlett & Zadik, of Linden, and O’Neal & Allday, of Atlanta, for appellee.

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

   LEVY, J.

(after stating the facts as above). The two assignments present the one question of the right of appellant, under the timber deed in suit, to enter upon the land and cut and remove the timber therefrom after the lapse of five years from the date of the deed, without any contract or agreement of extension of time. Each party to the suit stands on the terms of the deed. A construction of the deed is involved. If the conveyance, from all the language of the instrument, manifests an intention, and has the legal effect, to' convey absolutely, as an interest in the land, the timber of the dimensions specified, then it must be said the case of Lodwick Lumber Co. v. Taylor, 100 Tex. 270, 98 S. W. 238, 123 Am. St. Rep. 803, would be applicable, and appellant should have judgment entered for it. But we do not think the conveyance here could properly be said to intend and have the legal effect to convey absolutely, as an interest in the land, the timber of the dimensions specified. The conveyance, taking it as a whole and ascertaining what the parties really intended, manifests, we think, an intention to sell and purchase all the timber of the dimensions specified as the purchaser might cut and remove from the premises within the time limit specified, and no more. The parties were dealing with the timber as personalty removable within a limited time. And thus the legal effect of the deed is to retain in the vendor the title to the timber on the land not cut and removed therefrom by the purchaser at the expiration of the contractual period of time. In this view the rule would be applicable as laid down in the following cases: Carter v. Clark & Boice Lumber Co., 149 S. W. 278; Development Co. v. Lumber Co., 139 S. W. 1015; Beauchamp v. Williams, 115 S. W. 130; Lancaster v. Roth, 155 S. W. 597 (recently decided by this court).

The many cases cited by appellee in her brief uphold such construction of this kind of deed, namely, that the purchaser acquires title to such timber only as is severed from the soil at the expiration of the time limit of the contractual period. This ruling is decisive of the appeal, and the judgment is affirmed.


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    HUDSON v. CHILDREE et al.
    (Court of Civil Appeals of Texas. Texarkana.
    March 27, 1913.)
    1. Judgment (§ 527) — Construction — Fraudulent Conveyance.
    A judgment in an action on a note, secured by a chattel mortgage, and to foreclose the mortgage, rendered for plaintiff for the amount of the note, involved a specific finding that the note secured was for a valid indebtedness and that no fraud was proved as to the indebtedness.
    -[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 970; Dec. Dig. § 527.] ■
    2. Fraudulent Conveyances ■(§ 27) — Giving Security.
    If the debt which is the subject of the security is a valid and subsisting debt and a bona fide transaction, evidenced by a note, then the fact of executing a mortgage intended by the parties as security is not sufficient to make the mortgage void as to creditors, especially where there had been an agreement in advance of the note for the security.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 66-71; Dec. Dig. § 27.] ,
    3. Fraudulent Conveyances (§ 271) — MokP-gage — Presumption.
    There is no presumption of law that a mortgage of property is made with fraudulent intent, if the mortgagor at the time is actually indebted to another.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 796-798, 821; Dec. Dig. § 271.] •
    4. Fraudulent Conveyances (§ 115) — Preferences.
    A debtor may prefer one creditor by giving security for a valid indebtedness, though it hinders and delays other creditors.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 370, 375-377; Dec. Dig. § 115.]
    5. Execution (§ 40) — Equity of Redemption.
    The equity of redemption in property mortgaged to secure a note is subject to levy and sale at the suit of other creditors.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 50, 88-94; Dec. Dig. § 40.]
    Appeal from District Court, Morris County; P. A. Turner, Judge.
    Action by John Hudson against S. C. Childree and others. From a judgment for plaintiff against Childree and that he take nothing against J. W. Patterson, one of the defendants, plaintiff appeals.
    Affirmed as to Childree, and reversed and rendered against Patterson.
    in February, 1910, the appellant agreed with S. C. Childree to lend him money, with the understanding at' the time that Childree was to secure the money loaned by a chattel mortgage on his crop. 'Beginning with the month of February, and on each succeeding month to September 3d, the appellant had advanced Childree money to the total amount of $95. On September 3, 1910, Childree executed and delivered to appellant his note for the sum of $100, due November 1st following, and at the same time executed a chattel mortgage on his crop of cotton and corn grown on 13 acres of land to secure the payment of the indebtedness. At the previous request of appellant Childree placed the chattel mortgage of record in the county clerk’s office on September 5, 1910. Childree was a tenant on the farm of K. E. Smith and was paying one-fourth of -the cotton raised as rent for the premises. Appellant was a son-in-law of Childree, but did not live with him. Childree was indebted by note to appel-lee Patterson; the note was due in 1907; and just prior to the execution of the chattel mortgage Patterson asked Childree for the payment of the same or its security, and Childree did not agree to secure the same. About the 1st of September or the last of August, 1910, appellee Patterson filed a suit on the note in the justice court against Chil-dree, obtained judgment on September 17th, and caused execution to be levied on two bales of cotton covered by the chattel mortgage to appellant. The two bales of cotton were sold under execution on October 17, 1910, and brought $122.08. The rent of one-fourth was paid by appellee Patterson to the landlord out of the proceeds of the sale, and the balance was applied by him on his judgment. Appellant thereafter sued Chil-dree on the note and to have foreclosed the chattel mortgage, and appellee for the value of the cotton converted by him. The court rendered judgment .for appellant against Childree for the amount of .the note and that appellant take nothing against J. W. Patterson.
    Henderson & Bolin, of Daingerfield, for appellant. Moore & Hart and P. A. Turner, all of Texarkana, for appellees.

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

   LEVY, J.

(after stating the facts as above). The assignment presents the point that appellant was entitled to have judgment against appellee Patterson for the value of-the cotton converted by him. The facts are admitted that appellee Patterson had seized and sold under execution two bales of cotton covered by a registered chattel mortgage to appellant, and appropriated the proceeds, less the rent, to his own benefit. And these facts authorized, it is not doubted, a recovery by appellant, unless, as argued by appel-lee, the note and mortgage to appellant were executed to hinder, delay, and defraud creditors. As the record is here, it cannot be said, from the findings of the court and the evidence, that the indebtedness and security therefor given to appellant are fraudulent and unenforceable against appellee Patterson.

The court entered a judgment for the amount of the note in favor of appellant against Childree, and this involves the specific finding by the court that the note secured was for a valid indebtedness and that no fraud was proved as to the indebtedness. And the evidence supports this conclusion of the court.

If the debt which is the subject of the security is a valid and subsisting debt and a bona fide transaction evidenced by a note, as found by the court, then the simple fact of executing a mortgage intended by the parties as security is not sufficient to make the mortgage void as to creditors.

There is no presumption of law that, a mortgage of property is made with fraudulent intent if the mortgagor at the time is actually indebted to another. There being a valid and subsisting debt and a mortgage intended by the parties as security, then the legal effect of such obligation is a valid security for a lawful purpose and enforceable against all claiming subsequently to the registered mortgage. The mortgage on its face shows and has the legal effect that it was given only as simple security for the debt, for it expressly provides that the excess, after paying the specified amount of the note, was to be paid over to the mortgagor.

The giving of the agreed security for the valid debt may have the effect of a preference between appellee and appellant as creditors, and to hinder and delay other creditors; but as said in Hardware Co. v. Kaufman & Runge, 77 Tex. 137, 8 S. W. 287: “It is settled in this court that, so far as the statute of frauds is concerned, this is legitimate and not fraudulent.”

The equity of redemption in the mortgage property being subject to levy and sale at the suit of other creditors, the excess after paying the secured debts was not placed beyond their reach. Besides, the fact is significant here that Childree agreed with appellant to give the mortgage at the inception of the indebtedness, and there is no suggestion in the evidence that such was not the agreement/

In view of the finding by the court, the appellant was entitled to have judgment against appellee Patterson for the value of the cotton, less the rent paid, and the judgment is reversed and here rendered for appellant against the appellee J. W. Patterson for the sum of §91.56 and costs of appeal. The judgment against the appellee Childree will be affirmed, and the costs of the courts below will be taxed generally against both appellees.


author: HODGES, J.

text:
    TEXAS & P. RY. CO. v. VILLAFUERTE.
    (Court of Civil Appeals of Texas. Texarkana.
    May 1, 1913.
    Rehearing Denied May 22, 1913.)
    1. Release (§ 59) — Fraud—Personal Injuries — Instructions.
    An instruction that if, before signing a release to defendant and receiving $150 therefor, defendant’s agent told plaintiff that if he did not sign he could not leave the hospital where he was confined, and that plaintiff could not read or write English and did not know the contents of the release, and defendant’s agents by words and conduct led plaintiff to believe, and he did believe, that unless he signed the release he could not leave the hospital, and defendant’s agent by fraud induced plaintiff to sign the release and receive $150, then it was not binding upon him, was not objectionable as making plaintiff’s ignorance of the contents of the release alone sufficient ground for avoidance.
    [Ed. Note. — For other cases, see Release, Cent. Dig. § 115; Dec. Dig. § 59.]
    2. Release (§ 17) — Fraud.
    Where plaintiff, a Mexican 24 years of age and unable to speak English, while in a hospital, was induced to sign a release for $150 by the statement of defendant’s agent, interpreted to him by a Mexican girl, that plaintiff would not be permitted to leave the hospital unless he signed the release, the jury were authorized to find that such statement, if made, amounted to a fraud which would avoid the release.
    [Ed. Note. — For other cases, see Release, Cent. Dig. § 32; Dec. Dig. § 17.]
    3. Master and Servant (§ 286) — Injuries to Servant — Railroads — Negligence — Question for Jury.
    In an action for injuries to a trackman by being throwh from a handcar, evidence held to require a submission to the jury of the question whether the jerking of the car and its rapid motion constituted actionable negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dee. Dig. § 286.]
    4. Appeal and Error (§ 742) — Assignments —Form—Propositions.
    Assignments of error which are not propositions in themselves, and are not followed by propositions, will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    Appeal from District Court, Harrison County; M. P. McGee, Special Judge.
    Action by Paulino Villafuerte against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    F. H. Prendergast, of Marshall, for appellant. Lane & La.ne and !M. B. Parchman, all of Marshall, for appellee.

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

   HODGES, J.

In July, 1912, appellee was employed by the appellant as a section hand, and while riding on a hand car en route to his work he fell and received personal injuries for which he sued and recovered a judgment for $500.

The petition charges negligence generally, without specifying any particular acts. Among other defenses the appellant pleaded a settlement and a written release executed by appellee before suit was filed. In a supplemental petition the appellee alleged that he signed this release without knowing its contents or what it was for; that he was told if he did not sign it he could not leave the hospital. The evidence shows that after receiving his injuries the appellee was sent to the railway hospital, and while there received from the appellant’s claim agent $150 and signed the written release relied on as a defense.

The court instructed the jury as follows: “You are instructed that if the jury believe from the, evidence that, before the signing of the release and the receipt of the sum of $150 by plaintiff:, the agent of defendant told plaintiff that if he did not sign said paper he (plaintiff) could not leave the hospital, and that plaintiff could not read nor write the English language, and did not know the contents of said release, and that the agents of defendant, by their words and conduct, led plaintiff to believe, and plaintiff did believe', that unless he signed said release he could not leave said hospital, and that the agent's of defendant did by fraud induce plaintiff to sign said release and receive said $150, then you are charged that the signing of said release and the receipt of said $150 by plaintiff would not be binding on plaintiff.” It is claimed that this charge was erroneous: (1) Because under the evidence the plaintiff would be bound by the settlement and the receipt of the $150, although he may not have understood the release that he signed; and (2) because the charge implied that some fraud or other inducement which caused the plaintiff to sign the release was used besides the statement that he could not leave the hospital.

The charge does not make ignorance alone of the contents of the release sufficient ground for avoidance, but requires the jury to also find that by the words and conduct of the agent of defendant the plaintiff was induced to believe that he could not leave the hospital unless he did sign it, and that some fraud was used to procure his signature. The appellee testified that he was a Mexican about 24 years of age' and could not speak English; that he had been in the hospital a short time when he was visited by the appellant’s claim agent, in company with a Mexican girl, who acted as interpreter; that he was called from, his room and told through the interpreter to sign the paper, and that if he did not sign it they would not let him go out of the hospital; that no one told him what the paper contained, nor explained it to him, and he did not know its contents; that he was a stranger and knew no one at the hospital, and he signed the paper because they obliged .him to do so; that he had no object in signing it; they just laid the $150 on the table and told him to sign the paper. He further testified that he had been abused by one of the doctors at the hospital, and that he took the money because the girl who acted as interpreter told him to take it. The court charged the jury in that connection as follows: “But on the other hand, if plaintiff accepted the $150 paid him at the hospital, and appropriated it to his own use, knowing that the defendant had paid him the money to settle any claim he might have against the defendant for damages, then the release he signed would be binding on him and he would not be entitled to recover.”

The statements of the appellee regarding the compulsion which he says was practiced in order to secure his signature to the release were disputed by the testimony of the claim agent and of the girl who acted as interpreter. This conflict, however, did not make it improper for the court to charge upon that phase of the case presented by the version of the appellee. If the facts testified to by him are true, then the representation that he would not be permitted to leave ■ the hospital unless he signed the release might be regarded by the jury as amounting to a fraud. There was no error in giving fhe charge complained of.

As to how the accident occurred, the appellee testified, in substance, that he was employed by the section foreman on the 5th of July, and was put on the hand car, compelled to stand on the front end, and ret quired to pump the car to make it move; that several other section men. were assisting in propelling the car; that there was a big keg of spikes in his way, and after the car was started they gave it a sudden jerk which caused him to move his feet, and he fell to the ground; that the reason he fell was he did not have room enough where he was standing; that when the car was in motion the keg of spikes near his feet was rocking to and fro, and in trying to get out of its way so it would not catch his feet he lost his balance and fell; that the rocking of the keg of spikes to and fro was caused by the rapid motion of the hand car; that the foreman told him to pum.p on the lever and make the car go fast. Parker, the section foreman, testified that he had the keg of spikes put on the hand car; that it was not usual to have spikes in such a place; that there was nothing unusual about the things on the car except the spikes. It was further shown that the appellee had his back to the direction in which the car was traveling, while all of the other operatives were facing that direction. The evidence was sufficient to authorize the court to submit to the jury the questions as to whether or not the jerking of the ear and its rapid motion were acts of negligence. The charges were sp worded that the jury was fully warranted in taking into consideration all the circumstances attending the situation.

The sixth, seventh, and eighth assignments of error complain of the refusal of the court to give certain special charges. These assignments are not propositions within themselves and are not followed by any as is required by the rules. It cannot be said, as a matter of law, that the evidence is not sufficient to support the verdict. While there is in the record an apparent conflict in the statements of the appellee regarding the coercion brought to bear on him to get his signature to the release, the jury had a right to consider his testimony in the light of the appellee’s condition and his ignorance of our language.

The judgment is affirmed.


author: JENKINS, J.

text:
    COOPER GROCERY CO. v. BLUME et al.
    (Court of Civil Appeals of Texas. Austin.
    May 7, 1913.)
    1. Appeal and Error (§ 285) — New Trial-Exceptions to Petition.
    Under Rev. Civ. St. 1911, art. 2062, providing that, where- a ruling appears, otherwise of record no bill of exceptions shall be necessary to preserve an exception thereto, it was not necessary to file a motion for a new trial where the only error complained of was in the court’s ruling on exceptions to plaintiff’s supplemental petition.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1684-1672; Dec. Dig. § 285.]
    2. Bankruptcy (§ 435) — Discharge—Pleading — Supplemental Petition.
    Where plaintiff sued in debt on notes and an open account, and defendant pleaded a discharge in bankruptcy, plaintiff could plead by supplemental petition that the goods had been obtained by false pretenses, and that the debt was therefore not discharged.
    [Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. §§ 824-839; Dec. Dig. § 435.]
    3. Pleading (§ 180) — Supplemental Petition-Discharge in Bankruptcy.
    Plaintiff sued in debt on notes and an open account, and, on defendant’s pleading a discharge in bankruptcy, plaintiff by supplemental petition alleged that the goods had been obtained by false pretenses, and prayed judgment as in its original petition. Held that, since plaintiff was entitled to waive the fraud and sue on the debt, its election to do so by supplemental petition did not change the nature of the action to one of fraud or deceit, and hence the supplemental petition was not objectionable as alleging a different cause of action than that originally pleaded.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 358-384; Dec. Dig. § 180.]
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
    Action by the Cooper Grocery Company against E. G. Blume and others. Judgment for' defendants, and plaintiff appeals.
    Reversed and remanded.
    Davis & Cocke, of Waco, for appellant. S. E. Stratton, of Waco, for appellees.

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

   JENKINS, J.

This is a suit for debt, evidenced by notes executed by appellees in favor of appellant, and upon an open account for goods sold. Appellees plead discharge in bankruptcy. Appellant filed a supplemental petition, alleging that the debt was for goods obtained by' fraudulent representations, and therefore was not affected by the discharge in bankruptcy, and prayed for judgment as in its original petition. Appel-lees excepted to said supplemental petition for the reason that the matters therein contained were inconsistent with the cause of action alleged in plaintiff’s petition in that said original petition declares and sues upon certain promissory notes and a small account for goods, wares, and merchandise sold and delivered, and said supplemental petition attempts to recover herein on an alleged fraud of defendants, and that the allegations of fraud in said supplemental petition are inconsistent with the allegation of contract in the original petition. Second. That, this being a suit upon contract, plaintiff is es-topped from setting up fraud. Third. That said supplemental petition and said original petition, when taken together, do not allege a cause of action for obtaining goods under false pretenses. The court sustained all of these exceptions. To which appellant excepted, as appears in the judgment.

1. Appellee objects to the consideration of all of appellant’s assignments of error for. the reason that no motion for a new trial was filed herein, and the assignments of error do not refer to any motion for a new trial. These objections would seem to be well taken under rules 24 and 25 for the government of the Courts of Civil Appeals (142 S. W. xii), and rule 71a for the government of district courts (145 S. W. vii). However, we overrule said objections on authority of the decision of the -Supreme Court in Railway Co. v. Beaseley, 155 S. W. 187, wherein it is held that said rules are in violation of the statute in so far as they require that the rulings of the court in giving or refusing charges should be set out in the motion for new trial. Article 2062, R. S., upon which the above opinion is based, reads as follows: “Where the ruling or other action of the court áppears otherwise of record, no bill of exceptions shall be necessary to reserve an exception thereto.” The judgment of the court in sustaining appellees’ exceptions in this case, and appellant’s exception thereto, appears from the record in the judgment entered thereon. If, as appears from the ruling of the Supreme Court in the case above cited, “it is not necessary to embrace in the motion for rehearing in the trial court any action or ruling of that court in giving or refusing charges, as mentioned in article 2061,” it would seem, for tlie same reason that it is not necessary to file a motion for a new trial where the only error complained of is the ruling of the court on exceptions (article 2062, R. S.).

2. Under appellant’s assignments of error herein and propositions thereunder, we hold that the court committed error in sustaining appellee’s exceptions, as hereinbefore set out. This was an action for debt, as shown by appellant’s original petition. Appellee replied thereto that the debt had been discharged hy proceedings in bankruptcy. A supplemental petition was the proper place in which to reply to this allegation. In its supplemental petition appellant replied that this debt was not discharged by bankruptcy, for the reason that it was for goods obtained un'der false pretenses. In a suit to recover goods conveyed to a trustee, fraud of the vendee in procuring the sale of the goods may be set up in a supplemental petition in replication to the trustee’s answer that sale by plaintiff passed title to his vendee, and that the trust deed passed title from the vendee to him. Harrison v. Hawley, 7 Tex. Civ. App. 311, 26 S. W. 765; Railway v. White, 32 S. W. 324. Grabenheimer v. Blum, 63 Tex. 369, 373, was a suit upon a debt. Defendant replied that the debt had been compromised and fully paid in accordance with the terms of said compromise. Plaintiffs in supplemental petition admitted the compromise and the payment of the amount agreed on thereunder, but alleged that said promise was obtained by fraudulent representations. The defendant specially excepted to the supplemental petition for the reason that “it was not competent for plaintiff to set up in this suit, in a supplemental petition, a new cause of action as damages for fraud. The pleading referred to is not obnoxious to the objection that it set up as by amendment a new and distinct cause of action from that relied on in the original petition ; it was a reply — a replication, it would be termed in common-law parlance — to the defendant’s answer; and pertinent to the phase of the case thus existing under the development of the pleadings by the defendant, and that required to meet it on the part of the plaintiffs, they prayed, as they -well might have done, for the relief appropriate to their pleadings as they then stood.”

We are cited by appellees to the case of Strauch v. Flynn, 108 Minn. 313, 122 N. W. 320, 22 Am. Bankr. Rep. 246, in which it was held that the new matter in reply was inconsistent with the allegations in the original petition, and therefore should be stricken out. This decision was governed by the statute of Minnesota, which is altogether different from our statute on pleading.

3. The only remaining question for our decision is as to whether or not the al- ■ legations of plaintiff’s supplemental petition were sufficient, if true, to prevent the discharge in bankruptcy being a bar to plaintiff’s cause of action. The seventeenth section of the bankruptcy act contains the following : “Debts Not Affected by a Discharge. A discharge in bankruptcy shall release a bankrupt from all his provable debts, except such as * * * are liabilities for obtaining property by false pretenses or false representations.” Act July 1, 1898, c. 541, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3428). In Packer v. Whittier, 91 Fed. 511, 33 C. C. A. 658, plaintiff sued and obtained judgment upon a debt. Defendant was afterwards discharged in bankruptcy; in an action on this judgment, defendant pleaded his discharge in bankruptcy. The plaintiff alleged: “That said debt represented by said judgment was created by the fraud of the judgment debtor, and is not canceled by said defendant’s discharge in bankruptcy.” It was held that plaintiff was entitled to prove this allegation.

It is the contention of appellees that the supplemental petition alleged a cause of action upon fraud or deceit. Where a fraud has been committed in the purchase of property, a party may waive the fraud and sue upon the debt in accordance with the contract, or he may repudiate the contract and sue for the damages incurred by reason of such fraud. In the former case the measure of his recovery would be the contract price; in the latter case it would be the value of the goods, which might be more or less than the contract price. In the instant case the appellant sued upon its debt. It did not by its supplemental petition change the nature of its action to one of fraud or deceit, but only alleged such fraud in reply to appel-lees’ plea of their discharge in bankruptcy in bar of plaintiff’s cause of action. Appellant, after setting up in said supplemental petition the particulars of the alleged fraudulent representations in obtaining said goods, concluded with the following prayer: “Wherefore plaintiff prays as in its original petition for judgment for the amount of its debt, principal, interest, and attorney’s fees, and it will ever pray,” etc.

For the error of the court in sustaining ap-pellee’s said exceptions, this case is reversed and remanded for a new trial.

Reversed and remanded.


author: RICE, J.

text:
    WELLS FARGO & CO. EXPRESS v. HENNESSY.
    (Court of Civil Appeals of Texas. Austin.
    April 16, 1913.
    Rehearing Denied May 21, 1913.)
    1. Carriers (§ 47) — Furnishing Cabs — Station Agents — Authority.
    A station agent has authority to bind the carrier by contract to furnish a particular kind of car for the transportation of fowls.
    [Ed. Note. — For other cases, see Carriers. Cent. Dig. §§ 107, 108, 134-141, 204; Dec. Dig. § 47.]

      2. PRINCIPAL AND AGENT (§ 116) — AUTHORITY op Agent — Private Instructions.
    One dealing with the agent of an. express company is not bound by secret instructions given him by the company.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 377, 377%; Dec. Dig. § 116.]
    3. Appeal and Error (§ 1058) — Harmless Error — Exclusion op Evidence.
    Where two witnesses were permitted to testify fully as to a station agent’s want of authority to contract to furnish a compartment car for the shipment of fowls, any error in the court’s refusal to permit the agent to testify that he had no such authority was cured.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200 — 4204, 4206; Dec. Dig. § 1058.]
    4. Carriers (.§ 47) — Special Cars — Contract to Furnish — Authority op Agent-Instructions.
    An instruction that defendant express company’s local agent had no authority to contract to furnish a compartment car for the transportation of fowls was properly refused, since the agent, acting within the apparent scope of his authority, could bind the express company to furnish a special car, irrespective of what had been its usual course of business or private instructions to its employés.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 107, 108, 134-141, 204; Dec. Dig. § 47.]
    Appeal from Llano County Court; A. H. Wilbern, Judge.
    Action by M. C. Hennessy. against the Wells Fargo & Co. Express. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and W. B. Garrett, of Austin, for appellant. F. J. Johnson, of Llano, .for ap-pellee.

      For other eases 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

   RICE, J.

In December, 1911, appellee lived at Llano, and was engaged in the business of buying and shipping poultry. About the middle of said month he contemplated shipping a car load of turkeys from Llano to New Orleans for the Christmas trade, but before buying turkeys he went to the express company, for the purpose of procuring a poultry car in which to ship them. According to his testimony he wanted a poultry ear with compartments built in it for shipping turkeys, and so advised the agent, who agreed to furnish said car, in accordance with his request, for the purpose stated. Appellee further testified that he wanted this car in order to save freight for- coops. Upon the strength of this contract, appellee purchased 1,062 turkeys for shipment to New Orleans. His testimony as to what occurred between himself and the agent was fully corroborated by the witness Wilbern. The agent of appellant, however, denied making such contract, and testified that he had no authority so to do, but only agreed to furnish a regulation car, which he did. When the ear arrived, it was found that it was not a compartment car, such as ordered, but that it only contained a few empty coops. Appellee then requested the privilege of fitting compartments in the ear, but this was denied him; whereupon he was compelled to buy material and make the coops for the shipment of the turkeys, which he did, and thereafter brought this suit in the justice’s court for the cost of such material and making 75 coops at $1.15 each, amounting to $86.25, and also for excessive expressage paid on the weight of said coops, amounting to the further sum of $95.80, aggregating $182.05.

After a general demurrer and general denial appellant specially denied that its agent had any authority to make the contract appellee claimed, but that it only undertook to furnish a suitable car for the shipment of plaintiff’s turkeys, and such as is generally used by it for such purpose.

Appellee recovered judgment in the justice’s court; from which an appeal was taken to the county court. A jury trial in said last-named court resulted in favor of appel-lee for the full sum sued for, from which this appeal is prosecuted.

It is earnestly insisted on the part of appellant that its local agent was not authorized to make a contract for furnishing a car with compartments, such as appellee claimed he did. The rule with reference to the acts of an agent within' the apparent scope of his authority seems to be well ■ stated in Hutchinson on Carriers, 267-269, as follows: “Unless special reasons, known to the shipper, restrict the general powers of the agent, the public have the right to assume that the agents of the carriers, whether corporation or not,’ and whether such agents be local or general, have the right to bind such carriers by contracts with their employés in the particular line of business in which they are employed, or are represented or held out as being employed, and within the scope of the business of their principals.”

It has frequently been held in Texas that a station agent has authority to bind his company for a contract to furnish cars. See Easton v. Dudley, 78 Tex. 238, 14 S. W. 583; Austin & N. W. R. Co. v. Slator, 7 Tex. Civ. App. 344, 26 S. W. 233; McCarty v. Gulf, Colorado & Santa Fe Ry. Co., 79 Tex. 37, 15 S. W. 164; Pecos, N. T. Ry. Co. v. Bishop et al., 154 S. W. 305; G., C. & S. F. Ry. Co. v. Hume, 87 Tex. 211, 27 S. W. 110. With reference to the station agent’s authority, it is said in 1 Elliott on Railways, § 303, p. 428, that his general authority being established it has been decided that he would be held to possess authority to bind the company by a contract to furnish cars by a certain day. See, also, as to the right of an agent to bind his principal, when .acting within the apparent scope of his authority, 31 Cyc. 1331 et seq.

By the fifth assignment it is urged that the court erred by refusing to permit appellant to prove by the witness Carter, its local agent, that he had no authority to contract with plaintiff, Hennessy, for the compartment car for the shipment of the turkeys, and that he was not authorized to bind it to furnish such car. Evidence offered to this effect was excluded. It is immaterial as to what this witness would have testified relative to his private instructions from the company, because appellee could not be bound by such secret instructions. But, apart from this, the record shows that two other witnesses were permitted to and did testify fully as to the want of his authority in this respect, as claimed by appellant, for which reason, if no other, said ruling was harmless.

The court did not err in refusing to give appellant’s special charge to the effect that its local agent would not be authorized to enter into a contract that wopld be binding on defendant to furnish a car for the transportation of property by express, different in character from the cars used by such company in the conduct of its business as an express company in this state. This charge was properly refused. An express company is a common carrier of goods which it receives and undertakes to transport. 6 Cyc. 369, and note. The local agent, acting within the apparent scope of his authority, could bind the company to furnish the special car ordered, irrespective of what may have been its usual course of business or the private instructions to its employes in this respect, as indicated by the authorities above referred to, provided the shipper had no knowledge of such alleged want of authority; and the evidence in this case is ample that appellee had no such knowledge.

The remaining assignments have been duly considered, and are regarded as not well taken.

We think the facts of this case sustain the judgment, of the court below, and it is therefore affirmed.

Affirmed.


text:
    DOBBS v. WHITFIELD et al.
    (Court of Civil Appeals of Texas. Texarkana.
    May 1, 1913.)
    Chattel Mortgages (§ 176) — Conveyance by Mortgagee — Evidence of Subsequent Retaking — Admissibility.
    Where it appeared that a chattel mortgagee had sold the property under the mortgage to one who had been in partnership with the mortgagor, evidence that thereafter he had to take possession of it after its abandonment by the buyer in order to protect it from a landlord’s lien is not admissible in an action for the conversion based upon the original taking, and sale.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 335, 337-339; Dee. Dig. § 176.]
    Appeal from District Court, Harrison County; H. T. ■ Lyttleton, Judge.
    Action by J. R. Whitfield and another against N. J. Dobbs. Judgment for the plaintiffs in the District Court upon appeal from a Justice Court, and the defendant appeals.
    Affirmed.
    P. M. Young and M. P. McGee, both of Marshall, for appellant. Lane &. .Lane, of Marshall, for appellees.

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

   HODGES, J.

The appellees, J. R. Whitfield and wife, recovered a judgment against the appellant, Dobbs, in the justice court of Harrison county for the sum of $47.50. On appeal by Dobbs to the district court appel-lees again recovered judgment for the same amount. The facts disclosed by the record show that the suit is based upon’ a claim that Dobbs converted to his own use some furniture belonging to the appellees but upon which Dobbs had a mortgage to secure the payment of the purchase money. Mrs. Whitfield testified that she alone purchased the property; that she paid $10 in cash at the time, and agreed to pay. the remainder in monthly installments till the whole amount of the purchase price was satisfied. She used the furniture for the purpose of furnishing and conducting a rooming house. Her aunt, Mrs. Ray, became her partner in that business. After carrying on the business for some time, they disagreed and dissolved their partnership. The furniture was then left in the care of Mrs. Ray with the understanding that she was to complete the payments that accrued thereafter. Up to that time Mrs. Whitfield had paid $95. Mrs. Whitfield denies that she sold the property to Mrs. Ray, or relinquished any portion of her title to the same. Upon that'issue, however, her testimony is disputed; but the jury decided the conflict in her favor.

The first and second assignments of error complain of the refusal of the court to give two differently worded peremptory instructions directing a verdict for the defendant in the suit. The proposition upon which these assignments 'are baseá is as follows: “Where personal property is left by one member of a firm in the control, possession, and management of the other, and the party in possession abandons same, the mortgagor has the right to lawfully take possession and preserve his security.” It is not contended that the general charge of the court did not fairly submit the issues raised by the pleadings and the evidence. The proposition above quoted shows that the demand for the peremptory instructions was based upon the theory that Mrs. Ray was a partner with • Mrs. Whitfield in the ownership of the furniture, and that Mrs. Ray had abandoned the furniture, and therefore that Dobbs, the creditor, had a right to take possession of it for the purpose of preserving his security. However correct that proposition may be as a matter of law, it is not applicable to the facts as found by tbe jury. It is disputed as to whether or not Mrs. Bay had any interest in the furniture; Mrs. Whitfield claiming that she had none, and Dobbs claiming that she had a half interest. The evidence shows that, after Mrs. Whitfield agreed that Mrs. Ray should finish the payment, the latter failed to carry out her agreement, and Dobbs asserted his right to the property and sold it to Mrs. Ray. He claims that he did this, with Mrs. Whitfield’s consent. In this he is contradicted, and the jury evidently did not accept his version.

The third assignment of error complains of the refusal of the court to permit Dobbs to testify that he finally took possession of the furniture because it was abandoned by Mrs. Ray and'the party to whom she had sold it, and that he was compelled to do this in order to protect his security from a landlord’s lien which was then about to be enforced against it for.rents due from those who had it in possession. This testimony might have been admissible had it not also been shown by Dobbs’ own testimony that previous to this time he sold the furniture to Mrs. Ray. His conversion may legally be said to date from that transaction. Hence what he did thereafter in’ taking possession of the furniture would be no defense if he was guilty of a wrong in the first instance.

Under the facts as presented we find no error that would justify a reversal of the judgment, and it is, accordingly, affirmed.


text:
    GENERAL BONDING & CASUALTY INS. CO. v. BECKVILLE INDEPENDENT SCHOOL DIST. et al.
    (Court of Civil Appeals of Texas. Texarkana.
    April 22, 1913.
    Rehearing Denied May 1, 1913.)
    1. Principal and Surety (§ 101) — Discharge of Surety — Alteration of Contract.
    Where the terms of a contract, the performance of which is guaranteed by a surety, are materially altered after its execution, the surety is released unless he consents to the change.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 169-180; Dec. Dig. § 101.]
    2. Principal and Surety (§ 159) — Discharge of Surety — Burden of Proof.
    A surety, re[ying on the defense of .alteration of contract, has the burden of proving it.
    [Ed. Note. — For. other cases, see Principal and Surety, Cent. Dig. §§ 428-435; Dec. Dig. § 159.]
    3. Principal and Surety (§ 100) — Discharge of Surety — Alteration of Contract.
    As respects a surety on a building contractor’s bond, a provision- of a contract for the construction of a schoolhouse that a supervising architect be employed was not altered by a member of the school board, who was a practical contractor, though not a professional architect, agreeing with the other members to act as such supervisor.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 162-165; Dec. Dig. § 100.]
    4. Principal and Surety (§ 100) — Alteration of Contract — Verbal Agreement.
    Where, in a building contract, there is nothing making it binding on the owner to employ a certain person, named by inference as the supervising architect, a verbal agreement that such person is not to be so employed, even if made without the consent of the surety on the contractor’s bond, is not sufficient to release the surety.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 162-165; Dec. Dig. § 100.]
    5. Principal and Agent (§ 177) — Notice —Alteration of Contract — Surety.
    Where, in the construction of a schoolhouse, the surety company signing- the contractor’s bond employed a member of the school board to procure the bond, which he did, and for which he was paid his commission, an alteration of the contract, assented to by the board at a time when the member was agent and before the signing of the bond by the company, did not release the surety, as notice to thei member was notice to the company.
    TEd. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 670-679; Dec. Dig. § 177

    Appeal from District Court, Panola County; W. C. Buford, Judge.
    Action by the Beckville Independent School District and others against the General Bonding & Casualty Insurance Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    H. N. Nelson, of Carthage, and W. M." Nold, of Dallas, for appellant. T. P. Young and Cary Abney, both of Marshall, for ap-pellees.

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

   HODGES, J.

On the 31st day of August, 1912, the Beckville Independent School District filed this suit against J. A. Heermans and the General Bonding & Casualty Insurance Company on a contractor’s bond, seeking to recover the sum of $2,500 as damages. The petition alleges that in July, 1911, Heer-mans entered into a written contract with the plaintiff to furnish all the material and construct in ■ the town of Beckville a two-story brick school building; the work to be finished within 4 months and 20 days, or before December 21, 1911. The house was to be built according to plans and specifications prepared and furnished by A. O. Watson, an architect. The consideration to be paid was $5,850. The contract provided that Heermans should give a bond in the sum of $2,500, conditioned for the completion of the building in accordance with his contract ; and the plans and specifications were made a part thereof. It is further alleged that the bond was executed by Heermans with the General Bonding & Casualty Insurance Company as surety, and was accepted and approved by the plaintiff’s board of trustees; that Heermans entered upon the performance of his contract, but failed to complete the building according to its terms ; that he had received of the consideration agreed upon the sum of $5,767.90, all of which is set out in detail. Copies of the contract and the specifications are attached as exhibits to the petition. It is also alleged that, by reason of the failure of Heer-mans to complete the building and perform his contract, the plaintiff had been damaged in the amount sued for, and for which it asked judgment against both Heermans and the bonding company.

On September 23, 1912, the bonding company filed its .amended original answer containing general and special exceptions and a general denial. It was also, specially pleaded that this defendant was only a surety on the bond, and that the plaintiff had in violation thereof paid Heermans more than SO per cent, of the purchase price without the surety’s consent; that the building contract had been materially changed after its execution, without defendant’s consent, in that Heermans was given more time for the completion of the building; that the contract under which Heermans undertook to erect the building was another and different contract from that to which the defendant had become a party. To this answer the appellees replied by a lengthy supplemental petition, which, after a general denial of all the facts set out by the bonding company in its original answer, pleaded certain provisions of the contract which authorized the school board in its discretion to pay out more than SO per cent, of the contract price. It was further alleged that the bond was executed by the bonding company with'full knowledge on its part that the following clause, “in the estimation of the supervising architect,” was omitted, and that the bonding company was informed and knew at the time the bond was executed that the plaintiff and the defendant Heer-mans had agreed to dispense with the services of a supervising architect; that the bond was written after said agreement was, made. The bonding company filed a supplemental answer alleging that, if such alterations were made in the original contract, it was done without its knowledge or consent, and also denying that notice to Nesbitt, a member of the board of trustees of the school district, was notice to it. J. A. Heer-mans answered by a general denial and adopted the answer of the bonding company. The verdict was rendered against Heermans for $2,830.30, and against the bonding company for $2,500, the full amount of the bond. The bonding company alone has appealed.

The first error assigned is based upon the refusal of the court to give a peremptory instruction directing a verdict in favof of the bonding company. That assignment is based upon the following proposition: “The undisputed evidence conclusively showing that the written building contract on which the bond was predicated had been materially changed and departed from by dispensing with the architect’s supervision of the work, and it not appearing that the surety on the bond consented to such change, the court should have instructed a verdict for the defendant surety.” There appears to be no controversy in this appeal about the truth of the material facts alleged in the appel-lee’s original petition, and no question is made of the sufficiency of the evidence as to the damages sustained to support the judgment recovered. Practically the only defense is that embraced in the proposition above stated. The building contract with Heermans is dated July 31, 1911, and the bond sued on is dated August 2, 1911. The specifications prepared by the architect were made a part of the building contract, and that contract is referred to and made a part of the bond sued on. The contract with Heermans contains the following provision: “That said contractor hereby agrees to furnish to the said owner, within a reasonable time, a good and sufficient bond in the sum of $2,500, payable to John A. Crawford, president of the board of trustees of Beck-ville school corporation, ‘an independent school district incorporated for free school purposes only,’ or his successors in office, for the use and benefit of said Beckville school corporation, conditioned that the said contractor shall well and truly comply, in the estimation of the supervising architect, with all the conditions and perform all the undertakings in this contract specified; and, in default of the execution and approval of said bond, this contract shall be of no force or effect.”

The general rule is that, when the terms of the contract, the performance of which is guaranteed by a surety, are materially altered after its execution, the surety is released unless he consents to the change. But a surety relying upon that defense has the burden of proving it.

The first question to be considered is, Do the facts justify the contention that any material change, or any change at all, was made in this building contract after the execution of the bond by the surety? Neither the building contract nor the specifications expressly stipulate that Watson, or any particular person, was to be employed to supervise the construction of the building. It is only by inference from some of the requirements in the specifications that it can be said that such employment was contemplated.

But, if it should be held that a supervisor was to be employed, the testimony shows that O. A. Barron, a member of the school board, did by agreement with the other members of the board give his personal supervision to the work. While he disclaimed being a professional architect, yet he was a practical contractor and builder, and was evidently regarded by the parties as competent to perform those services. Whether he was a professional architect or not is immaterial, if he was selected to supervise the work and was agreeable to the contractor and the board of trustees.

There being nothing in the contract binding the board to employ Watson, a verbal understanding that he was not to be so employed did ñot constitute a material alteration sufficient to release the surety, even if made without its consent. It appears from the evidence that Watson drew the plans and specifications of the building; and the understanding between him and the members of the school board was that his compensation should be 3y2 per cent, of the contract price for the plans and specifications alone; but, if he personally supervised the construction of the building, he was to receive 1% per cent, additional. But, assuming that this agreement amounted to á material change in the building contract, it seems to have been made before the appellant signed the bond. Roberts, one of the trustees, testified as follows; “We did not have a supervising architect on the work down there; I could not say that there was; we discussed that among ourselves at the board; no, let me go a little further back; when we accepted these plans from Mr. Watson he said he would submit plans, sell us the plans, and supervise the work for 6 per cent., or he would sell us the plans without supervision for 3% per cent., so we accepted the 3y2 per cent, proposition to buy the plans, and we discussed the matter ourselves of having Mr. Barron, one of the members of the board who was a carpenter; we thought we could get along with his services when they were needed. Mr. Heermans was present when the board was discussing it; I suppose he agreed to it.”

It seems that the board merely agreed to take Watson’s plans without his supervision, and to use the services of one of their number, C. A. Barron, who was an experienced carpenter and builder, to superintend the construction. This is. the extent of the understanding between Heermans and the school board at the time this bond was made. Nesbitt, a member of the school board, acted as appellant’s agent in securing Heermans’ application for appellant’s suretyship on the bond. The agency of Nesbitt was procured by the appellant with full knowledge on its part that he was a member of the school board, and he was requested in advance to procure the application of Heermans in the event the contract was let to him. Nesbitt collected from Heermans the sum of $29 as the premium due appellant for making the bond, and from that he deducted his commission. In conducting the negotiations with Heermans for appellant’s signature to the bond, Nesbitt was engaged in a business with' which the school board at the time had no concern. It was Heer-mans’ duty, according to the terms of his contract, to present to the board for its approval a good and sufficient bond acceptable to it as a condition precedent to the beginning of their contract relations. The fact that Nesbitt was a member of the school board did not affect his power to represent the appellant in dealing with Heermans about a matter which concerned them alone. The school board had nothing to do with the bond till it was made and presented for its approval.

The record shows that Nesbitt was appointed agent in April, 1911. The contract was made with Heermans during the latter part of the following July. From this it appears that, at the time this contract with Heermans was made and the alleged alterations agreed upon, Nesbitt was the agent of the appellant. He testified that he had been specially requested by appellant’s officers at Dallas to secure this particular application; that after the building contract was signed he solicited Heermans’ application, secured it, and sent it to the office of the bonding company at Dallas. He also sent a copy of the building contract, but did not send the specifications. He further testified that the bond itself was prepared in the office of the bonding company at Dallas. If it can be said that any material changes had been made in the provisions of the building contract at the time of its execution by Heer-mans and the school board, it is clear that such modifications were known to Nesbitt. He testified that he knew all about the agreement to dispense with the services of Watson when he sent in this application for Heermans. In dealing with his principal it was Nesbitt’s duty to fully inform it of all the material terms and conditions pertaining to the contract. The law will charge the principal with that notice, in a case like the present, whether it was actually received or not. Fire Ass’n of Philadelphia v. La Grange & Lockhart Compress Co., 50 Tex. Civ. App. 172, 109 S. E. 1134; Wright v. Hooker, 55 Tex. Civ. App. 47, 118 S. W. 765; 31 Cyc. pp. 1592, 1593, and notes. It seems that the appellant executed this contract of suretyship without any actual knowledge of the contents of the specifications, and could not have been influenced by any special provision contained in them. It is not claimed • that any fraud or concealment was practiced by the agent, or any one, in procuring appellant’s signature to the bond; nor is there any evidence showing affirmatively that appellant’s general officers were not in fact aware of the understanding that no supervising architect was to be employed. The evidence does not support the charge that other alterations were made in the contract.

The judgment is affirmed.


author: TALIAFERRO, J.

text:
    CRAWFORD v. HALE et al.
    (Court of Civil Appeals of Texas. San Antonio.
    April 23, 1913.)
    Appeal from District Court, Frio County; J. F. Mullally, Judge.
    Action by Oscar Crawford against J. C. Piale and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Ball & Seeligson and McFarland & Lewright, all of San Antonio, and Mason Maney, of Pear-sall, for appellees.
   TALIAFERRO, J.

This was a suit in trespass to try title in the district court of Frio county. Appellant, who was plaintiff below, appealed from a judgment in favor of appellee.

The appellant has failed to file any brief in the lower court or in this court. The appellees have filed their brief and ask for an affirmance of the judgment. We have examined the record, and find no fundamental errors requiring the reversal, and the judgment of the lower court is therefore affirmed.


author: HARPER, J.

text:
    WRBA v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.
    Rehearing Denied May 21, 1913.)
    1. Witnesses (§ 277) — Cross-Examination oe Accused.
    In a prosecution for selling a half pint of alcohol in a prohibition county, the question on cross-examination of accused as to whether he kept intoxicating liquors in his drug store, to which answer was made that he kept alcohol, was proper.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 925, 979-983; Dec. Dig. § 277.]
    2. Criminal Law (§ 720) — Argument oe Counsel.
    Argument of the prosecuting attorney in a criminal case is not improper where based on legitimate deductions from the testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1670, 1671; Dec. Dig. § 720.]
    Appeal from Johnson County Court; J. B. Haynes, Judge.
    A. R. Wrba was convicted of an unlawful sale of intoxicating liquors, and he appeals.
    Affirmed.
    ■ Odell & Johnson, of Cleburne, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of the offense of selling intoxicating liquors to W. R. Cooper in a county where the sale of such liquors had been prohibited.

The evidence amply supporting the verdict, the only questions necessary to be decided are those raised in the three bills of exception; this being a misdemeanor conviction.

In the first bill of exceptions it is shown that on cross-examination of defendant the state was permitted to ask him if he kept any kind of intoxicating liquor for sale in his drug store, to which question he answered that he kept alcohol. The prosecuting witness in this case had testified appél-lant sold him ¿ half pint of alcohol; and whether or not he kept such an article for sale was a legitimate inquiry. Wagner v. State, 53 Tex. Cr. R. 309, 109 S. W. 169; Starbeck v. State, 53 Tex. Cr. R. 195, 109 S. W. 162; Myers v. State, 52 Tex. Cr. R. 560, 108 S. W. 392; Field v. State, 55 Tex. Cr. R. 527, 117 S. W. 806; Myers v. State, 56 Tex. Cr. R. 223, 118 S. W. 1032.

The only other bills in the record relate to the failure of the court to give some special charges relating to the argument of the county attorney. There are no bills of exception showing that such remarks were made by the county attorney. We think the remarks not improper, as they were based on legitimate deductions from the testimony.

The judgment is affirmed.


author: PRENDERGAST, J.

text:
    JOHNSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 26, 1913.
    On Rehearing, April 30, 1913.)
    1. Assault and Battery (§ 56*) — Aggravated Assault.
    An assault with a deadly weapon is necessarily an aggravated assault.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 80, 81; Dec. Dig. § 56.*]
    2. Assault and Battery (§ 56*) — Aggravated Assault — “Deadly Weapon.”
    A “deadly weapon” is one which, from the manner used, is calculated or likely to produce death or serious bodily injury.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 80, 81; Dec. Dig. § 56.*
    For other definitions, see Words and Phrases, vol. 2, pp. 1853-1856; vol. 8, p. 7627.]
    3. Assault and Battery (§ 92*) — Aggravated Assault— Sueeiciency of Evidence.
    Evidence in a prosecution for aggravated assault held to sustain a finding that the knife with which accused committed the assault was a deadly weapon.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 137-139; Dec. Dig. § 92.*]
    4. Criminal Law (§ 1038*) — Appeal — Instructions— Exceptions.
    Where accused did not except to any part of the charge given in a misdemeanor prosecution, and requested no special charge, there was no reversible error; Code Cr. Proc. 1911, art 743, authorizing reversal only when exception is taken at the trial or on motion for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.*]
    Appeal from District Court, Liberty County; L. B. Hightower, Judge.
    Willie Johnson, alias Jack Johnson, was convicted of aggravated assatilt, and he appeals.
    Affirmed.
    E. B. Pickett, Jr., ” of Liberty, for appellant. G. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This appeal is from a conviction of aggravated assault with a fine of $100 assessed.

Because of a wholly insufficient recognizance, this court has no jurisdiction, and the cause is hereby dismissed.

On Rehearing.

The appellant was indicted for an assault with intent to murder, which, of course, included an aggravated assault. He was acquitted of an assault with intent to murder and convicted of an aggravated assault with a fine of $100 as the penalty.

Without detailing it, the evidence was amply sufficient to sustain a conviction of an aggravated assault under subdivision 8, art. 1022, P. C., which prescribes that an assault or an assault and battery is an aggravated one “when committed with deadly weapons under circumstances not amounting to an intent to murder or maim.” The evidence shows that the assault was committed with a big barlow knife. One of appellant’s witnesses testified: “It was a big barlow knife- with one blade; as to how long that blade was, well, it was a red handle about that long [witness indicating on his finger); it might have been longer or shorter; it had a red handle and it was a good big knife. It had a good blade and had a good point to it.” The effect of the prosecuting witness’ testimony was that without any provocation appellant assaulted him and at one time during the fight knocked him down, bruising his face considerably; that when appellant first began the assault on him he got said knife out of his pocket, already opened, and began to assault him with the knife, but the assaulted party, to protect himself, succeeded in kicking the knife out of appellant’s hand.

The court, in his charge, correctly submitted an assault with intent to kill and murder. Appellant was acquitted of this. In the charge the court quoted article 1008, P. C., defining an assault and an- assault and battery. Then: “By the expression, ‘coupled with an ability to commit a battery,’ is meant that the person making the assault must, at the. time, be in such position and within such distance of the person assaulted to enable him to commit a battery on such person by the means used. An assault becomes aggravated when committed with a deadly weapon under circumstances not amounting to an intent to murder or maim. A deadly weapon is one which, from the manner used, is calculated or likely to produce death or serious bodily injury.” In a separate paragraph he charged: “If you believe from the evidence that the defendant is guilty of an assault, but have a reasonable doubt as to whether such assault was upon malice aforethought, with intent to murder (as herein explained to you), then you will acquit him of that offense and next consider whether he is guilty of an aggravated assault. If you believe from the evidence that the defendant, -in the county of Liberty and state of Texas, on or about the time charged in the indictment, with a deadly weapon did unlawfully assault the said W. C. Hendricks as charged, but at the time of making such assault the defendant was not actuated or moved in making such assault by malice aforethought, bearing in mind the foregoing definition of malice aforethought, or did not intend to kill said Plendricks, then you will find the defendant guilty of an aggravated assault and assess his punishment,” etc.

In the fight, the prosecuting witness testified he was cut on the wrist. He does not make it clear how or in what way he got this cut, but the evidence in no way discloses or tends to disclose that he got it otherwise than from the knife with which appellant committed the assault, although he was made to say in cross-examination in one place that appellant did not cut him. However, he was not charged, and the court did not submit an assault by inflicting serious bodily injury. The evidence does make it reasonably clear that the proximity of the parties was such, at the time appellant got the opened knife out, .that he could and would have inflicted serious bodily injury, if not death, upon the prosecuting witness if the witness had not prevented it by .kicking the knife out of appellant’s hand. The appellant requested no special charge whatever and took no exception whatever to the charge of the court at the time it was given. He now, for the first time, in the motion for new trial, complains of the court’s charge in some particulars.

An assault with a deadly weapon is ipso facto an aggravated assault. Hunt v. State, 6 Tex. App. 664; White’s Ann. P. C. § 1014; Pinson v. State, 23 Tex. 582.

The court’s definition of a deadly weapon is in the language frequently approved by this court and is correct. White’s Ann. P. C. § 1298.

The evidence was sufficient to show that the knife with which appellant committed the assault in this' case was a deadly weapon, or authorize the jury to so find. In our opinion the court submitted all of the questions raised by the evidence which were necessary to be submitted in this case.

The appellant not having excepted to any portion of the charge of the court when given, and asking no special charge, and this being a misdemeanor conviction, no reversible error is. shown. Article 743, C. C. P.; Giles v. State, 148 S. W. 320, and authorities there cited; Ward v. State, 151 S. W. 1076, 1077; Golden v. State, 146 S. W. 946, 947; Perkins v. State, 144 S. W. 244. 245.

At a former day of this term this cause was dismissed because of an insufficient recognizance. Since then appellant has entered into a proper recognizance, a proper certified copy of which has been furnished and is on file in this court. His motion to set aside the former dismissal and reinstate the case is therefore granted, the case now considered on its merits, and the judgment will be affirmed.


author: HARPER, .1.

text:
    Ex parte YOSHIDA.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.
    Rehearing Denied May 21, 1913.)
    1. Nuisance (§ 80) — Abatement—Violation op Injunction — “Disorderly House.”
    One who maintained a restaurant in which he permitted lewd women to congregate and drink and to meet men for the purpose of arranging for unlawful sexual intercourse elsewhere is guilty of keeping a disorderly house within the purview' of Penal Code 1911, arts. 497, 498, 499, defining an assignation house as a place where persons meet by appointment for the purpose of sexual intercourse, that it shall be unlawful for any person to use at such place intoxicating liquors, and that any part-of a room or building used for such purposes is a disorderly house, and so his maintenance of such restaurant may be enjoined under the direct provisions of article 503.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. § 192; Dec. Dig. § 80

    Eor other definitions, see Words and Phrases, Vol. 3, pp. 2108-2110.]
    2. Nuisance (§ 86) — Abatement—Violation op Injunction.
    The- complaint calling to the court’s attention the fact that relator bad violated an injunction restraining him from maintaining a disorderly house, when signed by the county attorney officially, is sufficient, though not verified by him.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. § 200% ; Dec. Dig. § 86.]
    3. Nuisance (§ 86) — Abatement—Violation op Injunction — Contempt.
    Where relator was adjudged guilty of contempt in violating an injunction restraining him from continuing to run a disorderly house, a writ of commitment for contempt, where show--ing that the order was made in the court which had issued the injunction, is not invalid because through a clerical error it was recited that it was given in another court.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. § 200% ; Dec. Dig. § 86.]
    Original application by Tom Yoshida for writ of habeas corpus.
    Writ denied, and relator remanded to custody.
    Gibson & Callaway, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, .1.

Relator had been enjoined from doing certain acts under the provisions of the law which authorizes injunctions to issue in cases where one is running a disorderly or bawdy house. He was cited to appear and show cause why he should not be adjudged in contempt of court and punished for violating the injunction. On the hearing of the case the court found: “That the applicant, Tom Yoshida, had violated the order and decree heretofore issued in this: He (the said Tom Yoshida) has permitted prostitutes and lewd women to habitually resort to his said restaurant and has permitted prostitutes and lewd women to meet men in said restaurant for immoral purposes in pursuance of their vocation (not to the extent of actual cohabitation or sexual intercourse on the premises), and has permitted prostitutes and lewd women, known to him to be such, to resort to said restaurant to drink intoxicating liquors with men therein, and has permitted prostitutes and lewd women to indulge in loud, vociferous, and indecent language in said restaurant, and has allowed said women to swear and curse therein.”

No statement of facts accompanies the record, and the relator frankly admits that the evidence heard sustains these findings of fact, but insists that, they are not such acts as the court was authorized under the statute to enjoin. We think the finding of facts in this case, “that applicant has permitted prostitutes and lewd women to meet men in said house for immoral purposes in pursuance of their vocation,” would bring said house within the meaning of an. “assignation house,” as defined by article 497. While it may be said that under the finding in this case the act or acts of intercourse did not take place in this house, the findings would show that it was used as a resort where they would meet for drinking, talking, and perfecting arrangements to such end, and comes within the plain intent and meaning of the Code defining disorderly houses. Articles 498 and 499 add to the definition of disorderly houses other places than those named in article 496; and, construing all these articles together, the facts as found by the court would certainly make the house a disorderly house, and article 503 of the Code authorizes the issuing of writs of injunction to prevent the keeping of such houses, and the judgment originally entered by the court enjoining applicant from keeping that character of house is not void as contended, but a proper construction of the Code fully sustains his action in so doing.

The next contention of applicant is that the complaint calling the court’s atten-. tion to the fact that applicant had violated the injunction was not sworn to by the county attorney. The complaint is full and specific enough to inform applicant of the manner and way in which he was charged with violating the injunction, and is signed by the county attorney officially. This was all that was necessary, and it .was not necessary for the county attorney to swear to. the complaint. Ex parte Emmett Landry, 144 S. W. 962, and cases there cited.

The original judgment enjoining applicant from permitting acts on his premises,, which in law would constitute it a “disorderly house,” was rendered by Hon. E. B. Muse, the complaint charging that he had violated this decree, and information was filed in the court presided over by him, and relator was-cited to appear before him and show cause why he should not be adjudged to be In contempt of court. The matter was heard by Hon. E. B. Muse, and he adjudged relator guilty of contempt, and proper judgment was entered so finding and ordering commitment to issue. The clerk-of the district court of Dallas county, in issuing the commitment, recited that applicant had been adjudged guilty of contempt of court for violating the orders of the Forty-Fourth district court of Dallas county (the court presided over by Judge Muse), but in dating the writ recited, “Given under my hand and the seal of the criminal district court of Dallas county.” This was but a clerical error, and as the writ shows on its face that all proceedings were had in the court presided over by Judge Muse, and the writ is issued in accordance with his order by the clerk of the district court of Dallas county, this clerical error would not vitiate the writ, and relator is remanded to the custody of the sheriff!.


text:
    FRANCIS v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.
    Rehearing Denied May 21, 1913.)
    1. Criminal Daw (§ 1101) — Appeal—Record —Questions Presented.
    Where the only ground of the motion for new trial was the insufficiency of the evidence, a conviction must be affirmed on appeal in the absence of a statement of facts.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 3204; Dec. Dig. § 1101.]
    2. Criminal Daw (§ 1106) — Appeai^Filing Transcript.
    Under White’s Ann. Code Cr. Proc. art. 896, requiring the clerk to prepare transcripts upon appeal in felony cases in preference to civil and misdemeanor cases, and articles 895-902, respectively, requiring transcripts to be prepared as soon as possible to be forwarded as soon as prepared to the clerk of the Court of Criminal Appeals, and that the clerk shall prepare a list of appeal cases, and that when a transcript has not been received by the clerk of the Court of Criminal Appeals within the time for filing transcripts in civil actions, the clerk shall notify the clerk of the proper court that it has not been received, and another shall be forwarded, the transcript, even in a criminal appeal, cannot be considered where more than 90 days have elapsed between the adjournment of a trial and the filing; that being the time allowed for filing transcripts in civil cases.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2890-2892; Dec. Dig. § 1106.]
    3. Clerks of Courts (§ 71) — Dist of Criminal Cases Appealed — Citation for Failure.
    Clerks of the court who fail to make out a list of all criminal cases appealed, in accordance with the provisions of White’s Ann. Code Cr. Proc. art. 898, may be cited to show cause for their failure, and in the absence of excuse will be punished.
    [Ed. Note. — For other cases, see Clerks of Courts, Dee. Dig. § 71.]
    4. Criminal Daw (§ 1106) — Appeal—Dismissal.
    Where attorneys of persons convicted of crime prevent the filing of the transcript within the ninety days fixed by law, the appeal will, in the absence of good reason shown, be dismissed.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2890-2892; Dec. Dig. § 1106.]
    Appeal from District Court, Smith County ; R. W. Simpson, Judge. .
    Will Francis was convicted of perjury, and he appeals.
    Affirmed.
    Dasseter & Mellwaine and N. A. Gentry, all of Tyler, for appellant. C. E. Dane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of the crime of perjury. The only ground in -the motion for new trial upon which the court is asked to set aside the verdict reads as follows: “Because the evidence is insufficient to warrant a conviction.”

The statement of facts was not filed in the court below until 123 days after adjournment of court. Article 896 of the Code of Criminal Procedure, provides that the clerk shall prepare transcripts in felony cases that have been appealed in preference to cases of misdemeanor, and shall prepare transcripts in all criminal cases appealed in preference to civil cases. It was never contemplated by our Code of Criminal Procedure that a longer time than 90 days should elapse from and after the adjournment of the trial before the filing of the transcript in any case in this court, and statement of facts filed in the trial court more than 90 days after the adjournment of court for the term will not be considered by this court. There being no statement of facts we can consider, this ground in the motion for new trial presents no error, and the judgment will be affirmed.

Clerks of the courts are paying but little attention to our Code of Criminal Procedure in regard to the preparation and filing of transcripts, and inasmuch as we may deem it our duty to cite some of them to appear before us and show cause why they have not prepared and forwarded transcripts in cases appealed within the time provided by law, we call their attention to articles 895-902 of White’s Ann. Code of Criminal Procedure. We will not sanction the policy pursued by some clerks in neglecting or willfully failing to forward transcripts to this court for one year, and sometimes for two years’ time, after the date of the trial. The whole policy of our law is that the clerk shall perform this duty immediately upon the adjournment of court for the term, and in no event shall he permit more than 90 days to elapse before doing so, for articles 900 and 901 provide that in the event the transcript is not received within 90 days from the date of perfecting the appeal, the clerk of this court shall immediately notify the clerk of the trial court that such transcript has not been received, when the clerk of the trial court shall make out another transcript and forward same as in the first instance, this clearly evidencing that it was the intent of the Legislature that the transcript in the first instance should be made out and forwarded in less than 90 days.

Article 898 provides that at the adjournment of each term of court the clerk of the court shall make out a list of all cases appealed to this court, certify to same, and forward it to the clerk of this court. This provision is being wholly ignored by the clerks, and we take this occasion to notify them that we shall expect and require in the future a compliance with this and the other provisions of the Code herein cited; and if not complied with, they may be cited to appear before us and show cause why they have not done so, and if no good reason is shown, they will be punished in a manner that will in future secure a compliance with the law. This list must be forwarded to the. clerk of this court.

And in this connection, we might say to attorneys for persons appealing their cases, if the clerks should make a showing that they had prepared the transcript in accordance with the law, and it was at the instance, request, or through fault of such attorneys that the transcript has not been forwarded to this court, such cases may, if good reason is not shown why it should not be done, be dismissed from the docket. Neither clerks, attorneys, nor any other persons have a right to ignore the plain provisions of the law, and if the law as written is complied with, much of the delay in criminal cases can and will be avoided, and we shall in this instance, as in others, enforce the law as it is written,, and we call - attention to the articles of the Code and the rules of this court, which follow the statute, that no person in future may plead ignorance of the law.

The judgment is affirmed.