text:
    KANSAS CITY SOUTHERN RY. CO. v. JOHNSON.
    (No. 1510.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 18, 1915.
    Rehearing Denied Nov. 25, 1915.)
    1. Pleading &wkey;>345 —Judgment on Pleadings — Failure to Reply — Affirmative Matter in Answer —Contributory Negligence.
    The Louisiana statutes, providing that in suits against railroad companies for loss of stock killed plaintiff, to recover, need prove only the killing or injury, unless defendant shows absence of carelessness or indifferent management of the train, authorizes a recovery only for negligent killing of stock, and that in an action based on the statute there was no reply filed to an answer alleging absence of negligence until after evidence introduced does not entitle defendant to a judgment on the pleadings under Texas statutes as amended by Acts 1913, c. 127, since the allegation of the answer under the Louisiana statute is not the allegation of affirmative matter, and a denial of the truth of a denial is not warranted.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1055-1059; Dee. Dig. &wkey;345.]
    2. Pleading <&wkey;412 — Judgment on the Pleadings — Waiver.
    In the absence of a motion for judgment on the pleadings, the failure of either party to specifically deny affirmative matter will be a waiver of that right.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1387-1394; Dec. Dig. &wkey;412.]
    3. Railroads <&wkey;446 — In juries to Stock — Question for Jury.
    In an action for killing horses on a right of way, evidence held sufficient to take defendant’s negligence to the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1627-1641; Dec. Dig. &wkey;446.]
    Appeal from Bowie County Court; Lee Tidwell, Judge.
    Action by Fish Johnson against the Kansas City Southern Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    C. A. Wheeler and Glass, Estes, King & Burford, all of Texarkana, for appellant. Turner, Graham & Smitha, of Texarkana, for appellee.
   HODGES, J.

This appeal is from a judgment against the appellant for $250, as the value of two horses killed by one of its trains. Both the pleadings and the evidence show that the killing occurred in the state of Louisiana and during the nighttime. The following provision of a statute of the state of Louisiana was pleaded by both parties, and was also offered in evidence:

“That in suits against railroad companies for the loss of stock killed by them it shall be sufficient, in order for the plaintiff and owner to recover, to prove the killing or injury, unless it is shown by the defendant company that the killing or injury was not the result' of fault or carelessness on their part or the negligent or indifferent running or management of their locomotive or train.”

In its answer the appellant denied specifically that its train had killed the stock, and further alleged that, If the horses were killed as charged, it was without negligence on its part; that the killing was occasioned by the horses coining on the track in front of a heavy train moving at the rate of 25 miles per hour, so close to the engine that it was not possible for the train to be stopped before striking the horses; that it used due diligence to prevent striking the horses after they were discovered on the. track. No reply was filed to this answer of the appellant till after the close of the evidence and after the defendant below had closed its argument to the court upon the merits of the case. The court then, over the objection of the appellant, permitted the plaintiff to file a specific denial.

It is contended here that, under the provisions of our statute as amended by Acts 1913,. p. 256, the appellant was entitled to a judgment upon the pleadings, regardless of the evidence, that the reply to its affirmative pleading came too late, and that the truth of the facts alleged in its plea should have been taken as admitted. The provision of the Louisiana statute quoted above, in effect, makes railroad companies liable only for negligently killing stock. Mongogna v. Ill. Central R. R. Co., 115 La. 598, 39 South. 699. But the fact of the killing, when shown upon the trial, furnishes prima facie evidence of negligence. The pleadings relied on by the appellant as the averment of the affirmative matter, and which under our statute should, in the absence of any denial on the part of the plaintiff, be taken as confessed, is merely the negation of the negligence implied in the complaint charging that the stock were killed by the appellant. The plea does not really state affirmative facts, but, in substance, denies facts. The averment that the horses came upon the track in front of the moving train, so close as to render it impossible to stop before striking them, is, in its last analysis, but the statement of conditions which negative negligence. There was therefore no occasion for the filing of a replication to this portion of the appellants’ answer. Had this been done, it would have amounted simply to a denial of the truth of a denial.

Our statute does not contemplate such proceeding. Moreover, it has been held by authorities which we think are entitled to much respect that, in the absence of a motion for judgment on the pleadings, the failure of either party to specifically deny affirmative matter under such circumstances will be construed as a waiver of that right. G., H. & S. A. Ry. Co. v. Pennington, 166 S. W. 464; Oil Co. v. Tolbert, 171 S. W. 311; 11 Ency. of PI. & Pr. 1046.

It is also contended that the evidence in this case shows, as a matter of law, that the appellant’s servants in charge of the train which caused the injuries were not guilty of negligence. The testimony shows that the place where the killing occurred was near a bridge on the appellant’s right of way; that the train was going south; and that the track for a considerable distance was perfectly straight. The engineer testified that his engine struck one of the horses on the north side of the bridge, and at a point where the track was upon a considerable embankment; that the first he saw of the animal was when it came on the track a few yards in front of his engine; that he immediately reversed his engine and did all he could to avoid a collision; that he saw only one, and did not know till afterward that another animal had been killed. The appellee testified that he followed the tracks of his horses and saw where they went onto a spur a short distance north of the bridge; that they followed the right of way along that spur to its intersection with the mainline, and thence down on the main line to the point where the killing occurred; that one of the horses was killed on the north side of the bridge, and the other on the south side. This testimony tends to discredit the engineer’s statement that the horses were in such a position that he could not have discovered them by the exercise of proper diligence.

We are not prepared to say that the court erred in holding that the burden imposed by the Louisiana statute upon the railway company had not been discharged.

The judgment is therefore affirmed.
      É=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WILLSON, O. J.

license: Public Domain

text:
    TEXARKANA & FT. S. RY. CO. v. REA.
    (No. 1508.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 26, 1915.
    Rehearing Denied Dec. 9, 1915.)
    1. Railroads <&wkey;348 — Crossing Accident— Failure to Ring Bell — Sufficiency of Evidence.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6564, making it the duty of persons in charge of an engine to ring the bell thereof as it approaches a crossing, authorizes a finding of negligence on testimony of plaintiff that, as he approached the crossing, he listened for noises, but heard none.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. <&wkey;>348.]
    2. Railroads <&wkey;312 — Signals at Crossings —Statutes.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6564, it is the duty of persons operating a railway engine to ring the bell thereof as it approaches a public street, though the engine-starts within less than 80. rods from the street.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 988-1001, 1003-1005; Dec. Dig. i&wkey;312.]
    3. Railroads <&wkey;348 — Crossing Accident— Evidence — Sufficiency—Sufficient Finding on One Issue.
    Where in an action for injuries to an automobile in a crossing accident negligence of the company could be predicated on the failure to ring the engine bell, that the testimony may not have been sufficient to support findings of negligence on defendant’s part in other respects alleged is not a reason for reversing the judgment.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. &wkey;348.]
    4. Railroads <&wkey;350 — Crossing Accidents— Injury to Automobile — Contributory Negligence.
    In an action for injuries to an automobile in a crossing accident, evidence held insufficient to show, as a matter of law, contributory negligence in not discovering the train in time to avoid the accident.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. &wkey;350.]
    5. Pleading <&wkey;412 — Judgment on Pleadings — Failure to Reply — Waiver.
    Where in a negligence case the sworn answer alleges contributory negligence, the failure to reply to such answer will be deemed waived where judgment on the pleadings was not requested, and the case was tried on the theory that the issue was in the case.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1387-1394; Dec. Dig. &wkey;412.]
    6. Pleading ®^177 — Admissions—Failure to Deny.
    Contributory negligence is not admitted under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1902, if construed to admit facts alleged in answer not denied by reply, by failure to deny an allegation thereof in a sworn answer, where the sworn petition in effect denies negligence on plaintiff’s part.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 354, 355; Dee. Dig. &wkey;177J
    Appeal from Bowie County Court; Lee Tidwell, Judge.
    Action by H. W. Rea against the Texar-kana & Ft. Smith Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Appellant’s line of railway through Tex-arkana runs nearly north and south. While the principal business and residence parts of the city lie east 'of said line of railway, large parts of same, known as Rose Hill, lie west thereof. One of the most used thoroughfares between the part of the city west of said line of railway and the part east thereof is Seventh street. Said street runs nearly east and west where it crosses said railway. Appellee lived on Rose Hill. About 9 o’clock of the night of January 8, 1914, as appellee was in the act of crossing-said railway, while traveling in an automobile over said Seventh street, going to his home from the part of the city east of said railway, the automobile was struck and injured by one of appellant’s cars then being moved north across said street, over appellant’s track, by means of a locomotive operated by appellant’s employes. On the theory that appellant in so moving said car was guilty of negligence (1) in not having a watchman at the crossing to warn appellee of the approach of the train, (2) in not having a light and some person on the car as it moved towards and over the crossing to so warn appellee, and (3) in so moving the car without either ringing the bell or sounding the whistle of the engine to warn appellee before starting same and while it was pushing the train towards and over the crossing, appellee sought by his suit to recover of appellant damages suffered by him because of the injury,to the automobile, which he alleged to be the sum of $315.10. Appellant in its answer to appellee’s petition denied that it had been guilty of negligence as charged- against it, and alleged that whatever damage and injury appellee sustained was due to his own negligence, in that “he carelessly and negligently, and without regard for his own safety, drove upon the track, and occasioned in that way the collision,” which resulted in the injury to his automobile complained of. The trial was to the court without jury, and resulted in a judgment in favor of appellee against appellant for the sum of $155.10.
    C. A. Wheeler and Glass, Estes, King & Burford, all of Texarkana, for appellant. Turner, Graham & Srnitha, of Texarkana, for appellee.
   WILLSON, O. J.

(after stating the facts as above). Appellant insists that the testimony did not authorize a finding that it was guilty of negligence which proximately caused the collision resulting in injury to the automobile, but demanded a finding that ap-pellee was guilty of such negligence, and that therefore the judgment is erroneous.

The law (article 6564, Vernon’s Statutes) made it the duty of the persons in charge of the engine to ring the bell thereof as it approached the crossing. The testimony of appellee that they failed to discharge the duty authorized the finding that they were guilty of negligence. Railway Co. v. Vollrath, 40 Tex. Civ. App. 46, 89 S. W. 282. Appellee testified that as he approached the crossing he listened for noises, but heard none. The trial court had a right, we think, to conclude that appellee would have heard the bell had it been rung, and, being thus warned, would have so operated his automobile as to avoid the collision which occurred. Therefore we are of the opinion that a finding that negligence in failing to ring the hell was a proximate cause of the accident was authorized. We do not agree that the ruling made in Railway Co. v. Patterson, 20 Tex. Civ. App. 255, 48 S. W. 749, that it is not the duty of persons operating a railway engine to ring the bell thereof as it approaches a public street, “when the engine starts within a less distance than SO rods from the street,” is the law. The contrary of that ruling, and the correct one, we think, was made in Railway Co. v. Bailey, 83 Tex. 19, 18 S. W. 481, Railway Co. v. Greer, 32 Tex. Civ. App. 606, 75 S. W. 552, and Railway Co. v. Hall, 34 Tex. Civ. App. 535, 80 S. W. 135. As negligence on the part of appellant could have been predicated on the failure to ring the bell, the fact that the testimony may not have been sufficient to support findings of negligence on its part in other respects alleged is not a reason for reversing the judgment.

The testimony tended strongly to show that, had appellee exercised due care for his own safety as he approached the crossing, he could and would have discovered the train as it moved towards the crossing in time to have avoided the accident. But there also was testimony which tended to show the contrary — that, exercising due care, appellee nevertheless failed to discover the train in time to avoid the collision. The car which struct the automobile was the front one of several cars which the engine was pushing north over the crossing. Appellee testified that as he approached the crossing from the east, when he got to a point about 140 feet from it, he looked and saw the headlight of the engine, then standing still apparently, around'a curve in the track south from the crossing. He further testified:

“I looked again, and was crossing slow when I got on the track. I was listening for noises, of course, and looked at the engine, but I heard no fuss, and proceeded to cross. As to whether or not the whistle of the engine sounded or the bell rung, no, sir. I saw the headlight of the engine. I could not see a thing between the engine and the depot at that time. Yes, sir; I looked.”

Cross-examined, he said:

“I saw the headlight of the engine, but I didn’t see it was moving at the time. I did not see those cars between it and the crossing. I just could not see them. This depot is right by them, and this platform, too, and I could not tell the color of a car from them. I didn’t see any car. Yes, sir; there was an arc light hanging over the main line, and one of those arc lights will blind a fellow. I was right up on the track when I discovered the cars.”

In view of this testimony, we think it should not be said that it appeared, as a matter of law, that appellee was guilty , of contributory negligence. Reasonable minds might, we think, have differed as to whether a reasonably prudent person, having the right to expect that the bell of the engine would be ringing if it was moving, would have concluded, when he looked and listened as appellee did, and saw and heard nothing indicating that it was moving, that the engine was standing still, and that he could safely pass over the crossing.

The answer of appellant, charging appellee with contributory negligence as set out in the statement above, was sworn to. Because appellee did not in a reply thereto deny the charge of negligence on his part, appellant insists he was in the attitude of confessing he was guilty of such negligence. The contention is based on article 1902, Vernon’s Statutes, as it was before it was amended by the act of March 22, 1915 (Gen. Laws 1915, p. 155). Appellant did not ask for judgment on the pleadings, and the cause was tried on the theory that contributory negligence on the part of appellee was an issue between the parties. It has been held that under such circumstances the failure to deny the allegation in the answer should be treated as waived. Shaw v. Thompson Bros. Lumber Co., 177 S. W. 574, and authorities there cited. And see K. C. S. Ry. Co. v. Johnson, 180 S. W. 944, decided by this court November 4, 1915, and not yet reported. But, if the statute should not be so construed, we think appellant’s contention should be overruled, because of the fact that appellee in his original petition, which was sworn to, in effect, denied negligence on his part in the respects charged against him in the answer.

The judgment is affirmed.
      «gcsFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    SOUTHWESTERN SURETY INS. CO. v. THOMPSON et al.
    (No. 824.)

    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 20, 1915.
    On Motion for Rehearing, Dec. 18, 1915.)
    1. Insukance <&wkey;388 — Industrial Insurance-Estoppel.
    Where a policy, insuring a master on account of injuries received by employés, provided that if an employé sue on account of an accident, the master should notify the insurer, which would settle or defend the suit, whether groundless or meritorious; that the moneys expended in the defense should not be included within the liability fixed in the policy; that the insured should not incur any expenses for legal proceedings; and that no action would lie under the policy, unless it should be brought for loss or expense actually sustained and paid in satisfaction of a final judgment — the insurer, where it absolutely refused to conduct the defense, claiming that it was not liable for the particular accident, is, the premiums having been paid, estopped to deny liability for the necessary legal expenses and set up the provision that no suit should be maintained except for loss or expense actually sustained and paid in satisfaction of the final judgment.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1026, 1027, 1030, 1035, 1040, 1057; Dec. Dig. ©=3388.]
    2. Insurance <&wkey;512 — Industrial Insurance-Actions.
    Where a policy was conditioned to indemnify a master against loss and expense arising from claims on account of bodily injuries accidentally suffered by employés, and provided that the insurer would, at its expense, settle or contest the claim, and that sums expended in defense should not be included within the indemnity fixed in the policy, the master, the insurer having denied all liability and expenses for conducting a defense having been contracted, may, by cross-action in the employe’s suit in which the insurer was joined, recover the amount of such expenses together with a conditional recovery of the amount of the indemnity in ease the servant should obtain judgment.
    [Ed. Note. — For other cases, see Insurance, Dec. Dig. <&wkey;512.]
    3. Pleading <&wkey;406 — Misjoinder—Waiver.
    In a servant’s action for injuries against a master and an industrial insurer, the insurer may waive the misjoinder of an action over against it on the policy by the master.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1355-1359, 1361-1365, 1367-1374, 1386; Dec. Dig. <&wkey;>406.1

      4. INSURANCE <&wkey;145 — Industrial Insurance-Extension oe Policy — Conditions.
    Where a contractor orally arranged that an industrial policy should be extended on payment of premiums, he is not bound by a limitation of liability in the new policy which was not delivered, and which the agent merely told him was more extensive.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 276-291; Dec. Dig. <&wkey;>145.]
    5. Trial <&wkey;252 — Instructions — Applicability to Evidence.
    In an action on an industrial policy which had been verbally renewed and which covered the accident, an instruction that the minds of the parties must have met, and intended that the accident should have been included, is inapplicable to the facts, the company claiming that a subsequent policy, which was not delivered and did not cover the accident, was the one in force.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. &wkey;252.]
    6. Appeal and Error &wkey;>742 — Assignments —Propositions.
    A proposition that a tort cannot be joined with a contract is not germane to an assignment that suit was premature.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;>742.]
    On Motion for Rehearing.
    7. Appeal and Error i&wkey;>750 — Assignments —Sufeioienoy.
    Where, in a servant’s action against the master and an industrial insurer, the master sought recovery over against the insurer, an assignment, complaining that under the contract of insurance there could be no liability until the master had suffered loss by reason of paying judgment, is insufficient to raise the question of misjoinder of actions.
    [Ed. Note. — For other cases, see Anneal and Error, Cent. Dig. §§ 3074^3083; Dec. Dig. <&wkey;> 750.]
    Appeal from District Court, Potter County; Jas. N. Browning, Judge.
    Action by J. C. Thompson against the Southwestern Surety Insurance Company and W. M. Rice. From a judgment for plaintiff and a judgment over in favor of defendant Rice, who counterclaimed, the first-named defendant appeals.
    Reformed and affirmed.
    Dumpkin & Harrington, of Amarillo, and J. T. Suggs, of Denison, for appellant. Madden, Trulove, Ryburn & Pipkin, Synnott & Underwood, and R. E. Underwood, all of Amarillo, for appellees.

      Writ of error pending in Supreme Court.

   HENDRICKS, J.

J. C. Thompson sued W. M. Rice on account of certain personal injuries received as the servant of said Rice, and also joined in said suit the appellant, the Southwestern Surety Insurance Company, on account of an employer’s liability insurance policy, executed by said insurance company in favor of Rice. The appellee, Rice, Thompson’s employer, filed a cross-action against said insurance company, setting up a certain policy of employer’s liability insurance, covering a period from" January 1,T913, to January 1, 1914, and alleging an oral contract with the agent of said insurance company for a renewal of said policy upon the same terms and conditions, except an increase of the premium for the succeeding year. The injury to Thompson occurred in 1914, and the insurance company, after a plea in abatement, alleged the issuance and delivery of another policy for the year 1914, covering the period of the time of the accident, and which by its terms specially excepted buildings, containing construction of reinforced concrete, which was the character of the building under construction by Rice at the time the plaintiff Thompson, his employs, was injured. Thompson recovered a verdict of $7,500 against Rice on his cause of action for personal injuries; and the jury returned an unconditional verdict against the insurance company in the sum of $5,500, $500 of which is presumably the reasonable attorney’s fees proven upon the trial of the case, the balance representing the maximum sum designated .in the policy.

Upon1 the original hearing of this cause in this court, the judgment of the lower court, in favor of Rice, was reversed and remanded on the theory of misjoinder of causes of action and of parties. The appellee Rice seriously questions the judgment of this court upon the contention that the assignments, nor the plea upon which the same were based, though followed by propositions, did not strictly raise the question of misjoinder, and this position is correct, and this court committed error upon that point. It is only upon the proposition that the question discussed in the original opinion was really not properly raised that this rehearing is granted, and not that the position formerly assumed is incorrect if the assignment and the plea had been, sufficiently broad to cover the question. A subsequent investigation and analysis actuates this statement, though of course the question 'is not decided. On account of the absence of submission, and the lack of a verdict against the insurance company in favor of Thompson, the plaintiff, we shall treat all assignments, and the alleged errors raised by the same, addressed to that part of the litigation between plaintiff and the insurance company, as- immaterial and harmless.

The fourth assignment of error, complaining of the action of the court in overruling appellant’s plea in abatement to the cross-action of Rice, states that the contract of insurance pleaded by Rice expired according to its own terms prior to the day of the injury to the plaintiff, and that in said cross-action it is admitted that Rice held a policy issued by this defendant for the year 1914, which precluded liability for injuries to Rice’s employes upon buildings whose walls were to be constructed of reinforced concrete, and that the suit should be further abated because the same, as shown by his cross-action, was prematurely brought. For apparent reasons, the latter question, that the suit was prematurely brought by Rice against the insurance company, will only be discussed. The insurance policy covering the period from January 1, 1913, to January 1, 1914, provides that the insurance company—

“hereby insures W. M. Rice * * * against loss and expense arising from claims upon the assured for damages on account of bodily injuries accidentally suffered, or alleged to have been suffered, during the period of this policy, by any employés of the assured, by reason of the prosecution of the work described herein.”

The substance of other provisions is that when an accident occurs, the assured shall notify the company by written notice, and if a claim is made the assured, shall also notify the company and the latter, “at its own expense, will settle or contest the same.” If an employe sues the employer on account of an accident, the assured shall forward to the company every process served upon him; and it is again provided that the latter, at its own expense, will settle or defend said suit whether groundless or meritorious, and that the moneys expended in the defense shall not be included within the liability fixed in the policy:

“The assured shall not assume any liability, nor interfere with any negotiation for settlement or any legal proceedings, nor incur any expense nor settle any claim except at his own cost, without the written consent of the company.”

Paragraph L provides:

“No action shall lie against the company for any loss or expense under this policy unless it shall be brought for loss or expense actually sustained and paid in satisfaction of a final judgment, within ninety days from the date of said judgment after the trial of the issue.”

A “rider” was indorsed upon this 1913 policy eliminating the foregoing paragraph L. The policy claimed by the company to have been issued for the year 1914 contained the same paragraph E, without eliminating the rider, and also excepted work of a reinforced concrete nature, with increased premiums in consideration of the policy.

W. M. Rice, after pleading in general terms the policy of 1913, in his cross-action also alleged the oral renewal thereof with the company’s authorized agent, the payment of the premium, the accident to Thompson, the notice to the insurance company of Thompson’s claim, as well as the forwarding of process in said suit; also the request of the company to defend the suit, averring the latter’s denial of liability and the refusal to assume the burden of the litigation; and, in anticipation of the company’s reliance upon the policy of 1914 (which excepted reinforced concrete construction), he averred the nondelivery of said policy to him, and a lack of knowledge of any of its terms different from the policy of 1913, except that of an increased premium, and that he had no kuowledge of any exception, but continued to pay premiums, during the year 1914, based upon certain classifications, and relied upon a renewal of the policy of 1913, which included the character of ■ construction in the Corsicana Orphans’ Home, upon which Thompson was injured. He also alleged that the company knew that his contract with the state of Texas called for a reinforced concrete building, having executed his bond to the state as surety, and it knew that the graduated premiums paid by him in 1914 on his policy were on account of the construction of said building, and, that if such policy of 1914 was delivered, excepting reinforced concrete work, he was entitled to pay a corresponding increased premium rate and be protected accordingly. He then alleged;

“(32) This defendant shows to the court that said policy so issued to this defendant by his codefendant provides that: ‘No action shall lie against the company for any loss or expense under this policy unless it shall be brought for loss or expense actually sustained and paid in satisfaction of a final judgment, within ninety days from the date of said judgment, and after trial of the issue.’ But this defendant further shows to the court that said policy also provides that upon the occurrence of an accident this defendant shall give said company notice, and that said company at its own expense will make such investigation as it may deem necessary, and, further, that ‘if a claim is made on account of an accident, the assured at its own expense will settle or contest the same,’ and, further, that: ‘If a suit is brought on account of an accident the assured shall forward immediately to the company, or to its duly authorized agent, every process, and paper served on him. The company at its own expense will settle or defend said suit, whether groundless or not; the money expended in said defenses shall not be included in the limits of the liability fixed under this policy.’ ”

He then, again averred, as upon the policy of 1913, Ms complete compliance with the terms of said policy and the repudiation by the company.

The court submitted to the jury that if the policy of 1914 was delivered to Rice, to find unconditionally for the insurance company, and on account of the jury’s general verdict in favor of Rice, it evidently found nondelivery.

Bearing in mind that clause L in the policy of 1913, requiring that no action shall lie for loss or expense unless it shall be brought for loss and expense actually sustained and paid in satisfaction of a final judgment, was eliminated by the rider, appellant, however, contends, at least under the general demurrer to Rice’s pleadings, attempting to raise the same question of prematureness of the suit, that the assertion of clause L by him refers to said policy of 1913, and that said pleadings do not further show that he had incurred any loss or expense by reason of the injury to Thompson, or that he had paid in satisfaction of said injuries a final judgment in favor of Thompson. The copy of the policy for 1913, attached to the pleadings as an exhibit, showed the elimination of clause L (as well as the copy introduced in evidence), and we are constrained to view the latter part of his pleadings as an alternative plea, addressed solely to the policy of 1914, that even if it had been delivered, on account of the alleged estoppel, he was entitled to pay an increased premium, and on account of the denial of liability and repudiation by the company, clause I» was waived. The collocation of the paragraph suggests that meaning; hut if (as we think by a strained construction) the pleading of Rice of clause L would be referred to the policy of 1913, and was an admission by which he would be bound that such a clause in a contractual sense was contained therein, the Supreme Court of the United States, in the case of St. Louis Dressed Beef Co. v. Maryland Casualty Co., 201 U. S. 173, 26 Sup. Ct. 400, 50 L. Ed. 716, said that the denial of liability and the refusal of the court to assume the burdens it had contracted to assume—

“cut at the very root of the mutual obligation, and put an end to its right to demand further compliance with the supposed term of the contract on the other side. * * * The defendant, by its abdication, put the plaintiff in its place, with all its rights. To limit its liability as if its only promise was to pay a loss paid upon a judgment is to neglect the meaning and purpose of the reference to a judgment, and even the words of the promise. The promise in form is to indemnify against loss by certain kinds of liability. The judgment contemplated in the condition [clause L in this policy] is a judgment in a suit defended by the defendant in ease it elects not to settle. The substance of the promise is to pay a loss which the plaintiff shall have been compelled to pay, after such precautions and with such safeguards as the defendant [insurance company] may insist upon. It saw fit to insist upon none.”

One of the certified, questions of the circuit court was answered affirmatively by the Supreme Court that the right of the assurer to insist upon such a condition, respecting satisfaction of a judgment after trial, depended upon the company’s defense of the action assumed by it according to the provisions of the policy.

It is true that this case, in its logic, may be in conflict with the case of Texas Short Line Ry. Co. v. Waymire, 89 S. W. 453, decided by the San Antonio court, but that case never reached the Supreme Court of this state.

The question, however, remains, considering clause L eliminated from the policy of 1913 (which clause we do not think was admitted as subsisting), is that policy one of indemnity against loss, requiring a loss to be exhibited before the action could be maintained? Or is it an indemnity against liability, in whole or in part, to the extent that Rice’s cross-action was not premature, and that he.could declare upon the policy and its breach, without showing a payment of any damage or expense?

“The difference between a contract of indemnity against loss and one to pay legal liabilities is that upon the former an action cannot be brought and a recovery had until the liability is actually discharged, whereas upon the latter, the cause of action is complete when the liability attaches, though the amount of indemnity is not fixed until judgment rendered.”

Fuller’s Accident & Employers’ Liability Insurance, p. 452, which language as to the difference in legal effect is taken from the case of American Employers’ Liability Insurance Co. v. Fordyce, 62 Ark. 563, 36 S. W. 1051, 54 Am. St. Rep. 305, and which we find has been frequently commended and adopted.

The company, by the policy of 1913, in consideration of the premium—

“insures W. M. Rice * * * against loss and expense arising from claims upon the assured for damages on account of bodily injuries accidentally suffered, or alleged to have been suffered, during the period of this policy by any employs of the assured, by reason of the prosecution of the work described herein.”

Rice is insisting that, even with or without clause L, in regard to the payment of the judgment representing a loss, a court of equity would treat the insurer as the principal debtor of an injured employs, and the assured as the surety though, as we infer, it may be in terms a contract of indemnity against loss, and not one against liability, and quotes 15 Cyc. at p. 1038, which cites the cases of Beacon Lamp Co. v. Travelers’ Insurance Co., 61 N. J. Eq. 59, 47 Atl. 579, decided by the Chancery Court of New Jersey, and which ease was affirmed by the Court of Errors and Appeals of New Jersey under the style of Travelers’ Insurance Co. v. Moses et al., 63 N. J. Eq. 260, 49 Atl. 720, 92 Am. St. Rep. 663. The annotator in Cyc. evidently overlooked the holding of the higher New Jersey court, which squarely overruled the chancellor’s opinion on the particular point, on the theory that equity could not enlarge or change the obligation of a contract.

The case of Atlas Hardware Co. v. Georgia Insurance Co., 129 Tenn. 477, 167 S. W. 109, by the Supreme Court of Tennessee, with reference to the insurance against loss, is substantially in terms the same as the policy here, but the contractual feature to pay expenses in the same clause “was to defend the assured and pay expenses and costs”; while here the assurer insures against expenses arising from claims upon the insured for damages. The court held, even eliminating the clause equivalent to clause L in this policy, “that by the terms of this policy the insurance company agrees to indemnify the assured against loss on account of the accident covered thereby, and does not agree to indemnify the insured against liability from loss on account of such accidents,” and that because neither the judgment nor the attorney’s fees had been paid, there could be no recovery. We are not making any distinction between a contract insuring against expenses and one agreeing to pay expenses, but are not inclined to follow wholly the logic of that opinion. Why, as a general proposition, if one party insures or indemnifies another against expenses, and the contract is broken and reasonable expenses are contracted to be paid by the indemnitee, made necessary by a breach of the contract, the same could not be recovered is not apparent. In torts reasonable expenses are recoverable consequent upon a breach of duty, though not paid by the injured party, if such expenses, are legally resultant from the breach.

The Supreme Court of Maine, in title case of Ripley v. Mosely, 57 Me. 76, said:

“The language of the bond is general and comprehensive, and the plaintiff is entitled to recover all damages which he can legally be deemed to have suffered by reason of the suit, together with the expenses incurred in defending it so far as they are found ‘fair and reasonable,’ these last being expressly provided for. We think that under the latter clause in the condition, the debt contracted by the plaintiff to counsel for services in defending the suit against him, though not yet paid, is a proper subject for allowance in making up the damages. * * * The defendants do not appear to have employed any counsel to defend the suit; and they bound themselves to pay ‘all just and reasonable charges for the expenses in defending.’ ” Sutherland on Damages, vol. 3 (3d Ed.) marginal p. 607, top p. 2332, § 762, footnote.

The contract to pay reasonable charges would be no more than the law would imply.

The case here is one where Rice is doing what the insurance company contracted to do. The company agreed to pay the expenses of the litigation, and Rice’s liability to pay a reasonable attorney’s fees is necessarily a result of the breach, and the indemnity assuring Rice against expenses, as to that feature, is clearly a contract against liability, and not one against loss. The indemnity to pay the loss arising from claims suffered, or alleged to have been suffered, while different in its liability feature to pay the expenses, however, both indemnities arise out of the same contract.

Appellant insurance company has waived any insistence of misjoinder of causes predicated upon any right that it might assert that its contest over the policies, and issues arising therefrom, should not be confounded with and prejudiced by the personal injury litigation between Thompson and Rice; there being no privity between Thompson and it. Such an insistence of course can be waived.

The insurance company is not preliminarily complaining that it could be, or was, injured, by the joinder of the different suits, involving different issues — simply that its obligation had not matured. If a judgment is framed which does not mature the obligation, except in accordance with the very conditions insisted upon by appellant insurance company, what sensible reason could be adduced that should prevent Rice from litigating the whole contentions between them in one suit? A part of his litigation is that the claim of the insurance company that a policy for 1914 was delivered is not true, but that the company agreed to renew the policy of 1913 for that same year, which did cover the risk, though the other in terms may have excepted it. To compel him to litigate these matters in a separate suit, when the company does not object to the joinder with Thompson’s litigation, is to violate the ordinary rule of multiplicity, always bearing in mind the difference between this question and the one of misjoinder of causes.

We can see no legal objections, in this condition of the case, to a maintenance of the suit for attorney’s fees, blended with the issues as indicated, with an additional judgment for a conditional recovery in favor of Rice against the insurance company, though we think the unconditional judgment of $5,-000 by Rice against the company is fundamentally wrong, the pleadings do not support any such judgment, considering the basis of the action, based upon the policy of 1913, and said judgment, decreeing the maturity of the obligation, to that extent is premature. It will be reformed by a judgment in this court, decreeing a conditional recovery against the company in the event of a satisfaction in part, or in the whole amount of $5,000, the maximum recoverable under the policy, however, permitting an unconditional judgment for $500 upon this record, evidently representing attorney’s fees.

When the contract was made a premium was paid, as well as successive premiums by Rice, on the presumption that the building in course of construction- was covered by the risks in the policy. There is no proof whatever that the policy for 1914 was ever delivered by the insurance company or accepted by Rice. At some time before the attempted delivery of the policy, at a time when Rice was in a hurry to catch a train, Lefforge testified that he told Rice he had made “a little indorsement, extending the coverage on his policy.” He further said:

“I did not explain to him any further; he was leaving with some one. By coverage I mean the character of work a man carries on that would be included in the protection covered by the policy.”

How, in view of this statement, “the evidence shows that a policy different from the former policy,” except an enlargement in his favor, could be insisted upon is not apparent; however, the agent did not offer to deliver the policy, nor did Rice offer to accept it.

We also think the requested charge presented under the seventh assignment of error, to the effect that the insurance company and Rice should have intended and understood that the policy contracted for covered the risk incident to the construction of the particular building on which plaintiff received his injuries, is wholly inappropriate to the facts here. The minds of Rice and the agent fully met upon an adequate consideration for the renewal of the policy for 1913.

Under the fourth assignment, discussed by us as raising the question of the prematureness óf the suit, there is a proposition that a tort cannot be joined with a contract. This proposition is clearly not germane to the assignment; neither was this question as to Rice raised in any other manner before the trial judge.

There is a general demurrer to the cross-action of Rice, overruled by the trial court, under which the first proposition raises the same question as the plea in abatement; and the second proposition thereunder is a general demurrer of itself, with the third proposition, stating that allegations are insufficient, based upon an alleged contract to be executed in the future, which do not show that the proposed contract was executed and delivered, which latter is not appropriate to this record as pleaded and proven.

We have carefully examined all of the assignments, and conclude that no reviewable error is presented, and all are overruled. The original opinion in this case is withdrawn, and the judgment of the trial court is reformed and ordered affirmed, as indicated.

On Motion for Rehearing.

Appellant asserts that the following subdivision of the fourth assignment raised the question of misjoinder of causes of action and parties:

“Under the contract of insurance as pleaded by appellee Rice in his cross-action against appellant, there could be no liability until appel-lee Rice suffered loss by reason of paying a judgment for injuries suffered to an employé.”

We do not construe that this could raise the question, though the proposition under it attempts to do so, that Rice’s cause of action against the insurance company is improperly joined, or brought into the same suit of Thompson against Rice. It can mean nothing more than that Rice’s suit against the company was prematurely brought because the obligation had not matured, in that no loss was shown.

Motion for rehearing overruled.
      ^^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S==>Eor other oases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


author: PLY, C. J.

text:
    SAN ANTONIO, U. & G. R. CO. et al. v. VIVIAN.
    (No. 5548.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 8, 1915.)
    1. Receivers <&wkey;174 — Action Against — Leave oe Court.
    Absent permission of the federal court, which appointed him, a receiver of a railroad cannot, under the federal statute, be sued in a state court for an injury caused by the road before his appointment.
    [Ed. Note. — Por other cases, see Receivers, Cent. Dig. §§ 333-343; Dec. Dig. &wkey;174.]
    2. Carriers &wkey;>347 — Injury to Passenger Alighting from Moving Train — Contributory Negligence.
    That a passenger alights from a train moving slowly does not show contributory negligence per se, at least when done with the knowledge, assent and encouragement of the carrier’s employds.
    [Ed. Note. — Por other cases, see Carriers. Cent. Dig. §§ 1346, 1350-1886, 1388-1397, 1402; Dec. Dig. <&wkey;347.1
    3. Garetees <&wkey;333 — Injury to Passenger-Alighting from Moving Train — Contributory Negligence.
    Though a train is passing a passenger’s station, yet for him to alight when it is going fast, the danger from which should have been obvious to him, is contributory negligence, absent a showing that the danger was not apparent to him, and that he was induced by an employé of the carrier to do so.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 1385, 1386, 1388-1397; Dec. Dig. <&wkey;>333.]
    4. Carriers &wkey;>321 — Duty of Passenger-Instruction.
    An instruction as to the duty of a carrier to a passenger can be given without the use of the word “possible,” as in the expression “the highest degree of care possible.”
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. <&wkey;321.)
    5. Trial <&wkey;304 — Misconduct of Jury — Discussing Pees of Plaintiff’s Attorney.
    It is misconduct of the jury, in a personal injury case, to discuss or consider the fees of plaintiff’s attorney.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 725-727; Dec. Dig. &wkey;304.]
    Appeal from District Court, La Salle County;. J. P. Mullally, Judge.
    Action by Lafayette Vivian against the San Antonio, Uvalde & Gulf Railroad Company and another. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    Williams & Hartman, of San Antonio, for appellants. Magus Smith, of Pearsall, and Covey C. Thomas, of Cotulla, for appellee.
   PLY, C. J.

This is a suit for damages alleged to have accrued to appellee on account of personal injuries inflicted through the negligence of the railroad company. The suit was instituted against the railroad company and Duval West, its receiver. A trial by jury resulted in a verdict and judgment against appellants in favor of appellee in the sum of $10,000.

It was alleged by appellee that the receiver had been appointed since the institution of the suit, by the United States District Court; that his appointment occurred after the injuries were inflicted, and there was no allegation that permission had been obtained to sue the receiver. The trial court erred in not sustaining the general demurrer of the receiver to the petition, as no cause of action could lie against him under the federal statute. Morse v. Tackaberry, 134 S. W. 273; Andrews v. King, 170 S. W. 862.

The petition alleges that appellee was a passenger on a freight train, on his-way from Gardendale to Crystal City; that it was at night; that when the train neared Crystal City.some employé of appellant, as the railroad company will be designated, said to appellee, “We have got here,” and appellee attempted to get off the train, which was moving slowly, and fell and was injured; that the train was directly in front of the station when appellee attempted to alight; that no effort was made by any employé to warn appellee, who could not see well, of the danger of getting off, and no one offered to assist him. Under the facts pleaded, the general demurrer was properly overruled by the court. The fact that a passenger alights from a train moving slowly cannot be held to show negligence per se, especially when it is done with the knowledge of the employés and with their assent and encouragement. The train was moving slowly as it passed the station, and appellee was informed that he had reached his destination. There was an implied invitation to appellee, as he says he thought, to alight from the train. The facts alleged in this case distinguish it from the cases cited hy appellant. In the case of Railway v. Wallace, 139 S. W. 1052, a passenger jumped from a train while running at the rate of 20 miles an hour, after it had passed the point of destination of the passenger, and it was properly held that the facts made a clear ease of contributory negligence.

In the case of Railway v. Leslie, 57 Tex. 83, a passenger jumped from a rapidly moving train, and it was held that the facts made a clear case of contributory negligence on the part of the passenger. To the same effect are the cited cases of Railway v. Bigham, 90 Tex. 223, 38 S. W. 162; Railway v. Rowland, 90 Tex. 365, 38 S. W. 756, and Railway v. Highnote, 99 Tex. 23, 86 S. W. 923. In all of the cases it was held that the facts clearly showed contributory negligence, and not that the mere fact of a passenger alighting from a moving train was negligence as a matter of law. The allegations in the petition did not show contributory negligence as a matter of law, and the petition was not subject to general demurrer.

The facts, however, do not make out a case of negligence against appellant as alleged. It is alleged that appellee was old and partially blind; that, relying upon the statement of the conductor, or the employe who took up his ticket, appellee thought that he should alight; that he was not assisted by any one in alighting; that his age and partial blindness should have been known to appellant; and that he ought to have been told that the train could not or would not be stopped.

There was no'testimony tending to show that any employs knew the infirm condition of appellee, for, although 66 years of age, the burdens of those years should not, in the absence of sickness, have rendered him feeble, and indeed the evidence failed to show that he was infirm and, although he said his eyesight was impaired, he could see well enough to cultivate flowers and take care of the yard. He was in good health before the accident. He got on the train unassisted, and when he wanted to get off, he walked promptly to the door. He did not testify that his defective vision prevented him from seeing his way, and he had no difficuty in recognizing persons with whom he came in contact. He merely claimed that his “eyesight wasn’t very good at that time.” He seemed to be able at night to distinguish persons and keep up with matters happening around him. The railroad company, under - the facts, owed him no higher care than that owed to any ordinary passenger. A blind . or deaf person is bound to exercise the same, if not a greater, degree of care for his safety as others not so afflicted, and it has been held that more care in some respects is required of them than of those in the full possession of their faculties. Railway v. Garcia, 75 Tex. 583, 13 S. W. 223. Unless the infirmities of a passenger are known to the employSs of the carrier, their conduct toward him will be tested by the same rules as it would in the case of a normal human being. Elliott, Railroads, § 1172.

There was no invitation to appellee to leave the train, .unless one could be implied from the declaration, made by some one, that the point of destination had been reached. There was no invitation conveyed by the words to leave the train, but if there had been such an invitation, it would not give permission to the passenger to utterly disregard the rules of safety and get off a train going as fast as the one on which appellee was riding. The danger of getting off should have been obvious to appellee,- and his very infirmities should have warned him against such ’a course. No one, however, told ap-pellee to leave the moving train, and although it may have been passing the station, appellee should have waited. As said in the case of Railway v. Aspell, 23 Pa. 147, 62 Am. Dec. 323, and commended in Railway v. Highnote, herein cited:

“From, these principles, it follows very clearly that if a passenger is negligently carried beyond the station where he intended to stop, and where he had a right to be let off, he can recover compensation for the inconvenience, the loss of 'time, and the labor of traveling back, because these are the direct consequences of the wrong done to him. But if he is foolhardy enough to jump off without waiting for the train to stop, he does it at his own risk, because this is gross imprudence, for which he can blame nobody but himself. If there be any man who does not know that such, leaps are extremely dangerous, especially * * * in the dark, his friends should see that he does not travel by railroad.”

As said by Judge Brown in the Highnote Case:

“The general rule is that a passenger who leaves a train while in motion takes the risk of injury.”

There are exceptions to the rule, one of which is where the passenger is induced to leave a moving train by an employe when the danger of such leaving was not apparent to the passenger. While the allegations may have brought the case of appellee within the exception, the evidence utterly fails so to do. Railway v. Guess, 154 S. W. 1060.

The charge complained of in the twelfth assignment of error is copied bodily' from an opinion of the Court of Civil Appeals of the Fifth District in the case of Railway v. Woodall, 159 S. W. 1012, which was approved by that court, and while it maybe in conflict with the opinion in the ease of Railway v. Welch, 86 Tex. 203, 24 S. W. 390, herein cited, we deem it unnecessary to attempt a reconciliation of the two opinions. In case of another trial the court can give the law without antagonizing either of the decisions. We will not anticipate the repetition of a charge on the subject open to attack from a use of the word “possible.” A jury can be instructed as to the duty of a carrier to a passenger without the assistance of the word. There can be no objection to the charge on the care of the carrier to the passenger, copied in Railway y. Halloren, 53 Tex. 53, 37 Am. Rep. 744, which is approved as the correct rule of liability in the Welch Case.

The attorney’s fees of a plaintiff should never be discussed nor considered by a jury or jurors while considering their verdict in a death or personal injury case. Such fees can form no part of the damages, and It is reprehensible for a jury, regardless of the evidence, to allow such fees to enter into and become a part of the verdict, as was done in this case. There is a full discussion of like misconduct on the part of a jury by this court in the ease of San Antonio Traction Company v. Cassanova, 154 S. W. 1190, and the judgment was reversed and the cause remanded for that misconduct alone. The same action has been taken since by the Court of Civil Appeals of the Second District in Railway v. McKinnell, 173 S. W. 937.

Every matter which probably might arise on another trial has been considered, and, for the errors herein indicated, the judgment is reversed and the cause remanded.
      <gzs>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    VAUGHN v. MORRIS et al.
    (No. 820.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 4, 1915.)
    1. Corporations <&wkey;30 — Action job Services Rendered — Agreement to Pat.
    In an action against defendant, and others, to recover for surveying a proposed railroad, and for other services and advances prior to defendant’s participation in the enterprise, evidence held to show an express or implied agreement by defendant, who had received the benefit of the services and advances, to become liable therefor.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 97-100; Dec. Dig. &wkey;30.]
    2. Partnership &wkey;>44 — Existence — Promoters.
    Promoters of a railroad working together in furthering whatever scheme they have, in the absence of proof to the contrary, would he presumed to be partners.
    [Ed. Note — For other cases, see Partnership, Cent. Dig. §§ 61-63; Dec. Dig. &wkey;>44.]
    3. Corporations &wkey;>30 — Joint Liability.
    The expenses incurred by the promoters of a railroad enterprise in their preliminary work rendered them jointly and severally liable therefor.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 97-100; Dec. Dig. &wkey;>30.]
    4. Evidence <&wkey;249 — Declarations—Agent or Partner.
    In an action against promoters for services in surveying a proposed railroad and for other services and advances, the statement of a defendant and of plaintiff to certain declarations of another defendant concerning the promise of a third defendant to assume the first defendant’s contract with plaintiff, and a prospectus of the road showing the third defendant as the director and vice president were admissible against the first and second defendants.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 965-975; Dee. Dig. &wkey;249.J
    5. Trial <&wkey;255 — Requests — Limitation of Evidence.
    If such evidence should have been limited to two of the defendants, a proper request therefor should have been made by the third defendant.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. &wkey;255.]
    6. Corporations <&wkey;30 — Action—Evidence-Agency.
    In an action against promoters for services in surveying a proposed railroad, evidence held sufficient to show that a defendant had made another defendant agent for him, so as to be bound by his actions.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 97-100; Dec. Dig. &wkey;30.]
    Appeal from District Court, Potter County; Jas. N. Browning, Judge.
    Action by R. E. Morris against M. C. Vaughn and others, with cross-petition by Vaughn against certain other parties. Judgment for plaintiff and for cross-defendants, and defendant Vaughn appeals.
    Affirmed.
    Madden, Trulove, Ryburn & Pipkin, of Amarillo, and Sam G. Bratton, of Clovis, N. M., for appellant. Jones •& Miller and Ben H. Stone, all of Amarillo, for appellees.
   HUFF, C. J.

R. E. Morris brought this suit against R. E. Davis, M. C. Vaughn, J. J. Fry, and J. L. Jones, for the sum of $1,163.55, for services performed by him as an engineer In surveying or laying out in part a proposed line of railroad, for services rendered from November 1, 1912, to March, and in March, 1913, the alleged balance due thereon amounting to $481.30; $62.25 for board and $70 for work done by Morris Browning on said proposed line of road as rodman or head ehainman, and which was assigned to‘Morris; and also for the sum of $550 money advanced to R. E. Davis, which was used in paying the various expenses ,of promoting the line. This amount 'it is alleged was assumed by the above-named promoters and partners. It was agreed that the road should be incorporated by the promoters, and stock should be issued to Morns for the money so advanced. The road was not incorporated and the promotion was a failure. The appellee sued the promoting partners for the moneys so advanced by him, together with the above wages and expenses.

M. C. Vaughn answered specially, denying the allegation of liability as to him and by cross-petition alleged if it should be found he was a partner, then that certain other persons were also liable, naming them, and had them brought into the suit upon his cross-petition. The various other answers and pleadings will not be necessary to set out.

The trial court instructed a verdict for the parties brought in by the cross-petition of Vaughn. The jury found a verdict in favor of R. E. Morris, for $1,181.9-7, being the sum sued for, with interest thereon against M. O. Vaughn, J. J. Ery, R. E. Davis, and J. L. Jones, who it is recited in the judgment was not served, and he was discharged, with his costs.

Vaughn alone appeals. His first assignment complains of the refusal of the trial court to instruct a verdict for him, and also refusing to grant him a new trial because the evidence was not sufficient to support the verdict. There is no objection in this court to the amount of the verdict. The contention is that there is no evidence that appellant alone, or with the others, assumed the amount sued for, or that Ery was authorized to malte an agreement binding appellant to pay the amount. The evidence as to appellant’s liability is sharply conflicting. We believe Davis’ testimony, together with that of Morris1, and other circumstances, will support a finding that the appellant is liable, as charged. The evidence will warrant the finding that M. O. Vaughn, J. J. Fry, J. L. Jones, and R. E. Davis sought to promote a railroad company which was designated or called the Denver & San Antonio Railway Company. Davis originally conceived the scheme of tapping the Santa Eé, either at Clovis or Texico, N. M., and his proposition was first proposed to another party, who died, and before the contract sought to be established in ■this case was entered into. Davis employed appellee Morris as an engineer, agreeing with him upon his compensation as set out in the pleadings, and in order to procure money from him, agreed with Morris, a’fter incorporation, to issue to him stock in the corporation for the money so obtained. Under this agreement with Morris the work was to be done by him in New Mexico, between Ear-well and Tucumcari. Morris went to work on the road November 19, 1912. Erior to his doing so an agreement was entered into between Davis, Vaughn, and Ery, to promote the road in question. Vaughn had holdings or owned the townsite of Virginia City, south of Earwell, Tex., as well as several thousand acres surrounding it. He was at that time bringing immigrants into Texas, showing Ins land at the point named, and as an inducement to them to buy, represented he would try to get a railway down to his land. There was an old grade of road from Earwell south some miles, upon which appellant and Ery had an option, and he '(appellant) thought if he could get work started up, checking up the old grade, it would assist him in selling the land. It was necessary to check up the grade in order to get its value. In talking this matter over with Vaughn, 'Davis told him he had a man who would be down soon and that he could send him done on the work, to which Vaughn assented, and told Davis Ery would be up soon, and whatever he (Davis) and Ery did would be all right. Ery came on the 18th of November, and he and Davis agreed to send Morris to work, checking on the old grade above mentioned, and Ery, for himself, Vaughn, and Jones, agreed to assume Davis’ contract with Morris. Davis testified that to secure Morris he gave a lien on some Grady lots in New Mexico; that after he entered into arrangements with his associates for Morris to work between Ear-well and Virginia City, he, Vaughn, and Ery entered into agreement by which the Grady property was to be released and instead thereof a lien given on the Virginia City property, to secure the payment of Morris and other expenses; but it appears the deed, when it came, did not convey the 200 lots which was to cover the expenses of Davis. There was a deed of trust executed on 3,700 lots, upon which bonds were to issue and be sold by Ery, for promoting purposes. It is shown that a prospectus was gotten out by Ery, describing the country and the proposed road in glowing terms. Vaughn was named therein as vice president and director, together with several others. It is further shown that Vaughn paid part of Morris’ board bill and probably some other expenses. Ery directed and superintended in a measure the work on the road and Morris worked under Ery and Davis. Ery was on the proposed route more frequently than any of the others. The evidence indicates that Morris’ advance of the money was after Vaughn became connected with the enterprise, and that it was used in expenses therein, but that it was advanced on the agreement first made between Morris and Davis.

The proposed promoters of this road were working together in 'furthering whatever scheme they had. Nothing appearing to the contrary, they will be presumed to be partners. Miller v. Hale, 96 Mo. App. 427, 70 S. W. 258. The expenses incurred while associated together as such promoters, in their then purported preliminary work, we think renders them jointly and severally liable. Weatherford v. Granger, 86 Tex. 350, 24 S. W. 795, 40 Am. St. Rep. 837. The work done was after the association had been formed and for their benefit in furtherance of the scheme. The money advanced was used on that work and in consideration that the work should be done south of Earwell in the direction of appellant’s land, he agreed with the other associates to assume the contract with appellee. Fry had the right to make the contract with Davis for Vaughn, if Davis’ testimony is true. The circumstances in this case, aside from the direct testimony of Davis and Morris, point to a joint enterprise on the part of the parties named in the petition. Vaughn ordinarily would not be liable for debts already incurred prior to his becoming a party to the enterprise, in the absence of an agreement to that effect, express or implied. The evidence we think sufficient to authorize the finding of such an agreement. The services were rendered and the money advanced, were used in promoting the scheme after' Vaughn became a party thereto; in other words, he got the benefit of the work and money, even though the agreement to perform the one and to furnish the other had been made previous to his entrance therein. Rodgers v. Wynn, 156 S. W. 373; Freeman v. Hullig, 105 Tex. 560, 153 S. W. 122. The first assignment is overruled.

We do not think paragraph 5 of the court’s charge subject to the objections urged in assignments Nos. 2, 3, 4, and 5. These assignments are overruled.

The statement of Davis and Morris to certain declarations of Fry, concerning the agreement and promise of Vaughn to assume Davis’ contract with Morris, and the introduction of a certain folder or prospectus of the road, giving Vaughn as one of the directors and as vice president of the proposed road, was objected to because it was not shown that Fry was the agent of Vaughn and had a right to make the agreement or to issue the folder in the manner he did. The testimony was certainly admissible against Davis and Fry. If it should have been limited to them a proper reguest should have been made by Vaughn.

We find no such request made; but if Davis’ testimony is' true, Vaughn left all the matters relative to this undertaking in the hands of Fry, to act for him fully in the matters and clothed Fry with ample authority for that purpose. Vaughn paid some of Morris’ expenses and it would appear that he ratified fully Fry’s acts. He executed the deed of trust on the Virginia City lots as agreed upon, in order to get money to promote the enterprise. There was, we believe, sufficient evidence of agency to bind Vaughn and also ratification to admit the evidence.

There is no such error assigned in the admission of the testimony objected to as will sustain the assignments of error as to its admission. We do not find any reversible error assigned, and the case will be affirmed.
      <gzzoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    AMERICAN MFG. CO. et al. v. O. C. FREY HARDWARE CO.
    (No. 1504.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 2, 1915.)
    1. Trial <&wkey;251 — Instructions—Conformity to Pleading — Admission by Failure to Deny.
    Where a clause in a contract for an advertising scheme was pleaded as a part of the contract, and its presence therein not denied, but defendants disputed its truth as a representation, the submission of its truth or falsity to the jury was not error, since, under Vernon’s Sayles’ Ann. CSv. St. 1014, art. 1902, providing that defendant must plead to each fact alleged in the petition, and that facts not so pleaded to shall be taken as confessed, the statement was properly in the case as admitted.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. &wkey;251.]
    2. Contracts i&wkey;94 — Construction — Rep-resen tatio ns — Falsity.
    Where a contract for an advertising scheme contained the statement, “We are doing [business] at the rate of $180,000.00 a year,” and the evidence showed that sum to be an estimate, based on the sales for 30 days preceding the contract, it was not error to instruct the jury to find that the statement was true, on evidence that the sales for that period, if continued for 12 months, would exceed that sum.
    [Ed. Note. — For other cases, see Contracts, Cent Dig. §§ 42(1-430, 1160, 1164, 1165; Dec. Dig. <&wkey;94J
    3.Contracts <&wkey;22 —Consent to Terms — Knowledge.
    Where a contract for an advertising scheme-contained the statement. “We are doing [business] . at the rate of $180,000.00 a year,” written m above the printed words, “Our last twelve months’ sales were $-,” the defendant must be held to have understood the words m accepting the contract as being only an estimate based on sales for a period directly preceding the contract, and not a statement of actual sales for the preceding year, and failure of his agent to communicate the basis of the estimate would not provide a defense.
    ula- ■^:0t6;.T'J£or other oases, see Contracts, Cent Dig- §§ 67, 82-92, 104-108; Dec. Dig.
    4.Corporations &wkey;447 — Contracts—Ultra Vires Acts.
    The contract of a hardware company for an- advertising scheme to extend its sales is in furtherance of its usual business and within its powers to make.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1786,1788,1807; Dec.Dig. &wkey;447.]
    5.Trial <&wkey;350 — Questions por Jury — Conflicting Evidence.
    It is not error to refuse to submit special questions fpr the jury, where the evidence on those questions is undisputed.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §| 828-833; Dec. Dig. &wkey;350.]
    Appeal from District Court, Lamar County; A. P. Dohoney, Judge.
    Action by the O. C. Frey Hardware Company against the American Manufacturing Company and another. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    This is an action on a contract entered into between appellee, a corporation, and the American Manufacturing Company, a corporation, on June 13, 1912. The case was submitted to a jury on special issues, and upon their verdict the court entered a judgment in favor of the appellee. The contract, as pleaded by appellee, is as follows:
    “American Manufacturing Company, Incorporated, Chicago, Ill.; ’Lexington, Tenn. Automobile Advertising Order. This order consists of the following: 1 Howard five passenger touring ' car, described on reverse side; one book, ‘How to Successfully Conduct the Contest and How to Increase Your Business;’ 3,000 circulars; 20 posters; 350 nominating letters; 350 follow-un letters; 1,000 $5.00 trading books; 1 set display cards, signs; Í642-piece dinner sets; 1,000 contestant post cards; 1 voting register; 50 bulletins; 1 electric plate of automobile; 45,000 certificates in three colors for automobile votes in denominations of five cents, one dollar, twenty-five, ten cents, five dollars, twenty-five cents, ten dollars, hundred dollars, fifty cents.
    Price .$2,000 00
    Less allowance for settlement with order . 200 00
    Net .$1,800 00
    “P. O., Paris; state, Texas.
    “American Manufacturing Company, Chicago, Ill.; Lexington, Tenn. — Gentlemen: Please reserve and ship to us at your earliest convenience, f. o. b. factory, your automobile, 16 dinner sets and advertising matter, described on this and reverse side, in payment for which we hereby hand you our eight notes for $1,800 payable to your order. We are doing at the rate of $180,000. Our next twelve months sales are to be $240,000.00, if this order is not approved the notes are to be canceled and returned to us. If % per cent, of our gross sales for the next twelve months does not amount to eighteen hundred dollars ($1,800.00) you will pay us the deficiency in cash at the rate of .03 cents on each dollar you fall short and send us your bond for $1,800.00 to cover this agreement with us. To make this last above clause binding upon you, we agree to take the shipments promptly, carry out the contest plan, promptly meet all obligations entered into under this agreement, keep the automobile well displayed in our place of business, issue automobile votes for each cent purchased and every sixty days of this contest to report to you our gross sales, for one year and promptly furnish you all information you request to enable you to assist in pushing the contest. In consideration of the special methods, set forth in your copyrighted plan, and the terms and agreements herein, this order cannot be countermanded. The title to automobile to remain in vendor until fully paid. Any verbal or written agreement not embraced herein will not be recognized and is not binding on vendor. Date for closing contest. Dec. 24, 1912. (Date for closing contest must be given.) [Signed] O. C. Frey Hdw. Co., Purchaser, by McCollough. Town, Paris; county, Lamar; state, Texas. Freight station, Paris; express office, Paris. Salesman: E. L. H. Reed. [Seal.] Date, June 13, 1912.”
    Appellants by their answer admitted the pleaded contract to be true and correct. The contract in evidence, though, showed unerased printed words as follows: “Our last twelve months’ sales were $-and above these printed words were written words as follows: “We are doing at the rate of $180,-000.00 a year.” It is concluded that under the pleading and answer the admission that the written words of the statement or representation therein must, in point of fact, be taken as the true statement or representation. It appears that E. H. L. Reed was the traveling salesman on commission of the manufacturing company, and sent in to appellant the order so taken, and the same was, by the manufacturing company, approved and adopted about June 15, 1912. The agent did not have authority to close the contract, but it was required to be forwarded to thq company for approval or rejection.. The manufacturing company, with the exception of the damages sued for, complied with its part of the terms of agreement, and also executed the bond of indemnity. The judgment of the trial court comprehends the finding of fact that the appellee hardware company paid the notes and carried out and complied with all the terms and conditions of the agreement and the contract, made the reports, and gave information and did not, in any respect, violate the same or permit illegal notes; and there is evidence to warrant such findings of fact. The jury made the finding that the statement or representation, “We are doing at the rate of $180,000.00 a year,” was true and not false, and there is evidence to sustain the finding. The evidence shows, and it is here found, as a fact that the sales of the hardware company, beginning June 13, 1912, and ending June 13, 1913, amounted to $141,-283.63.
    Wright & Patrick, of Paris, for appellants. Park, Moore & Hardison, of Paris, for appel-lee.
   LEVY, J.

(after stating the facts as above).

The following, in the form of a special issue, was submitted by the court to the jury:

“Question 1. The contract in controversy contains the following statement: We are doing at the rate of $180,000.00 a year.’ Was said statement true or false?”

And, further, the court instructed the jury:

“In connection with question No. 1 submitted to you, as to whether the statement in the contract in controversy that plaintiff was ‘doing at the rate of $180,000.00 per year’ was true or false, I further charge you that said statement does not mean that plaintiff had done a $180,-000 business fot the preceding year; the question for you to determine is for what length of time less than a year the statement was intended to cover, and whether such statement, as intended and understood by the parties was true or false.”

The appellants’ complaint of the charge is based upon the contention that the court construed and submitted to the jury only a portion, and not the entire clause, of the particular statement or representation contained in the contract. It is thought error cannot be predicated upon the issue in the language and manner as submitted to the jury, for the court followed and was authorized by the pleadings of the parties so to do. The appellee pleads, in paragraph 2, that the parties entered into a contract on June 13, 1912, and attached a copy of the contract as Exhibit A to the petition, and asked that it be made a part of the petition. The exhibit contains the two separate representations or statements: “We are doing at the rate of $180,000.00” and “Our next twelve months’ sales are to be $240,000.00.” The first statement or representation is the one the court was submitting to the jury for finding as to its truth or falsity in fact. The answer of each appellant is:

“2. That the matters alleged by the plaintiff in the second paragraph of his petition, and numbered two therein, according to the information and belief of this defendant, are true, and the E'xhibit A attached to said petition is. a true and correct copy, except the words ‘Our last twelve months’ sales were $180,000.00,’ but this defendant avers that said contract, so pleaded, was void and illegal, for the reason that same was ultra vires and beyond the power of plaintiff to execute under its charter and the laws of the state of Texas, and plaintiff cannot recover thereon.”

The legal effect of the answer therefore is to admit that the pleading of appellee states as a fact the true and correct representation or statement made and appearing in the contract, which was, “We are doing at the rate of $18,000.00 a year.” The admission closed any controversy of fact as to the wording of the representation or statement made and intended in the contract. Article 1902 Yernon’s Sayles’ Stat. And, further pleading as a defense, as appellants did, that the appellee had knowingly misrepresented the amount of annual business done, the court was required to submit, as he did, to the jury for finding respecting the truth or falsity of the precise statement, pleaded and admitted as a fact to be correct, “We are doing at the rate of $180,000.00 a year.” And the interpretation of the statement by the court is not erroneous. The words “at the rate of $180,-000.00 a year” are not a declaration of the amount of actual sales annually made as a complete year, but mean that the amount of sales has been founded on an estimate of what the business may amount to in the current year.

The third assignment complains of the following special instruction, given at the request of appellee:

“If you find from the evidence ¿hat the clause in the contract reading, ‘We are doing at the rate of $180,000.00 a year,’ was based upon the sales of the O. C. Erey Hardware Company for the 30 days previous to the date of said contract, and that this was understood and agreed to at the time by the plaintiff and E. H. L. Reed, salesman for the defendant, then you will say in answer to said question 1 that the said statement was true.”

It was without dispute that the manager of the hardware company, making the contract and representation for the company, took and used the amount of the sales for the month next to the date of the contract as the basis of the estimation of what the business of the current year might be, and from these figures used the words in the representation, “We are doing at the rate of $180,000.00 a year.” The sales for the month so taken as the basis for estimation were shown, without conflict, to be in an amount which, if continuing for the next 12 months to that amount, would more than reach the estimation of $180,000 at the end of the current year. The evidence is without dispute that the sales, and to the amount for the month so shown, were actual and true, and the figures thereof conclusively warranted the estimation of $180,000 for the year. No other method was used in making the estimation. Therefore there was no evidence making issuable the truth of the amount of business done at the time of the contract and upon which was based the estimation in the statement. The words in the statement, “We are doing” business, could reasonably be interpreted by appellant, in accepting the contract, as meaning and referring to the present amount of business done by the hardware company at the time of the contract. And in accepting the contract, the appellant would be held to have fairly understood from the language of the representation that the hardware company was'estimating the sales of the current year by the method or standard of the amount of business being done at or immediately preceding the time of the contract. Consequently, the statement containing no specification of the manner nor of any special mode, besides the words “We are doing,” in which the ascertainment of the amount of the business was made, the appellants were not mislead in respect to the estimation by the mode or basis of estimation used by the hardware company, and which was shown, without dispute, to be true. And the proof only showing, as it did, that the amount of business done at and immediately preceding the date of the contract was used as the basis of estimation, the estimation and method of estimation would be within the words of the representation or statement, and would not be a misrepresentation or false statement thereof. And an injury to appellant could not be predicated on the charge upon the contention, either that the sales agent did not in fact communicate to appellants, or have authority to adopt, the particular mode of ascertainment of the estimated sales for the current year. The language of the statement or representation sufficiently apprised and disclosed to appellants, at the time they received the contract for adoption or rejection, that it was only an estimation, at the time of the contract, of what the sales might amount to at the end of the year, based on the amount of business done at and immediately preceding the date of the contract.

It is concluded that the verdict is supported by the evidence, and that the contract, being in furtherance only of the usual business of the hardware company, is not beyond the legal right of the appellee to make.

The fourth and seventh assignments of error are overruled.

The fifth assignment of error complains of the refusal of the court to submit to the jury certain special questions. It is concluded that reversible error is not shown, and the assignment should be overruled, for the evidence does not tend to raise an issue that persons related to employes of the hardware company were permitted to become contestants, and the correspondence and letters of the manufacturing company, about which there was no contradiction in the evidence, showed indisputably that the hardware company did furnish the reports of gross sales and information called for by the manufacturing company.

We have carefully examined the other assignments, and think they should be overruled, as presenting no error.

Judgment affirmed.
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author: HABB, J.

text:
    THORNBURG v. MOON.
    (No. 860.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 4, 1915.)
    1. ITkauds, Statute op <&wkey;26 — Debts op Third Person — Credit to Promisor.
    An agreement by a son, who desired to uphold his father’s credit and to obtain goods for the latter on credit, that he would be liable for a note executed by the father, is not within the statute of frauds and need not be in writing; the credit being extended to the son.
    [Ed. Note. — For other eases, see Frauds, Statute of, Cent. Dig. §§ 35-42%; Dec. Dig. &wkey;> 26.]
    2. Pleading <&wkey;ll — Conclusions — Agreements.
    A petition, averring it was orally agreed that defendant should be responsible for the note of another in consideration of plaintiff’s extension of credit, is sufficient, in pleading the conclusion, and need not set up the conversation.
    [Ed. Note. — Fot other cases, see Pleading, Cent. Dig. § 31; Dee. Dig. &wkey;>ll.]
    3. Account, Action on &wkey;>6 — Open Accounts —Items.
    A petition based upon an open account should be properly itemized.
    [Ed. Note. — For other cases, see Account, Action on, Cent. Dig. §§ 8-12; Dec. Dig. &wkey;>6.]
    4. Trial <&wkey;194 — Instructions—Weight op Evidence.
    Charges should not be on the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. &wkey;>194.]
    5. Trial <&wkey;192 — Instructions—Assumption op Facts.
    It is not improper for the court to assume uncontroverted facts.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 432-434; Dee. Dig. &wkey;192.]
    6. Trial <Sj=^>252 — Instructions' — Applicability to Issues.
    In an action on an account and note made by defendant’s father for which it was claimed defendant agreed to be responsible, where the defense of infancy was urged and defendant testified he did not think he owed anything to plaintiff, who extended credit to the father, a charge that the verdict should be for plaintiff on the open account in case, the jury believed he was entitled to recover was not proper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. &wkey;252.]
    7. Btlls and Notes <&wkey;46(B-NECESSARY Parties.
    In an action on a note executed by defendant’s father which it was claimed defendant agreed to pay, the father is not a necessary party.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1434r-1443; Dec. Dig. &wkey;> 460.]
    On Motion to Strike out Appellant’s Brief.
    8. Appeal and Error <&wkey;767 — Bribe— Sheet-CIENCY.
    A brief will not be stricken because of failure to refer to the pages of the record sustaining the points urged, where it was sufficient to apprise the court of appellant’s contentions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3102; Dec. Dig. &wkey;^767.]
    Appeal from Roberts County Court; J. E. Kinney, Judge. t
    Action by G. M. Moon against Orvale Thorn-burg. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    J. A. Holmes, of Miami, for appellant. Hoover & Dial, of Canadian, for appellee.
   HABB, J.

The following statement of the nature and result of the suit by appellant having been concurred in by appellee is adopted:

“This is a suit instituted by G. M. Moon on the 24th day of November, 1914, against Orvale Thornburg. The plaintiff alleged in his petition that on or about the 1st day of March, 1913, J. E. Thornburg, the father of the defendant herein, made,, executed, and delivered unto plaintiff his certain promissory note in the principal sum of $143.12, due six months after date, and payable to plaintiff, with interest at the rate of 10 per cent, per annum, from date until paid, and providing for 10 per cent, additional on principal and interest then due as attorney’s fees, if placed in the hands of an attorney for collection; that by reason of the execution and delivery of said note the said J. E. Thornburg, promised to become liable and bound to pay said note, and, default being made in the payment thereof, it has become necessary,' and plaintiff has placed said note in the hands of his attorneys for collection, and has agreed to pay said attorneys 10 per cent, on both principal and interest now due on said note for their services rendered and to be rendered; that defendant Orvale Thornburg, who is the son of J. E. Thornburg, in order to obtain credit with the plaintiff, who was then and is now engaged in the grocery business in the town of Miami, and in consideration of the advancement, of said credit, promised, agreed, and became liable and bound to pay the said note of J. E. Thornburg, and in consideration of the advancement of said credit to this defendant he adopted and made the said note of J. E. Thornburg his indebtedness; that, in pursuance of the above agreement, plaintiff sold to defendant goods, wares, and merchandise to the extent of $72.3(>, at the special instance and request of the defendant, and, but for which agreement to take up and make his own the said note abbve described, plaintiff would not have parted with the title and possession of said goods, wares, and merchandise; that said J. E. Thornburg is now, and has been since the making of said agreement, notoriously insolvent, and owes numerous and divers bills in the town of Miami and elsewhere, and said defendant knew the financial condition of his father, J. E. Thornburg, and the reputation he had obtained for himself, with reference to discharging his obligations, and in order to clear up and discharge the unenviable reputation of his father, and to better strengthen his credits, was a part of the consideration of the adoption by the defendant of the above-described notes as his own debt,” etc.

From a verdict and judgment in the sum of $262.60, this appeal is prosecuted.

The first, fourth, and fifth assignments assail the action of the court in overruling certain exceptions urged by appellant to appel-lee’s pleading, the substance of which is above stated. These exceptions, when taken together, are simply a general demurrer to the sufficiency of the petition, and under them it is contended that the matters alleged show the agreement to pay the note to be within the statute of frauds, and, because it is not alleged that such agreement was in writing, that it is unenforceable. All of the questions presented under these assignments have been discussed and determined adversely to appellant’s contention by this court in the cases of Harp v. Hamilton, 177 S. W. 565, and Enterprise Trading Co. v. Bank of Crowell, 167 S. W. 296.

What is here said also disposes of .appellant’s twelfth and thirteenth assignments.

By the second assignment appellant insists that the petition should disclose what was said by appellant and appellee at the time the agreement was entered into between them with reference to the .payment of the J. E. Thornburg note. The fact is. alleged that they did agree, and it is not proper to set out the evidence by which that fact would be established.

Appellant excepted to the petition in so far as it declared upon an open account, because it did not give .the dates and amounts of the several items which made up the total sum of §72.30. A petition based upon an open account should be properly itemized, and this exception should have been sustained. Hickaman v. Scudder-Gale Gro. Co., 62 S. W. 1081; Ralston v. Altman, 26 S. W. 746.

Complaint is made in the sixth assignment of special charge No. 1, requested by plaintiff and given to the jury, upon the ground that it is upon the weight of the evidence. We overrule this assignment.

Special charge No. 2, also given by the court, and made the basis of the seventh assignment, is, however, upon the weight of the evidence, and this assignment is sustained.

By 'th® eighth assignment appellant urges that the court erred in the third paragraph of the .charge in assuming that the defendant was a minor, and that he had subsequently reached his majority, and had failed to repudiate the debt within a reasonable time thereafter. It is not error for the court to assume undisputed facts. We are unable to tell from the statement following this assignment whether or not these facts were controverted.

Plaintiff’s fourth special charge, given by the court, is as follows:

“You are charged that you should return a verdict for the plaintiff upon said open account, an you believe from the evidence that he is entitled to.”

Appellant testified that he did ,not think he owed appellee anything. In the light of this evidence, the charge was improper. If the issues of appellant’s minority, when the promise, was made and his subsequent ratification thereof were raised by the evidence, appellant’s special charge embodying such issues should have been submitted to the jury, and the tenth assignment presenting this question is sustained.

Under the allegations in the petition, J. E. Thornburg, the father of appellant, was not a necessary party to the suit.

For the errors indicated, the judgment is reversed, and the cause remanded.

On Motion to Strike out Appellant’s Brief.

The grounds of the motion are principally because of the failure of the statements to refer to the pages of the record sustaining the points urged. In most instances the statements are sufficiently full to apprise us of the appellant’s contention. The rule is that where a statement under an assignment is reasonably full, and its accuracy is not questioned, the failure to refer to the page of the transcript verifying the statement will not warrant this court in refusing to consider the assignment. In the motion to quash appellee nowhere questions the correctness of the facts stated. Lewis v. Houston Electric Co., 39 Tex. Civ. App. 625, 88 S. W. 489, 112 S. W. 593.

The motion is overruled.
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