text:
    NELSON et al. v. SAN ANTONIO TRACTION CO. et al.
    (No. 2398.)
    (Supreme Court of Texas.
    April 14, 1915.)
    1. Contracts @=>303 — Breach—Effect.
    Where, under a contract to lay pavements for a traction company, the company refused to make the final payment, whereupon the contractor announced that he would not be bound by the agreement in the contract to maintain the pavement for ten years, the refusal to make the final payment, though no valid reason existed for such refusal, was not such an abandonment of the contract as prevented the company from enforcing its claim against the contractor for the cost to it of maintaining the pavement.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1409-1443; Dec. Dig. @=>303.]
    2. Contracts @=>306 — Breach—Performance by Other Party — Recovery.
    Under a contract to lay pavements which provided that the contractor would guarantee the pavement for ten years and repair defects therein, upon the contractor’s refusal to make necessary repairs, the other party had a right to make such repairs and recover the cost of doing the work from the contractor.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1528-1533; Dec. Dig. @=>306.]
    3. Limitation of Actions @=>03 — Operation and Effect — Payment or Offset.
    Where, under a contract to lay pavements, the contractor refused to keep the pavement in repair for ten years, as agreed, whereupon the other party made necessary repairs, the cost of making such repairs was not a payment on the contract price, a part of which had not been paid, but was in the nature of an offset, against which limitations ran from the time each item originated, as the amount to which such party was entitled on account of making such repairs was unascertainable, except by determining the cost of the work, and was recoverable by an action against the contractor, which would not be true of a payment.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 343; Dee. Dig. @=>63.]
    4. Limitation of Actions @=>41 — Computation of Period of Limitation — Offsets.
    In an action for a balance due on the contract price for laying pavements, amounts expended by defendant on the contractor’s failure to keep the pavement in repair for ten years, as required by the contract, were barred by limitations if they accrued more -than four years before the action was instituted or after the action was instituted, but more than four years before the plea of set-off was filed, but not if they became due and payable within four years before the suit was instituted.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 214, 215; Dec. Dig. @=>41.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Suit by the Parker Washington Company against J. P. Nelson and others, in which J. P. Nelson and another filed a cross-action against the San Antonio Traction Company. A judgment in favor of the Traction Company was affirmed by the Court of Civil Appeals (142 S. W. 146), and the cross-complainants bring error.
    Reversed and remanded, with instructions.
    Denman, Franklin & McGown, of San Antonio, and Geo. E. Shelley, of Austin, for plaintiffs in error. Templeton, Brooks, Napier & Ogden, of San Antonio, for defendant in error.
   BROWN, C. J.

We find it somewhat difficult to make a proper statement of the facts upon which the decision of this case depends, but we believe that it can be better accomplished by making liberal extracts from the opinion.of the Court of Civil Appeals (142 S. W. 146), which we do as follows :

“This suit was brought on May 22, 1905, by the Parker Washington Company against J. P. Nelson and others to recover the price which Nelson had agreed to pay plaintiff as his subcontract for certain work done for the San Antonio Traction Company under Nelson’s contract with it. and to foreclose a mechanic’s lien upon the property of said traction company. Other defendants in this petition were the Nelson Paving Company and the San Antonio Traction Company and the Uvalde Asphalt Company. Nelson and the Nelson Paving Company filed a cross-action to recover against, the traction company for what was due under Nelson’s contract with said company and to foreclose mechanic’s lien on the latter’s property.
“The traction company defended against said actions upon the ground that the work done by the Parker Washington Company was not in accordance with Nelson’s contract with it, and claimed that it had paid more for the work done than it was reasonably worth; and it also on January 3, 1911, filed a cross-action against Nelson and the Nelson Paving Company for breach of his contract with it. The case was determined by the trial court in special findings of the jury, supplemented with finding by the trial judge.
“The case comes here narrowed down to issues of law which concern solely the traction company and Nelson. It is therefore unnecessary to state in this opinion more from the voluminous record than is necessary to elucidate those issues.
“Nelson, on January 3,1901, entered into a contract with the San Antonio Traction Company to lay for it the certain asphalt pavements in controversy here, and to maintain and repair the same for a period of ten years. He assigned this contract to the Nelson Paving Company. Cn October 26. 1901. he and the Nelson Paving Company, by subcontract, turned the work over to the Parker Washington Company, and the Parker Washington Company laid the pavement in controversy, completing the same December 20, 1901. The traction company had agreed to pay Nelson certain prices, partly as the work progressed, and balance when the work was completed. The bulk of the price was paid during the progress of the work, but, when completed, the traction company refused to make the final payment.
“Nelson and the Nelson Paving Company had agreed to pay'the Parker Washington Company the price named in the contract, and, whenever Nelson received payments from the traction company, they were turned over to Parker Washington Company; but, when it came to the final payment, he refused to pay the Parker Washington Company, claiming that the money was not due from him until he was paid by the traction company; and Nelson announced that he refused to be bound by his contract to maintain the pavement and claims that his contract with the traction company to do so was discharged or terminated by said company’s breach of its contract in refusing to make the final payment.
“The findings, so far as material to this appeal, were that the work, when completed, was in accordance with Nelson’s contract; hence no valid reason existed in fact for the traction company’s refusal to make the final payment when it was due. That Nelson was entitled to recover from it the sum of $18,516.52; this being the balance of the contract price, $11,819.51, with interest thereon to the date of the decree. There was also a finding that the San Antonio Traction Company was entitled to recover on its cross-action against Nelson and the Nelson Paving Company, the sum of $15,714.40 and $3,491.00 interest thereon to date of decree, making $19,205.60, for breach of Nelson’s contract to maintain.
“The above allowance to the traction company resulted in a judgment being rendered in favor of said company against Nelson and the Nelson Paving Company for the difference, $6S9.08. * * * The provision of the contract on this subject reads as follows: ‘The contractor agrees to guarantee the pavement for a period of ten (10) years from the date of acceptance, which shall be when open to traffic, and during said period all defects in said pavement upon notice from the railway company or the city engineer or city council, shall be immediately repaired by the contractor at his own cost and expense and free of cost to the railway company or to the city of San Antonio, said contractor agreeing that before he shall receive any money on this contract he will furnish to the railway company a bond in the sum of seventeen thousand dollars ($17,000.00) to be guaranteed by some surety company acceptable to the railway company, conditioned that said contractor shall faithfully maintain said pavement for said period of ten (10) years, and shall pay all costs of repairing the pavement to be constructed hereunder during the said period of ten (10) years. The repairs shall be made at the time and in the manner and under the conditions specified in the contract of the city of San Antonio with the Parker-Washington Company.’
“Nothing is found in the contract which conditioned the above obligation upon compliance by the traction company of its obligations to make payments in accordance with the contract. The fact is that the contract price it was to pay for the work amounted to $93,554.30, and it had paid during the progress of the work all but $11,819.51.”

The application for writ of error is based upon the following two grounds: First. That the traction company had, by refusing to pay the sum sued for, repudiated the contract between Nelson and the said traction company, and therefore could not make a defense under that contract. Second. That the claim of the traction company was barred by the statute of limitation of four years.

There was no abandonment of the contract by the traction company, as the evidence appears in the record, hut its demand was simply an enforcement of the terms of the contract by which it was entitled to a credit upon a balance due to the Nelson Company for the cost that it had been put to in maintaining the pavement. In the terms of the contract itself, the cost of the work of maintaining it was included in the sum agreed to be paid by the traction company.

The claim set up by the traction company for a reduction of the demand made by the Nelson Company for the construction of the pavement was based upon the refusal of Nelson to perform his part of the contract for the construction and upkeep of the pavement itself. When the Nelson Company refused to make the necessary repairs upon the pavement in accordance with their contract, they were guilty of a breach of that contract, and the 'traction company, being bound to the city to perform that work, had the right to perform it in accordance with its contract, and the measure of its recompense would be the cost to it of performing the work which Nelson had contracted to do, but had failed to perform. In order to determine the question of limitation upon this claim of the traction company against Nelson, we must ascertain what the contract was, and what the rights of the parties were under it. There was no sum specified to be paid by the traction company for the keeping of the pavement in repair. It was all embraced in one lumpr sum, which was the price to be paid for the building of the pavement as well as the repairing of it. Therefore, when Nelson refused to perform his part of the contract with regard to the pavement, he was guilty of a breach of the terms of the said contract, and the traction company was entitled, under the terms of that contract, to do the work itself, and its measure of compensation for so doing would be the cost to it of the work.

To determine the question of limitation upon the claim of the traction company for the work thus done, we must first ascertain whether it constituted a payment to Nelson on the contract price for the whole work of constructing and keeping the pavement in repair. If it was not a payment, then it must have been in the nature of an offset, because it could not be both, and the question arises, which is of some difficulty: Can it be considered in any sense a payment?

There being no definite sum specified to be paid for the keeping of the pavement in repair, to ascertain the rights of the parties it was necessary to determine what it cost to perform the work when done by the traction company. This being the case, it cannot be said that the performance of the work was the payment of any part of the price specified in the contract with. Nelson. There was not a definite sum to be paid in satisfaction of that or for any portion of it, and it cannot be claimed as a credit, because it was unascertainable, except by determining what the work actually cost the traction company. We therefore conclude upon these facts that the cost of maintaining the pavement paid by the traction company and claimed as a credit upon its obligation did not have the effect to satisfy so much of the obligation of the Nelson company; there being no specified sum to which it could be applied. It was in law a breach of the contract on the part of Nelson to refuse to perform that work, and the right of the traction company was to recover damages; that is, the amount which it cost it to do the work which Nelson refused to do.

A sound and safe test in determining whether a claim of this character is to be regarded as a payment and satisfaction pro tanto of the claim of the opposite party or simply as a counterclaim or set-off which it has a right to assert in satisfaction thereof is: If it was a payment on Nelson’s contract, then the traction company could not have maintained any suit against Nelson to enforce that credit until action had been brought upon the original contract by Nelson, and it would then be applicable as a payment strictly. In this case there was, as we stated above,' no definite sum specified in the contract, upon which the damages claimed by the traction company could be ascertained, but it was necessary, in order to determine that question, that there should be proof of what the work cost the traction company, which would be the measure of their damages for the breach of the contract.

It is well settled in the authorities and beyond question that, if the traction company co.uld have maintained the suit against Nelson to recover the amount paid for the repairs on' the pavement, it was not a payment upon the sum agreed to be paid to Nelson, but would constitute damages which it was entitled to recover because the failure of Nelson to perform the work compelled the defendant in error, in performance of its contract with the city, to pay the amount claimed. In no sense can this be said to be a payment by the traction company to Nelson for the work of constructing the pavement and his obligation to keep it in repair.

The conclusion then is necessarily reached that if it was the subject of an independent action by the traction company against Nelson, and did not constitute payment to Nelson for any part of the contract made with the traction company, the statute of limitation would begin to run from the time each item of the claim against Nelson originated; and, if due and payable more than four years before the institution of the action by Nelson against the traction company, such claims of the traction company were barred by the statute of limitation. Holliman v. Rogers, 6 Tex. 91; Walker v. Fearhake, 22 Tex. Civ. App. 61, 52 S. W. 629.

The plea of limitation by Nelson against all claims which had accrued more than four years prior to the institution of his suit against the traction company should have been sustained, and the refusal of the court to sustain that plea of limitation against such claims was such error as to make it necessary that the judgment should be reversed, but such items as accrued less than four years prior to the institution of the suit by Nelson were not barred. Crook v. McGreal, 3 Tex. 487. The claims of the traction company against Nelson which accrued after the institution of the latter’s suit, but more than four years before the traction company filed its plea of set-off, were also barred.

It is therefore ordered that the judgment of the Court of Civil Appeals be reversed, and the cause be remanded to the district court for another trial, with instructions to follow this opinion in determining this issue between the parties.
      <g=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    HART v. STATE.
    (No. 3477.)
    (Court of Criminal Appeals of Texas.
    March 17, 1915.
    Rehearing Denied April 21, 1915.)
    1. Criminal Law <©=>1159 — Appeal—Review.
    The credibility of the witnesses is for the jury, and the appellate court cannot, where the state’s testimony was not unreasonable, reverse a conviction on the ground that the testimony on which it was based was not worthy of the belief.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. <©=> 1159.]
    2. Witnesses <©=>344 — Impeachment — Specific Act.
    Where accused’s witnesses were allowed to testify that the reputation of the prosecutrix for virtue was bad, they cannot give specific facts showing the reputation to be deserved.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1120, 1125; Dec. Dig. <©=>344.]
    3. Witnesses <©=>318 — Corroboration of Unimpeached Witness — Hearsay.
    Where accused took the stand and contradicted the prosecutrix, he cannot, his reputation for veracity not having been attacked, show that he told other witnesses of statements by prosecutrix which tended to corroborate his own testimony.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1084-1086; Dec. Dig. <©=>318.]
    4. Seduction <©=>36 — Defenses.
    That after accused had led her astray, prosecutrix submitted herself to other men, was no defense.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. § 62; Dec. Dig. <©=>36.]
    5. Criminal Law <©=>814^Instbuctions — Applicability to Evidence.
    In a prosecution for seduction, where there was nd evidence that px-osecutrix had intercourse with others, an instruction on that issue was properly refused.
    [Ed. Note.—For other cases, see Criminal Haw, Cent. Dig. §§ 1821,1833,1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. <&wkey;>814.]
    Appeal from District Court, Fayette County; Frank S. Roberts, Judge.
    Willie Hart was convicted of seduction, and he appeals.
    Affirmed.
    S. L. Staples, of Smithville, and John T. Duncan, of La Grange, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

Appellant insists that the testimony of Sallie Barree, who testified to facts which would show seduction, if believed, is unworthy of belief, and that the testimony of A. F. Hill, who testified that appellant admitted to him that he had had intercourse with the girl, and that he had promised to marry her, is likewise unworthy of belief. The jury, under our law, is the judge of the credibility of the witnesses. It is only in those cases where the testimony offered in behalf of the state, if true, does not make a case, we are authorized to set aside the verdict on account of the insufficiency of the testimony. The fact that we, if members of the jury, might or might not have found otherwise than the jury did find, does not authorize us to substitute our judgment for that of the judges of the facts under our law. Of course, if the testimony was unreasonable, or such that the average person could not and would not accept, we would be authorized to interfere. But where the testimony offered by the state is clear and explicit, and, if believed, authorizes a conviction, we cannot substitute our opinion of the facts for that of the 12 men sworn to pass on the evidence.

In two instances witnesses who swore that the reputation of Sallie Barree, in the community where she lived, for virtue and chastity, was bad, the appellant desired to ask them if they had heard rumors in the community that the prosecutrix had had a miscarriage. When the witnesses had testified that her reputation for virtue and chastity was' bad, this was as far as appellant, under the law, is permitted to go. He cannot elicit testimony of isolated facts upon which such reputation is based. The opposite party may go into these matters on cross-examination, but the person who introduces the witnesses is not permitted to do so on direct examination. Appellant’s able attorneys earnestly insist that this testimony should have been admitted to support their testimony that her reputation for virtue and Chastity was bad, but they cite no authorities in support of their contention. On the other hand, the rule has always been in conformity with the holding of the court in this case. In Forrester v. State, 38 Tex. Cr. R. 247, 42 S. W. 400, 401, it is held:

“On the examination in chief the general rule is thus stated: On direct examination of a witness introduced to prove the character or general reputation, ‘the evidence must be confined to general reputation; and no evidence is allowed of particular acts of good or bad conduct either to sustain or impeach character. To thoroughly comprehend the scope of this rule, we must understand the reasons upon which it is founded, which are the following: (1) Every person is supposed to be capable at any time of sustaining his general reputation; hut it would be unreasonable to expect any one to be prepared, without special notice, to answer an assault on his character, imputed by particular acts of bad conduct. (2) To allow such evidence, moreover, would lead to the mischief of raising any number of collateral issues, the trial of which might he almost interminable, and otherwise objectionable, as diverting the mind of the jury from the main issue,’ See 3 Rice on Crim. Ev. § 376, and authorities there cited; Boon v. Weathered, 23 Tex. 675.”

Again in several bills it is shown that appellant’s witnesses were not permitted to testify that “appellant had told them (the witnesses) of certain statements which he claimed Miss Barree had told him.” The state had not sought to impeach appellant’s reputation for truth and veracity; there was just a direct conflict between his testimony and that of Miss Barree. What Miss Barree may have told him could be testified to by appellant, but others could not be called to testify what appellant told them Miss Barree had said. This would be hearsay pure and simple.

The court gave all the special charges requested by appellant, except one, and in that he requested the court to charge the jury:

“If you believe from the evidence that the defendant did engage himself to marry her (Sallie Barree), but he afterwards discovered that the prosecutrix had intercourse with other male persons, then he would not be compelled to marry her, and could not be prosecuted or convicted on- a charge of seduction.”

The court did instruct the jury, at the request of appellant:

“I charge you that, before you can convict the defendant, the state must prove, beyond a reasonable doubt, that Sallie Barree, the pros-ecutrix, was a virgin, and that she had never had sexual intercourse with a man at or prior to the 1st day of September, 1913; and, if you have a reasonable doubt as to whether the state has proved this fact, you will find the defendant not guilty.”

Also at the instance of appellant:

“I charge you further that if you believe that the prosecutrix Sallie Barree, prior to the 1st of September, 19Í3, had carnal intercourse with the defendant or any other male person, you will find the defendant not guilty.”

The prosecutrix in her testimony says the engagement took place in June, 1913, and thereafter, on or about the 1st of September, 1913, the first act of intercourse occurred. Among other defenses made by appellant was that he and others had had carnal knowledge of the prosecutrix prior to this time. It is seen that the court not only in his main charge submitted that issue to the jury, but gave the two special charges requested by appellant. He did not err in refusing to give the third special charge, from which the above excerpt is copied, for if Miss Barree was a virgin, and appellant led her estray under a promise of marriage, the crime was then committed; and, although she might afterwards submit to others, this would be no defense to the crime already committed by appellant. But we might say in this connection there is no evidence that she after September 1, 1913, ever submitted to any other person than appellant.

Appellant by two of his brothers, and by two other witnesses whose families were united by marriage to appellant, made a severe assault on the reputation of the prose-cutrix for chastity. They not only testify to her bad reputation, but also testify they themselves had had carnal knowledge of her. This she most emphatically denied, and the jury find she told the truth. Her testimony on essential features is corroborated by Mr. Hill.

No error in the record being pointed out in the bills of exception or the motion for a new trial, the judgment is affirmed.
      <©=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      (§nr?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    BRUNSON et al. v. DAWSON STATE BANK.
    (No. 7210.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 16, 1915.
    On Motion for Rehearing, April 10, 1915.)
    1. Courts &wkey;>122 — Jurisdiction—Amount in Controversy — Pleadings.
    As regards jurisdiction of the county court, defendants’ plea that one of the notes sued on had been paid did not of itself lessen the amount put in controversy by plaintiff’s petition.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413, 427; Dec. Dig. &wkey;122J
    2. Courts <&wkey;121 — Jurisdiction—Amount in Controversy — Reconvention.
    Defendant by reconvening and praying for damages of $274 conferred jurisdiction on the county court to determine all issues involved in the suit.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 410, 413-426, 428, 437, 450, 452, 45S, 459, 466; Dec. Dig. &wkey;121.]
    3. Trial <&wkey;260 — Instructions—Repetition.
    A requested charge, as far as correctly stating the law, being fully covered by the general charge, is properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dee. Dig. &wkey;260.]
    4. Courts <&wkey;121 — Jurisdiction—Amount in Controversy.
    Jurisdiction of the county court is not defeated merely because one of the notes sued on had been paid, and the other was for less than $200; it not appearing that it was fraudulently included to confer jurisdiction, but there being an honest difference of opinion as to its having been paid.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 410, 413-426, 428, 437, 450, 45¿, 458, 459, 466; Dec. Dig. &wkey;121.]
    5. Bills and Notes <&wkey;499 — Payment—Burden op Proof.
    The burden of proving payment, pleaded by defendant, of the note sued on, is on him, not-, withstanding proof of its payment being secured by cotton placed with plaintiff, especially when the evidence shows, or raises the issue, that plaintiff was not authorized to sell except at defendant’s request, and that he made none.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1682, 1695-1697;- Dec. Dig. <&wkey;499J
    6. Appeal and Error <&wkey;742 — Assignments of Error — Germane Proposition.
    The proposition that a contention of plaintiff was unduly emphasized in charges given at his request is not germane to defendant’s assignment of error to the refusal of a charge.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;742.]
    7. Chattel Mortgages @=^110 — Securing Future Debts.
    A chattel mortgage, reciting, “being desirous of securing the * * * same, and all other liabilities, * * * now existing and which may hereafter arise,” secures a note subsequently given by the mortgagor to the mortgagee, as well as one then given.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 192; Dec. Dig. &wkey;3ll0.]
    8. Chattel Mortgages &wkey;>110 — Securing Future Debt.
    For a chattel mortgage to secure a future debt, it need not show the amount of such debt, or by its terms limit the time within which it shall be incurred.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 192; Dec. Dig. &wkey;>110.]
    9. Sequestration <&wkey;12 — Affidavit for Issuance-Statement of Indebtedness.
    The affidavit for issuance of writ of sequestration, stating the total amount sued for, need not state the different items of indebtedness-claimed to be due, but it is enough that they are stated in the petition.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 11-16; Dec. Dig. <&wkey;12.]
    10. Sequestration <&wkey;12 — Bond—Sureties.
    One by making affidavit as agent for plaintiff for issuance of writ of sequestration did not make himself a party to the suit, so as to disqualify him to be a surety on the sequestration bond.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 11-16; Dec. Dig. <@=^12.]
    11. Chattel Mortgages <&wkey;279 — Sequestration — Grounds for Quashing — Variance in Pleadings.
    That plaintiffs’ amended petition, in addition to the allegation in the petition and in the affidavit of sequestration, giving the date of execution of the chattel mortgage securing subsequent debts, as August 19th, makes the further allegation that when a note» sued on, subsequently given, was executed, it was orally agreed that the mortgage should secure it, does not constitute such variance in plaintiff’s pleadings as to require quashing of the sequestration proceedings.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 529; Dec. Dig. &wkey;>279.]
    12. Sequestration &wkey;>20— Replevin — Liability on Bond.
    “The value of the property replevied” by defendant after sequestration, for which, under Rev. St. art. 7106, the sureties on the replevin bond are liable to plaintiff, is not limited to the amount stated in plaintiff’s petition and affidavit for sequestration, but is its market value at the date of the trial, as shown by the evidence.
    [Ed. Note. — For other eases, see Sequestration, Cent. Dig. §§ 42-49; Dec. Dig. <§=^20.]
    13. Sequestration &wkey;>20 — “Statutory Bond” or “Common-Law Bond.”
    A bond given on replevin of sequestered chattels is a “statutory bond,” and not _ a “common-law bond,” and so renders the sureties liable for the full value of the property, though, instead of being conditioned to pay “the” value of the property, as provided by the statute, it is conditioned to pay “said” value, theretofore recited at the amount stated in the affidavit for sequestration.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 42 — 49; Dec. Dig. <S&wkey;20.
    For other definitions, see Words and Phrases, Second Series, Common-Law Bond; also, First and Second Series, Statutory Bond.]
    14. Sequestration (&wkey;21 — Wrongful Se-QUESTRATIO N — LIABILITY.
    Exercise by sequestration of the right given one by his chattel mortgage to take possession of the property on default in payment of the secured debt cannot make him liable as for wrongful sequestration.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 50434; Dec. Dig. <&wkey;>21.]
    On Motion for Rehearing.
    15. Bills and Notes <&wkey;137 — Extension of Payment — Evidence.
    A finding of extension of time of payment of a note is not authorized by mere evidence that the maker requested the payee bank for an extension, and that it promised it would make one; no terms of extension being mentioned, and nothing further being done,
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 334-337; Dec. Dig. <&wkey;> 137.]
    16. Sequestration <&wkey;21 — Injury to Property — Liability.
    The liability for injury of property sequestered while in the exclusive control and safekeeping of the officer levying the writ is his, and not that of the person obtaining the writ.
    [Ed; Note. — For other cases, see Sequestration, Cent. Dig. §§ 50-54; Dec. Dig. <&wkey;>21.]
    Error from Navarro County Court; R. R. Owen, Judge.
    Action by the Dawson State Bank against G. W. Brunson. Judgment for plaintiff, and defendant and the sureties on his replevin bond bring error.
    Affirmed.
    J. S. Callicutt and Hawkins Scarborough, both of Corsicana, for plaintiffs in error. Luther Johnson, of Corsicana, for defendant in error.
   TALBOT, J.

The defendant in error, hereinafter called plaintiff, brought this suit January 20, 1912, against G. W. Brunson, one of the plaintiffs in error, hereinafter referred to as defendant, to recover on two promissory notes, one for $152.50, dated August 19, 1911, payable October 1, 1911, with interest at the rate of 10 per cent, per annum after maturity and providing for 10 per cent, attorneys’ fees, and the other for $202, dated September 30, 1911, payable November 1, 1911, and providing for the payment of a like interest and attorneys’ fees. The suit was also to foreclose a chattel mortgage given by the defendant August 19, 1911, on two mules, which recited, in effect, that it was executed by the defendant to secure the payment of the first above-mentioned note, and any other claim or demand that should thereafter arise and become due by the defendant to the plaintiff, and authorized the plaintiff or its officers upon default in the payment of the defendant’s indebtedness, or any part of the same at the maturity thereof, to sell or cause to be sold said mules either at public or private sale, with or without notice to defendant or the public. The plaintiff alleged and the evidence warrants the finding that, at the time of the execution and delivery of the said note of $202, it was stated and expressly understood and agreed between the defendant and the plaintiff’s cashier that the mortgage theretofore executed by the defendant on the two mules did and should secure the payment of said $202 note. Plaintiff, at the institution of the suit, sued out a writ of sequestration, alleging in its affidavit therefor that the mules covered by its mortgage were of the value of $100 each, and of the total value of $200. This affidavit was made by E. W. Munsey as the agent of the plaintiff, and alleged that the two mules upon which its mortgage lien existed were in the possession of the defendant in Navarro county, Tex., and that the affiant feared the defendant would remove them out of said county during the pendency of the suit. The sequestration bond executed by the plaintiff was signed by the said E. W. Munsey and B. B. Munsey as sureties, and the writ of sequestration was issued and immediately levied on the two mules described in the mortgage. On January 26, 1912, the defendant replevied the. mules by giving bond in the sum of $400, which recited that the mules had been valued by the officer levying the writ of sequestration, at $100 each, with plaintiffs in error J. S. Callicutt and E. O. Call as sureties on said bond. The condition of the replevin bond is that the defendant G. W. Brunson will not remove the two mules out of Navarro county, Tex., during the pen-dency of the suit, and that he will have them forthcoming to abide the decision of the court, “or that he will pay the said value thereof in case he shall be condemned so to do.” The defendant moved to.quash the sequestration proceedings, and this motion was by the court overruled. Defendant then pleaded to the jurisdiction of the court, alleging that the $202 sued on by plaintiff had been paid off and discharged before the filing of the suit, and that as the first note mentioned was less than $200, and the value of the two mules covered by the mortgage sought to be foreclosed was stated'in the affidavit to be $200, the amount in controversy was below the jurisdiction of the county court. Defendant further pleaded a general demurrer, general denial, and specially under oath that he never executed any lien upon the two mules seized under the writ of sequestration to secure the payment of the $202 note, and that it was never intended by plaintiff and defendant that said $202 note should be secured by any mortgage or lien whatever on said mules. He alleged that at the time of the execution of said $202 note it was secured by six bales of cotton, the receipts of which were turned over to the plaintiff at the time, and that that was the security on which he borrowed $202 from the- plaintiff, evidenced by the second note sued on. He alleged and claimed that the real contract between plaintiff and defendant was that the mortgage on the. mules was to secure no other indebtedness except the $152.50 note, and that the statement in the mortgage to the effect that said mortgage might secure indebtedness which might thereafter arise was not called to defendant’s attention and was not agreed to by him, and that there was no contract or trade between plaintiff and defendant that the mortgage on the mules was to secure any indebtedness other than the $152.50 note. Defendant also pleaded that both notes were usurious, ánd that said $202 note was fully paid off and discharged by the deposit of six bales of cotton with the plaintiff for that purpose. Defendant also by plea in reconvention sought to recover of the plaintiff and E. W. Muhsey actual and exemplary damages for the alleged wrongful and malicious suing out of the writ of sequestration, charging, in substance, among other things, that the officer making the levy of said writ at the instance of the plaintiff carried the mules levied on a distance of 22 miles, placed them in a wagon yard in Cor-sicana and kept them five or six days; that while said mules were in the possession of the officer they were damaged to the extent of $25 by improper care and want of feed; that one of said mules was further damaged $25 while in the possession of the officer who levied the writ of sequestration, by a piece of stick being stuck in his head. Defendant also asked for $1.50 per day for the' loss of the use of his mules, $2.50 per day for lost time in replevying the mules, $5 for his trouble ánd time in taking the mules back to his home. Defendant, also prayed for $50 attorneys’ fees and the further sum of $150 as exemplary damages.

The court instructed the jury that the defendant was not entitled to recover anything on his plea in reconvention, and submitted the issues arising on the plaintiff’s case in a general charge. The trial resulted in a verdict in favor of the plaintiff against the defendant for the sum of $412.62, and in favor of the plaintiff against J. S. Callicutt and E. O. Call, sureties on defendant’s replevin bond, for the sum of $350, being the value of the two mules as found by the jury. Judgment in accordance with the verdict was rendered February 8, 1913, and the case is now before this court on writ of error.

The first, second, and third assignments of error relate to the question of jurisdiction raised by the defendant’s pleadings. We do not think the case should be reversed for either of the reasons urged in these assignments. The two notes sued on aggregate more than $200 and less than $1,-000, and hence it appears upon the face of the plaintiff’s petition that the county court had jurisdiction of the amount 'in controversy. The plea of the defendant that the $202 note sued on had been paid did not of itself lessen the amount put in controversy by the plaintiff’s petition. It simply raised the issue of the payment of said note as alleged by defendant and left in controversy the whole amount sued for by plaintiff. Besides, the defendant reconvened and prayed for damages against the plaintiff for the alleged wrongful and malicious suing out of the writ of sequestration in the sum of $272.-50 and this of itself conferred jurisdiction upon the county court to hear and determine all issues involved in the suit. Phelps v. Parker, 30 S. W. 365; Hardeman v. Morgan, 48 Tex. 103; Joyce v. Hagelstein, 163 S. W. 356. If, therefore, because of the alleged value of the mules in plaintiff’s pleadings, such charge was error, the e'rror, for the reasons stated, was harmless. For the same reasons the error of the court, if error, in charging the jury that if they believed the value of the mules did not exceed $200, still if they believed plaintiff brought this suit in good faith, believing the defendant owed it more than $200, to find in favor of the jurisdiction of the court was not prejudicial to defendant. But it is held by our Supreme Court that in a recovery on a replevin bond the plaintiff is not limited to the value of the property replevied as alleged in the petition, and that the value of sequestered property is required to be stated in the affidavit for the writ as a predicate for the amount of the sequestration bond and not as the limit of recovery in case of replevy by the defendant. Therefore the plaintiff may recover the actual value of the property as fixed by the jury. Watts v. Overstreet, 78 Tex. 571, 14 S. W. 704. Neither was the statement of the value of the mules in the plaintiff’s petition conclusive of their value. The evidence showed beyond controversy that the value of the two mules exceeded the sum of $200.

The court did not err in refusing to give the special charge requested by the defendant relating to the issue of the payment of the $202 note sued on and made the basis of the defendant’s fourth assignment of error. This charge, in so far as it stated correctly the law applicable to the facts, was. fully covered by the court’s general charge, and for that reason, if no other, it was properly refused. The charge, however, should not-have been given because it erroneously told the jury that,- if they found that the $202 note had been paid in the manner referred to therein, then the county court had. no jurisdiction to render a judgment against the defendant on the $152.50 note sued on, as the amount thereof was below the jurisdiction of that court, and in the event they found that said $202 note had been paid the form of their verdict should be: “We, the jury, find that the $202 note has been paid in the manner pleaded by the defendant, and that the defendant’s plea to the jurisdiction of the court is sustained by the evidence.” Whether the $202 -note mentioned in the charge.had been paid off and discharged was a sharply contested issue, and we have found no evidence in the record that would justify the conclusion that it was included in plaintiff’s suit for the fraudulent purpose of conferring jurisdiction on the .county court. On the contrary, it seems from the evidence that there was an honest difference of opinión between the plaintiff and defendant as to whether or not said note had been or should be considered as paid, and it would have been affirmative error against the plaintiff, under the circumstances, had the jury been instructed, as requested, that if they found that the $202 note had been paid the evidence sustained the defendant’s plea to the jurisdiction of the court. In no event should such a charge, under the evidence, have been given.

Nor did the court err in charging the jury that the burden of proof was upon the defendant to show payment of the $202 note. The defendant, in accordance with the provisions of the statute, pleaded payment of said note, and the burden of proof was upon him to show payment. Proof that the payment of the note was secured by certain cotton placed with the plaintiff would not change the rule with respect to the burden of proof, especially when the evidence further showed, or raised the issue as it did in this case, that plaintiff was not authorized to sell except at the instance and request of the defendant and that such request had not been made. The evidence seems amply sufficient to sustain the theory of the plaintiff that M. M. Swink, at the instance and request of the defendant, sold the cotton in question, and that the plaintiff did not have anything whatever to do with the sale and did not receive the proceeds arising from the sale of the same. The issue, therefore, which the defendant sought to have submitted by the special charge upon which his sixth assignment of error is predicated, was fully and fairly submitted by the court’s main charge, and said assignment will be overruled.

We are further of the opinion that the court did not err in refusing to give defendant’s requested charge relating to the issue of usury. The special charge requested on this issue was sufficiently covered by the court’s general charge to protect the rights of the defendant, and hence the giving of the special charge was not necessary for that purpose. The contention that the note for $152.50 provided for the payment of usurious interest is based upon the claim that 75 cents of the amount of said note was added as interest, and.that said amount, together with the 10 per cent, stipulated in the note, was a greater rate of interest than allowed to be charged under our law. The plaintiff contends that the 75 cents included in the face of the note was agreed to be paid by the defendant for the preparation and recording of the mortgage given to secure its payment. This issue was fairly submitted in the court’s general charge, and the special charge was, as stated, unnecessary. The proposition of the defendant under this assignment, to the effect that the trial court erred in refusing to charge the jury that the burden of proof as to this issue was upon the plaintiff, is not supported by the record. The record shows that the court charged the jury in relation thereto as follows:

“The burden of proof is upon the plaintiff to show that the 75 cents added in the note for $152.50 was included with the knowledge and consent of the defendant for the preparation and registration of the mortgage.”

The proposition that the court erred in emphasizing the contention of the plaintiff as to this 75 cents being placed in the face of the $152.50 note for preparing and recording the mortgage by two special charges given at the request of the plaintiff is not germane to the assignment and not entitled to consideration.

The court’s charge wherein the jury was told that the mortgage executed and de-' livered by the defendant to the plaintiff on August 19, 1911, operated as a security for the payment of the $202 note executed and dated September 30, 1911, was not -error. The mortgage contains the following language:

“I, G. W. Brunson, having executed a promissory note, dated at Dawson, Texas, Aug. 19, 1911, payable to the order of the Dawson State Bank, etc. * * * and being desirous of securing the payment of the same, and all my other liabilities to said bank now existing and which may hereafter arise.”

It is well settled that a mortgage can be made to cover future debts, especially as between the parties (Freiberg v. Magale, 70 Tex. 116, 7 S. W. 684), and the legal effect of the mortgage under consideration was to create a lien upon the mules described therein not only to secure the payment of the $152.50 note given by the defendant to plaintiff at the time of the execution of the mortgage, but to create a lien upon said mules for the payment of the $202 note subsequently executed. This being the legal effect of the mortgage, it was the duty of the court to so tell the jury, and this is what the court did in the charge attacked by the assignment we are here considering. We do not understand that it is essential to the creation of a lien for the payment of a future debt that the mortgage should show the amount of such debt, and by its terms limit the time within which the same should be incurred. The defendant cites no case so holding and we are aware of none.

There was no error in refusing to quash the sequestration proceedings, because the affidavit made for the issuance of the writ did not state the amounts of the different items of indebtedness claimed to be due, and because there was only one legal surety upon the sequestration bond, and because there was a variance between the affidavit for the sequestration and the amended petition filed by the plaintiff. The affidavit stated the total amount sued for, and the statute did not require the different items of indebtedness claimed to be due to be stated therein. These items were fully set out in the petition and that was sufficient. The contention that there is but one legal surety on the sequestration bond is not correct. There are two legal sureties on the bond. E. W. Munsey by making the affidavit for the issuance of the writ of sequestration as the agent of the plaintiff bank did not thereby make himself a party to the suit and disqualify himself from becoming a legal surety on the bond. It has been expressly held in this state that a stockholder in a corporation and who is also an officer and director therein is not disqualified from becoming a surety on a replevin bond, and we can see no material difference in such case and the case where such officer and director becomes a surety on a sequestration bond. There is certainly none in principle. The further contention that the sequestration proceedings should have been quashed and the sureties on the replevin bond released because plaintiff’s original petition and the affidavit filed by it for the writ of sequestration varied from its amended and supplemental petitions, in that the original petition and affidavit alleged that the mortgage lien claimed to be of date August 19, 1911, whereas the amended and supplemental petitions charge that said lien was of date September 30, 1911, is not sustained by the record. The effect of the allegations in all these pleadings is that the mortgage lien was given August 19, 1911, and there is no such variance as claimed by the defendant. The date of the execution of the mortgage is not specifically averred in the supplemental petition, but in the original petition, the amended petition, and the affidavit for the writ of sequestration, it is alleged to be August 19, 1911, and in the amended petition the further allegation is made that there was a verbal agreement between the parties at the time the note for $202 was executed that the said mortgage should constitute a lien to secure the payment of that note. These additional allegations constituted no such variance in the respective pleadings of the plaintiff as authorized a quashal of the sequestration proceedings.

The next question is whether or not the court erred in allowing the plaintiff to prove that the value of the two-mules described in its mortgage, and which had been sequestered and replevied, exceeded the sum of $100 each and the total- value of $200, because there was no allegation in any of the plaintiff’s pleadings of any value exceeding said sum, and because plaintiff’s petition and the affidavit made for the issuance of the writ of sequestration placed the value of said mules at $100 each and at the total value of $200. We have practically decided this question against the defendant by what has been said in disposing of the first question discussed in this opinion. The value of the property mortgaged and replevied, for which the defendant and the sureties on the replevin bond are liable, is not the value alleged in the petition and affidavit for the sequestration. In other words, the value of the mules, as alleged in the plaintiff’s petition and affidavit for the writ of sequestration, was not conclusive of their value on the trial of this case. Their real value was a proper subject of inquiry notwithstanding such allegations, and the liability of the sureties on the replevin bond was not limited to the sum of $200, but they were liable for the market value of said mules at the date of the trial, as shown by the evidence. Luedde v. Hooper, 95 Tex. 172, 66 S. W. 55; Rev. Stats, art. 7106; Watts v. Overstreet, supra. This value the jury said by their verdict was $350. The evidence warranted such finding, and judgment was properly entered against the sureties on the replevin bond for that amount. But the contention is made that the replevin bond was not a statutory bond, and that the extent of the liability of the sureties thereon, treating it as a common-law obligation, is $200. The replevin bond was in strict compliance with the statute, except in one particular. It recites that the value of the mules is $100 each and provides that the defendant “will have said property forthcoming to abide the decision of the said court, or that he will pay the said value thereof in case he shall be condemned so to do.” The word “said” is not in the article of the statute prescribing the conditions of a replevin bond to be given when personal property has been sequestered, and it is claimed that because of its presence in the bond in question said bond is not a statutory one. In this view we do not concur. The evident purpose of the signers of the bond was to execute one in compliance with the statute, and to assume all the responsibility and burden of such a bond, and we think the fair and reasonable construction of the bond is that, in essential particulars, it is in compliance with our statute. We therefore hold that the word “said,” as contained in the bond, did not limit the liability of the sureties to the sum of $200. It is well settled by the decisions of this state that, if the departure from the statutory conditions of such a bond make it less onerous, the bond may be enforced. Janes v. Reynolds, 2 Tex. 250; Walker v. Bennett, 1 White & W. Civ. Cas. Ct. App. § 649; Whitaker v. Sanders, 52 S. W. 638. And in the case of Commonwealth v. Laub, 3 Watts & Serg. (Pa.) 435, it was held that a variance in a statutory bond is fatal only when the conditions would impose a greater burden on the obligors than the law allows. The conditions of the bond involved in the present case is less onerous than those prescribed by our statute, for with the word “said” in the bond, and giving its language a literal construction, the liability of the obligors is limited to the value of the mules as stated in said bond, namely, $200, but with said word left out and the conditions of the bond confined to the language of the statute they would be liable for the value of the mules at the time of the trial of the case, which the jury found, from the evidence, to be $350. The bond being less onerous than the bond required by the statute, and being in substantial compliance therewith, it is a valid statutory bond and enforceable.

Complaint is made of the following paragraph of the court’s charge in respect to the defendant’s plea in reconvention for damages:

“Plaintiff having been empowered and authorized under the terms of the mortgage given it by defendant upon the mules described and sequestered in this case to take possession thereof and sell same and apply the proceeds to the payment of its indebtedness, you are instructed that defendant cannot in any event recover damages by reason of suing out and levying of writ of sequestration, and, even though, you believe that said writ was wrongfully and illegally sued out by plaintiff, yet in no event is plaintiff liable to defendant for any damages resulting therefrom.”

This charge states the law correctly as applicable to the facts of this case. It has been held more than once by courts of this state that a mortgagee who has the right under his contract to take possession of the mortgaged property on default in payment of the debt secured cannot be held liable for damages by taking such property by writ of sequestration, though it be alleged that the writ was wrongfully procured, on a false affidavit, and for the purpose of injuring the mortgagor, since he has done no more by the writ than his contract gave him the right to do with it. Wedig v. San Antonio Brewing Ass’n, 25 Tex. Civ. App. 158, 60 S. W. 567; Nichols v. Paine, 52 Tex. Civ. App. 87, 113 S. W. 972. In the first case cited the court said:

“It will be seen by the terms of the mortgages that the brewing company, defendant, had the right to take possession of the property, and sell it, to pay the debt secured thereby, or any part of the debt. The petition shows that the debt had not been paid in full, and the right to take the property into possession cannot be questioned. The exercise of that right and securing it by process of the court could not be ground for damages. Harling v. Creech, 88 Tex. 300, 31 S. W. 357.”

This language is quoted with approval in Nichols v. Paine, supra, and writs of error were denied in both cases by the Supreme Court. The plaintiff under the terms of the mortgage given him had the right to take possession of the mules and sell them to pay the debt secured thereby, and as in Wedig v. San Antonio Brewing Ass’n, supra, he is only charged in the defendant’s cross-action or plea in reeonvention “with doing an act which the contract declared it could do, and it is difficult to see how it would render itself liable for doing it.” The plea of the defendant that one of the notes sued on had been extended and was not due at the time of the filing of the suit was not sustained by the evidence, and becomes unimportant on this appeal.

We believe none of the assignments point out reversible error, and the judgment of the court below is therefore in all things affirmed.

On Motion for Rehearing.

In view of the earnest insistence of appellants that we erred, for several reasons, in affirming the judgment of the lower court in this case, we have again carefully examined and considered the several assignments of error relied on for a reversal. This action on our part but serves to confirm us in the opinion that every question raised and passed upon was correctly ‘decided. The statement in the opinion heretofore handed down to the effect that the plaintiff bank did not receive the proceeds arising from the sale of cotton by M. M. Swink has reference to and means that he did not receive such proceeds as a payment on the indebtedness due it by appellant Brunson, and the statement that the plea of the defendant Brunson to the effect that one of the notes sued on had been extended and was not due at the time of the filing of the suit was not sustained by the evidence is clearly correct. The full strength of the testimony of Brunson himself on this question, as quoted in the brief of appellants, is that “I talked to Mr. Dunn along in January about extending my note, and he agreed to do so.” There is absolutely no testimony, either that a date to which the payment of the note should be extended, or that the terms and conditions of the extension, were agreed upon. The testimony of Brunson is insufficient to show an actual extension, and the testimony of Dunn, the officer of the bank to whom the application for an extension was made, testified positively that no extension was granted. The mere fact that appellant Brunson requested, and the bank may have promised to some time in the future, extend the payment of the note without evidence that such extension was actually made, would not authorize a finding that an extension had been made. However, there is no proof of any consideration for the extension claimed.

In holding that the trial court was authorized by the terms of the mortgage to instruct the jury that appellee had a mortgage lien upon defendant’s mules to secure the payment of the $202 note sued on, we were not unmindful of the decision of the Supreme Court of this state in McDavid v. Phillips, 100 Tex. 73, 94 S. W. 1131. The case at bar is distinguishable from that case in the facts and not ruled thereby.

Appellees having the right under the terms of the mortgage to take possession of the mules upon default in the payment of its debt, it cannot be held that the writ of sequestration was wrongfully sued out, and, there being no evidence that appellee participated in the alleged negligent acts of the officer levying said sequestration which is claimed to have resulted in injury to the mules while in his possession, appellee was not responsible therefor. McFaddin v. Sims, 43 Tex. Civ. App. 598, 97 S. W. 335; Kanaman v. Hubbard, 160 S. W. 304. Before the mules were replevied by defendant, they were in the exclusive control and safe-keeping of the officer who levied the writ of sequestration, and if, on account of his acts or want of proper care, they were injured, as alleged, he was liable therefor. Kanaman v. Hubbard, supra.

We deem it of no use to add anything to what has been said in our original opinion on other matters discussed in the motion for a rehearing. The position of appellants on all the questions discussed and passed on in that opinion were fully understood and the conclusions reached the result of a careful consideration of them.

The motion for a rehearing is overruled.
      <@=x>For other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes

      <gr=oFor otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    STAACKE et al. v. ROUTLEDGE.
    (No. 5441.)

    (Court of Civil Appeals of Texas. San Antonio.
    March 17, 1915.
    Rehearing Denied April 14, 1915.)
    1. Corporations <@=314 — Purposes—Renting Automobile.
    Neither Rev, St. 1911, art.-1120, § 10, providing that a corporation may be formed for the establishment and maintenance of a line of stages, nor section IS of the same article, authorizing incorporation for the transportation of goods, wares, and merchandise or any valuable thing, authorized the formation of a corporation to engage in the business of renting by the hour automobiles with their drivers.
    [Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 16-22; Dec. Dig. <&wkey;>14.].
    2. Corporations <&wkey;18 — Purposes—Renting Automobile.
    A corporation formed under Rev. St. 1911, art. 1120, § 24, authorizing the formation of corporations for the purchase and sale of goods, wares, and merchandise and agricultural and farm products, cannot by its charter be given the power to engage in the business of renting by the hour its automobiles.
    [Ed. Note. — Por other cases, see Corporations, Cent. Dig. §§ 53-59, 66-68; Dec. Dig. <&wkey;>18.]
    3. Corporations <&wkey;887 — Powers—Persons Entitled to Question.
    One who is injured by the negligence of a servant of a corporation, who is at' the time engaged in a business authorized by its charter, but not allowed by statute, can question the power of the corporation to do the acts, though its charter has never been directly attacked by the state.
    [Ed. Note. — Por other cases, see Corporations, Cent. Dig. §§ 1548-1553; Dec. Dig. &wkey;387.]
    4. Corporations &wkey;?25 — Charter — Invalid Power.
    A corporate charter is not necessarily void as a whole because it contains a provision authorizing the corporation to engage in a business not authorized by law, but that power will be treated as surplusage.
    [Ed. Note. — Por other eases, see Corporations, Cent. Dig. §§ 70, 71, 73-76; Dec. Dig. &wkey;25.]
    5. Corporations <&wkey;306 — Stockholders — Liability as Partners — Unauthorized Business op Corporation.
    The stockholders of a corporation who were its managing officers, and who knowingly conducted in the name of the corporation a business which it could not be authorized by law to conduct, were liable as partners for injuries resulting from the negligent acts of their employes while engaged in the unauthorized business.
    [Ed. Note. — Por other cases, see Corporations, Cent. Dig. §§ 1457, 1458; Dec. Dig. &wkey;306.]
    6. Appeal and Error <&wkey;>1040 — Harmless Error — Rulings on Pleadings.
    Error in overruling exceptions to a portion of a petition on which no relief was granted does not require a reversal of the judgment.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. <S&wkey;
    7. Appeal and Error &wkey;>877 — Assignment oit Error — Error Not Apeecting Appellant.
    In an action against a corporation and the stockholders, where the stockholders alone appeal, they cannot assign as error the failure to strike an item of the claim and the giving of judgment thereon, where that judgment is only against the corporation.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dec. Dig. &wkey;> 877.]
    8. Costs &wkey;>240 — On Appeal — Party Subsequently Joined.
    The costs of a former appeal, determined at a time when a corporation alone was defendant in the action, cannot be taxed against the stockholders, who were subsequently joined as defendants.
    [Ed. Note. — Por other eases, see Costs, Cent. Dig. §§ 922-926; Dec. Dig. <i&wkey;240.J
    Appeal from District Court, Bexar County; W. P. Ezell, Judge.
    Action by James Routledge against the Rambler Automobile Company, August Ernest Staacke, and Herman George Staacke, and others. Judgment for plaintiff against the corporation and defendants August Ernest Staacke and Herman George Staacke for damages and against the corporation only for the costs of a former appeal, and defendants August Ernest Staacke and Herman George Staacke appeal, and plaintiff files a cross-assignment of error complaining of the failure of the court to render judgment against the individuals for the costs.
    Affirmed on appeal and cross-assignment.
    Webb & Goeth, of San Antonio, for appellants. J. R. Norton and James Routledge, both of San Antonio, for appellee.

       Writ of orror pending in Supreme Court.

   MOURSUND, J.

This suit was instituted. by appellee Routledge against Rambler Automobile Company, a corporation, to recover damages for injuries alleged to bave been sustained by Mm on April 25, 1905, by reason of tbe negligence of an employs of said corporation in tbe operation of an automobile, owned by said corporation, in wbicb Rout-ledge was riding. Tbe case was tried and tbe judgment reversed by this court. See 95 S. W. 749.

Routledge amended and, in addition to suing tbe corporation, sued IP. Kirebboffer, A. C. Shell, Edward Heusinger, Herman G. Staacke, August E. Staacke, August F. Staacke, Mrs. Adele Staaeke, Staacke Bros., a partnership composed of Herman G. Staacke, August E. Staacke, and Mrs. Adele Staacke, and the Rambler Automobile Company of San Antonio, Tex., as a partnership composed of Staaeke Bros, and tbe individuals above named. He alleged that, on April 25, 1905, said parties, and each of them, were engaged in tbe business of owning, operating, renting, and controlling automobiles for hire, and in the business of carrying and transporting passengers for hire, and acting as a common carrier of passengers for hire with automobiles in San Antonio, and that be became a passenger in one of tbe automobiles owned and operated by tbe parties, and that their agent, Street, .who was in charge of the ear, negligently operated tbe same, thereby causing plaintiff to be injured. The acts alleged to constitute negligence need not be stated. Plaintiff alleged that tbe parties, for tbe purpose of preventing him from collecting bis damages, in February 1904, organized a bogus, fictitious, or dummy corporation for tbe purchase, sale, and renting of automobiles, parts of and accessories of automobiles, with a capital stock of $5,000; that tbe charter was signed and filed by A. Staacke, F. Kirehhoffer, and A. C. Shell, who were named as directors,-but that all tbe parties were stockholders in tbe corporation and in tbe management of tbe business carried on by tbe corporation, and that tbe real purpose of tbe corporation was to act as a common carrier of passengers, and that it engaged in such business and continued therein, but that such business was in violation of law; that prior to tbe time be was injured he did not know that tbe Rambler Company was a corporation. He alleged further that tbe company gave A. -E. Staaeke a chattel mortgage on all of its property and effects on December 23, 1904, which bad been foreclosed and tbe property sold and bought in by defendant A. E. Staacke for $800; that said debt was fictitious, and tbe mortgage was given solely for tbe purpose of defrauding creditors of tbe corporation, and to Mn-der and delay them in recovering their debts; that plaintiff has an equitable lien upon said property, wbicb is of tbe value of more than $1,000; and that said property should be applied to the payment of bis debt. He alleged that all tbe defendants are partners in said Rambler Automobile Company and liable to plaintiff as such because they carried on a business not allowed by law to be- carried on by corporations, nor permitted by the charter of tbe company, and for tbe transaction of wbicb no charter could be given under tbe law; also, because they carried on business with less capital stock than tbe law permitted and before tbe lawful amount was subscribed, and before tbe amount of cash was paid in that tbe law required. Plaintiff finally alleged that if be was mistaken in regard to tbe company not being a legal corporation, and in regard to tbe right to recover against tbe parties other than tbe corporation, then that be asserts bis rights as against tbe corporation. He prayed for $15,-000 damages, and for $120.85, tbe amount of costs paid by him in order to get tbe mandate issued upon tbe former appeal, for cancellation of tbe Staacke note and mortgage, as well as tbe sheriff’s deed conveying tbe property to A. E. Staacke.

August Ernest Staaeke and Herman G. Staaeke filed a general exception, and various special exceptions, all of which were overruled. They joined issue upon all material allegations except that plaintiff became a passenger in an automobile owned and operated by tbe Rambler Automobile Company, and that tbe item of costs paid in tbe Court of Civil Appeals was correct, and admitted that said Rambler Automobile Company was a corporation. They specially denied tbe partnership, and that they were then or ever bad been engaged in tbe hiring or renting of automobiles, or that they or either of them were engaged in tbe transportation of passengers as individuals, or as partners or with tbe Rambler Automobile Company. They also alleged that in 1904 they obtained a charter from the state, and bad carried on tbe business of a corporation under tbe powers granted by the state; also, that tbe corporation became indebted to A. E. Staacke in tbe sum of $4,500, and the note was secured by a chattel mortgage prior to tbe time that Routledge was injured; and that tbe note was sued upon, tbe mortgage foreclosed, and tbe property bought in at tbe sale for the sum of $800. They also alleged that Rout-ledge was injured by bis contributory negligence.

Before tbe argument to tbe jury, Routledge dismissed bis case against August F. Staacke, F. Kirehhoffer, A. C. Shell, Edward Heu-singer, Mrs. Adele Staacke, and Staacke Bros., as a partnership, but retained as defendants August E. Staacke, Herman G. Staacke, and Rambler Automobile Company, as a partnership, and Rambler Automobile Company, as a corporation.

Tbe case was submitted upon special issues, and tbe jury found that tbe driver of tbe car, Street, was guilty of negligence in operating tbe car at the rate of speed be did at tbe time of the accident, acquitted tbe otber occupants of the car of contributory negligence, and assessed plaintiff’s damages at $2,000. Judgment was rendered upon sucb verdict for $2,000 against August Ernest Staacke and Herman 0. Staacke, jointly and severally, and tbe Rambler Automobile Company, as a corporation; also, against sucb corporation for $120.85 costs of tbe previous appeal, at tbe same time adjudging that be take nothing as against tbe Rambler Automobile Company as a partnership. This appeal is by August Ernest Staacke and Herman G. Staacke.

Findings of Fact.

(1) Tbe automobile in which Routledge was riding when injured belonged to tbe Rambler Automobile Company, a corporation, and was in charge of its employe?, Street, who hired or rented tbe car to persons, including bis services, at $2.50 per hour, and was allowed by bis employer as compensation 20 per cent, of bis receipts. Tbe car bad been hired by one Adams, who invited Routledge to enter tbe same and take a ride with him and bis companions.- Tbe appellants were not present and did not participate in any way in tbe negligent act of Street which caused appellee’s injuries.

(2) Before the accident occurred, Street informed Routledge that be was operating tbe machine for tbe Rambler Automobile Company, and that Adams bad hired tbe machine from said company by tbe hour.

(3) Tbe Rambler Automobile Company was granted a charter by tbe state of Texas on February 12, 1904. Tbe incorporators were A. Staacke, F. Kirchhoffer, and A. C. Shell. Tbe purpose for which it was incorporated was stated as follows in tbe charter: “Tbe purchase, sale and renting of automobiles, parts of and accessories to automobiles.”

(4) The capital stock was $5,000, divided into 50 shares, of which only 25 were ever issued. Of these, 22 were issued to A. Staacke, the father of appellants, one to appellant H. G-. Staacke, one to Kirchhoffer, appellants’ brother-in-law, and the other to Shell, theretofore an employs of Staacke Bros. A. Staacke was elected president of the corporation; Kirchhoffer, vice president; Shell, secretary; appellant H. G. Staacke, treasurer; and appellant A. E. Staacke, general manager.

(5) On December 23, 1904, appellant A. E. Staacke became the owner of the 23 shares which had been issued to A. Staacke and Kirchhoffer, and he was then elected president of the corporation, and H. G. Staacke, vice president, Shell remaining the secretary. The stock and offices were thus held at the time appellee was injured. The corporation, on December 23, 1904, owed $4,566, which indebtedness had been incurred to Staacke Bros., a firm composed of the two appellants and Mrs. Adele Staacke, but had been transferred to appellant A. E. Staacke. The vice president and secretary, under resolution duly passed, gave said A. E. Staacke a chattel mortgage upon the property of the corporation to secure the payment of the indebtedness and such other indebtedness as might thereafter accrue to him. The minutes show that he had also become the owner of the automobiles theretofore rented by the corporation from Staacke Bros., and that the corporation from then on rented the same from him. The mortgage was foreclosed in 1906 and the property of the corporation purchased by A. E. Staacke for $800. He then secured a charter for another company and turned such property over to it. At the time he became the owner of the stock in and the indebtedness against Rambler Automobile Company, the liabilities of said company exceeded its assets.

(6) The Rambler Automobile Company rented its place of business from Staacke Bros., and purchased approximately $2,900 worth of cars and accessories from said firm when it began business, of which amount $2,500 worth was in payment of the stock issued by said corporation. The witnesses testified that each of the stockholders was charged on the books of Staacke Bros, with the amount advanced in payment for his stock unless it was paid in cash. The books showed that A. Staacke was charged with $2,300 for stock, from which it would appear that he paid for one of the other three original stockholders.

(7) A. E. Staacke never received any salary as general manager of the Rambler Automobile Company, and said corporation never paid any dividends.

(8) The Rambler Automobile Company began business right after its organization. Its business consisted principally in hiring out the cars owned by it and those rented by it at first from Staacke Bros, and afterwards from A. E. Staacke, such hiring being carried on in the same manner as the transaction between Adams and its employe, Street, upon the occasion when appellee was injured. It never sold any automobiles, but did sell automobile accessories. The organizer of the corporation intended to engage principally in the business of hiring out automobiles at the time they filed the charter, and such purpose was known to appellants, one of whom at once went into the office of general manager, and the other treasurer, of the business.

Opinion.

The appellants contend that no judgment should have been entered against them, because Street was in the employ of the Rambler Automobile Company, a corporation, and they were not present at the time appellee was injured and in no manner participated in the act that caused such injuries.

By chapter 90, Acts of 33d Legislature, the formation of corporations for the purpose of “conducting the livery and transfer business with autos and horses-drawn ve-hides, and for the sale of said vehicles,” was authorized. But at the time the Rambler Automobile Company was chartered no such provision existed. Section 10 of article 1120 (as numbered in Statutes of 1911) provided for corporations for “the establishment and maintenance of a line of stages.” No doubt, under this provision it would be immaterial whether the stages were to be drawn by horses or propelled by motor power; but by no fair construction can it be said that the charter of the Rambler Automobile Company granted it the power to maintain and operate a line of stages, or that said company was engaged in the maintenance and operation of a line of stages, or that appellee was injured in the operation of a stage. Section 18 of said article authorizes incorporation for the “transportation of goods, wares and merchandise or any valuable thing.” It is also clear that the company was not chartered under this provision. These matters would not have been mentioned, had they not been urged in appellants’ brief, for it is clear that the charter was not attempted to be drawn under either of the two subdivisions, but was drawn under subdivision No. 24, reading as follows:

“The purchase and sale of goods, wares and merchandise, and agricultural and farm products.”

But the additional power of renting automobiles was included, which was not authorized by statute to be included with the other powers granted, nor to be given alone. No warrant existed under our law at that time for the filing of a charter wherein the purpose was stated in whole or in part as that of renting automobiles or other vehicles. The bills passed in 1871 and 1874 specifying the purposes for which private corporations could be created contained, as subdivision 27, the following general provision:

“For any other purpose intended for mutual profit or benefit not otherwise specially provided for, and not inconsistent with the Constitution and laws of the state.” Act 12th Leg. c. 80.

In 1885 said section was omitted. Gam-mel’s Laws, vol. 9, p. 679. No general provision was afterwards inserted, though the statute has repeatedly been re-enacted, and it became the policy of our law to limit the right of incorporation to the specific purposes authorized by statute. Not only that, but in addition they were limited to one business, which could consist of one or more of the purposes specified in any one subdivision of the statute, but not for two or more purposes designated in two or more subdivisions, unless expressly authorized by statute. Ramsey v. Tod, 95 Tex. 614, 69 S. W. 133, 93 Am. St. Rep. 875; Johnston v. Townsend, 103 Tex. 122, 124 S. W. 417. 'A charter violating this rule should not be filed by the Secretary of State, but the status thereof, when actually filed, has not been stated by our Supreme Court. See Ramsey v. Tod, supra.

Appellants say that the validity of the corporation can only be questioned by the state in a direct proceeding, but in Parks v. West, 102 Tex. 18, 111 S. W. 729, the court, speaking of the doctrine to that effect, said:

“The rule is founded in public policy and convenience, merely, and is not to be so applied as to defeat the assertion of just legal rights by parties in the courts. It is said that it is essential to the doctrine that there be in existence a law in virtue of which such a corporation as that the party to the litigation claims to be might legally exist.”

This is not a suit growing out of an obligation assumed by Routledge toward the ostensible corporation as a corporation, and we think there can be no doubt of his right to assert in this proceeding that the provision of the charter authorizing the renting of automobiles was not warranted by our laws then in force, and that such provision is void. It does not, we think, necessarily follow that the entire charter is void because the charter contains a power not authorized by law, for there is eminent authority for holding that in such case the provision granting the power not authorized by law will be treated as surplusage. Morawetz on Private Corporations, § 32; Galveston Land & Imp. Co. v. Perkins, 26 S. W. 258. The word “renting,” used in the charter, was given a very liberal construction by appellants, one doubtless never dreamed of by the Secretary of State who filed the charter, for they made it cover the business of hauling passengers for hire at a certain price per hour, an automobile livery business. If the charter can be construed as giving that power, no warrant existed for such grant, and the charter must be treated as if it was not contained therein. Nor does appellee depend upon the invalidity of the entire charter for asserting his right to judgment against appellants, but bases his claim upon the ground that the corporation was organized for the purpose of engaging principally in a business not permitted to be conducted by corporations at that time; that appellants knew that such was the purpose of the organizers; that they became stockholders and managing officers of the concern, and sent out their employes to carry on such business, and, having by negligence injured appellee in carrying on such business, should not be permitted to say that their liability was limited to what they had paid into the corporation for stock when there was no law which authorized the limiting of liability in the conduct of such business.

The corporation, throughout its history, was under the active management of appellant A. E. Staaeke, first in the capacity of general manager, and afterwards as president. In one part of his testimony he speaks of taking out the charter as if he was the prime mover in the enterprise. He never drew any salary. No dividends were ever paid. It became insolvent, and at the time his father’s stock was transferred to him its liabilities were approximately three times the amount of its capital stock, and at tlie same time tlie claim of Staacke Bros, against the corporation for $4,566 was transferred to said A. E. Staacke, and he was given a mortgage on all of its property, which afterwards sold for $800. He also became the owner of the automobiles rented by the corporation from Staacke Bros, and then rented them to the corporation in which he owned $2,300 out of $2,500 worth of capital stock. These facts strongly tend to show that the corporation was intended merely as a means to an end— that of engaging in the auto livery business with practically no liability. Appellant H. G. Staacke was one of the original stockholders, and an official of the company from its organization up to the time when it went out of business.

We find no case in which the direct question presented in this case has been decided. In 10 Cyc. p. 676, it is said:

“It seems that, if a corporation embarks in a business with respect to which the statute law affords no immunity from the general liability of partners, the shareholders may become liable as such, although as to matters within the powers of the corporation and the protection of the statute law they will be protected from personal liability.”

The case of Lehman v. Knapp, 48 La. Ann. 1148, 20 South. 674, is cited, and as contra the case of Automatic Lighting Co. v. Massey (Tenn. Ch. App.) 56 S. W. 35; but the latter case is not in point, for it appears that the defendant was not even a stockholder at the time the contract sued upon was executed, and also that the decision was based mainly upon the fact that plaintiff was suing upon a contract in which he recognized and contracted with the corporation as such. In 1 Cook on Corporations (6th Ed.) § 632, the author says:

“The general incorporating acts common to most of the states usually specify the particular kinds of business for the prosecution of which corporations may be formed thereunder. It follows that no business can be carried on by persons, as a corporation, under the incorporating act, unless that particular business is specified therein. * * * Thus, where a New Jersey corporation illegally practices dentistry in Pennsylvania, and one of its employes does negligent dental work, the directors and officers are personally liable for the damage; it appearing that they knew and assented to the company doing business in Pennsylvania. * * * Frequently certain kinds of business are not mentioned in the act, for the reason that it is not deemed wise public policy to allow a limited liability in that class of business, such as construction companies for the building of railroads. Accordingly, where the business for which incorporation is sought is not within the classes of business mentioned in the act itself, the attempted incorporation is void and the participants are liable as copartners.”

The New Jersey case referred to is that of Mandeville v. Courtright, 142 Fed. 97, 73 C. C. A. 321, 6 L. R. A. (N. S.) 1003. In that case the parties held liable had a charter from the state of New Jersey to practice dentistry, and opened up an office in Pennsylvania in the name of the corporation. One of the employes fractured plaintiff’s jaw bone and took out a piece thereof, greatly injuring her. The Circuit Court of Appeals held the managing officers and directors liable as partners, and the Supreme Court of the United States denied a writ of certiorari. The court in its opinion said:

“The defendants were bound to know that their corporation was forbidden by law to practice dentistry in Pennsylvania, and it seems to us that by the use of the name of the corporation they could not avoid personal liability for what they-did. The defendants were not innocent nonassenting stockholders, but they were concerned knowingly and actively in the conduct of an illegal business carried on in the name of the incorporation. What was being carried on at their establishment, the practice of dentistry, the corporation could not conduct. This the defendants were bound to know. What, therefore, the corporation could not do, they could not, under the guise of its charter, carry on. And hence they must be conclusively held to have done themselves what was actually done. In a word, these defendants, in view of their knowledge and active participation, cannot be heard to say that what they were causing to be done was not being done by them but by their corporation, when that corporation could not conduct the business and they knew that it could not. If parties, even though organized as a corporation, knowingly conduct business wholly outside of the charter powers, or make use of the statutory organization to act in fraud of the laws_ of the state, for the sake of profit, their relation is that of partners. 1 Bates, Partn. § 6.”

A somewhat similar case is that of Empire Mills v. Alston Gro. Co., 15 S. W. 506, 12 L. R. A. 366, by the Court of Appeals of this state. The defendants in that case were car-' rying on a merchandise business in Texas under an Iowa charter, at a time when there was no statute in this state authorizing incorporation for the transaction of a mercantile business. The court called attention to the repeal of subdivision 27 of the Acts of 1871 and 1874, hereinbefore set out, and said that such repeal was an emphatic denial to all parties of the right to organize mercantile corporations in this state. It was held that the parties were liable as partners, and that the plaintiffs were not estopped from suing them as partners by reason of having contracted with the ostensible corporation especially as there was nothing to show that the corporation was ever organized.

In both of the cases last considered the corporation was chartered in another state for a purpose not authorized by the laws of the state in which it transacted business, and the courts refused to recognize the corporation. The Rambler Automobile Company, we think, is entitled to be recognized as a corporation in the conduct of the business of buying and selling automobiles and accessories; but why should the courts recognize it as a corporation in the transaction of a business not permitted to be carried on by a corporation? To'do so would be to set at naught our laws and throw the mantle of corporate protection over any kind of business, because it would only be necessary to incorporate for some other business for which incorporation is authorized, and then engage in the unauthorized business.

We conclude that the trial judge did not err in rendering judgment against appellants.

Assignments Nos. 2 to 5, inclusive, 9, 12, and 15, relate to the matters discussed under the first assignment, and are overruled.

Assignments 6, 7, 8, 10, 11, and 13,. relate to that portion of the petition seeking to set aside the sale of the property under foreclosure proceedings, and to apply it to plaintiff’s claim. As no relief was given pursuant to this plea, the error, if any, in refusing to sustain exceptions thereto, is not such as to require a reversal of the case.

No judgment was rendered against appellants for costs of the other appeal, and the failure to strike out the item, as well as giving judgment therefor against the corporation, was not prejudicial to appellants. The fourteenth assignment is therefore overruled.

We conclude there is no merit in the cross-assignment, which complains of the failure of the court to render judgment against appellants for the costs of the appeal taken at a time when only the corporation was sued.

The judgment is affirmed.
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