text:
    BUNTING STONE HARDWARE CO., Inc., et al. v. ALEXANDER.
    (No. 7675.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 6, 1917.)
    1. Bankruptcy <&wkey;435 — Discharge — Burden or Proof — Suit to 'Enjoin Execution.
    In a suit to enjoin execution on a judgment which plaintiff claims was barred by his discharge in bankruptcy, the burden is on plaintiff to plead and prove the discharge, and that the debt involved was not within any class which the Bankruptcy Act excepts from the discharge.
    [Ed. Note. — For other cases,, see Bankruptcy, Cent. Dig. §§ 824-839; Dee. Dig. <&wkey;>435.]
    2. Bankruptcy <&wkey;436(3) — Discharge — Pleading.
    A petition to restrain execution on a judgment which alleges that it was founded on. a promissory note on which plaintiff was indorser, that the note was duly scheduled in the bankruptcy proceedings, and was a provable claim against his estate, and that he had been discharged is sufficient to admit proof of the discharge, and that the debt was one provable in bankruptcy.
    [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 842, 865; Dec. Dig. &wkey;436(3).]
    3. Bankruptcy <&wkey;436(3) — Discharge—Evidence — Debts Barred by Discharge.
    Proof that the judgment the enforcement of which plaintiff sought to restrain was based on a note indorsed by plaintiff is sufficient to show that the debt was barred by the discharge under Bankruptcy Act July 1, 1898, c. 541, § 63(a), 30 Stat. 562 (U. S. Comp. St. 1913, § 9647), as one founded upon a contract express or implied, not one excepted from the discharge by section 17 (section 9601) as one for liability for obtaining property by false pretenses, since the creditor by proceeding on the note waived any right arising in tort by reason of false pretenses.
    [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 842, 865; Dec. Dig. &wkey;436(3).}
    Appeal from District Court, Freestone County; A. M. Blackman, Judge.
    Suit by Ernest Alexander against the Bunting Stone Hardware Company, Incorporated, and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    D. T. Garth,| of Teague, for appellants. Boyd & Bell, of Teague, for appellee.
   RASBURY, J.

Appellee sued appellants in the court below to perpetually enjoin the sale of certain lands levied upon by appellant Geo. W. Burleson, the sheriff of Freestone county, by authority of an execution issued in a judgment in favor of appellant Bunting Stone Hardware Company, Incorporated, and against appellee. Upon hearing the relief sought was granted. The facts forming the basis of the judgment as shown in the record are these: On March 15, 1915, appellee filed in the District Court of the United States for the Northern District of Texas a voluntary petition for adjudication in bankruptcy. Thereafter, on April 6, 1915, appellant Bunting Stone Hardware Company, Incorporated, recovered in the court in which this proceeding was filed a final judgment against appellee and others for $621.60, and interest. The basis of said judgment was the promissory note of Teague Gas Stove Company, a trading partnership composed of appellee and two others, and which note appellee and the other partners individually indorsed. Said note was scheduled by appellee in the bankruptcy proceeding, and the appellant Bunting Stone Hardware Company, Incorporated, listed therein as one of his creditors. On July 30, 1915, appellee was by said District Court of the United States discharged from all debts and claims existing against him on March 17, 1915, and by the acts of Congress relating to bankruptcy. On September 21, 1915, appellant Bunting Stone Hardware Company, Incorporated, caused execution to issue upon its judgment against appellee and placed same in the hands of appellant George W. Burleson, sheriff of Freestone county, who levied same upon 81 acres of land in said county, acquired by appellee subsequent to' his discharge in bankruptcy, and advertised same to be sold thereunder November 2, 1915. As we have said, the district judge, in the injunction proceeding, and to whom all issues of fact were submitted, perpetually enjoined Burleson, sheriff, from selling said land, and the Bunting Stone Hardware Company, Incorporated, from issuing further process on said judgment of any character against appellee.

The solé issue presented in various ways on' appeal is that appellee was -not entitled to injunction for the reason that he failed to plead and prove that the debt evidenced by the judgment was one made provable in bankruptcy by -the acts of Congress relating thereto. Appellee being plaintiff in the court below, the burden was upon him to plead and prove by a preponderance of the evidence, as that term is generally understood, that which would release him from the judgment obtained against him before his discharge in bankruptcy. In that respect it was necessary for him to plead his discharge and that the debt from which he was discharged and which was asserted against him in the subsequent proceeding was not within any of the classes of claims which the act excepts from the operation of the discharge. 7 C. J. 414, § 733; 5 Cyc. 405; Imhoff v. Whittle, 82 S. W. 1056. And we conclude that appellee did in such respect sufficiently plead and prove the necessary facts. By his petition shown in the record) appellee, among other matters, alleges in substance that the claim or judgment sought to be enforced against him was founded upon a promissory note upon which he was indorser, and that such note was duly scheduled in the bankruptcy proceedings as a debt against his estate, and that said debt was a provable claim against his estate, and that he had been discharged therefrom. Obviously sijch allegations are sufficient to admit proof of his discharge and that the debt was-one provable in bankruptcy.

The proof offered in support of the allegations was that appellee, H. H. Houston, and A. J. Dobson were partners under the firm name of Teague Gas Stove Company, which firm on February 10, 1914, executed and delivered to appellant in payment of a firm debt thein negotiable promissory note for the principal sum of $737.10, due nine months from date, bearing 8 per cent, per annum interest and reasonable attorney’s fees. This note each of the partners indorsed individually. The judgment sought to be enforced against appellee was upon said note; the judgment roll so reciting. Such facts are, in our opinion, sufficient to support the finding of the trial court that appellant’s claim was one provable in bankruptcy or that it was not one of the debts excepted by the act from the operation of the discharge. Among the debts from which a discharge in bankruptcy will release tlie debtor are those constituting a fixed liability, as evidenced by judgment or instrument in writing, absolutely owing at time of adjudication, etc., or one founded upon an open account or upon a contract, express or implied, etc., or one founded upon provable claim reduced to judgment after filing petition in bankruptcy and before discharge. Section 63 (a), Bankruptcy Act. Those debts from which the bankrupt is not released as applicable to the case at bar are liabilities for obtaining property by false pretenses or false representations, etc. Section 17, Bankruptcy Act. As we have said, the burden was upon appellee to show that the debt asserted against him (the judgment) was not of the class excepted by section 17, just recited. This he did by the proof we have detailed, since in applying section 17 to “liabilities” evidenced by judgments or instruments in writing it has been ruled that, where the creditor stands, either in the proceeding in bankruptcy or in a suit in the state court, upon the contract as originally made, he waives any right arising thereon in tort, and the claim as a consequence becomes one provable in bankruptcy and from which the bankrupt is released when discharged. Tindle v. Birkett, 205 U. S. 183, 27 Sup. Ct. 493, 51 L. Ed. 762; Ford v. Blackshear Mfg. Co., 140 Ga. 670, 79 S. E. 576. Hence in the case at bar, if in truth facts existed which when proven would have brought appellee’s note within the class of claims excepted from the operation of the discharge, appellant waived the right to assert them when he elected to stand upon the contract or note, and it was only necessary for appellee to prove the waiver. This he did when the record in the judgment proceeding disclosed that appellant elected to enforce the contract or note.

The judgment is affirmed.
      <S=jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      (g^sFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    SEAGRAVES v. SCARBOROUGH.
    (No. 5765.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 3, 1917.)
    1. Mandamus <&wkey;3(8) — Subjects of Reliee^-Proceedings Against Sheriff.
    While if execution requires the restitution of certain property, mandamus may be the appropriate remedy, it will not lie to compel the sheriff to levy an execution issued on an ordinary money judgment, as an adequate remedy at law is provided by Vernon’s Sayles’ Ann. Civ. .St. 1914, art. 3776, providing that should an officer fail or refuse to levy an execution he and his sureties shall be liable to the full amount of the debt, etc., to be recovered on motion before the court from which the execution issued.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 20, 23, 27; Dec. Dig. <&wkey;3(8).]
    2. Mandamus i&wkey;3(5) — Remedy at Law.
    Where a judgment provided that personal property be delivered to the sheriff by defendant within 10 days, that the sheriff should immediately deliver -the same to plaintiff and re- i i ceipt defendant therefor, and that the defendant upon filing of suc'h receipt with the papers in the cause would be credited upon the judgment with the value of such property, and through the illness of the deputy sheriff, defendant, although he attempted to return the property within the 10 days, did not actually do so until thereafter, pursuant to an agreement with the deputy, plaintiff’s remedy to ascertain whether the judgment was in fact satisfied in accordance with its terms was a suit between the parties, and not mandamus against the sheriff to compel the levy of execution on the property.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 20, 21, 23, 25, 34; Dee. Dig. &wkey; 3(5).]
    Appeal from Kleberg County Court; Ben F. Wilson, Judge.
    Mandamus by O. R. Seagraves against J. S. Scarborough to compel respondent as sheriff to levy an execution. From a judgment denying the petitioner the relief prayed for, he appeals.
    Affirmed.
    Hook & Hunt, of Kingsville, for appellant. Zeb V. Nixon and Pollard & Crenshaw, all of Kingsville, for appellee.
   MOURSUND, J.

On February 21, 1916, in a suit in the county court of Kleberg county, in which O. R. Seagraves sued T. E. Del-bridge for a certain motorcycle, judgment was rendered in favor of plaintiff against said T. E. Delbridge and the sureties on his statutory replevy bond in sequestration, for $205, the value of the motorcycle, and it was provided in said judgment that defendant should have the right within ten days from the rendition of the judgment to deliver the motorcycle’to the sheriff of Kleberg county, and that the sheriff should receive such property if it had not been injured or damaged since the replevy, and immediately deliver same to plaintiff, and receipt defendant therefor, and that the defendant should, upon filing, such receipt with the papers in the cause be credited upon the judgment by the clerk with the value of such property so returned. The costs were adjudged against plaintiff, and defendant was also awarded a judgment against plaintiff for $45, with foreclosure of lien on the motorcycle. It was provided that if the motorcycle was not delivered to the sheriff as provided in the judgment, then the judgment against defendant should be credited with said $45. Plaintiff paid the costs adjudged against him, and after the ten days had expired credited his judgment with $45, and on. March 17, 1916, had an execution issued, which was returned into court without any official return thereon. On May 4, 1916, plaintiff procured the issuance of another execution and delivered same to the sheriff, who refused to execute the same. Thereupon plaintiff brought this suit against the sheriff, J. S. Scarborough, praying for .a writ of mandamus compelling the sheriff to levy the execution, alleging the facts above detailed, and that T. E. Del-bridge and his sureties, against whom said judgment had been rendered, had property liable to execution, and further alleging that said T. E. Delbridge did not within ten days after the rendition of the judgment deliver said motorcycle to the sheriff of the court in which such judgment was rendered, and that said sheriff did not within ten days after the rendition of said, judgment receive said motorcycle nor receipt to said defendant therefor, and that said defendant did not within ten days after the rendition of the judgment file with the papers in said cause the receipt of the sheriff as is provided by law in order that he could be credited by the clerk with the value of such motorcycle. The petition was duly verified.

The sheriff answered that within ten days after the rendition of said judgment T. E. Delbridge came to the house of Cíete Stoops, deputy sheriff of Kleberg county, residing at Riviera, Tex. (being the officer who executed the writ of sequestration issued in said cause and who accepted the replevy bond of Delbridge and his sureties), and announced to said officer that he desired to return said motorcycle to him and was ready to do so at once; that at said time said Stoops was confined to his bed with a serious illness and was absolutely unable to leave his bed and unable to inspect said motorcycle and see that it was in as good condition as it was at the time it was replevied by the defendant ; that said Stoops directed Delbridge to leave the motorcycle where it was and agreed that it should be considered as duly and legally returned into possession of the sheriff, and stated that as soon as he was physically able to do so he would inspect it and if found to be in as good condition as it was when replevied, it should be accepted in full satisfaction of the replevy bond and of the judgment rendered by the court; that on or about the 11th day after the rendition of such judgment Stoops, in compliance with his agreement, took such motorcycle into his actual manual possession, inspected same, and found it to be in as good condition as when replevied, and that said Stoops has issued to defendant a receipt therefor. It further appeared from the answer that the first execution was not levied because the sheriff had upon conferring with the county judge been advised to return the writ without executing it. It also appeared that an order of sale had been issued directing the sheriff to seize and sell the motorcycle to satisfy Delbridge’s judgment against Seagraves for $45. The answer was not verified.

Relator filed a general demurrer and special exceptions to the answer. He filed a motion to strike from the record of the judgment a marginal notation made on Hay 18, 1916, during the trial of this suit, crediting Delbridge “with $205, value of motorcycle returned to officer 5 — 18—16.” Said exceptions, general and special, to the answer were overruled; also the motion; and judgment rendered denying petitioner the relief prayed for.

This case has been briefed by both parties upon the theory that the writ of mandamus is the proper remedy to be invoked by the plaintiff when the sheriff refuses to levy an execution. We find that, if the execution requires the restitution of certain property, mandamus has been held to be the appropriate remedy. Fremont v. Crippen, 10 Cal. 212, 70 Amer. Dec. 711; North Pac. C. R. Co. v. Gardner, 79 Cal. 213, 21 Pac. 735; Webster v. Ballou, 108 Me. 522, 81 Atl. 1009, Ann. Cas. 1913B, 567.

But we find no case in which it has been held that mandamus will lie to compel the sheriff to levy an execution issued upon an ordinary money judgment. Such an execution is designed merely for the collection of plaintiff’s debt, and in such cases it is held that the plaintiff has other adequate remedies at law against the sheriff for his neglect of duty. State ex rel. Bradley v. Gone, 40 Fla. 409, 25 South. 279, 74 Am. St. Rep. 150; Armstrong v. Stansel, 47 Fla. 127, 36 South. 762; Habersham v. Sears, 11 Or. 431, 5 Pac. 208, 50 Am. Rep. 481.

That the existence of an adequate common law or statutory remedy precludes resort to the writ of mandamus is so well established as to need no citation of authorities. Our Legislature has granted a remedy by enacting article 3776 (Sayles’ Statutes 1914), which reads as follows:

“Should an officer fail or refuse to levy upon or sell any property justly liable to execution, when the same might have been done, he and his sureties shall be Hable to the party entitled to receive the money collected on such execution for the full amount of the debt, interest and costs, to be recovered on motion before the court from whie'h said execution issued, five days’ .previous notice thereof being given to said officer and his sureties.”

This remedy is adequate, specific, and will more certainly right any wrong inflicted by the refusal to levy an execution than to compel the sheriff to try to make the money by levy and sale.

If it be desired to ascertain what the rights of the parties are, in view of the occurrences taking place after the rendition of the judgment, to determine whether Sea-graves’ judgment is in fact satisfied or whether the sheriff’s receipt and the entry of satisfaction should be canceled, and whether the order of sale in the hands of the sheriff is valid, or void, such matters should, we think, be determined in'a suit between the parties themselves, and not in a mandamus suit against the sheriff who holds two writs issued in the same case, one of which is bound to be void. It is true that at the time plaintiff instituted this suit no entry of satisfaction of his judgment had been made, but the sheriff had given a receipt showing its satisfaction, and we think he could have proceeded to try the issue whether in fact it was satisfied, without resorting to the writ of mandamus. De Witt v. Monroe, 20 Tex. 289; Hollon v. Hale, 21 Tex. Civ. App. 194, 51 S. W. 900; Massie v. McKee, 56 S. W. 119; Eppstein & Co. v. Holmes & Crain, 64 Tex. 560; Bailey v. Buchanan, 126 Mo. App. 190, 102 S. W. 36.

As we are of the opinion that the statute furnishes an adequate remedy against sheriffs who fail to levy executions issued upon money judgments, it is unnecessary to decide the question involving the rights of Del-bridge and his sureties who are not parties to the suit. Shrewsbury v. Ellis, 26 Tex. Civ. App. 406, 64 S. W. 700. It is proper that such questions should be left to be determined when the necessity therefor arises in a proceeding to which all are parties who are to be concluded by the decision. It is to be noted in this connection that there is a possibility that issues of fact may arise when Del-bridge and Stoops testify to what took place between them.

Having held that the writ of mandamus cannot be awarded even in a case in which the sheriff offers no excuse for failure or refusal to levy an execution on a money judgment, it follows that plaintiff’s petition when considered alone does not entitle him to the relief prayed for by him, so it is unnecessary to consider the effect of the failure to verify the answer. The only ease in which we find the question discussed, whether the answer should be verified, is that of Watkins v. Kir-chain, 10 Tex. 375, and in that case the court did not undertake to lay down any definite rule on the subject.

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


author: MOURSÜND, J.

text:
    PEARCE v. SUPREME LODGE, KNIGHTS AND LADIES OF HONOR.
    (No. 5750.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 3, 1917.)
    1. Exceptions, Bill op <S=^39 (1) — Failure to File in Time.
    • A bill of exceptions not filed within the time given by statute, or any extension thereof, cannot be considered.
    [Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. § 54; Dec. Dig. <@=>39(1).]
    2. Appeal and Eebob ¡$^499(4) — Recobd— Objections to Charge.
    In view of Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. e. 59 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971), requiring objections to a charge to be presented before it is read to the jury, and providing that objections not so presented are to be considered waived, where the record fails to show that a peremptory instruction was objected to, the appellate court will not review the correctness of the ruling on the theory that they are considering a matter of fundamental error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2298; Dec. Dig. <S=»499(4).]
    Error from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Suit by M. A. Pearce against the Supreme Lodge, Knights and Ladies of Honor. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    E. H. Powell, of San Antonio, for plaintiff in error. Locke & Locke, of Dallas, and C.' A. Keller and W. S. Anthony, both of San Antonio, for defendant in error.
   MOURSÜND, J.

This is a suit by M. A. Pearce against the Supreme Lodge, Knights and Ladies of Honor, upon an alleged assignment of $212.50 out of $500 due by defendant to Elizabeth Wolff, Edna Wolff, and Charles Wolff on a beneficiary certificate in favor of Herman T. Wolff issued by defendant. Plaintiff alleged that said assignment was made, in writing and verbally, on April 1, 1911, and that on April 4, 1911, he notified Mrs. Augusta Haack and Chas. A. Jenke, agents of defendant, that he held such assignment, and that he subsequently delivered same to them upon their promise to protect him in his interests therein and see that he was paid; that said4agents paid the full amount of the certificate to the beneficiaries named therein and refused to pay plaintiff the amount assigned to him. Defendant answered by general demurrer, general denial, and a special answer, admitting the issuance of a warrant for the $500, of which one-third was payable to Elizabeth Wolff and two-thirds to Chas. A. Jenke, who had duly qualified as guardian of Edna Wolff and Charles Wolff, the other two beneficiaries, who were minors; that such warrant was issued and delivered without any knowledge or notice of plaintiff’s claim; that Mrs. Augusta Haack was not an agent of defendants for the purpose of receiving the instrument relied on by plaintiff or any notice of plaintiff’s right or claim. It further alleged that Edna and Charley Wolff were minors and without legal capacity to make any assignment, and therefore any attempt by them to make an assignment was invalid. Plaintiff, by supplemental petition, excepted specially to the answer and denied the allegations thereof.

Plaintiff in error, in his assignments, complains of the giving of a peremptory instruction to find for defendant. The record fails to disclose that any objections were made to the charge. There is a bill of exceptions which contains the statement that plaintiff excepted to the giving of the charge, but does not disclose what objections, if any, were made to the same. This bill of exceptions was not filed until June 4, 1915, although the court adjourned on February 27, 1915, and, not having been filed within the time given by statute or any extension thereof, cannot be considered. Unknown Heirs of Criswell v. Robbins, 152 S. W. 210; Loeb v. Railway, 186 S. W. 379.

Our Supreme Court has held that it is unnecessary to except to the giving of the general charge, but that it is necessary, under article 1971 as amended by tbe act of the Thirty-Third Legislature, to present to the court such objections to the general charge as are intended to be urged by assignments of error, otherwise they are waived, and that the transcript should contain some authentic record, showing that the objections were in fact presented to the court before the charge was read to the jury. Gulf, T. & W. Ry. Co. v. Dickey, 187 S. W. 184. The opinions of the Courts of Civil Appeals are not in accord on the question whether that statute is applicable to peremptory instructions, but this court has held that it applies to all charges, and that if a peremptory instruction is not objected to, the appellate courts will not investigate the correctness of the ruling on the theory that they are considering a matter of fundamental error. Strong v. Harwell, 185 S. W. 676; McCall v. Roemer, 186 S. W. 409.

As plaintiff in error is not in a position entitling him to complain of the charge, the assignments must be overruled.

The judgment is affirmed.
      <§u^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    PITT et al. v. GILBERT et ux.
    (No. 5707.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 14, 1916.)
    1. Appeal and Error <§==>80(1) — Final Judgment-Disposition op Issues — Cancellation op Deeds.
    In a suit with counts in trespass to try title, and for the cancellation of plaintiff’s deed to one of the defendants on the ground that it was induced by fraudulent representations, wherein plaintiff filed in court and tendered defendant a quitclaim deed conveying to defendants the land received in exchange for their lands, and in which plaintiff sought to recover damages for the deprivation of the use of his land and for the expense in moving to and from the land received in exchange, and for the actual loss of his time in so doing and for punitive damages, a judgment canceling the deed, but failing to dispose of the deed tendered by plaintiff, was not a failure to dispose of the issues in that respect, since the deed placed in the registry for defendants could have been had upon demand, so that the judgment was a final ap-pealable judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 494-500, 503, 505-509; Dec. Dig. <§=>80(1).]
    2. Appeal and Error <§=>934(2) — Final Judgment — Disposition op Issues — Presumption.
    In such suit the issues properly presented by the pleadings would be presumed to have been disposed of by the judgment, though silent thereon, unless it appeared'otherwise from the face of the judgment itself.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3777; Dec. Dig. @=>934(2).]
    3. Appeal and Error <§=>1082(2) — Judgment Appealable — Disposition op Issues — Waiver. .
    Where appellee did not complain of a judgment for him on account of its failure to dispose of damages properly presented by the pleadings either in the lower court or in the Court of Civil Appeals, he will be held to have acquiesced therein.
    [Ed. Note. — For other cases, see Appeal and Error Cent. Dig. §§ 1133-1136, 4281-4284; Dec. Dig. <§=>1082(2).]
    4. Judgment <§=>590(2) — Negative Judgment —Res Adjudicata.
    Where the pleadings put in issue plaintiff’s right to recover upon two causes of action, a judgment awarding a recovery on one, but silent as to the other, was prima facie an adjudication that he was not entitled to recover upon the other cause, and was res adjudicata as to such cause.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1063, 1064, 1103; Dec. Dig. <§=> 590(2).]
    5. Exchange op Property <§=>5 — Rescission —Demand.
    Where plaintiff as soon as he returned to the county of the venue, after having found that defendant had made fraudulent representations as to the lands conveyed to him in exchange, and within about a year after such exchange, filed a suit to cancel his deed and for damages, etc., no formal notice or demand for rescission was necessary.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 5, 6, 8-10; Dec. Dig. <®=>5.]
    6. Damages <§=>208(5) — Question por Jury-Expenses.
    In a suit for the cancellation of a deed on the ground of fraudulent representations, etc., the court did not err in submitting the issue of plaintiff’s reasonable and necessary expense in going to and returning from the land received in exchange, where there was evidence authorizing the submission of such issue.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 533, 534; Dee. Dig. <§=>208(5).]
    7. Exchange op Property <§=>5 — Rescission —Statu Quo.
    In a suit to cancel a deed of land given in exchange for land, plaintiff, who had nothing to do with the trade between another party and defendant, and who had never been in possession of a note given by such party to defendant, would not be denied a rescission on the ground that he did not offer to return such note to defendant.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 5, 6, 8-10; Dec. Dig. <§=>5.]
    8. Judgment <§=>253(1) — Pleading — Con-pormity to Pleading.
    In a suit for the cancellation of a deed, where the pleading only authorized a recovery of rent for the year 1914 at $150 and an item of $80 damages for expense, it was error to render judgment against defendant for $380, $300 of which was rent for two years.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 443, 444; Dec. Dig. <§=>253(1).]
    Appeal ‘from District Court, Milam County; J. C. Scott, Judge.
    Suit by L. G. Gilbert and wife against Maggie E. Pitt, Frank Pitt, and J. W. Cartwright, with counts in trespass to try title, and for the cancellation of a deed, etc. Decree canceling the deed, with a money judgment against defendant. Frank Pitt and defendants appeal.
    Reformed and affirmed.

      Carl Monk, of McAlester, Okl., and Bryan, Stone & Wade and W. C. Blalock, all of Ft. Worth, for appellants. Jack & Jack, of Corsicana, and Henderson, Kidd & Gillis, of Cameron, for appellees.
   Statement of the Case.

RICE, J.

We adopt appellants’ statement of the case, the same having been concurred in by appellees, as follows:

“This suit was instituted by the appellees, L. G. Gilbert and wife, Ida Gilbert, in the district court of Milam county, Tex., against Maggie E. Pitt, Frank Pitt, and J. W. Cartwright, on the 24th day of September, 1914. The first count in plaintiffs’ petition is a suit in trespass to try title, involving 143% acres of land situated in Blilam county, Tex., the plaintiffs alleging that they were the owners of said land on October 15, 1913, and that on said day the defendants and each of them unlawfully ejected plaintiffs therefrom and continued to withhold possession thereof. In their second count plaintiffs allege that on or about the 17th of September, 191?, they were the owners of said tract of land; ’ that on said date plaintiffs were induced to execute and deliver a deed conveying said land to the appellant Maggie E. Pitt; that plaintiffs were induced to so act by the false and fraudulent representations of Frank Pitt that certain land which plaintiffs were to receive in the state of Oklahoma was very valuable, and that, on the contrary, said land was in truth and in fact of very little value. Plaintiffs further allege that they would not have executed the deed to the Milam county land had it not been for the alleged false representations of the appellant Frank Pitt"; that they relied upon his representations; and that they were thereby defrauded out of their Milam county land. Plaintiffs sue to cancel the deed, and file among the papers a quitclaim deed conveying to appellants Maggie E. Pitt and Frank Pitt title to 160 acres of land in Atoka county, Okl., which plaintiffs allege that they had received in exchange for their Milam county land. Plaintiffs further allege that J. W. Cartwright is in possession of said Milam county land, and that he, together with the appellants, have deprived the plaintiffs of the use of said land to the plaintiffs’ damage in the sum of $150. Plaintiffs also sue these appellants for $100 for the expense in moving to and from the land in Oklahoma and for $500 as the actual loss of their time in moving to and from said Oklahoma land, and also sue for $1,000 as exemplary or punitive damages.
“The appellant Maggie E. Pitt in her first amended original answer alleges that on or about the 17th of September, 1913, she was the owner of one certain note m the sum of- and of the value of $972.48, executed by one G. E. Jackson, payable to the order of Maggie E. Pitt, and was also the owner of 158 acres of land situated in Beckham county, Okl.; that on or about said date the said Maggie B. Pitt conveyed to the said Jackson said Beckham county land and canceled said $972.48 note in consideration of the conveyance of the Atoka county land to the appellees Gilbert, and that she received as consideration for the cancellation of her note and for the conveyance of the Beckham county land the 143 acres of Milam county land involved in this suit. She also denied that she was guilty of any fraud, and denied that any one had any authority to make any representations for her, and denied that she had ever ratified or confirmed any fraudulent transactions of any of the parties to this suit. She also denied that any fraudulent representations were made, and says that if they were made that plaintiffs have waived their right to rescission by the long delay in seeking restitution and in not having ever made any claim against appellants for the land in controversy. She also alleges that she never at any time until the filing of the suit received any notice of the desire on the part of the appellees Gilbert to rescind. She further pleads that, since it is impossible to place her in statu quo, the appellees Gilbert take nothing by their suit against her.
“The appellant Frank Pitt filed a disclaimer in so far as the land in controversy is concerned, and pleaded a general denial to the allegations of plaintiffs’ petition. J. W. Cartwright also filed a disclaimer.
“Plaintiffs in their supplemental petition specially deny the allegations of Maggie E. Pitt that the property was her separate property and attack the entire transaction as being fraudulent.
“Trial was had before a jury on the 18th day of October, 1915, and the case was submitted on special issues. Upon the issues as determined by the jury, the court entered a decree cancelling the deed from L. G. Gilbert and wife to Maggie E. Pitt and decreeing that the said Gilberts recover of the defendants the 143 ‘acres of land in Blilam county, Tex. A judgment was also entered against the defendant Frank Pitt for the sum of $380.”

From this judgment the appellants have prosecuted this appeal.

Opinion.

By their first assignment it is urged on the part of appellants that the judgment is not final, in that it does not dispose of the deed which was filed in court and tendered by Gilbert -and wife to appellants, and further because it does not dispose of plaintiffs’ suit against Maggie E. Pitt for $150 rent, $100 expenses, $500 loss of time, and $1,000 exemplary damages, for which reason, it is urged, this court is without jurisdiction. Appellees sued Cartwright and Pitt for $150 for the rental value of the Milam county land. He also sought to recover from Pitt and wife damages of $100 as expenses of moving to Oklahoma and back, $500 for loss of time in going and returning, and $1,000 as punitive damages. The judgment of the trial court canceled the deed of Gilbert and wife to appellants, but did not mention or dispose of their (appellees’) deed to'Maggie E. Pitt for the Atoka county land, and, while it gave judgment against Frank Pitt for $380, made no mention of any moneyed judgment against Maggie E. Pitt or J. W. Cartwright, for which reason, it is contended, all the issues raised by the pleadings were not disposed of, and the judgment is therefore not final, citing in support of their contention Hamilton v. Joachim, 160 S. W. 645; Bushong v. Alderson, 143 S. W. 200; Oklahoma City & Texas Ry. Co. v. Magee, 56 Tex. Civ. App. 552, 120 S. W. 1103. We do not think there is any merit in the contention that the judgment of the court failed to dispose of the deed from appellees to Mrs. Pitt, reconveying to her the Atoka county land, for the reason that the same is shown by the pleadings and evidence to have been placed in the registry of the court for them, and could have been had upon demand, without order of the court therefor, the judgment being silent with reference thereto.

The earlier authorities in this state appear to sustain appellants’ second contention, but appellees insist that these have either been overruled or modified by subsequent decisions, citing to sustain their contention Hermann v. Allen, 103 Tex. 382, 128 S. W. 115, Trammell v. Rosen, 106 Tex. 132, 157 S. W. 1161, Swan et al. v. Price, 162 S. W. 991, and Stockwell v. Melbern, 168 S. W. 405, in which the doctrine is announced that all the issues properly presented by the pleadings will be presumed to have been disposed of by the judgment, unless it appears otherwise from the face of the judgment itself. The judgment in the instant case is silent as to the items of damages presented by the pleadings against Cartwright or Mrs. Maggie Pitt, and therefore it cdmes clearly within the rule announced in the above decisions.

Appellees, however, did not complain of the judgment on account of this failure to dispose of the items of damages raised by the pleadings either in the lower court or in this court, and therefore must be held to have acquiesced therein.

At any rate, we think they are concluded by said judgment, and the same became res adjudieata as to such items of damage. If so, it is, in effect, a final judgment from which an appeal could be prosecuted to this court. In Rackley v. Fowlkes, 89 Tex. 613, 36 S. W. 77, the court says:

“The proposition seems to be sound in principle and well supported by authority that, where the pleadings and judgment in evidence show that the pleadings upon which the trial was had put in issue plaintiff’s right to recover upon two causes of action, and the judgment awards him a recovery upon one, but is silent as to the other, such judgment is prima facie an adjudication that he was not entitled to recover upon such other cause.”

And this principle seems to be applicable here.

In view of these later decisions we are constrained to hold that the judgment appealed from is final, and overrule appellants’ contention.

The court properly declined to give a peremptory charge in behalf of appellants, based on their contention that no notice of dissatisfaction or formal demand for rescission was made prior to the filing of the suit by appellees. Under the circumstances disclosed by the record, no such notice or demand was necessary. As soon as appellees returned to Milam county, which was within about a year after the exchange of lands, this suit was filed and the deed of reconveyance was tendered by them. Besides this, appellants were nonresidents, and it appears from the evidence that notice and demand for rescission was made upon their agent, King, in charge of the land, which was communicated to appellants before the filing of the suit, for which reason we overrule appellants’ second assignment.

The court did not err in submitting to the jury the issue of the reasonable and necessary expense of the Gilberts in going to and returning from Oklahoma, since there was evidence in the record which authorized the submission of this issue.

It appears from the evidence that Maggie Pitt, about the 17th of September, 1913, held a note for $972.48 against G. B. Jackson, and was also the owner of 158 acres of land in Beckham county, Okl; that on said date she conveyed to said Jackson said Beck-ham county land, canceling and delivering to him said note; that in consideration therefor she procured Jackson to convey to appellees the Atoka county land, upon consideration that appellees would convey to her, Mrs. Pitt, the Milam county land, which they did, and it is now urged on the part of appellants that appellees are not entitled to rescission of the contract, because they have not been placed in statu quo, in that appellees did not return or offer to return to them the Jackson note. Appellees had nothing to do with the trade between Jackson and the appellants. They had never been in possession of the $972 note, and it was therefore impossible for them to return it to appellants; and, as between the parties to this suit, the situation was the same as if the appellants had deeded the Atoka county land direct to appellees. We therefore overrule all of the assignments complaining of this matter.

We sustain the 6th assignment complaining that the court erred in rendering judgment against F. E. Pitt for the sum of $380, of which $300 was for rent for two years. The pleading only authorized a recovery for rent for the year 1914 at $150 and the item of $80 damages for money expended in going to and returning from Oklahoma. Appellees, however, have offered to remit $150. We therefore reform the judgment in this respect so as to entitle them to recover the sum of $230 for rents and damages, and as thus reformed the same will be affirmed, the costs of this appeal being taxed against appellees.

Reformed and affirmed.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    LAYBOURNE v. BRAY & SHIFFLETT.
    (No. 1075.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 6, 1916.
    On Motion for Rehearing, Jan. 10, 1917.)
    1. Attorney and Client @=>123(1) — Fidel- . ITY.
    Generally, an attorney must act towards his client with the most scrupulous good faith and fidelity, and must make known to the latter the exact status, so far as he is able, of the matter concerning which he is employed.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 239, 245, 248, 249: Dec. Dig. @=>123(1).]

      •2. Attorney and Client <@=>143 — Opinions.
    Ordinarily, expressions of opinions by attorneys as to probability of judgment secured by 'them being reversed on appeal, even if mistaken, are not such false representations as .will entitle the client to avoid for fraud a contract based thereon.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 328-331; Dec. Dig. <@=> 143.]
    3. Attorney and Client <@=>166(1) — Action for Compensation — Evidence.
    ; Evidence is admissible upon the issue of good faith of the attorney in action on such contract.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. § 368; Dec. Dig. <@=>166(1).]
    4. Attorney and Client <@=>166(1) — Agreement for Increased Compensation.
    A contract between attorney and client for increased compensation, made after the relation of attorney and client has commenced, is presumptively without consideration and void, where no additional services by the attorney are contemplated.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. § 368; Dec. Dig. <@=>166(1).]
    5. Attorney and Client <@=>166(i) — Agreement for Increased Compensation.
    Where a new contract between attorney and client is made for increased compensation after the relation has commenced, the burden is upon the attorney to show that the new contract was fairly made, was reasonable, and that no advantage was taken by reason of the confidential relation existing, and that his client had full knowledge of the facts.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. § 368; Dec. Dig. <@=>166(1).]
    6. Attorney and Client <@=>167(2) — Action for Compensation — Question for Jury.
    In an action on contract for additional compensation made after services had been commenced, the evidence being conflicting as to good faith of the attorneys, such issue was for the jury.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. § 374; Dec. Dig. <@=>167(2).]
    7. Attorney and Client <@=113 — Acting for Opposing Party.
    The rule prohibiting an attorney once retained from acting for the opposing party applies only in the case of conflicting interest, in the absence of a contract.
    [E'd. Note. — For other cases, see Attorney and Client, Cent. Dig. § 229; Dec. Dig. <@=>113.]
    8. Attorney and Client <@=>167(2) — Action —Employment .by Adverse Party — Question for Jury.
    In an attorney’s action for compensation, where defendant alleged a contract that the attorney would not be employed by the opposing party during the litigation, and there was evidence to support the allegation and to show breach thereof, the issue raised thereby should have been submitted to the jury.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. § 374; Dec. Dig. <@=> 167(2).]
    On Motion for Rehearing.
    9. Attorney and Client <@=>167(2) — Action —Question for Jury.
    In an action by attorney for services upon guantum meruit, the evidence being conflicting, plaintiff’s right to recover is for the jury.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. § 374; Dec. Dig. <@=>167(2).]
    Appeal from District Court, Wheeler County; Prank Willis, Judge.
    Action by Bray & Shifflett against W. A. Laybourne. From judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    Crudgington & Works, of Amarillo, and Hill & Clark, of Shamrock, for appellant. Kimbrough, Underwood & Jackson, of Amarillo, for appellees.
   HALL, J.

Appellees, a firm of lawyers, filed their original petition in the district court of Wheeler county, September 9, 1915, seeking to recover of appellant $1,117.50, and interest, as attorney’s fees for services rendered appellant by them in certain litigation between Spaulding Manufacturing Company and appellant. It is alleged, in substance, that on September 30, 1912, appellant executed a written contract, in which he agreed to pay appellees $1,000 for their services as attorneys in representing him in said litigation with the Spaulding Manufacturing Company, of Grinnell, Iowa; that $500 of this amount was paid by note, and the remaining $500 was to be paid upon the expiration of the statutory period allowed for appeal from the judgment entered in said Iowa cause shortly prior to the date of said contract; that said contract also provided for the payment of $100 additional for services by ap-pellees in the Supreme Court of Iowa, in the event the said Spaulding ease was appealed to said court, and for an additional $200 if said cause should be again tried in the court below; that said $1,000 was due for services already rendered at the time of said contract; that said Spaulding case was appealed, and said $100 for services in the appellate court had accrued, besides interest on said note, making said total sum; that in 1909 appellant made a written contract of employment with the Spaulding Manufacturing Company, of Grinnell, Iowa, under which he rendered services to said company as superintendent of its business of selling and trading buggies in the state of Texas; that, upon the termination of his employment, defendant claimed said company was due him the sum of $4,124.13, which amount he had retained in Ms settlement with said company; that said company denied his right to retain said sum, and appellees were employed by appellant to represent him in litigating said controversy. In said action appellant claimed an additional amount due him from said company. In this suit appellees set up •the contract and notes, upon which the original petition was founded, alleged compliance upon their part, and a total failure on the part of appellant to pay either of said notes.

Appellant alleged: That in 1909, having a controversy with said Spaulding Manufacturing Company, and desiring attorneys who would be perfectly free from any influence and obligations, both directly and indirectly, of a business or other nature to said company, and being assured by said Bray and bis firm that they were in no wise connected with, employed by, or under obligations of a business nature or otherwise to, said Spaulding Manufacturing Company, and, upon the faith of said assurance, employed said Bray and his firm to represent him in said matter. That said Spaulding Company was an old, wealthy concern, of extensive business influence in Grinnell. That by said original employment said Bray and his partner were to receive one-third of whatever amount should be recovered from and above $2,000. That, during the preliminary development of said litigation, said attorneys became dissatisfied with their contingent fee arrangement, and appellant guaranteed them that they should not lose anything on account of said contract, whereupon in about May, 1912, they charged him on their books with $500 as attorney’s fees, and after said Iowa case had been tried, on September SO, 1912, they charged him again with $500. That by said original contingent fee arrangement said attorneys would only have been entitled to about $800, provided the judgment rendered in defendant’s favor on September 28, 1912, had been affirmed by the higher court, but that said judgment was in fact afterwards reversed. That appellant was induced by the fraudulent representations and conduct of said Bray to employ him as his attorney to continue said employment and to enter into the contracts of March 13, 1.909, and September 30, 1912, and to execute the notes mentioned in plaintiff’s pleadings, in this: That he employed said Bray upon the agreement that he was free and should remain free from the influence of said Spaulding Manufacturing Company during' the continuance of said litigation, but said Bray accepted employment to represent said company immediately after the trial of appellant’s said cause in the lower court, and while an appeal was pending, although said Bray held out to appellant that he would not accept such employment. That; about the time said cause went to trial, appellant, under said Bray’s advice, permitted an offer in open court to confess judgment for $1,500 and costs, notwithstanding the fact that the jury a little later returned a verdict in appellant’s favor for $295.87. That the contract of September 30, 1912, was executed immediately after the return of said verdict, said Bray taking advantage of the condition of appellant’s mind produced by such apparently splendid results, in the face of said offer to confess judgment for $1,500, and induced appellant to enter into said contract for the payment of a greater fee than would have been due on said original contract, even on affirmance of said judgment; said Bray misleading appellant by representing that said offer to confess judgment for $1,500 would have been a good settlement. That appellant was ignorant of the law relating to the facts of his case and depended on said Bray, who claimed special knowledge of the law and of the legal effect of the facts in said cause. That said contract of September 30th was so entered into upon the definite and positive assurance of said Bray that said judgment would be affirmed and upheld in the higher courts, and defendant wholly protected thereunder, not only in the amount of $4,124.13, which had been sustained by the jury as a credit in defendant’s favor against said company in said suit, but also in said sum of $295.87, and interest so recovered over against them; said Bray stating and claiming to defendant that there was nothing in the record of said cause on appeal to cause a reversal, intending thereby to defraud defendant. That said cause was reversed by the Supreme Court of Iowa, February 23, 1914. That appellant has reason to believe that said attorneys have been under the business influence of said company since immediately after the date of said last contract. That he since has been informed and believes that the bringing of this suit in Iowa, instead of in Texas, where said company had property and said offer to confess judgment, was not to appellant’s best interest, and that his interests have not been protected in good faith in said matters. He is further informed and believes that appel-lees did not in good faith and correctly advise him as to the probabilities of said cause being reversed, but they took advantage of his ignorance of the real condition of said cause to secure a larger fee; that if appellant had known of appellees’ lack of good faith and the influence of said company over them, he would not have executed said last contract or retained them as his attorneys; that said contingent fee was abrogated by said fixed charges of $500 in May, 1911, and $500 in September, 1912, and the same is barred by two years’ limitation; that, on account of the reversal of said judgment, appellant was compelled to employ another attorney to prepare for second trial of said cause and incurred expenses and attorney’s fees-to the extent of about $750, besides the loss of said judgment, his cross-action against said company being dismissed by ap-pellees without his consent.

In their supplemental petition, appellees set up the written contract entered into between them and appellant on March 13, 1909, alleging that Laybourne was claiming the sum of $5,389.20 of the Spaulding Manufacturing Company, by virtue of his contract with and services rendered said company, and employed appellees to render him such legal services as were necessary in the collection and settlement of said claim, and appellant would pay appellees a sum equal to one-third of the amount collected over $2,-000, either by litigation or settlement out of court; that said contract also bound appellant to advance such sums as were necessary to pay court costs, etc.; that, by reason of the services rendered to appellant. by appellees, appellant was permitted to retain the sum of $4,334.29, with interest thereon from March, 1907, at the rate of 6 per cent., aggregating $5,894.59, at the time the litigation terminated; that in said contract appellees were entitled, as the result of the litigation, to a fee of $1,-298.19, with interest from March 23, 1915, which is a greater sum than that sued for under the second contract and notes. They pray in the alternative that, if a recovery was denied them on said second contract, they be allowed to recover on the first, and that, if for any reason the recovery he denied them on both of said contracts, then that they be permitted to recover on quantum meruit $1,500, the reasonable value of their services.

After the evidence had been introduced, the court directed the jury to find for the appellees the amount of the last contract, and judgment was entered accordingly.

The first assignment is that the court erred in peremptorily instructing the jury to find for plaintiffs, because the evidence showed without conflict that one of the material inducements for defendant to execute said note and contract of September 30, 1912, was the definite statement and assurance of said Bray that the record in said cause of Spaulding Manufacturing Company against defendant had already been developed and was then in condition to strengthen defendant’s cause and increase his recovery in case same had to be retried, and that the record for appeal was in such condition that the case could not be, and would not be, reversed. The first proposition under this assignment is that any false or fraudulent representation or statement as to a material inducement for entering into a contract will avoid the enforcement of the same. The general rule is that an attorney must act toward his client with the most scrupulous good faith and fidelity, and must make known to his client the exact status, so far as he is able, of the matter concerning which he is employed. The statements alleged to have “been made were substantially proven. They were expressions of opinions as to what could or would be done in the future, and, ordinarily, are not such false representations as would entitle the appellant to avoid the contract upon the ground of fraud. We think the evidence was admissible, however, upon the issue of good faith, and the testimony of both Laybourne and Bray raised the issue.

It will be observed that the court instructed the jury to return a verdict for the full amount due upon the second contract. The second contract was an agreement for increased compensation after the relation of attorney and client commenced. The rule with reference to such an agreement, where no additional services by the attorney are contemplated, is that it is presumptively without consideration and void, and the burden rests upon the attorney to show that the new contract was fairly made, was reasonable, and that no advantage was taken by reason of the confidential relation existing between the parties, and that his client entered into it with full knowledge of the facts. Waterbury v. City of Laredo, 68 Tex. 565, 5 S. W. 81; Kahle v. Plummer, 74 S. W. 786; 2 R. C. L. “Attorneys at Law,” §§ 42, 120. We think this issue should also have been submitted to the jury.

Appellant alleged that, at the time he employed appellees, he stated to Bray that he desired attorneys who were not then, and would not be during his litigation, in the employ or under the influence of the Spauldings ; that, after being assured by Bray that he was free from any influence of the Spauldings and would make his money fighting them and not by working for them, he employed him. There is evidence in the record showing that Bray was employed by Spaulding during the progress of the litigation between appellant' and Spaulding, in Iowa. ■ The rule prohibiting an attorney once retained by a client from acting for the opposing party applies only in the case of conflicting interest in the absence.of a contract. In the instant case, appellant alleged a contract to that effect with one of the appellees, and there is some evidence in the record tending to sustain the allegation. We think this issue should have been submitted to the jury.

The verdict of the jury was based upon the second contract, and the question of ap-pellees’ right to recover upon a quantum meruit is not presented by this record.

Some question is raised with reference to the action of appellees in dismissing appellant’s cross-action at the time such dismissal was entered. If this was fraudulently done while appellees were under the influence of and in the employ of W. H. Spaulding, it would materially affect the right of appellees to recover any amount. The record, however, upon this issue, is not clear enough for us to pass upon it authoritatively.

Because the court erred in directing a verdict when the pleadings and evidence were sufficient to raise the issues of fact outlined above, the judgment is reversed, and the cause remanded.

On Motion for Rehearing.

Appellee insists that we erred in stating that the court directed the jury to find for appellees upon the second contract. We were led into making this statement by appellant’s brief. Upon a review of the entire record, we are not sure whether the court directed a verdict based upon the first or second contract; but we are reasonably certain that he could not have directed it under that count of plaintiff’s pleadings seeking to recover upon a quantum meruit. If, however, the trial court was of the opinion that plaintiff was entitled to recover $1,211.10 upon the quantum meruit, the record furnished us no basis upon which we can, by calculation, arrive at such an amount, and upon that theory of the case it was purely a question of fact for the jury, and the error of the court in directing a verdict is all the more apparent.

The motion for rehearing is overruled.

BOYCE, J., not sitting.
      @=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <®s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    STATE v. HOFFMAN.
    (No. 5824.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 20, 1916.
    Rehearing Denied Jan. 17, 1917.)
    1. Taxation <®=>841 — Refusal to Pay — Penalty — Tendee.
    Under Rev. .St. art. 7692, providing that any one refusing to pay his taxes until January 31st next succeeding the return of the assessment rolls to the comptroller shall be subject to a penalty of 10 per cent, on the tax, defendant, who on January 28th tendered the collector the amount of his legal taxes which was refused, and who on January 31st served a writ of injunction on the collector, and who on February 2d again tendered the legal taxes which were refused, did all he could to pay his taxes, and thereby relieved himself from all penalties, interest, and costs; the tender of the legal taxes being sufficient, and the illegal tax being separable from the legal tax.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1657; Dec. Dig. <S=>841.]
    2. Taxation @^514 — Lien—1Tendee.
    A lien for taxes was extinguished by the tender thereof made good by the payment in the registry of the court, so that the court properly refused to foreclose a lien on the taxpayer’s property.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 956-961; Dec. Dig. <®u»514.]
    Appeal from District Court, Duval County; V. W. Taylor, Judge.
    Suit by the State of Texas against Charles Hoffman for taxes, together with interest, penalties, and costs. Judgment for the State for the taxes alone, and it appeals.
    Affirmed.
    J. F. Clarkson, of San Diego, for the State. Dougherty & Dougherty and G. C. Robinson, all of Beeville, for appellee.
   FLY, C. J.

This is a suit by appellant to recover the taxes due by appellee for the year 1913, together with interest, penalties, and costs. The cause was tried, without a jury, and judgment was rendered in favor of appellant for the taxes without penalties, interest, or costs.

On January 28, 1914, appellee tendered to the tax collector of Duval county all taxes due by him, but the collector refused to accept the taxes because a tax of 20 cents on the $100, levied for courthouse and jail purposes, was not tendered. The collection of the last-named tax was enjoined by the district court on January 30th, and an order issued directing the tax collector to accept the sums of money tendered by appellee and his coplaintiffs. The bond for injunction was filed on January 31st, and the writ issued, and on February 2, 1914, the amount of the taxes was again tendered, but refused because a 10 per cent, penalty was not tendered. Afterwards, on October 23, 1915, taxpayers, among the number being appellee, obtained an injunction restraining the county attorney from suing for the courthouse and jail tax. No appeal was taken from that order or the final order, and it is not contended in this case that the collection of the taxes should not have been enjoined. The full amount of the taxes demanded in this suit were tendered into court.

The contention of appellant is that the court erred in not rendering jugment in its favor for the penalty, interest, and costs. The taxes for the year 1913, alleged to amount to $2,140.34, less the courthouse and jail tax, were sued for, with penalties, interest, and costs. The taxes for 1913 could have been paid, without a penalty, at any time before February 1, 1914. On January 28, 1914, appellee tendered the collector of taxes for Duval county the identical taxes sued for in this case, but he refused to accept the same, and that tender protected appellee against all penalties, interest, and costs that might have been assessed against him for a failure to pay the taxes. By his first tender he had fully protected himself, and such penalty, interest, and costs could not again accrue. The writ of injunction was served on the tax collector on the afternoon of January 31, 1914, the same being Saturday, and on Monday, February 2d, the legal taxes were again tendered and again refused. It is not seriously contended that the first tender did not protect appellee against the imposition of penalties, interest, and costs; but it is insisted that, because the tax was not paid on the afternoon of January 31st, the penalties, interest, and costs again arose. The proposition amounts to the assumption that, if' appellee had not sued out the writ of injunction, he would have been immune as to the penalty, interest, and costs, but because the court required the tax collector to receive the taxes, and they were not again tendered until February 2d, the penalty again attached. We are of opinion that the first tender formed a barrier to the collection of the penalty, and that it did not again attach as soon as the writ of injunction was served. Penalties are not favored in equity, and, unless there is a plain case of a failure or refusal to pay taxes, the penalty will not be imposed. Oooley on Taxation, pp. 901 and 902, and notes.

The tender of the legal taxes was sufficient, the illegal taxes being clearly separable from the legal taxes. State v. Fulmore (Tex. Civ. App.) 71 S. W. 418; First National Bank of Lampasas v. City of Lampasas, 33 Tex. Civ. App. 530, 78 S. W. 42. Appellant liad not failed or refused to pay liis taxes, as contemplated by article 7692, Rev. Statutes. That statute provides:

“If any person shall fail or refuse to pay the taxes imposed upon him or his property by law until the thirty-first day of January next succeeding the return of the assessment rolls of the county to the comptroller, a penalty of ten per cent, on the entire amount of such taxes shall accrue. * * * ”

Appellee did all he could to pay his taxes, and made his original tender good by tendering the amount of taxes again on Eebruary 2d, and again'when this suit was instituted. He thereby relieved himself of all penalties, interest, and costs. Clark v. Colfax County, 2 Neb. (Unof.) 133, 96 N. W. 607; Loan & Trust Co. v. Codington County, 9 S. D. 159, 68 N. W. 314. As said in the last case cited:

“The county was offered all it was entitled to collect. * * * It refused the offer, and must .now be content with a judgment for the amount it should have accepted. Payment of the valid portion was not required. A tender was sufficient.”

The lien was extinguished by the tender, made good by the payment into the registry of the court, and the court properly refused to foreclose a lien on appellee’s property. Cooley, Taxation, pp. 808 and 809; Tracey v. Irwin, 18 Wall. 459, 21 L. Ed. 786.

There was no basis for the suit instituted against appellee, as he was ready and willing to pay the taxes and twice tendered the same before the suit was brought. The desire for the penalty turned the scale against receiving the taxes, and the suit was the result.

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


text:
    ANDREWS et al. v. MYNIER et al.
    (No. 5767.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 3, 1917.)
    1. Railroads <@=>312(4) — Injury at Crossing-Liability.
    In an action to recover the value of an automobile destroyed by defendant’s train, alleging failure to keep a lookout for any obstructions on the track, defendant, if its servants could not by keeping a lookout have discovered it in time to have prevented the injury, would not be negligent.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. § 991; Dec. Dig. @=>312(4).]
    2. Railroads @=>338 — Injury at Crossing— Contributory Negligence.
    If plaintiff was negligent in going upon defendant’s track with his automobile, and defendant’s employés did not and could not by the exercise of ordinary care have discovered him in time to prevent injury, he could not recover for the destruction of the automobile.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1096-1099; Dec. Dig. <@=>338.]
    3. Negligence <@=>97 — Comparative Negligence-Recovery.
    The rule of comparative negligence prescribed by Rev. St. art. 6649, in the case of injury to a carrier’s employé does not prevail in other cases of injury from negligence. In all other cases of negligence contributory negligence is an absolute defense.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 93, 162; Dec. Dig. @=>97.]
    Appeal from San Patricio County Court; M. A. Childers, Judge.
    Suit by J. L. Mynier and another against Frank Andrews, receiver, and another. Judgment for plaintiffs, and defendants appeal.
    Reversed, and judgment rendered that plaintiffs take nothing by their suit.
    Kleberg, Stayton & Picton, of Corpus Christi, for appellants. J. C. Houts,. of Sin-ton, for appellees.
   FLY, C. J.

J. L. Mynier and Mae G. Myn-, ier sued the St. Louis, Brownsville & Mexico Railway Company and Frank Andrews, the receiver thereof, to recover the value of an automobile alleged to have been struck and destroyed by a train belonging to the railway company. It was alleged that J. L. Mynier attempted to drive his automobile across the track of the railway company, and that when on the track “the engine of said auto went dead, and said auto stopped on the track.” The only negligence alleged on the part of appellants was:

“That it was the duty of the engineer and fireman on said locomotive to have kept a lookout for obstructions upon defendants’ track on said occasion, and had they or either of them performed said duty they could have stopped said train before the said engine had reached said automobile, and that it was by reason of the carelessness and negligence of defendants’ servants, agents, and employés that said automobile was injured and destroyed as aforesaid.”

The cause was submitted to the jury upon special issues, and the court rendered judgment against the railway company and receiver for $179.50.

The jury found that the automobile was of the value of $450 just before the collision, and1 only $91 immediately afterwards; that the -employés operating the train did not discover the automobile on the track a sufficient time before the' train struck it to have stopped the train before it struck the automobile, nor could they have made such discovery by the use of ordinary care; that the employés did not use ordinary care in having the train approach the place where the automobile had stopped on the track; that they were negligent, and such negligence was the. proximate cause of the collision. The jury also found that J. L. Mynier was negligent when approaching and attempting to cross the railway track, and that his negligence contributed to the injury to the automobile.

The inconsistency of the finding that the employés1 of appellant did not discover, and could not* by the exercise of ordinary care have discovered, the automobile on the track, and yet that they were guilty of negligence in approaching the crossing, is apparent The only negligence charged was a failure to keep a lookout for any obstruction on the track, and if they could not, by keeping a lookout, have discovered the obstruction in time to have prevented the injury, there could be no negligence. Not only is it clear from the findings as to the acts of the employés that there could have been no negligence on their part, hut in addition the jury found that the driver of the car was guilty of contributory negligence in attempting to cross the track. The jury was, in effect, instructed to apply the rule of comparative negligence, which had no application to a case of this character, and, although it was found that the car was injured to the extent of $359, the sum of $179 only was allowed appellees. It was endeavored to punish J. L. Mynier to the extent of a fine of $180 for going upon a crossing in front of a moving train and having his motor “go dead” on him.

If J. L. Mynier was guilty of negligence in going upon the track and the employés did not discover him thereon, and could not by the exercise of ordinary care have discovered him thereon, as found by the Jury, appellees should not have recovered, and judgment should have been rendered, on the answers to the issues presented, for appellants.

The rule of comparative negligence does not exist in Texas, except as between common carriers and their employés. In all other case of injuries resulting from negligence, contributory negligence is an absolute defense, no matter how negligent the defendant may have been. Article 6649, Rev. Stats.; S. A. Brewing Ass’n v. Wolfshohl, 155 S. W. 644. The jury found contributory negligence, and all the facts tend to show that the automobile could not have been injured had it not been for the negligence of the driver in going upon the track. The negligence of the driver was the proximate cause of the injury to the automobile.

The judgment is reversed, and judgment here rendered that appellees take nothing by this suit and pay all costs in this behalf expended.
      <£^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FORD v. SIMS.
    (No. 5755.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 3, 1917.)
    1. Fraud <@=>22(1) — Duty to Investigate.
    One induced to purchase 300 acres of land by false representations that it was level; that water would stand on only about 3 acres; that 150 acres were cleared; that it was all tillable, etc. — could recover for the fraud whether or not he used care in ascertaining the truth of the representations.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 19, 20, 22, 23; Dec. Dig. <8=22(1).]
    2. Fraud <@=13(3) — Representations — Knowledge op Falsity by Defendant.
    Where the seller of land stated as a fact that it was level when it was not, he was liable for damages to purchaser relying thereon, it being fraud to positively state a thing to be true not knowing whether it is true or not, where the thing asserted is not mere matter of opinion.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 5; Dec. Dig. <@=13(3).]
    3. Appeal and Error <@=1068(1) — Harmless Error — Presumption op Prejudice prom Error.
    In action for fraud in sale of land, a charge, erroneously conditioning recovery on plaintiff’s having used due care in investigating, necessitated reversal, although the jury found for plaintiff on a certain item and against him on others, where the theory of such determination did not appear, since it would not be presumed that the verdict was based on determination of a question of fact rather than on the application of the law stated in the charge.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4225; Dec. Dig. @=>1068(1); Trial, Cent. Dig. §§ 525, 553.]
    4. Fraud <@=59(3) — Action by Purchaser op Land — Damages.
    In action for fraud inducing purchase of land for an agreed price, other land being taken in part payment therefor at an agreed valuation, damages recoverable were the difference between the market value of the land when purchased and the amount paid, the land taken in part payment to be considered as cash; the transaction being a purchase and not a sale.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 62; Dec. Dig. <@=59(3).]
    5. Fraud <@=13(2) — Representations—Belief op Truth by Dependant.
    If. representations made by a seller of land were false and material and induced its purchase, the seller’s belief in their truth would not relieve him from liability for consequences resulting from them.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 4; Dec. Dig. <8=13(2).]
    Appeal from District Court, Kleberg County ; Robt. W. Stayton, Special Judge.
    Action by J. B. Ford against B. O. Sims. From judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    H. H. Flowers, of Hebbronville, and H. M. Holden, of Corpus Christi, for appellant. Pollard & Crenshaw, of Kingsville, for ap-pellee.
   FLY, C. J.

This is a suit brought by appellant to recover damages in- the sum of $13,750, alleged to have accrued by reason of fraudulent representations made by appellee to induce the purchase by appellant of 301.-83 acres of land in Kleberg county. The cause was tried by jury, and resulted in a verdict in favor of appellant for $75.

The evidence of appellant shows that, at the time of the purchase of the land by him from appellee, appellant lived in Mississippi, and became interested in the Kleberg county land through advertising matter sent out by ap-pellee. He came from Mississippi to Texas and went to see the land. He met appellee and in company with him, and an assistant of appellee, J. E. Flowers, went upon the land to inspect it. Appellee, as testified by appellant, represented to appellant that the land was all even, good, black sandy land, with 160 acres that would be ready to plow by fall, when appellant was to take possession. It afterwards transpired that about 100 acres of the land were covered with water when it rained. There was a small place, on the land when appellant looked at it that was covered by water, and appellee stated that it was the only place that had water on it. The statements attributed to appellee as to the quality and condition of the land were denied by him. The land was sold to appellant at $60 an acre, certain property in Mississippi being taken in part payment for the land. The cleared land had not been put in condition to be plowed, and appellee, as a compromise, offered to pay appellant $76. The prices put upon the land by witnesses ran from $20 an acre to $75 an acre. The facts were very contradictory and made a case peculiarly for a jury.

The court charged the jury that, in order for appellant to recover, not only must he prove that the representations made by appellee were false, fraudulent, and material, and were believed by appellant, but that it should be shown that appellant “did not know, and could not by the exercise of ordinary care have known, whether such representations were true or false.’’ The charge does not embody the law applicable in cases of this character.' If appellee represented to appellant that the land he sold to him was level land, and that water would stand on only one depression, covering about 3 acres; that 150 acres of the land were cleared and ready for farming; that all of the land was tillable; that a town site had been laid out near the land; and that adjoining land would be divided into farms and settled; and those representations, or either of them, was false; and that appellant believed the representations to be true, and was induced by such representations to buy the land from appellee—he should recover whether he used ordinary care or no care in ascertaining the truth of the representations. The language used in connection with this subject in the case of Railway v. Kisch, 2 L. R. H. L. 120, has been copied into several Texas opinions and fully approved. It is as follows:

“When once it is established that there has been any fraudulent misrepresentation * * * by which a person has been induced to enter into a contract, it is no answer to his claim to be relieved from it to tell him that he might have known the truth by further inquiry. He has a right to retort upon his objector: ‘You, at least, who have stated what is untrue * * * for the purpose of drawing me into a contract, cannot accuse me of want of caution, because I relied implicitly upon your fairness and honesty.’ ” Labbe v. Corbett, 69 Tex. 503, 6 S. W. 808; Buchanan v. Burnett, 102 Tex. 492, 119 S. W. 1141, 132 Am. St. Rep. 900.

Tbe facts in this case show that appellant was a stranger in Texas, knowing nothing about the land and necessarily relying upon the statements of appellee. He could rely upon the statements of appellee as to the quality, situation, and condition of the land, and the duty did not devolve upon him to go all over the land to ascertain if appellee was telling him the truth. Appellant saw only a part of the land, which was so covered with grass and brush that he could not ascertain the topography of the land. Appellee stated as a fact that the land was level. He should have known before he stated it as a fact. As said by this court in a similar case to this:

“If he did not know the balance of the land was as .good as that he showed to appellee, it had the same effect as though he did know. It was fraud to positively state a thing to be true when the party making the representation did not know it to be true. Morrison v. Adoue, 76 Tex. 255, 13 S. W. 166. It may be that if appel-lee had insisted on going upon the land he could have discovered the falsity of the statement as to its quality, but that would be no answer to his prayer to be relieved from the contract. * * * However, he relied upon the positive statement of appellants’ agent that the land, not seen by appellee, was equally as good as that part of the land shown to him. The agent could not claim that what he said was a matter of opinion, because the defect in the land was so obvious and patent that he could not have entertained such an opinion. No man could honestly give it as his opinion that a parcel of land, with a depression that gathers and holds water after a rain, was as good as land adjoining it, upon which there was no such depression. It was a plain statement of fact, made to deceive, or made without knowledge with which he should have possessed himself before making any such statement.” White v. Peters, 185 S. W. 659.

See, for a full discussion and citation of authorities, Gibbens v. Bourland, 145 S. W. 274.

In this case, however, it is the contention that the erroneous charge did not injure appellant, for the reason that .the jury returned a verdict in his favor for $75, and must necessarily have found against appellant on all charges of fraud except that of a failure to grub the land as he said he had done or would do. That may be true, but the jury may have applied the doctrine of ordinary care to all of the misrepresentations except that as to the land being ready for plowing, and, if so, the charge may have prevented the recovery of damages that would have been meted out to appellant had the charge not been given. One of the jurors testified, on the hearing of the motion for new trial, that the $75 was awarded to cover the grubbing of the land, but it is not ascertainable upon what theory no recovery for the damages arising from other misrepresentations was allowed. It may have been because the jury did not believe that such representations were made, or it may have been on the ground that appellant, by the exercise of ordinary care, could have discovered the falsity of the representations. When an appellate court cannot determine from the record that a verdict was not probably influenced by an erroneous charge, the judgment will be reversed. Williams v. Conger, 49 Tex. 582; Dwyer v. Insurance Co., 57 Tex. 184. As said by this court in Norton v. Railway, 108 S. W. 1044:

“We cannot determine how the jury, arrived at their conclusion, and we arel unwilling to sacrifice the rights of a party on a mere hypothesis that the jury, by finding a verdict under the condemned charge, must have found that there was no evidence in favor of the position of plaintiff in error. If the jury may have been misled by the erroneous charge, the judgment will be reversed, although there be other grounds upon which the jury might have based their verdict.”

The alleged misconduct of the jury will not probably be repeated on another trial, and need not be discussed.

The facts do not establish a case of exchange of property, hut should be treated as making a case of a sale, a part of the consideration being the property owned by appellant in Mississippi. The measure of damages given the jury by the court, “the difference between the value of the property and effects which plaintiff parted with and the value of the property which plaintiff received from defendant,” was erroneous. The measure of damages in this case is the difference between the market value of the land at the time of the purchase and the amount which appellant paid for it. If the property in Mississippi was valued at a certain sum by the parties and treated as a payment, it should be considered in ascertaining the amount of the damages, as money paid on the land.

The special charge numbered 2 should have been given by the court. If the representations made by appellee were false and material and misled appellant and caused him to purchase the land, the fact that appel-lee may have believed the representations to be true would not exonerate him and relieve him from the consequences flowing from the representations that were made. Loper v. Robinson, 54 Tex. 510; Culbertson v. Blanchard, 79 Tex. 486, 15 S. W. 700; Buchanan v. Burnett, 102 Tex. 495, 119 S. W. 1141, 132 Am. St. Rep. 900; Carter v. Cole, 42 S. W. 369.

The judgment is reversed, and the cause remanded.
      @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEW, J.

text:
    BROWN et al. v. HILL.
    (No. 1684.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 23, 1916.)
    Appeal from District Court, Franklin County; J. A. Ward, Judge.
    Foreclosure suit by G. P. Hill against Ada Brown and others. Judgment for complainant, and the defendant named appeals.
    -Affirmed.
    B. O. Shurtleff, of Mt. Vernon, for appellant. R. T. Wilkinson, of Mt. Vernon, for appellee.
   LEW, J.

The appellee, Hill, is seeking by his suit to have judgment of foreclosure of a Vendor’s lien note, and the defendant Ada Brown, joined pro forma by her husband, answered resisting the lien on the land. There was a trial before the court without a jury, and judgment was in favor of the appellee. The court made findings of fact, which are not challenged, and which appear in the record.

The question on appeal, under assignments of error, entirely depends upon the construction of the deed from W. T. Sullivan and wife to Mrs. Lizzie Wells. The court construed the deed as passing to Mrs. Lizzie Wells only a life estate. In this we think the trial court did not err, and that the judgment should be sustained.

Affirmed.


author: PRENDERGAST, J.

text:
    SMITH v. STATE.
    (No. 4326.)
    (Court of Criminal Appeals of Texas.
    Jan. 10, 1917.)
    Criminal Haw <⅜=>1159(3) — Appeal—Conflicting Evidence.
    A conviction on conflicting evidence will not be disturbed.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 3076; Dec. Dig. @=1159(3).]
    Appeal from Bexar County Court; Nelson Lytle, Judge.
    Mrs. Kirby Smith was convicted for unlawfully carrying a pistol, and she appeals.
    Affirmed.
    G. Grant White, of San Antonio, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State. •
   PRENDERGAST, J.

This is an appeal from a conviction for unlawfully carrying a pistol, with the lowest punishment assessed.

The sole question in the case is whether or not the evidence was sufficient to sustain the conviction. The state introduced two witnesses, one of whom testified positively that appellant did have and carry a pistol. He was strongly corroborated by the party he was with in some particulars. Appellant denied positively that she had the pistol at the time and place testified to by the state’s witness, and her friend who was with her testified substantially to the same thing. So that it is seen that the state’s testimony, if believed, unquestionably was sufficient to show the commission of the offense and authorized the verdict, while that of the accused would have authorized the jury to have acquitted her. The jury believed the state’s witnesses, and we cannot disturb the verdict.

The judgment is therefore affirmed.