author: LEVY, J.

text:
    AMERICAN NAT. INS. CO. v. HAWKINS.
    (No. 1653.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 3, 1916.
    Rehearing Denied Nov. 16, 1916.)
    1. Instjeance <&wkey;624(6) — Action on Policy-Assignment of Interest.
    An agreement, purporting to be an agreement to pay an attorney, for his legal services in collecting a life insurance policy, a fixed sum, based on the amount recovered, does not pass the legal title out of the holder of the policy to any part of the amount insured, so as to make the attorney a necessary party to an action on the policy.
    [Ed. -Note. — For other cases, see Insurance, Cent. Dig. § 1566; Dec. Dig. <&wkey;>624(6).]
    2. Insurance <&wkey;133(l) — Life Insurance — Limiting Amount Payable — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4742, subd. 3, providing that no policy of life insurance shall be issued by a company incorporated under the laws of the state if it contains any provision for any mode of settlement at maturity of less value than the amounts insured on the face of the policy, where, by a life policy, the insurer agreed to pay on death, after due payment of premiums, the amount specified in a schedule which put the amount at $450, but a following clause provided that half only of the sum should be payable if death occurred within six calendar months from date of the policy, such clause was void, and, though death occurred within six months, the beneficiary could recover the full amount, since by the statute the insurer is left free to agree upon the amount of insurance, but is required to state in the policy in a single provision the sum of money agreed to be payable in the event of insured’s death, except in the event of suicide or stated hazardous occupation.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 203, 211; Dee. Dig. @=>133(1).]
    3. Insurance @=>3 — Life Insurance — Regulation— Statute — Constitutionality.
    Vernon’s Sayles’ Ann: Civ. St. 1914, art. 4742, subd. 3, requiring life insurers, in effect, to state in the policy, in the form of a single provision, the sum of money agreed to be payable in the event of insured’s death, except as pertains to suicide or stated hazardous occupations, is not violative of either the state or federal Constitution, as the Legislature acted within its power over corporations.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 3; Dec. Dig. <&wkey;3.]
    4. Insurance <&wkey;602 — Life Insurance — Penalty for Failure to Pay — Statute.
    Dnder Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4746, requiring a life insurance company, on demand by a policy holder, made after the policy is due and payable according to its terms, to pay.the holder, within the required time, the amount of insurance it is legally liable for under the policy, and, for failure to pay, assessing as damages 12 per cent, of the amount the company is liable for, where, after, death of. a party insured for $450, the beneficiary, on account of. the company’s agent’s representations to her that $225 was all that was due on the policy, if any, demanded payment of $225, which the insurance company failed to pay, it was liable, in the beneficiary’s action on the policy, for damages amounting to 12 per cent, of the $450 for which it was legally liable, since .the insurance company may not predicate a defense against the damages on the mere fact that the demand as made recited a less amount as due than it was legally liable for, while it could not be said that the beneficiary’s intention was not to demand payment of the full liability on the policy.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. § 1498; Dec. Dig. @=>602.]
    Appeal from Harrison County Court; Geo. L. Huffman, Judge.
    Action by Mary Hawkins against the American National Insurance Company. From a judgment for plaintiff, defendant appeals.
    Judgment affirmed.
    The action is by appellee, the beneficiary, upon a policy of life insurance issued and delivered by appellant on the life of her son Johnnie Hawkins. Appellee in her petition also seeks recovery of 12 per cent, of the amount insured, as damages because of refusal to pay after demand had been made therefor, as provided by law, and attorney’s fees.
    The policy reads as follows:
    “Policy No. 1186212.
    “American National Insurance Company.
    “In consideration of the payment in advance of the premium mentioned in the schedule below ,on or before each Monday during the continuance of this contract, doth hereby agree, subject to the agreements and conditions below, and on the reverse hereof, each of which is hereby made part of this contract and contracted by the assured to be part thereof as fully as if herein recited, to pay, immediately upon receipt of due proof of the death of the insured made in the manner, to the extent and upon the blanks required herein, and upon surrender of this policy and all receipt books, the amount stipulated in said schedule. Provided, however, that no obligation is assumed by the company prior to the date thereof, nor unless on said date the insured is alive and in sound health.

    “One-half only of the above sum payable if death occur within six calendar months from date, and the full amount if death occur thereafter.
    “If the age of the insured is not correctly stated herein, no greater amount will be paid than the premium herein would have purchased at the true age.
    “In witness whereof the president and secretary of said American National Insurance Company have signed these presents and fixed the seal of the Company at the city of Galveston, Texas, this Jan. 25th, 1915. [Here follows signatures of officers.]”
    The defendant, besides general denial, pleaded as follows: That in no event can appellee recover more than one-half of said $450, because said policy on its face contains the provision that one-half only of said $450 is payable if death occur within six calendar months from date of the policy. That the death of said Johnie Hawkins did occur within six calendar months from the date of the policy; and if plaintiff can recover, she can recover only one-half of said $450.
    There was a trial before a jury, and verdict for appellee for the sum of $450, 12 per cent, damages, and $125 attorney’s fees.
    It appears that the appellant is a life insurance company incorporated under the laws of Texas and doing business therein, and has its principal domicile in Galveston, Tex., and that the policy sued on was issued and delivered at Marshall, Tex. The policy was issued on January 25, 1915, on the life of Johnie Hawkins; and Mary Hawkins, the beneficiary, is the mother of the insured. The insured died by drowning on May 14, 1915. Proofs .of death were made out and delivered to the agent of the company two days after tlie death of the insured. The beneficiary made written demand on the company for the payment of the policy more than 80 days prior to the institution of the suit, and payment of the policy was refused by defendant.
    The jury made finding, which is sustained by the proof, as to reasonable attorney’s fees. All of the findings of the jury involved in the case have support in the evidence, and are sustained.
    Lane. & Lane, of Marshall, for appellant. Gary Abney and M. M. O’Banion, both of Marshall, for appellee.
   LEVY, J.

(after stating the facts as above). The instrument, shown in bill of exception No. 1, executed by appellee to her attorney, M. M. O’Banion, is not such an assignment of an interest in the policy or claim, it is believed, as -to make the attorney a necessary party to the suit. Under the general rule the holder of the legal title must be the one to sue. Ins. Co. v. Coffee, 61 Tex. 287; Cleveland v. Heidenheimer, 92 Tex. 108, 46 S. W. 30. And the instrument mentioned merely purports to be an agreement to pay the attorney for his legal services a fixed sum, based on the amount for which judgment may be rendered, and does not operate, or have the legal effect, to pass the legal title out of appellee to the amount insured, or to a part of it. The assignment is overruled.

Appellant insists that its liability on the policy, in view of the fact that the insured died within six months of the date of the policy, may be measured only by the provision, which was pleaded, reading:

“One-half only of the above sum payable if death occur within six calendar months from date, and the full amount if death occur thereafter.”

The court, construing the entire policy, determined that the provision set out should be held inoperative as being in violation of section 3, art. 4742, Yernon’s Sayles’ Civ. Stat., and permitted the plaintiff to recover the full amount of $450.

As relating to the questions on appeal, it is necessary to consider articles 4759, 4741, and 4742 of the act (Session of 1909, p. 192), authorizing the incorporation of life, accident, and health insurance companies to transact business in this state, and regulating and imposing conditions on the general manner of the transaction of the business of such companies within this state. Vernon’s Say-les’ Civ. Stat. p. 3179. Article 4759 provides that:

“Life insurance companies shall, within five days after the issuance of, and the placing upon the market any form of policies of life insurance, file a copy of such form of policy with the department of insurance and banking.”

Article 4741 provides that the life insurance policies issued and delivered in this state by such incorporated companies shall contain certain provisions “substantially as follows,” and which are there set out. And article 4742 provides that:

“No policy of life insurance shall be issued or delivered in this state, or be issued by a life insurance company incorporated under the laws of this state, if it contains any of the following provisions: * * *
“3. A provision for any mode of settlement at maturity of less value than the amounts insured on the face of the policy, plus dividend additions, if any, less any indebtedness to the company on the policy, and less any premium that may, by the terms of the policy, be deducted; provided, that any company may issue a policy promising a benefit less than the full benefit in case of * * * death of the insured by his own hand while sane or insane, or by following stated hazardous occupations. This provision shall not apply to purely accident and health policies. None of the foregoing provisions relating to policy forms shall apply to policies issued in lieu of or in exchange for, any other policy issued before July 10, 1909.”

By these articles it plainly seems, it is thought, that the Legislature intended to regulate and direct, as expressed in section 3, “policy forms” of the life insurance policies issued by life insurance companies, and to give the legal effect of noncompliance with the form prescribed. This was the sole purpose of the legislative act; and the enforcement of the prescribed form of the policy was the only object of its inhibitions. And the language of article 4742, § 3, may not, it is believed, be properly construed as placing a restriction upon the right of the parties to freely make agreement or contract, in the first instance, of the amount or amounts of insurance payable on the death of the insured. The “amounts insured on the face of the policy” are, by the article, to be sustained as a valid and inforceable agreement, and are not to be detracted from. Using “amounts” in the plural indicates that there, may be agreements allowable in the given case regarding different amounts or annuities payable on the death of the insured. And the words “amounts insured on the face of the policy” evidently mean and refer to the agreed principal amount or amounts of insurance stated in the first clause or formal provision incorporated in the policy, containing the direct promise or agreement on the part of the insurance company to pay at the death of the insured. Thus it is apparent that which article 4742 in terms disapproves of, and against which the policy of the legislative act is directed, is the inserting in the policy, or having the policy “contain” “a provision” which formally provides “for a mode of settlement at maturity of less value than the amounts insured on the face of the policy.” “A provision” or clause, “for a mode of settlement at maturity” as used in the article, which reduces the payment of “the amounts insured on the face of the policy,” means and refers to a subordinate clause or provision which operates to so far change the preceding clause or chief agreement regarding the principal amounts payable on death of the insured as to provide for a less and different amount payable on death. Thus there is intended to be imposed by the act, the requirement that the form in which the contract or agreement is cast or incorporated in the policy may not be misleading as to the amounts of insurance payable on the death of the insured. The insurance company is left free to agree upon the amount of insurance, but is required to state in the policy in the form of a single provision the sum of money agreed to be payable in the event of the death of the person whose life is insured, except as pertains to suicide or stated hazardous occupation. It is believed that the Legislature in passing this act was acting within its undoubted power over corporations, and that the act is not in violation, as insisted by appellant that it was, of either the state or federal Constitution. Ins. Co. v. Daggs, 172 U. S. 557, 19 Sup. Ct. 281, 43 L. Ed. 552; Ins. Co. v. Cravens, 178 U. S. 380, 20 Sup. Ct. 692, 44 L. Ed. 1116; Whitfield v. Ætna Life Ins. Co., 205 U. S. 489, 27 Sup. Ct. 578, 51 L. Ed. 895; Life Ins. Co. v. Clements, 140 U. S. 226, 11 Sup. Ct. 822, 35 L. Ed. 497. And, further looking to the provision or clause in question as it appears in the policy, it is concluded that such provision operates to accomplish the very thing which the law disapproves of. As may be seen from the recitals on the face of the policy, the insurance company, in consideration of the payment of the premiums “mentioned in the schedule below,” agreed to pay at the death, happening without regard to any period of time, of the insured “the amounts stipulated in said schedule.” The amount, and only amount, “stipulated in said schedule” is $450. Then the provision in controversy appears below the schedule, but forms no part of its contents. This provision or condition plainly has for its purpose and object so far to modify the preceding first or main stipulation for insurance as to provide for payment of only one-half of the agreed “amount stipulated in said schedule” if the insured should die within six months from the date of the policy. Thus the language of the preceding first, or main, agreement in the policy may be regarded as specifying on the schedule, or face, of the policy the full sum of $450, to be payable on the death of the insured, happening without regard to any time limit; and the subordinate provision is to be regarded as intending to modify the first stipulation to pay the full sum on death happening at any time, by providing a benefit less than the full benefit if death happens within six months of the date of the policy. Had the “said schedule” in the policy stated the amounts insured to be $225 if death occur within six calendar months from date of the policy, and $450 if death occur thereafter, the policy might have been construed, as contended by appellant, to be in the form required by the statute. But the first clause, or main agreement, or schedule, in the policy did not so state, or express the agreement of the amounts payable on the death of the insured. It is believed that the trial court did not err in holding that the policy was not in the form required by law, and that as a consequence of noncompliance with the law the provision in question was void and of no legal effect so far as it provided for a less sum than $450 upon the death of the insured within six months from the date of the policy. Appellant predicates error in allowing appellee to recover 12 per cent, damages on the amount of $450 insurance in the policy, upon the ground that her demand made of the insurance company for the payment of the amount insured specified the sum of $225, and not the greater sum of $450. The policy provides that the insurance company will pay the amount of insurance immediately upon due proof of the death of the deceased. It appears that on Saturday, after the death of the insured on Friday morning before, the witness Billups, acting for the appellee, took the policy and receipts to the office of the witness Harvey, who was the division superintendent of appellant company. The division superintendent took the policy and receipts, and prepared, as he says, all proofs of death required by tne policy, and forwarded the policy, receipts, and proof of death to the home office of appellant. Ap-pellee from that date until the trial of the case' was never in possession of nor saw the policy. On Wednesday following the making of proofs of death the appellee went to the office of the division superintendent, and was informed by him, as he says, that:

“The policy was more than four weeks in arrears, and was out of benefit, and that the company was not liable on the policy, and that she could not recover anything.”

Appellee testifies that the division superintendent further stated to her:

“That if my policy was not lapsed, it was for $225, as it had been in effect less than six months. I thought that $225 was all they owed me,”

- Afterwards, on May 28, 1915, appellee wrote to appellant company the following letter:

“I hereby make demand upon you for the payment of the sum of $225.00 due me on policy No. 1186212 issued by you on the life of my son Johnie Hawkins on or about January 25, 1915; said policy being now in your possession, and a better description of which I am unable to give. My son came to his death in Marshall, Texas, on 14th day of May, 1915, and I am the beneficiary named in said policy.”

Appellant received the letter either the next day, or within two days after the date of the letter, and did not thereafter pay any insurance to appellee, and she filed suit on July 5, 1915.

As disclosed by the evidence, it is believed that appellant has subjected itself to liability for payment of the 12 per cent, damages on the amount of $450 insurance. The sum of $450, and no less sum, is, as determined above, the amount of insurance that appellant is legally liable by the face of its policy to pay to the policy holder. And article 4746, Vernon’s Sayles’ Civ. Stat., intends, it is thought, to require the insurance company, on a demand by the policy holder which is made after the policy is due and payable according to its terms, to pay to such policy holder within the required time the amount of insurance it is legally liable under the policy to pay; and, if there is failure to so pay, then to assess as damages 12 per cent, of the amount the company is legally liable to pay under the policy. And providing, as the article does, that 12 per cent, damages shall be assessed on the amount of the company’s liability under the policy, the insurance company may not, it is believed, predicate a defense against the damages upon the fact alone that the “demand” as made recited a less amount as due than its legal obligation under the policy. And it may not be said in this case that appellee should be held as precluded from recovering damages on a sum in excess of that stated in her demand; for when the letter or demand is read in the light of the evidence and in the light of the legal liability of appellant on the policy, it may be well said that the intendment of ap-pellee was to demand payment by appellant of the full liability on the policy. She explains that the words “two hundred and twenty-five dollars” were put in the letter because, based on what appellant’s division superintendent had informed her, “I thought that was all.they owed me.”

The judgment is affirmed.
      (S=s>ifor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WALTHALL, J.

license: Public Domain

text:
    FRIGID FLUID CO. v. SID WESTHEIMER CO.
    (No. 604.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 26, 1916.
    Rehearing Denied Nov. 16, 1916.)
    1. Estoppel &wkey;»119 — Peremptory Charge— Questiokt por Jury.
    When an estoppel or waiver is pleaded and supported by evidence, it is a valid objection to peremptory charge for the other party, and such issue should always be submitted to the jury.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 309; Dec. Dig. <&wkey;>119.]
    2. Appeal and Error <&wkey;1062(5) — Harmless Error — Submission op Issue — Immateriality.
    Where the seller of embalming fluid warranted it to be good for the purpose intended and the buyer pleaded breach of such warranty, it was immaterial what the value of the fluid was at the point of shipment, and any alleged error in submitting the issue of such value is harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4218; Dec. Dig. <&wkey;> 1062(5).]
    3. Trial <&wkey;350(2) — Submission op Issues — Evidentiary Facts.
    In submitting cases upon special issues, the court should submit the ultimate issue, and not issues evidentiary thereto.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828, 832; Dec. Dig. &wkey;350(2).]
    4. Sales <&wkey;447 — Breach op Warranty — Submission op Issues — Evidentiary Facts.
    In action by seller of embalming fluid for purchase price, defended on the ground of breach of warranty, refusal to submit issue as to manner of use of fluid was not error, the manner of use being only evidentiary on the issue of breach of the warranty.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1318; Dee. Dig. &wkey;447J
    5. Sales <&wkey;447 — Breach op Warranty — Submission op Issues — Evidentiary Facts.
    Refusal of special issue whether such fluid would produce satisfactory results on the bodies of dead mulattos was not error, where the fluid was sold for general Use.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1318; Dec. Dig. &wkey;447J
    6. Appeal and Error <&wkey;1062(5) — Harmless Error — Submission op Issues.
    Although admission of testimony of witness that embalming fluid had no market value was erroneous, the error was harmless, where the issue was on breach of warranty and not market value.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4218; Dec. Dig. &wkey;> 1062(5).]
    7. Sales <&wkey;448 — Breach op Warranty-Rights op Parties.
    Under contract for sale of embalming fluid by which the seller furnished an embalming table free of charge and the court declared rescission for breach'of warranty of fluid, judgment for seller for value of the table was erroneous, where purchaser offered return of the table.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1319; Dec. Dig. &wkey;448J
    Appeal from Harris County Court; Clark C. Wren, Judge.
    Action by the Frigid Fluid Company against the Sid Westheimer Company. Judgment for plaintiff in part, and plaintiff appeals.
    Reformed and affirmed.
    Hunt, Myer & Teagle and Rodman S. Cosby, all of Houston, for appellant. Guynes & Colgin, of Houston, for appellee.
   WALTHALL, J.

This suit was brought on a written contract in the county court at law by the appellant, Frigid Fluid Company, against the appellee, Sid Westheimer Company, to recover the purchase price of 40 cases, or 960 bottles of an embalming fluid known as Frigid Fluid. The contract is in the form of an order for, goods; its date is September 5, 1911; order is to ship to ap-pellee at Houston, Tex.; to be shipped at once; the price is stated to be $16.20 per case, first payment $25, due February 1, 1912, and $25 monthly until paid; 5 per cent, discount. The or.der includes one table, $95, gratis. It is alleged that the goods were delivered to the Atchison, Topeka & Santa Fé Railway Company, at Chicago, Ill., consigned to appellee; that the goods were shipped during the months of October and November, 1911, and were received in good condition and accepted by appellee and used fpr many months; that appellee had paid $51.08 of the total price, and defaulted as to the balance; that the embalming table was- delivered gratuitously, provided appellee would pay for the fluid; that prior to the time of this sale, appellee had bought and used goods similar to the goods sued for. Appellee admitted the execution of the written order, but denied that it evidenced the entire agreement, and alleged that appellant’s agent, making the sale, had made certain representations as to the quality, fitness, and efficiency of the fluid for the purposes for which it was known the fluid was to be used; that said agent warranted the fluid to be of the very finest and highest quality, and fit in every way for embalming dead human bodies; the same would' give appellee satisfaction, and could be returned if unsatisfactory or not as represented; that said warranties and representations were material and the inducing cause of the sale; that appellee relied thereon; that the fluid was absolutely worthless for the purpose of embalming dead human bodies • — and pleaded a breach of warranty. Appel-lee prayed for a rescission, and tendered back the unused fluid and table, and offered to pay the contract price for the used portion of the fluid, and in the alternative, if rescission were denied, that appellant take nothing because of a total failure of consideration, and recovery of the $51.08 and the freight charges paid by it, and in the alternative for damages in offset to the contract price for partial failure of consideration. Ap-pellee admitted in its pleadings that it had used at least eight eases of the fluid; that about August 1, 1912, it had offered to return the remainder of the fluid and the table on discovering the unfitness- of the fluid. Appellant pleaded that appellee, by using the fluid for so long a period, had waived any right to return same and was estopped to deny its liability for the purchase price. The case was tried before a jury, and submitted upon special issues. The issues and answers are as follows:

“(1) Do you believe from a preponderance of the evidence that the fluid which plaintiff shipped to defendant, and which has not been used, would perform the service of embalming dead bodies in a satisfactory manner, if properly used by a skilled embalmer, or do you not? Answer: We do not.
“(2) Do you or do you not believe from a preponderance of the evidence that the said fluid that has not been used by defendant had any value for use as an embalming fluid in Houston, Tex., at the time it was shipped by plaintiff to defendant in Houston? Answer: We do not.”
“(4) Do you or do you not believe from a preponderance of the evidence that said fluid that has not been used by defendant had any value for use as an embalming fluid in Chicago, Ill., at the time it was shipped by plaintiff to defendant? Answer: We do not.
“(5) How many bottles of said fluid which plaintiff shipped to defendant have been used by defendant? Answer: 264 bottles.
“(6) What was the reasonable market value of the table mentioned in the testimony in Chicago, Ill., at the time it was shipped to defendant? Answer: $90.00.”

Thereupon the court entered this judgment: In favor of plaintiff against the defendant for the sum of $239.11, being the amount due at the contract price for 11 cases (264 bottles) of the fluid used by defendant, and $.90 for the table, plus interest to date of judgment; that plaintiff also recover of the defendant the remaining 29 cases of fluid now in defendant’s possession, and in the event defendant failed or refused to deliver same to the plaintiff within ten days, that plaintiff, in that event, should also recover of . defendant the sum of $469.80, being the value of the remaining cases of the fluid at the contract price. From this judgment, the plaintiff appealed.

Appellant’s first ground of error is directed to the refusal of the court to give a peremptory instruction to find for appellant for the full amount of its claim, on the ground that appellee had waived any right to return the goods, and by using about one-third of the entire goods was estopped to assert that they were of no value. It is a valid objection to the giving of a peremptory charge, when the evidence raises an issue of waiver or estoppel; it being a question of fact. The issue should have been submitted to the jury. In this case, appellee pleaded that the “fluid was worthless at the very time and moment of its delivery to said railway company,” and “unfit for use and worthless, and was not then or at any time in good and mercantile condition, and was at all times unfit for the preparation of dead human bodies for burial,” and states the reasons why the fluid was worthless. There was evidence offered to sustain these allegations. Westheimer said:

“If Frigid Fluid was good fluid, it was worth it ($8.10 per dozen bottles) but in the condition this was, it wasn’t worth anything; it wasn’t fit for use; it would be a detriment to my business. * * * I discontinued making further monthly payments as I agreed to do because my embalmers complained to me that the fluid wasn’t doing the proper work.”

Fogel said:

“There were instructions given by the Frigid Fluid Company as to how this particular fluid should be used. I followed those instructions in embalming these bodies. This fluid made the bodies that were embalmed with it kind of ashy. * * * All those which I embalmed which we held would turn a dull grayish, or putty-like color. * * * This wasn’t good fluid.”

Other witnesses testified to practically the same. The appellee alleged and offered proof to the effect that an agent of appellant represented and warranted the fluid to be of the highest grade and quality, and fit' in every way for the purposes and uses of embalming dead human bodies. The jury found that the fluid was worthless for the purpose of embalming dead human bodies.

In the case of Hayden et al. v. Houghton et al., 24 g. W. 803, an action by the seller against the purchaser of cigars, sold by an agent or drummer, in which the purchaser alleged that the goods were purchased under a warranty that they were good, merchantable, and salable cigars, and that after delivery the purchaser discovered that the cigars were of no value and were worthless, and for that reason they were not liable for the contract price or for any sum, and where there was evidence tending to establish the issues presented, and there was evidence tending to show that after the cigars were received the purchaser used some of them and, after discovering that they were worthless, offered to return them, the Court of Oivil Appeals for the Third District said:

“Whether the warranty was waived, or the cigars were accepted in such a manner as to constitute a waiver of the warranty, were questions _ of fact that the jury should have been permitted to determine under all of the evidence before them, accompanied with proper instructions from the trial court. The law does not undertake to say that certain acts shall bring about a waiver of the warranty, or that certain acts will constitute an acceptance of the article sold; and, in the absence of a declaration of law to that effect, the court should permit the jury to ascertain these issues from all of the facts before them."

To the same effect is Brantley v. Thomas, 22 Tex. 275, 73 Am. Dec. 264; Wright v. Davenport, 44 Tex. 165; Evans v. Goggan, 5 Tex. Civ. App. 129, 23 S. W. 854. The requested peremptory instruction should not have been given, and the assignment is overruled.

The second error assigned is to the action of the court in submitting issue No. 4, it being asserted that the evidence as to the value of the fluid at Chicago, Ill., was undisputed, and it was therefore error to submit any such issue to the jury. . It is not apparent to us what pertinency the issue indicated had. Under the issues raised by the pleadings, the value of the fluid in Chicago was immaterial. The issue raised by the defendant’s pleading was that representations and warranties had been made respecting its fitness and efficiency for embalming human bodies after death; that the same were material, were relied upon and induced the purchase of the fluid, and that the fluid did not come up to the representations and warranty made respecting it. This was the vital issue in the case. Market values of the property in Chicago or any other place were wholly irrelevant. If the defendant failed to establish his defense as pleaded, he was liable for the contract price. If he did establish the truth' of his allegations, respecting the warranty and representations, he was not liable for anything unless he failed to return the unused fluid. Any supposed error, therefore, with reference to the fourth special issue is harmless, as it was an wholly irrelevant issue.

The third assignment complains of the refusal to submit this issue:

“Could a careful and experienced embalmer use embalming fluid, such as is contained in the eighty dozen bottles sold by plaintiff to defendant, in the abdominal cavity of a corpse and use some other fluid in the arteries and thus both preserve the corpse and prevent an ashy color of the corpse?”

The issue was properly refused. It related to an evidentiary fact. In submitting cases upon special issues, the court should submit the ultimate issue, and not issues evidentiary thereto. It might be that a careful and experienced embalmer might have used the fluid in the abdominal cavity of a corpse and used some other fluid in the arteries, and thus preserve the corpse and prevent an ashy color thereof, and yet it would not necessarily follow that the Frigid Fluid sold defendant was altogether an efficient embalming fluid. Indeed, it would seem to show its unfitness and inefficiency if it could only be used in the abdominal cavity and some other fluid had to be used in the arteries.

In the fourth assignment; complaint is made of the refusal of this issue:

“In all the bodies upon which defendant and its embalmers used the frigid fluid purchased in the fall of 1911, was all of the blood removed from the veins and surface tissues?”

This, likewise, submitted an evidentiary fact and not an ultimate issue. The answer to this issue, whether in the affirmative or in the negative, would have tended merely to prove or disprove the truth of the allegations respecting the unfitness of the fluid. It would not necessarily control the issue, and there was no error in refusal to submit the issue.

The fifth assignment complains of the refusal to submit this special issue:

“Will the embalming fluid sold by plaintiff to defendant in October and November, 1911, when used carefully upon the bodies of dead mulatto negroes, produce satisfactory results as to the preservation of the body, and the color of the body?”

This, likewise, would be merely an eviden-tiary issue. The fluid was not bought for the special purpose of embalming dead mulatto negroes, and the warranty was not restricted to its effect upon such corpses. A finding of satisfactory results when used upon such' bodies would not conclude the issue as to its fitness and efficiency generally as an embalming fluid.

Error is next assigned to the refusal of the court to strike out the testimony of the witness Settegast, to the effect that fluid which would turn the face of a corpse a dull grayish or putty-like color had no market value, the ground of the objection being that the -witness had never bought or sold any such fluid, and did not know of any such sale, and therefore was not qualified to testify to the market value of such fluid.

As we have indicated above, the question of market values is wholly irrelevant in this case. Had the objection been made that such testimony was irrelevant, it would have been well taken, but none such was urged, and, as to the particular objection urged, the testimony of the witness shows that he had' been in the undertaker business for a long time, and was well qualified to testify respecting embalming fluids; au¡l we think there was no error in admitting Ms testimony, as against th'e particular objection urged; and, if it was error, it was harmless, as it related to an irrelevant issue which seems to have been raised by the parties.

For the reasons indicated, we are of the opinion that appellant’s assignments of error should all be overruled.

Appellee presents a cross-assignment, complaining of the actiofl. of the court in rendering judgment against it for the value of the table. This cross-assignment is well taken, and should be sustained. From an inspection of the issues submitted to the jury, it is apparent that the controlling issues in this case, respecting the warranty relied upon by the defendant, was not submitted to the jury. It must be assumed that the same were resolved by the court in favor of the appellee, as the judgment which was rendered can be accounted for in no other way. The effect of the court’s judgment was to rescind the contract in so far as concerned the 29 cases which defendant had on hand. As to those cases, the decree was that the plaintiff should recover the same from defendant ; and, in the alternative, for its value, if the defendant failed to deliver said cases. If the defendant had the right to rescind as to those 29 cases, it also had the right to rescind as to the table. It tendered a return of the table with the unused fluid.

The judgment, therefore, should have been in favor of the plaintiff for the value at the contract price of the 11 cases used by defendant, with interest, less the credit of $51 which had been paid by the defendant, and for the return of the 29 cases and the table, and, in the alternative, for the value of said 29 cases and table at the contract price, if the same was not returned by defendant.

The judgment is so reformed, and, as reformed, affirmed.
      d&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    LAND v. JOHNSON.
    (No. 5714.)

    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 26, 1916.
    Rehearing Denied Nov. 22, 1916.)
    1. Appeal and Error <&wkey;736 — Assignments oe Error — Joinder oe Several Matters.
    In a landlord’s suit against her tenant, defendant’s assignment, complaining of the refusal to give special charges and the court’s failure to submit defendant’s claims for repairs and for actual and exemplary damages for suing out a writ of sequestration, joining separate and distinct matters in violation of the rules, could not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3028, 3029; Dec. Dig. cj&wkey; 736.]
    2. Landlord and Tenant &wkey;>285(5) — Recovery oe Premises — Instruction—Construction.
    In a landlord’s suit against her tenant, the insti'uction, as to the lease contract in evidence, that under its terms, in case of fire and damage to the premises, the matter of repair was within the discretion of the lessor, and that the question of fitness for occupancy after the fire was solely within plaintiff’s determination, and that if she decided the premises to be unfit for occupancy, and not to repair or rebuild, such decision was binding on defendant, and his rights under the lease terminated, did not affirmatively state any rule that the lessor could in bad faith without excuse or justification take advantage of the word “deem” in the lease to arbitrarily terminate it.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 1199; Dec. Dig. &wkey;285(5).]
    3. Landlord and Tenant <&wkey;285(4) — Termination oe Lease — Fraud oe LANDLORD-SUFFICIENCY OE EVIDENCE.
    In a landlord’s suit against her tenant, evidence held insufficient to justify a finding that plaintiff acted fraudulently in electing to terminate the lease, and not to repair after a fire, and merely pretended to deem the premises unfit for occupancy.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 1197; Dec. Dig. <&wkey; 285(4).]
    4. Landlord and Tenant <&wkey;150(2) — Lease-Election to Rebuild.
    The clause of a lease that in case of fire the lessee should give immediate notice to the lessor, who should cause the damages to be repaired, but, if the premises were deemed by the lessor to he so damaged as to be unfit for occupancy, “or if the lessor should decide not to rebuild,” the lease should cease and rent be paid up to the time of the fire, meant that, if any of the several houses on the premises was completely destroyed, the landlord could elect whether or not to rebuild.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 545; Dec. Dig. &wkey;>150(2).]
    5. Landlord and Tenant &wkey;>285(5) — Question for Jury — Construction oe Lease.
    In a landlord’s suit against her tenant, where there was no pleading that a clause of the lease giving. the landlord the right to terminate the lease in .case of fire was ambiguous, and no evidence was introduced as to what was in the minds of the parties making the contract, the question whether the lease had reference to a fire that should destroy all or practically all of the buildings on the premises, or such a fire as in fact occurred, which substantially injured them, but did not destroy all, could not become a jury question.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 1199; Dee. Dig. &wkey;> 285(5).]
    6. Landlord and Tenant &wkey;>285(5) — Recovery of Possession — Instruction—Peremptory Charge.
    In suit against a tenant by his landlord, who-by the lease had an election to terminate or rebuild in case of fire, where a paragraph of the charge was that, under the admitted facts, the lessor, on a specified date, was the owner of the premises and entitled to possession, and that she was entitled to such a sum for use and occupancy as the jury might find to have been the fair rental value for the time the premises were held by defendant after the specified date, the charge was a peremptory instruction, not only to find for plaintiff for possession, but for the fair rental value, though the first and second paragraphs informed the jury of the reasons relied on by the court in reaching its conclusion.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 1199; Dec. Dig. <&wkey; 285(5).]

      7. Appeal and Error &wkey;Jl068(3) — Harmless Erbob — Instructions.
    In a landlord’s suit against her tenant, where the second, third, and fourth paragraphs of the charge were in effect a peremptory instruction to find for plaintiff for the possession and the fair rental value of the premises from a date until defendant surrendered, and were not objected to by defendant, whether the court erred in giving the first paragraph of the charge, informing the jury of the reasons relied on by him in concluding the lease terminated on the date specified in the third paragraph, was immaterial.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 4227; Dec. Dig. &wkey;»1068(3); Trial, Cent. Dig. § 475.]
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    Suit by William Uehlinger and Annie Ueh-lihger against Charles Land and another, wherein Anna Uehlinger, under the name of Annie Uehlinger Johnson, filed an amended petition. Prom a judgment for plaintiff Anna Uehlinger Johnson, defendant Band appeals.
    Judgment affirmed.
    H. D. McDonald and E. P. Scott, both, of Corpus Christi, for appellant. Pope & Sutherland, G. R. Scott, Boone & Pope, and Gow-an Jones, all of Corpus Christi, for appellee.

      Application for writ of error pending in Supreme Court.

   MOURSUND, J.

William Uehlinger and wife, Annie Uehlinger, on May 11,1912, sued Charles Land and Mrs. E. P. Cooper, in trespass to try title, for certain real estate in Corpus 'Christi.. At the same time plaintiff sued out a writ of sequestration, upon an affidavit made by plaintiff Annie Uehlinger. The sequestration, upon motion of defendant Land, was quashed on March 13, 1913. On November 2, 1915, said Annie Uehlinger, under the name of Annie Uehlinger Johnson, filed her first amended original petition, having obtained permission to prosecute the suit without being joined by B. O. Johnson, who married her and abandoned her after she was divorced from Uehlinger. She sought to recover rents in the sum of $3,600 per annum, and also $7,200 for every year since the institution of the suit for rents she would have received from a building she was prevented from erecting because of Land’s refusal to surrender possession of the premises.

Land pleaded that he had leased the premises from J. W. Stacey, who had sold such premises and assigned the lease to Mrs'. Annie Uehlinger Johnson, and that he recognized her as his landlord thereafter; that the lease by its terms was to terminate December 31, 1913; that about November 20, 1911, the kitchen and bake oven on said premises' were destroyed by fire; that such fire did not so damage the premises as to make them unfit for occupancy, and under the terms of the lease the landlord should cause the damages to be repaired forthwith; that Mrs. Johnson, although requested to promptly repair the buildings, refused to do so, whereupon defendant Land, at his own expense, in-the sum of $1,400, made the repairs reasonably necessary to place the building in a “usable and tenantable” condition for the uses' and purposes for which he had rented the same. He prayed for judgment for such sum of $1,400, and further reconvened for damages alleged to have been caused by the issuance of the writ of sequestration, which he alleged was wrongfully issued. He claimed actual damages in the sum of $250 for a period of nine days during which the sheriff had possession of the premises; also actual damages in the sum of $920 paid out for premiums on the replevy bond given by him; also for $10,000 exemplary damages.

Mrs. Johnson, by supplemental petition, denied that the lease was of the tenor and effect pleaded by defendant Land, and alleged:

“That said lease, among other things, provided that the rental thereof should be payable the 1st day of each and every month, $121.30 per month for each month from date thereof during the year 1910, $141.30 per month each month during the year 1911, $156.30 each month during the year 1912, and $166.30 each month during the year 1913, and that said rent should be paid at the ■ City National Bank of Corpus Christi, Tex., in advance as the same should fall due, and that default for ten days in the payment of any installment should cause said defaulted installment to bear interest at the rate of 10 per cent, per annum from date of such default until paid, and that in case of fire the lessee, the said Chas. Land, defendant herein, should give immediate notice to the lessor, who should thereupon cause the damages to be repaired forthwith, but, if the premises were deemed by the lessor to be so damaged as to be unfit for occupancy, or if the lessor should decide not to rebuild, the lease should cease, and the rent should be paid up to the time of the fire, and that, in case of default in any of the aforesaid covenants or in the payment of any installment of rent, the lessor had the right to declare said lease forfeited; that a fire occurred on said premises on or about the 20th day of November, 1911, and badly damaged and injured the building and improvements of said property, and plaintiff, exercising her right, privilege, and options under said lease, declined to repair said building, and declared said lease terminated, and so notified defendant.”

She further alleged that Land refused to pay the rent as it became due, and failed to surrender the premises, although he had agreed to do so, whereupon she had perfected arrangements to erect a large fireproof building, which would have brought her a net income of $7,200 per annum. She denied all allegations to the effect that the writ of sequestration had been wrongfully issued, and that Land had suffered damages by reason of its issuance.

Land replied by supplemental answer, describing the damages to the premises, and alleging:

“That such damages were not of such extent as to justify plaintiff in fairness, reason, and good faith to defendant in declaring said lease forfeited, and the defendant says such refusal of plaintiff to repair such damages, and her said attempted forfeiture of tlie lease, was done capriciously and maliciously without just cause or reason, and for the purpose of injuring this defendant and serving- her own selfish purposes.”

A verdict was returned in favor of plaintiff for the title and possession of the premises, and for $200 per month for 24 months, with interest at 6 per cent. Judgment was ^rendered in accordance with the verdict.

By the first assignment of error complaint is made of the refusal to give special charges- numbered from 1 to 14, inclusive, and of the failure of the court to submit defendant’s claims for repairs and for actual and exemplary damages for suing out the writ of sequestration. Appellee objects to the consideration of such assignment on the ground that appellant has therein joined several separate and distinct matters in violation of the rules. This objection must be sustained. Nelson v. Boggs, 177 S. W. 1005; Foster v. Bennett, 178 S. W. 1001; Rainey v. Old, 180 S. W. 923; Browder v. School District, 172 S. W. 152; McConnon v. McCormick, 179 S. W. 275; Killman v. Young, 171 S. W. 1065.

By the second assignment complaint is made of the first paragraph of the charge, which reads as follows:

“As to the lease contract in evidence, you are instructed that under the terms thereof, in case of fire, and damage by reason thereof to said premises, the matter of repair of said premises was within the discretion of the lessor, and that the question of fitness for occupancy after the fire was solely within the determination of plaintiff, and that, if plaintiff decided same to be unfit for occupancy, or not to repair or rebuild, such decision was binding upon the defendant, and his rights under said lease .terminated.”

The clause of the lease to which this paragraph relates reads as- follows:

“That the lessee shall, in case of fire give immediate notice to the lessor, who shall thereupon cause the damages to be repaired forthwith; but if the premises be deemed by the lessor to be so damaged as to be unfit for occupancy, or if the lessor shall decide not to rebuild, the lease shall cease, and the rent be paid by lessee up to the time of the fire.”

Appellant contends, in his proposition under this assignment, that the charge informs the jury that the lessor could, in bad faith, without excuse or justification, take advantage of the word “deem” to arbitrarily terminate the lease. No such rule is affirmatively stated in the charge, but it is true the court ignored the issue raised by Land in his first supplemental answer. If it be conceded that the allegations in said answer are sufficient to raise the issue of fact whether plaintiff fraudulently pretended to deem the premises unfit for occupancy, when in fact she considered the same fit for occupancy, we conclude that the evidence raised no such issue, and that a verdict based upon a finding to that effect could not be permitted to stand.

The improvements on the premises consisted of a two-story concrete building, 18 or 20 feet by 45; a small one-story concrete building adjoining the same, sublet by Land, and used as a fruit stand; a gallery at the rear of the two-story building with a stairway leading to its second story; a wooden building 40 feet by 28 feet connected to the gallery, in which building a bake oven was located. The principal business carried on by Land was the bakery business, for which the location and improvements were especially adapted. He also sold canned goods, grain, and hay, which he kept on the first floor of the two-story concrete building. The upstairs part was used for residential purposes. It is undisputed that the wooden building and bake oven were destroyed by the fire; that the upstairs portion of the other building was badly damaged, part of the floor being destroyed, some partitions damaged, and windows on one side destroyed. Plaintiff testified the roof was burned. Land did not specifically deny this, but did not mention it in detailing the damages. The lower floor of the concrete building was injured by water and smoke, and the roof of the one-story concrete building was damaged, but these portions of the improvements were not rendered unfit for occupancy. The lot was valuable, and the buildings old and of comparatively little value. Land testified that two rooms upstairs could have been used after the fire, but that he would have had “to repair that part touched by the fire to have made it habitable.” As a matter of fact the upstairs portion was not used from the time of the fire to the time Land surrendered possession.' Land had to get another place in which to do his baking. He testified that when plaintiff demanded her building he told her he wanted his shop and for her to build him a shop so he could continue business. Plaintiff testified that Land' told her the premises were unfit to do business in, and that it would take about- $2,000 to repair the premises, and demanded that she spend such amount. Land did not deny this. Plaintiff refused to rebuild the destroyed building and to repair the other building, and elected to terminate the lease under the provision above copied. Land refused to give possession, and paid no rent after December, but proceeded about March to erect a bake oven and a small hollow tile building, there being a city ordinance prohibiting the erection of wooden buildings, expending the sum of $1,400 for such improvements. He admitted that plaintiff protested “forcibly” against the making of these improvements. There was no provision in the contract authorizing the making of such improvements by the tenant. In view of the above facts, we find that plaintiff deemed the premises unfit for occupancy for the purposes for which they were leased, and that there is no evidence which would justify a finding that she acted fraudulently and merely pretended to deem the premises unfit for occupancy.

We are also of the opinion that the clause “or if the lessor shall decide not to rebuild” meant that, if any of the houses was completely destroyed, the landlord could elect whether or not to rebuild.

Appellant, in stating his objections to the charge in the second assignment of error, contends that the issue should have been submitted to the jury whether that provision of the lease had reference to a fire that should destroy all or practically all of the buildings on the lot, or such a fire as that shown by the evidence. We find no pleading to the effect that said clause was ambiguous, nor any evidence introduced as to what was in the minds of the parties making the contract, and the question could not become a jury question. It appears to us that the court, while apparently stating an abstract proposition of law, based alone upon his interpretation of the clause of the 'lease contract relating to damage by fire, was in reality stating his conclusion of law based upon the clause of the contract as applied to the undisputed evidence. This, we think, is shown conclusively when the entire charge is considered. Paragraph 2 is to the effect that under the provisions of the lease, in case of default in payment of any installment of rent, the lessor had the right to declare the lease forfeited at her discretion, and to re-enter the premises. Then follows paragraph 3, which reads as follows:

“Under the admitted and undisputed facts of this case, plaintiff is, and was on the 1st day of January, 1912, the owner in fee simple of the lot' and premises in controversy herein and possession of the lands and premises described in plaintiff’s first amended original petition, and for such a sum of money fori the use and occupancy thereof as you may, from the evidence, find to have been the fair and reasonable rental value of said lands and premises for the time the same were held by said defendant Ohas. Land, from the 1st day of January, A. D. 1912.”

In paragraph 4 the jury is instructed not to consider any of the other issues presented by the evidence adduced, but to confine themselves, strictly to the issues submitted in the charge.

The charge really constitutes a peremptory instruction not only to find for plaintiff for the possession of the premises, but for the fair and reasonable rental value of the premises from January 1, 1912, until Land surrendered the same. The court determined that the lease was at an end after January 1, 1912, under the undisputed facts, and so, in effect, informed the jury. Paragraphs 1 and 2 of the charge were unnecessary, and could only serve the useless purpose of informing the jury of the reasons relied upon by the court in arriving at the conclusion that the lease terminated on January 1,1912, and Land was responsible for the rental value for the time the premises were unlawfully detained from plaintiff. The record fails to disclose any exception by defendant to paragraphs 2, 3, and 4 of the charge, and it is clear that, in view of the nature of the instructions contained therein, it is immaterial whether or not the court erred in giving the first paragraph. This court has heretofore held that a peremptory charge must be excepted to as other charges. Strong v. Harwell, 185 S. W. 676; McCall v. Roemer, 186 S. W. 409.

As no objection was urged to the peremptory charge, nor to paragraph 2, it was useless to object to paragraph 1, and useless to ask the giving of special charges submitting qther issues when no objection was made to paragraphs 3 and 4.

We conclude, therefore, that even if it were conceded that the issue relied upon by Land was raised by the evidence, and that paragraph 1 of the charge incorrectly stated the law applicable thereto, it would be improper to reverse the judgment because paragraphs 2, 3, and 4 of the charge were not objected to by Land, and said paragraphs determine all the vital issues in the case, except that of rental value, and no complaint is made of the jury’s finding in that respect.

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

      (KsjPor other cases see same topic and KES'-NTJMBEH, in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    TAYLOR BROS. JEWELRY CO. v. KELLEY.
    (No. 605.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 26, 1916.
    Rehearing Denied Nov, 16, 1916.)
    1. Evidence <&wkey;253(l) — Conspiracy—Wrongful Attachment.
    In a suit for an automobile wrongfully attached and sold by defendant as the property of another, if the evidence had shown prima facie a conspiracy between plaintiff and such other that plaintiff might hold the property, such other’s acts or statements would be admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 994, 995, 1002; Dec. Dig. &wkey; 253(1).]
    2. Evidence <&wkey;317(5) — Admissibility — Hearsay.
    In such suit, where the controversy was whether the automobile belonged to plaintiff or to the one in whose possession it was attached, in the absence of conspiracy, her statement to a witness, not in the presence of the plaintiff and prior to any controversy over the title, that the automobile belonged to her and not to the plaintiff, was hearsay and inadmissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1178; Dec. Dig. &wkey;317(5).]
    3. Evidence &wkey;>106(l) — Chabacteb—Wrongful Attachment — Action fob Conversion.
    It was not error to exclude testimony that plaintiff had been arrested in bed with the woman in whose possession the automobile had been seized, and fined for vagrancy, and that he was with her when she purchased the automobile.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 177-182, 185; Dec. Dig. <&wkey;> 106(1).]

      4. Appeal and Ebeob i&wkey;926(7) — Peesumption — Competency op Testimony as to Value.
    Where the bill of exceptions did not show what examination, or that no examination was made to test the qualifications of a witness as to the value of an automobile, the presumption was that the court satisfied itself by proper inquiry as to the competency of such testimony, and the mere statement that the witness had not qualified was not enough to rebut the presumption.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3745, 3746; Dec. Dig. <&wkey; 926(7).]
    5. Attachment i&wkey;374 — Weongful Attachment — Action foe Convebsion — Evidence.
    In a suit for an automobile wrongfully attached and sold as the property of another, testimony as to its value where no witness attempted to describe its condition, or what effect a six months’ use would have had upon its value, did not constitute such proof of its reasonable value as would afford a basis for judgment.
    [Ed. Note. — Por other eases, see Attachment, Cent. Dig. ■ §§ 1363-1372, 1392; Dec. Dig. &wkey; 374.]
    6. Damages <&wkey;62(l) — Loss of Pbofits — Re-coveey.
    Plaintiff, if making no effort to replevy the automobile or to secure another in its place with which to continue his business, could not recover loss of profits.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 119; Dec. Dig. &wkey;j62(l).]
    7. Attachment <&wkey;374 —Weongful Attachment — Action foe Convebsion — Rental Value — Evidence.
    Where plaintiff testified that he was operating the automobile for hire at an average net earning of about $10 per day, but could not state what the expense was or whether he would have ■operated it during the time it was wrongfully detained, there was no evidence on which to base a finding of $2 per day rental value.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1363-1372, 1392; Dec. Dig. &wkey; 374.]
    8. Attachment &wkey;>375(3) — Weongful Attachment-Action foe Convebsion — Meas-ube of Damages.
    Ordinarily, the measure of damages for wrongful attachment is the value of the goods attached, with interest from the date of seizure.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. § 1379; Dec. Dig. &wkey;375(3).]
    9. Attachment <s&wkey;368 — Weongful Attachment — Remedies.
    One claiming title and possession of property attached and sold as the property of another may elect to sue to recover the property itself.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1344, 1345; Dec. Dig. &wkey;368.]
    10. Attachment &wkey;»37o(3) — Weongful Attachment^-Measube of Damages.
    In a suit for an automobile wrongfully attached and sold as the property of another, or in the alternative for its rental value, the plaintiff was entitled to the property, together with the reasonable value of its use during its detention to be estimated on the basis of its rental value.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. § 1379; Dec. Dig. &wkey;375(3).]
    11. Attachment <&wkey;37&wkey;WEONGFUL Attachment — Action foe Convebsion — Measuee of Damages.
    In such suit seeking, in the alternative, to recover its value and rental value, where there was no evidence to show its rental value or any basis for the- allowance of lost profits as special damages, the plaintiff should have judgment for the automobile and, as damages for its detention, interest upon its value, or for its rental value or loss of profits in its rent service as the pleading and proof might require, and in the alternative for its value with such damages.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. § 1363; Dec. Dig. &wkey;374.]
    Appeal from District Court, Harris County ; Wm. Masterson, Judge.
    Action by I-I. W. Kelley against the Taylor Bros. Jewelry Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    E. T. Chew, of Houston, for appellant. Geo. A. Delhomme and Roberts & Sears, all of Houston, for appellee.
   HARPER, C. J.

The appellant, Taylor Bros. Jewelry Company, had seized and sold a certain automobile under writ of attachment as the property of Kuma Higgins, and appellee, Kelley, brought this suit for the title and possession, or, in the alternative, for its value and rental value because of its wrongful conversion under the allegations that the machine was his, and that he was entitled to its possession and value. The appellant denied that it belonged to appellee, and alleged that it was bought by Kuma Higgins with her own funds, and that it was subject to execution, etc., and further specifically pleaded conspiracy between Kelley and said Kuma Higgins to conceal the property from her creditors, and to defeat the lien created by the levy of the writ.

The first assignment is that the court erred in refusing to permit witness to testify that Kuma Higgins had stated to him just prior to the service of the writ of attachment that the automobile belonged to her, that it did not belong to plaintiff, but that he was running it for her, etc. The rule is that when evidence was developed that was sumeient to show prima facie a conspiracy between plaintiff and Kuma Higgins to act in concert to shape matters so that plaintiff would hold the property, her acts or statements would be admissible. Sullivan v. Fant, 51 Tex. Civ. App. 6, 110 S. W. 522.

It seems clear that the testimony was hearsay and inadmissible. The controversy in this suit is whether the automobile belonged to Kelley or Kuma Higgins. It cannot be held that the statements made to the witness by a person not a party to the case, not in the presence of the plaintiff, and prior to any suit or controversy over the title to the machine, tends in any way to establish ownership, nor that plaintiff did not own the machine at the time it was taken under writ of attachment. So far as the record discloses, the statement was made prior to the suit by the Jewelry Company against the said Higgins. If she had been making up a .defense, a conspiracy to defeat the collection of the debt, it seems that she would have stated that the automobile belonged to Kelley and not to her, so the statement in no way tends to prove a conspiracy. And we find no evidence in the record upon which to base a finding that a conspiracy existed between the parties at any time in respect- to any matters pertaining to this suit.

The observation next above is sufficient reason for overruling the second, third, and fourth assignments, to the effect that it was error to exclude .the testimony that the- plaintiff had been arrested in bed with Kuma Higgins and fined for vagrancy, and the further testimony that plaintiff was with Kuma when she purchased the automobile. As stated above, the main question here is: Was Kelley the owner of the automobile? If not, then he is not entitled to recover in this case, and we conclude that if the evidence excluded were added to that admitted, it would not be sufficient upon which to base a judgment for the appellant.

The fifth is that the court erred in permitting witness to testify as to value of the automobile because he was not qualified as an expert.

The bill of exceptions does not show what examination nor that no examination was made to test the qualifications of the witnesses, and in such cases the presumption is that the court satisfied himself by proper inquiry as to the competency of the evidence, and the mere statement that the witness had not qualified is not enough to rebut the presumption. Hardin v. Sparks, 70 Tex. 429, 7 S. W. 769. The assignment must therefore be overruled.

The sixth to ninth, inclusive, urge that there is no legal or competent evidence as to the true measure of damages for the conversion of the automobile in question. The only evidence of the value of the car at the time it was attached is that it cost $750 secondhand, in March, and the testimony of another that it was in his opinion worth $800, in September, when taken. This latter witness clearly revealed by his answers to questions that he did not have sufficient knowledge of the condition of the car to make his-opinion of much value. He testified:

“I never inspected the car at all to see its general condition; I never saw the motor taken down or the transmission taken out, or anything of that kind. I do not of my own knowledge know how long that car had been run. I never did look or examine the engine or any parts of the car. As to whether I mean to tell the jury that just from a casual view of the car going into the garage with a number of other cars, and it being a Studebaker car, regardless of my knowledge of the advantage of it, or how it had been run, why, that would be my judgment that it would be the value of it, $800, judging it alone with other cars of the same type; that would be my opinion as to its value from the best information I had in hand at that time. I am assuming that the car would be in fairly good running order; I did not make an inspection of it to determine whether it was or not.”

And. no witness attempted to describe its condition at the time, nor what effect the six months’ use would or did have upon its value. Such evidence of value does not constitute such proof of the reasonable market value of the car at the time taken as should obtain in such cases to be the basis for judgment.

There is no evidence that the plaintiff made any effort to replevy the car, nor to secure, another in its place with which to continue the business, and these'are necessary to a recovery for profits in cases of wrongful attachment or sequestration. Halff Co. v. Waugh, 183 S. W. 845; Low v. Ne Smith, 77 S. W. 32; Hamlett v. Coates, 182 S. W. 1147; Wilson v. Manning, 35 S. W. 1079.

Again, witness says he was operating the car for hire at an average net earning of about $10 per day, but that he kept no-expense account and could not tell what.the expense of keeping it was, nor does he testify that he could and would have operated it during the time, so there is no evidence upon which to base a finding of $2 per day, rental value of the car.

The tenth assignment, which is submitted as a proposition, reads:

“Because the court erred in rendering judgment for plaintiff for the sum of $428, as so-called special damages as found by the jury, because plaintiff, if entitled to recovery at all, was entitled to recover only the reasonable market value of said automobile, at the date that it was attached by defendants, with interest at the rate of 6 per cent, from said time.”

We concur in the view that there was error in rendering judgment for $428, as damages, under the evidence adduced, but cannot concur in the unqualified assertion that appellee was entitled to recover only the value of the automobile, with legal interest from the date of its seizure. In view of a retrial, it is proper that we should indicate our view of the proper measure. The plaintiff sued to recover' the title and possession of the automobile, or its value, together with damages in the sum of $10 per day for its use.

The case was submitted to a jury upon special issues as follows:

“(1) Who was the owner of that certain five-passenger automobile, of Studebaker make, particularly described in the plaintiff’s petition herein, on the 9th day of September, 1914?
“(2) What was the reasonable market value of said car at said time and place?
“(3) What was the reasonable net rental value-of said car from the 9th day of September, 1914, to this date?”

In response to the first issue, they found in favor of Kelley; in response to the second, they answered, “$750,” and in response to the third, they answered, “$2 per day.” Thereupon the court entered judgment that Kelley recover of defendant the automobile, describing the same, and the sum of $428. damages, and if said automobile could not be had, then, that Kelley recover the said. sum of $750, the value assessed by the jury m addition to said damages.

Ordinarily, the measure of damages for wrongful attachment is the value of the goods attached, with interest from the date of seizure. Fisher v. Scherer, 169 S. W. 1133. Ordinarily, this rule furnished adequate compensation to the injured person in the absence of pleading and proof showing a right to recover, in addition to the value of the property, special damage arising from the deprivation of its use. If the plaintiff elects to do so, he may sue to recover the property itself. In many cases, to allow as damages, interest merely upon the value of the property during the period of its1 detention, would inadequately compensate him for the wrongful detention and does not furnish the proper measure of damage. Upon the contrary, he is entitled to the property wrongfully seized, together with the reasonable value of its use during the period of its detention, which, in the case of an auto-miobile, ordinarily would be estimated upon the basis of its rental value. Pridgin v. Strickland, 8 Tex. 427, 58 Am. Dec. 124; Munnerlyn v. Alexander, 38 Tex. 125; Hudson v. Wilkinson, 45 Tex. 444; Low v. Ne Smith, 77 S. W. 32; Hooks v. Pafford, 34 Tex. Civ. App. 516, 78 S. W. 991; Waller v. Hail, 46 S. W. 82; Craddock v. Goodwin, 54 Tex. 578.

In some instances, loss of profits as special damages may be allowed, where the case is brought within the rules allowing such damages. Such special damages in such cases will be allowed whether the suit be for the property itself or its value. Wilson v. Manning, 35 S. W. 1079; Hamlett v. Coates, 182 S. W. 1147; Halff v. Waugh, 183 S. W. 845. No fixed rule of damages can be declared which will apply in every instance, and of necessity must vary in different cases, according to the facts. Craddock v. Goodwin, and Wilson v. Manning, both supra.

In the case at bar, the plaintiff testified that he was operating the automobile in rent service, and its1 average net earnings in such service was $10 per day. There was no other testimony whereby a proper estimate could be made of the value of its use. This testimony alone was insufficient to enable the jury to determine what its reasonable rental value was1. And the pleading and evidence failed to bring the case within the rule announced in the cases last above cited, whereby the net profits derived from its use in the rent service might be properly allowed as special damages. Under the testimony, the court should have allowed as damages', interest upon the value of the car, because: (1) There was no evidence whereby the rental value of the car could be ascertained by the jury, and (2) there was no proper basis shown for the allowance of lost profits in the rent service as special damages.

Upon a retrial, if the issue of title be resolved in favor of Kelley, judgment should be rendered in his favor for the car, and, as damages for its detention, he should likewise recover interest upon its1 value, or for its rental value or lost profits in the rent service, as the pleading and proof may demand; and in the alternative, for its value, with damages assessed by the same rule. Whether a recovery be had for the property itself or its value, the measure of damage for the wrongful detention is the same. Pridgin v. Strickland, supra.

Reversed and remanded.
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author: WILLSON, C. J.

text:
    HAMER v. SANFORD et al.
    (No. 1644.)

    (Court of Civil Appeals of Texas. Texarkana.
    June 22, 1916.
    Rehearing Denied Oct. 5, 1916.)
    1. Evidence <&wkey;592 — Availability to Other PARTY.
    Evidence offered by plaintiff in trespass to try title to prove common source of title cannot be considered as evidence of title in the defendant, unless offered by Mm.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2429; Dec. Dig. &wkey;>592.]
    2. Guardian and Waed <&wkey;100 — Sale or Land — Oedee—Necessity op .Appointment —’Validity.
    One not validly appointed guardian of an infant was not a -guardian, and orders of the county court for sale of land of the infant by such person were void.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 372, 373; Dec. Dig. &wkey;> 100.]
    3. Guardian and Ward <&wkey; 105(2) — Sale op Land — Validity op Orders — Direct Attack.
    Where plaintiff in trespass to try title alleged that one who assumed to sell the land as her guardian under orders of court was not legally or in fact her guardian, and was without authority to sell the land, the allegations must be construed as a direct attack on such orders, and entitle her to prove that such person was not her guardian.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 385, 388; Dec. Dig. &wkey;> 105(2).]
    4. Guardian and Ward <&wkey;108 — Sale op Land — Invalidity — Care and Support — Liability.
    Since the liability of an infant to one rendering him care and support is personal, and does not attach to his property, an infant who by trespass to try title seeks recovery of land sold by one assuming to be her guardian cannot, as a condition precedent to recovery, be required to refund purchase money expended by her assumed guardian for her support.
    [Ed. Note. — For other eases, see Guardian and Ward, Cent. Dig. §§ 369, 395-398; Dec. Dig. <$=>108.]
    5. Trespass to Try Title <&wkey;47(3) — Amount op Recovery — Improvements.
    Plaintiff in trespass to try title may be required to pay to the one in possession, if his possession was in good faith, and on belief that he was entitled to possession based upon good grounds, the amount of the difference between the rental value of the land while he had possession and the value of improvements placed thereon by him.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 69; Dec. Dig. <&wkey;>47(8).]
    Appeal from District Court, Delta County; A. P. Dohoney, Judge.
    Trespass to try title by Eulala Sanford and husband against R. W. Poster, A. P. Hamer, and another.
    Prom the judgment rendered, Mrs. Sanford and Hamer appeal. On Ham-er’s appeal, affirmed.
    This was a suit of trespass to try title and for damages, brought by Eulala Sanford, joined pro forma by her husband, against R. W. Poster, P. M. Nidever, and A. P. Hamer. The land sued for consisted of five adjoining tracts, together containing 173.85 acres, in Delta county. Mark Poster was the source of the title asserted by the parties respectively. Eulala Poster was the daughter of said Mark Poster. She proved, and the court found, that her father died July 19, 1908, leaving a will, which was duly probated, whereby he devised the land to her.
    The answer of Nidever to the suit, if he made one, is not in the record sent to this court. The answers filed by Poster and Ham-er consisted of pleas of not guilty and pleas containing allegations as follows: That in his will Mark Poster named R. W. Poster as executor without bond and appointed him guardian of the estate of Eulala, then a minor; that said R. W. Poster had said will .duly probated; that it was his purpose to be appointed guardian of Eulala’s estate, and he was advised by counsel he employed that the court had appointed him as such guardian ; that he was so appointed by the county court of Delta county in 1909; that, acting as such guardian, he, at the February term, 1910, applied to said court for an order authorizing him to sell the land in controversy; that his application was granted, and said court on February 28, 1910, made an order directing him to sell the land; that in accordance with the order he sold the land, Nidever being the ímrchaser; that he made due report of the sale, and on March 7, 1910, the court by an order then made confirmed same and directed him to make title to the purchaser; that at the time the application and orders mentioned were made a necessity existed for the sale of the minor’s lands, as she owned no personal property which could be applied to her support and maintenance; that he continued thereafter-wards to act as guardian of Eulala’s estate, and disbursed the proceeds of the sale to Nidever for her support and education; that in making the application for the order authorizing him as guardian to sell the land and in selling same he acted in good faith and in accordance with the advice of counsel, believing he was the guardian of Eulala’s estate; that, if he was not such guardian de jure, he was de facto; and that Eulala, having received the benefit of the sale made to Nidever, was bound by his acts as guardian. In their said pleas Poster and Hamer-prayed that in the event the court determined that Eulala was entitled to recover the land, she be required as a condition to such recovery to return the money realized by Poster from the sale thereof to Nidever. In his answer Hamer further alleged that he in good faith had had adverse possession of 130 acres of the land for more than a year before Eulala commenced her suit, and had made permanent and valuable improvements thereon, for the value of which he asked a recovery against Eulala in the event she recovered the land.
    In a supplemental petition the plaintiffs-charged that R. W. Poster never was guardian of Eulala’s estate, and that he knew when he applied for the order to sell the land that he had never been appointed guardian thereof, and that in applying for that order and in obtaining the order confirming the-sale • he made to Nidever he perpetrated a fraud on the court, and that his purpose was to convert the value of the land to his own use.
    With reference to the matters pleaded by Poster and Hamer the court found as facts: That at the time her father died Eulala was 14 years of age; that R. W. Poster never applied for and was never appointed guardian of her estate; that, “believing he had authority to do so,” said R. W. Poster as such guardian applied for and procured the orders directing and confirming the sale made to Nidever; that, as such guardian, - on March 7, 1910, he conveyed the land to Nidever in consideration of $250 paid to him by Nidever and the latter’s promissory notes for $1,250, which he (Poster) sold for $1,200; that on January 2, 1911, Nidever sold and conveyed the land to Ham-er; that in buying it the latter acted in good faith, believing Nidever owned it; that Hamer, after buying the land, placed on it permanent and valuable improvements, which enhanced its value in the sum of $1,615; and that Poster, on account of board, lodging, clothing, and other necessaries for Eulala while she was a minor and before she married, had paid sums aggregating $1,760. On the findings just recited and further findings made by Mm that Eulala was the devisee of the land named in her father’s will, and that the rental value of the land during the time Nidever and Hamer had possession of it was $1,200, the court concluded that the purported guardianship proceedings and the deed of Poster as guardian -to-Nidever were void, and that Eulala Sanford was entitled to the land on paying to Hamer the sum of $415, which he found to be the excess of the value of the improvements placed on the land over the rental value thereof, and rendered judgment accordingly. Prom this judgment both Mrs. Sanford and Hamer have appealed.

      Newman Phillips, of Cooper, for appellants. J. L. MeNeese, of Dallas, and James Patteson, of Cooper, for appellees.

      Application for writ of error pending in Supreme Court.

   WILLSON, C. J.

(after stating the facts as above). That Mrs. Sanford, as her father’s ■devisee, owned the land at the time R. W. Poster as her guardian undertook to convey it to Nidever, is not questioned by Hamer. His contention was and is that it appeared that he had acquired her title. As supporting his contention, Hamer refers to proof made by Mrs. Sanford for the purpose alone of showing that she and he claimed title from Mark Poster as a common source, consisting of: (1) The application of R. W. Poster as guardian of her estate to sell 130 acres of her land, filed January 13, 1910; (2) notice of the filing of said application and return thereon showing it to have been posted as required by law; (3) order of the county court of Delta county granting said application and directing a sale of said 130 acres, made February 28, 1910; (4) report of a sale thereof to Nidever, filed February 28, 1910; (5) order confirming sale and directing title to be made to the purchaser, made March 7, 1910; (6) deed from R. W. Poster as guardian to Nidever, dated March 7, 1910; and (7) deeds from Nidever to Hamer, dated January 2, 1911, and January 7, 1914.

Controverting Hamer’s contention, Mrs. Sanford insists that the testimony specified, having been offered by her and admitted only for the purpose stated, could not be considered as evidence of title in Hamer, unless offered by him, and that, as it was not offered by him, he was before the court without any evidence whatever of title in himself.

The rule in actions of trepass to try title is, it seems, that evidence offered by the .plaintiff to prove common source cannot be considered as evidence of title in the defendant, unless offered by him. Article 7749, Vernon’s Statutes; Ogden v. Bosse, 86 Tex. 336, 24 S. W. 798; Hardware Co. v. Davis, 87 Tex. 146, 27 S. W. 62. A qualification of the rule was stated in the case last cited as follows:

“If the plaintiff in an action of trespass to try title, in order to maintain his action, prove that both he and defendant claim from a common grantor, and if in doing this he should exhibit the defendant’s title, and it should appear upon its face to be superior to his own, he cannot succeed, unless he go further, and show that, notwithstanding its apparent soundness, it is for some reason invalid.”

It may be that, looking to the face of the orders directing and confirming the sale made to Nidever alone, the trial court should have indulged a presumption in favor of the existence of power to make them. Martin v. Robinson, 67 Tex. 374, 3 S. W. 550. If so, then it would have appeared prima facie from the testimony adduced by Mrs. Sanford to prove common source that Hamer’s title was superior to her own. If that was the attitude of the case, then it was incumbent on her to “go further and show that, notwithstanding its apparent soundness,” the title in Hamer for some reason was invalid. We think she did that. As shown in the statement above, she alleged in a supplemental petition that R. W. Poster never was guardian of her estate, and that he practiced a fraud on the county court of Delta county when he induced it to make the orders directing and confirming the same to Nidever, on the faith of his representations that he was such guardian. We think these allegations should be construed as a direct attack by Mrs. Sanford on those orders, and entitled her to prove that said R. W. Poster was not the guardian of her estate. As has already been stated, the testimony sufficiently showed, and the court found the fact to be, that R. W. Poster was not such guardian. If he was not, then plainly the orders made by the county court of Delta county were void, and Hamer was without title to the land.

A further contention made by Hamer is that the trial court should have required Mrs. Sanford as a condition to the recovery of the land awarded her, to “refund so much of the purchase money paid by Nidever as was shown to have been used by R. W. Poster as her guardian in her necessary support and maintenance, and as was found by the court to have been so used.” The contention must be overruled. The liability incurred by Mrs. Sanford, if any, on account of necessaries furnished her by R. W. Poster while she was a minor, was a personal one, and not a charge on her property. We know of no rule which would have authorized the court to require her to discharge the liability she may have so incurred before awarding her a recovery of property she owned. Northcraft v. Oliver, 74 Tex. 168, 11 S. W. 1121.

While we agree with Mrs. Sanford in the contention she makes that the judgment, in so far as it is in her favor, does not appear from the record to be erroneous, we do not agree with her in the further contention that the judgment is wrong in so far as it awards a recovery by Hamer against her of $415 as the difference in his favor between the value of the use of the land and the value of improvements he placed on it. It did not follow because Hamer failed to prove title to the land that he was not- entitled to an allowance for improvements placed by him thereon. If under all the facts and circumstances “he had good ground to believe, and did believe, that the title under which he entered was good, and, acting on such belief, he in good faith made permanent and valuable improvements which enhanced the value of the land,” he was entitled to the allowance claimed, notwithstanding the title he asserted was worthless. West Lumber Co. v. Chessher, 146 S. W. 977. The finding of the trial court that Hamer did that seems to be amply supported by testimony in tbe record. And Mrs. Sanford bas not referred us to and we bare not found testimony in tbe record wbicb would bave supported a finding to tbe contrary.

Tbe judgment is affirmed.
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author: RAINEY, C. J.

text:
    FIDELITY & DEPOSIT CO. OF MARYLAND v. ANDERSON et al.

    (No. 7583.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 14, 1916.
    Rehearing Denied Nov. 11, 1916.)
    1. PRINCIPAL -AND AGENT <&wkey;156 — AGENCY— . Fraud op Agent.
    H., on whom F. rebed to secure tbe signing of a contract by the other parties, was F.’s agent, as regards false representations on wbicb II. secui’ed tbe signing.
    [Ed. Note. — -For other cases, see Principal and Agent, Cent. Dig. §§ 583-587; Dec. Dig. <i&wkey;156.]
    2. Contracts <&wkey;94(5) — Fraud—Inquiry.
    One induced by fraudulent representations to enter into a contract is not barred from relief therefrom because, bad be made further inquiry, be would have known tbe truth.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 424, 425, 1164; Dec. Dig. <§=» 94(5).j
    3. Appeal and Error <&wkey;934(2) — Presumption — Finding off Fact.
    In support of tbe judgment, agency of one who, by letter admitted in evidence, approved a change in contract will be presumed to have been found by tbe court, tbe evidence supporting such a finding, and submission to tbe jury of the issue having neither been made nor requested.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3777; Dec. Dig. <®^934(2).]
    4. Trial <&wkey; 191(1) — Instructions—Assumption off Facts.
    A requested instruction, assuming a fact as to wbicb tbe evidence raised an issue, is properly denied.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420, 421, 435; Dec. Dig. &wkey;191(l)J
    Appeal from District Court, Dallas County; I-Cennetb Foree, Judge.
    Action by Alfred O. Anderson against J. 5. Macon and others. From an adverse judgment, defendant Fidelity & Deposit Company of Maryland appeals.
    Affirmed.
    Burgess, Burgess, Germany & Chrestman, of Dallas, for appellant. John L. Young and Short & Feild, all of Dallas, for appel-lees.

      Application for writ of error pending in Supreme Court.

   RAINEY, C. J.

Anderson, one of the ap-pellees, sued J. A. Macon and C. M. Hopper, contractors, and their sureties, the appellant, on their bond for a failure to comply with the builder’s contract and for abandoning the work. Appellant vouched in S. E. Allen and Paul Agnew, as indemnitors and asked judgment over against them in the evgnt plaintiff recovered judgment against appellant. A trial was had and special issues were submitted to a jury and upon a return of a verdict a judgment was rendered against Macon and Hopper and the appellant in favor of Anderson and in favor of Allen & Agnew on the claim of the bonding company. From this judgment the bonding company alone appeals to this court.

Anderson, the owner of the building, pleaded in effect, that he made a contract with Macon and Hopper to construct the building, and that after Macon and Hopper had partially completed it, they, without cause, abandoned it, and he expended a considerable sum of money in having it finished, for which amount he is entitled to recover judgment against the contractors. Agnew and Allen admitted signing the contract of indemnity, but charged that they did not read it, and signed it on the faith and belief of appellant’s agent’s statement that said contract was a recommendation of character, which was false, but relied on by them. As to Agnew and Allen, appellant contends that they cannot defeat liability by reason of not having read the indemnity contract, even if Harrison made misrepresentations as charged, and that Harrison was not such an agent capable of binding appellant. The evidence shows that Harrison was acting for appellant in receiving the indemnity contract, called on Agnew and Allen for their signatures to it, represented to them that the said instrument was a recommendation of character, and induced them thereby to sign the same. These facts were, in effect, found by the jury, which we think 'binding on appellant, and warrant the judgment in favor of Agnew and Allen. The appellant having relied on Harrison to secure the signing of the contract of indemnity, it is bound by his misrepresentations, and is not in an attitude to take an advantage on account of Agnew and Allen having signed it by reason of their acting on said misrepresentations. The rule laid down by Mr. Justice Stayton, in Labbe v. Corbett, 69 Tex. 503, in fraud cases, which we think applicable here, is as follows:

“When once it is established that there has been any fraudulent misrepresentation, * * * by wbicb a person bas 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 tbe truth by further inquiry. He has a right to retort upon bis objector: ‘You, at least, who have stated what is untrue * * * for tbe purpose of drawing me into a contract, cannot accuse me of want of caution because I relied implicitly upon your fairness and honesty.’ ”

We will next consider the errors assigned with reference to the right to recover against appellee Anderson. On this branch of the case the appellant presented the sixth and seventh errors assigned, which are as follows:

“Sixth. Tbe court erred in refusing to give-special charge requested by this defendant as follows: ‘You are charged that M. Murphy bad no authority to execute tbe letter offered in testimony, authorizing the plaintiff to pay Mayfield Lumber Company for the amount of material furnished by said company in full on behalf of the defendant Fidelity & Deposit Company of Maryland, and his act in doing so does not constitute a waiver of the terms of the contract and bond sued on.’
“Seventh. The court erred in permitting the plaintiff, over the objection of this defendant, to offer in testimony the letter dated March 21, 1914, addressed to Alfred O. Anderson, 415 Praetorian Bldg., Dallas, Tex., as follows: ‘Dear Sir: Please pay to J. S. Mayfield Lumber Company at each estimate entire amount due according to signed invoices for building material delivered on your premises at corners of Reagan and Bowser Aves., Dallas, Texas, and oblige, Yours truly, Macon & Hopper, per J. E. Macon. Accepted and approved, Alfred O. Anderson; Axjproved, M. Mui-phy.’ ”

The proposition of appellant, in effect, is that the court erred in admitting said letter without qualification or submitting any issue as to Murphy’s authority to bind the company, and also the court erred in failing to submit, in connection with an issue as to Murphy’s authority to approve change of contract in this letter, the question of plaintiff’s knowledge or notice of Armstrong’s exclusive agency and Murphy’s want of authority as requested in this special charge. The building contract provided that in paying for its construction 25 per cent, of the estimates should be reserved by the owner, which was not observed, but more than 75 per cent, was paid to the contractors; hence the authority of Murphy to approve the letter arose. We think the evidence sufficient to raise the issue of Murphy’s agency, but it was not submitted to the jury; and, in the absence of a finding by the jury, it will be presumed that the court found he was the agent, as said finding is supported by the evidence and no request made by appellant for its submission.

Tire charge requested in the sixth assignment assumes that Murphy was not an agent, and as the evidence raised the issue, it was not error to refuse said charge.

We have considered all the assignments presented, and think none present reversible error.

The evidence supports the judgment, and it is affirmed.
      tffcboFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes