text:
    ST. LOUIS, B. & M. RY. CO. et al. v. EVANS et al.
    (No. 5407.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 27, 1915.
    Rehearing Denied Feb. 17, 1915.)
    Pleading <@=»166 — Reply—New Issues.
    Where the petition, in an action against a carrier for damages to corn during transit, alleged that the com was good, dry, and merchantable when shipped, and was damaged by rain which the carrier negligently permitted to come in contact therewith, an answer alleging that the corn was shelled while too green, and that the same was shipped in a green, damp, and unripe condition, was only a denial that the corn was damaged by rain and was ripe and merchantable corn when loaded, and raised no new issue.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 321%-328; Dec. Dig. <s=»166J
    Appeal from Hidalgo County Court; James H. Edwards, Judge.
    Action by Marvin Evans and another against Frank Andrews, receiver of the St. Louis, Brownsville & Mexico Railway Company, and another. From a judgment for plaintiffs, defendant named appeals.
    Affirmed.
    Graham, Jones, West & Dancy, of Brownsville, for appellant. Kibbe & Polk, of Brownsville, for appellees.
   FLY, C. J.

This is a suit for damages to corn shipped from Pharr to McKinney, Tex., instituted by Marvin Evans, A. J. McCall,- and S. R. Gawthrop, appellees, against Frank Andrews, receiver of the St. Louis, Brownsville & Mexico Railway Company, and the Houston & Texas Central Railroad Company. It was alleged that a part of the corn was lost or stolen, and the balance was damaged by rain which entered the cars through doors that were left partly open and through apertures in the roof. The cause was submitted on special issues, and the jury answered that 9,620 pounds of corn were lost or stolen, and that the other corn was damaged by rain. On the answers judgment was rendered in favor of appellees for $154.55, the value of the lost or stolen corn, and in their favor for $456.25, the amount of damages to the remaining corn. This appeal is prosecuted by the St. Louis, Brownsville & Mexico Railway Company.

No complaint is made as to that part of the judgment for the missing corn, but it is urged that appellees could not recover for the damages to the corn by rain, because they had not traversed the answer of appellants. It was fully alleged in the petition that the corn was dry when shipped and was damaged by rain, which the railway companies negligently permitted to fall on the corn. That was denied by appellants, and in addition it was pleaded:

“That if plaintiffs’ corn was in fact damaged en route from Pharr, Tex., to McKinney, Tex., as set forth in plaintiffs’ first amended original petition filed herein, then these defendants say that, if any damage was proximately caused by the inherent vice and condition of said corn at the time of shipment in that same was shelled while too green, and that the the same was shipped in a green, damp, and unripe condition, and which said condition was the proximate cause of plaintiffs’ damage, if any, and that these defendants are not liable for the damages, if any, the plaintiffs have sustained.”

The affirmative plea raised no new issue. Under the denial that the damage was caused by rain, appellants would have been permitted to prove that the damage to the com was not caused by rain but by some other cause. The law requiring denials of allegations in pleadings was adopted in order to have the issues formulated and presented in a concrete form, and not as a trap or pitfall to catch unwary parties on naked technicalities, and was never intended to have denial after denial and traverse after traverse of every new matter pleaded by a party. The desire was to simplify matters, not to complicate them, and no denial is required, unless a new issue is injected into the ease by the pleading. Issue was joined in this case as to whether rain or some other cause produced the damage, and appellees were not required to answer the plea of appellants that the damage was caused by something else other than rain. This matter has been clearly stated by this court, through Associate Justice Moursund, and that opinion has not been questioned. Railway v. Pennington, 166 S. W. 464. It has been followed by the Oourt of Civil Appeals at Amarillo. Memphis Cotton Oil Co. v. Tolbert, 171 S. W. 309.

It was alleged in the petition that the corn was good, dry, and merchantable, and that appellants were negligent in “allowing or permitting contents, or part of contents, of said cars to be rained upon or otherwise dampened in transit.” An answer that the corn “was shelled while too green, and that same was shipped in a green, damp, and unripe condition,” was nothing more than a denial that the corn was rained upon and- was ripe, merchantable grain'.

The judgment is affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numb'ered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    GALVESTON, H. & S. A. RY. CO. v. ROEMER.
    (No. 5372.)

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 20, 1915.
    Rehearing Denied Feb. 17, 1915.)
    1. Appeal and Error <&wkey; 1033 — Review—Er-ROBS FAVORABLE TO APPELLANT.
    in an action for injuries to a railway em-ployé due to a handhold on a car giving way, where the evidence showed conclusively that the handhold was insecure, if not insufficient, the submission of an issue whether the handhold was insufficient and insecure did not harm defendant, even though there was no evidence that it was insufficient; the jury having been required to find that it was both insufficient and insecure before finding for plaintiff.
    LEd. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4052-4002; Dec. Dig. <&wkey; 1033.]
    2. Master and Servant <&wkey;>265 — Actions for Inj uries — Deeen ses .
    Under Rev. St. 1911, art. 6713, making it unlawful for carriers to use within the state any car not provided with sufficient and secure grabirons, handholds, and foot stirrups, a person injured by reason of a defective handhold is not required to prove that the particular handhold which caused the injury was necessary to the convenience of trainmen; and, if defendant contends that such handhold was not for the use of brakemen, this matter should be pleaded by it as a defense.
    [Ed. Note. — Eor other cases, see Master and Servant, Gent. Dig. §§ 877-908, 955; Dec. Dig. <S&wkey;265.]
    3. Trial &wkey;>255 — Instructions—Necessity oe Requests.
    In an action for injuries to a railway em-ployé claimed to have been due to an insecure handhold, where the charge failed to define the word “secure,” if defendant wanted it defined it should have offered a special charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. &wkey;255J.
    4. Master and Servant &wkey;>lll — Liability eor Injuries — Appliances — Statutory Provisions.
    Where a railway employé, in the performance of his duty, mounted a car to let out the brakes, but instead of descending from that car walked along the running board for one or two car lengths, and then undertook to descend for the purpose of performing' a duty requiring him to be on the ground, and was injured by a handhold giving way, the handhold statute (Rev. St. 1911, art. 6713) applied, as he was in the performance of his duties, and it cannot be held that the statute does not protect an employé unless the use of the defective handhold, at the time of his injury, was.required in the exercise of the best judgment which could be brought to bear in the performance of his duties.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 215-217, 255; Dec. Dig. &wkey;lll.]
    5. Appeal and Error &wkey;»742 — Assignments oe Error — Propositions.
    An assignment of error, complaining of the denial of a peremptory instruction, could not be submitted, as a proposition, where it involved many propositions.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 3000; Dec. Dig. &wkey;j742.j
    6. Master and Servant &wkey;>289 — Liability eor Injuries — Contributory Negligence.
    Where railway brakemen used end and side ladders, indiscriminately using whichever happened to suit them best, the use of an end ladder instead of a side ladder was not contributory negligence, as a matter of law.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. &wkey;>289.]
    7. Master and Servant &wkey;>106 — Liability eor Injuries — Appliances — Statutory Provisions.
    Rev. St. 1911, art. 6713, prohibiting carriers from using cars not provided with sufficient and secure grabirons and ' handholds, applies to any car used for transporting local freight between points in this state, whether the car belongs to the carrier using it or not.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 193-198; Dee. Dig. &wkey;> 106.]
    8. Trial <&wkey;2ol — Instructions—Conformity to Pleadings.
    ■ Special instructions, not justified by the pleadings, were properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. &wkey;251.]
    9. Evidence <&wkey;544 — Opinion Evidence — Testimony of Experts.
    In an action for personal injuries, the opinion of a physician that the injured person’s condition was caused by the injury was properly admitted, though he had previously staled that he suspected it was so caused, and had some difficulty in determining whether that was his opinion or merely a suspicion.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2356; Dec. Dig. &wkey;544.]
    10. Damages &wkey;>132 — Exoessiveness — Personal Injuries.
    Where a railway employé, 27 years old, sustained injuries causing epilepsy and making him an invalid for life, his affliction being such as to cause him constant dread, mental depression, and much suffering, a verdict for $20,000 was not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. &wkey; 132.].
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by A. G. Roemer against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and Templeton Brooks, Napier & Ogden, and Ed W. Smith, all of San Antonio, for appellant. C. C. Harris and Arnold, Cozby & Peyton, all of San Antonio, for appellee.

       writ of error pending in Supreme Court.

   MOURSUND, J.

Appellee sued appellant for damages, alleging that on October 12, 1912, he was an employs of appellant, and had occasion, in the discharge of his duties, to be on top of some cars and to-descend therefrom; that in attempting to descend he placed his foot upon a handhold, which gave way, precipitating him to the ground, and causing him serious and permanent injuries; that the handhold was insufficient and insecure; and that defendant was negligent in having and permitting it to be in that condition.

“Defendant admitted that plaintiff was in its employ as stated, and that he met with an accident at Weimar on the occasion mentioned; denied knowledge as to how the accident happened, and denied that plaintiff was injured as alleged; denied that plaintiff was in the discharge of the duties of his employment at the time the accident occurred, and averred that he had no business on the car and no reason to descend therefrom; admitted that the bolt which held the handhold in place at one end was rusted nearly in two at the place where the bolt came out of the wood of the car, and that the bolt broke at that place; averred that the defect in the bolt was covered up by the end of the handhold and was not discoverable and was unknown to defendant;, averred that the car was not constructed or' owned by it, but was constructed and owned by a foreign company and had come on its line shortly before the accident in the ordinary course of business, and that defendant had used all practicable care to have same in proper condition.”

The court instructed a verdict for plaintiff, if the jury found that he fell and was injured as alleged and that the handhold was insufficient and insecure, and that this was the cause of the accident; the issue of negligence not being submitted. The trial resulted in a verdict and judgment in favor of plaintiff for $20,000.

The first seven assignments of error raise questions disposed of by us adversely to appellant’s contention in the case of G., H. & S. A. Ry. Oo. v. Bnderle, 170 S. W. 276. Said assignments are therefore overruled without further discussion.

By assignments 8 and 9 appellant contends that there was no evidence that the car was not equipped with sufficient handholds, and therefore the court erred in his charge in basing plaintiff’s right to recover upon the jury’s finding that the handhold was insufficient and insecure. The issue was not submitted whether the car was equipped with a sufficient number of handholds, but whether the particular handhold was insufficient and insecure, and the jury was required to find that it was both insufficient and insecure, before returning a verdict in favor of. plaintiff. As the evidence conclusively showed that the handhold was insecure, if not insufficient, which alone entitled plaintiff to recover, the charge, if erroneous, did not harm appellant. The assignments are overruled.

Appellant contends that the evidence was-not sufficient to justify the court in assuming that the handhold in question was one required by the state handhold statute. We do not think the court erred in assuming that the. statute applies to all handholds placed upon cars. It was never intended that those injured by reason of a defective handhold would be required to prove that such handhold was necessary for the convenience and safety of trainmen; in other words, that, if double the necessary number of handholds should be placed upon a car, the injured person would have to show that the particular one which caused the injury was necessary to the convenience of trainmen. If appellant desired to contend that the handhold in question was not for the use of brakemen, and that appellee violated a rule by using same, such matter should be pleaded as a defense. We have heretofore held that the exercise of ordinary care does not meet the requirements of the statute. Railway v. Enderle, supra; Railway v. Kurtz, 147 S. W. 658. The charge did not assume that handholds would have to be fastened so as not to pull out, no matter what force was applied thereto or how such force came to be applied. No court or jury would expect the obviously impossible to be accomplished. The charge did not define the word “secure”; and, If appellant wanted it defined, it should have offered a special charge. In this case the force applied to the handhold was not unusual, and no issue wqs raised as to the use of unusual force. Assignments 10 to 14, inclusive, are overruled.

The further contention is made that the court erred in authorizing a recovery on the ground that the case was governed by the handhold statute; the theory being that the evidence shows there was no occasion or necessity for plaintiff being on the car in question or for him to descend therefrom or to use the defective handhold, and therefore he was not acting in the line of his duty, and was acting outside the scope of his employment. The evidence shows that plaintiff, in the performance of his duty, mounted a car to let out the brakes. He did not descend from that car, but walked along the running board one or two car lengths, and then undertook to descend for the purpose of performing a duty which required him to be on the ground. The evidence shows that the brakemen were allowed 'to exercise their discretion as to handholds they should use and cars they should ascend and descend. It cannot be held that the handhold statute does not protect an emplojffi, unless the use of the defective handhold at the time of his injury was required in the exercise of the best judgment which could be brought to bear in the performance of his duties. He was in the performance of his duties, and the handhold statute applied. Assignments 15 and 16 are overruled.

The seventeenth assignment complains of the overruling of the request for a x>eremptory instruction for defendant, many reasons being pointed out; and, while the assignment is sought to be submitted as a proposition, it cannot be so considered because it involves many propositions. The proposition submitted under same asserts two contentions, both of which have already been considered and found without merit. The assignment is overruled. The same proposition is the only one submitted under the eighteenth assignment and said assignment is overruled, also the twentieth and twenty-second which raise the same issue.

The twenty-first assignment again asserts that plaintiff was not acting within the scope of his authority, and in addition the contention is made that the evidence shows contributory negligence in that he descended the end ladder instead of the side ladder, without having hold of anything, and without taking any precautions to prevent an accident. The evidence shows that the brakemen used the end ladder and the side ladders indiscriminately; that is, used whichever happened to suit them best; and it cannot be said that the evidence would sustain a finding of contributory negligence, as a matter of law. It further appears that contributory negligence was not pleaded.

By the nineteenth assignment it is contended that the ear was not owned or constructed by defendant, but was constructed and owned by a foreign company; that defendant had the car and handhold properly inspected a short time before the accident happened, and no defect in the handhold was discovered, and in fact the defect was latent and not discoverable by inspection, and therefore defendant was not guilty of any breach of duty to plaintiff on account of the condition of the handhold. The evidence does not show conclusively that a proper inspection would not have revealed the defect in the handhold; but aside from that, when a railroad company uses a car, no matter who it belongs to, for transporting its local freight between points in the state, the provisions of article 6713 (Revised Statutes 1911) are applicable. The assignment is overruled.

The court did not err in refusing to give special charge No. 5 and special charge No. 8, relating to contributory negligence. There were no pleadings to justify these charges. Besides, there was no evidence from which the jury could find that plaintiff was negligent in going upon the car from which he was descending when injured. Assignments 23, 24, 25, and 26 are overruled.

The twenty-seventh assignment relates to testimony of Dr. 6. Schults, who had great difficulty in determining whether he merely suspected that the plaintiff’s fall and injury caused the condition in which he found him or whether it was his opinion that such was the case. He finally stated it was his opinion, and the court permitted the testimony to stand. His opinion was admissible; and, while his statements that he suspected weakened the force of his testimony, we see no reason for excluding same, when he finally decided that it was his opinion, and not a mere suspicion. The twenty-seventh and twenty-eighth assignments are overruled.

The verdict is attacked as excessive. The ease is peculiar, and there was presented to the jury a great mass of testimony pro and con upon the question whether appellee feigned the symptoms of epilepsy or whether he really suffered from terrible convulsions. This question was solved in his favor, and we must take it for granted that he is afflicted as he claims to be. If the testimony in his favor is true, at the age of 27 he received injuries which make him an invalid for life; and his affliction is such as to cause him constant dread, mental depression, and much suffering. We cannot say the verdict is excessive.

The judgment is affirmed.
      ®=^Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    MOORE v. FIRST STATE BANK OF TEAGUE et al.
    (No. 7240.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 23, 1915.)

    1. Vendor and Puechaseb <@=^301 — Rescission by Purchaser — Nonbereormanoe by Vendor.
    A vendor under an executory contract of sale, whereby he retains the superior title, may, upon failure of the purchaser to perform, either sue for the purchase money and foreclose his lien, or rescind the contract.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 844; Dec. Dig. <@=> 301.]
    2. Vendor and Purchaser <@=>101 — Rescission by Puechaseb — Notice.
    Where a purchaser has partly performed a contract for the purchase of land, the vendor must give him reasonable notice of his intention to rescind for nonperformance.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Gent. Dig. §§ 170-174; Dec. Dig. <@=>101.]
    3. Vendor and Puechaseb <@=>98 — Rescission by Purchaser — Return oe Money Paid.
    Where a petition in equity to recover possession of land sold under an executory contract alleged that the contract provided that upon default in the payment of one of the notes all should become due, that defendant failed to pay two of the notes when due, and the plaintiff notified him that unless they were paid at a certain time the contract would be rescinded, that defendant entered into a conspiracy to deprive plaintiff of the rents arising from the property, and that the amount paid by defendant on the purchase price was all applied on the payment of the broker’s commission, which allegations were not denied and therefore must be taken as true under Acts 33d Leg. c. 127, § 4. the defendant is not equitably entitled to a return of the money paid by him as a condition for the rescission of the contract by the plaintiff.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 163-165; Dec. Dig. <@=v98J
    Appeal from District Court, Freestone County; H. B. Daviss, Judge.
    Action by the First State Bank of Teague against C. N. Moore and others. Judgment for the plaintiff, and defendant Moore appeals.
    Affirmed.
    Boyd & Bell, of Teague, for appellant. D. T. Garth, of Teague, for appellee.
   TALBOT, J.

This suit was instituted by the appellee, First State Bank of Teague, Tex., against the appellant, C. N. Moore, and against Fred Carrington, D. W. Carrington, and C. D. Phillips, alleging in an amended petition filed February 24, 1914, in substance:

That on or about the 1st day of October, 1912, plaintiff was the owner and in possession of lot No. 1 in block No. 107 in the city of Teague, Tex., less 6% inches of£ the east side of said lot, and commonly known as the First State Bank building. That on said 1st day of October, 1912, plaintiff by its proper officers made and executed, but did not deliver, a vendor’s lien deed of conveyance, being an executory contract to thereby convey to C. N. Moore said property. That the consideration was the sum of $10,000. That O. N. Moore paid plaintiff $1,000 and executed and delivered to plaintiff 60 vendor’s lien notes each for the sum of $150, the first note due December 1, 1912, and one of said notes due on the 1st day of each succeeding month thereafter, all said notes bearing interest from date until paid at the rate of S per cent, per annum. That, for the reason that said Moore agreed to pay $1,800, said deed was not to be delivered until $1,800 was paid. That it was agreed that said deed should not be delivered until C. N. Moore should deliver a deed to plaintiff conveying certain land. That it was agreed that the rents should be collected on the building by Moore and paid, on his said notes. That Moore failed and refused to deliver a deed to plaintiff to said land; however he entered into possession of plaintiff’s said lot. That C. N. Moore made the payments due December 1, 1912, and January and February, 1913, by collecting the rents and paying same to plaintiff with an additional amount of $75 or about that amount each month. That it was agreed that all rents should be paid to plaintiff on said notes. That the deed and notes retained a vendor’s lien against the property sued for; the superior title remaining in plaintiff. That on January 1, 1913, O'. N. Moore entered into a rental contract for one year letting said premises to O. D. Phillips for the sum of $83.33% per month, payable on the 1st day of each' month. That 0. N. Moore collected the rents from Phillips on March 1, 1913, and failed to pay his note maturing on March 1, 1913, and failed to pay his note due April 1, 1913. That plaintiff declared all said notes due. That plaintiff notified C. N. Moore in the month of March and during the first part of April that if he failed to pay said notes same would be matured, and notified C. N. Moore about the first of April that if he did not pay said notes that the contract would be rescinded. That Moore failed to respond to said notice, and on or about April 15, 1913, plaintiff rescinded its contract of sale and canceled same, forfeiting all the rights of O. N. Moore. That C. N. Moore fraudulently assigned his rent contract with C. D. Phillips, to one Fred Carrington, and that Carrington was setting up a claim to the rents from said premises. That plaintiff demanded payment of rents for the months of March and April, 1913, which was refused. That C. N. Moore, Fred Car-rington, and C. D. Phillips had entered into a conspiracy to defeat the plaintiff out of its rents, to plaintiff’s damage $1,000. That the rents on said property were reasonably worth the sum of $85 per month. That defendant had defeated plaintiff of its rents for the months of March and April, 1913, and feared that plaintiff would lose its rents for the remainder of the year 1913, and prayed for a writ of injunction restraining C. D. Phillips from paying any rents to Moore and Carrington, .and that the rescission of the contract of sale with Moore be ratified, and the executory contract canceled, and prays judgment for title and possession of its land and for rents from the 1st day of March, 1913, costs of suit, and general relief, etc.

On February 24, 1914, the Waco Development Company filed its plea of intervention claiming title to the land sued for, alleging that on the-day of-, 1913, plaintiff, First State Bank, sold and conveyed the property in controversy to intervener, by its deed duly executed and delivered, and that it paid to plaintiff $4,000 in cash and executed its vendor’s lien notes to plaintiff for $7,000; that its deed was duly recorded in Freestone county, and prayed judgment for title and possession of the land sued for, subject to plaintiff’s vendor’s lien and for costs.

■ Defendants D. W. Carrington and Q. D. Phillips filed their answers disclaiming all interest in the land sued for, defendant Phillips asking that he be protected, having paid all rents due by him.

Defendant C. N. Moore filed his first amended answer February 28, 1914, disclaiming any interest in the premises sued for, and admitting that plaintiff agreed on October 1, 1912, to execute and deliver to him a deed of conveyance to the property sued for; that he agreed to pay to plaintiff $10,000 for same; that he paid plaintiff $1,000 as alleged; that he executed 60 vendor’s lien notes for the sum of $150 each and delivered same to plaintiff; that he paid the notes falling due December 1, 1912, and January and February, 1913, as alleged; that he paid the rents arising from the premises, with an additional amount of $75 each month for three months as alleged, aggregating $450; that plaintiff never executed and delivered to him a deed to said property, as it agreed to do, in fact admitting every material allegation made by the plaintiff in its amended petition, and alleging that he had performed every part of his agreement entered into with plaintiff, and that plaintiff had failed and refused to carry out its part of said agreement to execute and deliver to him a deed to said property; that plaintiff had received all rents arising from the property since October 1, 1912, except two months, being for March and April, 1913, aggregating the sum of $166.66, which amount he alleges he tendered into court; that he paid plaintiff $1,000 and the further sum of $225 in addition to rents; and that plaintiff had failed and refused to pay and return to him any part of said sum of $1,-225, but attempted to forfeit all the rights of defendant Moore in said contract, and Moore prayed judgment that title be vested in plaintiff (if necessary, and that plaintiff have judgment for any rents due since October 1, 1912, and that he have his judgment against plaintiff for $1,225 and for general relief.

Plaintiff, First State Bank, filed its first supplemental petition on February 28, 1914, in which it alleged that it was agreed that defendant O. N. Moore was to pay $1,800 before a deed was to be acknowledged and delivered to the property, and, if Moore had any equity, that he had assigned same to Carrington, and further that the $1,000 was not paid in money by C. N. Moore, but a certain equity in land was delivered to A. B. Foster and A. B. Farrington as a commission and was not worth over the sum of $500 in cash, and prayed that C. N. Moore take nothing; that Moore did not pay the $1,800, but began to convert tbé funds received from tbe rents of tbe property in controversy to bis own use and benefit.

Tbe case was tried without tbe intervention of a jury, and tbe court rendered judgment tbat tbe defendants O. D. Phillips and D. W. Carrington go hence and recover of tbe plaintiff their costs; tbat plaintiff, First State Bank of Teague, as against defendants C. N. Moore and Fred Carrington, recover tbe title and possession of the land and premises in controversy and all rents from April 1, 1913, up to and including the month of December, 1913; that defendant C. N. Moore take nothing as to the amount claimed to have been paid by him on the contract for the purchase of said land and premises; tbat tbe writ of injunction sued out be perpetuated as prayed for. The court further adjudged tbat tbe intervener, Waco Develoinnent Company, recover, subject to plaintiff’s vendor’s lien, the possession of the land and premises sued for, and as against plaintiff all costs incurred by it, and tbat Moore and tbe Carringtons take nothing as against C. D. Phillips on his lease contract, and tbat said contract be canceled. From tbe judgment tbat be take nothing, as to tbe amount paid by him on bis contract of purchase of the premises in suit, C. N. Moore has appealed.

The first assignment of error is as follows:

“The court erred in rendering judgment herein against defendant C. N. Moore and in not requiring- plaintiff, First State Bank, to refund to this defendant the amount paid plaintiff, to wit, $1,225, less $166.66, it being admitted by plaintiff that defendant C. N. Moore had paid $1,000 and also paid the further sum of $75 per month for three month's in excess of rents, same being paid as part of the purchase money for the land sued for.”

This assignment, as do the others presented, submits for our decision the question of whether or not the court erred in denying to the appellant, Moore, a recovery from the appellee, bank, under the circumstances of the case, the amount of $1,225 paid by him on his executory contract of purchase of the land involved in the suit.

This is not a suit in which there was a tender of the balance of the purchase money and prayer for the specific performance of the contract. On the contrary, appellant disclaimed any title to or interest in the land sought to be recovered, and asserted no right to specific performance, but, admitting appellee’s right to recover and repossess itself of the land, claims that, inasmuch as he bad in part performed the contract of purchase by paying a portion of the purchase money, it would be inequitable to allow appellee to retain such portion, and the trial court should therefore have rendered judgment in his favor for the same. As clearly appears, the contract between the appellant and appellee was executory, and the superior title to the land remained with appellee. Under such a contract, the vendor, upon failure of the vendee to perform according to its terms, has the right to sue for the purchase money unpaid and foreclose his uen, or he may, upon default of the vendee, rescind the contract and recover the land. Such right can only be defeated ordinarily by performance upon the part of the vendee. That this is the law of this state is too well settled to require tbe citation of authorities. If, however, there has been a part performance by the vendee, as paying a portion of the purchase money’, or taking possession and making improvements under the contract, he would be entitled to reasonable notice of the vendor’s intention to rescind. Kennedy v. Embry, 72 Tex. 387, 10 S. W. 88. After announcing tbe foregoing rule in the case just cited, it is said:

“The reason of this rule is obvious. He may be able to give a reasonable excuse for his failure to fully perform that would entitle him in equity to protection to the extent he had performed.”

But it is further held in said case that if the vendee has actually abandoned the contract, or has so acted as to create the reasonable belief on the part of the vendor that he has abandoned it, the vendor may rescind without notice of his intention, notwithstanding the part performance of tbe vendee, and convey tbe land to another.

In the case before us appellee alleged under oath that the notes executed by the appellant for the unpaid purchase money stipulated that, if appellant defaulted in the payment of any one of said notes or the interest thereon when due, the appellee could declare -all of said notes not paid at the time of such default due, and tbat upon appellant’s failure to pay tbe note which became due and payable on the 1st days of March and April, 1913, appellee, as authorized by the terms of said notes, declared all tbe purchase-money notes then unpaid due and payable; that appellee notified appellant that he had declared said notes due and payable, and that if they were not paid by the 1st of April, or a short time thereafter, his contract of purchase would be rescinded; and that thereafter on tbe 15th day of April, 1913, the appellee by proper and lawful action of its board of directors did rescind and annul said contract. Appellee also alleged, as heretofore stated, that appellant, Moore, entered into a contract with O. D. Phillips whereby he leased to tbe said Phillips the land and premises in controversy for the term of one year at $83.-33% per month payable on the 1st day of each month; that it was agreed between appellant and appellee that the rents .arising from said lease contract should be paid on said purchase-money notes; but that the appellant, Fred Carrington, and the said Phillips entered into a conspiracy to deprive appellee of said rents and refused to pay the same to appellee when the March and April notes became due. These allegations were made by the appellee under oath. They were not denied by the appellant in his answer, and must therefore, under the provisions of the statute passed by the Legislature of this state in 1913, be taken as confessed. Appellant did allege in general terms that he had performed his part of the agreement made and entered into between him and the appellee, but that he did not in fact do so is placed beyond all question by the record sent to this court. He did not testify himself, nor did he offer the testimony of any witness in support of the allegations of his answer. T. J. Alexander, called by the appellee, was the only witness who testified at the trial of the case. He testified in substance, among other things, as is alleged in appellee’s supplemental petition, that appellee did not get any part of the $1,000 claimed to have been paid by appellant on his contract of purchase; that Poster & Farrington were to have all above $9,000 they made out of the sale of the property in controversy; and that they made some kind of trade with appellant by which, they were to get from him land valued at $1,000.

We do not believe the record shows a case where the court would be authorized to say that upon principles of equity the appellee should be required to refund to appellant the portion of the purchase price paid by. him on his contract for the purchase of the land in question. That appellant failed and refused to pay the purchase-money notes maturing, respectively, March 1 and April 1, 1913, is not disputed; that he was notified by appellee that unless said notes were paid the contract of purchase would be rescinded is not denied; the allegation of appellee that he entered into a conspiracy to deprive appellee of the rents arising from the renting of the property contracted by him to be bought in violation of his agreement that said rents should be applied as a credit on the purchase-money notes is likewise not denied ; and that appellee got no part of the $1,000 sought to be recovered by the appellant, but that such an amount was only to be paid to Foster & Farrington in land as their commissions for negotiating and securing for appellant the contract made with appellee for the purchase of the land in controversy in the suit is reasonably deducible from the pleadings and the evidence. From the record therefore before us the conclusion is clearly warranted, if not irresistible, that appellant, before the institution of this suit, had abandoned his contract of purchase, or so acted as created the reasonable belief on the part of appellee that he had abandoned it, and was not entitled to recover back any portion of the purchase money paid.

The judgment of the court below is affirmed.
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author: FLY, C. J.

text:
    SMITH v. McBRYDE et al.
    (No. 5390.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 20, 1915.
    Rehearing Denied Feb. 17, 1915.)
    1. Exemptions &wkey;>45 — Property Exempt — Tools and Implements.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3785, providing that the property therein specified, including the homestead of the family, all implements of husbandry, two horses and one wagon, and all saddles, bridles, and harness necessary for the use of the family, shall be reserved to every family exempt from attachment or execution, it is not necessary to the exemption of agricultural implements that they be used in the cultivation, use, and enjoyment of a homestead, or that the owner thereof own a homestead.
    [Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 56-61; Dec. Dig. &wkey;45.]
    2. Exemptions <&wkey;45 — Property Exempt — Tools and Implements.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3785, all implements of husbandry used by a farmer in conducting his farming operations directly, and also those used by his tenants and employes, are exempt.
    [Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 56-61; Dec. Dig. i&wkey;>45.]
    3. Exemptions <&wkey;4^-ExsMPTioN Laws — Dib-eral Construction.
    Exemption laws are so favored in their construction that they are excepted from the rule that laws in derogation of the 'common law must be strictly construed, and such laws should be liberally construed.
    [Ed. Note. — For other cases, see Exemptions, Cent. Dig. § 4; Dec. Dig. &wkey;>4.]
    4. Exemptions <®=e22 — Property Exempt — Tools and Implements.
    Implements of husbandry and other articles exempted by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3785, were exempt, though the owner may have been engaged in other work besides farming.
    [Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 24r-27; Dec. Dig. <&wkey;>22.]
    •5. Exemptions <&wkey;44 — Property Exempt — Tools and Implements.
    The cart owned by a farmer, in which he rode to his farm, and the harness used in connection therewith, were exempt, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3785.
    [Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 51-55; Dec. Dig. &wkey;44.]
    6. Exemptions <3&wkey;28 — Persons Entitled — Separation of Husband and Wife.
    That a husband and his wife were temporarily or permanently residing in different parts of the state did not destroy the family and deprive it of its exemptions, under Vernon’s Sayles’ Ann. Civ. St. 3914, art. 3785.
    [Ed. Note. — For other eases, see Exemptions, Cent. Dig. §§ 31, 32; Dec. Dig. <&wkey;>28.]
    7. Exemptions <&wkey;34-9 — Actions por Damage —Amount of Reoovery.
    A party whose horses, mares, and mules, including those exempt, are attached and sold, may recover the value of any two horses, mares, or mules, but not more.
    [Ed. Note. — For other cases, see Exemptions, Cent. Dig. § 179; Dec. Dig. &wkey;?149.]
    8. Exemptions &wkey;>149 — Actions for Damage —Amount of Recovery.
    A party attaching and selling exempt property is liable for the actual value thereof, and, if the facts justify such damages, for exemplary damages.
    [Ed. Note. — For other cases, see Exemptions, Cent. Dig. § 179; Dec. Dig. <&wkey;>149.]
    9. Appeal and Error <&wkey;75G — Briefs—Citation of, Authorities.
    Parties citing cases in their briefs should always give the names of the litigants, as well as the book and page, and, where the names of the litigants are not given, should verify the numbers of the reports and pages.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3091; Dec. Dig. <®=>756J
    Appeal from District Court, Brooks County ; W. B. Hopkins, Judge.
    Action by G. W. Smith against R. E. Mc-Bryde and others. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    Jas. M. Taylor, of Corpus Christi, and Y. W. Taylor, of Alice, for appellant. John C. North, of Falfurrias, for appellees.
   FLY, C. J.

This is a suit for damages accruing to appellant by reason of the appel-lees attaching and selling certain property exempted from forced sale by the laws of Texas. The appellees are R. E. McBryde, and Henry L. Inselmann, H. C. Holbrook, and H. R. Ball, sureties on the bond for attachment. The cause was tried by jury, and resulted in a verdict and judgment in favor of appellees.

By the provisions of article 3785, Yernon’s Sayles’ Stats., there is reserved to every family exempt from attachment or execution and every other species of forced sale for the payment of debts, save the exceptions therein provided for, among other things, “all implements of husbandry',” and “two horses and one wagon,” and “all saddles, bridles, and harness necessary for the use of the family.” Among the exemptions is the homestead of the family, but it is nowhere provided that a family must have a homestead in order to have the benefit of the other exemptions. The family that does not own an acre of ground has its exemptions, as well as the one living in a palatial home. The man who rents land to cultivate would need the protection of the exemptions as to implements of husbandry, the horses and wagon, and saddles, bridles, and harness, as much or more than the man who is a landowner. It was never intended to withdraw all protection from the forced sale of implements of husbandry, if they were not used and are not necessary, as charged by the trial judge, “in the cultivation and use and enjoyment of said homestead.” There is not one word in the statute that makes the use of agricultural implements on a homestead, a condition precedent to their exemption from forced sale. The benign protection of the statute extends to poor and rich alike, to him who has nothing but the implements and the other exemptions of personal property, as well as to him who is the owner of 200 acres of land. It did not matter, therefore, whether the land owned ,by appellant was his homestead or not, the implements of husbandry used by him and his tenants on the place were exempt under the statute. It may be that it is inconsistent to hold that all the implements used on the place, when two plows, planting machines, etc., would be all that could be used with the two exempt horses; but the statute says “all implements of husbandry.” This would include all implements used by the farmer in conducting his farming operations, not only those that he might use directly, but those used by his tenants and employés.

Laws as to exemptions were passed for humane purposes, in the protection of the poor, the unfortunate, and the thriftless from cruel and insatiate creditors, who would deprive the debtor and his helpless family of even means of subsistence, to collect a debt. Such laws were unknown to the common law, under whose exercise the defaulting debtor was deemed a criminal, to be deprived af all that he had and then imprisoned. No allowance was made for misfortune, and no pity was shown to him or those dependent on him. There can be no doubt that exemption laws, like many others enacted for benevolent and humanitarian purposes, are used by the vicious and unscrupulous to evade the payment of debts to those who may have less than the debtor; but on the whole the -wisdom of such legislation has often been vindicated. Exemption laws are so favored in their construction that they are excepted from the rule that laws in derogation of the common law must be strictly construed, and the rule is laid down that they should .meet with liberal construction. Type Foundry v. Live Stock Co., 74 Tex. 651, 12 S. W. 842, 15 Am. St. Rep. 870.

Although appellant may have been engaged in other work besides farming, still the law would protect all of his implements of husbandry and other exemptions from attachments or executions. Nichols v. Porter, 7 Tex. Civ. App. 302, 26 S. W. 859; Howard v. Williams, 2 Pick. (Mass.) 80; Dowling v. Clark, 1 Allen (Mass.) 283; Eager v. Taylor, 9 Allen (Mass.) 156.

The cart and harness owned by appellant in which he rode to his farm would be exempt. Cone v. Lewis, 64 Tex. 331, 53 Am. Rep. 767.

The fact that appellant and his wife were residing in different parts of Texas, whether temporarily or permanently, did not destroy the family and deprive it of its exemptions. Shook v. Shook (Tex. Civ. App.) 145 S. W. 682.

Appellant under the law can recover the value as damages of any two horses, mares, or mules he may select from those upon which the attachment was placed, but under the exemption statute he could not recover for the value of more than two of the animals.

If appellee attached the exempt property, he is liable for the actual value of the property; and if the facts justify it he will be liable for exemplary damages. We cannot ascertain from the third assignment of error, or from tlie bill of exceptions on which, it is based, that other parties were tort-feasors with appellee, and the pleadings fail to allege a conspiracy, or that there were joint tort-feasors. If appellant desires to join any other party as defendant, he must plead the necessary facts. There must be pleadings, as well as facts, to charge a person with damages.

The brief of appellant has not been prepared so as to assist the court, and a number of the assignments of error could not be considered, because prepared in total disregard of the rules. The cases cited are described only by the report and page, the style of the cases being omitted, and the result has been that this court, not finding the case in the report at the page mentioned, has been unable to consult same. Had the parties been named, the court could probably have discovered the eases. The names of the litigants, as well as booh and page, should always be given, and, as they were not given in this case, some attention should have been given to verifying the numbers of reports and pages. This court has sufficient labor to perform, without being compelled to perform labor that devolves upon attorneys for the parties.

The judgment is reversed, and the cause remanded.
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author: CARL, J.

text:
    RIO GRANDE & E. P. RY. CO. v. TEXAS-MEXICAN RAILWAY CO.
    (No. 5370.)

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 20, 1915.
    Rehearing Denied Feb. 17, 1915.)
    1. Carriers <§=>26 — Control and Regulation — Through Rates — Interstate Commerce Commission.
    The rulings of the Interstate Commerce Commission permit a railroad to take advantage of through rates in hauling its own property, but require that the carriage be in good faith, with intention to use the property at the point where the transit ends.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 67-82; Dec. Dig. <®=»26J
    2. Carriers <§=>26 — Control and Regulation' — Rates.
    In intrastate commerce, a railroad may not have the benefit of through rates on its own line in the carriage of its own property apart from the contract.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 67-82; Dec. Dig. <§=>26.]
    3. Carriers <§=329 — Connecting Carriers— Division oe Receipts.
    Plaintiff and defendant were connecting railroads. Defendant loaded coal for plaintiff’s use at mines at Minera billed through to Pescadito and hauled it 26 miles to Laredo, ■whence plaintiff took it to be hauled 18 miles to Pescadito, on its line, but actually used much of it at Laredo, either stopping the coal there or hauling it to Pescadito and back. In October, 1912, defendant railroad began to require the mining- company at Minera, which acted as agent for the plaintiff road, to prepay the 80-eent through rate on coal from Minera to Pescadito. Thereafter, on complaint of the plaintiff road, the State Railroad Commission ordered a division of the through rate receipts from the traffic in the ratio of 65 cents • to the defendant and 55 cents for plaintiff, the local rates of the two companies from Laredo. Weld that, in a suit to recover from defendant road the amount due on past transactions under such ruling, it having been retaining out of the 80-eent rate its full local rate, to Laredo, plaintiff could not recover for carriage of coal hauled by it to Pescadito and then back to Laredo; such transactions not calling for division of the receipts under the Commission’s ruling, nor for switching charges on cars stopped by it at Laredo.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 80; Dec. Dig. <§=>29.]
    Appeal from District Court, Webb County ; J. F. Mullally, Judge.
    Action by tbe Texas-Mexiean Railway Company against the Rio Grande & Eagle Pass Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    A. Winslow, of Laredo, for appellant. Greer & Hamilton, of Laredo, for appellee.

       Writ of error pending in Supreme Court.

   CARL, J.

Appellee, Texas-Mexican Railway Company, and appellant, Rio Grande & Eagle Pass Railway Company, are connecting railways at Laredo. Appellee’s line extends from Laredo east to Corpus Christi, about 160 miles distant; and appellant’s line of road extends from Laredo up the river northwest, about 26 miles to Minera, a point where the Santo Tomas Coal Company operates coal miles. From this coal company the ap-pellee buys its coal for its shops and engines, and ships same over the appellant railway to Laredo, where same is delivered to ap-pellee’s road. The siding, called Pescadito, is about 18 miles east of Laredo, on appel-lee’s line. At that place there is no station agent or office, no coal bins, and, in fact, nothing but a section house and a switch with a capacity to hold about 33 cars. From Minera to Pescadito the Railway Commission of Texas had fixed a through rate of 80 cents per ton on coal, which was apportioned to the parties herein according to their respective local rates of 65 cents per ton for appellant and 55 cents per ton for appellee.

The railways had differed as to the freight charges on shipments made from Minera to Pescadito, appellee contending that it was entitled to a division of the 80 cents through charges, while appellant claimed that, since the coal was at home when it reached ap-pellee’s line at Laredo, it was entitled to charge its local rate of 65 cents per ton, and that the mere fact that the coal was hilled through to Pescadito did not entitle appellee to a division for hauling its own coal. It was further contended that nearly all of the shipments billed to Pescadito from Minera were, in fact, stopped at Laredo, and were never intended to be taken to Pescadito, and that those which were hauled to that point were brought back to' Laredo. So about Oe-tober 29, 1912, appellant railway began requiring tlie Santo Tomas Coal Company, which was acting as agent for tbe Texas-Mexican Railway in tbe shipment of its coal to Pescadito, to prepay the 80 cents through rate charges between the two points, and continued thereafter so to require freight charges to be paid in advance.

The petition alleges that the total tonnage for the 17 months beginning October 29, 1912, and ending March 1, 1914, was 18,286.22, on which appellee paid the gross sum of §14,616.-60, at the rate of 80 cents per ton.

By its order of date February 24, 1914, the Railway Commission of Texas divided the 80 cents per ton theretofore existing on the basis of the local rates aforesaid of 65 cents and 55 cents per ton, which resulted in 43.3 cents to appellant and 36.7 cents to appellee.

Appellee brought suit on three counts for damages: •

(1) It prayed for the 36.7 cents part of the 80 cents through rate, amounting to §6,400.11.

(2) It prayed for 36.7 cents per ton on all coal actually hauled to Pescadito, and $2.50 per car switching charges on those cars stopped at Laredo, as well as for 15 cents per ton of the prepaid freight on cars so stopped at Laredo. Under this count the amount claimed was §5,220.58. This is the count upon which the court rendered judgment. Special exceptions were sustained to the first and third counts, the latter of which charged unlawful discriminations, etc., and sought to recover penalties.

Appellant admitted that it owed appellee $2,281.99 upon cars of coal billed to Pescadi-to, and on which it had collected 80 cents per ton through rate from Minera, and says it offered to pay that amount before the suit was filed, but appellee demanded 40 cents per ton or an equal division. It is also charged that said billings to Pescadito were fraudulently made by appellee for the purpose of getting -25 cents per ton more than it was entitled to receive; and, in substance, that the billing to Pescadito was a mere subterfuge to avoid appellant’s local rate on coal from Min-era to Laredo which is 65 cents per ton. It was also pleaded that appellee was not entitled to a prorate for hauling its own coal on its own road; that it was not entitled to switching charges for handling its own coal on its own switches; and that appellant was entitled to charge its local rate of 65 cents from Minera to Laredo.

The 21 assignments of error, when brought to the last analysis, may be discussed under three propositions, viz.: (1) That no railway company is entitled to a revenue pro rata for hauling its own coal on its own line of railway; (2) that no railway company is entitled to charge for switching its own coal on its own switches; (3) that the court erred in refusing to permit appellant to show the construction placed by the Railway Commission on its order No. 1427, and that suclj construction is the only reasonable construction to be placed thereon.

Some of the cars of coal were carried through to Pescadito,- and some were stopped at Laredo without advising appellant thereof, nor was any offer made to change the billing. By billing coal to Pescadito from Minera, ap-pellee gets a larger division of revenue prorate than it would by billing to any other point on its line. There were 271 cars, with a total tonnage of 10,146.392, and with freight charges of §8,080.37, hauled through to Pescadito, and 211 cars, with 8,157.81 tons, and $6,526.-23 in freight charges, that were stopped off at Laredo, and never carried to Pescadito, although billed to that place.

The coal stopped at Laredo was used in coaling engines to go on appellee’s line, and in coaling its switch engines, and at the roundhouse and shops in Laredo owned by the National Railways of Mexico, where the engines in use by appellee were housed and repaired. Out. of a shipment to Pescadito in September, 1913, one car containing 264 tons was stopped at Laredo, and there delivered to the National Railways of Mexico, at its request, and 2 cars out of 42 contained in the February, 1914, billing to Pescadito were returned from that point to Laredo and sold to the National Railways of Mexico. A large per cent, of the other cars actually sent to Pescadito were returned to Laredo and there used by appellee. Pescadito was used by appellee as a distributing point, and it had coal bins at Corpus Christi, Robstown, Alice, and I-Iebbronville. The only coal parceled out at Pescadito was what an occasional engine on appellee’s line would take if it happened to need it to get to a coaling station. Ap-pellee had an arrangement with the National' Railways of Mexico at Laredo whereby the latter company paid 85 per cent, of the cost of switching service; the items of that expense being coal, lubricating oil, and grease, as well as the wages of switchmen. The items so charged, and including the 3 cars of coal and 216.85 tons of coal used in operating the shops, amounts to $12,525.36.

Appellant has paid appellee no part of the 80 cents per ton collected on said shipments, but has indicated a willingness, before the suit was filed, and since, to pay 15 cents per ton; and has paid no switching charges on said cars of coal.

The Railway Commission had fixed $2 as the switching charge allowable at Laredo, because it was more than one, and less than two, miles. This was a general order-applying to all places where interchanges of freight between roads were made, where made in ear load lots.

As before stated, these railways had been disagreeing about the proper division of rates between Minera and Pescadito, and that culminated in the matter being taken before the Railroad Commission of Texas as to S cars of coal not involved in this suit. The Texas-Mexican Railway addressed the following communication to the Commission:

“177.
“July 28, 1913.
“To the Honorable Railroad Commission of the State of Texas, Austin, Texas — Dear Sirs:
“The Texas-Mexican Railway Company, complaining of the Rio Grande & Eagle Pass Railway Company, respectfully submits the matters hereinafter set forth constituting a disagreement between said companies and requests that the same be placed upon your docket for hearing' at your earliest convenience.
“The through rate upon shipments of coal from Minera, Texas, a point upon the Rio Grande & Eagle Pass Railway, to Pescadito, Texas, a point upon the Texas-Mexican Railway, is eighty (80) cents. That the ‘common division’ of 'this amount upon through shipments of coal between Minera, Texas, and Pes-cadito, Texas, would be forty (40) cents to each road. That the following shipment as hereafter set forth in detail and as more fully appears by the copies of bills of lading attached hereto and also copies of billing covering the shipments from Laredo to Pescadito, and which are made a part of this application and marked Exhibit A, were shipped on through bills of lading from Minera, Texas, to Pescadito,_ Texas : [Here follows markings, dates, and billings of eight ears of coal from Minera to Pescadito.]
“Which said shipments of coal as above set forth were afterwards distributed by the Texas-Mexican Railway Company as fully appears in the following statement, and as shown by copies of billing covering hereto attached and marked Exhibit B: * * *
“That the said Rio Grande & Eagle Pass Railway Company required the shippers to prepay the freight upon said shipments and upon a division of the rates between the two companies arbitrarily retained as their proportion thereof sixty-five (65) cents per ton, which is their special rate on coal from Minera, Texas, to Laredo, Texas, and which is ten (10) cents higher than the regular rate, leaving and allowing the Texas-Mexican Railway Company fifteen (15) cents per ton upon their haul from Laredo to Pescadito. This company has specifically requested the Rio Grande & Eagle Pass Railway Company to allow it its just proportion of the through rate upon said coal, which proportion would be forty (40) cents per ton. The Rio Grande & Eagle Pass Railway Company has declined to allow the Texas-Mexican Railway Company this proportion of the through rate, and intimates that it purposes in the future to continue to collect and retain upon all shipments of coal make between Min-era, Texas, and Pescadito, Texas, the sum' of sixty-five (65) cents per ton, and only allow the Texas-Mexican Railway Company fifteen (15) cents per ton upon such through shipments.
“The Texas-Mexican Railway Company desires a ruling from your honorable body whether it is entitled to a division of the through rate upon company coal shipped from Minera, Texas, and which coal actually moves to Pes-cadito, Texas, and we would be pleased to have this ruling cover all shipments of company coal moving from Minera, Texas, to Pescadito, Texas.
“Very truly yours,
“C. M. Fish, G. F. A.”

A hearing was had, and the Railroad Commission made its order as follows:

“Austin, Texas, February 24, 1914.
“Hearing No. 1427.
“Division, Coal, Car Loads from R. G. & E. P. Points to Texas-Mexican Ry. Points.
“The above numbered and entitled cause having been called for hearing by the Commission at its October term, 1913, upon notice duly given therein under date of July 31, 1913, the same being a disagreement between the interested carriers as to the division of the through revenues accruing for the transportation of the shipments covered by the said notice herein, and the Commission having heard the arguments and statements presented by the parties interested, and having duly considered the same:
“It is now hereby ordered by the Railroad Commission of Texas that the revenue accruing under the freight rates applicable for the transportation of the shipments in question, the same being ear load shipments of soft coal from Minera, Texas, to Pescadito, Texas, shall be divided between the carriers participating in the haul thereof, in proportion to the local rates of said companies actually moved; the local rates to be used as factors being as follows :
“For the Rio Grande & Eagle Pass Railway Company, sixty-five (65) cents per ton.
“For the Texas Mexican Railway Company, fifty-five (55) cents per ton.
“[Signed] William D. Williams,
“Earle B. Mayfield, “Commissioners.
“E. R. McLean, Secretary.”

It will be noted by an inspection of the complaint and order thereon that there is nothing therein to indicate that same applies to anything but commercial shipments. The right to charge for hauling its own coal and of fraudulent billing for the purpose of working a discrimination seems not to have been at issue there. If those questions were before the commission, that body did not pass on them, but, instead, made a division of the through rate charge of 80 cents per ton, which applied to all the coal shipments between said points. Some of those eight cars went to Robstown, Corpus Christi, and Alice. The rate between Minera and Pescadito on commercial shipments is not before us, for no complaint is made as to that. Appellee went into court and sued appellant for what it claimed was its part of the through rate on coal that admittedly belonged to appellee, and when that suit was brought appellant certainly had the right to make its defense. If it were any part of the Railroad Commission’s duty to collect freights wrongfully withheld, then, of course, it would have been the duty of appellee to have gone to that body for relief; and if, in adjusting and fixing rates so as to prevent discrimination, etc., it should appear by “clear and satisfactory evidence” that an injustice were done, resort might be had to the courts as against the Commission. The venue in that case would be at Austin, and the purpose of such a suit would be widely different from the case at bar.- Here the charge is made that appellant has withheld the proportion of freight due appellee under the rule fixed by the Commission, and appellant defends by saying that: “You are defrauding us, and have no right to a prorate under that rule.” The same Commission that fixed the through rate from Minera to Pescadito likewise fixed appellant’s local rate of 65 cents from Min-era to Laredo. No attack is made on either rate, that it is unreasonable, but here the point is that the through rate does not apply, because the appellee was hauling its own property, and that property was “at home” when it reached appellee’s line at Laredo. The rulings of the Interstate Commerce Commission seem to be to the effect that a railway may take advantage of a through rate in hauling its own property, but even there, as we gather, it must be done in good faith. In other words, that road must in good faith intend to use the property at the point to which the rate applies. Then all that part of the through rate accruing on its own line is merely “absorbed”; that is, no account is taken of same in the earnings of the road.

If we apply that rule, then appellee is not entitled to its prorate on the shipments in question, because it is manifest and practically admitted that it did not intend to use the coal at Pescadito. There was no place to use it. It was either stopped in Laredo or taken to Pescadito and then brought back to Laredo, for the manifest purpose of getting 25 cents per ton that rightfully belonged to appellant road.

If a railway should be permitted to take advantage of through rates when the commodity is its own property and hauled partially over its own line, and then absorb the proportionate part of the freight on its own line, that would, it seems to us, be a ■discrimination in favor of the railroad, because it does not have to account for that freight in its earnings. But, however that may 'be, it is the holding of this court that, on intrastate business, a railway may not have the benefit of through rates on its own line, and on its own property, in the absence of •contract.

It is contended by appellee that, if it is not entitled to the benefit of the through rate on the coal which was not taken to Laredo, it would be entitled to the $2 switching charge on each of the 211 cars stopped there. This coal belonged to appellee, and appellant’s duty was to deliver that coal to appellee at Laredo. This it did. Then why .should the Rio Grande & Eagle Pass Railway be concerned about what the Texas-Mexican Railway did with it after it came in possession of the coal? Its duty was to haul the the coal to Laredo, and, when it delivered the coal to appellee, it was totally immaterial what that railway did with it. Its contract was not to deliver it to the International & Great Northern Railway Company shops nor to the National Railways of Mexico. When a farmer buys a load of corn to be delivered at San Antonio, for instance, he must go to the car on the tracks and get it, unless he desires to pay for switching it to a more suitable place than the regular and customary place of delivery. The Texas-Mexican Railway pretended that it wanted this coal at Pescadito, in which event the switching charges would not obtain. But it turns out that it wanted it at Laredo. Appellee forgets, however, that appellant made no agreement to deliver this coal at any of the points where switching was necessary. When appellant pulled the coal to appellee’s line at Laredo, there is no reason, either in law or good conscience why it should, in the absence of agreement to deliver to a certain point, be required to pay for hauling the coal over any part of appellee’s line. If the coal had been sold to a private dealer, he would have come to appellant’s tracks and got it, unless he had made a contract to have it delivered over at the National Railways of Mexico. The Railroad Commission has fixed a switching rate where the switching is necessary to be done; but that does not mean that every car shipped into Laredo has to pay a $2 switching charge. When that coal reached the tracks of appellee, it was delivered, in the absence of an agreement to deliver it elsewhere; and it did not matter if the appellee hauled it to Corpus Christi. That is a matter of no concern to appellant.

Since the evidence shows conclusively that appellee was not entitled to anything for what it hauled to Pescadito and returned to Laredo, and since we have held that it was not entitled to switching charges on 211 cars stopped at Laredo, we shall reverse the judgment of the trial court, and here render judgment that appellee recover the 15 cents per ton on prepaid freight on 18,304.2 tons, aggregating $2,745.63, and otherwise that it recover nothing except the costs of the lower-court which are adjudged against appellant because it does not appear that a tender of the amount due was made before suit was filed. A willingness to pay the 15 cents had been expressed, but that was all.

Assignments Nos. 13, 14, 15, 16, 18, and 20 are sustained, and this makes it unnecessary to pass upon the other assignments.

Reversed and rendered.
      <g=3Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    AVENT v. ORMAND.
    (No. 5349.)
    (Court of Civil Appeals of Texas. Austin.
    June 10, 1914.
    Rehearing Denied Nov. 18, 1914.)
    Set-Oee and Counterclaim <S=^>29 — “Counterclaim’ ’ — U NLIQUIDATED DEMAND — SAME Transaction.
    Rev. St. 193.1, art. 1329, provides that, if plaintiff’s cause of action be a claim for un-liquidated or uncertain damages founded on tort or breach of covenant, defendant shall not set off any debt due him by plaintiff, and, if suit is founded on a certain demand, defendant shall not be permitted to set off unliquidated, or uncertain damages founded on tort or breach' of covenant on the part of plaintiff. Article 1330 declares that nothing in the preceding article shall be so construed as to prohibit the defendant from pleading in set-off any counterclaim, founded on a cause of action arising out of oi incident to or connected with plaintiff’s cause of action. Held that, where defendant purchased real property from plaintiff on September 9, 1911, which was conveyed to him on that date, and on October 21st following defendant purchased certain personal property from plaintiff, for which he executed notes on which plaintiff subsequently sued, a breach of plaintiff’s covenant of warranty, consisting of his failure to deliver possession of a part of the land, did not arise out of the same transaction as the notes for the personal property, nor was it connected with plaintiff’s cause, of action on the notes, and hence defendant’s claim for unliqui-dated damages for breach of such covenant was unavailable as a counterclaim against the notes (citing Words and Phrases, vol. 2, pp. 1645, 1646).
    [Ed. Note. — Eor other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 49-51; Dec. Dig. <®=»29J
    Appeal from Hamilton County Court; J. D. Lewis, Judge.
    Action by G. W. Avent against J. W. Or-mand. From a judgment in favor of defendant on a counterclaim, plaintiff appeals.
    Reversed and rendered.
    Langford & Chesley, of Hamilton, for appellant. Eidson & Eidson, of Hamilton, for appellee.
   RICE, J.

Appellant brought this suit against appellee to enforce the collection of two notes, of date October 21, 1911, the first for $167.50, due January 1, 1912, and the other for the sum of $85, due the 1st of January, 1913, with interest and attorney’s fees, both of which were given in payment for certain personal property sold by appellant to appellee on said 21st of October, 1911, and, with the exception of $58.82 paid on the larger note on the 1st of February, 1912, both were past due and unpaid at the time suit was filed.

Appellee admitted appellant’s cause of action as under rule 31, except as the same might be defeated in whole or in part by the facts stated in his answer, and pleaded in counterclaim that on the 9th of September, 1911, he had purchased from appellant a certain tract of land, situated in Hamilton county, containing in the1 aggregate about 536 acres, composed of several tracts, which had been on said date conveyed to him by appellant by general warranty.deed; that at the time of said conveyance one Appleby was in possession of 70 acres thereof, and so continued in possession during the entire year 1912, whereby he was deprived of the use thereof, by reason of which he was damaged in the aggregate sum of $1,250; further alleging that, as a part of the same transaction, he purchased certain personal property from appellant, and executed the note sued on for the purchase price thereof, and that said personal property would not have been purchased had not defendant purchased said real estate, and said notes would not have been executed had not said defendant purchased said real estate; that his counterclaim, as above set out, is incident to and connected with plaintiff’s cause of action, and both claims and demand involved in this suit arose out of the same transaction.

Appellant filed a general and several special exceptions to said counterclaim, all of which were overruled by the court. A jury trial resulted in a verdict and judgment in behalf of appellee on his counterclaim in the sum of $622, from which the court deducted the amount due plaintiff on the notes, leaving a balance of $251.14, for which judgment was rendered for appellee, from which appellant prosecutes this appeal, assigning numerous errors, only one of which needs to be considered, and is to the effect that the court erred in not sustaining plaintiff’s first special exception to defendant’s answer and cross-action, for the reason that plaintiff’s, cause of action was founded on a certain demand, and against which it was not permissible, under our statute, to plead unliq-uidated or uncertain damages founded on a, tort or breach of covenant on the part of plaintiff, unless the same was founded on a cause of action arising out of, or incident to, or connected with, the plaintiff’s cause of action.

We think this exception was well taken, and should have been sustained, because it appears from the pleadings that the notes sued on were executed on the 21st of October, 1911, and that appellee’s counterclaim arose out of an entirely different transaction — to wit, the conveyance of the land to him — which was completed on the 11th of September, prior thereto. It is true, as above stated, that appellee did allege that, as a part of the same transaction, he purchased the personal property - from plaintiff for which the notes were executed, and that he would not have purchased the same had he not purchased the real estate, and said notes would not have been executed had he not purchased said real estate. He also alleged that the claim sued on herein by him was incident to, and connected with, the plaintiff’s cause of action, and that both his and plaintiff’s demand arose out of the same transaction; but these were mere conclusions on the part of the pleader, and the facts alleged by him show the contrary, and no facts were set out showing that the two transactions were the same, or that they were incident to or connected with each other.

It is provided by article 1329, R. S. 1911, that, if the plaintiff’s cause of action be a claim for unliquidated or uncertain damages founded on a tort or breach of covenant, the defendant shall not be permitted to set off any debt due him by the plaintiff, and, if the suit be founded on a certain demand, the defendant shall not be permitted to set off unliquidated or uncertain damages founded on a tort or breach of covenant on the part ■of the plaintiff. It is also provided in the succeeding article (1330, Id.):

' “Nothing in the preceding article shall he 'so construed as to prohibit the defendant from pleading in set-off any counterclaim founded on a cause of action arising out of or incident to, or connected with the plaintiff’s cause of action.”

In the present case the plaintiff’s cause of action was founded on a certain demand. Hence the defendant could not set off his un-liquidated claim for damages founded on a breach of covenant, unless it appeared that said counterclaim was founded on a cause of action arising out of, incident to, or connected with, the plaintiff’s cause of action, which was not shown; but, on the contrary, the record discloses that there were two sep- , arate and distinct transactions, for which reason the one could not be set off as against the other. See Brooks Tire Machine Co. v. Shields, 48 Tex. Civ. App. 531, 108 S. W. 1005; Pittman v. Keith (Civ. App.) 24 S. W. 88; Carothers v. Thorp, 21 Tex. 358; Words and Phrases, vol. 2, pp. 1645, 1646; 34 Cyc. 678, wherein it is said:

“But defendant cannot recoup for matters not connected with the basis of plaintiff’s claim, and which are founded upon an independent and distinct contract or transaction.”

Believing that the court erred in overruling appellant’s said exception to appellee’s counterclaim, and as a review of the evidence shows that the transaction upon which appellee bases his counterclaim was entirely separate and distinct, and in no way incident to or connected with the transaction upon which plaintiff’s cause of action is founded, it becomes our duty to reverse and render the case in favor of appellant for the amount of said notes, together with interest and attorney’s fees, without prejudice, however, to. any right appellee may have to bring another suit for damages arising out of the alleged breach of contract on the part of appellant; and it is so ordered.

Reversed and rendered.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g=^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes