author: KEY, C. J.

text:
    RUMELY PRODUCTS CO. v. MOSS.
    (No. 5434.)
    (Court of Civil Appeals of Texas. Austin.
    March 4, 1915.
    Rehearing Denied April 21, 1915.)
    1. Fraud <&wkey;52 — Buyer’s Action for Damages — Evidence.
    In an action for damages on account of a seller’s false representations in the sale of a thresher for threshing a crop of peas, evidence that the buyer wrote and mailed a letter to the seller complaining of defects in the thresher, which letter he did not then have, was admissible as showing his good faith and diligence in notifying of the defects.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 48; Dec. Dig. <&wkey;52.]
    2. Sales <&wkey;85 — Notice of Defects — Sufficiency.
    Under a written contract for the sale of a thresher, stipulating that notice of defects should be given the seller by registered letter, the requirement of registration was intended to secure prompt notice to the seller, and if it received timely, notice by an unregistered letter there was a substantial compliance with the contract.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 236-238; Dec. Dig. &wkey;85.]
    3. Fraud &wkey;>58 — Sale of Thresher — Notice of Defects — Sufficiency.
    In an action for damages from a seller’s false representations as to a thresher, the buyer’s uncontradicted evidence that he had written and mailed a letter to defendant notifying of defects was sufficient to show that such written notice had been given to the seller.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 55-59; Dec. Dig. &wkey;58.]
    4. Fraud <&wkey;50 — Buyer’s Action for Damages — Burden of Proof.
    In an action for damages from misrepresentations in the sale of a thresher, on the ground that the seller did not deliver the machine contracted for, it was not necessary to prove notice to the seller of defects, as required by the written warranty.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 46, 47; Dec. Dig. &wkey;^50.]
    5. Appeal and Error i&wkey;1050 — Harmless Error — Admission of Immaterial Evidence.
    In such case the court’s admission of proof of the immaterial fact that the buyer had given notice of defects as required by the warranty, was not ground for reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. &wkey;1050.]
    6. Appeal and Error &wkey;1051 — Harmless Error — Admission of Evidence.
    In such action, where it was clearly shown that a person whom the buyer had requested to notify the seller of defects was the seller’s agent, error, if any, in allowing the buyer to testify that such person had said he was defendant’s agent, was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. <&wkey;> 1051J
    7. Fraud &wkey;>32 — Buyer’s Warranties — Action for Damages.
    A buyer, who by false representations is induced to purchase machinery sold under a written contract containing certain warranties, is not restricted to an action on the written contract, but can sue on the antecedent fraud by which the contract was procured.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 28; Dec. Dig. <&wkey;32.]
    8. Fraud <&wkey;59 — Buyer’s Action for Damages — Measure.
    In an action against a seller for damages on account of false representations made in sale of thresher for the purpose of threshing peas, as known to the seller, on the ground that it would not thresh peas and that the part known as the pea-thresher attachment was not delivered until the entire crop was lost, the measure of damages would be tbe price of the peas and the expense the buyer incurred in attempting to thresh them with the machinery furnished, less the expense he would have incurred in threshing and marketing them, what he could have sold the unthreshed peas for, and whatever benefit he derived from the crop in the fertilization of his land.
    [Ed. Note. — For other cases, see Fraud, Gent. Dig. §§ 60-62, 64; Dec. Dig. <&wkey;>59.]
    9. Fraud <&wkey;60 — Buyer’s Action for Damages — Elements of Compensation.
    In such case, the buyer was not entitled to recover the ordinary expense of threshing, preserving, and marketing the peas, since he would have been subject to that expense, even if there had been no misrepresentations as to the thresher furnished by the seller.
    [Ed. Note. — For other cases, see Fraud, Cent.. Dig. § 65; Dec. Dig. <&wkey;>60.}
    10.Fraud <&wkey;50 — Buyer’s Action for Damages — Burden of Proof.
    In such case, the burden was upon the-buyer, and not upon the seller, to furnish the proof necessary to enable the court to deduct the ordinary and necessary expense of threshing and marketing the crop of peas from the damages claimed, based on a total loss of the crop and the money spent in trying to operate the thresher.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 46, 47; Dec. Dig. <&wkey;>50.]
    Appeal from District Court, Hamilton. County; J. H. Arnold, Judge.
    Action by T. H. Moss against the Rumely Products Co. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Burgess, Burgess, Chrestman & Bundridge, of Dallas, Eidson & Eidson, of Hamilton,, and Sadler & Cobb, of Gatesville, for appellant. Langford & Chesley, of Hamilton, for appellee.
   KEY, C. J.

Appellee brought this suit against appellant for damages on account of false representations alleged to have been made by appellant in negotiating a sale of a thresher purchased by appellee for the purpose of threshing and preparing for market a crop of peas. In his petition the plaintiff alleged, in substance, that the defendant, at the time of the purchase of the machinery,, had notice of the fact that the plaintiff was buying it for the purpose of threshing a crop of peas to be grown for the market upon 55 acres of land. It was alleged that the plaintiff believed and reíied upon the representations made by the defendant’s agent to the-effect that the machinery sold and contracted for would properly thresh peas; that these representations, in point of fact, were untrue; and that the machinery would not thresh peas, and, as a result of its failure to do so, the plaintiff lost his entire crop of peas, etc. He filed a trial amendment, in which he alleged, in substance, that the machinery known as the pea attachment, and which the defendant contracted to deliver to him, was never in fact delivered until the-plaintiff’s entire crop of peas was destroyed.

The defendant’s answer contained a general demurrer, and admission of some and a denial of other facts alleged in the plaintiff’s petition. It admitted that it was a corporation; that it sold to the plaintiff a certain Gaar-Scott separator, with pea attachment. It denied making the representations set out in the plaintiff’s petition, and pleaded the terms of a written contract, and alleged that the only representations made by the defendant were contained in that contract, in a warranty clause therein, and averred that its liability was limited by the terms of the written contract, and that the plaintiff had not performed the obligations resting upon Mm under the contract, and therefore was not entitled to recover damages. It also denied that it had any notice of the fact that the plaintiff contemplated planting and raising 55 acres of peas, or any other quantity, to be sold upon the market, and was purchasing the machinery for the purpose of threshing any such quantity of peas.

The case was tried by the court without a jury, and judgment rendered for the plaintiff for $1,728; and the defendant has appealed.

The first and second assignments of error complain of the rulings of the trial court in admitting certain testimony. Under those assignments appellant submits this proposition:

“In an action for breach of warranty of machinery, where the written warranty provides the method for giving notice to the warrantor of defects in the machinery, the method so provided must be followed, and no other method will avail.”

In that proposition, and in many other assignments and propositions submitted in appellant’s brief, appellant treats the case as a suit upon a written warranty, and a sufficient answer is that the plaintiff does not base his suit upon a written warranty, but upon false representations by which he was induced to enter into the contract, and upon the further allegation that the defendant failed to deliver the machinery contracted for.

The other proposition submitted under the two assignments referred to is that secondary evidence is not admissible to prove the contents of a writing until a proper excuse is shown for failure to produce the writing itself. This relates to the action of the court in permitting the plaintiff to testify- that he had written a letter to the defendant, notifying it that the pea attachments had not been received, and that he would soon be ready to thresh his peas, and also that he requested J. F. Chenault to write to the company and request them to forward the pea attachment at once. The objections to the testimony, as disclosed by the assignments of error, were as to the letter written by the plaintiff, because the written contract required notice to be given by registered letter, which the witness stated was not done, and because it was not shown that the defendant had received the letter, and no predicate had been laid for the introduction of secondary evidence.

As to the letter written by Chenault, it was objected to because it was not shown that he was the defendant’s agent, and because' that method of giving notice was not in accordance with the requirements of the written contract, and because it was not shown that the Rumely Products Company, of La Porte, Ind., had received any letter from Chenault on behalf of the plaintiff. As the plaintiff was not suing upon the written contract, we have already held that be was not bound by its terms, and therefore he was not required to give notice in the manner therein stipulated. The plaintiff testified that he mailed the letter he wrote to the defendant at La Porte, Ind., which is shown to have been its headquarters or home office. It is reasonably certain from the testimony that the plaintiff did not have the letter and could not place it in evidence, and therefore we think it was competent for him to testify that he wrote it, as tending to show his good faith and his diligence. Besides, while the written contract stipulated that notice should be given by registered letter, we think the requirement that the letter should be registered was intended for the purpose of securing prompt notice to appellant ; and therefore, if it received timely notice by a letter that was not registered, we think that method of notice would be a substantial compliance with the contract. The defendant offered no evidence tending to show that the letter referred to was not received, and therefore we think the evidence offered by the plaintiff was not only admissible, but was sufficient to show that written notice had been given' to the defendant.

However, if we are correct in our holding that the plaintiff was not bound by the written contract stipulating for notice, then he was not required to give any notice, but could maintain his suit upon the theory upon which it was predicated in his petition, and that was the failure of the defendant to deliver the machinery contracted for. The stipulations in the written contract which were invoked by the defendant do not apply to the failure of the defendant to deliver the machinery contracted for, but undertake to prescribe the duties and obligations of each party after the machinery had been delivered. Hence we hold that it was not necessary for the plaintiff to prove that he had given the defendant written notice concerning the machinery. That testimony was not objected to as being immaterial, and if such objection had been made we would not reverse the case merely because the court may have permitted proof of that immaterial fact.

As to the letter written by J. F. Chenault, addressed to the defendant at Dallas, Tex., we think it is sufficient to say that the proof shows that, at the time that letter was written, Chenault was appellant’s agent, and it was received at Dallas, Tex., by appellant’s general manager.

The third and fourth assignments complain of the action of the trial court in permitting the plaintiff to testify that J. F. Chenault told the witness that he was appellant’s agent and solicited his patronage. Under those assignments appellant submits the proposition that agency cannot be proved by the declarations of the agent, when the principal is not shown .to have acquiesced therein. The correctness of that proposition may be conceded; but, as Chenault’s agency was clearly proved by bis own testimony upon tbe witness stand, we decline to bold that those assignments show reversible error.

What has already been said disposes of appellant’s fifth, sixth, seventh, eighth, and tenth assignments of error.

Appellant’s eleventh assignment complains of the action of the court in permitting the witness to testify as to the market value of the peas, concerning which we deem it sufficient to say, without setting out the testimony in full, that in our opinion the witness qualified himself to testify as to market value.

The fourteenth assignment is in the main a recapitulation of assignments and contentions already urged, and that assignment is overruled. ' /

It is earnestly insisted in appellant’s brief that the measure of the plaintiff’s damages is limited and restricted by the written contract of warranty, and that the plaintiff was not entitled to recover the market value of his crop of peas, even though as a result of appellant’s breach of the contract he may have lost the entire crop. Controverting that contention, counsel for appellee submits the following counter proposition:

“Where a plaintiff, by false representations, was induced to purchase machinery which was' sold on written contract containing certain warranties in a suit against the, seller for damages, the plaintiff is not restricted to an action on the written contract, but can base his suit on antecedent' fraud by which the contract was procured.”

In support of that contention Jones v. George, 61 Tex. 345, 48 Am. Rep. 280, Cobb v. O’Neal, 2 Sneed (Tenn.) 438, Blythe v. Speake, 23 Tex. 429, and 14 Cyc. 29 and 30, are cited. We sustain the contention urged on behalf of appellee, and hold that the measure of damages in this case is not limited to the remedies stipulated in the written contract ; and we also hold that if, at the time the contract of sale was made, the defendant had notice of the fact that the machinery contracted for was intended to be used for the purpose of threshing a crop of peas, which the plaintiff contemplated growing for the market, and that such machinery was necessary for that purpose, then, if the plaintiff is entitled to recover, the measure of his damage will be the market price of the peas and the expense he incurred in attempting to thresh them with the machinery that was furnished, less the expense he would have incurred in. threshing, preserving and marketing them, and less whatever amount, if any, he could have sold the unthreshed peas for, and whatever benefit, if any, he derived from the pea crop in the way of fertilization of his land. In Cobb v. O’Neal, supra, the court said:

“A purchaser of goods, who has been induced to make the purchase by false and fraudulent representations by the seller as to the quality of the property, may maintain an action of deceit, notwithstanding the contract contains a warranty, and it can make no difference that the warranty is in writing.”

It is a well-settled rule of law that one who breaches a contract must respond in damages for such injuries as should have been contemplated as a result of such breach. In Jones v. George, supra, the plaintiff purchased from the defendant, who was a druggist, a certain article supposed by each party to be Paris green, and it was known to the seller that it was being purchased for the purpose of using it upon a growing cotton crop, to kill certain insects which were about to destroy the purchaser’s crop of cotton. In that case there was no express warranty, but the court held that there was an implied warranty that the thing sold was Paris green; and it was there held that the liability of the seller was as broad under a breach of the contract as if he had expressly warranted the substance which he delivered to be Paris green; and if it was not that article, and as a result thereof the purchaser lost his cotton crop, the measure of damages would be the value of the crop as it stood just before it was destroyed by the worms, with the cost of the compound used, and the further cost of the preparation and application to the cotton, with interest on the money thus expended, with the qualification that no recovery could be had for any loss which the planter might have avoided with ordinary care and reasonable expense. In the celebrated ease of Hadley v. Baxendale, 9 Exch. 341, the rule as to measure of damages for breach of contract is t&us stated:

“We think the proper rule in-such a case as the present is this: Where two parties have made a contract, which one of them has broken, the damages which the other ought to receive, in respect to such breach of contract, should be either such as may fairly and substantially be considered as arising naturally— i. e., according to the usual course of things— from such a breach of contract-itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it.”

In Jones v. George, supra, after quoting that rule, the Supreme Court said:

“This rule has been applied substantially in many cases by the courts of America, and in the case of Calvit v. McFadden, 13 Tex. 326, the spirit of the rule was thus announced by Wheeler, J.: ‘The difficulty, if not impossibility, of laying down any precise and definite rule of general application in respect to what may be recovered as consequential damages, is shown by Mr. Sedgwick in his review of the cases upon this subject in his treatise on the Measure of Damages. He quotes the language of the Supreme Court of Louisiana that “the damages which a party may recover on the breach of a contract are those which are incidental to and caused by the breach, and may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract” (13 La. 404); and this, he concludes, is the clearest and most definite line that can be drawn in respect to such damages. * * * And to apply the rule of the Louisiana court, which seems free from objection, it must'have appeared also that the loss was incidental to and caused hv the breach, of the contract, and was such as may reasonably be supposed to have entered into the •contemplation of the parties contracting-.’ In •the last edition of Hr. Sedgwick’s work on the Heasure of Damages, 104, 122, he adopts the rule thus stated by the Douisiana court as ‘perhaps the clearest and most definite rule that can be framed in this perplexing matter.’ The rule in Louisiana seems to be established by the ■Code of that state (1 Sedgwick, 103; Williams v. Barton, 13 La. 410); and it and its modifications are taken from the Code Napoléon, 1149, 1150, which in turn are taken from Pothier on ■Obligations, Nos. 159, 160, who asserts that the rule is as old as the Roman law. We believe ■this to be a correct rule, and, tested by it, what ■is the liability of the appellee?”

The opinion then proceeds to cite and discuss quite a number of decisions, and concludes with announcing the rule applicable to that case as hereinbefore stated.

In I. & G. N. R. R. Co. v. Pape, 73 Tex. 501, 11 S. W. 526, the plaintiff sued for damages on account of injuries to a growing crop, brought about by an overflow, which overflow, he alleged, was caused by the negligent construction of a railway track. In that case, in considering the measure of damages, the court said:

“It seems to us that as a general rule the -most satisfactory means of arriving.at the value of a growing crop is to prove its probable yield under proper cultivation, the value of such yield when matured and ready for sale, and also the expense of such cultivation as well as the cost of its preparation and transportation to market. The difference between the value of the probable crop in the market and the expense of maturing, preparing, and placing it there, will in most cases give the value of the growing crops with as much certainty as can be attained by any other method. But proof of the additional amount of cotton which the plaintiff would have made but for - the overflow, and the value of such cotton when ready for market, without evidence as to the expense of cultivating, gathering, preparing it for, and placing it in market, did not show the value of the crop at the time of the injury, and hence did not afford the proper means of measuring the plaintiff’s damage.”

So we regard it as settled law in this state that the measure of damages, whether the action be founded upon a breach of contract, deceit, or other wrongful conduct, includes reasonable and fair compensation, not only for the injuries which necessarily and usually result from such wrongful conduct, but also for such consequential injuries as the person sought to be held liable should have contemplated as a probable or possible result of his wrongful conduct.

The two cases last referred to, though not entirely analogous to the ease at bar, tend to support the proposition just .announced. They also have application in .support of appellant’s contention under its two last assignments of error, which are numbered 15 and 16, to the effect that the court erred in rendering judgment for the plaintiff for the full value of the peas sued for, the expense incurred in testing the machinery, and the money paid to the defendant. We have reached the conclusion that these assignments must be sustained, and the judgment reversed. The plaintiff alleged in his petition that his crop of peas was worth $1,650, and that they were a total loss; that he paid the defendant $30 for the pea attachment which was delivered to him, and that it was of no value; and that he expended $60 in trying to operate it, making his total damages $1,750. The court rendered judgment in his favor for $1,728. No findings of fact were filed, but the testimony renders it reasonably certain that the court allowed $1,650 as the market value for which the peas would have sold, $28 paid for the worthless pea attachment, and $50, the amount expended in testing it, making a total of $1,728. It is manifest that if appellant had complied with the contract in every respect, and the peas had been threshed in a satisfactory manner, the plaintiff would have been at the expense of threshing them, doing whatever was necessary to preserve them, and carrying them to market and selling them; and therefore his crop of peas would not have netted him the amount awarded by the trial court. In other words, it is quite manifest that the plaintiff was not entitled to recover the entire amount awarded him by the trial court, and, it being equally manifest that some deductions should have been made in order to arrive at the correct measure of damages, we think the burden was upon the plaintiff, and not upon the defendant, to furnish the proof necessary to enable the court to make such deductions. In addition to the deductions just referred to, there was some testimony tending to show that the plaintiff might have diminished his damage by selling or using the unthreshed peas for hog feed; and if it should appear upon another trial that, by the exercise of reasonable diligence, he could have done so, the amount of his .recovery should be diminished to that extent.

It is also contended by appellant that the fact that the peas were grown upon the plaintiff’s land and permitted to remain there and rot should be taken into consideration, upon the theory that the soil was thereby fertilized and benefited. If the defendant had complied with its contract, and the plaintiff had sold his peas upon the market, he would have still had whatever benefit had accrued to his land by reason of the fact that the crop of peas had been grown upon it; but he would not have had the benefit, if any, that resulted from their rotting in the field, and, to that extent only, can the question of fertilization of the soil be considered.

The case has not been so developed as to enable this court to estimate with any degree of certainty the excess of damages which might b.e cured by a remittitur, and therefore we have concluded that the judgment should be reversed, and the cause remanded for another trial; and it is so ordered.

Reversed and remanded.
      <=For other cases see game topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    HOVEY et al. v. WEAVER.
    (No. 437.)
    (Court of Civil Appeals of Texas. El Paso.
    April 15, 1915.)
    1. Receivers <§=>183 — Damages — Liability of Railroad Company — Pleading and Proof.
    To recover against a railroad company, after discharge of its receivers and recovering back its property, for damages caused by acts of the receivers in cutting down a street in front of property, it must be shown that the revenues of the property while in the hands of the receiver had been expended in betterments.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 361 — 366; Dee. Dig. <§=>183.]
    2. Receivers &wkey;183 — Torts—Petition—S deficiency against Demurrer.
    Rev. Civ. St. art. 2143, which permits a receiver to be sued after discharge, does not apply to receivers appointed by federal courts,_ and hence a petition, in an action against receivers of a railroad company after their discharge, for torts committed by them is subject to a general demurrer, where it fails to allege what court appointed the receivers or the conditions of their discharge, or whether any revenues were collected and turned over to the owners or expended in betterments, though these matters are not denied by the answer; things not alleged in a petition not being admitted by a failure to deny them in the answer.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 361 — 366; Dec. Dig. <§=>183.]
    3. Trial <&wkey;315 — Quotient Verdict — Valid ITY.
    A verdict, allowing damages in an amount ascertained by adding the amounts _ placed by the jurors on slips of paper and dividing the sum by twelve, is invalid.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 740-742; Dec. Dig. &wkey;315.]
    Error from District Court, Brewster County; W. C. Douglas, Judge.
    Action by J. W. Weaver against S. B. Hovey and another, as receivers of the Kansas City, Mexico & Orient Railway Company of Texas, and said railroad company. Judgment for plaintiff, and defendants bring error.
    Reversed and remanded.
    H. S. Garrett, of San Angelo, W. Van Sickle, of Alpine, and W. C. Jackson, of Ft. Stockton, for plaintiffs in error. J. D. Martin, of Alpine, for defendant in error.
   HARPER, C. J.

This suit was instituted by appellee, J. W. Weaver, against S. B. Hovey and M. L. Mertz, as receivers of the Kansas City, Mexico & Orient Railway Company of Texas, for damages alleged to have been caused by the acts of said receivers in cutting and grading down a street in front of certain property owned by Weaver in the town of Alpine, Tex. In his first amended original petition he alleges that J. W. Weaver, plaintiff, a resident citizen of Brewster county, . Tex., complaining of the Kansas City, Mexico & Orient Railway Company of Texas and of S. B. Hovey and M. L. Mertz, receivers of the aforesaid railway company, defendants, by leave of court comes now and amends his original petition filed herein on the 28th day of January, 1914, and respectfully represents: First, that said railway company is a corporation duly incorporated under the laws of Texas, and that the said S. B. Hovey and M. L. Mertz, the original defendants herein, were the legally appointed receivers of said railway company, and were operating said railway company as receivers at the time of the happening of the acts and injuries hereinafter complained of, but that since the institution of this suit, the said receivers have been discharged as such receivers of said railroad, and its entire equipment, comprising trains, locomotives, and depots, has been by said receivers turned over and delivered to the other defendant herein, to wit, the Kansas City, Mexico & Orient Railway Company of Texas. The defendants receivers answer by general and special exceptions and general denial, and specially deny that plaintiff’s property was damaged by any act or acts of theirs, etc. The defendant railway company pleads general demurrer, and specifically denies under oath that .the allegations in the several paragraphs of plaintiff’s petition by number are true. Trial by jury and verdict and judgment for $2,500 against S. B. Hovey and M. L. Mertz, as receivers of the said railway company, and against the said railway company, from which judgment the cause is here for review upon writ of error.

Appellants, by their assignments, urge that Hovey and Mertz having been sued in their representative capacity, as receivers 'of the railway, and there being no evidence that they were appointed and qualified as receivers, there was no basis for judgment against them, and the court should have instructed verdict for defendants; that plaintiff’s petition shows no cause of action, because it was alleged that the receivers had been discharged and the property returned to the corporate officers, and did not allege by what court appointed and discharged. The assignments must be sustained, for in order to hold the railway company liable in the present ease, it would be necessary to allege and prove that the defendants receivers had been duly appointed, had been discharged, and the property of the railway company delivered to .it, and, either that such property was equal in value to the amount of plaintiff’s claim, or that the payment of plaintiff’s claim had been made a condition of such redelivery of the property by the decree of the court terminating the receivership; the rule in this state being that the owner receiving back his property can only be made responsible for the liabilities incurred by the receiver when it is shown that the revenues of the property while in the hands of the receiver had been expended in betterments. Kirby Lumber Co. v. Cunningham, 154 S. W. 288, and authorities there cited.

It is contended by appellee that the allegations of plaintiff, since not denied, were sufficient to sustain the judgment without proof. There are no allegations in the plaintiff’s petition concerning what court appointed the receivers, nor as to the conditions of the discharge, nor as to whether there were any revenues collected and turned over to the owners or expended in betterments, during the receivership. Without such allegations the petition charged no liability upon the railway company for the tort of the receivers. Ft. Worth & Rio Grande Railway Company v. Ballou, 174 S. W. 338. It is a general- rule of law that a receiver, after his discharge, is not liable as such for acts committed during his incumbency. When he is discharged his official capacity ceases, but we have a statute in Texas (article 2143) which permits a receiver to be sued after discharge. However, it has no application to those appointed by federal courts. Therefore, in order for the petition to be good against the receivers upon general demurrer, it must contain the allegation that the appointment was made by a state court. Things not alleged arc not admitted by failure to answer. The jietition for that reason is insufficient, and subject to general demurrer, both as to the railway company and the receivers.

Another assignment charges, and the evidence seems to establish, that the amount of damages allowed by the jury was arrived at by each juror placing the amount he thought should be allowed on a slip of paper, and then adding the amounts and dividing them by 12. This manner of arriving at a verdict has been repeatedly condemned by the courts of Texas.

For the reason that the pleading and proof are not sufficient to support the judgment, the cause is reversed and remanded for a new trial.
      <gm>For other cases see same topic and KEY-NUMBER ia all Key-Numbered Digests and Indexes


text:
    HOVEY et al. v. WILLIAMS.
    (No. 438.)
    (Court of Civil Appeals of Texas. El Paso.
    April 15, 1915.)
    Error from District Court, Brewster County; W. C. Douglas, Judge.
    Action by A. J. Williams against S. B. Hovey and another, as receivers of the Kansas City, Mexico & Orient Railway of Texas, and said railroad company. Judgment for plaintiff, and defendants bring error.
    Reversed and remanded.
    H. S. Garrett, of San Angelo, W. Van Sickle, of Alpine, and W. C. Jackson, of Ft. Stockton, for plaintiffs in error. J. D. Martin, of Alpine, for defendant in error.
   HARPER, C. J.

This case is against the same parties, for the same cause of action, under petition similar in form and substance, and presented here by assignments of error identical with the case of Hovey et al. v. Weaver, 175

S. W. 1089 (No. 437), decided this day, and is reversed and remanded for the reasons assigned in the opinion rendered therein.


author: WALTHALL, J.

text:
    EL PASO & S. W. R. CO. OF TEXAS et al. v. ANKENBAUER.
    (No. 432.)

    (Court of Civil Appeals of Texas. El Paso.
    April 8, 1915.
    Rehearing Denied April 29, 1915.)
    1. Judges <@=16 — Resignation — Special Judge — Constitutional and Statutory Provisions.
    Const, art. 16, § 17, and Rev. St. 1911, art. 1672, providing that all officers shall continue to perform the duties of their offices until their successors are duly qualified, are mandatory and intended to prevent vacancies in office and cessation of the functions of the government, and hence the judge of the special district court, who had resigned, to take effect September 30th, at midnight, continued in office and was authorized to hold his term of court until his successor was appointed, and on his refusal to do so, and the Governor’s failure to appoint a successor, a special judge elected by the bar of the court was authorized to sit until the completion of any business of the court.
    [Ed. Note. — For other cases, see Judges, Gent. Dig. §§ 46, 53-59; Dec. Dig. <@=16.]
    2. Trial <@=18 — Reception oe Evidence — Witness’ Deposition — Presence oe Plaintiff.
    In a switchman’s action for personal injuries, wherein his deposition was on file, it was not error to bring him into the courtroom on a stretcher without showing that he could only reach the courtroom in such way, since he had the right to use the deposition or to testify in the case as a witness.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 37, 42%; Dec. Dig. @=18.]
    3. Continuance <@=46 — Grounds—Surprise —Sufficient Cause.
    In a switchman’s action for injuries, wherein his petition was amended to set up an ordinance fixing the rate of speed at which engines might .be operated within city limits, and assigning negligence in operating an engine at a greater speed, and a copy of the ordinance was attached to the pleading, filed September 10th, about 20 days before trial, defendant’s application for a continuance on the ground of surprise at the new matter pleaded, stating that the ordinances were contained in the minute books of the city council, not otherwise accessible, so far as known to defendant, and that the allegation necessitated an exhaustive examination of the records to ascertain whether the ordinance had been repealed or amended, without showing any effort to examine the records containing the minutes of the city council, or the number, etc., of the books to be examined, or the probable time it would take, did not show “sufficient cause” for a continuance.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 132-140; Dec. Dig. <§=46.]
    Appeal from District Court, El Paso County ; J. G. McGrady, Special Judge.
    Action by J. A. Ankenbauer against the El Paso & Southwestern Railroad Company of Texas and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Hawkins & Franklin and W. M. Peticolas, all of El Paso, for appellants. Wallace & Gardner and J. E. Purser, all of El Paso, for appellee.

       Writ of error pending in Supreme Court.

   WALTHALL, J.

This is a personal injury suit in which the plaintiff, J. A. Ankenbauer, sued the Bl Paso & Southwestern Company and the El Paso & Southwestern Railroad Company of Texas, for damages which he alleges he sustained in the nighttime on the 17th day of June, 1914, while in the employ of the defendants as switchman in their railroad yards at El Paso, Tex., on account of the alleged negligence of the defendants proximately causing his said injuries. Plaintiff alleges that he was directed by the foreman in charge of the switching crew to go with the switch engine from the main yard to the east yard; that, while riding on the footboard on the tender of the engine, the engine collided with other cars standing on the track, thereby causing his injuries. He assigned as negligence that said engine was operated at an excessive rate of speed; that the engineer failed to keep a reasonably sufficient lookout for obstructions in the way of cars on the track; and that defendants left other cars standing on the main line without giving any notice or warning to plaintiff or placing any light on them and without leaving a man stationed near the cars to warn employes of the presence of said cars on the main line. Plaintiff alleged an ordinance of the city of El Paso, fixing the speed of the train in the city limits and its violation. Plaintiff alleged that, in the collision of the engine on which he was riding with cars standing on the track, he was thrown from his position on the footboard to the ground, part of the tender of the engine passing over him, and was rolled, dragged, and seriously and permanently injured, specifying his injuries. The defendants excepted to the plaintiff’s petition and by their answer put in issue the facts charging negligence.

The case was tried before Hon. J. G. Mc-Grady, who sat as special judge. The case was submitted on special issues; and, on the jury’s answers to the questions submitting the special issues, judgment was rendered for plaintiff in the sum of $14,250. Original and amended motions for new trial were filed and, being overruled, defendants gave notice of appeal.

Defendants’ first, second, and third assignments of error and the propositions thereunder in different ways question the power, authority, and right of the special judge to try the case. The assignments do not question the regularity of the election of the special judge, but are based on the following, which we find to be the facts disclosed by the record:

Judge M. Nagle, the judge of that court, on September 24, 1914, wrote the Governor, tendering his resignation as judge of the special district court of El Paso county, to take effect on the night of September 30th, at 12 o’clock. On September 28th, the resignation was accepted by the Governor, and on the same day was transmitted to the Secretary of State for filing in his office. On the 28th of September, and during the regular term of court, Judge Nagle stated to the lawyers then assembled in his courtroom in the capacity of the El Paso bar, that he was unwilling to serve and would not longer serve as judge of said court and would absent himself from the courthouse. Later, and on the same day, the practicing lawyers in El Paso county met in the courtroom of said court and regularly elected, from among their number, J. G. Mc-Grady, special judge of the special district court for El Paso county. The attorney, in placing J. G. MeGrady’s name in nomination, stated that he “moved that the said McGrady be elected to serve the remaining three days of Judge Nagle’s court.” J. G. McGrady, after his election, took the oath of office and entered upon its duties. This case came on for trial on the 1st day of October, 1914, and thereupon the defendants moved the said J. G. McGrady to refuse to try the case and not further proceed with said cause, upon the following grounds: (a) That the bar of El Paso county has no power in law to fill a vacancy in the office of district judge, and that Judge Nagle having resigned, effective September 30th, on October 1st, when said case came on for trial, there was a vacancy in the office of district judge of said court; (b) because the election of said judge was effective only for the remaining three days of Judge Nagle’s term of office; (c) because, Judge Nagle having resigned, the lawyers practicing in said court had no power to elect a special judge and so to fill a vacancy in said office. The motion was overruled by Judge McGrady, and the defendants excepted.

The trial of this cause proceeded and terminated before the Governor made the appointment of a judge for said court. Under the facts stated, did the election of the special judge terminate on the 30th of September? If the powers and duties of the regular judge of the court terminated on the acceptance of his resignation by the Governor at the time fixed in the resignation for it to become effective, we think there could be no doubt but that the powers and duties of the special judge elected to serve during the absence of or the time the regular judge was unwilling to serve would terminate. The powers and duties of the special judge in holding the term of the court and performing the duties of the court at that term were coextensive with and limited by the powers and duties of the regular judge in whose place he was then serving — no greater, no less. Had the regular judge returned and been willing to serve in the trial of this- ease on the 1st of October and until his successor had been appointed by the Governor and qualified, would it have been his duty and had he the power and authority to have done so?

The Constitution and statutes of this state provide that all officers shall continue to perform the duties of their offices until their successors shall be duly qualified. Constitution of Texas, art. 16, § 17; Revised Civil Statutes, art. 1672. The courts in this state have uniformly held those provisions to he mandatory; “they shall continue to perform the duties.” The purpose is that there should be no vacancy in the office, and that the functions of government must not cease. Keene v. Featherstone, 29 Tex. Civ. App. 563, 69 S. W. 983. Justice Stephens, in McGhee v. Dickey, 4 Tex. Civ. App. 104, 23 S. W. 404, said;

“The public necessity for continuity of official tenure is not left to the caprice of the office holder. The contract for public service imposes a mutual obligation upon the officer and the public, which cannot be arbitrarily dispensed with by either party.”

In the case of Jones v. City of Jefferson, 66 Tex. 576, 1 S. W. 903, the Supreme Court of this state, in discussing article 16, § 17, of the Constitution of this state, quoted above, said:

“It is held by the Supreme Court of the United States, following the decision of the Supreme Court of Illinois in the same case, that under the statute of that state, which, like that of Texas, declares that all officers shall hold over until their successors are elected and qualified, an officer, whose resignation has been tendered to the proper authority and accepted, continues in office and is not released from its duties and responsibilities until his successor is appointed or chosen, and qualified. Badger v. U. S., 93 U. S. 599 [23 L. Ed. 991].”

While the interpretation of similar provisions in Constitutions and statutes of other states has frequently been the subject of judicial investigation, and has given occasion to disagreement of opinion in those jurisdictions, we are of the opinion that the above authorities settle the question in this state as to the construction to be placed upon the Constitution and statute quoted. If Judge M. Nagle, the regular judge, continued in office and had the power and authority, and it was his duty to hold his term of court until his successor in office had been appointed and qualified, the special judge duly elected by the practicing lawyers had the power and authority, and it was his duty to hold the term of court during the continued absence and unwillingness of the regular judge to be present and act and until the completion of any business begun before such special judge. The assignments, first, second, and third are overruled.

Under assignments fourth and fifth, appellants assert with much force that the verdict is excessive.

We have carefully gone over and studied the evidence of each witness, and cannot say that the verdict is excessive. The assignments are overruled.

The sixth assignment claims error in allowing plaintiff’s counsel to bring the plaintiff into the courtroom upon a stretcher without any showing that he could only reach the courtroom in such way, and in overruling defendants’ motion to refuse plaintiff such privileges; it appearing that plaintiff’s deposition was on file in the case. Appellants refer us to no authority in support of this assignment. Appellee had the right to use the deposition or to testify in the case as a witness. The assignment is without merit and is overruled.

Appellants assign error on the action of the court in overruling their first application for a continuance, claiming surprise in the new matter pleaded in appellee’s amended pleading. The trial court, upon hearing said motion, announced that, as to the allegations contained in said amended petition, defendants’ engineer was an incompetent person, and, of the rule and custom to notify switchmen when the main line would be blocked, he would sustain said motion, unless the plaintiff would withdraw said facts from the petition. The plaintiff thereupon withdrew said allegations, and thereupon the court overruled the motion for continuance. The amended pleadings, with the matters above stated eliminated, left as new matter only allegations contained in the fifth paragraph of the amended pleadings setting up the provisions contained in an ordinance of the city of El Paso, fixing the rate of speed at which engines could be operated within the corporate limits of the bity and assigning negligence in operating the engine on which appellee was at the time of the accident at a greater rate of speed than the ordinance permitted. A copy of the ordinance was attached to the pleading. The amended pleading was filed on the 10th day of September, and the case was called for trial on the 1st day of October. The application for continuance stated:

That “the ordinances of the city are contained in the minute books of the city council and are not accessible in their amended and completed form, so far as is known to affiant, from any other source; that this allegation will necessitate an exhaustive examination of said records to ascertain whether said ordinance is still in force or whether the same has been repealed or amended in any particular. That such investigation cannot be made in time for trial at this time.”

Does the motion show “sufficient cause” for a continuance? The statute does not state what shall constitute “sufficient cause.” The application does not state that defendants had made any effort at an examination of the records containing the minutes of the city council, nor the number, size, or pages of the books to be examined, nor the length of time probably necessary for an examination of them. The bare statement that an examination of the records would be necessary, and that such investigation could not be made in time for trial at that time, does not show “sufficient cause.” The amended motion for a new trial was heard and overruled on October 21st. The amended petition had then been on file 20 days. The assignment is overruled.

Finding no reversible error, the cause is affirmed.
      @^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    SMITH v. GUERRE.
    (No. 752.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 27, 1915.
    Rehearing Denied April 24, 1915.)
    1. Appeal and Error <@=1002 — Review — Jury’s Findings — Conflicting Evidence.
    A jury’s findings of fact on conflicting evidence are conclusive.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. <@=> 1002.]
    2. Pleading <@=>8 — Legal Conclusion — Fraud.
    Fraud must be specifically pleaded, and so when it is alleged that by false and fraudulent representations, and by overreaching by flatteries and persuasions a conveyance was induced, exceptions to the pleading should be sustained as merely stating a legal conclusion.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 12-28½, 68; Dec. Dig. <@=>8.]
    3. Evidence <@=507 — Subject of Opinion Evidence.
    Whether a person is well treated by his wife and family is a question of fact not calling for the opinion of an expert.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. § 2310; Dec. Dig. <©=507.]
    4. Trial <@=75 —Waiver of Error — Admission of Evidence.
    Error in admission of opinion evidence of a’ fact is waived by failure to object to like evidence thereof.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 171-182, 252; Dec. Dig. <@=75.]
    5. Trial <@=85 — Deception of Evidence-Necessity of Specific Objection.
    It was not error to overrule an objection which did not point out the particular part of an interrogatory objected to, and which did not separate the objectionable portion from the remainder of the answer clearly admissible.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 223-225; Dec. Dig. <S=85.]
    6. Evidence <@==510 — Mental Capacity — Expert Opinion.
    On an issue as to contracting capacity, an expert’s opinion that he does not believe the party was ever capable of making a good trade, because of his mental condition and his implicit confidence in people, was admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2314; Dec. Dig. <S=510.]
    7. Evidence <©=510 — Expert Opinion — Statement of Legal Conclusion.
    Such answer did not involve the statement of a legal conclusion.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2314; Dec. Dig. <@=510.]
    8. Evidence <©=501 — Mental Capacity — Basis for Opinion.
    On an issue as to contracting capacity, a witness testified that in talking to the party on different occasions, he would pause, look off in a staring way, and continue to do so, reach in his pocket for tobacco, and again begin conversation, and so made witness guess as to his mental condition, and that at threshing time he saw him do things which to witness seemed uncalled for and unreasonable. Held, that this did not furnish basis for an opinion.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2292-2305; Dec. Dig. <@=501.]
    9. Appeal and Error <@==>1066 — Prejudicial Error — Instructions — Statement of Issues.
    Improperly stating the issues is not ordinarily reversible error; but, where rescission of a contract is sought for insanity of a party alone, and the court, in reciting the issues, stated it was alleged that he “was, by reason of impaired health and weakness of mind, wholly incapacitated,” the error was prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. <©=1066.]
    10. Trial <@=>352 — Special Issues — Submission to Jury.
    Where in a case involving capacity of a party executing a contract, and a deed and notes 30 days thereafter, it appears that, if insane, his mental capacity was intermittent, special issues to the jury as to his capacity when they were executed should be submitted disjunctively.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 840-842, 844, 845; Dec. Dig. <@=352.]
    11. Contracts <@=>99 — Mental Capacity — Burden of Proof — Avoidance' of Defense.
    In an action against a wife, based on transactions with her deceased husband, plaintiff had the burden of proving ratification and affirmance thereof, pleaded by him in avoidance of her defense that her husband was insane when he executed the contract, deed, and notes sued on.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 448-453, 1197-1199, 1799, 1800; Dec. Dig. <@=>99.]
    12. Contracts <@=>92 — Contracting Capacity — Instruction.
    On an issue as to the contracting capacity of a party, the court charged that the question for the jury to decide was whether he had sufficient mental soundness and capacity to understand the nature, terms, and effect of the contract and transaction in detail, and as a whole to determine and appreciate the rights, benefits, and values he was acquiring, and the rights, values, and obligations exchanged therefor, to hold these elements of the details in his mind and reflect on them rationally, and to exercise his mind in respect to them in a rational way. Held, that the charge was not overexacting in its requirements.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 411-414, 1153, 1155; Dec. Dig. <@=92.]
    Appeal from District Court, Randall County; Jas. N. Browning, Judge.
    Action by S. H. Smith against Mollie C. Guerre. From a judgment for defendant, plaintiff appeals.
    Reversed.
    See, also, 159 S. W. 417.
    Gustavus & Jackson and A. S. Rollins, of Amarillo, for appellant. Madden, Trulove, Byburn & Pipkin, of Amarillo, for appellee.
   HALL, J.

Appellant brought this action against appellee, surviving wife of E. B. Guerre, to recover upon certain notes executed by deceased, E. B. Guerre, and appellee, and to foreclose the vendor’s lien on 353 acres of land off of the north side of section No. 100, block 9, B. S. & F. surveys, in Randall county, and to foreclose a lien assumed by deceased and appellee against the entire section for the payment of one-half of a vendor’s lien note in addition to the notes executed by appellee and her husband. Appellee pleaded coverture; that her deceased husband was insane at. the time of making the contract and executed the deed and notes; that appellant had a superior knowledge as to land values; that she was unskilled in trading; that plaintiff and those interested with him, by false and fraudulent representations, overreached her deceased husband in the making and execution of the contract, deed, and notes; that the property which plaintiff obtained greatly exceeded in value the property conveyed to appellee and her husband. She prayed for rescission of the contract and cancellation of the notes, that she have judgment against plaintiff for the difference in the value of the property, and that a lien be established against the land in Randall county to secure the payment to her of such difference. By supplemental petition appellant admitted defendant’s plea of cover-ture, specially denied the fraud and the in- ■ sanity of appellee’s husband, pleaded that the deceased, E. R. Guerre, instituted a suit against him to enforce specific performance of a contract entered into between them in the year 1909, which had been breached by the deceased; that after said suit had been pending for some time the said E. R. Guerre, now deceased, approached appellant for the purpose of reaching some compromise agreement of the matters in controversy; that after considerable negotiations the contract sought to be canceled was entered into, whereby plaintiff was to convey to said Guer-re and his wife, appellee, on certain terms and conditions, the land in controversy; that said conveyance was made and notes executed in accordance with the terms of said contract; that appellee’s husband was anxious to close the deal according to the contract because the land in Missouri which appellant received as part of the consideration for his conveyance was heavily incumbered by a large indebtedness then due; that the holder of the indebtedness was threatening to foreclose the lien on said lands in Missouri and for the purpose of settling the lawsuit the contract was entered into and the suit dismissed, and thereafter the deeds to the respective parties were exchanged; that if said E. R. Guerre was mentally incapacitated to understand and carry out any contract made by him, appellant was wholly ignorant thereof and never had any intimation of such fact until after the decease of E. R. Guerre; that the contract of sale and exchange was executed September 16, 1910; that it was consummated by the execution and 'exchange of deeds and notes on October 15, 1910; that thereafter E. R. Guerre, by his act and conduct, ratified and confirmed the transaction; that after the death of E. R. Guerre the ap-pellee, Mollie 0. Guerre, used and appropriated the proceeds and rents derived from the property, held possession of the same by tenants, and controlled and managed the same, and refused this plaintiff possession thereof, and by acts and conducts, with full knowledge of all the facts, ratified and confirmed the transaction in which the notes sued upon were executed and assumed. By supplemental answer, appellee denied the allegations in plaintiff’s supplemental petition with reference to the mental capacity of E. R. Guerre; denied that she or her husband ever ratified and confirmed the trade with full knowledge of its terms and conditions. The trial resulted in a verdict, canceling the contract and notes, and in favor of appellee against appellant, in the sum of $1,558.28, with interest at 6 per cent., and the establishment of a lien against the land in controversy to secure payment of said sum. From a judgment entered in accordance therewith, appellant has duly appealed.

Appellant requested the court to direct a verdict in his favor, and upon the refusal of the court the first assignment of error is predicated. Upon the issue of the sanity of Guerre on September 16, 1910, when the contract was executed, and on October 15, 1910, when it was consummated by the execution and exchange of the deed and notes, the evidence is sharply conflicting. While it may preponderate in favor of his sanity, the jury found otherwise, and we are bound by the finding. The question of affirmance and ratification by appellee, as well as by her husband, are also raised under this assignment. These are simply questions of fact (Mo. Pac. Ry. Co. v. Brazzil, 72 Tex. 233, 10 S. W. 403), and we cannot disturb the jury’s findings.

Defendant pleaded:

“That in said alleged transaction and contract and by means of false and fraudulent representations made by plaintiff to E. R. Guerre, and by overreaching him with flatteries and persuasions, plaintiff induced E. R. Guerre to convey and defendant E. R. Guerre did convey to plaintiff, as part of the consideration for said Randall county lands, certain property in Lafayette county, Mo.”

Appellant excepted to this allegation because there was no statement of what such false representations consisted, and of the flatteries and persuasions used, no allegation that the deceased ever believed or relied upon any such representations, and because no fact is stated upon which false representations would be predicated. The rule that fraud must be specifically pleaded is too well settled to require the citation of authorities. The allegation is merely the statement of a legal conclusion, and the exception should have been sustained.

The question raised under the third assignment will not probably arise upon another trial and will not be discussed.

Dr. Tucker, a witness for appellee, was permitted to testify that he believed certain thoughts and suspicions of Guerre were imaginary and not well founded; that Guerre thought he was not treated right at home by his wife and family. Whether or not Guerre was well treated by his wife and family was a question of fact which did not call for the opinion of an expert. Evidence of the same kind, however, was admitted from the witness Trail without objection. This is a waiver of the error committed in admitting the evidence of Dr. Tucker.

Appellant’s objection to Dr. Tucker’s evidence did not point out the particular part of the interrogatory which it was contended was objectionable, and did not separate the objectionable portion from the remainder of the answer which was clearly admissible. The court did'not err in overruling an objection of this kind. Sanford v. John Finigan Co., 169 S. W. 624.

Over the the objections of appellant, the court permitted the answer of the witness Dr. Tucker to be read, to the effect that witness did not believe that deceased was ever capable of making a good trade, because of his mental condition and the implicit confidence he placed in people. This was only the witness’ method of stating his opinion of the mental capacity of the deceased. That even a nonexpert witness may so testify has been held in Scalf v. Collin County, 80 Tex. 514, 16 S. W. 314. The answer did not involve the statement of a legal conclusion; and does not come within the inhibition announced in Brown v. Mitchell, 88 Tex. 350, 31 S. W. 621, 36 L. R. A. 64.

Objection was made to the answers of the witness Dammier, to a direct interrogatory, stating in effect that on different occasions, while witness was talking to Mr. Guerre, he (Guerre) would pause, look in a staring way in an off direction, and would continue to do so, reach in his pocket, and take a chew of tobacco and begin again the conversation witness was having with him, and by this action caused witness to often guess as to his mental condition; and at threshing time witness had seen him doing things which seemed to witness uncalled for and unreasonable. Reference to the bills of exception shows that witness did not state further than is above set out the facts upon which he based his opinion as to the mental capacity of Guerre to enter into contracts, consummate sales, and comprehend the nature and effect of his obligations, and the evidence should have been excluded.

In the main charge the court erroneously stated the issues raised by the pleadings. This is not ordinarily reversible error. Gulf, Colorado & Santa Fé Railway Co., v. Walters, 49 Tex. Civ. App. 71, 107 S. W. 369, unless called to the attention of the court by the complaining party. Milmo v. Adams, 79 Tex. 526, 15 S. W. 690. In reciting the issues the court stated that appellee had alleged the deceased—

“was by reason of impaired health and weakness of mind, wholly incapacitated to make and enter intelligently into said obligation.-’

Appellee sought to rescind upon an allegation of insanity alone, and we think this error was prejudicial. The matter having been called to the attention of the court in due time, the error should have been corrected.

The court submitted special issue No. 1 as follows:

“The question for you to answer is, Was the said E. R. Guerre, now deceased, sane at the time.he executed said contract, deed, and notes sued on? Let your answer be yes or no.”

Appellant insists that because the contract was executed more than 30 days before the execution of the deed and notes, and because the evidence shows that if Guerre was insane at all, his mental incapacity was intermittent, the issues should have been dis-junctively submitted. This contention is sustained by the holding in Southern G. & G. E. Co. v. Adams & Peters, 169 S. W. 1143, but the error was invited by appellant in requested special charges Nos. 2 and 7. In charging upon the question of insanity the court used this language:

“It is not necessary that a person should be so mentally unbalanced and insane as to make it necessary to confine him in an asylum or to have a guardian appointed to manage his estate before he can be considered incompetent to make a particular contract.”

It is insisted that this portion of the charge is on the weight of the evidence, and we are inclined to the opinion that the objection was well taken. Whether we are correct in this or not the language is unquestionably argumentative, and for that reason should not have been given. Brown v. Mitchell, 88 Tex. 351, 31 S. W. 621, 36 L. R. A. 64; Hanna v. Hanna, 3 Tex. Civ. App. 51, 21 S. W. 720.

The thirteenth assignment complains of the action of the court in placing the burden upon appellant to prove ratification and affirmance. Appellant having sought to recover upon the note and foreclose the deed and appellee having alleged their invalidity by reason of the insanity of her husband, it was clearly the duty of appellant to both plead and-prove such facts as would avoid the defense. Alamo Dressed Beef Co. v. Yeargan, 123 S. W. 721; Elston v. Jasper, 45 Tex. 490.

Upon the issue of insanity the court charged the jury as follows:

“In this case in determining whether the deceased, E. R. Guerre, was mentally incompetent to make the contract and transaction of October 15, 1910, involved in this suit, when be executed the deed and notes sued on, the question for the jury to decide from the testimony submitted is this: Did the said E. R. Guerre have sufficient mental soundness and capacity to understand the nature, terms, and effect of said contract and transaction in detail, and as a whole to determine and appreciate the rights, benefits, and values he was acquiring and the rights, values and obligations which were exchanged therefor to hold these elements of the details in his mind and reflect upon them rationally, and to exercise his mind in respect to them1 in a rational way?”

The objection to this charge is that under such stringent requirements 'any man could establish his mental incapacity to make a valid and binding contract. “If a person at the time of making a conveyance has sufficient capacity to fully comprehend the nature and effect of the act, the conveyance is valid; but if tbe grantor has not tbe capacity equal to a full and clear understanding of tbe nature and consequences of tbe act, tbe conveyance, is invalid.” 22 Cyc. 1170B. “Tbe mental defect or disease necessary to entitle one to avoid bis contract on tbe ground of insanity need not be so great as to dethrone his reason, or as to amount to an entire want of reason, but it is sufficient if he is insane to such an extent as to be incapable of comprehending or understanding the subject of tbe contract and its nature and probable consequences.” 22 Oye. 1206B. While tbe charge objected to is somewhat verbose, yet in its requirements it is no more exacting than we find are imposed by tbe rules quoted above from Cye. Kaack v. Stanton, 51 Tex. Civ. App. 495, 112 S. W. 702.

Tbe remaining assignments are either' disposed of by what has hereinbefore been said, or are without merit. Por tbe errors indicated, the judgment is reversed, and tbe cause remanded.
      <©=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J. PER CURIAM. JENKINS, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. STATE.
    (No. 5356.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 23, 1914.
    On Motion for Rehearing, April 21, 1915.)
    Master and Servant <@=11 — Regulations— Validity — Right to Discharge Employes.
    The Blacklisting Statute (Acts 31st Leg. c. 89), requiring railroad companies to furnish discharged employés with a statement of the cause of their discharge, and to furnish employes voluntarily leaving the service with a statement to that effect showing whether their services were satisfactory, is unconstitutional.
    [Ed. Note. — For other cases, see Master and Servant, Dec. Dig. <®=11.]
    Jenkins, J., dissenting.
    Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.
    Action by the State of Texas against the Galveston, Harrisburg & San Antonio Railway Company. Prom a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Baker, Botts, Parker & Garwood, of Houston, and W. B. Garrett, of Austin, for appellant. B. P. Looney, Atty. Gen., and Luther Nickels, Asst. Atty. Gen., for the State.
   KEY, C. J.

In this case appellee, the state of Texas, recovered judgment for $1,000-against appellant railway company, and the latter has prosecuted an appeal. The suit is founded upon article 597 of the Revised Statutes of 1911, in which a penalty of $1,000, recoverable by the state, is prescribed for a violation of the act of the Thirty-First Legislature (chapter 89) known as the “Blacklisting Statute.” .In this court, as well as in the court below, appellant railway company vigorously assails the constitutionality of that statute; and, knowing that a case involving the same questions was pending in our Supreme Court, we have awaited the decision of that court. The case referred to is St. Louis Southwestern Railway Company of Texas v. Thos. A. Griffin, 171 S. W. 703, and was decided last week by the Supreme Court, which latter tribunal held that the statute referred to is unconstitutional and void. Following the decision in that case, it is ordered that this case be reversed and judgment here rendered for appellant.

Reversed and rendered.

On Motion for Rehearing.

PER CURIAM.

Motion for rehearing overruled.

JENKINS, J.

(dissenting). On a former day of the present term of this court, this case was reversed and rendered upon the authority of Railway Co. v. Griffin, 171 S. W. 703, wherein the Supreme Court of this state held the act commonly known as the “Blacklisting” statute to be unconstitutional, and a motion for rehearing herein has been overruled by the majority of this court solely upon the authority of that case. Under ordinary circumstances, I would feel bound by a decision of our Supreme Court, whatever might be my views in reference thereto; but in the instant case I feel justified in declining to follow that honorable tribunal for the reasons hereinafter set forth.

1. The statute under consideration was held to be constitutional by the Fifth Court of Appeals in Railway Co. v. Hixon, 126 S. W. 338, and again by the Fourth Court of Civil Appeals in the Griffin Case, supra, 154 S. W. 583. The constitutionality of the statute was challenged in the petition for writ of error in the Hixon Case, but was not passed on by the Supreme Court. The decision in the Griffin Case, 171 S. W. 703, was by a divided court. It thus appears that this statute has been held to be constitutional by three district judges, six judges of Courts of Civil Appeals, and one supreme judge, and has been declared to be unconstitutional by only two members of the Supremei Court. For these reasons, not being able to concur in the views of the majority of the Supreme Court, I believe that the issue should be again submitted to the consideration of that honorable tribunal.

2. I regard the issue as to the constitutionality of this statute important, not only because it is always a serious matter to declare a statute unconstitutional, but because this statute affects in a vital manner the welfare of the 60,000 railway employés in Texas, the railway companies, and the entire citizenship of this state. This statute is based upon a condition which, perhaps, we should judicially recognize, viz., that railway companies refuse to employ those who have previously worked for other companies who cannot bring a statement from their former employer as to why they quit its service. The railway companies are clearly within their rights in so doing. If this law is complied with, it will protect railway companies from incompetent employés, the public from the dire consequences that often result from the employment of incompetent or negligent persons, and faithful and competent employés from the oppression of railway corporations, and from the spite and prejudice of their vice principals. As was said by the Supreme Court of Kentucky in Hundley v. Railway Co., 105 Ky. 162, 48 S. W. 429, 63 L. R. A. 292, 88 Am. St. Rep. 298:

One who follows “a certain trade or calling for years may be almost unfitted for any other business. To deprive him of his trade or calling is to condemn, not only him, but perchance a wife and children, to penury and want. Public interest, humanity, and individual rights, alike, demand the redress” for wrongs which are followed “by such lamentable consequences.”

I believe that it is within the police power to prevent the infliction of such wrongs. The power to deny an employé who voluntarily quits the service of a railroad company, or is discharged therefrom, a statement as to why he quit or was discharged, is, under existing conditions, the power to deny him the opportunity to labor in his vocation. This is a power that no just railroad manager ought to desire, and that no unjust manager should be permitted to exercise. •

3. In the Griffin Case, supra, the court said that an employer has the right to discharge an employé without cause and without notice. This is no argument against the statute under consideration. It does not attempt to deny or abridge such right. Griffin’s cause of action was .not based upon his being discharged, with or without cause, but upon the railway company’s giving him a false statement as to the cause of such discharge.

4. The court further says:

“The citizen has the liberty of contract as a natural right which is beyond the power of the government to take from him.”

I do not so understand the law. The courts will not only refuse to enforce some contracts, but, in certain instances, will declare a contract to be a crime, as witness our antitrust statutes and statutes against the employment of persons to commit crimes. The citizen has the right of contract only so far as such right is not abridged by law or public policy, and the law may rightfully abridge the right of contract when the public welfare so demands.

5. In the Griffin Case, supra, the court held that the blacklisting statute violates section 8 of article 1’ of our state Constitution in reference to free speech. Quoting from the Supreme Court of Georgia, In Wallace v. Ry. Co., 94 Ga. 732, 22 S. W. 579, it says: “The right to speak includes the corresponding right to remain silent.” The answer to this is that a limited right of free speech is expressly guaranteed by the Constitution, while the right of silence is not mentioned in that instrument, except in reference to compelling one to give evidence against himself. If such right exists, it must be found elsewhere than in the section of the Constitution referred to. Continuing the quotation from the Georgia ease, the court says that this statute is “violative of the general private right of silence enjoyed in this state by all persons,’ natural or artificial, from time immemorial.” No such absolute right was ever enjoyed by any person in this or any other state or in any civilized country. Men are daily required to speak in courts and before grand juries, when they would prefer to remain silent.

The article of the Constitution in reference to free speech declares that every person shall be responsible for the abuse of speech, and we have from the beginning had laws upon our statute books punishing such abuse, both civilly and criminally. AVhy should not the Legislature have the power to punish the abuse of the right of silence? Silence under some circumstances is as positive a wrong as slanderous speech. Silence has frequently been held to amount to fraud or to an estoppel, whereby men have lost their property.

6. But the right of silence was not involved in the Griffin Case. The railway company did not remain silent. It spoke, and, having voluntarily chosen to speak, good morals required that it should speak the .truth. I cannot believe that a law enforcing such moral obligation is unconstitutional.

7. The court holds, in the Griffin Case, that the statute under consideration is “in violation of the constitutional right of equal protection of the law as secured by the fourteenth amendment to the Constitution of the United States.” In what respect is not stated. Paraphrasing the invocation of Madam Roland to the statute of liberty erected on the site of the Bastile, we may well exclaim: “Oh, Equal Protection of the Law! How often has lawless oppression sought shelter under thy wings!” As I see it, the “Blacklisting” statute does not interfere with railway companies in the exercise of any right to which they ought to be entitled. It requires nothing but justice at their hands. As was said of a similar statute by the Supreme Court of Minnesota (State v. Justus, 85 Minn. 279, 88 N. W. 759, 56 L. R. A. 757, 89 Am. St. Rep. 550):

“It is the purpose of this law. to .protect em-ployés in the enjoyment of tlwse natural rights and privileges guaranteed them by the Constitution, viz., the right to sell their labor and acquire property.”

Their labor is their property. Constitutions are made to protect rights, not to shield wrongs. ' • •1 ■

With all due respect for our Supreme Court, for the reasons above stated, and for additional reasons to be found in the able opinion of Mr. Justice Moursund in Railway Co. v. Griffin, 154 S. W. 583, I decline to follow the opinion in Railway Co. v. Griffin, 171 S. W. 703, and dissent from the action of my Associates in overruling1 the motion for a rehearing herein.
      <=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    GENERAL BONDING & CASUALTY INS. CO. v. CITY OF DALLAS et al.
    (No. 7324.)
    (Court of Civil Appeals of Texas. Dallas.
    March 27, 1915.
    Rehearing Denied May 1, 1915.)
    1. Mechanics’ Liens <@=^>13 — Property Subject-Public Property.
    Materialmen and laborers cannot fix a lien upon public works for money due them for materials furnished and labor performed in the construction of such works.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 14, 15; Dec. Dig. <®=^>13.]
    2. Municipal Corporations <&=>374 — Improvements — Performance by Surety of Construction Contract — Assumption of Liability for Materials.
    Plaintiff was surety for one who had contracted to build a dam for defendant city. Upon default of its principal plaintiff contracted with the city to complete the work, being authorized by the contract to use tools and materials already employed by the original contractor, provided that it, in using; said tools, etc., should do so subject to all valid claim's against the same, and provided further that in no event should the city be liable on any claims for materials or tools, but that plaintiff fully assumed the whole liability for all claims of-any nature that might be legally asserted against the city. The persons furnishing tools complied with the statutory prerequisite of notice to the city of their claims, which were paid by the city, and the amount deducted from the total payment made to plaintiff upon completion of the work. Held, that plaintiff had no claim either against the city or materialmen for the amount; since under its contract it was ultimately liable for the price of such tools and materials.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 905, 910; Dec. Dig. <§¿3374.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by the General Bonding & Casualty Insurance Company against the city of Dallas and others. Judgment for defendants and plaintiff appeals.
    Affirmed.
    T. L. Camp and J. J. Collins, both of Dallas, for appellant. Meador, Davis, Johnson & Golden, Calloway & Mathis, H. C. Coke, A. B. Lacy, Victor Hexter, and Etheridge, McCormick & Bromberg, all of Dallas, for appellees.
   RAINEY, C. J.

We take from appellant's brief the following statement of the case viz.:

“Appellant, as plaintiff below, ' brought this suit against the city of Dallas, the Jones Lumber Company, a corporation, C. C. Moore, doing business under the name of the Coppell Lumber Company, Crane Company, a corporation, Sanger Bros., a. partnership, Texas Portland Cement Company, a corporation, and J. C. Norvell, for the sum of $811.59.
“Appellant’s petition alleges that it is a general bonding and casualty insurance company, 1 incorporated under the laws of the state of Texas; that on or about the 9th day of March, 1912, it entered into a written contract with the city of Dallas to construct a certain concrete dam across the bed of a branch of the Trinity river, commonly known as Elm fork, near the town of Carrollton, in Dallas county, Tex., for the purpose of impounding the waters of said river for the city of Dallas, to be used as a part of its waterworks system; that the appellant constructed the said dam in accordance with said contract and plans and specifications, and the same was duly accepted by the city of Dallas; that the city of Dallas agreed to pay the sum of $27,899.35 for same; and that the said city has paid to appellant the sum of $27,-087.76, leaving a balance of $811.59, which sum said city of Dallas refuses to pay, and assigns as a reason therefor that the other defendants hereinabove mentioned have filed claims with the city for material furnished in the construction of said dam to one M. S. I-Iasie, Jr., for which this defendant is liable.
“Appellant’s petition further alleges that prior to the time of' entering into the contract of March 9, 1912, aforesaid, that one M. S. Hasie, Jr., had entered into a contract with the city to construct said dam; that this defendant was and became surety on the bond of the said M. S. Hasie, Jr., together with its cosureties, for the construction of the said dam; that the said M. S. Hasie, Jr., proceeded for a short time with the construction of the said dam, and thereupon abandoned the said contract, and the city of Dallas, acting under the said original contract, took charge of the said work, canceled the said contract, and turned the same over to this appellant to complete the said work; that this appellant, as surety, did complete the said work, and carried out the said contract in accordance with its original terms, and did so at a loss to this appellant of about $4,000; that the other above named defendants asserted certain liens and claims against the funds in the hands of the city of Dallas on account of material furnished by them to the said M. S. Hasie, Jr., prior to his abandonment of his said contract; that such claims amount to the sum herein sued for by appellant, and for this reason the city of Dallas refused to pay this appellant said sum.
‘.‘The city of Dallas answered that on the 5th day of February, 1912, it entered into a contract with one M. S. Hasie, Jr., for the construction of said concrete dam, and that on said day, this appellant, with its cosureties, executed a bond in the sum of $12,000 to it, conditioned for the faithful performance and completion of said contract by the said M. S. Hasie, Jr.; that thereafter, on the 27th day of March, 1912, the said M. S. Hasie, Jr., declared that he was unable to carry out the terms of the said contract, and to construct the said dam, and that this appellant and its cosureties, as such, requested that they be permitted to carry out the work so contracted by the said M. S. Hasie, Jr.; that the city of Dallas entered into a contract with this appellant to carry out the terms of the said original contract; that the contract price for the construction of the said dam amounted to the sum of $27,741.09; that the city of Dallas has paid to this appellant $26,929.50, leaving an unpaid balance of $811.59; that prior to the completion of said dam the other named defendants herein filed with the city of Dallas, under the terms and provisions of section 21 of article 14 of the city charter, their respective claims for material furnished to the said M. S. Hasie, Jr., for the construction of the said dam, which claims amount to the said sum of $811.59; that on -account of such claims the city of Dallas tendered into court the said amount of money, and asked that the same be apportioned according to the persons entitled thereto, and asked the court to determine the rights of the respective parties; that each of the above-named defendants answered and set up their respective claims, and claimed the prior right in and to said sum of money so dep9sited into court, in accordance with the provisions of said city charter, viz., section 21 of article 14, as well as on account of the fact that this defendant was surety on the contract of the said Hasie, and, as such surety, was bound to pay said claims.
“The trial was had before the court without a jury, and the court, after hearing the testimony, rendered judgment in favor of the above-named claimants in and to said fund in accordance with their claims.”

¡From this judgment appellant appealed.

The evidence shows:

That the “plaintiff contracted with the city of Dallas to build a certain dam for the agreed price of $27,899.35; that the plaintiff constructed the dam in accordance with the contract, and the city has paid over to the plaintiff ail of said sum of money, save and except the sum of $811.59; that prior to the time the plaintiff entered into the contract for the construction of said dam, one M. S. Hasie, Jr., had entered into a contract with the city of Dallas to construct said dam, and had done work and furnished material for the construction of said dam of the value of more than $2,083.00 and that the following named defendants had furnished material to said Hasie for said purpose, each in the amount set opposite the name of said defendant, to wit:

Crane Company. $ 91 69
Sanger Bros. 109 60
Coppell Lumber Company. 323 27
Jones Lumber Company. 73 03
Texas Portland Cement Company.. 190 00
J. C. Norvell. 24 00

—and that all of said material was used in the construction of said dam_, some by M. S. Hasie, Jr., and some by the plaintiff after it undertook the construction of said dam, and that the said M. S. Hasie, Jr., has not, nor has any one else, paid the defendants the amount above mentioned which I find to be due and owing to them for the. said material. Said defendants .who furnished material gave notice to the city of Dallas under article 14, section 21, of the charter of the city of Dallas, which is as follows: ‘No lien of any kind can ever exist against the public school buildings, public halls, parks, or public works of the city of Dallas. All subcontractors, mate-rialmen, mechanics and laborers upon any public works of the city of Dallas are hereby required to notify the city of all claims they may have on account of such work against the city, and when such notice has been given, the city shall retain an amount from any funds due the contractors, sufficient to satisfy all claims; provided, that such notice may be given at any time after such indebtedness becomes due and before final settlement; and provided further, that no contractor or subcontractor shall issue any time checks on or on account of any public works of said city.’ ”

After Hasie abandoned the contract, and the city canceled the contract with him and took over the' work, the city entered into a new contract with the appellant to complete the work, requiring of it a bond by which it was agreed that the city was to turn over to the appellant the work that .had been done, including all implements, tools and machinery used and employed on the work, as well as all funds due and to become due and owing the said Hasie for the purpose of completing the saicP work in accordance with the terms and provisions of said contract. The con-. tract further stipulated, among other things, that:

“The said contractors are hereby authorized to use said tools, implements, and materials for the purpose of completing the said work; provided, however, that the said contractors, in taking charge of the said work, and using the said tools, implements, materials, etc., shall use the same subject to all valid claims against the same; provided, further, that in no event shall the city of Dallas be liable on account of any claims for any materials, tools, or implements owned by the said M. S. Hasie, Jr., but the said contractors fully assume the whole liability and any and all claims of any nature that may be legally asserted against the city of Dallas.”

Appellant completed said work at a loss of $4,000.

It is well settled by the decisions of this state that materialmen, laborers, etc., cannot fix a lien upon public works for money due them for material furnished or labor performed in the construction of such works. Bank v. Coleman, 151 S. W. 1123, and authorities cited therein; Bank v. Trust Co. 157 S. W. 472. This is recognized by appellees, but they claim, by virtue of a provision of the contract between the city and appellant, the appellant, in taking charge of the work and in using the tools, implements, material, etc., owned by the said Hasie, took the same subject to the claims of appellees.

The stipulation in said contract pertaining to the assumption of claims by Hasie reads as follows:

“The said contractors are hereby authorized to use said tools, implements, and materials for the purpose of completing the said work; provided, however, that the said contractors, in taking charge of the said work, and using the said tools, implements, materials, etc., shall use the same subject to all valid claims against the same, provided, further, that in no event shall the city of Dallas be liable on account of any claims for any materials, tools, or implements owned by the said M. S. Hasie, Jr., but the said contractors fully assume the whole liability and any and all claims of any nature that may be legally asserted against the city of Dallas.”

This provision of the contract is not entirely free from ambiguity, hut, when we consider that the appellees had given notice to the city of their claims as provided by the charter, and that appellant received from the city certain tools, implements, materials, etc., belonging to Hasie which were used by the appellant in the construction of the work, it is evident that the city and appellant considered said claims valid and subsisting, and that appellant was to pay the same. The city had exercised its option of taking over the work done by Hasie and the materials, tools, etc., he had on hand, which exceeded in value $2,083, and were turned over to appellant, it assumed liability for such claims, and, in addition thereto, all other claims which might be legally asserted against the city. The appellant got the benefit of said materials, etc., in completing the said work, which saved it that much expense it would otherwise have incurred. :

Appellant was surety on Hasie’s bond for the completion of the dam, and it undertook to complete tlie same in manner and form with the contract made by Hasie with the. city. That the dam cost more than the contract price does not weigh much in determining this question from an equitable’ standpoint; for appellees, who were under no obligation to complete the dam, parted with their property which was used by the appellant in its construction of the dam on the faith of being paid therefor by Hasie, and, if not by him, by the city out of money retained due the contractor. The city was under obligations to hold money enough from the contractor, if it could do so without loss'to itself, which it did, and under the terjns of the contract and principles of justice the appellees were entitled to recover, and the judgment is affirmed.

Affirmed.
      tgn^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes