text:
    WYNNE et al. v. STATE.
    (Court of Civil Appeals of Texas. Galveston.
    June 7, 1913.)
    Sheriffs and Constables (§ 157) — Liability on Official Bond — Fines Not Collected and Returned.
    Where commitments were issued by a justice court to a constable, none of which were
    ever returned into court, the constable and the sureties on his official bond w'ere liable to the state for the amount of the fines and costs adjudged against those against whom the commitments issued.
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 354-371; Dec. Dig. § 157.]
    Appeal from District Court, Jefferson County; W. B. Powell, Judge.
    Action by the State of Texas against C. L. Wynne and others. Judgment for plaintiff, and .defendants appeal.
    Affirmed.
    Holland & Holland, of Orange, for appellants. E. L. Bruce, of Orange, for appellee.

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   REESE, J.

This is an action in the district court by the state of Texas against C. L. Wynne, one time constable of precinct No. 1 of Orange county, and the sureties on his bond, as constable, to recover for the use of the state, and the officers entitled thereto, certain fines and costs adjudged against parties by the justice court of said precinct amounting in the aggregate to $302.98. A trial without a jury resulted in a judgment for plaintiff and against defendants for the amount sued for, from which defendants appeal.

The following are the facts as found by the trial court:

“This is a suit by the state of Texas in its own behalf and for the use and benefit of Orange county and for the úse and benefit of J. P. Tatum, justice of the peace, precinct No. 1, and for the use and benefit of E. L. Bruce, county attorney of Orange county, on the official bond of O. L. Wynne, as constable of precinct No. 1, Orange county, Tex.,- with J. W. Link and D. Mossiker as sureties, to recover the sum of $302.98, the balance unaccounted for on commitments issued out of the justice court, precinct No. 1, Orange county, Tex., on judgments rendered in said court at various times, and which commitments were placed in the hands of said Wynne as constable.
“C. L. Wynne was the duly elected and acting constable of precinct No. 1, Orange county, Tex., at and between the dates of November 14, 1908, and the 16th of August, 1909, and at all times and dates described in plaintiff’s petition, and was duly qualified as such, and the other defendants, J. W. Link and D. Mossiker, sureties on his official bond of such officer; and during all of said times, J. P. Tatum was the justice of the peace of precinct No. 1 and E. L. Bruce was the county attorney ofi Orange county.
“Judgments of conviction were duly and properly entered in the justice court of precinct No. 1, Orange county, at the times and against the parties named in plaintiff’s petition, and all of them, and the fines and costs amounted to the sums claimed in plaintiff’s petition.
“This suit; was filed October 27, 1911. Subsequently, to wit, on January 30, 1912, in a conflagration in the business portion of the town of Orange, the records of the justice court, precinct No. 1, were destroyed by fire, as well as all papers of said court, and especially the docket showing the matter in controversy in this suit as well as all commitments that had been executed and returned. Upon the entry of these judgments of conviction the justice of the peace on the days described in plaintiff’s petition issued in each case a commitment, which commitment, together with the defendant’s commitment, were delivered by him to the said O. L. Wynne, constable, either on the same day or very soon afterwards. That in none of such cases herein sued on has such original commitment ever been returned into said court by said O. L. Wynne or by any other officer. That no case is herein sued on in which the original commitment has been returned into said court. That in none of the cases covered by the commitments that were not returned by said constable, and being the ones herein sued on, have the defendants therein been committed to jail therefor; nor has any convict bond been given for the hiring of the defendant therein; nor has any of said defendants satisfied in whole or in part the amounts of such fine and' costs by confinement in jail or by working same out on the county roads; nor have such judgments been satisfied by said defendants-unless paid by them to the said O. h. Wynne. That no part of the amount claimed in plaintiff’s petition has been paid to or received by the parties entitled to receive the same as therein set out. The total sum of the amount due under said commitments, less the credits admitted in plaintiff’s petition, amounts to $118 fines in favor of the state; $23 costs owing to said J. P. Tatum, justice of the peace; and $161.18 owing to said E. L. Bruce, county attorney. That upon each of said judgments, at or about the time of the institution of this suit, a capias pro fine was prepared by said justice and county 'attorney, but the issuance of same was purposely not noted on the docket nor same placed in the hands of an officer for execution, but were prepared solely that said C. L. Wynne could go over same and could go in company with an officer to execute same and see if any, had been paid in full or in part. That same was done at the instance of said Wynne, and said Wynne promised to go over same, but has never called for same or gone over same; that the issuance of same was not noted on the docket, nor same turned over to an officer for execution, for the reason that the said justice and county attorney believed the same had been paid. That in none of the cases in which such capias pro fine prepared had there been any return of the original commitment issued to said Wynne. That it was the custom of said Wynne, as constable, to allow persons who had committed to him for the payment of fine and costs to go at large and make payment of the fine and costs due under the commitment to him in installments. That no testimony was offered to show whether such fine and costs covering the cause herein sued on had in fact been actually paid to said Wynne, except in some instances within the personal knowledge of said justice of the peace. And no testimony was offered by defendants herein to show that any of said fines and costs had not been collected by said Wynne.”

The appellants assigned error as follows:

“The court erred in holding that an officer receiving a commitment is liable on his official bond for the amount unpaid of the fine and costs stated in such commitment when such officer fails to execute such commitment regardless of whether he collects same or not, as shown by his first conclusion of law filed.”
“The court erred in holding that it is not necessary for plaintiff to cover 'in this cause to establish that any portion of the fines and costs have actually been paid to the officer, as found in his third conclusion of law filed.”
“The court erred in rendering judgment in favor of plaintiff and against these defendants, bondsmen, for the amount sued for because there was no evidence showing a breach of the conditions of the bond by the defendant Wynne, the principal of said bond, rendering these bondsmen liable for any sum sued for in that it was not shown that any of the sums mentioned in plaintiff’s cause of action had ever been collected by the officer or that he had failed to remit all sums collected by him.”

The case is ruled by the decision of this court in the case of Spradley v. State, 23 Tex. Civ. App. 20, 56 S. W. 114-442, in which writ of error was refused by the Supreme Court, and which is exactly in point. The facts in this case are stronger against appellants than in the case cited in that in the present case commitments were issued in every case and given to the constable, none of which was ever returned. We can add nothing to what is said by Chief Justice Garrett in the opinion of the court in the case cited.

The assignments of error are without merit and are overruled. Finding-no error, the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    LLOYD v. AMERICAN NAT. BANK.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 18, 1913.
    Rehearing Denied Feb. 15, 1913.
    Writ of Error Dismissed by Supreme Court May 21, 1913.)
    L Judgment (§ 256) — Conformity to Verdict.
    Where, in an action against the maker and an indorser of a note, the jury rendered a verdict for plaintiff “against defendant L. (the maker) and the F. Company (the indorser),” judgment was properly rendered against the two defendants jointly and severally, especially as the maker, who complained thereof, was unquestionably liable for the full amount.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §,§ 446-454; Dec. Dig. § 256.]
    2. Interest (§ 38) — Rate—On Judgment on Contract Fixing Rate.
    Under the express provisions of Rev. Civ. St. 1911, art. 4981, where a note stipulated for interest at 8 per cent., judgment thereon was properly rendered for the amount due at the date of the judgment, with interest from that date at 8 per cent.
    [Ed. Note. — For other cases, see Interest, Cent. Dig. §§ 79-82; Dec. Dig. § 38.]
    3. Appeal and Error (§ 302*) — Reservation op Grounds oe Review — Motions eor New Trial.
    Assignments of error that the court erred in rendering judgment against the defendants jointly and severally, because the verdict was against them jointly, and that it erred in adjudging that the judgment should bear interest at the contract rather than the legal rate, were waived where they were not set forth in the motion for a new trial, as required by rule 24 for Courts of Civil Appeals (142 S. W. xii).
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1744-1752; Dec. Dig. § 302.]
    4. Appeal and Error (§ 719) — Assignments op Error — Necessity.
    Alleged errors in rendering judgment against defendants jointly and severalty, although the verdict was against them jointly, and in directing that the judgment should bear interest at the contract rather than the legal rate, were not so fundamental as to be reviewable without an assignment of error under rule 23 for Courts of Civil Appeals (142 S. W. xii).
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.]
    Error from District Court, Tarrant County; R. H. Buck, Judge.
    Action by the American National Bank against A. D. Lloyd and another. Judgment for plaintiff, and the defendant named brings error.
    Affirmed.
    Crenshaw & Boykin, of Ft. Worth, for plaintiff in error. Bryan & Spoonts, of Ft Worth, for defendant in error.

       For other oases see same topio and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DUNKLIN, J.

A. D. Lloyd has appealed from a judgment in favor of the American National Bank of Ft. Worth against appellant and the Ft. Worth Glass Manufucturing Company upon a promissory note, executed by Lloyd payable to the Ft. Worth Glass Manufacturing Company, and indorsed by the payee to the plaintiff bank.

In its petition plaintiff alleged the execution and delivery of the note by Lloyd to the payee, and its indorsement and delivery by the payee to plaintiff, that the note stipulated that it should draw interest at the rate of 8 per cent, per annum. The petition was in the usual form for a recovery upon a promissory note. The only answer filed by Lloyd consisted of a general demurrer and general denial.

The jury impaneled to try the case returned the following verdict: “We, the jury, find for the plaintiff for the sum of $605.70 against the defendant A. D. Lloyd and the Ft. Worth Glass Mfg. Company.” Upon that verdict judgment was rendered in favor of the plaintiff against the two defendants jointly and severally for the amount determined by the jury, with 8 per cent, interest thereon from date of the judgment.

Appellant insists that the verdict should be construed as a verdict against the defendants jointly only, and that there was no legal basis for a several judgment against each defendant for the full amount due on the note. This contention is without merit, especially in view of the fact that appellant was the sole maker of the note and, unquestionably, liable for the full amount due. Southern Kan. Ry. Co. v. Crump, 32 Tex. Civ. App. 222, 74 S. W. 335.

By another assignment appellant insists that the decree .that the judgment should draw interest from its date at the rate of 8 per cent, per annum was unauthorized by the verdict and hence erroneous. Article 4981, Rev. Civil Statute (1911), reads: “All judgments of the several courts of this state shall bear interest at the rate of six per cent, per annum from and after the date of the judgment, except where the contract upon which the judgment is founded bears a specific interest greater than six per cent, per annum * * * in which case the judgment shall bear the same rate of interest specified in such contract and after the date of such judgment.” This statute fixes the rate of interest that all judgments shall bear, and, the rate of interest stipulated in the judgment in this case having been determined according to its plain provisions, this assignment is overruled.

Even though it should be held that either of the two assignments discussed above, which are the only assignments presented, show an error committed by the trial court, such error was waived by appellant because neither of said alleged errors was set forth in his motion for a new trial as required by rule 24 for Courts of Civil Appeals, and neither of such errors, if any, could be considered “so fundamental that the court would act upon it without an assignment of error as mentioned in rule 23.” For rules, see 142 S. W. xii.

The judgment is affirmed, with 10 per cent, of the amount of the same added as damages for delay, in accordance with the provisions of article 1629, Rev. Civ. Stat. (1911), and in compliance with appellee’s motion for such damages.


author: TALBOT, J.

text:
    BREWER v. A. M. BLYTHE & CO.
    (Court of Civil Appeals of Texas. Dallas.
    June 28, 1913.
    Rehearing Denied June 28, 1913.)
    1. Appeal and Error (§ 302) — Motion for ■ New Trial — Contents — Objection to Charges.
    Court of Civil Appeals rule 24 (142 S. W. xii), providing that a ground of error not distinctly set forth in the motion for new trial shall be considered as waived, must be construed with Rev. Civ. St. 1911, arts. 2061, 2062, providing that instructions shall be considered as excepted to in all cases, and that no bill of exceptions shall be necessary to save an exception thereto, and, when so construed, the rules do not require assignments of error to the giving or refusing of charges or to any other matter otherwise appearing of record to be included in the motion for new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §,§ 1744-1752; Dee. Dig. § 302.]
    2. Trial (§ 260) — Instructions—Requests —Instructions Already Given.
    A requested charge which is sufficiently covered by the charges already given is properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    3. Appeal and Error (§§ 743, 760) — Assignments of Error — Briefs—References to Record.
    Assignments of error to the admission of evidence and to the overruling of a motion for new trial charging that the judgment is contrary to law and the evidence, cannot be considered, where neither the assignment nor the brief show that these matters were urged in the motion for new trial in the lower court with a reference to the page of the transcript and clause of the motion in which the rulings were complained of.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011, 3095; Dec. Dig. §§ 743, 760.]
    Appeal from Kaufman County Court; Thos. R. Bond, Judge.
    Action by A. M. Blythe & Co. against Henry Brewer. Judgment for plaintiffs, from which defendant appeals, and the judgment was affirmed.
    On motion for rehearing, motion overruled and judgment below affirmed.
    Huffmaster & Huffmaster, of Kaufman, for appellant. Terry & Brown and Woods & Morrow, all of Kaufman, for appellees.

       For otlier cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   TALBOT, J.

A. M. Blythe & Co., a firm composed of A. M. Blythe, J. S. Woods, and Nestor Morrow, brought this suit to recover of appellant the sum of $571.50 for services as brokers alleged to have been rendered appellant in the sale of a tract of land. Appellant answered by a general demurrer, general denial, and plea of non est factum, denying that the written contract upon which appellees base their right to recover was executed by him or by his authority. A jury trial resulted in a verdict and judgment in favor of appellees for the sum of $400, and the appellant appealed.

At a former day of the present term we declined .to consider appellant’s assignments of error, because they were not in compliance with amended rule 24 and rule 25 (142 S. W. xii), prescribed by the Supreme Court for the government of the Courts of Civil Appeals, and affirmed the case. We were of the opinion, and so held, that appellant’s assignments of error were not briefed in accordance with the rules mentioned, in that neither of them showed that the error complained of was distihctly set forth in a motion for a new trial in the lower court with a reference to the page of the transcript and particular clause of the motion in which the error was complained of. Appellant in due time filed a motion for a rehearing in this court, and under the decision of the Supreme Court of this state in the case of Railway Co. v. Beasley, 155 S. W. 183, rendered since the ruling of this court on the subject was made, our former opinion is withdrawn, and this opinion substituted therefor. In the case referred to the Supreme Court holds that rule 24, as recently amended, in so far as it requires objections to the giving or refusing of charges, and, in effect, to any other ruling which appears of record, to be set up in a motion for a new trial, is in conflict with articles 2061 and 2062 of the statute and the construction placed upon them by that court, and must be construed so as to harmonize with said articles of the statute and the former decisions of that court. This decision of the Supreme Court sets at naught the rule in the respect referred to, and the errors necessary to be complained of in a motion for a new trial in the court below in order to be available on appeal are practically the same as before said rule was promulgated. Such, therefore, of appellant’s assignments of error as complain of charges given and refused by the trial court, and other rulings which under the statutes referred to must be considered-as excepted to and which appear otherwise of record, are entitled to consideration, although no motion for a rehearing embracing the error therein complained of was presented in the court below. Under this construction of the statutes and rules, only appellant’s first, second, and fifth assignments can be considered.

The first assignment complains of the court’s refusal to give a special charge requested by the appellant to the effect that to make a contract there must be a mutual assent; that the assent must comprehend the whole of the proposition, and, if the jury believed from the evidence that appellant did not understand and assent to the contract made by appellees with Crane and Legg for the sale and purchase of the land in question, the same would not be binding upon appellant. The second, assignment complains of the refusal to give a special charge asked by appellant,, to the effect that, if the appellees proved a contract at variance with the contract alleged, they could not recover. The fifth assignment asserts that the court erred in giving at the instance of appellees the following charge: “If you believe from all the evidence before you in this case that the contract offered in evidence by plaintiffs was signed by Nestor Morrow as agent and representative of defendant Brewer, and that he was authorized by Henry Brewer to sign same, in that event it would be a binding contract on Henry Brewer the defendant; and, if it further appears from all the evidence before you that the said Henry Brewer afterwards refused to carry out said contract and breached the same, then and in that event the plaintiffs would be entitled to recover their commissions sued for herein. You are further instructed that if the said Morrow was authorized to sign said contract, and the said Henry Brewer afterwards changed his mind as to some of the details thereof, it would not prevent the plaintiffs from recovering their commissions sued for.”

Our conclusion is that the court did not err in either of the rulings here complained of. The evidence did not call for a charge on any such question of variance as claimed, and the above special charge given at the request of the appellees was a correct application of the law to the facts, which, together with the general charge, rendered the giving of the special charge requested by appellant, and made the basis of his first assignment of error unnecessary. In order to return a verdict in favor of the appellees, as they did do, the jury must have found under the general charge of the court and the special charge given at the instance of ap-pellees, and of which complaint is made, that appellant assented to the very contract in question and authorized Nestor Morrow, a member of appellees’ firm, to sign it for him. The first assignment of error does not present a case in which a charge directing the minds of the jury to the very facts in issue and invoking their judgment upon the evidence relative thereto was asked. In addition to the special charge above quoted, and given at the request of the appellees, the trial court by its general charge made appellees’ right to recover depend upon a finding by the jury that the plaintiffs and the defendant entered into such a contract of sale as is alleged in appellees’ petition.

The other two assignments of error complain, respectively, of the admission in evidence of the contract of sale and the overruling of appellant’s motion for a new trial, asserting that the verdict and judgment are contrary to the law and the evidence, in that the evidence fails to show that the plaintiffs found a buyer able, willing, and ready to buy upon the terms that appellant proposed to sell. These assignments are not entitled to consideration because not briefed as required by the rules, in that neither in the assignment nor in the brief is it shown that these matters were urged in a motion for a new trial in the lower court, with a reference to the page of the transcript and clause of such a motion in which the rulings were complained of. But, if we were disposed to consider the assignments of error, we are not prepared to hold that the court erred in either of the rulings attacked.

Appellant’s motion for a rehearing will be overruled, and the judgment stand affirmed.

Affirmed.


author: PLEASANTS, C. J.

text:
    SILSBEE ICE & MFG. CO. v. TIPPETT-STANLEY-GARNER CO.
    (Court of Civil Appeals of Texas. Galveston.
    June 19, 1913.)
    Coporations (§ 425) — Authority ox Agent —Estoppel op Principal.
    Where the manager of an ice company authorized a bookkeeper to make purchases necessary to prevent the suspension of work, but did not authorize him to make any other purchases, and the bookkeeper purchased a reboil-er to test an invention in which he was interested, plaintiff, relying solely on his statement that he was manager, cannot recover against the ice company; it appearing that it forbade the use of the machine when it discovered the purchase, and that plaintiff did not know of the bookkeeper’s previous purchases.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1697-1701, 1705; Dec. Dig. § 425.*]
    Appeal from Jefferson County Court; R. W. Wilson, Judge.
    Action by the Tippett-Stanley-Garner Company against the Silsbee Ice & Manufacturing Company. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    A. F. Brigance, of Navasota, and F. J. & C. F. Duff, of Beaumont, for appellant. .J. D. Wilkerson, of Beaumont, for appellee.

       For otter cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PLEASANTS, C. J.

This suit was brought by appellee against appellant. In his amended petition plaintiff alleged: “That during the month of August, 1910, the firm of Tip-pett-Stanley-Garner were engaged in the manufacturing business of tin, iron, and steel in the city of Beaumont; that during the month of August, 1910, one J. A. Shepard employed the firm of Tippett-Stanley-Garner to manufacture and deliver to the defendant, Silsbee Ice '& Manufacturing Company, two pans for the manufacture of ice; that one of the pans was to be delivered to the Silsbee lee & Manufacturing Company at Silsbee, and the other to be delivered to the Beaumont lee, Light & Refrigerating Company at Beaumont. The Tippett-Stanley-Garner Company manufactured the pans in accordance with the order of J. A. Shepard and delivered them to the Silsbee Ice & Manufacturing Company at Silsbee and the Beaumont Ice, Bight & Refrigerating Company at Beaumont; that, under the terms of the contract between J. A. Shepard and the Tippett-Stan-ley-Garner Company, the defendant, Silsbee Ice & Manufacturing Company, was to pay for all the material used and for the labor in building the pans at the usual and customary rate. The pan manufactured and delivered to the Beaumont Ice, Light & Refrigerating Company cost and was reasonably worth the sum of $262.85; that the pan delivered to the defendant Silsbee Ice & Manufacturing Company at Silsbee was of the reasonable value and cost of $146.95; that the defendant, through its agent or manager, J. A. Shepard, a.greed to pay to the firm of Tippett-Stanley-Garner the sum of $409.80 for said work, but though often requested they have failed and refused to do so.” Plaintiff prayed for damages against the Silsbee Ice & Manufacturing Company in the sum of $409.80, with interest from September 1, 1910, at the rate of 6 per cent, per annum.

In addition to a general demurrer and general denial, the defendant especially denied that J. A. Shepard was its agent and averred that if the said Shepard employed the plaintiff firm to manufacture said pans, as alleged in plaintiff’s petition, he had no authority to make such contract and defendant is not bound thereby.

By supplemental petition plaintiff alleged that J. A. Shepard was employed as the agent of the Silsbee Ice & Manufacturing Company and was placed in charge of all its usual and customary business at that point; that Shepard was permitted to purchase goods, wares, and merchandise in the name of and upon the credit of the defendant; that the defendant had no other agent or employs at Silsbee with higher authority than said J. A. Shepard actually had; and that. J. A. Shepard held himself out to the world as the manager or agent of said defendant at Silsbee, and. was permitted by the Silsbee lee & Manufacturing Company to so hold himself out, and that, if there were any restrictions upon the authority of the said J. A. Shepard, same was done in secret and undisclosed. Plaintiff further alleged that it knew that Shepard claimed to be the manager of the plant of the defendant at Silsbee, and that the order for the payment as given to the plaintiff was signed by J. A. Shepard as manager. The trial in the court below without a jury resulted in'a judgment in favor of plaintiff for the sum of $453.44.

After a careful consideration of the statement of facts, we have reached the eonclu-, sion that there is not sufficient evidence to sustain the finding, of the trial court that Shepard was authorized by appellant to make the contract with appellee for the manufacture of the pans, or that appellee in making the contract relied upon any apparent authority of Shepard to bind appellant by said contract. The undisputed testimony shows that Shepard was the bookkeeper for the appellant corporation, which operated an ice manufacturing plant at the town of Sils-bee. R. W. Horlock was the general manager of the appellant company. He lived at Nava-sota and only went to Silsbee every week or two, as necessity arose, for his personal presence in directing the business of the company. His bookkeeper and his engineer who ran the ice plant made daily reports to him. Shepard, the bookkeeper, had no authority to make contracts for the company or to make any purchase of supplies except in cases of emergency and for articles needed for immediate use to prevent the shutting down of the plant. The extent of his authority is thus stated by the witness Horlock: “He had orders that in case of emergency, when they needed pipe fittings, valves, or packing, or anything to keep the plant from shutting down, he need not take it up with me, but to order it and it would be all right.”

The pans in question were ordered by Shepard without the consent or knowledge of, the manager, and as soon as he found that one of them had been placed in the plant he ordered its use discontinued. The pans or reboilers, as they are called, were ordered by Shepard for the purpose of testing an invention of the engineer of appellant for which a patent had been obtained and in which it seems Shepard was interested. The appellant had no connection with the Beaumont Ice, Light & Refrigerating Company, and the manager of appellant did not know until months after the transaction that the reboilers or pans had been ordered for appellant or had been charged to it. The pan sent to appellant’s plant was not used with the consent or knowledge of the manager, and after he discovered that it had been placed in the plant, as before stated, he ordered its use discontinued and it was taken out and is now lying on the ground near appellant’s plant. The evidence shows that, under the authority given Shepard to order supplies in case of emergency, he had frequently sent small orders to the E. L. Wilson Hardware Company at Beaumont, and appellant had paid for the goods so ordered, but there is no evidence that appellee had any knowledge of these transactions when it accepted and filled Shepard’s order for the manufacture of the pans.

The evidence wholly fails to show that ap-pellee in making the contract with Shepard relied upon or had knowledge of any facts which yould justify the belief that Shepard had authority from appellant to make said contract. So far as the evidence shows, ap-pellee in making the contract relied solely upon Shepard’s statement that he was the manager of appellant corporation. Upon these facts, no estoppel could be claimed against appellant by which it could be held liable except upon the unauthorized contract of Shepard. Rail v. Bank, 3 Tex. Civ. App. 587, 22 S. W. 865; Wolf Co. v. Galbraith, 39 Tex. Civ. App. 351, 87 S. W. 390. Shepard was not held out by appellant as its general agent or manager and had neither real nor apparent authority to make the contract with appellee.

Such being our conclusion from the undisputed evidence, it follows that the judgment of the court below should be reversed and judgment here rendered in favor of appellant, and it has been so ordered.

Reversed and rendered.


author: RASBURV, J.

text:
    ROBERTS et al. v. PRATHER et al.
    (Court of Civil Appeals of Texas. Dallas.
    June 14, 1913.)
    1. Vendos and Puechaseb (§ 249) — Purchase-Money Securities — Execution to Third Person.
    A note executed by a vendee of land to a third person furnishing the funds to pay the vendor, and reserving a vendor’s lien, is good in the hands of the payee.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 650; Dec. Dig. § 249.]
    2. Covenants (§ 84) —Persons Liable — Warranty oe Title.
    A third person who advances money to a vendee to enable him to purchase land, on notes payable to such third person directly instead of to the vendor, does not warrant the title to the land, nor is he liable, in the absence of notice, for a deficiency in quantity.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 90-92; Dec. Dig. § 84.]
    3. Vendor and Purchaser (§ 15) — Consideration— Partial Failure.
    Where, as part of a sale of land, the ven-dee executed notes for part of the purchase price to a loan company, which advanced the ■amount specified in the notes for the vendee, to be paid to the vendor: and such company had no notice of a material shortage in acreage which subsequently developed and did not participate in any misrepresentation as to the acreage of the land made by the vendor or his broker, such shortage did not constitute a partial failure of consideration for the notes as against the loan company.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 16; Dee. Dig. § 15.]
    4. New Trial (§ 103) — Newly Discovered Evidence.
    Where, in an action on notes given by a vendee to a loan company for money advanced by the latter to make up the purchase price of land and paid to the vendor, the vendee pleaded partial failure of consideration in that there was a material shortage in the quantity of the land, of which there was no proof that the loan company had notice, newly discovered evidence that the selling broker for the vendor divided his commissions with one who agreed to secure the money from the loan company was insufficient to justify a new trial, since it had no material bearing on the question whether the latter had knowledge of the shortage.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 215-217; Dee. Dig. § 103.]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    Suit by M. E. Roberts and others against F. M. Prather and others. Judgment for plaintiffs against defendant Prather but in favor of defendants Texas Title & Loan Company and Mrs. Prather, and plaintiffs appeal.
    Affirmed.
    Will Hancock and Tom R. Whipple, both of Waxahachie, for appellants. J. T. Spencer, of Waxahachie, for appellees.

       For otter eases see sainé topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RASBURV, J.

Appellants instituted suit in the court below against F. M. Prather, his wife, Martha A. S. Prather, and Texas Title & Loan Company alleging that on October 5, 1910, they purchased from said Prather and wife a tract of land situated in Ellis county, said to contain 125½ acres, and agreeing to pay therefor $75 per acre, but which in fact contained only 92.3 acres of land. Allegations of fraud and misrepresentations on the part of Prather as to the quantity of land which induced the purchase were made. It was also alleged that a portion of the unpaid purchase price of said land was represented by outstanding notes of appellants sufficient in amount to cover the shortage in the land which appellants sought to cancel on the ground that the consideration therefor had failed. It was also alleged that appellee Texas Title & Loan Company was the owner of said notes and was not an innocent holder or purchaser of same but a party to and had participated in the fraud perpetrated upon appellants in reference to the acreage of said tract of land. Judgment was asked correcting the description of the land and canceling the notes held by the Texas Title & Loan Company, appellee, to the extent of the shortage and for damages against Prather, etc. Appellee Texas Title & Loan Company, for the purpose of this appeal, answered the suit by general demurrer, general denial, and by special plea, asserting that it was the purchaser of the notes before maturity in good faith without notice of the deficiency in the acreage of the land, and estoppel. Trial was before jury, and at the conclpsion of the testimony the presiding judge instructed the jury to return a verdict for appellants against Prather for the amount of the shortage and to return verdict for appellee Texas Title & Loan Company and Mrs. Prather. Verdict was in accordance with the instructions and upon which judgment was entered. Appellants do not complain of the verdict against Prather; nor does Prather complain thereof or file brief or other appearance in this court.

The facts developed upon trial are undisputed, and those material to the disposition of the appeal are, in substance, that Prather and wife conveyed to appellants by general warranty deed a tract of land in Ellis county, purporting to contain 125½ acres. The consideration was $9,412.50, or $75 per acre, |paid as follows: Cash $3,000; notes aggregating $3,162.50, payable to Texas Title & Loan Company, secured by tbe following clause in. tbe deed from Prather and wife to appellants: “It is understood that the said Texas Title & Loan Company at the request of the grantees herein having paid to the grantors herein $3,162.50, for which said notes were executed, it (said Texas Title & Loan Company) is subrogated to all the rights, equities, and liens to which the grantors herein are entitled just the same as if the said notes had been made payable to the order of said grantors and by them transferred to it” — the balance of $3,250.50 was paid by appellants assuming the payment of a pre-existing debt for that amount against the land in favor of Texas Farm & Mortgage Company. Before the execution of the deed just mentioned, appellants agreed with J. 6. Cornwell, the agent who had the land for sale for Prather, that they would purchase the land upon the terms they did purchase if Cornwell would arrange with some one to carry the notes; Prather not being willing to do so and authorized him to make such arrangement. Cornwell, with the knowledge of appellants, and as stated, at their request arranged for the Texas Title & Loan Company to carry the notes. Upon the execution and delivery of the deed by Prather et ux. to appellants, the Texas Title & Loan Company paid to Prather, the grantor, $3,162.50 and received as consideration therefor appellants’ notes covering said amount. Prior to purchasing the land Prather informed Cornwell, the agent who brought about the sale from Prather to appellants, that the tract of land contained 325½ acres, and Cornwell in turn so represented to appellants, who relied upon such representation and accepted same as true. The price agreed upon to be paid for the land was $75 per acre. Subsequent to the purchase of the land and after appellants had gone in possession of same, they suspected a shortage in acreage and surveyed it, finding it short about 33 acres. Texas Title & Loan Company, nor its president, who agreed to carry appellants’ notes, nor Corn-well, Prather’s agent, and who negotiated as well the sale of the notes to Texas Title & Loan Company, knew or was in the possession of facts which would charge them with notice of the fact that the tract of land contained less than 125½ acres of land.

By authority of their first assignment of error, which complains of the action of the court below in peremptorily instructing a verdict for appellee Texas Title & Loan Company, appellants assert the proposition that one who advances money to pay part of the purchase price of land and takes notes therefor payable to himself, and causes the vendor to recite such fact in the deed, and subro-gates himself to the lien of the vendor, is not an innocent'purchaser or holder of such note, but on the contrary becomes subject to the same defenses and liabilities that the vendor in the deed is liable for and subject to.

In connection with the foregoing claim, it has long been settled, and the rule is not disputed by appellants, that “where one sells land to another and the purchase money is paid by a third person, to whom the vendee gives a note for the purchase money reserving a vendor’s lien, the note and lien are good in the hands of such third person.” Johnson v. Townsend, 77 Tex. 639, 14 S. W. 233. Consequently the validity of the notes and the lien securing them, together with the right of the owner of the notes to enforce same is not an issue in the case.

Such being the case, the question then arises: Does one who thus advances money upon notes payable to him directly, instead of the vendor in the conveyance, take the place of the vendor and become, as contended by appellants, a warrantor of the title to the land? We conclude he does not. In the absence of any testimony in such case, the presumption will be indulged that the arrangement evidences convenience rather than any intention on the part of the payee to warrant the title of the vendor — a convenient and inexpensive method of assigning the notes by the vendor by causing them to be made payable to such assignee originally. And the rights and liabilities of the parties shall be determined in that respect as if the notes had been originally payable to Prather and by him assigned to Texas Title &' Loan Company by formal transfer. The undisputed testimony in the instant case affords nothing indicating any contrary intention by the parties ; in fact, the testimony not only supports the legal presumption but establishes an express agreement to that effect, since it clearly appears that it was agreed by all parties that the arrangement which was made should be made on the part of Prather the vendor, because he wanted his interest in the land to be paid in cash, and on the part of appellants because they were unable to purchase the land unless some one was found who would carry for them the deferred payments upon £he land. If the testimony left the matter in doubt, then the deed accepted by appellants makes it clear that the purpose of the arrangement was as we have said, since the clause therein subrogating ap-pellee to the lien of Prather affirms that ap-pellee shall have the same rights he would have “as if the said notes had been made payable to the order.of said grantors and by them transferred” to appellee.

This only leaves for our consideration, on appellants’ plea of failure of consideration, whether appellee Texas Title & Loan Company bought the notes before maturity for value without notice of the shortage in the land and hence an innocent holder of the notes. As shown in our statement of the testimony, appellee acquired the notes upon the delivery of the deed and .of course before maturity, paying Prather the face value therefor. No fact or circumstance was developed upon trial tending in the slightest to show knowledge on the part of any one that the land contained less than 125½ acres, unless it was the vendor, Prather. While it is clear that appellants thought they were getting 125 ½ acres of land, and while it may work a hardship upon them, it is equally clear that appellee did not participate in any misrepresentation in that behalf, had no notice of it, and owed appellants no duty to investigate the truth of such misrepresentations, if made by another.

The second and last assignment of error complains of the refusal of the court to grant appellants another trial because of material testimony discovered since the trial. The newly discovered testimony was the affidavit of J. G. Cornwell, Prather’s agent, that he (Cornwell) divided with Coleman the commissions he received from Prather for selling the land, and that he was informed that Prather was at the time of the sale on a deal with Coleman or the Texas Title & Loan Company for lands which one or the other owned or controlled. This testimony, if admissible on trial, could have had no material bearing upon the question of whether appellee Texas Title & Loan Company knew of the shortage in the land. It was necessary to secure some one to carry the notes before the sale and purchase could be consummated, and the fact that Coleman, who agreed to secure the money from the Texas Title & Loan Company and make the trade possible, received as compensation for his services a part of Cornwell’s commission was in no respect a fact or circumstance importing or tending to establish knowledge on the part of either that Prather’s land was short of what he represented.

The judgment is affirmed.


author: REESE, J.

text:
    FRITSCHE et al. v. NIECHOY.
    (Court of Civil Appeals of Texas. Galveston.
    June 21, 1913.)
    Injunction (§ 5) — Right ox Issuance.
    Where plaintiff had judgment in a forcible-entry and detainer suit brought in justice court against defendant, who appealed to the county court, giving a bond that no transcript had been filed in the county court, though over two terms had elapsed, a mandatory injunction should not be granted to oust defendant from possession, though defendant had placed another person in possession to hold the property for him, for if the appeal was still pending, the right to possession should not be determined by an independent injunction proceeding ; and, if it was not, a proper writ under the original judgment would place plaintiff in possession.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 4; Dec. Dig. § 5.]
    Appeal from Chambers County Court; R. J. McMurrey, Judge.
    Action by L. A. Niechoy, as administrator, against Charles Fritsche and another. From an order issuing a mandatory injunction without notice, defendants appeal.
    Reversed and remanded.
    A. L. Beason, of Anahuae, for appellants.

       For other eases see same topic and section NUMBER. in Dec. Dig. & Am. Dig. Key-No. Series & R-ep’r Indexes

   REESE, J.

This is an appeal from an order of the county judge of Chambers county, made and entered in chambers, and without notice to the defendants, granting to appel-lee a mandatory writ of injunction commanding the defendants to cease possession of certain premises described in the petition, or application for the injunction, in person or by agent or tenant, and remove from said premises, and to deliver same to the plaintiff as administrator of the estate of Charles Fritsche, Jr., and that plaintiff be allowed to take charge and possession of said premises until the final determination of the right of. possession of said premises by a court of competent jurisdiction. By order of the county judge plaintiff was not required to give bond.

It is set out in the petition that the premises were the property of the estate of Charles Fritsche, Jr., of which plaintiff was administrator; that after the death of said Charles Fritsche, Jr., defendant took forcible possession of the property; that plaintiff brought suit against him in the justice court in an action of forcible entry and detainer, in which action he had judgment for the restitution of the premises; that defendant, appellant Charles Fritsche, gave notice of appeal to the county court from said judgment (which was alleged to have been rendered - day of November, 1912), and gave an appeal bond, but that the transcript on appeal had never been filed in the county court, although two terms of said county court had passed since taking said appeal, and that it is not the intention of the defendant Fritsche to prosecute said appeal. It is further alleged that immediately after said judgment in the forcible entry and de-tainer suit, the said defendant “for the purpose of evading said judgment, and for the purpose of holding wrongfully said premises, placed in possession thereof his codefend-ant, and that said last-named defendant is holding possession of the premises for said defendant Charles Fritsche, and that, however said cause tried in November should result in the county court, this plaintiff could not take possession of said premises, for the reason that the last-named defendant was not a party to the forcible entry and detainer suit.” The foregoing are the substantial allegations of the petition.

It needs no argument to show that the issuance of the injunction by any court or judge would not have been authorized. Certainly it needs none to show that the action-of the county judge in thus summarily dispossessing defendants of the premises and property was without any authority. If the appeal from thg judgment in the forcible entry and detainer suit was pending, obviously the county judge could not thus forestall the judgment on such appeal. If the appeal had been abandoned and lost by failure to file the transcript in the county court, no mandatory writ of injunction was necessary to place the plaintiff in possession. All he had to do was to sue out a proper writ under such judgment, and it would have made no difference that the defendant in that action had placed some one else in possession to hold possession for him, as is charged.

The issuance of the writ of mandatory injunction was unauthorized from any view of the case. The order appealed from is reversed, and it is ordered that the writ of mandatory injunction be set aside, canceled, and held for naught.


text:
    WESTERN UNION TELEGRAPH CO. v. VICKERY.
    (Court of Civil Appeals of Texas. Dallas.
    June 7, 1913.
    Rehearing Denied June 28, 1913.)
    1. Telegraphs and Telephones (§ 68) — Delay in Delivering Message — Damage por Mental Suffering — Elements.
    In an action for mental suffering caused by delay in delivering telegram notifying the addressee of his brother’s funeral, suffering caused by the fear that those present at the funeral might think his absence due to want of affection for his brother is not a proper element of damage, since it is too uncertain to have been in the contemplation of the parties at the time the contract was made.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. § 68.]
    2. Trial (§ 133) — Misconduct of CouNsei^-Action of Court.
    Where counsel for the plaintiff argued that such a fear is a matter that would cause suffering to the plaintiff, and the court refused to give a requested charge that such suffering was not an element of damage in the case, it cannot be said that the same verdict would have been reached if the error had not occurred and the judgment will be reversed.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. § 133.]
    3. Witnesses (§ 400) — Contradiction — ■ Right to Contradict Own Witness.
    A party in a civil action may contradict the testimony of his own witness even though he is not surprised thereby.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 126S, 1269; Dec. Dig. § 400.*]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by E. L. Vickery against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    E. G. Senter, N. L. Lindsley, and E. G. Senter, all of Dallas, for appellant. J. M. Overstreet and Carden, Starling, .Carden' & Hemphill, all of Dallas, for appellee.

       For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   TALBOT, J.

The statement of the case made by appellant is not contested by appel-lee, and we take it to be correct and adopt same, viz.:

“Plaintiff, E. L. Vickery, sued the defendant, Western Union Telegraph Company, alleging that he had suffered damage in the sum of $1,999.99 as the result of the failure of defendant to deliver to him a message filed at Hico, Tex., and reading as follows: ‘Hico, Texas, 2 — 21—11. E. L. Vickery, 2713 Gaston Ave., Dallas: Brother will be buried here Wednesday. A. A. Vickery,’

“The plaintiff alleged that the sender of the message was his brother; that he had another brother by the name of J. L. Vick-ery, who died in New Mexico a few days prior to the date of the message, whose death was unknown to plaintiff until February 23, 1911, when he first learned of such death and burial and when he first learned about the message; that the message was dictated to and written by an agent of the defendant, and that the agent by mistake understood and addressed it to 2713 Jackson avenue; that soon thereafter the sender discovered the mistake and again notified the agent that the correct address of the plaintiff was 2713 Gaston avenue; that the agent then assured him that that was all that was necessary to cause the delivery of the message to plaintiff at his correct address; that defendant’s agent at Hico knew when the message was delivered to him that its contents related to a brother of the plaintiff and that the purpose was to advise plaintiff of the death of his brother so as to enable him to be present at the burial and funeral; that if the defendant had exercised ordinary care it could and should have delivered the message to plaintiff at his residence, 2713 Gaston avenue, Dallas, in time for him to have gone to Hico and to have been present at the burial and funeral of his brother; and that if the message had been delivered to him he would have been present at the funeral and burial.

“Defendant answered by general denial and with special pleas: (1) That plaintiff was fully, advised on and prior to the 20th of February that his brother had been shot and dangerously wounded and that he would probably die, or might die, as a result of his wounds, and that with such knowledge plaintiff made no effort whatever to ascertain the condition of his brother from day to day, or to communicate with him, or to ascertain whether he was dead, or to ascertain where he would be buried if he died, and made no preparations of any sort to attend his funeral if he should die, and wholly neglected and failed to take any steps whatever that would have shown a brotherly interest in his wounded relative, or to exhibit any desire to communicate with him, or to send his consolations to his brother, or to receive any message from him, or to contribute to relieve bis sufferings, or to minister to him in any way, or to eo-operate with his other relatives who he knew were in communication with his wounded brother, but on the contrary exhibited complete indifference to his brother and to his condition or danger; that if the plaintiff had so desired he could have been in communication with his brother by telegraph and by mail, and could and would have known from day to day his condition, and would have been advised of his death; that plaintiff wholly neglected to take any such steps as a brother would ordinarily have done under such circumstances ; that if he had so done he would have been fully apprised of all the facts relating to the death and burial of his brother, independent of the message described in his petition, and could and would have been present at the funeral of his brother; that the message was filed at the office of the defendant at Hico on the 20th of February, 1911, and that plaintiff’s brother was not buried until February 22, 1911, at 3 o’clock p. m.; that the train time between the city of Dallas and the town of Hico, where the brother of the plaintiff was buried, is only about five hours, and that there were several morning trains leaving Dallas every day on which plaintiff might have gone to Hico; that by the exhibition of any interest whatever in his brother’s condition and prospective death and burial, and with the knowledge of the facts which he had on and prior to the 20th of February, plaintiff could have gone to Hico and could and would have been present at the funeral of his brother, acting upon the information which he had independent of the message described in his petition, and because of his failure so to do plaintiff was guilty of contributory negligence. (2) That plaintiff on and prior to the 20th of February did not remain, during the day, at his room at 2713 Gaston avenue, but that he was constantly away from said place, and that he knew prior to said time that he would be away from said place throughout each day; that prior to said time he was in possession of the knowledge that his brother was wounded and would probable die, and that information might come to him any day of the death of his brother and touching the plans for his burial; that there was no one present at the rooms of the plaintiff at said time to receive any such information that might be delivered there, and that plaintiff, with a knowledge of all said facts, made no arrangements for the receipt of such information or any telegrams in his behalf, and made no sufficient or adequate arrangements whereby he could and would have been advised of the receipt of any telegrams intended for him with reference to said matter, and that the failure of the plaintiff to make any such arrangement was contributory negligence.”

After due consideration of all the assignments presented by appellant, we have concluded that none require reversal of the case except assignments 15 and 16, which pertain to the same matter, and are grouped by appellant; therefore we will discuss but two propositions raised by said assignments, which read:

“(15) The court erred in overruling paragraph 25 of defendant’s motion for new trial complaining of the refusal of the court to give to the jury special instruction No. 20 requested by the defendant.
■“(16) The court erred in overruling paragraph 28 of. defendant’s motion for new trial, complaining of the improper argument by counsel for plaintiff in which he argued to the jury that among the matters that would cause the plaintiff to suffer mentally would be the thought upon his mind that those present at the funeral might misconstrue his absence, and that he might be thought by them to be wanting in brotherly' affection because of his absence from the funeral, said argument being highly prejudicial to the defendant, and the plaintiff not being entitled to recover damages on any such grounds, and the court then and there having refused a request made by defendant that it would instruct the jury not to consider said argument, and having indicated by its ruling to the jury that the court would consider that the jury had a right to give the plaintiff damages upon the grounds thus argued by plaintiff’s counsel, and the court having further refused a request made by the defendant in writing instructing the jury not to consider such argument, all of which more fully appears in defendant’s bill of exception No. 1, and in its special instruction No. 20.”

Counsel for plaintiff in the concluding argument to the jury contended “that among the matters that would cause the plaintiff to suffer mentally would be the thought upon his part that those who were present at the funeral might misconstrue his absence, and that he might be thought by them to be wanting in brotherly affection because of his absence from the funeral.” Whereupon counsel for the defendant objected to said argument upon the ground that such a matter did not constitute a proper element of recovery herein and asked the court to instruct the jury not to consider said argument, which request was refused by the court, to which ruling the defendant excepted.

Appellant requested the following instruction: “You are instructed to disregard the argument of counsel for the plaintiff in the concluding argument to the effect that the plaintiff has suffered mentally as the result of his absence from the funeral being misunderstood by others; such suffering, if any, not being an element of damages for which he may recover in this case.” The court in its charge instructed the jury that if plaintiff was entitled to recover to find for mental suffering, without in any way confining them to the character of mental suffering for which plaintiff was entitled to recover. The suffering for which one is entitled to recover is that which would naturally arise in every one in being deprived of the privilege of attending the funeral of a near relative. What one might conceive in his brain as to what the opinion of people might be of him in the event he was not present at the funeral is too uncertain as an element of damages and could not well have been in contemplation when the contract for the delivery of the message was entered into. The measure of damages must be governed by what the parties to the contract reasonably supposed would result from a breach of the contract; that is, such as arise naturally and in the usual course of things. Telegraph Co. v. Edmondson, 91 Tex. 206, 42 S. W. 5491

Where one dies it is natural for his relatives to desire to attend the funeral and they are grieved if prevented from doing so, but to suffer on such occasions for what others might think of them because absent does not naturally arise, and to consider it as a ground of recovery would be carrying the doctrine to its fullest extent and to an extent to which the courts of our state have not gone. Telegraph Co. v. Edmondson, supra.

By counsel arguing to the jury an element of damages which under the law the jury had not a right to consider, for which the court failed to admonish them, was not correct ; the court also failing to give an instruction requested by appellant that they should not be controlled by such argument, which instruction should have been given, under the circumstances was calculated to induce the jury to believe that such was the rule of law, and which may have been considered in reaching their verdict. Under the circumstances, we are not prepared to say that the same verdict would have been rendered had this proceeding not occurred.

In view of a new trial, it may be well to give notice to the seventh assignment of error, which complains that after appellee had Introduced the testimony of Roseoe Favors, which tended to show that he delivered the message at the house where appellee was staying, appellee was permitted to introduce evidence showing that no such delivery was made. The contention is that a party cannot contradict his own witness, unless he has been surprised by some statement by the witness, etc., and in support of this contention Railway Co. v. Crump, 110 S. W. 1013, is cited. That case was decided by this court, and we are still of the opinion, under the facts of that case, we were correct. As a general rule a party cannot contradict his own witness, but there are exceptions to this general rule. As illustrative we quote section 857 of Jones on Evidence (1912 Ed.) as follows: “The general rule that one cannot impeach his own witness must not be understood to imply that the party is bound to accept such testimony as correct. On the contrary, it is very clear that the one producing a witness may prove the truth of material facts by any other competent evidence, even though the effect of such testimony is to directly contradict his own witness. Thus in an action on warranty by defendant’s servant, where the servant was called by the plaintiff as a witness and testified that he had given no warranty, the plaintiff was allowed to prove, by other witnesses, that the servant had in fact given such warranty. So where the defendant called the plaintiff as to the ownership of the note sued on, the defendant was allowed to disprove by other witnesses the testimony thus given. A party may offer the books of his witness in evidence, although they contradict the testimony of such witness. A party is not bound by all the statements of a witness called by him, if adverse, even though no other witnesses are called to contradict him; the party may rely on part of such testimony, although in other parts the witness denies the facts sought to be proved. It has been well said that, if the other rule should prevail, ‘every one would be at the mercy of his own witnesses, and, if the first witness sworn should swear against him, he would lose the testimony of all the rest. This would be a perversion of justice.’ ”

The above quotation is applicable to the facts of this case, and we think shows there was no error in admitting said testimony.

For the error indicated, the judgment is reversed, and the cause remanded.


author: RASBURY, J.

text:
    ECKLES v. NOWLIN et al.
    (Court of Civil Appeals of Texas. Dallas.
    June 28, 1913.)
    1. Landlord and Tenant (§ 29) — Purpose of Lease — Illegality—Enforcement.
    A lease of premises to be occupied as a bawdyhouse by the lessee, executed by the lessor who had knowledge of the lessee’s purpose, and who acquiesced in the use of the premises and collected the rent, is illegal, and neither party may demand relief therefrom or thereunder, within the rule that, where two persons participate in an unlawful transaction and are in pari delicto, neither a court of law nor equity will aid either, notwithstanding Pen. Code 1911, arts. 496, 500, 501, defining a bawdyhouse and punishing the keeper and owner thereof, unless the owner proceeds to prevent the keeping by giving information to the prosecuting attorney.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 85; Dec. Dig. § 29.]
    2. Landlord and Tenant (§ 134) — Use of Premises — Illegal Lease — Injunction.
    The granting of an injunction under Pen. Code 1911, art. 503, authorizing the enjoining at the suit of any citizen of the keeping of any disorderly house, at the suit of an owner executing a lease of premises with knowledge of the lessee’s purpose to use the same as a baw-dyhouse, is in effect the granting of relief to the owner from Ms illegal contract, and equity cannot issue the injunction.
    [Ed. Note. — For other eases, see Landlord and Tenant, Cent. Dig. §§ 482-485; Dec. Dig. § 134.]
    3. Nuisance (§ 77) — Disorderly House — Injunction — Remedy.
    Pen. Code 1911, art. 503, providing that actual or contemplated use of any premises for a disorderly house shall be enjoined at the suit of the state or any citizen, contemplates the issuance of an injunction only in independent suits primarily to abate the unlawful thing, and not as an ancillary proceeding to gain possession in suits of trespass to try title.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 189, 190; Dec. Dig. § 77.]
    Appeal from District Court, Dallas County; Kenneth Force, Judge.
    Action by W. H. Eckles against Fay Now-lin and another. From a judgment denying relief, plaintiff appeals.
    Affirmed.
    Walker & Williamson, of Dallas, for appellant. Nelms & Puckitt, of Dallas, for ap-pellees.

       For other oases see same topic and section'NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

       For otter cases see same topic and section NUMBER in Deo. Dig. & Am. Dig: Key-No. Series & Rep’r Indexes-

   RASBURY, J.

Appellant, under the statutory remedy of trespass to try title, filed this suit to recover title and possession to lot No. 8 in block D of Cedar Grove addition to Dallas, Tex. The petition also charged that ap-pellees were conducting both a bawdy and disorderly house as well as committing individual acts of prostitution upon the said premises in violation of the penal laws of this state, and prayed for the issuance of a writ of injunction against appellees enjoining them from using the premises for the purposes charged pending determination of this suit. Appellees admitted, in effect, the allegations of appellant’s petition, urging as well that appellant built for and leased to them the building upon said premises to be used by them as charged by appellant, and had, in person, received the rentals due upon said premises derived from such traffic, which was not denied by appellant. The injunction was refused. Hence this appeal.

The facts found by the court below are that shortly before May 15, 1912, while appellant was constructing the house occupied by appellees upon the described premises, he leased same to appellees to be occupied by them as a house of prostitution; it being so understood by all concerned. On said May 15, 1912, appellees entered into possession of the premises, using same since said time for the purposes of prostitution, with the full knowledge and acquiescence of appellant, who has during said tenancy collected the rent in person. Counsel on neither side have availed themselves of the right they have to brief the case, nor for that matter have they cited authorities, and hence we are without assistance in that respect The trial court, however, in effect, held that the lease under which he found appellees were occupying the premises was illegal, and, having been entered into voluntarily by both parties with full knowledge of its illegality, neither could demand relief therefrom or thereunder. We think the court’s holding correct. While the court’s findings of fact fail to show the term of the lease, it does appear that appellees at the time of the application for the injunction were in fact occupying the premises under lease from appellant. This suggests incidentally that the suit in trespass itself is perhaps founded upon the theory that it can be maintained on the ground that the premises were leased for unlawful purposes, and hence held under a void lease, which would be insufficient to sustain the right of occupancy by appellees. However that may be, it is also true that, notwithstanding the nullity of the lease under which appellees held the premises, “courts, as the best means of discouraging such acts, have generally adopted the rule that the parties shall not receive affirmative aid to' extricate themselves from difficulties in which, by their unlawful conduct, they have involved themselves, but shall be left as they are found. This principle does not recognize in either party the better right under the void undertaking, but treats a plaintiff who thus shows himself to be equally guilty with his adversary as not deserving the relief sought from the court.” Olcott v. I. & G. N. Ry. Co., 28 S. W. 728. “Where two persons guilty of participation in an unlawful transaction are in pari delicto, as in this case, neither a court of law nor a court of equity will aid either to recover or reinvest himself with any title or interest which he, in consideration of such unlawful contract, has vested in the other, but will leave them in the same condition as to vested interests as they by their own acts have placed themselves.” Beer v. Landman, 88 Tex. 450, 31 S. W. 805. The reason for the rule lies of course in the fact that courts are for the enforcement of lawful contracts and not for the purpose of relieving one from the burdens of a joint voluntary illegal undertaking any more than they will enforce for the other party such illegal contracts.

Nor do we think, as contended by counsel for appellant on argument, that because our penal law adjudges as unlawful the acts undertaken by appellant and appellees under the lease in question, and provides for their punishment in that respect in any sense affects the application of the rule just stated to the parties in the instant case. Article 496, Rev. Penal Stat., defines bawdy and disorderly houses, and it may be conceded for the purpose of this opinion that the place conducted by appellees comes within such definition. Article 500 fixes the punishment for maintaining such places. Article 501 declares that the owner of such premises “having information that the premises are being kept, used or occupied” for such purposes-shall be equally guilty and subject to the same punishment provided for against the. person actually conducting same, “unless he shall immediately proceed to prevent the keeping, using or occupying of such house, etc., by giving such information to the county or district attorney.” Under the foregoing provisions, it is clear that appellant, or the owner of the premises, can avoid any criminal punishment by furnishing to the county or district attorney the information relating to the use to which the premises are being put, since by the express terms of the article his liability for punishment ends upon the giving of such information, and as a consequence affords no reason for a departure from the well-settled rules in such cases.

But it is also contended that article 503 authorizes the issuance of injunction as sought in this case. That article provides that “the habitual, actual, threatened or contemplated use of any premises, * * * for the purpose of keeping, * * * of a bawdy or disorderly house, shall be enjoined at the suit of either the state or any citizen thereof.” The point is that appellant, being a citizen of the state, may enjoin the keeping of the unlawful house without reference to any other issue in the case. There are three insuperable objections to the contention. To authorize the issuance of an injunction under said article in a suit to recover the premises held by appellees under a voluntary illegal lease with appellant would be but a round-about method of relieving appellant from his illegal contract by courts which consistently refuse to interfere on behalf of either party thereto. Again, to authorize the issuance of an injunction would present the anomaly of permitting appellant to relieve himself by injunction of his own illegal acts, and that too by equitable process.

Finally, said article in our opinion contemplates the issuance of the injunction only in independent suits brought primarily for the purpose of abating the unlawful thing, and not as an ancillary proceeding to gain possession of premises in suits of trespass to try title.

The judgment is affirmed.


text:
    KYLE v. BLANCHETTE.
    (Court of Civil Appeals of Texas. Galveston.
    June. 26, 1913.)
    Appeal and Error (§ 1170) — Harmless Error — Failure to File Conclusions or Fact and Law.
    Under rule 62a for Courts of Civil Appeals (149 S. W. x), forbidding a reversal unless for error in the trial calculated to cause a wrong judgment, the unexcused refusal of the judge of the county court to file conclusions of fact and law, as required by Sayles’ Ann. Civ. St. 1897, art. 1333, where such conclusions have been properly requested, and where there was a conflict in the evidence from which the court might have arrived at different con-
    clusions as to the proximate cause of the accident, was reversible error, notwithstanding there was in the record a statement of facts agreed to by defendant’s counsel.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    Appeal from Jefferson County Court; R. W. Wilson,- Judge.
    Action by W. W. Kyle against Lee Blan-chette, with counterclaim by defendant. Judgment against plaintiff for costs, and he appeals.
    Reversed and remanded.
    Crook, Lord, Lawton & Ney, of Beaumont, for appellant. Watts & Wheat, of Beaumont, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   REESE, J.

W. W. Kyle instituted this action in the justice court against Lee Blan-chette, to recover damages alleged to have been sustained to his automobile by reason of a collision with the automobile of the defendant at a street crossing in the city of Beaumont Plaintiff claimed $123 as the amount expended by him for repairs of said injuries to his machine. Defendant, by way of cross-action, claimed damages to his machine from the same cause amounting te $200. Each party claimed that the accident was caused by the negligence of the driver of the other machine in running at a greater rate of speed than was allowed by the ordinance, and in driving on the wrong side of the street in violation of the ordinance of the city. On trial in the justice court neither party recovered damages, judgment being against the plaintiff for costs. Plaintiff appealed to the county court, where a trial without a jury resulted in a like judgment, from which plaintiff appeals.

As is shown by proper bill of exceptions, when the court overruled the appellant’s motion for a new trial, and prior to the expiration of the term, appellant filed with the papers in the cause, and presented to the court, his request in writing that the court prepare and file its conclusions of fact and law. This fact is also shown by the order of the court overruling the motion for a new trial. The trial court failed to comply with this request, to which appellant excepted and prepared a proper bill of exceptions which was examined and approved by the county judge without explanation or qualification. By his third assignment of error appellant complains of this failure of the trial court, and assigns the same as ground for reversal. No excuse is attempted to be made for this failure of the trial court to comply with the plain and imperative command of the statute: Sayles’ Civil Statutes, art. 1333. Appellant complied strictly with every requirement necessary to entitle him to have the conclusions filed, and to avail himself on appeal of the failure on the part of the court to do so. There is a statement of facts in the record, but for which a reversal of the judgment would follow as a matter of course. But it lias been beld, following the opinion, or suggestion, of the Supreme Court in Bank v. Stout, 61 Tex. 571, that when a statement of facts is in the record, the judgment will not be reversed if the case is such as did not require such a statement for the proper presentation or understanding of it in the appellate court. Jacobs v. Nussbaum, 133 S. W. 484; Sutherland v. Kirkland, 134 S. W. 852. Although there was no statement of facts in the record in the case of Wandry v. Williams, 103 Tex. 91, 124 S. W. 85, the holding by the Supreme Court that a failure to file conclusions of fact and law by the trial court, when properly requested, was ground for reversal, is not made to any extent to rest upon this ground. A discussion of the authorities will be found in Wood v. Smith, 141 S. W. 795, by the Court of Civil Appeals of the Eighth District. Notwithstanding there is in the record a statement of facts agreed to by counsel for appellant, we do not think that the ease presented is such that we can say that appellant is not prejudiced by the failure of the trial court to file the conclusions as required by law. There is a clear conflict in the evidence, from which the court might have arrived at either one of two or three different conclusions as to the proximate cause of the accident. We dislike to reverse the judgment on this ground, but appellant’s plain statutory right has been denied without excuse, in such a way as to prevent the proper presentation of his case in this court, within the terms of rule 62a (149 S. W. x), adopted by the Supreme Court October 30, 1912. The assignment is well taken, and must be sustained.

The other assignments of error need not be passed upon further than to say we think appellant is in error as to the conclusive effect of the evidence. Eor the error indicated, the judgment is reversed, and the cause remanded.

Reversed and remanded.


author: HARPER, C. J.

text:
    SANCHES v. NEWMAN et al.
    (Court of Civil Appeals of Texas. El Paso.
    June 12, 1913.)
    Injunction (§ 123) — Trespass to Land — Title to Support — Pleading and Proof.
    To entitle plaintiff to an injunction restraining defendants from trespassing upon real estate upon which they were building a fence, on the ground that it belonged to plaintiff, he must plead and prove such title as would entitle him to possession of the premises as against defendants.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 270; Dec. Dig. § 123.]
    Appeal from District Court, El Paso County; Dan M. Jackson, Judge.
    Action by Julian Sanches against Charles M. Newman and others. From an order dissolving a temporary injunction, plaintiff appeals.
    Affirmed.
    C. L. Vo well and Turney & Burges, all of El Paso, for appellant. John L. Dyer, C. W. Croom, and T. A. Falvey, all of El Paso, for appellee.

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, C. J.

This is an appeal from an order of the district court dissolving a temporary writ of injunction theretofore granted upon application by appellant, which said order restrained the appellees from trespassing upon certain real estate, in that they were building a fence around the premises which appellant claimed to own and to be in actual possession of.

Inasmuch as the rights of the parties to the land may ultimately be determined by trial of the case on its merits, we shall refrain from discussing the evidence.

In order for appellant to be entitled to the relief asked for, it was necessary for him to plead and prove such title as against ap-pellee as would entitle him to possession of the premises, and this is not a suit in trespass to try title, nor has the appellant pleaded any title, so no determinate judgment can be rendered as to whose is the title to the land charged to be invaded; therefore neither can the question of the right to maintain the fence where it now is be determined.

The judgment of the lower court must therefore be affirmed. Paul v. City of El Paso, 131 S. W. 438; Walker v. Haley, 147 S. W. 360.


text:
    JOHNSON v. CLEMMONS.
    (Court of Civil Appeals of Texas. Galveston.
    June 26, 1913.)
    Courts (§ 170*) — Countv Couet — Jurisdiction — Amount Involved.
    In an action to enjoin trespasses on real estate pending a suit to try title thereto, the county judge had no jurisdiction to grant a temporary injunction where the petition did not allege the value of the land involved.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 427; Dec. Dig. § 170.*]
    Appeal from Tyler County Court; A. G. Reid, Judge.
    Action by J. W. Clemmons against C. Johnson. From an order granting a temporary injunction, defendant appeals.
    Reversed, and temporary injunction set aside.
   REESE, J.

This is an appeal from an order of the county judge of Tyler county, made in chambers and without notice to the defendant, granting a temporary injunction on the application of the appellee enjoining and restraining defendant in that suit, appellant here, “from further fencing or trespassing on” certain lands and premises described in the petition. The record contains the petition for injunction, which is the sole object of the suit, the judge’s order, and the appeal bond of appellant. There is in the' record also an answer of appellant and a motion to dissolve which were presented to the court in session immediately after the granting of the writ, but which the court declined to pass upon for want of the 10 days’ notice required by statute and which it is not necessary to consider. The petition was filed and the order made March 6, 1913.

The petition upon which the injunction was granted alleged substantially that on the -day of February, 1913, in a certain suit in the district court of Tyler county, a judgment was rendered in favor of C. Johnson against J. W. Clemmons for the land referred to and described in the petition, that the said Clemmons perfected an appeal from said judgment by giving a supersedeas bond, but that the defendant Johnson “is preparing to and in fact beginning to fence and take forcible possession of the said tract of land to the damage of petitioner and in violation of his rights, which he cannot do in law or equity until the final judgment of the Court of Civil Appeals of the First Supreme Judicial District at Galveston, Texas, and the Supreme Court.” The appeal and supersedeas takes the case referred to in the petition into this court, where it is presumably now pending. But, passing this ground of objection to the action of the county judge, this case falls precisely within the principle decided by the Supreme Court in De Witt County v. Wischkemper, 95 Tex. 435, 67 S. W. 882. In that case Wischkemper applied to the county court for an injunction enjoining and restraining a road overseer from opening up a road for the use of the public over his land. A temporary writ was granted, and upon trial in the county court was made perpetual. On appeal to the Court of Civil Appeals the question of the jurisdiction of the county court in the premises was certified to the Supreme Court. It was held that the county court had no jurisdiction to issue the writ. The case is on all fours with the present case. In that case, as in this, no value of the subject-matter of the suit is alleged. The county judge was without authority to order the temporary writ of injunction.

The order appealed from is reversed, and the temporary writ of injunction annulled and set aside.


author: HIGGINS, J.

text:
    ROIBAL et al. v. GIRON.
    (Court of Civil Appeals of Texas. El Paso.
    June 19, 1913.)
    1.Municipal Corporations (§ 225*) — Property — Land Grant — Deeds.
    A patent was issued pursuant to Special Laws 4th Leg. c. 6 (Gammel’s Laws, p. 1362), which granted certain land to the inhabitants of the town of Presidio de San Elizario, and subsequently the town of Elizario was incorporated by special act (Sp. Laws 12th Leg. [2d Sess.] c. 42 [6 Gammel’s Laws, p. 1221]), with limits coexistent with the boundaries of the grant. By Sp. Laws 22d Leg. c. 11 (10 Gam-mel’s Laws, p. 1052), Che corporation was abolished. Subsequently the present town of San Elizario was incorporated, but did not include the grant. Seli, that a deed by the present corporation conveyed no title to the grant.
    [Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. §§ 626-641, 643; Dec. Dig. § 225.]
    2. Appeal 'and Error (§ 499*) — Record-Rulings on Evidence — Presentation eor Review.
    An assignment of error complaining of the admission in evidence of “certain deeds and other instruments purporting to constitute a chain of title” could not be reviewed, where it did not appear from the bill of exceptions or otherwise what deeds and instruments were objected to.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    3. Appeal and Error (§ 758) — Briefs—Rulings on Evidence — Presentation for Review.
    An assignment of error complaining of the admission of evidence will not be reviewed where the ground of objection made is not disclosed by the statement under the assignment of error or elsewhere in the brief.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3093; Dec. Dig. § 758.]
    Appeal from District Court, El Paso County; A. M. Walthall, Judge.
    Action by Concepcion Roibal and others against Gaspar Giron. From judgment for defendant, plaintiffs appeal.
    Affirmed.
    Owen & Boykin and R. M. Reed, all of El Paso, for appellants. .Stanton & Weeks, of El Paso, for appellee.

       For otlier cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HIGGINS, J.

Appellants brought this action of trespass to try title seeking to recover 70.77 acres of land situate in El Paso county, part of four leagues of land granted to the inhabitants of the town of San Eli-zario by an act of the Legislature dated February 5, 1853. Sp. Laws 1853, p. 8; Gam-mel’s Laws, p. 1362.

The facts as disclosed by the record are that, pursuant to the act mentioned, the Commissioner of the General Land Office on March 8, 1853, issued a patent granting to the inhabitants of the town of Presidio de San Elizario the above-mentioned four leagues of land. The town of Elizario was incorporated by act of the Legislature dated April 5, 1871, with limits coincident with the boundaries of said land grant. Sp. Laws 1871, p. 83; 6 Gammel’s Laws, p. 1221. On March 23, 1891, the act of April 5, 1871, was repealed and the corporation of Elizario thereby abolished. Sp. Laws 1891, p. 24; 10 Gammel’s Laws, p. 252. In November, 1906, the present town of San Elizario was incorporated under the general laws, bub did not include the land in controversy. The boundaries of the corporation are described as one mile north from the town plaza, one mile south from the plaza, one-half mile east from the plaza, and one-half mile west from the plaza. Appellants claim under a deed from the present town of San Elizario dated March 22, 1911. Upon trial before a jury a peremptory instruction against the appellants was given, and in accordance therewith verdict was returned and judgment thereon rendered.

The premises in controversy being situate without the limits of the present corporation, that body could not own or sell it, and no title passed to appellants by the deed above mentioned. Inquiry into the correctness of this view is foreclosed by the case of Reese v. Cobb (Sup.) 150 S. W. 887, recently decided by the Supreme Court. The peremptory instruction was therefore properly given.

The seventh assignment complains of the action of the court in permitting appellee to introduce in evidence “certain deeds and other instruments purporting to constitute a chain of title to” the premises claimed by appellee. The bill of exception is wholly insufficient to inform this court what deeds and instruments were objected to, nor are we otherwise in any manner advised to what the objection relates. It would be mere surmise on our part to undertake to determine to what deeds and instruments objection was made. The assignment will therefore not be considered.

It is not entitled to consideration for the further reason that the brief does not disclose the ground of objection urged upon the trial. Rulings on evidence will not be reviewed on appeal unless the statement under the assignment or the brief elsewhere indicates and discloses the grounds of objection made. Lee v. Simmons, 151 S. W. 868; Railway Co. v. Miller, 88 S. W. 499; Railway Co. v. Matlock, 44 Tex. Civ. App. 565, 99 S. W. 1052; McCall Co. v. Elliott, 158 S. W. -, recently decided by this court, and not yet officially reported. -,Proper statements in a brief are required so as to expedite and lessen the labors of the court, and mere references to the record do not attain that result, and are not regarded as sufficient statements under rule 31 (142 S. W. xiii). Wirtz v. Railway Co., 132 S. W. 510; Walker v. Railway Co., 54 Tex. Civ. App. 406, 117 S. W. 1020; Railway Co. v. Lane, 118 S. W. 847; Broussard v. South Texas Rice Co., 120 S. W. 587; and numerous other cases cited in 3 Michie Enc. Dig. at pages 203 and 208.

The eighth and ninth assignments also relate to rulings of the court upon evidence and the brief does not state the grounds of objection urged, nor are the assignments otherwise supported by proper statements; under the authorities above cited, they are not entitled to consideration, and will not be considered.

Affirmed.

HARPER, X, did not sit in this case.


text:
    PITTS v. CYPRESS SHINGLE & LUMBER CO.
    (Court of Civil Appeals of Texas. Galveston.
    June 26, 1913.)
    1. CORPORATIONS (§ 608) — RIGHT TO MAINTAIN Action — Payment of License Pee.
    Under Rev. Civ. St. 1911, art. 7399, providing that upon failure to pay a franchise tax and penalty, if any, within the time prescribed, the corporation failing shall forfeit its right to do business, which forfeiture shall be consummated by entry upon the margin of the record kept by the Secretary of State, and under article 7400, requiring notice as a prerequisite to forfeiture, a mere showing that a corporation had not paid its franchise tax and penalty within the prescribed time is not sufficient to defeat its right to sue; the statute requiring affirmative action by the Secretary of State.
    [Ed. Note. — Por other cases, see Corporations, Cent. Dig. §§ 2416-2419; Dee. Dig. § 608.]
    2. Corporations (§ 319) — Officers—Actions by Corporation — Evidence.
    In an action by a corporation, engaged in the manufacture of shingles, against the former president of the company to recover the purchase price of shingles, the proceeds of which defendant had converted to his own use, evidence that a check drawn by defendant in favor of another was in payment for shingles which had been left in the lumber yard and disposed of by the company with its own shingles was admissible, tending to show that defendant was not guilty of a conversion, even though the check was given before the corporate organization of plaintiff company was perfected.
    [Ed. Note. — Por other cases, see Corporations, Cent. Dig. §§ 1415, 1416-1425; Dec. Dig. § 319.]
    3. Triax (§ 329) — 'Verdicts—Sufficiency.
    In an action for conversion, where defendant pleaded an offset, a verdict reciting that the jury found for plaintiff in a given sum, but that the offset was not considered as charged by defendant, should not be received, being manifestly insufficient because not disposing of all the issues.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 774-776, 782; Dec. Dig. § 329.]
    4. Trial (§ 329) — Verdicts—Construction— Sufficiency.
    In an action for conversion, where defendant pleaded an offset and the jury returned a verdict reciting a finding for plaintiff, but that the offset was not considered as charged by defendant, the verdict cannot be construed as a denial of defendant’s offset.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 774-776, 782; Dec. Dig. § 329.]
    Appeal from Hardin County Court; W. W. Dies, Judge.
    Action by the Cypress Shingle & Lumber Company against E. M. Pitts. Prom a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Singleton & Nall, of Kountze, for appellant. B. L. Aycock and A. L. Bevil, both of Kountze, for appellee.

       For other cases see same topic ’and section NÜMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   REESE, J.

The Cypress Shingle & Lumber Company instituted this action in the county court to recover of E. M. Pitts $975 alleged to be due and owing from defendant to plaintiff. It was alleged that defendant, one of the stockholders and former president of the company, while in charge of the plant from August 10th to about December 21, 1910, appropriated to his own use money, being the proceeds of shingles manufactured and sold, for which he had failed and refused to account. Defendant denied generally and pleaded in offset certain indebtedness from the plaintiff to him. A trial was had with a jury which resulted in a verdict and judgment in favor of plaintiff for the amount sued for, from which, his motion for a new trial having been overruled, defendant appeals.

By his first assignment of error appellant complains of the overruling of his general demurrer to the petition. The petition is very loosely drawn. It is not as definite and specific as it should be in its allegations, but we think it is sufficient as against the general demurrer. The assignment is overruled with a suggestion that the petition be amended.

The second assignment is overruled. The allegations of the plea which appellant proposed to file, in substance, that it being shown that appellee had not paid its franchise tax due on May 1,1912, on said date and had also failed to pay the same with penalty prescribed by July 1, 1912, by reason whereof it had forfeited its right to do business and lost its right to prosecute this action, were not sufficient to avail appellant. The statute on the subject is article 7399, Revised Statutes 1911, which provides that, upon failure to pay such franchise tax and penalty (if any) within the time prescribed, “such corporation shall for such default forfeit its right to do business in this state, which forfeiture shall be consummated without judicial ascertainment by the Secretary of State entering upon the margin of the record kept in his office relating to such corporation, the words ‘right to do business forfeited’ and the date of such forfeiture; and any corporation whose right to do business shall be thus forfeited shall be denied the right to sue or defend in any other courts of this state, except in a suit to forfeit the charter of such corporation; and, in any suit against sucn corporation on a cause of action arising before such forfeiture, no affirmative relief shall be granted to such corporation unless its right to do business in the state shall be revived as provided in this chapter.” Article 7400 further provides that notice shall be given as a prerequisite to such forfeiture. The naked allegation of the plea that appellee had failed to pay the tax and penalty within the prescribed time could not avail appellant without the entry of forfeiture by the Secretary of State.

The court erred in excluding, on objection of appellee, the check for $292 drawn by appellant in favor of Waterman, which appellant testified was given in payment of shingles which had been left on the yard and disposed of by appellee, with its own shingles.' If the facts stated be true, appellee would have been liable only for the market value of these shingles, but the court overruled ap-pellee’s exception to that part of the answer pleading this item of offset, and the check was admissible as corroborating appellant’s testimony on this point. That the check was dated prior to the formation of the corporation was not a valid objection. The question was not when the shingles were paid for but whether they were in fact appellant’s individual property and had been disposed of by- appellee for its own benefit. The third assignment of error must be sustained.

The court charged the-jury to find for appellant the amount of the indebtedness pleaded by him in offset of appellee’s demand, if they believed that appellee owed the money. The jury returned the following verdict: “We, the jury, find for the plaintiff in the sum of $975. Offset not considered as charged by defendant.” Taking this language in its plain meaning, the jury only considered the evidence offered in support of appellee’s demand and did not consider that offered by appellant in support of his offset and found that, without considering this, appellant owed appellee the amount claimed. Obviously such a verdict should not have been received.

Are we at liberty to interpret the verdict as a finding that the jury did consider the offset pleaded and found against appellant on such issue? There is no warrant for this interpretation of the language of the verdict. Moore v. Moore, 67 Tex. 293, 3 S. W. 284. If the verdict had simply been in favor of appel-lee for $975, saying nothing about the offset, it might have been taken as a finding against it, as held in Pritchard Rice Milling Co. v. Jones, 140 S. W. 817. It would not be proper to dispose of appellant’s rights (if he has any) by conjectures as to what the jury really did do, in the face of their plain declaration. The fourth assignment of error must be sustained.

There was no finding of interest by the jury, and no specific prayer for interest. We are inclined to think that the judgment for interest was improper.

It is not necessary to pass upon the sixth assignment of error. For the errors indicated the judgment is reversed, and the cause remanded.

Reversed and remanded.