author: TALBOT, J.

text:
    VARLEY v. NICHOLS-SHEPARD SALES CO.
    (No. 7636.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 13, 1917.)
    1. Appeal and Ebbob <@=>281(2) — Reserving Geounds fob Review — Necessity fob New Trial — Motion.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1990, providing for entry of judgment on special verdicts, article 1991, authorizing appeals without a statement of facts upon noting exceptions on the record in the judgment entry, and Supreme Court rule 71a (145 S. W. vii), requiring motions for new trial except where not required by statute, a motion for new trial is unnecessary on appeal from judgment entered on a special verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <©=>281(2).]
    2. Appeal and Erbob <@=>690(4) — Record-Questions Presented for Review — Necessity of Setting Foeth Evidence Objected to.
    Alleged error in admitting a deposition is not reviewable where the contents thereof are not preserved in the bill of exceptions or otherwise under Supreme Court rule 62a (149 S. W. _x), confining reversals to errors probably causing an improper judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2899; Dec. Dig. <@=>690(4).]
    3. Sales <@=>365 — Action fob Pbice — Findings — Fraud—Sufficiency.
    A judgment that the seller’s fraud invalidated a tractor sales contract is not demanded by a special verdict that the tractor was represented to plow more than it did, especially where it could be profitably used for other purposes and the loss occasioned defendant by its defects was undetermined.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1077; Dec. Dig. <@=>365.]
    4. Sales <@=>365 — Seller’s Action fob Price —Findings—Inconsistency.
    Jury findings that plain tiffs agent told defendant a tractor would do certain plowing, and that such representation was true, but that the engine failed on plowing, are not so inconsistent as to require reversal, where the first two findings were in response to a lengthy and involved question.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1077; Dec. Dig. <@=>365.]
    5. Appeal and Erbob <@=>928(3) — Presumptions — Issues Submitted — Evidence to Support.
    Submitting to the jury a question whether defendant buyer knew of alleged defects in a tiactor when he paid a purchase price note thereon is not reversible error in absence of a statement of facts, being presumably warranted by the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3751; Dec. Dig. <@=>928(3).]
    6. Appeal and Erbob <@=>1062(1) — Harmless Error — Submission to Jury.
    Submitting to jury question whether defendant buyer knew of alleged defects in a tractor when he paid a purchase price note thereon is harmless, where the jury’s failure to assess damages for such defects necessitated judgment for the entire purchase price.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4212; Dec. Dig. <@=>1062
    7. Sales <S=>52(1), 181(1) — Action fob Price— Burden of Proof.
    Where plaintiff seller introduced purchase price notes and a mortgage securing them, defendant buyer had the burden of proving that the sales contract upon which they were based was obtained by fraud or breached by plaintiff.
    [Ed. — Note.—For other cases, see Sales, Cent. Dig. §§ 118-123, 473-476, 1045; Dec. Dig. <@=> 52(1), 181(1).]
    8. Sales <@=>364(3) — Action for Price — Notes —Instructions.
    In an action on purchase price notes, a requested instruction that plaintiff had the burden of proving its compliance with the sales contract is properly refused as misleading, since, after introduction of the notes, defendant buyer had the burden of showing the contract was obtained by fraud or breached by plaintiff.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1067; Dec. Dig. <@=>364(3).]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by the Nichols-Shepard Sales Company against Frank Varley. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. W. Fisher, of Whitesboro, and Ross & Zumwalt, of Dallas, for appellant. Burgess, Burgess, Chrestman & Brundidge, of Dallas, for appellee.
   TALBOT, J.

The appellee sued the appellant to recover the sum of $1,842, besides interest and attorney’s fees, due upon three promissory notes executed and delivered by the appellant to appellee in part payment for certain machinery, consisting of an oil gas tractor engine, separator and attachments, and to foreclose a mortgage given upon said machinery to secure the payment of said notes. The machinery was sold upon written contracts by the terms of which the ap-pellee warranted that the tractor engine would develop—

“double its rated horse power, working in a belt upon a friction brake, and to be well made of good material, and durable if used with proper care, conditioned, if within five days from its first use it shall fail to fill this warranty, written notice shall be immediately given by the purchaser to Nichols-Shepard Sales Company, at Battle .Creek, Mich., by registered letter, stating particularly how and wherein it failed to fill this warranty. Reasonable time shall be allowed the vendor to get-to the machine with its workmen and remedy the defect, if any there be; the purchaser to render friendly assistance and co-operation.”

The contract stipulates that the use of said tractor engine for more than five days, or failure to return it as agreed upon, or failure to give the written notice above specified to appellee, shall operate as an acceptance of it ¿nd a fulfillment of the warranty mentioned. The other machines ’ sold are warranted by the appellee to be well made and of good material; that each of said machines, with proper management, is capable of doing more or better work than any other machine made of like size and proportions working under the same conditions and on the same job, conditioned, that if within five days from its first use it shall fail to fill the warranty, written notice shall be immediately given by the purchaser to Nichols-Shepard Sales Company, at Battle Creek, Mich., by registered letter, stating particularly how and wherein it fails to fill the warranty. Reasonable time shall be allowed to get to the machine with its workmen and remedy the defect, if any there be; the purchaser to render friendly assistance and co-operation, etc. The contract, among other things not necessary for the purposes of the appeal to state, stipulates that failure to give the notices in writing as provided for or keeping the machinery after the five days allowed as above provided shall be a waiver of the warranty and a full release of the warrantor, without in any way affecting the liability of the purchaser for the price of the machinery or notes given therefor. The appellant answered by demurrers and specially at length charging that on the date of the written contracts entered into between himself and the appellee he called upon the agent of appellee and informed him that he desired to purchase a threshing outfit; that he had secured a good run in Grayson county, Tex., for the season of 1913; that he had already secured contracts with a number of persons for the threshing of many thousands of bushels of wheat and other grain; that the prices to be paid for threshing wheat were 10 cents a bushel and for oats 5 cents per bushel; that in order to do the threshing he desired a 16 horse power double-cylinder steam engine and a 32-ineh by 52-inch rear separator with all attachments; that appel-lee’s agent then told appellant about a gas tractor engine, but stated he did not have one in stock and would have to order it from the factory at Battle Greek, Mich.; that the gas tractor engine would be better than a steam engine; that appellant would be able with such an outfit as he could sell him to make a profit of about $2,000 out of his contracts; that appellant informed appellee’s said agent that he could get from 800 to 1,-000 acres of land to plow where he was going to thresh if he could get an engine that would do the work and would not pack the ground, and that if the gas tractor engine could pull the load the agent said it had or could pull it ought to pull 10 plows in plowing ordinary land, and the said' agent replied it would pull 12 plows; that upon the representations of appellee’s agent he agreed to buy the gas tractor engine, and told ap-pellee’s agent at the time that he was buying it upon what said agent said about it. Appellant further charged that the gas tractor engine sold to him by appellee, and for which the notes sued on were given, was not as represented by appellee’s agent, but worthless; that it would not develop power enough to pull 10 plows, as appellee’s agent represented it would do, and that it was defective in many particulars which were set forth; that the representations of appellee’s agent were false and fraudulently made with the intent of defrauding appellant; and that but for such representations and his belief that they were true he would not have bought the machinery in question from appellee. Appellant charged upon the matters set forth by him that appellee had breached its warranties, and by way of cross-action sought to recover damages by reason thereof. The case was tried with a jury, and submitted upon special issues, and upon the answers of the jury thereto judgment was rendered in favor of the appellee for the amount sued for, with a foreclosure of the mortgage lien, and that appellant take nothing by his cross-action.

The appellant filed no motion for a new trial in the lower court, and has brought the ease to this court by appeal without a statement of facts. Appellant having failed to file a motion for a new trial in the district court, appellee insists that none of his assignments of error should be considered by the court, and that, as no fundamental error appears upon the face of the record, the judgment should be affirmed. This insistence of the appellee presents the first question for decision. There seems to be some conflict in the decisions of our Courts of Civil Appeals upon this question, but we have reached the conclusion that it should be determined against the contention of the appellee. This conclusion is authorized and supported, we think, by articles 1990 and 1991 of Vernon’s Sayles’ Texas Civil Statutes, rule 71a (145 S. W. vii), and the cases of American Rio Grande & Irrigation Co. v. Mercedes Plantation Co., 155 S. W. 286, and Craver v. Greer (Sup.) 179 S. W. 862. Article 1990 of the statute above mentioned, which is the same as article 1333, Revised Statutes of 1895, as amended by the act of the Legislature of 1899 (page 190), reads as follows:

“In all cases where a special verdict of the jury is rendered or the conclusions of fact found by the judge are separately stated the court shall, unless the same be set aside and a new trial granted, render judgment thereon.”

Article 1991 of said statute reads thus:

“It shall be sufficient for the party, excepting to the conclusions of law or judgment of the court, to cause it to be noted on the record in the judgment entry that he excepts thereto; and such party may thereupon take his appeal or writ of error without a statement of facts or further exceptions in the transcript; but the transcript shall in such cases contain the special verdict or conclusions of fact and law aforesaid, and the judgment rendered thereon.”

Rule 71a is as follows:

“A motion for a new trial shall be filed in all cases where parties desire to appeal from a judgment of the trial court, or sue out a writ of error in the cause, unless the error complained of is fundamental, except in such cases as the statute does not require a motion for a new trial.”

Under this rule and tlie articles of the statute above referred to it was held by the Court of Civil Appeals of the Fourth District in the case of American Rio Grande & Irrigation Co. v. Mercedes Plantation Co., supra, and by our Supreme Court in the case of Craver v. Greer, cited, that it is not a necessary prerequisite to the perfection of an appeal and the right of an appellant to have a revision of the judgment appealed from that a motion for a new trial be made in the trial court when the case is tried without a jury and separate conclusions of fact and law are filed by the court. Indeed, in the case of Craver v. Greer, supra, the Supreme Court held that, when the case was tried by the court without the aid of a jury, the right to have the appeal considered without having filed a motion for a new trial- is not dependent upon conclusions of fact or law being filed by the trial judge. In American Rio Grande & Irrigation Co. v. Mercedes Plantation Co., the court, after quoting rule 71a, said:

“The clear meaning of this rule is that motions for new trial shall be required in every case, whether tried with or without a jury, except when the statute by express provision does not require such a motion.”

And it held that such an express exception is made by article 1333, Revised Statutes 1895, as amended by Acts of 1899, p. 190, which, as we have said, is the same as articles 1990 and 1991 of Vernon’s Sayles’ Texas Civil Statutes, quoted above. The Supreme Court in Craver v. Greer, supra, says that this statute, in providing that it shall be sufficient for the party excepting to the conclusions of law or judgment of the court to cause it to be noted on the record in the judgment entry that he excepts thereto, etc.; “is plain in its declaration that upon causing the exception to be noted in the judgment entry the party may, without further formality, take his appeal or writ of error.” The present case was tried with a jury, but a special verdict within the meaning of article 1990 of the statute, the case having been submitted on special issues, was rendered, and the appellant caused his exception to the judgment entered thereupon to be noted in the judgment entry. In such case the statute is just as plain that the party aggrieved may take his appeal or writ of error without filing a motion for a new trial as in the ease Where a trial is had before the court without a jury. The statute expressly provides, as has been seen, that in all cases where a special verdict is rendered the court shall, unless the same be set aside, render judgment thereon, and that it shall be sufficient for the party excepting to the judgment of the court to cause it to be noted on the record in the judgment entry, having done which he may take his appeal without a statement of facts or further exceptions in the transcript, but the transcript must contain the special verdict and judgment rendered thereon. Thus by express provision of the statute it is not necessary in such trials that a motion for a new trial be made in order to entitle the appellant to revision of the judgment from which he appeals.

The appellee further objects to a consideration of the appellant’s assignments of error on the ground that they are not briefed in accordance with the rules and for other reasons stated, and while we believe some, if not all, of them are subject to certain objections urged, we have concluded to consider them.

The first, second, third, and fourth assignments of error complain of the trial court’s action in admitting in evidence “certain parts or portions of a purported deposition given by defendant before W. L. Hay, a notary public for Grayson county, Tex.” It is asserted that this was error, because: (1) The deposition was not signed by the witness; (2) because there was no authority in law for the taking of the depositions, the same being an ex parte deposition, and the plaintiff in the suit being a corporation. Our statute prescribes that, where either party thereto shall be permitted to take ex parte depositions, and it is also provided by statute that the answers of a witness whose depositions have been taken shall be reduced to writing and shall be signed and sworn to by the witness, but the action of the court in permitting the introduction of the depositions in this instance cannot, as the matter is presented in this court, be reviewed and the case reversed because thereof, for the reason that it is not made to appear by the bill of exception reserved to its admission or otherwise what the evidence was which is charged to have been admitted, or its bearing upon the issues involved. It may be conceded that the trial court erred in admitting the testimony, but unless this court can say that the error amounted to such a denial of the rights of the appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment, or was such as probably prevented the appellant from making a proper presentation of the case to this court, it furnishes no ground for a reversal. Rule 62a (149 S. W. x). Without knowing what the testimony admitted was, it is impossible for us to say that it was calculated to cause either of the things mentioned. Besides, those portions of the ex parte depositions of the defendant which the court allowed to go to the jury may have been admissible as material declarations or admissions of the defendant bearing upon some issue in the case, although the taking of ex parte depositions in such a case was not permitted by the statute. Railway Co. v. Thompson, 44 S. W. 8.

For the same reason appellant’s seventh and eighth assignments of error, charging that the trial court erred in refusing to sustain his motion to quash the ex parte depositions in question, will be overruled.

The fifth and sixth assignments of error are, in substance, as follows: Fifth, the court erred, in rendering judgment for the plaintiff upon the answers of the jury for the reason that plaintiff sued upon a written contract, and the answers of the jury show that said contract. was procured by fraud, which invalidated said contract; sixth, the court erred in rendering judgment for the plaintiff upon the answers of the jury, because the answers of the jury to questions 1, 2, 4, 6, and 12 are so contradictory and inconsistent that no judgment could properly be rendered thereon in favor of the plaintiff. Neither of these assignments should, in our opinion, be sustained. At the request of appellant the trial court gave 22 special issues to the jury, the substance of the question submitting issues Nos. 1, 2, 4, 5, and 12, and the answers thereto being as follows:

(1)“At the time of the purchase of the engine, did the defendant and Noah White, as agent of the plaintiff, discuss the purchase of said engine, and in such discussion did the defendant tell said agent, White, that he desired a steam engine and separator in order to thresh during the season of 1913, and that he had secured a good run in Grayson county, Tex., and would thresh about 1,200 acres of grain, about two-thirds of which was wheat, and that the total amount of grain which he would be able to thresh in his run would be from 6,000 to 6,500 bushels, and that he had contracts with J. W. Thompson for 400 acres of grain, William Miller 300 acres, O. L. Neal 200 acres, and August Drier from 300 to 400 acres; that the average yield of wheat was 30 bushels per acre, and the average yield of oats 60 bushels per acre, and that the price for threshing was 10 cents per bushel for wheat and 5 cents per bushel for oats; that the defendant expected to make a profit in said year in threshing in the sum of $2,000; that he desired to use the engine to plow land of the persons for whom he would thresh, and that he could get from 800 to 1,000 acres of land to plow; (that, in addition to the persons above named with whom defendant had contracts, he would have been able to thresh for Mr. Wright about 350 acres of grain, Mrs. Kelcey, about 300 acres, Mr. Pierson, about 140 acres, Will Allen, 200 acres, Hugh Archer, 260 acres, Mr. Dishner, 180 acres, Mr. Smith, 185 acres, Judge Rice Maxey, about 280 acres, Mark Holliday, about 230 acres, Davis Ranch, about 500 acres, Mr. Crane, 400 acres, and a Gorman about 400 acres, and several small crops); that the plaintiff, through its agent, White, stated to the defendant that a 22 horse power gas tractor would be better than a steam engine; that it was cheaper to operate and would last longer; that there would not be flues and grates to burn out; that there would not be an expense for a water hauler and team, and that the 22 horse power gas engine would pull the same load that a 22 horse power steam engine would pull, and that he would guarantee it to do it; that at Winnipeg he pulled two dead engines full of water and a separator behind, and pulled them through the mud from the fair grounds to the depot, and that he was the only man who pulled in from the fair grounds to the depot; that the steam engine so pulled in was a 25 horse power double-cylinder engine and a 16 horse power double-cylinder engine; that he made this pull with a 22 horse power gas engine such as the one in controversy herein; that the defendant asked said agent if the engine would pull 10 plows in plowing ordinary land, and said agent replied that it would pull 12 plows, and that it would not pack the ground so as to ridge the land, and that he would furnish an extra wide wheel, and' that the engine was much lighter than a steam engine and would do better work; that the engine, properly constructed, was of good material, and would last longer than a steam engine, and could be operated at less expense and would do all that a steam engine would do and as successfully both in threshing and in plowing; that the defendant told said agent that he expected to have his son, Boone Varley, run said engine, and said agent inquired what experience Boone Varley had had in running engines of this character, and was told that said Boone Varley had been running a steam engine since he was a barefoot boy, and that he had been handling gas engines for five or six years, but that he had never had any experience in handling an oil gas tractor, said agent replied that he would not have any more trouble in handling the oil gas tractor than he would in handling steam; defendant asked said agent if he would put a man in the field for a week or ten days until the defendant was satisfied with the engine, and said agent replied that he would and longer until the defendant was satisfied with the engine; the defendant stated that he had never had any experience with gas tractor engines and that he was relying upon the statement of the agent White. Answer: Yes, except to part on page 2 marked (□). No to that.”
(2) Did appellee’s agent prepare a written contract for the engine and request appellant to sign it telling him that it was only an order for the machinery, and that it contained the warranties, such as stated in question No. 1, and that on account of such statement the appellant was induced to sign said contract? Answer: Yes; and, further, without giving appellant an opportunity to read it? Answer: No.
(4) “If the jury find the representations set out in questions Ños. 1 and 2 were made by appellant to appellee’s agent, then were such representations true or false? Answer: true, except part marked No on page 2.”
(The part marked “No” on page 2 relates to certain alleged contracts which appellant claims he had and advised appellee’s agent of, and which the jury found appellee’s agent did not know about.)
(5) “Was the engine sold to appellant such as appellee’s agent represented it to be in question No. 1? Answer: No; engine failed on plowing.”
(12) “Would the appellant, with an engine such as represented in question 1, have been able to carry out his plowing contract? Answer: Yes.”

There are other findings df the jury that will he referred to later on in this opinion. All the material statements or representations charged to have been fraudulently made by the appellee’s agent to appellant for the purpose of inducing appellant to sign the contracts or orders for the machinery in question, and which he alleges did induce him to sign them, were found by the jury to be true, except the statement in regard to the number of plows the engine would pull. As has been seen, in answer to the question, “Was the engine sold to appellant such as appellee’s agent represented it to be in question No. 1?” the jury answered, “No; engine failed on plowing.”

By the first assignment of error here under consideration and set out above the appellant contends that the answers of the jury to the questions submitted show that the written contract sued on “was procured by fraud which invalidated said contract,” and therefore the trial court erred in ren-dei'ing judgment for the appellee. The only findings of the jury referred to by appellant in support of this contention, and the only ones upon which such a contention, could be based, is the one just quoted to the effect that the “engine failed in plowing,” and that appellee’s agent prepared a written contract for the purchase of said' engine by appellant and requested him to sign the same, telling him that it was only an order for the machinery, and that it contained the warranties such as stated in question No. 1, and that on account of such statement appellant was induced to sign said contract. As we have before stated, no statement of facts accompanied the record sent to this court, and in the condition we find it we would not be warranted in holding that because of the findings of the jury just mentioned the trial court should have held that there was such a fraud practiced upon appellant by the appellee’s agent in the negotiations for the sale of the machinery and in procuring the appellant’s signature to the contracts by which such sale was consummated as defeated a recovery upon the notes given in part payment for said .machinery and sued on in this action. In Murray Co. v. Putman, 61 Tex. Civ. App. 517, 130 S. W. 631, it appeared that Putman had entered into a written contract with the Murray Company for the purchase of certain machinery, and that in said contract the machinery was warranted to be of good material and “to perform well if properly operated by competent persons.” The contract further provided that, if upon starting the machinery the purchaser, at any time within ten days, was unable to mate the same operate well, he should give the Murray Company telegraphic or written notice of the fact and state wherein the machinery failed to conform to the warranty, and a reasonable time should be given the Murray Company to send a competent person to remedy the difficulty, the purchaser rendering all necessary and friendly assistance, etc. In stating his cause of action Putman alleged, in effect, that the Murray Company contracted to erect, construct and equip the machinery upon his premises and put the same in first-class condition on or before August 1, 1907, for the purpose of ginning cotton, but that said contract had been breached by the company, in that the machinery did not reach his premises before August 14, 1907, and that the machinery was not erected during the season of 1907, by reason of which Putman lost the ginning of that season’s crop, to his damage $2,000. The Murray Company answered, setting up the written order given for the machinery and denying that it contracted to erect and put up the machinery for operation. Put-man then by an amended petition alleged that the written order for the machinery did not contain all the contract, but that the contract was in part written and in part verbal, and that the verbal part was not included in the written part by fraud, accident, or mistake. Over the objection of the Murray Company, Putman was permitted to testify, in substance, as follows:

“Mr. Ellison [the Murray Company’s agent] drew up that written order [for the machinery], and I signed it in duplicate, and he left one copy with me. I didn’t have my specs with me at the time I signed it, and I didn’t read over all the fine print, Mr. Ellison just told me the substance of it and we agreed. He didn’t read it over to me. He did not tell me that there was anything in it that we had not agreed upon; we talked it over and then he drew the contract. I can’t read fine print at all without glasses. I don’t claim to be bright. I had confidence in him [the agent] at that time. I fully believed he would write down our agreement on that paper. He just told me what it amounted to and he didn’t care for the mortgage on the machinery. My son and I were plowing in the field. We both stopped and sat down on the cultivator during the time of this contract.”

Putman’s son testified to the same effect. The admission of this testimony was assigned as error, on the ground that Putman thereby undertook by a prior or contemporaneous agreement to “vary, alter, contradict, and add to the terms 'of the written contract between the parties sued on.” In disposing of the assignment this court held that the effect of the parol testimony was to change, alter, and contradict the written order given for the machinery, and after expressly recognizing the familiar rule that a written contract may be avoided by allegations and proof that fraud, accident, or mistake entered into the making of the contract, and in effect admitting that the allegations of fraud, accident, or mistake made by the plaintiff, Putman, were sufficient to admit proof on- the issue propounded the following question:

“Does the evidence show such fraud, accident, or mistake in the making of the contract in question that authorizes plaintiff to vary or alter its terms by parol evidence?”

The court then, after reviewing the testimony, held that it was insufficient for the purpose offered and admitted. This decision of the court serves to illustrate, and is referred to for that purpose only, that the finding of the jury bearing upon the alleged statements of the appellee’s agent in regard to the contents of the written orders given by the appellant for the machinery involved in the present case and the finding that the oil gas tractor engine, a part of that machinery, “failed on plowing,” are insufficient to justify the conclusion insisted upon by appellant that there was such fraud practiced upon him in securing said orders as required the rendition of a judgment denying ap-pellee a recovery upon the notes and mortgage sued on. The testimony in the Murray Company Case tended as strongly to show fraud in that case as the mere finding of the jury that the engine sold appellant “failed on plowing” tends to show fraud in this case. The jury found that the engine sold and delivered to appellant was such an engine as the one described in the written eon-tract or order signed by Mm, and that appellant was not denied an opportunity to read the contract, and there is no express finding that he did not read it or did not understand its contents. The appellant charged that the engine was worthless, but the jury found that he was not only able to carry out his threshing contracts with it, but’ did carry them out and made profits. They did not find to what extent or why the engine failed “on plowing,” nor did they find that the statement of appellee’s agent in reference to the capacity of the engine in pulling plows was made with the fraudulent intent to induce its sale or that such statement constituted a warranty of the capacity of the engine witMn the contemplation and understanding of the parties. The only statement made by appellee’s agent in reference to the capacity of the engine to do plowing, shown in the record sent to this court, and found by the jury to have been made, is the one appearing in the very lengthy and perhaps involved Question No. 1, quoted in this opinion, and appears to have been made in answer to the question of the appellant “if the engine would pull 10 plows in plowing ordinary land.” The finding of the jury is to the effect that appellee’s agent in reply to said question of appellant stated that the engine would pull 12 plows. It is upon this answer made under the circumstances stated that appellant bases his contention that ap-pellee’s agent warranted that the engine sold him possessed drawing capacity suffl-cient to enable it to carry out his plowing contracts, and he charges that said answer was a false statement made to defraud him and required the rendition by the district court of a judgment that appellee take nothing by its suit. Considering the several findings of the jury, and in the absence of a statement of facts, we are unable to agree with appellant’s contention. There 'is no finding whatever that any warranty contained in the written order or orders given for the machinery was breached, and it is not at all improbable that the trial judge concluded, and was authorized to conclude, from the evidence adduced, in the absence of a finding of the jury to the contrary, that the verbal statement of the appellee’s agent that the engine would pull 12 plows was a mere expression of his opinion, a “trading opinion” as to the drawing capacity of the engine, and not a warranty of its capacity. Furthermore, the findings of the jury make it clear that the engine was not entirely worthless, and that the consideration of the notes sued on had not entirely failed, if there had been any such failure at all. They did find that appellant would have made a profit on his plowing contracts with an engine “such as represented in question 1, quoted above, and that he lost money on said contracts in his efforts to operate the engine,” but in answering questions as to how much profit he would have made, with such an engine, and how much money he lost in his efforts to operate the one he got, the jury said, “We do not know.” Now, in view of the findings that the engine was not worthless, but that the appellant had been able to successfully carry out his threshing contracts with it, the appellant was only entitled to have the amount of the damages sustained by him by reason of the engine failing “on plowing,” which he alleged was $700, deducted from the amount the appellee was entitled to recover on the notes sued on, and as the amount of such damages was not ascertained and determined by the jury, that issue having been submitted to them, the trial court could in no event enter any judgment other than the one it did enter. As the jury found that they did not know what profits appellant would have made with an engine such as the one appel-lee contracted to deliver him, and did not know the amount of money appellant lost in his efforts to operate the engine which was delivered to him, it must be presumed here that the evidence offered upon those issues was too indefinite, uncertain, and insufficient to justify a finding upon them, and that the trial judge recognizing such condition of the evidence rendered judgment in favor of the appellee for the full amount of its claim.

The views expressed render it unnecessary to discuss and determine whether or not the appellant failed to give the notice provided for in the contract or the effect of the failure to give such notice, if it was not given. There is a finding of the jury to the effect that appellant gave notice of some defective adjustments and that appellee remedied such defect.

The contention of the appellant made in the sixth assignment of error, which is copied above, to the effect that the findings of the jury upon the issues submitted in questions 1, 2, 4, 5, and 12 are so inconsistent and contradictory that no judgment could properly be rendered in favor of the appel-lee, and which, as we have said, should not be sustained, will also be overruled. In answer to the long general question No. 1, quoted above, the jury said, in effect, that the conversation therein referred to between the appellant and appellee’s agent, White, occurred, and that in that conversation the appellant asked appellee’s said agent if the engine he proposed to sell to appellant would pull 10 plows in plowing ordinary land, and that said agent replied it would pull 12 plows. In answer to question No. 6, above set out, the jury answered, in effect, that the engine sold and delivered to appellant was not such an engine as appellee’s agent represented it to be in question No. 1, in that it “failed on plowing.” It is upon these apparent inconsistent answers of the jury that appellant seems to predicate in the main his contention, and asks for a reversal of the case. When fairly and properly considered, we think there is no such inconsistency or contradiction in- the answers as would warrant us In setting aside the judgment of the district court. The first answer of the jury respecting the drawing capacity of the engine was made in response to a long question calling for a finding touching many separate and distinct matters, and it seems manifest to us, when all their findings are considered, that they did not intend to find, and did not in fact find, in answer to any question propounded to them, that the engine delivered to appellant would pull twelve plows in plowing ordinary land. When the specific question of whether the engine sold and delivered to appellant was such an engine as appellee’s agent represented it to he, was put to them, stripped of the numerous questions included in question No. 1, and the confusion incident to such a question, they answered, “No; engine failed on plowing.” They further found that with an engine such as represented in question No. 1 appellant would have been able to carry out his plowing contracts, and would have made a profit on said plowing contracts.

At the request of the appellee the court submitted to the jury the following issue:

“Did the defendant, Frank Yarley, on or about the 1st of October, 1913, the date he paid-to plaintiff the first note maturing on said machinery, know of the defects alleged concerning said gas tractor engine?”

It is contended that the submission of this issue was error, because: (1) The appellant “sued herein upon a verbal contract for damages by way of cross-action,” and defendant’s acceptance of the defective machinery and the payment of its purchase price does not in any manner estop him from asserting his right to damages; (2) because the “submission of said issue prejudiced the rights of the defendant before the jury, in that it indicated to the jury that the court was of the opinion that the defendant would not be entitled to recover herein because of having made the said payments.” The appellant’s brief does not disclose the jury’s finding upon the issue, but, looking to the transcript, we find that they answered the question submitted in the affirmative. If it be conceded that in a proper proceeding and under certain circumstances the acceptance of defective machinery and payment of a part of the purchase price would not estop the purchaser from recovering damages sustained by reason of the defects, and that in such case the acceptance of the payment of a part of the purchase money with knowledge of the defects would be an immaterial issue, still the submission of the issue here complained of in the state of the record before this court furnishes no reason for a reversal of the judgment of the trial court. Whether it was proper to submit the issue depends upon the particular facts of the case, and in the absence of a statement of facts, it will be presumed that the evidence waranted its submission. Besides, tibe jury having failed to find and assess any amount as damages sustained by appellant as a result of the breach of the warranty contained in the written contract entered into for the sale and purchase of the machinery, if there was such a breach, and having failed to find and assess any amount as damages sustained by the appellant as a result of such breach or as a result of the alleged fraud on the part of appellee in securing appellant’s signature to said contract, no other judgment than the one rendered could have been rendered, and the submission of the issue was harmless. In reference to the second reason urged by appellant why said issue should not have been submitted, it is sufficient to say, in addition to what we have already said above, that it is altogether improbable that the jury were influenced in the determination of any other question propounded to them by said issue.

The refusal of the following special charge is made the basis of appellant’s eleventh assignment of error:

“The burden of proof is upon the plaintiff to show that the terms of the contract pleaded by it were in all respects complied with by it.”

This charge, we believe, was properly refused. The plaintiff sued on the notes and mortgage given by the defendant, Varley, the introduction in evidence of which would entitle it to recover unless defeated by the defenses set up by the defendant. The defenses pleaded by him were a breach of the contract entered into for the machinery sold him, in consideration of which said notes were executed and delivered, and fraud practiced by appellee in securing the execution of said contract. The burden of proof was upon appellant to show the breach of the contract and fraud pleaded by him, and the charge refused would have relieved the appellant of that burden and cast upon appellee the burden of disproving the breach and fraud alleged. It would have, at least, been so confusing as to probably mislead the jury.

The remaining assignments of error have been disposed of against appellee’s contention by what we have already said, or disclose no reversible error. They relate to no new question and need not be discussed.

The record disclosing no reversible error, the judgment of the court below is affirmed.
      i£=>For other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    AMERICAN SURETY CO. v. HUEY & PHILP HARDWARE CO.
    (No. 7648.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 23, 1916.
    Rehearing Denied. Feb. 3, 1917.)
    1. Counties <S=>123 — Building Contractor’s Bond — Premature Suit — Completion of Building.
    A public building contractor’s bond providing for bringing suits thereon at any time within six months from the time of the completion of the contract, for a county building, given under a foreign statute, providing that no action shall be brought thereon after six months from the completion of the building, merely limits the time within which suits may be brought, but does not prevent the bringing of a suit before the building was comxjleted for materials furnished and already used therein.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 194 — 196; Dec. Dig. <S=»123.]
    2. Evidence <§=»571(4) — Foreign Law — Experts.
    Where neither the bond of the contractor for a county building nor Acts 1911 Ark. p. 462, under which it was given, required a suit thereon to be instituted in the county in which the building was constructed, the court could find that there was no such requirement in the law of the state in which the building was constructed, notwithstanding the testimony of an attorney from that state that the law contained such requirement.
    [Ed. Note. — For other cases, see Evidence, Dec. Dig. <®=w571(4).]
    3. Courts @==>7 — Juudisdiction—Transitory Action — Building Contractor’s Bond.
    An action on a county building contractor’s bond is transitory, and may be brought in the county in which the materialmen and the principal resided in a state where the surety was doing business under a permit, though the building was constructed in another state.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 14, 16, 22-31; Dec. Dig. <®=»7.]
    4. Counties <®=»123 — Contractor’s Bond-Parties — County.
    In an action by a materialman against a surety on the bond of a contractor for a county building which was made payable to the state and given to secure the county for which the building was to be built and all laborers and materialmen, neither the county nor the commissioners thereof were interested, and they were not necessary parties to the suit.
    [E'd. Note. — For other cases, see Counties, Cent. Dig. §§ 194-196; Dec. Dig. <®=^123.]
    5. Counties <S=>123 — Contractor’s Bond-Parties — Principal.
    Where one of two principals on a county building contractor’s bond was dead and the other had been adjudged a bankrupt, they are unnecessary parties to an action by material-men against &e surety.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 194^196; Dec. Dig. <®=»123.]
    6. Counties ®=>123 — Contractor’s Bond-Petition — Sufficiency.
    A petition against a surety on a county building contractor’s bond, which alleged the making of the contract, the purchase of materials from plaintiff by the contractor for the building, and the use of such materials in the building, stated the amount due which the contractor promised to pay, but refused to do, and set out the surety’s bond with appropriate allegations, is not subject to, general demurrer on the ground that there was no allegation as to where, when, or under what conditions payments were to be made, and no allegation that the contract for the building required the contractor to pay for the material.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 194-196; Dee. Dig. <⅜=»123.]
    7. Counties <S=»123 — Contractor’s Bond-Petition — Approval by County.
    The petition of a materialman against a surety on a county building contractor’s bond, which alleged that the materials were used in the building, need not allege that they were approved by the county, the failure of the county to approve such materials being a matter of defense which the surety must plead and prove.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 194-196; Dec. Dig. <S=al23.]
    8. Counties @=»123 — Contractor’s Bond-Evidence. _
    _ In an action by a materialman against the surety on a county contractor’s bond, which was conditioned on the principal performing all the provisions of the contract, a copy of which was annexed thereto, for the furnishing of material and the performance of work and labor for the construction of the building, the bond was admissible in evidence without the contract, where there was no allegation that there was anything in the contract which would defeat recovery.
    [Ed. 'Nóte. — For other cases, see Counties, Cent. Dig. §§ 194-196; Dec. Dig. <®=>123.]
    9. Counties <®=»123 — Contractor’s Bond— Evidence — Sufficiency—Use of Building.
    In an action by a materialman against the surety on a county contractor’s bond., testimony by the principal’s supervisor of the job that he purchased the material from plaintiff, that he had seen a large part of it placed in the building and the workmen were then engaged in placing the rest of the material in the building, and that the material purchased was used exclusively for the building, was sufficient to support a judgment finding that the material was used.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 194-196; Dec. Dig. <S=»123.]
    Appeal from District Court, Dallas County*; E. B. Muse, Judge.
    Action by the 1-Iuey & Philp Hardware Company against the American Surety Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Adams & Stennis, of Dallas, for appellant. Spence & Haven, of Dallas, for appellee.
   RAINEY, C. J.

Appellee sued appellant tó recover on a bond executed by appellant as a surety for L. R. Wright & Co., a firm composed of L. R. Wright and O. L. Hitchcock, to Phillips county, Ark., said bond being for the faithful performance of a contract to build a courthouse and jail, entered into with Phillips county by said Wright & Co., which bond bound the makers to pay off and discharge all indebtedness contracted by said Wright & Co. for material, labor, etc., in constructing said buildings, and giving the right to all such creditors to sue on such bond. An indebtedness of $498 was due appellee Huey & Philp Hardware Company for materials furnished for said buildings. The appellant answered by plea in abatement, that the suit was prematurely brought by the terms of the contract, the nonjoinder of certain parties, -general and special demurrer, and general denial. The plea in abatement and demurrers were overruled. A trial was had without a jury, and judgment rendered in favor of appellee for the $597, claimed amount, from which this appeal is prosecuted.

The facts show that L. R. Wright & Co., a firm composed of L. R. Wright and O. L. Hitchcock, residents of Dallas county, Tex., entered into a contract to construct a courthouse and jail building for Phillips county, state of Arkansas, to be located in the city of Helena. In accordance with the laws of Arkansas said Wright & Co. executed a bond payable to the state of Arkansas, with appellant as surety, for the faithful performance of said contract. Said bond was given for the benefit of any person or persons furnishing labor or material in the construction of said buildings, and “shall have the right to bring suits on this obligation for any and all sums that may be due them for work or material furnished in or about the same, at any time within six (6) months from the date of the completion of the said contract.” Ap-pellees furnished to Wright & Co. the material sued for, and same was used in the construction of said building. Before the said building was finally completed O. L. Hitchcock died, and L. R. Wright was adjudged a bankrupt. Appellant is incorporated under the laws of New York,.but is doing business in Texas under a permit.

The first assignment of error presented by appellant is:

“The court erred in overruling the defendant’s plea in abatement as set out in th,e first paragraph of its first amended original answer, to the effect that this suit was instituted before the completion of a contract and building referred to in plaintiff’s amended petition, and was prematurely instituted, because the law and bond as pleaded by plaintiff do not authorize the institution of such a suit before the completion of said buildings and contract.”

The proposition submitted is:

“A suit instituted before the completion of a contract for material furnished to be used in the contract building against a surety whose liability depends upon the use of the material in the building and on a contract which expressly provides that such materialman shall have the right to bring suit on said contract obligation for the sum due for the material going into the building, at any time within six months from the date of the completion of said contract, is prematurely brought, and on proper plea and proof should be dismissed.”

While the evidence shows that at the time suit was instituted the building was not completed, we are of the opinion that the language of the law and bond does not require the completion of the building before suit can be instituted. The bond was evidently made to conform to the law of Arkansas, which reads:

“That no action shall be brought on said bond after six months from the completion of said public improvement or building.”

The bond reads:

“That all persons and corporations having claims against the said contractor, or any subcontractors under them, shall have the right to bring suits on this obligation for any and all sums that may be due them for work or material furnished in or about the same, at any time within six months from the .time of the completion of said contract.”

Both the law and bond merely fix a period of limitation in which suits are to be brought, which we conclude mean that no suit can be brought on a claim “after six months from the completion of the building.” The law and bond are further silent as to when the right to sue arises; hence we overrule this assignment of error.

Appellant’s second assignment of error reads:

“The court erred in overruling the defendant’s plea-in abatement as set out in the first paragraph of said amended answer, to the effect that the law and bond pleaded by the plaintiff in said amended petition contemplate and require that the suits for the enforcement of liability under said law and under said bond shall be brought in the county where the building has been constructed, and the suit should have been instituted, if at all, in Phillips county, Ark., and its venue in this court is improperly laid.”

The proposition submitted is:

“Where the law and bond on which suit, is based requires that suits for enforcement of liability thereunder shall be brought in Phillips county, Ark., and the defendant pleads and urges the right to be sued on the venue required by law, it is error to overrule such plea and deny such right and compel the defendant to try the issues in another county and state.”

The bond sued on and executed by appellant to secure Phillips county, Ark., and laborers and furnishers of material for the construction of the courthouse and jail by L. R. Wright & Co. recites:

“This bond being given to secure the county of Phillips and the commissioners of public buildings of said county, and also all persons and corporations furnishing, labor or material going into the said construction of said work against any loss whatsoever, as provided by Act 446 of the General Assembly of Arkansas, approved June 2, 1911.”

The statement of facts shows the full Act 446, and nowhere therein does it provide for the venue of a suit by laborers or material-men on the bond. Nor is there any provision in said bond in reference thereto.

P. O. Thweatt testified by deposition that he had been practicing law in Arkansas since 1860; that the laws of Arkansas provide that suit shall be brought in the county in which said public improvement is to be made, or such public improvement is to be erected, when action is brought on the bond referred to in section 2 of said act. The act itself and the testimony of said Thweatt are all that show the laws of Arkansas. The trial court found, in effect, contrary to Thweatt’s depositions as to venue, which it had a right to do, especially if Thweatt was construing said Act 446, as we think the act is not subject to such construction. Banco Minero v. Ross, 106 Tex. 522, 172 S. W. 711.

Another reason why the district court of Dallas county, Tex., has jurisdiction of this cause is that the appellee, plaintiff below, and L. R. Wright & Co., had their residence in Dallas county; that appellant is a corporation chartered by the state of New York, is doing business in Texas under a permit, and filed an answer herein. The cause of action is transitory, which, in our opinion, gave the trial court jurisdiction to adjudicate the case.

The third assignment of error complains of the action of the court in overruling the plea in abatement for nonjoinder of nee-essary parties to this action, and submits the following proposition:

“In a suit against a surety on its principal’s bond for the construction of a public building for Phillips county, Ark., for material, sold by plaintiff to said principal for use in said building, said surety being liable only for material used in. the construction of the building,, said county, its building commissioner and plaintiff, and said contractor and said surety were.all interested in the subject-matter of the suit, and were necessary parties to said suit, and it was error for the trial court to overrule appellant’s plea for nonjoinder of necessary parties.”

The bond sued on was made payable to the state of Arkansas, and was given to secure the county of Phillips and the commissioners of public buildingsi of said county, and also all persons and corporations furnishing labor or material going into the construction of said work, etc. The law of Arkansas said nothing about who were necessary parties. Neither the commissioners nor Phillips county were interested in the result of this litigation as they were in no way affected thereby, and therefore not necessary parties. The bond authorized laborers and materialmen to sue thereon, and does not require that any other person, or persons, become parties to the litigation.

L. R. Wright was alleged and shown to be insolvent, adjudged a bankrupt, and O. D. Hitchcock was dead, which rendered them unnecessary parties. There was no error in not sustaining the plea in abatement.

Appellant’s fourth assignment complains of the court’s action in overruling its general demurrer to plaintiff’s petition. We are of the opinion that the form and substance of the petition sufficiently stated a cause of action to warrant a recovery thereon. It is complained that:

“There is no allegation as to where, when or under what conditions such payments were to be made and there is no allegation in plaintiff’s petition that the contract of November 14, 1913, required said D. R. Wright & Co. to pay for any material.”

The petition alleged, in effect, that D. R. Wright & Oo. entered into a contract with the county building commissioners for Phillips county, Ark., by the terms of which they were to furnish and pay for the performance of all work and labor for the construction of a courthouse and jail, etc.; that Wright & Oo. undertook the building thereof, and purchased for that purpose certain building material from appellee to be used in said building, and was used therein, and states the amount due $597, with itemized account attached and referred to; that they promised to pay therefor when furnished, but refused to do so; also set out surety’s bond with appropriate allegations, etc., with prayer for gerieral and special relief.

By appellant’s fifth assignment it is charged that the court erred in not sustaining special exception to paragraph 4 of the plaintiff’s petition. It was urged that:

“There is no allegation showing that the material herein sued for by plaintiff was in fact approved and received by Phillips county.”

It was alleged by plaintiff that the material was sold to be used in the construction of said building, and that same was so used. The allegations were sufficient. Neither the contract nor the law required the plaintiff to make the want of the allegations complained a prerequisite to be pleaded for a recovery, and if it was necessary as a defense, it was incumbent on appellant to plead and prove it.

The sixth assignment complains of the admission-in evidence, over appellant’s objection, of the bond sued on because it shows on its face to be only a part of the bond and contract executed by appellant. Appellant duly excepted to this action of the court, to which the court appended this explanation:

“(1) This case was set down for trial on the -- day of -, 1915, and the same was, upon the application of the defendant, postponed for the purpose -of letting the defendant obtain a copy of the contract referred to in the bond.
“(2) On the day that the defendant’s application for a continuance was presented to the court on the ground above referred to, it was disclosed that the contract, which was in possession of L. R. Wright & Co., had been delivered to the referee in bankruptcy when the members of that firm filed a petition in bankruptcy, and that the same was in the possession of the referee on the day the application for postponement was heard and on the day the case was tried, and that the referee resided in and had his office in the city and county of Dallas.
“(3) The court is of the opinion that the bond is complete in itself, though reference is made to a copy of the contract attached to the bond; but if the bond is not complete in itself, then the defendant had ample time from the date its application for postponement was granted until the case was reset and tried to obtain a copy of the bond and take advantage of any provisions therein if it saw fit.”

The surety bond sued on makes this recitation :

“That if .the said L. R. Wright & Co. shall faithfully perform and truly keep all the conditions, covenants and agreements contained in the contract, a copy of which is hereto annexed and marked ‘Exhibit A’ and made a part hereof, said contract being dated November 14,1913, which said contract is for the furnishing of all material, and the performance of all work and for labor for the construction of a new courthouse and jail for Phillips county, Arkansas, * * * all as shown and noted in plans and specifications made by P. W. Gibbs & Co. with addenda thereto, according to the terms and conditions of said contract,” etc.

The petition of appellee showed a cause of action, and if there was anything in the annexed contract referred to in the bond that would defeat a recovery, it was incumbent on the appellant to allege and prove it, and, not having done so, there was no error in admitting the bond in evidence.

The remaining assignment of error is the seventh, which, in effect, is that the evidence is not sufficient to support the judgment. The proposition under this assignment is:

“The liability of appellant depending upon the use in the public building of the material for which appellee sues and upon the approval and receiving of said building by the county, and there being no proof that either the material furnished by appellee or said building had been received or approved by said county, it was error to render judgment against appellant.”

The bond protected—

“all persons and corporations furnishing labor or material going into the construction of said work against any loss whatsoever, as provided by Act 446 of the General Assembly of Arkansas, approved June 2, 1911.”

The testimony of R. W. Smith shows that he, supervisor of the job for Wright & Co., purchased the bill of builder’s hardware from the appellant; that on a trip to Helena he recognized said material; that a large portion thereof had been placed in the building, and they were then engaged in placing the rest of said material in said building. The material purchased from appellee was used exclusively for the Phillips county jail and courthouse. This was the substance of all the testimony on this point, and we think it was sufficient to support the judgment.

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

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


author: JENKINS, J.

text:
    HILL v. PATTERSON.
    (No. 5684.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 8, 1916.
    Rehearing Denied Jan. 24, 1917.)
    Dismissal and Nonsuit <g=wl9(l) — Dismissal in Vacation.
    Rev. St. art 1898, provides that plaintiff may dismiss his suit in vacation upon the payment of all costs if defendant has not answered. Article 1899 provides that plaintiff may be allowed to discontinue his suit as to one or more defendants when such discontinuance will not work to the injury 'of the other defendants. Article 1955 permits taking of nonsuit at trial, but it shall not prejudice the rights of the adverse party. Article 1900 provides that if the defendant has filed a counterclaim, before discontinuance by plaintiff, defendant may proceed to trial on such counterclaim. Article 7111 provides that, where a sequestration case is decided against plaintiff, defendant is entitled to judgment on the replevy bond, no answer being required. Held, that though plaintiff in sequestration, after obtaining the property, dismissed the suit during vacation, defendant was entitled to have all the issues settled and to proceed for affirmative relief in the original suit, though he filed no answer.
    [Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. § 33; Dec. Dig. <§=>19(1).]
    Appeal from Coke County Court; S. B. Kemp, Judge.
    Suit by T. S. Hill against M. Patterson. Judgment for defendant on a replevy bond, after dismissal of the case in vacation, plaintiff’s motion for new trial overruled, and plaintiff appeals.
    Affirmed.
    Lee Upton, of San Angelo, for appellant. Arnold & Patterson, of Robert Lee, and Thomas & McCarty, of San Angelo, for ap-pellee.
   Findings of Fact.

JENKINS, J.

Qn June 23, 1915, appellant brought suit in the county court of Coke county against appellee- to recover certain horses and mules, of the alleged value of $485, and sued out a writ of sequestration, which was levied upon said animals. The appellee having failed to replevy same within the time required by law, the appellant filed his replevy bond, and the animals were delivered to him. Afterwards, in vacation, and before appellee had filed any answer, appellant paid all costs in the suit and dismissed the same. Thereafter, on October 4, 1915, the said court convened, and on the 5th day of October, 1915, appellee filed a motion to substitute said replevy bond, the same having been lost, and asked for judgment thereon. The bondsmen were given notice of this motion, and the same was set down for hearing on October 31st, on which day said motion was heard, the bond was substituted, and appellee was given judgment thereon for the sum of $450. Neither the appellant nor the bondsmen appeared in said cause until two days after said judgment was. entered, when appellant filed a motion for a new trial, which was overruled.

Opinion.

It is the contention of the appellant that the court erred in rendering judgment on the sequestration bond, for the reason "that, appellant having dismissed his suit in vacation, there was no suit pending in which the court could enter judgment. There can be no doubt as to the right of a plaintiff to dismiss his suit in vacation, upon the payment of all costs, if the defendant has not answered, as the statute so provides. R. S. art. 1898. It is equally as clear that he may dismiss his suit when court is in session, but such discontinuance will not be permitted to work to the injury of the defendant. R. S. arts. 1899, 1955. If the defendant had filed an answer before the plaintiff dismissed his suit, and had asked affirmative relief against plaintiff, the case would have proceeded to trial on such answer. R. S. art. 1900; Smith v. Wilson, 18 Tex. Civ. App. 24, 44 S. W. 556; French v. Groesbeck, 8 Tex. Civ. App. 19, 27 S. W. 43; Short v. Hepburn, 89 Tex. 622, 35 S. W. 1056.

In the instant case the defendant had filed no answer. But it was not necessary, in order to obtain affirmative relief, that he should at any time have filed an answer asking such relief. If the case had been tried without being dismissed by plaintiff, and had been decided against him, the defendant would have been entitled to judgment on the' re-plevy bond without filing any answer asking therefor, or in any wise referring thereto. R. S. art. 7111; Wandelohr v. Bank, 106 S. W. 413; Tyson v. Bank, 154 S. W. 1055. In other words, the law files such plea, or makes such issue in the defendant’s belialf, and enters an appearance for the bondsmen thereto without any cross-bill or pléa in reconvention being filed by tbe defendant or citation being issued to the bondsmen.

It. is true, as suggested by appellant, that appellee might have treated the suit against him as abandoned, and have brought suit against the appellant and his sureties on the sequestration bond. But nothing could have been accomplished in such suit that could not as well have been accomplished in the suit already brought. It would at least hgve involved delay until the next term of court; and, in' the meantime, it might have happened in this case, or in any case, that the plaintiff had moved out of the county, and that the bondsmen might be nonresidents, in which case the defendant would have to seek relief in some county other than that of his residence. It is certainly, the spirit of the law that all of the issues in a sequestration suit should be settled in the original suit. To permit a party to acquire'possession of property by a writ of sequestration, ánd then to dismiss his suit,, thereby confessing that it should not have been brought, and to retain the property and not permit the defendant to recover his damages in such suit, would, we think, be an abuse of process.

We do not think the trial court erred in rendering judgment for appellee (Morris v. Anderson, 152 S. W. 677), and we, therefore, affirm said judgment.

Affirmed.
      <&»For other cases see same topic and KEY-NUMBER .in all Key^Numbered Digests and Indexes


author: FLY, C. J.

text:
    STRICKLAND v. DUFFIE et al.
    (No. 5770.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 10, 1917.
    Rehearing Denied Feb. 7, 1917.)
    1. Justices or the Peace @=>44(8) — Jurisdiction — Amount in Controversy.
    A justice of the peace has jurisdiction of a suit to recover a deposit of $200 made to secure performance of a contract to exchange lands wherein no interest was prayed for, and interest allowed dated only from .the date of judgment.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 166; Dec. Dig. @=> 44(8).] ■ ;
    2. Vendor and Puroiiaser @=>130(2) — Presumption of Payment. •
    Independent of the statute of limitations, where an abstract showed a judgment for a claimed owner of land decreeing him title on condition that he pay another claimant a certain sum which was entered in 1881, and the abstract further showed a conveyance by such person within three months of the judgment, and the other party never asserted any claim, it will be conclusively presumed in 1912 that the required payment was made and the title was good or marketable.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 246; Dee. Dig. @=> 130(2).]
    Error from Bexar County Court for Civil Cases; John H.'Clark, Judge.
    Suit by James T. Duffie and others against J. H. Strickland and the Stewart Title Guaranty Company. Judgment for plaintiff in the county court modifying a judgment of- the justice court for- plaintiff, and J. H. ’ Strickland brings error.
    Affirmed.
    Templeton, Brooks, Napier & Ogden, of San Antonio, for plaintiff in error. Leonard Brown, of San Antonio, for defendants in error.
   FLY, C. J.

This is a suit by James T. Duffie agáinst J. H. Strickland and the Stewart Title Guaranty Company to recover $200. The suit was begun in the justice’s court on an open account for $200. The Stewart Title Guaranty Company disclaimed any interest in the $200, and answered that it was holding the same under the terms of a contract between Strickland and Duffie, whereby an exchange of property was made by them and the money deposited with the Title Guaranty Company by Duffie as security to Strickland that he would perform the conditions of-the contract-; that Strickland claimed that Duf-fie had failed to carry out his contract and demanded the money of the Title Guaranty Company, and said company was ready and willing to pay the money to the party to whom it was adjudged to belong. Judgment was rendered in the justice’s court in favor of Duffie for $200, with interest from date of judgment. An appeal was perfected to the county court, where judgment was rendered in favor of Duffie for $175 and in favor of the Title Guaranty Company for $25, attorneys’ fees to be taken out of the $200 held by it.

It is claimed by plaintiff in error that the justice’s court had no jurisdiction over the suit because the amóunt sued for was in excess of $200. That conclusion is reached by the assumption that the sum of $200, and interest, as damages, was sued for in the justice’s court. The docket of the justice’s court destroys such assumption; for it shows that the suit was for the money deposited by Duffie and did not include interest. The judgment of the justice of the peace permitted a recovery of interest only from the date of the judgment. The record clearly indicates that the.only object of the suit was to recover money deposited as security to cover the breach of a contract, which the stakeholder was willing and ready to deliver to the person to whom it belonged. In the case of Railway v. Rayzor, 106 Tex. 544, 172 S. W. 1103, it is held, under a prayer to the petition similar to that of the petition filed in this case in the county court, that the plaintiff only sought interest on the judgment, and not interest on the amotmt as part of the damages. The court further held:

“Where the essential jurisdictional facts are alleged, before a litigant is, upon this ground, deprived of the right to be- heard in the court of his selection, it is but a reasonable reauirement that, in an allegation of his petition relied upon by his adversary to defeat the very jurisdiction he is invoking, it shall appear, not doubtfully, but plainly, that the jurisdiction of the court is negatived. In any doubtful case all intendments of the plaintiff’s pleading will be in favor of the jurisdiction.”

In the present case the pleadings clearly indicate that a recovery of the $200 alone was sought. Freeman v. Walker, 175 S. W. 1133.

This is not a case of conversion and a discussion of the question whether interest was included in the suit of Duffle might have been pretermitted. No acts of conversion could be charged against the stakeholder because the money had been placed in its hands; it asserted no ownership in the money and was ready and willing to deliver it to the proper party. Nothing inconsistent with the position occupied by the company as stakeholder or bailee was done by it. If the money had been delivered to the wrong party, it would have been a-conversion, but the bailee had done nothing inconsistent with the purposes of the bailment. The justice’s court had jurisdiction of the cause.

The statement under the first and second assignments of error fails to show that a complete abstract showing a good title was not presented to Strickland by Duffle within the time limit, but the facts are fully stated under the third and fourth assignments of error. Duffle presented a complete abstract of the title to the property to Strickland, in which as a link in the title was a judgment in the case of H. B. Adams et al. v. Michael Ryan, obtained and entered on June 24, 1881. In that judgment plaintiffs recovered the land in question from the defendant, and defendant recovered of plaintiffs $118.70, the amount of unpaid purchase money and $33.-03 taxes. It is provided in the judgment that no writ of possession should issue until the plaintiffs paid the $151.73 into court for the benefit of Ryan, and if the amount was not so paid within 12 months from the date of the judgment, the title to the property should be vested in Ryan. The objection- to the title was that payment of the money was not in any manner shown by the abstract. The abstract, however, showed that on October 4, 1881, about 3 months after the judgment was rendered, the plaintiffs in the judgment sold an undivided interest in the land. There were conveyances of the land by plaintiffs and those claiming through them in which the land is described as that recovered in the judgment. No conveyance "was ever made by Ryan, and no taxes were ,'paid by him. The contract in this case was made on May 24, 1912, over 30 years after the judgment w.as rendered in the case of Adams v. Ryan.

Under the facts and circumstances surrounding the judgment in Adams v. Ryan, which are disclosed by the abstract of title furnished by Duffle to Strickland, the legal presumption would arise that the purchase money and taxes were paid in Ryan. It has been held in cases of liens that, although the record did not show satisfaction, after a period of 30 years or more the title would be a good or marketable title. Maupin, Marketable Titles, § 307; Baldwin v. Trimble, 85 Md. 396, 37 Atl. 176, 36 L. R. A. 489; Katz v. Kaiser, 154 N. Y. 296, 48 N. E. 532; Barger v. Gery, 64 N. J. Eq. 263, 53 Atl. 488; Justice v. Button, 89 Neb. 367, 131 N. W. 736, 38 L. R. A. (N. S.) 1, and notes. From the day of the judgment in 1881 Michael Ryan has set up.no claim to the property in question, while the plaintiffs in a short while after the judgment was rendered exercised rights of ownership to the land. The presumption that the purchase money was paid would be conclusive. This presumption of payment of the money- would arise independently of any statute of limitations. Lawson on Presumptive Evidence, p. 308 et seq.; Gaines v. Miller, 111 U. S. 395, 4 Sup. Ct. 426, 28 L. Ed. 466; Weems v. Masterson, 80 Tex. 45, 15 S. W. 590. The rule laid down by Lawson is:

“Independently of a statute of limitations or in the absence of one, after a lapse of 20 years the law raises a presumption of the payment of bonds, mortgages, legacies, taxes, judgments, the due execution of a trust and the performance of'a covenant.”

The abstract of title accompanying the record shows that the action of Adams v. Ryan was one of trespass to try title, that the latter was in possession of the land, and -it cannot be presumed that he relinquished possession until he was paid, and yet in three months after the judgment was rendered the plaintiffs therein exercised rights of ownership over the land, and M. Ryan never after-wards . set up any claim in or against the land. The presumption is conclusive that the debt was paid and the abstract showed a good title. The presumption of payment arises from the abstract itself.

The judgment is affirmed.
      @=>For'other cases see same topic'and KEY-NUMBER in áll Key-Numbered Digests and Indexes


text:
    CARR et al. v. McDUFFIE.
    (No. 7653.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 23, 1916.
    Rehearing Denied Jan. 13, 1917.)
    Appeal and Eeeok <&wkey; 150(6) — Stjkety — Right op Review.
    Sureties on a replevy.bond cannot maintain an appeal from a judgment against their principal without joining him where the judgment is not against them.
    [Ed. Note. — For.'other cases, see Appeal and Error, Cent. Dig. §§ 944, 945; Dec. Dig. &wkey;> 150(6).]
    Appeal from Dallas" County Court; T. A. Work,- Judge. '
    Action by R. H. McDuffie against G. W. Carr, in which attachment was levied on property of the Blackfoot Fruit Growers’ Association. Judgment against the Association, and L. C. McBride and H. F. Archinard, sureties on its replevy bond, appeal.
    Appeal dismissed.

      Cockrell,' Gray & McBride, of 'Dallas, for appellants. • •
   TALBOT, J.

The appellee has filed no brief in this • court, and we take -from the brief of appellants the following statement of the case:

This' action was brought January 21, 1913, in justice court, precinct No. 1, Dallas county, Tex., by R. H. McDuffie as plaintiff against the defendant G. W. Carr to recover $120. Carr was the sole defendant' as named in citation. Contemporaneously with filing the suit, plaintiff made affidavit for attachment, stating there? in that G. W. Carr and “Blackfoot Fruit Growers’ Association” were indebted to him in the sum of $120, 'for brokerage, loss, damage, and profit on three cars of potatoes. The attachment was served January 21, 1913, by levy upon the three cars of potatoes. The attachment “was issued against the property of G, W. Carr only, and was so served.” January 22, 1913, Blackfoot Fruit Growers’ Association re-plevied the three cars of potatoes by executing the usual replevy bond in attachment with appellants, L. C. McBride and H. F. Arehinard', as sureties thereon. As stated the citation; of January 21, 1913, which was issued by the jus-' tice of peace, was to the defendant G. W. Carr, only. No other citation at any time issued in said cause, except that thereafter on June 2, 1913, a foreign notice was issued by said justice of peace, which was addressed' to and served upon the Blackfoot Fruit Growers’ &. Farmers’ Association, at Blackfoot, Idaho; 'such service being made in the state of Idaho. Said foreign notice made no mention of the writ ,of attachment or the seizure of the property, but simply commanded the Blackfoot Fruit Growers’ & Farmers’ Association to appear and answer plaintiff’s petition,- the notice giving the nature of the demand in the following language: “And the nature of the plaintiff’s demand, as stated in said petition being substantially, to wit: Suit Of petitioner for the sum of on'e hundred twenty ($120.09) -dollars.” The case resulted in a judgment in the justice court entirely against the plaintiff. Appeal was taken to the county court. There the defendant G. W. Carr and L. C. McBride and H. F. Arehinard as such sureties on said replevly bond in attachment of Blackfoot Fruit Growers’ Association appeared, but neither Blackfoot Fruit Growers’ Association nor Blackfoot Fruit Growers’ & Farmers’ Association ever made any appearance at, all in the case. In the county court, after the evidence was heard, 'the court peremptorily instructed a verdict, and same was rendered in favor bf the plaintiff, McDuffie, against defendant Blackfoot Fruit Growers’ Association for the entire $120 sued for, and interest, and in favor of the defendant G. W. Carr, and judgment being rendered accordingly, _ this appeal is taken therefrom by L. C. McBride and H. F. Arehinard, as sureties on said replevy bond in attaehmént.

There was no judgment whatever rendered against the appellants^ McBride and Archin-ard, sureties on the replevy bond executed by Blackfoot Fruit Growers’, Association. But appellants, as such sureties, insist that they had a right to resist judgment against their principal, and for that reason w'e' presume they claim the right to appeal from the judgment rendered against said principal, although no . judgment was rendered against them. At any rate they gave notice of appeal, filed an appeal bond in their own names as principals without their principal, the Blackfoot Fruit Growers’ Association, joining in said appeal bond or the appeal, have filed a transcript of the record in this court, and upon assignments of error presented in their brief contend the judgment -against the Blackfoot Fruit Growers’ Association should he reversed. . , ,

In the view we take of the case the right of the Blackfoot Fruit Growers’ Association to have the judgment against it reversed for the reasons urged by the appellants, had it seen fit to appeal from said judgment, will not be .considered. ¥e are of the opinion that since no judgment was rendered against •the appellants, sureties on the replevy bond in dttachment, and since the Blackfoot Fruit Growers’ Association -is not a party to this appeal,, the appeal must be dismissed. We do not-'.concur 'in the proposition of the appellants to' the effect that it is settled law that they as sureties on the replevy bond had the right to resist the judgment against their principal in said bond, and to effect this appeal. The cases of Wood Grocery Co. et al. v. S. A. Pace Grocery Co., 99 S. W. 180, and Wandelohr v. Rainey, 100 Tex. 471, 100 S. W. 1155, cited by appellants in support of their proposition, are not in point, and we know of no authority that does support the proposition. In both of the cases cited by appellants judgment had not only been rendered against the principals in the bonds, but against the sureties; and to - relieve themselves from the judgment against them, the right of the sureties to- prosecute an appeal was recognized and' allowed. Here no judgment has been rendered against the appellants from the consequences of which they seek to escape by a reversal of it. Their apparent purpose in the prosecution of this appeal-is simply to have the judgment rendered against the Blackfoot Fruit Growers’ Association, their principal in the replevy bond, set aside without subjecting it to an appearance in the case by joining in the appeal. They have pot been aggrieved by the rendition of a judgment against themselves, and we do not think they can maintain'.this appeal for the benefit of their principal on the replevy bond.

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


author: PRENDERGAST, P. J. PRENDERGAST, J.

text:
    RUDY et al. v. STATE.
    (No. 4316.)
    (Court of Criminal Appeals of Texas.
    Dec. 27, 1916.
    On Motion for Rehearing, Feb. 14, 1917.)
    On Motion for Rehearing.
    1. Bail &wkey;>94 — Action on Bond — Dismissal —Failuee to File Bkiefs.
    An appeal from a judgment against the principal and sureties on a bail bond given in a criminal prosecution will be dismissed, where appellants filed no brief in the lower court, though the requirement therefor was not waived, and none in the appellate court until the day before the submission.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 41&⅛23; Dec. Dig. &wkey;>94.]
    2. Bail <&wkey;94 — Action on Bond — Dismissal —Failuee to File Beiees — Excuse.
    An affidavit that one of appellant’s attorneys lived 75 miles from the place of the trial and the others 15 miles, that the requirement that briefs be filed in the court below had never been insisted on in that county, and that the county attorney had stated that if he had been requested to waive that requirement he would have done so does not show an excuse for failure to comply with that requirement.
    ■ [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 418-423; Dec. Dig. c&wkey;>94.]
    Appeal from Montague County Court; Homer B. Latham, Judge.
    J. L. Rudy was charged with a crime. From a judgment against him and his sureties on his forfeited bail bond, they appeal.
    Appeal dismissed, and motion for rehearing' overruled.
    Lattimore, Bouldin & Lattimore, of Ft. Worth, for appellants. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal by appellant Rudy and his two sureties from a judgment against all of them on his forfeited bail bond.

The statute (article 497, C. C. P.) expressly provides that after the judgment nisi is rendered, the cause shall be docketed upon the civil docket in the name of the state as plaintiff, and the principal and sureties as defendants, “and the proceedings had therein shall be governed by the same rules governing other civil actions.” The record shows that no briefs were filed in the court below at all and none in this until just the day before the case was submitted. The Assistant Attorney General’s motion, therefore, to dismiss the appeal on this ground must be granted, as has all the time and many times been held by this court. See Heiman v. State, 70 Tex. Cr. R. 480, 158 S. W. 276; Thetford v. State, 74 Tex. Cr. R. 650, 169 S. W. 1153. Other cases are cited in both of these.

The appeal is dismissed.

On Motion for Rehearing.

PRENDERGAST, J.

This cause was tried in the court below, and judgment for the state against the appellants was rendered June 21, 1916. Their motion for new trial was overruled September 2d, at which time they gave notice of appeal. They filed an appeal bond September 20th. The official in-dorsement of the clerk below shows that the record was applied for by W. W. Cook, the attorney for appellant October 21st, and that it was prepared by the clerk and delivered to him October 24th. It was filed in this court November 2Sth. The clerk and his only deputy, who prepared the record, by their affidavits herein show that at no time did appellants file any brief in the lower court, and that they had not so certified nor given notice of the filing thereof to any attorney representing the state. Said deputy clerk further swore that he prepared and delivered the record to Mr. Cook, one of appellants’ attorneys, and then to Mr. Alcorn, another of their attorneys, who kept it in his possession for some time; that Mr. Alcorn then returned it to the .clerk’s office, but did not at the time order it sent to the Court of Criminal Appeals, but that some few days later, Mr. Alcorn being in the clerk’s office, the deputy clerk asked him what to do with it, and he told him to send it to the clerk of this court, which was done that day. Mr. Donald was county attorney of Montague county when this cause was tried, and repiesented the state in the trial. His term of office expired November 14th. Mr. Hall succeeded him. Mr. 'Donald’s affidavit herein shows that at no time had he waived the filing of briefs by appellants in the court below, nor that they might be filed out of the statutory time in this court, and that he had never been notified by the clerk, or any other person, that briefs had been filed in said trial court. Mr. Hall, his successor, whose term began November 14th, swore that at no time had he waived the filing of briefs in the lower court in said cause, nor had he agreed that they might be filed in the trial court or this court out of the statutory time, and that he had not been notified by the clerk, or any other person, that briefs in the case had been filed in the trial court. Mr. McDonald, while Assistant Attorney General in this court, filed a motion to dismiss the appeal because no briefs had been filed in the trial court nor in this court. No briefs were filed in the lower court at any time, and a brief was filed in this court just the day before the cause was submitted. Of course, none of the state’s attorneys had any opportunity to brief the case; doubtless none of them knew that appellants’ briefs had been filed in this court prior to the actual time of its submission.

One only of appellants’ attorneys has filed any affidavit in this matter. In that it is stated that appellants’ attorneys in the trial court were Chancellor and Alcom, who lived at Bowie, 15 miles from Montague, and the affiant, who lived at Ft. Worth, 75 miles from Montague, and that lie is informed and alleges that Mr. Cook, a friend of the principal of the appellants, was assisting in the trial of said cause without pay. The affidavit further says: That the statement of facts and bills of exceptions were filed in the lower court on September 22d, without notice to him or Chancellor and Alcorn. (No notice to them, or either of them, was necessary. It was their duty to see to it.) That the af-fiant did not know at the time that the record was sent to this court, and upon information from his co-counsel that they did not know it. (In this he clearly must be in error, because of the positive affidavit of the deputy clerk as shown above, not denied by either Mr. Alcorn or Mr. Cook.) He further says that he is informed by his co-counsel that there has not been a brief filed, or required to be, by any of the attorneys in Montague county in the trial court in appealed cases within the memory of either of said resident counsel in Montague county, and it is the common and usual custom and understanding among all the lawyers that the filing of briefs in the lower court will never be, and never has been, insisted upon. (It is unnecessary for the attorneys to require this — the law requires it. None of the state’s attorneys waived the filing, but insisted upon it.) That when he learned the record had been sent to this court, a few days before its submission, he at pnce procured the record, and with every possible despatch then prepared and forwarded to the clerk a brief herein. He further states that it was admitted in open court in the presence of this court by the present county attorney of Montague county that if he had been requested to waive the filing of briefs in the lower court, he would probably have done so. Doubtless if he had been approached to make such waiver, he would have then procured from appellants’ attorneys a stipulation that they, would file briefs, or at least furnish him or the state’s attorneys a copy thereof in ample time to have briefed this ease before it was submitted. The present Assistant Attorney General, in resisting the reinstatement of this appeal, over his official signature, states that he did not waive the filing of briefs in the lower court. The present Assistant Attorney General’s official connection with this court and this cause commenced some da'ys after this cause had been dismissed by this court. We make no criticism of any of appellants’ attorneys. The record and affidavits clearly show that one of appellants’ attorneys, Mr. Cook, who lived in Montague, the county seat of Montague county, on October 21st applied for and ordered the transcript, and that it was prepared and delivered to him October 24th and he had it in his possession for some time, and that Mr. Alcorn then had it in his possession for some time, before it was sent to this court, and that he (Mr. Alcorn) ordered the clerk below to send it to this court at the time he did send it. It seems to us that the fact that one of appellants’ attorneys lived at Ft. Worth, 75 miles from Montague, and two others of them lived at Bowie, 15 miles from Montague, of itself would have made them more diligent to have complied with the plain provisions of the law and filed their briefs in the lower court, and had the state’s attorney given notice thereof, then otherwise.

This court, as stated in the original opinion, has uniformly dismissed appeals when motions were made therefor because the appellants’ attorneys in scire facias cases have not, within the time required by law, filed their briefs in the lower court. We have treated, and will continue to treat, as long as the law is as it now is, all appellants alike. Besides, it is the law, and we should not, if we could, do otherwise. We cite only some of the cases: Conrad v. State, 9 Tex.App. 674; Young v. State, Id.; Duck v. State, Id.; Tiner v. State, Id.; Wilson v. State, Id.; Jay v. State, 34 Tex. Cr. R. 98, 29 S. W. 472; Lewis v. State, 38 S. W. 205; Sparks v. State, 47 S. W. 976; Mack v. State, 57 S. W. 811; Bringhurst v. State, 37 S. W. 757; Heiman v. State, 70 Tex. Cr. R. 480, 158 S. W. 276; Thetford v. State, 74 Tex. Cr. R. 650, 169 S. W. 1153. See, also, the following eases from the Courts of Civil Appeals, which are in point: Knight v. Simons, 168 S. W. 1018; Goodhue v. Leckie, 176 S. W. 647; Railway Co. v. Cave, 173 S. W. 988; Pagach v. Bank, 166 S. W. 50; Anderson v. Ineeda, 167 S. W. 33; Bowden v. Patterson, 108 S. W. 177, citing a large number of other cases; Buick v. O’Keefe, 174 S. W. 969.

As we see it, the appellants really had no excuse, and have shown none, why the law was not complied with by filing briefs in the lower court within the proper time. The most that can be said is that it appears they all either overlooked the law or ignored it. Under the law and the decisions we cannot do otherwise than adhere to the original dismissal of this cause. Hence the motion for rehearing is overruled.
      other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, C. J.

text:
    CAMP v. NATIONAL EQUITABLE SOC. OF BELTON.
    (No. 3860.)
    (Supreme Court of Texas.
    Feb. 7, 1917.)
    Courts <&wkey;247(7) — Jurisdiction — Supreme Court — Conflict Between Appellate Courts.
    In a case in which the jurisdiction of the Court of Civil Appeals is made final by Rev. St. art. 1591, a conflict of decision between different Courts of Civil Appeals does not confer jurisdiction on the Supreme Court to grant a writ of error.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 752; Dec. Dig. &wkey;>247(7); Appeal and Error, Cent. Dig. § 863.]

      Action by Mrs. S. E. Camp against National Equitable Society of Belton. Judgment for the plaintiff was reversed, and judgment rendered for defendant by the Court of Civil Appeals (184 S. W. 589), and plaintiff applies for writ of error.
    Writ of error denied, and motion for rehearing overruled.
    J. W. Hillman, of Texarkana, for applicant. L. H. Henry, of Texarkana, for defendant.
   PHILLIPS, C. J.

This was a suit instituted in the Justice Court, thereafter appealed to the County Court, to recover $110.00, the payment of which by the plaintiff, it was alleged, Mad beén induced by fraudulent representations on the part of an agent of the defendant. The judgment of the County Court was reversed and judgment for appellant rendered by the Court of Civil Appeals. Application for writ of error was made to this court upon the ground that the decision was in conflict with that of another Court of Civil Appeals. It was dismissed for want of jurisdiction.

The case is one in which the judgment of the Court of Civil Appeals is by statute made final. Article 1591, Revised Statutes; Cole v. State, 106 Tex. 472, 170 S. W. 1036. In cases of which the jurisdiction of the Court of Civil Appeals is final, a conflict of decision does not confer jurisdiction upon this court to grant a writ of error. Gallagher v. Rahm, 88 Tex. 514, 32 S. W. 523. The motion is accordingly overruled.
      ®=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes