text:
    LUMPKIN v. TEXARKANA GAS & ELECTRIC CO.
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 22, 1914.)
    Electricity (§ 19) — Action fob Damage — Sufficiency of Evidence — Negligence.
    In an action for damages for the death of a horse, claimed to have been caused by electricity passing from fight wires, evidence held not to show that the horse’s death was due to defendant’s negligence in constructing and maintaining a ground wire.
    [Ed. Note. — For other cases, see Electricity, Cent. Dig. § 11; Dec. Dig. § 19']
    Appeal from Bowie County Court; Lee Tidwell, Judge.
    Action by R. E. Lumpkin against the Tex-arkana Gas & Electric Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Mahaffey, Thomas & Hughes and R. D. Hart, all of Texarkana, for appellant. Glass, Estes, King & Burford, of Texarkana, for ap-pellee.

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

   WILLSON, C. J.

On the morning of April 19, 1911, appellant found his horse dead under a shed where he had tied him the day before by means of a chain secured to a post which helped to support the roof of the shed. Appellant thought the horse was killed by electricity passing to him from appellee’s line of electric light wires, as the result of negligence on its part in the construction and maintenance of said line of wires. On this theory he sought by his suit a recovery against appellee of $400 as the value of the horse. The trial court was of the opinion the testimony was not sufficient to support a finding in appellant’s favor, and instructed the jury to return a verdict in favor of ap-pellee. The correctness of tbe conclusion reached by the trial court is challenged by appellant.

It appeared from the testimony that the west side of the shed was on the east boundary line of the alley between Spruce and Oak streets in Texarkana. At a point in the alley about 6 inches from the nearest part of the shed and about 16 inches from the post to which the horse was tied, appellee had set a pole about 23 feet high, and on a cross-arm at the top thereof had strung electric light wires. Attached to the cross-arm where two metal boxes, called “lightning ar-resters,” intended, a witness said, to take care of heavy currents on the light wires, by passing same over a wire, called a “ground wire,” extending from the arresters down the pole to the top of a metal pipe about 20 inches high, set 3 inches from the pole, where it met another wire extending from the earth through the pipe. It was shown that these two wires where they met at the top of the pipe were not insulated, and were so twisted and soldered together as to leave about 5 inches of the end of one of them free and projecting towards the shed to a point only a few inches from it. The negligence charged against appellee was predicated on the manner in which the two wires were twisted and soldered together, leaving the end of one of them free and projecting as stated. It was shown that on the afternoon and night of the day before the horse was found dead the locality was visited by a severe electrical storm. Appellant’s theory, it seems, was that electricity discharged during the storm and caught by the light wires passed from them to the ground wire, which, because of the projecting end at the top of the metal pipe, passed same to the shed instead of to the earth as it was intended to do. As we understand the testimony, we think the most it can be said to have established with reference to the ground wire and the manner in which it was constructed was that it “was,” using the language of the court in Southwestern Telegraph & Telephone Co. v. Morris, 106 S. W. 428, “a possible consequence of conducting” electricity from the light wires to the horse. There was testimony tending strongly, to show that appellant’s theory as to the manner in which the electricity was conveyed to the horse was incorrect. His witness Lovett, an expert electrician, it seems, -testified, and his testimony was not contradicted by any other testimony in the case, as follows: “They,” the arresters, ‘ are put up to kill a certain amount of current or lightning or electricity. If there is an overcurrent it will pass on to these wires and into the ground. There is a fuse in the arrester. If there is an overcharge it will blow the fuse, and in that way we can tell whether there has been as overcharge of lightning or electricity coming down that wire. I examined those ar-resters right after the horse was killed. They did not indicate that there ever had been an overcharge coming down that wire. If electricity or lightning comes down on the end of a wire and then jumps from that to some place, we call that ‘bursting’ or jumping. When it does that it most always leaves a sign. That is the principle of an electric light; when it jumps from one point to another, that makes a light. If this wire came down that post part of the way and then stopped off, and lightning came down that wire, when it left the end of that wire it would burst and leave a sign. This little end of the wire sticking out there would have no effect at all, because that was a continuous wire into the ground.” If it was true, as we understand the witness to have testified it was, that the fuse in the arresters must have been blown before electricity from the light wires could have passed to the ground wire, and if the fuse was not blown, it is clear that the horse was not killed by electricity conveyed over the ground wire from the light wires. The testimony quoted, and other testimony showing the absence of any mark on the shed, except the burned place on the post where the chain was secured, indicating that electricity had been conveyed thereto by the ground wire, and testimony showing that the fact that the wires were not insulated at the point where they were twisted and soldered together, could not have had anything to do with passing electricity therefrom to the shed, we think points strongly to the conclusion that the death of the horse was not due to negligence on the part of appellee in the construction and maintenance of the ground wire. We think the trial court did not err in peremptorily instructing the jury to find for appellee, and therefore affirm the judgment.


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    OUTCAULT ADVERTISING CO. v. THORNTON et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 5, 1914.)
    1. Sales (§ 161) — Delivery to Carrier — Performance by Seller.
    Where plaintiff contracted to sell and deliver certain advertising matter to defendants f. o. b. ears at Chicago, defendants to pay freight charges, and plaintiff delivered the goods to the carrier in Chicago in ample time for transportation to defendants to fulfill the contract, it was no defense to plaintiff’s right to recover thereunder that defendants failed to obtain the goods from the carrier in time because of the latter’s refusal to deliver the goods without defendants’ surrender of the bill of lading.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 377-380; Dec. Dig. § 161.]
    2. Carriers (§ 83) — Transportation op Freight — Delivery—Production op Bill op Lading.
    Though railway companies should usually require production of the bill of lading before delivery of goods to a person demanding them, it is not entitled to surrender of the bill of lading under all circumstances as a condition precedent to delivery to the consignee.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 308-315; Dec. Dig. § 83.]
    Appeal from Franklin County Court; J. J1. Walker, Judge.
    Action by the Outcault Advertising Company against R. A. and E. Thornton, to which defendants impleaded the Illinois Central Railway Company and the St. Louis Southwestern Railway Company of Texas, against whom they set up a cross-action. A judgment was rendered in favor of defendants Thornton, and in favor of the railway companies on the cross-action, and plaintiff appeals.
    Reversed.
    S. D. Goswick, of Mt. Vernon, for appellant. G. O. James, of Sulphur Springs, for appellees.

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

   LEVY, J.

The suit originated in the justice court and was appealed to the county court. The appellant sued appellee Thorntons, a mercantile copartnership, for $130, less a credit of $22.50, alleged to be owing for certain advertising matter furnished under the terms of a written order therefor. The defendant Thorntons specially plead in avoidance a failure on the part of the plaintiff to deliver the advertising matter in accordance with the terms of the order. Also, the defendant Thorntons made the Illinois Central Railway Company and the St. Louis Southwestern Railway Company of Texas parties to a cross-action by which they sought to recover the value of the advertising matter upon the alleged ground of negligent delaying- and failure to deliver such shipment to appellees. The railway companies answered the cross-action by general denial. In a jury trial the verdict was in favor of the defendant Thorntons, and in favor of the railway companies on the cross-action. The appellee Thorntons did not appeal from the judgment in favor of the railway companies against them.

The ninth assignment by intendment complains of the action of the court in failing to instruct a verdict for the plaintiff under the facts proven. And we conclude that the contention should be sustained, for the admitted facts conclusively establish the right of appellant to a judgment. It appears that the appellee Thorntons are doing a mercantile business in Mt. Vernon, Tex., and that appellant is engaged at Chicago, Ill., in the business of printing matter and making cuts and plates to be used by merchants in newspapers in advertising their line of mercantile business. On February 4, 1910, the appellee Thorntons gave the following written order: “The Outcault Advertising Company, 334 Dearborn Str., Chicago, Ill. For one year beginning April 1, 1910,. ship us, at our expense, your Buster Brown ‘Ad Service,’ consisting of one Buster Brown cut for each week, 250 Buster Brown souvenir post cards for each month, one font Buster Brown type, 8 lbs. in font, with first shipment only, one set Merry Widow ads. We agree to pay you net cash monthly at the rate of $2.50 per week. We to have exclusive right to use the Buster Brown Ad Service in our city only, and to hold type and cuts subject to your order when this contract expires. Send us also during the terms of this contract, subject to above conditions, Buster Brown post cards for each month at $8.00 per 1000, fonts brown type, 8 lbs. in font, once.” The advertising company accepted the order and shipped all the articles named in the order in two separate shipments. t The first shipment by express contained the advertising matter and cuts ordered to cover April and May, 1910. The second shipment was on ■March 21, 1910, by freight and under a general, or open, bill of lading, and contained the balance of all articles ordered. The appellees admit that they received the first shipment, and paid for the same. In respect to the second shipment, the following is the entire evidence of appellee E. Thornton, the only witness for appellees testifying: “Some time about the first or middle of April, Ben Burron, a drayman, informed me that there were some boxes of freight in the depot for us, and I went to see about it and found that it was the balance of the advertising service sued for. The plaintiffs had not sent us any bill of lading, and Mr. Black, who worked in the depot, refused to let me have them without the bill of lading, and told me to write to plaintiffs and get the original bill of lading, which I did; but they never did send it to me. Some time afterwards the agent informed me that he had received the waybill and that he would let me have the goods; but it was then too late for me to use them, as it would leave a period of time between the advertising matter that I had and that was in the depot, and I considered that it would be without any value to me after it was disconnected, and I refused to accept it.” And the defense of appellees to the suit of appellant rests entirely, in this record, in this testimony offered by the appel-lees. The testimony, as seen, admits the fact that the last shipment “was the balance of the advertising matter sued for,” and same had reached the depot in Mt. Vernon, to ap-pellees’ knowledge, “about the first or middle of April.” Under the terms of the written order, the appellant was only required, in order to fully perform the agreement, to deliver to the railway company f. o. b. the cars at Chicago the goods named in the order. And as the evidence admittedly established the performance of all the terms of the agreement, the appellant was entitled to a judgment at the hands of the court. Appel-lees argue that, as there was failure on the part of appellees to promptly get the goods out of the depot without the production of a bill of lading, there is shown a complete defense to the agreement made with appellant. The appellant having performed all that was required of it under the terms of the agreement of sale and delivery, the delay of delivery by and the requirement of the railway company in respect to the delivery of the goods to appellees, the consignees thereof on an open bill of lading without restrictions, became and were questions arising between appellees and the railway companies on the cross-action for damages. The railway company was bound to deliver the goods to appellees upon tender by them of the freight charges. And appellees contracted to pay the freight charges.

Although a railway company should ■usually require the production of the bill of lading before it delivers goods to the person demanding them, yet it is not entitled under all circumstances to insist upon the surrender of the bill of lading as a condition precedent to the delivery of the property. Railway Co. v. McCown, 25 S. W. 435. And it appears that the railway company did offer to deliver the goods to appellees at a subsequent time, which is not given in the record, and appellees refused to accept them. However, it is unnecessary to pass upon the question of liability of the railway company, as appellees do not appeal from the judgment in its favor. It is made to appear quite conclusive, we conclude, that the failure of appellees to take the goods out of the depot is not attributable to the breach of any term of agreement on the part of appellant.

The judgment is reversed and here rendered for appellant against appellee Thorn-tons for the sum sued for and for all costs of the courts below and of this court. The judgment in favor of the railway companies against appellees will remain undisturbed.


author: DUNKLIN, J.

text:
    MAXEY v. FRANKLIN LIFE INS. CO. et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 10, 1914.
    Rehearing Denied Feb. 7, 1914.)
    1. Insurance (§ 665) — Action on Policy— .Substitution ox Beneficiary — Undue Influence-Sufficiency of Evidence.
    In a controversy between the wife of an insured and an illegitimate daughter as to the proceeds of an insurance policy, evidence lieU to sustain a finding that the wife induced the insured by undue-influence to substitute her, instead of the daughter, as beneficiary of the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1555, 1707-1728; Dec. Dig. § 665.]
    2. Insurance (§ 663) — Action on Policy-Admissibility of Evidence.
    Where, in a controversy between an illegitimate daughter and the wife of an insured as to the proceeds of a policy, the daughter charged that the wife induced the insured by undue influence to substitute her, instead of the daughter, as beneficiary, and also that the insured was of unsound mind, evidence that the insured was very fond of the daughter, and expressed an intention at the time of changing the policy to provide for her in some other method, was relevant to such issues.
    [Ed. Note. — For other cases, see Insurance, Dec. Dig. § 663.]
    3. Insurance (§ 116) — Insurable Interest.
    An illegitimate daughter has an insurable interest in the life of her father; the ties of blood being sufficient to overcome any reasonable supposable motive upon her part to bring about the death of her father.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 158-162; Dec. Dig. § 116.]
    4. Trial (§ 349) — Special Issues — Submission.
    It is within the discretion of the trial judge whether ■ to submit the case on special issues, or to submit it in a general charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 823-827; Dec. Dig. § 349.]
    5. Appeal and Error (§ 1057) — Review— PIarmless Error.
    Where, in a controversy between a wife and an illegitimate daughter as to the proceeds of a life policy, the issue was whether the wife by undue influence induced the insured to substitute her for the daughter as beneficiary, any error in refusing to admit evidence of immoral environments in the home of the daughter at the time of the change was not prejudicial, as it -was shown by other evidence that the insured was aware of the conditions, and hence was no cause for reversal under rule 62a (149 S. W. x).
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 4194-4199, 4205; Dec. Efig. § 1057.]
    Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.
    Action on insurance policy by Mrs. Annie W. Maxey against the Franklin, Life Insurance Company, in which Villita Maxey intervened, claiming the proceeds of the policy.. From a judgment for intervener, plaintiff ap-., peals.
    Affirmed.
    Stennis & Wilson, of Weatherford, and Cross & Cross, of Mineral Wells, for appellant. John W. Moyers, of Mineral Wells, J. T. Ranspot, of Palo. Pinto, and Hood & Shadle, of Weath-erford, for appellees.

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

   DUNKLIN, J.

On June 22, 1904, the Franklin Life Insurance Company issued to J. H. Maxey a policy of insurance in the sum of $2,000, payable upon his death to his illegitimate daughter, Villita Maxey. On August 4, 1910, upon the written request of the insured, his wife, Mrs. Annie W. Maxey, was substituted as beneficiary of the policy in the place and stead of Villita Maxey. On November 20, 1911, J. H. Maxey died, leaving the policy of insurance in full force and effect.

Mrs. Annie W. Maxey instituted this suit against the insurance company to collect the amount due on the policy. The company filed an answer, admitting liability for the amount named in the policy, and tendered the same into court for the benefit of whomsoever might be shown legally entitled thereto. The company further alleged that Villita Maxey was claiming to be the rightful beneficiary of the policy, and prayed that she be made a party to the suit,-to the end that her claim and that of plaintiff might be adjudicated.

In response to this prayer, Villita Maxey filed her petition in intervention, in which she challenged the validity of the transfer of the policy by the insured to plaintiff upon two grounds: First, that at the time of such transfer the insured was mentally incapacitated to make it; and, second, that the transfer was procured by plaintiff through undue influence exercised by her upon the insured. These two issues were the only controverted issues of fact upon the trial, which resulted in a verdict and judgment in favor of Villita Maxey.

Interpreted in the light ofl the court’s charge, the verdict of the jury shows a finding in Villita Maxey’s favor upon one or both the issues tendered by her, viz.: Lack of mental capacity of insured to make the transfer, or the execution of the same as the result of undue influence exercised upon him by plaintiff. Appellant insists that the evidence was insufficient to warrant the submission of either of those issues to the jury, and that, as those were the only controverted issues upon which Villita Maxey relied to recover the money in controversy, the judgment should be reversed.

While the testimony of a number of witnesses tended strongly to show that the insured was of sound mind when the change in the policy was effected, yet the testimony of others was sufficient to support a contrary finding. The fact that the attorney who prepared the papers necessary for the change of the policy testified that in his opinion J. H. Maxey was then of sound mind, and no other witness testified that his mind was unsound on that specific date, would not require a different conclusion from that noted above, since other witnesses testified, in effect, that J. H. Maxey was of unsound mind a short time before and after the change, that he was strongly addicted to habits of intoxication, and that his malady was of the progressive type. 40 Oye. 1028. The evidence further showed, without controversy, that insured was very fond of Villita Maxey, whom he claimed as his child, expressing an intention at the time the policy was changed to provide for his child by some other method, notwithstanding which, after substituting his wife as the beneficiary in the policy in place of his child, who was then only about 12 years old, later executed a will devising all his property to plaintiff, and which will seems never to have been revoked. This evidence was pertinent, not only to the issue of mental incapacity of the insured, but also to that of the alleged undue influence exercised by plaintiff upon her husband.

And those circumstances in connection' with testimony of one witness to an admission by plaintiff that she had influenced insured to change the policy in her favor by administering to him a drug, together with other facts and circumstances, a recital of which we deem unnecessary, were sufficient to support a finding that the change in the policy was the result of undue influence exercised by plaintiff upon J. H1. Maxey.

The trial court, in effect, instructed the jury peremptorily that, although Villita Maxey was an illegitimate child J. H. Maxey, she had an insurable interest in his life, and refused an instruction requested by appellant presenting the contention, which is also urged in this court, that if, at the time of the death of J. H. Maxey, Villita Maxey had no reasonable expectation of receiving benefits from the continued life of her father, then she had no insurable interest in his life. If Villita Maxey had no insurable interest in the life of her father, then, even though no change had been made in the policy, she would not be entitled to the proceeds; but the same would pass to the legal representatives of J. H. Maxey. Cheeves v. Anders, 87 Tex. 292, 28 S. W. 274, 47 Am. St. Rep. 107.

In the case of Price v. Knights of Honor, 68 Tex. 361, 4 S. W. 633, our Supreme Court said: “It is almost universally conceded that policies procured by persons having no interest in the life of the insured are void at common law as against public policy. The policy holder has nothing to lose for which he can claim indemnity; on the contrary, his interest is in the early death of the insured; when that occurs, he ceases to pay premiums, and receives the amount of the policy. This creates a temptation to destroy human life, and the common law forbids the contract. These are the grounds upon wMch such policies are held to be void.” The reason for the rule thus announced has been approved in Cheeves v. Anders, supra; Goldbaum v. Blum, 79 Tex. 638, 15 S. W. 564; and Wilton v. N. Y. Life Ins. Co., 34 Tex. Civ. App. 156, 78 S. W. 403.

Under the decisions of this state, which we believe to be in accord with the weight of the authorities, a legitimate child has an insurable interest in the life of his father. Wilton v. N. Y. Life Ins. Co., 34 Tex. Civ. App. 156, 78 S. W. 403; 25 Cyc. 704. And in Equitable Life Ins. Co. v. Hazelwood, 75 Tex. 338, 12 S. W. 621, 7 L. R. A. 217, 16 Am. St. Rep. 893, a judgment in favor of a beneficiary named in a policy upon the life of his brother was sustained. And it seems that such ties of relationship as that of brothers and of parent and child are sufficient to show such insurable interest without further proof of reasonable expectation on the part of the beneficiary of future benefits from the continued life of the insured. Warnock v. Davis, 104 U. S. 775, 26 L. Ed. 924. In the case of Stahl v. Grand Lodge, A. O. U. W., 44 Tex. Civ. App. 203, 98 S. W. 643, it was held, in effect, that an illegitimate daughter by virtue of kinship alone had an insurable interest in the life of her father, who had taken out an insurance policy in her favor, that he owed the moral duty to support his daughter, and that his act in taking out the policy was not contrary to public policy, but was one to be encouraged and commended. The reasoning advanced in that decision we believe to be sound, and we approve it The evidence in this ease shows, without controversy, that J. H. Maxey entertained feelings of very tender regard for Villita Maxey from her infancy up to the date of the change of the policy, that he had frequently extended financial assistance to the mother of the child which inured to the child’s benefit also; and the evidence tends to show that, if he had remained in a normal condition of mind, and had been unmolested by any interference from outside sources, those benefactions probably would have continued. But the natural ties of blood between J. H. Maxey and Villita Maxey, independent of the foregoing circumstances, were sufficient to overcome any reasonably supposable motive on the part of the daughter to bring about the death of her father, which, under the decisions of our courts above noted, is the true test of insurable interest.

There was no error in submitting the case to the jury on a general charge, and refusing to submit it on special issues as requested by the appellant Ross v. Moskowitz, 95 S. W. 86; Weis v. Dittman, 4 Tex. Civ. App. 35, 23 S. W. 229; Cole v. Crawford, 69 Tex. 124, 5 S. W. 646.

The requested instruction No. 3, the refusal of which is made the basis of the third assignment, was argumentative in form, and therefore objectionable as being upon the weight of the evidence; furthermore, the issue covered by that instruction was correctly submitted by the court in his general charge. Nor do we think that the charge given upon the two issues of fact submitted properly, subject to the criticism made, that it imposed upon appellant the burden of establishing the negative oí those issues, as in one paragraph of the charge the jury were expressly told that the burden was upon Villita Maxey to establish the affirmative of those issues by a preiwnderance of the evidence, and that a verdict should be returned against her in the event she had failed to discharge that burden.

By another assignment complaint is made of the refusal of the court to admit testimony offered by appellant tending to show certain immoral environments in the home occupied by Villita Maxey at the time of the change in the policy. This evidence was offered for the purpose of showing that such conditions might have influenced J. H. Maxey to make such change in the policy. It was shown by other evidence that J. H. Maxey was aware of those conditions at that time, and, furthermore, that his child was then only 12 years of age. At all events, it is not probable that this evidence, if admitted, would have caused the rendition of a verdict different from that which was rendered, and hence the error, if any, in excluding it is no cause for a reversal of the judgment, under rule 62a (149 S. W. x).

The judgment is affirmed.


author: McMEANS, J.

text:
    MILLER & VIDOR LUMBER CO. v. WILLIAMSON et al.
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 11, 1914.
    Rehearing Denied March 5, 1914.)
    1. Abatement and Revival (§ 9) — Penden-cy oe Other Action — Identity oe Parties.
    As regards the rule that pendency of a prior action in a court of co-ordinate jurisdiction is ground for abatement of a second action, the parties and causes of action being the same, it is immaterial that the parties plaintiff and defendant are reversed in the two actions.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 73-85; Dec. Dig. § 9.]
    2. Abatement and Revival (§ 8) — Penden-cy oe Other Action — Same Cause oe Action.
    As regards right of A. to have abated an action by B. against him for land, because of pendency of a prior action by A. against B. for practically the same land, it is immaterial that B. in the second action claims a small amount of land not embraced in the first action; ■ A. in the second action disclaiming all land described therein not embraced in the first action.
    [Ed. Note. — For other eases, see Abatement and Revival, Cent. Dig. §§ 39-56, 58-63, 68-72; Dec. Dig. § 8.]
    Appeal from District Court, Orange County; A. E. Davis, Judge.
    Suit by the Miller & Vidor Lumber Company against P. P. Williamson and others. From a judgment of abatement and dismissal, plaintiff appeals.
    Affirmed.
    Carlton, Townes & Townes and R. E. I-Iard-wicke, all of Beaumont, for appellant. Smith & Blackshear, of Jasper, and John B. Warren, of Houston, for appellees.

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

   McMEANS, J.

On March 15, 1913, P. P. Williamson, E. I. Williamson, and R. C. Conn brought a suit in the district court of Jasper county against the Miller & Vidor Lumber Company to recover the title to and possession of 160 acres of land, part of the T. & N. O. section No. 82, lying partly in Jasper county and partly in Orange county. The land was described in the plaintiffs’ petition by the following field notes: “Beginning at the southeast corner of said section 82; thence north with the east line of said section 82, 950 varas, to stake for corner a sweet gum brs. south 42 deg. west 3 varas and a pine brs. north 55 deg. east 8 varas; thence west, 1,183 varas, stake for corner from which a pine brs. N. 36 deg. W. 7 varas, and a pine brs. south 51 deg. east 3% varas; thence south 530 varas, stake for corner in the Jasper and Orange county line; thence east With said line 522 varas to the N. E. corner of Wm. Williamson survey; thence south 420 varas, stake for corner; thence east with the south line of said section 665 varas to the place of beginning, containing 160 acres of land.” Citation was issued and served on the defendant at 3 p. m. March 19, 1913. On March 19, 1913, the Miller & Vidor Lumber Company brought suit in the district court of Orange county against P. P. Williamson, E. I. Williamson, and R. C. Conn, plaintiffs in the Jasper county suit, to recover the title to and possession of 160 acres of land, part of the T. & N. O. section No. 82, lying partly in Jasper county and partly in Orange county. The land was described in plaintiff’s petition by the following field notes: “Beginning at the southeast corner of T. & N. O. section No. 82, on the west boundary line of the Ed. Hurst No. 10 survey, from which a pine stump bears north 62 west 27 varas distant; thence' west 685 varas to the northeast corner of the Wm. Williamson, survey and southeast corner of Wm. Williams, stake for corner from which a pine 18 inches in diameter bears north % varas, pin oak 14 inches in diameter bears south 59 west 10% varas distant, and a sweet gum 8 inches in diameter bears south 45 east 7% varas distant; thence north on the east boundary line of Wm. Williams at 425 varas the Orange and Jasper county line, at 846 varas stake for corner, northeast corner of Wm. Williams; thence west 916 varas to stake for corner in north boundary line of Wm. Williams; thence north 144 varas stake for corner; thence east 1,483 varas stake for corner in east boundary line of T. & N. O. section No. 83$- thence south 565 varas to county line, Orange and Jasper counties; thence continuing at 990 varas place of beginning.”

The district court of Orange county convened in advance of the district court of Jasper county, and when the Orange county suit was reached the defendants filed and presented a plea In abatement, setting up tbe pendency of the suit between the same parties in Jasper county, and this plea was sustained and the Orange county suit dismissed, and from the judgment of dismissal the plaintiff Miller & Vidor Lumber Company has appealed.

It is proper to here state that at the time of filing the plea in abatement the defendants in the Orange county suit, not waiving their plea, filed a disclaimer as to all the land embraced in and described by the field notes in the Orange county suit that was not included in the field notes describing the land sued for by them in the Jasper county suit. A comparison of the field notes will disclose that, while the tract sued for in both suits is substantially the same, the description given in the Jasper county suit covered a small acreage not described in the field notes set out in the petition in the Orange county suit, and the description given in the Orange county suit covered a small amount of land not described in the field notes set out in the petition in the Jasper county suit. Just what number of acres that was included in the one and not included in the other the record does not disclose. No statement of facts accompanies the record, but the case is brought up on the court’s findings of fact filed at the reguest of the appellant; and from these findings we take the following: “Sixth. I find that the plaintiff in the suit in the district court of Orange county is the defendant in the suit in the district court of Jasper county; that the defendants in the suit in the district court of Orange county are the plaintiffs in the suit in the district court of Jasper county. Seventh. I find as shown by the respective petitions, which are hereinafter copied, that the greater part of the land embraced in the two suits is the same; however, a portion of the land involved in the Jasper county suit is not involved in the suit in Orange county, and a portion of the land involved in the suit in Orange county is not involved in the suit in Jasper county.” ■

The court’s conclusion of law is as follows: “I conclude as a matter of law that while the position of the parties in the two suits mentioned in the foregoing findings of fact are reversed, and while there are some minor discrepancies between the two tracts of land described in the respective petitions, nevertheless, in legal contemplation, the two suits are between the samé parties and upon the same cause of action. I therefore conclude that the present suit brought in the district court of Orange county should be abated and dismissed as prayed for,” etc.

By its first assignment of error appellant complains that the court erred in overruling its motion for new trial on the third ground thereof, which is that: “The court erred in sustaining defendants’ motion to dismiss and in dismissing this cause, because it appeared that the defendants in this suit are the plaintiffs in the suit pending in Jasper county, and that the plaintiff has brought but one suit against said defendants for the property involved herein.” Under this assignment appellant contends that the pendency of two suits between the same parties and relating to the same subject-matter is not sufficient grounds for abatement of one unless the plaintiff is the same in each suit, and in position to control both suits, and to discontinue or prosecute both suits as he sees fit, and cites several cases in support of this contention, the first of which is Langham v. Thomason, 5 Tex. 127. This case is not in point. It is true that the court makes the broad statement that the plea in abatement cannot be maintained unless the plaintiff be the same in both suits, and under the facts of that case this statement is correct. The facts were that the former action pleaded in abatement was an action brought in the name of the wife alone, without the right or authority thus to sue, and one which she had no right to maintain. Afterwards the husband, joined by his wife, brought a suit oh the same cause of action, and to this action the pendency of the first suit was pleaded in bar. The court correctly held that the first suit did not dispense with the necessity of the second, and was not therefore such an action as could be effectually pleaded in abatement of a subsequent suit by a party entitled to maintain the action. It is clear, we think, that had the court found that the first suit dispensed with the necessity of bringing the second, a different conclusion would have been reached.

Another case cited is Simmang v. Braunagel, 27 S. W. 1032. We do not think this case sustains appellant’s contention, as the subject-matter of the suits was not the same although the parties were the same. The syllabus reflects the opinion, and is as follows: “In an action on a note, by an indorsee thereof, it is no defense that, before the institution of the suit, defendant commenced an action against plaintiff and the payee to cancel the note, on account of failure of the consideration thereof, and that said action is still pending.” In Ellis v. Tips, 16 Tex. Civ. App. 82, 40 S. W. 524, exceptions to a plea in abatement because of the pendency of another suit, in which the parties plaintiff and defendant were reversed, were sustained; but the ground of the court’s action does not clearly appear from the opinion. Olschewske v. King, 43 Tex. Civ. App. 474, 96 S. W. 665, was an action brought by plaintiff to rescind a contract of sale of land, and the pending suit pleaded in abatement was a suit of trespass to try title to the same land. The court very correctly held, we think, that the pend-ency of the former suit did not estop plaintiff from prosecuting his suit for rescission. Manifestly the causes of action were not the same. In Mutual Life Insurance Company v. Hargus, 99 S. W. 580, a general agent of an insurance company brought suit on a note given by tbe insured for the first annual premium for a policy of insurance, and afterwards the insured brought an action for cancellation of the policy and the note based on the fraudulent representations of the agent soliciting the insurance; and it was held that the pendency of the suit filed first was not a bar to the second. The court states no reasons for its holding, but we think it clear that it was because the parties and the causes of action were not identical. To the same general effect are Garza v. Piano Company, 126 S. W. 906, and Milling Company v. Gin. Co., 132 S. W. 856, which are the only other Texas cases cited by the appellant, and which, in our opinion, do not sustain its contention. But, on the other hand, it has been held that there is a rule of law, growing out of a manifest propriety, if not necessity, that the court which first acquires jurisdiction over a controversy should maintain it undisturbed by the interference of any other court of co-ordinate jurisdiction. Stone v. Byars, 32 Tex. Civ. App. 154, 73 S. W. 1086; Tex. Trunk Ry. v. Lewis, 81 Tex. 1, 16 S. W. 647, 26 Am. St. Rep. 776; Nat. Bank v. Goolsby, 12 Tex. Civ. App. 362, 35 S. W. 713; Burdett v. State, 9 Tex. 43.

If this is a correct principle, we cannot recognize any exception to it growing out of the fact that the plaintiffs in one suit are defendants in the other, provided of course that the parties and the subject-matter of both suits are the same; and in this case the court has found that the parties are the same and in legal contemplation the suits are upon the same cause of action,, although there are some minor discrepancies in the description of the land as given in the respective petitions of the parties. It will be noted, however, that the defendants in the Orange county suit disclaimed title to any portion of the land claimed by plaintiff in that suit which is not described and sued for by them in the suit in Jasper county; so that all of the remainder of the land sued for by Miller & Vidor Lumber Company in Orange county, after allowing the disclaimer, was the direct subject of litigation in the suit in Jasper county. To hold that because the plaintiffs in both suits were not the same the plea in abatement cannot be sustained might result in this anomaly: Suppose both suits should be tried in the respective courts in which they are brought, and the jury upon conflicting evidence should return a verdict for the plaintiff in each court, and a judgment rendered in accordance therewith should be entered; that thereafter the defendant in each suit should appeal, and the appellate court should hold on each appeal that as the verdict was rendered on conflicting evidence, and as the law was properly applied by the court in its charge, it was not authorized to disturb the judgment. Here we would have a judgment of two courts of co-ordinate jurisdiction, both affirmed, one of which would be for the plaintiff in each suit; or, in other words, both parties to the suit would have recovered a judgment for the same land. Which party then would have the better title? Their difficulties would be no nearer a solution than before the suits were begun.

If the cases from the Courts of Civil Appeals cited by appellant and above referred to are not distinguishable from this case because of the differences pointed out above, then we hold that they are not supported by any decision of our Supreme Court, and we decline to follow them. The assignment is overruled.

We have examined the remaining assignments of error presented by appellant in its brief and are of the opinion that none of them points out reversible error.

The judgment of the court below is affirmed.


author: WILLSON, C. J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. PATTERSON et al.
    (Court of Civil Appeals of Texas. Texarkana.
    March 6, 1914.
    Rehearing Denied March 12, 1914.)
    1. Evidence (§ 373) — Documentary Evidence-Authentication — Inventory.
    In an action for the loss of a stock of goods set on fire and burned by a passing train, an inventory, made by plaintiff and his wife, plaintiff calling off the articles, and his wife entering them on the book, was properly admitted in evidence, where its correctness was testified to by plaintiff; it not being necessary for the wife to testify also.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1581-1586, 1590, 1592, 1593, 1610, 1611; Dec. Dig. § 373.]
    2. Appeal and Error (§ 1051) — Review-Harmless Error.
    Where, in an action for the loss of a stock of goods set on fire by a passing train, an original inventory in evidence contained mistakes in stating the aggregate amounts, any error in admitting a copy correcting such errors was not prejudicial; the correctness of the copy not being questioned.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec Dig. § 1051.]
    3. Witnesses (§ 257) — Memoranda—Admission in Evidence.
    In such action, where plaintiff used copies of invoices received from wholesale dealers after the fire to refresh his memory in testifying as to the different items of the stock of goods, the invoices were properly admitted in evidence to assist the jury.
    [Ed. Note. — For- other cases, see Witnesses, Cent. Dig. § 892; Dec. Dig. § 257.]
    ,4. Evidence (§ 354) — Documentary Evidence — Book op Accounts.
    In an action against a railroad for the value of goods lost in the burning of a store, a ledger, whose correctness as showing the amount of cash sales and credit sales from the first of the year to the date of the fire was testified to by plaintiff, was properly admitted.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1432-1483; Dec. Dig. § 354.]

      5. Evidence (§ 355) — Documentary Evidence.
    In an action against a railroad for a stock of goods lost in the burning of a store, a tabulated statement or summary, prepared by plaintiff, . showing the value of the goods, etc., was properly admitted; it being based upon testimony before the jury.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1444, 1484-1491; Dec. Dig. § 355.]
    6. Evidence (§ 560) — Expert Evidence — Evidence in Rebuttal.
    Where, in an action for a stock of goods set on fire and burned by a passing train, experts had testified that cinders escaping from locomotive equipped as defendants’ was would not go beyond the right of way, plaintiff was properly allowed to show in rebuttal that cinders had, on several different occasions, started fires beyond the right of way.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2380; Dec. Dig. § 560.]
    Appeal from District Court, Camp County; R. W. Simpson, Judge.
    Action by W. R. Patterson against the Missouri, Kansas & Texas Railway Company of Texas, in which the Occidental Fire Insurance Company intervened. From a judgment for plaintiff and intervener, defendant appeals.
    Affirmed.
    Appellee Patterson, who hereinafter will be designated as “plaintiff,” sued appellant, alleging that he had been damaged in the sum of $6,000 as the result of negligence on the part of appellant in permitting fire to escape from one of its locomotive engines, whereby his stock of general merchandise was destroyed. He further alleged that his said stock of merchandise at the time it was destroyed was insured against fire in the sum of $2,000 by a policy issued to him by the other appellee, the Occidental Fire Insurance Company, hereinafter designated as “inter-vener,” and that it was stipulated in said policy that, in the event the goods should be destroyed by fire, as they were, by the negligence of any person or corporation, inter-vener, on the payment of the loss covered by the policy, should be subrogated, to the extent of such payment, to his right of recovery against such person or corporation. He further alleged that intervener had paid him $2,000 on account of the destruction of said goods, as it had agreed by its said policy to do, and that he had transferred to it his right of recovery against appellant for its negligent act resulting in the destruction of his said stock of merchandise, to the extent of $2,000. He prayed that intervener be notified of his suit, and that, if it intervened, it have judgment against appellant for said sum of $2,000, and that he have judgment against it for $4,000. The verdict was in favor of intervener, it having made itself a party, for the sum of $2,000, and in favor of the plaintiff for the sum of $2,126.98. Judgment having been rendered in accordance with the verdict, appellant prosecuted this appeal.
    The testimony was sufficient to support the findings involved in the verdict, and we find that, as the proximate result of negligence on the part of appellant as charged in the petition, goods belonging to plaintiff of the value of $4,126.98 were destroyed by fire on June 12, 1912.
    Dinsmore, McMahan & Dinsmore, of Greenville, and Alex S. Ooke, of Dallas, for appellant. W. R. Heath and Bass & Engle-dow, all of Pittsburg, and Locke & Locke, of Dallas, for appellees.

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

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

   WILLSON, C. J.

(after stating the facts as above).

On January 1, 1912, plaintiff, assisted by his wife, made an inventory of his stock of merchandise. In making the inventory, plaintiff counted and measured the articles, stating the name, quantity, and cost thereof to his wife, who, standing by his side, wrote down same in a book. After plaintiff had testified that, in making the inventory, he called the names, quantity, and cost price of the articles correctly, and saw that his wife entered same correctly on the book, the inventory was offered as evidence. Appellant objected to same, on the ground that it appeared the entries were made by plaintiff’s wife, who had not testified to the correctness thereof. The objection was overruled, and the inventory was admitted as evidence. As supporting its contention that the court erred in admitting the inventory, appellant cites Ins. Co. v. Bank, 30 S. W. 384, and Baldridge v. Penland, 68 Tex. 441, 4 S. W. 565. In the case first mentioned it appeared that the books offered as evidence were, during a part of the time they covered, kept by a partner who did not testify, and during the remainder of the time by a partner who did testify, and that no one had testified to the correctness thereof. It is obvious, we think, that the case does not support the appellant’s contention. The inventory in question was not made at different times by different persons, and its correctness was shown by the testimony of the plaintiff, who, jointly with his wife, made it. The other case cited is not more in point. The assignment is overruled.

It appeared that in some instances, where the entry in the inventory was of several articles of the same valúe, mistakes were made in stating the aggregate value of the articles, as, for instance, in this entry: “36 men’s shirts, cost 82%^, $28.70”; ' the mistake being in stating the aggregate value of the 36 shirts to be $28.70, instead of $29.70. A copy of the inventory, in which the errors referred to were noted and corrected in this way, to wit: “36 men’s shirts, cost 82%<j — correct extension $29.70, original ex-tention $28.70,” was admitted as evidence, over the appellant’s objection thereto on the ground that it “was not an original, but was secondary evidence, and because no sufficient predicate bad been laid for its introduction, and because said instrument bad not been sufficiently proven.” It was not questioned that .the copy was a correct one of the inventory made as stated above; on the contrary, it appears from the statement of facts agreed to by the parties that it was a correct copy of that inventory, with the addition only of entries showing the true aggregates where, in instances like the one noted above, erroneous aggregates had been stated in the inventory. We think it sufficiently appears from the statement made that no injury could have resulted to defendant from the action of the court in admitting the copy as evidence. It served the useful purpose of enabling the court and jury to readily determine what ones among the aggregates stated in the inventory were incorrect

The invoices of the goods purchased by plaintiff having been destroyed by the fire that destroyed the goods, plaintiff thereafter-wards procured duplicates of said invoices from the dealers who sold him the goods. With reference to these invoices, plaintiff testified that he procured them within a short time after the fire occurred; that they covered goods purchased by and delivered to him during the time intervening between January 1, 1912, and the date of the fire; that, as said goods were delivered to him, they were added to and became a part of the stock of merchandise destroyed by the fire; and that the prices at which the goods were sold to him were correctly stated in the invoices. When the duplicate invoices were offered as evidence, appellant objected to the admission of same, on the ground that “no sufficient predicate had been laid for their introduction, and because it is shown that the instruments were not originals, and that plaintiff had procured said instruments from some source since the fire, and because the said instruments were not sufficiently proven.” The copies were used by the plaintiff to refresh his memory in testifying as stated above, and, as memoranda so used, were admissible. Ry. Co. v. Sol Fried Co., 81 Miss. 314, 33 South. 74; Gross v. Scheel, 67 Neb. 223, 93 N. W. 418; Bourda v. Jones, 110 Wis. 52, 85 N. W. 671; Goodwin v. Ins. Co., 163 Mich. 41, 127 N. W. 790; Atherton v. Emerson, 199 Mass. 199, 85 N. E. 530; Furlong v. Ins. Co., 136 Iowa, 468, 113 N. W. 1084; Ry. Co. v. Startz, 42 Tex. Civ. App. 85, 94 S. W. 207; 1 Greenl. Ev. § 439c.

From January 1, 1912, to the date of the fire, plaintiff kept a “daybook,” in which he noted sales made on a credit as they occurred. I-Ie also had a “ledger,” which contained his cash account and accounts against those of his customers to whom he sold on credit after said January 1, 1912, to the date of the fire. At the close of business each day, he had noted on the cash account the aggregate of sums received by him during that day from sales then made, and of sums collected that day on sales on credit previously made. These entries, he testified, were correct. The daybook was destroyed by fire. The ledger was offered, and, over appellant’s objection, admitted as evidence to show the cash sales from January 1, 1912, to the date of the fire, and the sales on credit during the same time. We think the court did not err in admitting the ledger as testimony. Ins. Co. v. Weide, 76 U. S. (9 Wall.) 677, 19 L. Ed. 810.

Over appellant’s objection, the court admitted as evidence a summary, or tabulated statement, prepared by plaintiff, based on testimony before the jury, showing the value of his stock of goods on January 1, 1912, the value of goods thereafterwards purchased by him and added to the stock before the fire occurred, the amount of cash received from sales made during that time, the amount of sales on credit during the time, etc. We think the statement was within a rule well established as permissible in such cases, and that the court did not err in admitting it. 2 Wigmore on Ev. § 1230; 1 Greenleaf on Ev. § 563h. Based as it was on testimony before them, the jury were in a position easily to verify the correctness of the statement, and presumably did so. It served the purpose of relieving the jury of the labor of themselves making such a statement as a basis for the verdict they were to render, and could not have operated to the prejudice of defendant.

After witnesses for defendant, as experts, had testified that the average width of defendant’s right of way was 50 feet on each side of its track, and that cinders escaping from locomotives equipped as those used by defendant were would fall to the ground before passing beyond the right of way, and were incapable, if they passed beyond it, of then starting a fire, plaintiff and the intervener, over appellant’s objection, proved by the witnesses Armsworthy, Bridges, and Newsome that, on occasions within their knowledge, locomotive engines used by appellant had carried live cinders beyond its right of way, which had started fires at points farther than the point where the fire started on this occasion was from said right of way. The testimony objected to plainly was in rebuttal of that offered by appellant, and the court did not err in admitting it.

As already stated, we think the testimony was sufficient to support the finding of the jury that appellant was liable as charged, and also sufficient to support their finding that plaintiff was damaged in the sum stated in the verdict. Therefore the eleventh and twelfth assignments are overruled.

The assignments not disposed of by what has been said are overruled.

There is no error in the judgment demanding its reversal. Therefore it is affirmed.


author: SPEER, J.

text:
    MAJOR et al. v. HEFLEY-COLEMAN CO. et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 17, 1914.
    Rehearing Denied Feb. 28, 1914.)
    1. Sales (§ 176) — Remedies of Buyee — Acceptance — Actions fob Damages.
    A buyer of cotton seed hulls for fattening cattle for market, who accepted those furnished with knowledge that they were damaged, inferior in quality, and unsuitable for his purpose, could not recover for damage to his cattle from feeding such hulls.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 436-444; Dee. Dig. § 176.]
    2. Sales (§ 405) — Remedies of Buyee — Action foe Damages.
    In such case the buyer might have refused to accept, and sue for such damages as he suffered by breach of the contract.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1147-1155; Dec. Dig. § 405.]
    3. Teial (§ 252) — Insteuctions—Undisput-ed Evidence.
    In an action for damages for breach of a seller’s contract to furnish cotton seed hulls for fattening cattle for market, where there was evidence that the cattle would have put on more flesh and brought a better price if the seller had supplied the contract quality of hulls, and where damage from feeding the inferior hulls was shown, for which the seller was not liable, it could not be said that it was undisputed that the failure to furnish the contract ■quality was the proximate cause of injury to the cattle, and hence a submission of that issue was proper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    4. Teial (§ 252) — Insteuctions—Application to Evidence.
    In such action, where, on the evidence shown by the record, no other verdict than one for the seller could have been returned, no error was or could have been committed in giving •or refusing charges upon his failure to furnish the contract quality and as to whether such failure was the proximate cause of damage to the cattle.
    [Ed. Note. — For other cases, see Tidal, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    5. Sales (§ 418) — Breach of Sale 'Contract-Nominal Damages.
    In an action for damages for the seller’s breach of contract to furnish cotton seed hulls for feeding cattle, the buyer had the burden of showing the seller’s liability and the amount of his damages, and, on a showing of a gross damage arising from causes, for one of which the seller was not liable, the buyer was entitled to only nominal damages.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174-1201; Dec. Dig. § 418.]
    6. Appeal and Eeroe (§ 1171) — Reversal-Recovery of Nominal Damages.
    Where plaintiff was entitled, at most, to nominal damages, and recovered costs in the •court below, a judgment for defendant would not be remanded to enable plaintiff to recover nominal damages.
    [Ed. Note.' — For other cases, see Appeal and Error, Cent. Dig. §§ 4546-4554; Dec. Dig. § 1171.]
    Appeal from District Court,'Tarrant County; R. H. Buck, Judge.
    Action by L. D. Major and others against the Hefley-Coleman Company and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    J. A. Templeton, of Ft. Worth, for appellants. Capps, Cantey, Hanger & Short and D. B. Trammell, all of Ft. Worth, for appel-lees.

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

   SPEER, J.

This action was brought in the district court of Tarrant county by L. D. Major, A. E. Spring, Earl Spring, 6. J. Keith, and J. L. Keith, as plaintiffs, against the Hefley-Coleman Company and against W. J. Hefley and W. L. Coleman, as defendants, to recover damages growing out of a breach by the defendants of their contract to furnish plaintiffs, f. o. b. cars at Ryan, Old., certain cotton seed hulls for plaintiffs’ use in feeding cattle, which they had on feed and were fattening for the market during the season of 1911-1912. The plaintiffs also sued to recover some minor items of damage growing out of a shortage in weights, excess freight charges, etc., which items were admitted by the defendants on the trial. There was a verdict and judgment for the defendants, but, by reason of the admission referred to, a judgment for costs was rendered in plaintiffs’ favor. The plaintiffs have appealed.

Appellants complain that the court erred in submitting to the jury that paragraph of his charge wherein he submitted to them, as an issue of fact, whether the defendant Hefley-Coleman Company did or did not fail to furnish plaintiffs prime loose hulls of the grade and quality,- and at the rate per week specified in the contract sued upon, and as to whether, if there was such failure, same was the proximate cause of any injury or damage to plaintiffs’ cattle, because, it is insisted, the evidence was undisputed to the effect: First, that said defendant did not furnish such hulls as it had contracted to do; second, that plaintiffs’ cattle were injured and damaged by the defendant’s failure to so furnish such hulls; and, third, that such failure was the proximate cause of the injuries and damage to said cattle. Appellants invoke the principle announced in Tex. & Pac. Ry. Co. v. McCoy, 90 Tex. 264, 38 S. W. 36, to the effect that it is error to submit an issue to the jury in such a way as that the jury will be authorized to find against the undisputed facts as to such issue. Appellants also attack the verdict and judgment as being unsupported by the evidence and contrary to the undisputed facts of the case.

On November 13, 1911, appellee entered into a contract with appellant Major, whereby it undertook to supply him with 500 tons prime loose cotton seed hulls at $7.50 per ton, f. o. b. cars, Ryan, Okl. On January 15, 1912, it made another contract with appellant G. J. Keith, whereby it undertook to furnish 300 tons prime loose cotton seed hulls at the price of $7.50 per ton, f. o. b. ears, Ryan, Okl., shipment to be forwarded at the rate of three or four ears per week, commencing after completion of the present contract with said L. D. Major. All of the appellants were, in fact, interested in each of these contracts. It is for a failure, to comply with the last contract that this action is brought. Appellee furnished the hulls required by the Major contract, and there is no complaint as to that.

But, as to the second or Keith contract, it is pleaded and proved that appellee did not furnish the hulls as it agreed to do, but such hulls as were supplied on the contract were a damaged lot, and were inferior to the quality of hulls agreed to be furnished, and were not suitable for the purposes for which they were intended. The evidence shows that both parties to the contract knew, at the time the hulls were tendered and received by appellants, that they were not of the quality contemplated by the contract, and appellants protested against receiving them. Appellee, however, declined to reduce the price on such hulls to appellants, and refused to ship them unless appellants would accept them on the contract. Appellants did receive such inferior hulls with a full knowledge of the fact that they were not of the quality contracted for. The pleading and evidence show that appellants’ cattle sustained damage by reason of their having been fed these inferior and lów-grade hulls. As to the damages thus produced, the law seems to be well settled that appellants cannot recover. In Parks v. O’Connor, 70 Tex. 377, 8 S. W. 104, Chief Justice Gaines'- for the Supreme Court said: “When a purchaser under an executory contract for the sale and delivery of personal property inspects the same before delivery, he is estopped to set up that it is not such as the seller has agreed to deliver, so far as all visible defects are concerned. His mere protest, in the face of his acceptance, amounts to nothing. If the property is not such as his contract calls for, he can refuse to receive it, and sue for such damages as he has suffered by the breach of the agreement. lie must take the property under the contract or not at all.” See, also, Easton v. Dozier, 148 S. W. 603.

Appellee pleaded in great detail that appellants accepted the inferior hulls with a full knowledge of the facts, and the issue was thus clearly raised. While there was evidence to the effect that appellants’ cattle would have put on more flesh and brought a better price in the market if appellee had supplied the quantity and quality of hulls agreed to be furnished, still, the evidence showing, as it did, that some damage was done by feeding the damaged hulls, for which damage under the authorities cited appellee is not liable, it cannot therefore be said, as contended in the assignment under consideration, that it was undisputed that appellee’s failure to furnish the quantity and quality of hulls contracted for was the proximate cause of the injuries to appellants’ cattle.

Furthermore, in the state of the evidence disclosed by the record, no other verdict than one for the defendant could have been returned, and therefore no error was, or could have been, committed in giving or refusing the charges. As already indicated, the evidence showed without dispute that much of the damage to appellants’ cattle was caused by the feeding of the damaged hulls which they accepted from appellee on the Keith contract. There is nothing in the evidence to indicate what amount of damages appellants sustained beyond those produced by feeding such damaged hulls. In this state of the evidence, therefore, the jury had no basis upon which to return a verdict for any amount. The duty devolved upon appellants not only to show a liability against, appellee, but to show the amount of their damage as well. It is not sufficient to show a gross loss or damage arising from two causes, for only one of which the defendant, is liable, as was, in effect, done in this case. See Murray v. Pannaci, 130 Fed. 529, 65 C. C. A. 153. In such a case, at most, the plaintiff would be entitled to nominal damages, and, since appellants recovered their costs in the court below, the cause would not be remanded to enable them to recover nominal damages. 1 Sedgwick on Damages, §§ 108, 109; 1 Sutherland on Damages (3d Ed.) § 11.

These conclusions necessarily lead to an affirmance of the judgment.

Affirmed.


text:
    GULF, C. & S. F. RY. CO. v. MARSHALL.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 10, 1914.
    Rehearing Denied Feb. 14, 1914.)
    1. Cakriers (§ 223) — Carriage oe Live Stock — Action—Defenses.
    Where a railroad company negligently delayed a shipment of cattle for more than 12 hours after they were delivered into its pens, which were situated near the tracks of the company, it cannot escape liability for injuries-to the cattle by fright from passing trains, by showing that such trains were properly operated; the negligence complained of being the act of the railroad company in allowing the cattle to remain in the pens for an unreasonable length of time.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 932; Dec. Dig. § 223.]
    2. Carriers. (§ 230) — Carriage of Live Stock — Actions—Jury Question.
    In an action for damages for injuries to-cattle from an unreasonable delay in shipment and lack of water, the question of the carrier’s negligence in failing to water the cattle cannot be taken from the jury merely because the shipper informed the carrier that he did not wish the cattle watered while in the pens; it appearing that the shipper expected the cattle to be immediately placed on board train, and did not know that the shipment would be negligently delayed for more than 12 hours.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dee. Dig. § 230.]

      Appeal from Cooke County Court; R. Y. Bell, Judge.
    Action by C. E. Marshall against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Garnett & Garnett, of Gainesville, for appellant. Davis & Davis, of Gainesville, for appellee.

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

   SPEER, J.

C. E. Marshall filed this suit against the Gulf, Colorado & Sante Fé Railway Company to recover damages to 351 head of cattle shipped from Gainesville to Ft. Worth. The plaintiff alleged that his cattle were delivered to the defendant at Gaines-ville at 7 a. m. on September 12, 1911, and that they were unreasonably delayed and were not shipped out until 10 p. m. of that day; that the shipping pens were not sufficient in size and the cattle were crowded therein, and that they suffered from the extreme heat and lack of water, and that the pens were located near the tracks of the defendant, and that the cattle were frightened by the continuous ringing of bells and from noises made by the passing engines — all to their damage in the sum of $693.56.

The case was tried before a jury, resulting in a verdict and judgment for the full amount sued for, and the defendant has appealed.

Appellant’s first assignment of error is that the court erred in refusing to give its special charge to find in its favor as to damages caused by passing engines and trains because there was no evidence that the company was negligent in the manner of operating its trains by such pens. But this charge could not have been given because -the gist of appellee’s complaint was the negligent delay in appellant’s pens, whereby his cattle were exposed to such annoyances. It can make no difference that there was no negligence in the operation of passing trains if the company negligently delayed the cattle, thereby subjecting them to the usual and ordinary noises and fright. The same answer may be given to the third, fourth, and fifth assignments; each complaining of the refusal to give a special charge upon some other phase of the case.

We think special charge No. 4 was properly refused. It summarily instructed a verdict for appellant for such damages as the cattle sustained for want of water while in the pens, because the evidence showed that plaintiff had stated to appellant’s employes that he did not want them watered. Appellee’s evidence tended to explain why he gave such instructions, and was to the effect that if the cattle were sent out in a reasonable time, as he had every reason to expect and was promised they would be, it was not necessary for them to be watered at Gainesville; furthermore he testified that the only means of watering them at that place was in troughs which were on the ground and in such a condition as to be unfit for use. Under these circumstances, to say the least of it, a summary instruction upon this issue was not called for.

The other requested charges, in so far as they embodied correct propositions of law, were included in the court’s main charge. We have carefully examined the court’s charge and think it is not subject to the criticisms made.

We find no error in the judgment, and it is affirmed.


text:
    CHICAGO, R. I. & G. RY. CO. et al. v. KERR.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 24, 1914.)
    1. Appeal and Error (§ 742) — Assignments op Error — Statements—Suppiciency.
    An assignment of error complaining of the overruling of an objection to testimony as to the usual running time of a train between certain points, on the ground that the witness did not know the usual time, that his answer was a mere conclusion, and that it did not appear that he was qualified to give any testimony, would be overruled, where the statement submitted thereunder failed to show that the grounds stated were true.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    2. Appeal and Error (§ 742) — Assignments op Error — Statements—Supitciency.
    An assignment that the court erred in overruling an objection to testimony on the ground that it was immaterial, irrelevant, and a conclusion would be overruled, where the statement did not show that the witness was not qualified to give an opinion upon the matters asked about.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    3. Carriers (§ 230) — Delay in Transportation op Live Stock — Questions por Jury.
    In an action for delay in transporting a shipment of cattle, evidence that the shipment left Saginaw, Tex., about 5 p. m. August 24th, and reached Kansas City, Mo., about 6 a. m. on the 27th, justified the submission of the carrier’s negligence to the jury; its explanation of the delay not being necessarily conclusive.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 961, 962; Dec. Dig. § 230.]
    Appeal from Wise County Court; E. M. Allison, Judge.
    Action by Edgar Kerr against the Chicago, Rock Island & Gulf Railway Company and others. From a judgment for plaintiff, defendant named appeals.
    Affirmed.
    The shipment involved left Saginaw, Tex., about 5 p. m. on August 24th, and reached Kansas City, Mo., about 6 a. m. August 27th.
    McMurray & Gettys, of Decatur, and Lassi-ter, Harrison & Rowland, of Ft. Worth, for appellant. J. A. Templeton, of Ft. Worth, for appellee.

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

   SPEER, J.

This is the ordinary action to recover damages for injuries to a shipment of cattle from Saginaw, Tex., to Kansas City, Mo. The acts of negligence alleged were rough handling and delay en route, so that they arrived at destination ond were sold on the market a day late. There was a judgment in favor of the plaintiff, Kerr, for $300, and the defendant the Chicago, Rock Island & Gulf Railway Company has appealed.

The first assignment of error is overruled, because the statement submitted thereunder fails to show any error. In the statement it is shown that the testimony of a witness was objected to on the ground that it appeared he did not- know the usual time for the run between Saginaw and Kansas City, and his answer was a mere conclusion as to the usual running time of such a train, and that it failed to appear that he was qualified to give any testimony. The court overruled these objections, and there is nothing in the statement to show that the grounds stated were true, and therefore that the court erred in overruling them.

The same reason exists for overruling the second, third, and fourth assignments. There, according to the statements, certain testimony was objected to on the ground that it was immaterial and irrelevant and a conclusion, and the statements contain nothing to show that such person was not qualified to give an opinion upon the matters asked about.

We have carefully examined the court’s charge, and are of the opinion it properly submitted to the jury the issue of appellant’s negligence, and did not assume that fact against it. The length of time occupied by appellant in transporting appellee’s cattle afforded sufficient evidence of negligence to justify the submission of the issue to the jury, and its explanations of such delay were not necessarily conclusive.

There is no error in the judgment, and it is affirmed.


author: WILLSON, O. J.

text:
    SUBLETT v. HURST et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 5, 1914.)
    1. Venue (§ 22) — Joint Defendants — Residence.
    Rev. St. 1911, art. 1830, providing that no inhabitant of Texas shall be sued out of the county in which he has his domicile, but that where the defendant, or all the defendants, reside without the state, suit may be brought in the county where the plaintiff resides, does not authorize suit against a resident of the state in a county in which he does not reside, but in which plaintiff resides, when a resident of another state is made a codefendant.
    [Ed. Noté. — For other cases, see Venue, Cent. Dig. §§ 35-37; Dec. Dig. § 22.]
    2. Venue (§ 22) — Resident and Nonresident Defendants.
    That suit might be properly brought against a nonresident in the county of plaintiff’s residence, where it was based on a contract payable there, as authorized by Rev. St. 1911, art. 1830, did not authorize suit there against a resident codefendant who resides in another county.
    [Ed. Note. — For other eases, see Venue, Cent. Dig. §§ 35-37; Dec. Dig. § 22.]
    3. Venue (§ 22) — Oodefendants—Residence in Different Counties.
    Rev. St. 1911, art. 1830, provides that no inhabitant of the state shall be sued out of the county in which he has his domicile, except that where there are two or more defendants residing in different counties, suit may be brought in the county where any one of the defendants resides. Held, that the word “domicile” as so used implies more than a temporary sojurn in a given place, and hence, where one of the defendants had rented a farm in Oklahoma for the current year, and the other defendant was a resident of Texas in a county other than that in which plaintiff resided, suit against both could not be brought in the county of plaintiff’s residence.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 35-37; Dec. Dig. § 22.]
    4. Chattel Mortgages (§ 150) — Filing— Place.
    Rev. St. 1911, art. 5655, provides that every chattel mortgage shall be void as against creditors and subsequent purchasers in good faith, unless the instrument shall be filed in the office of the county clerk of the county where the property shall then be situated; or, if the mortgagor, or person, making the same, be a resident of the state, then of the county of which he shall then be a resident. Held, that where a buyer of horses in L. county gave a mortgage on them for the unpaid portion of the price, and immediately removed them to Oklahoma, where he kept them until he agreed to sell and deliver them to defendant in F. county, Tex., which he did, and the mortgage was not recorded until after the horses had been moved to Oklahoma, when it was recorded in L. county, such registration was ineffectual to preserve the lien against defendant.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 246-252; Dec. Dig. § 150.]
    Appeal from Lamar County Court; Rube 5. Wells, Judge.
    Action by G. C. Hurst and others against T. B. Sublett and another. Judgment for plaintiffs, and defendant, Sublett, appeals.
    Reversed in part.
    In Paris, Tex., on May 18, 1912, appellee Hurst sold and delivered two horses to one Jackson, the. other appellee. On the same day Jackson made and delivered his promissory note to Hurst, whereby he undertook, on October 1, 1912, to pay to “order G. C. Hurst, Paris, Tex.,” the sum of $307, the purchase price of the horses. To secure the payment of the note he at the same time executed and delivered to Hurst a mortgage on the horses and two mules. On the day after the day he purchased the horses Jackson carried them to Bryan county, Old., where he lived with his wife. May 25, 1912, the mortgage was filed in the office of the county clerk of Lamar county for registration. About November 7, 1912, in said Bryan county, Jackson contracted with appellant to sell the horses to him for $300, and to deliver same to him in Fannin county, Tex., where appellant resided. November 9, 1912, Jackson delivered the horses to' appellant, as he had agreed to, and the latter thereupon paid him the purchase price thereof as agreed upon. March 26, 1913, Jackson was arrested at his father’s home in Lamar county for a felony charged against him, and was lodged in the ILamar county jail in Paris. Afterwards he was convicted on said charge and sent to the penitentiary. While he was in jail, to wit, on May 2, 1913, the suit resulting in the judgment from which this appeal is prosecuted was commenced in the county court of Lamar county against him and appellant by Hurst, who thereby sought, as against Jackson, a judgment for the amount of the note, and as against Jacksoh and appellant a foreclosure of the mortgage. Jackson made no answer to the suit. Appellant by a sworn plea claimed his privilege to be sued in Fannin county, where he resided. This plea having been overruled by the court, appellant answered, denying generally the allegations of the petition, and pleading specially as follows: “For special answer in this behalf, the defendant says that he purchased the mares in controversy in good faith from E. J. Jackson, the owner thereof, paying a valuable consideration therefor at the time, and without any notice, actual or constructive, of plain-tiff’s alleged mortgage lien, or any other legal or equitable claim against them; that at the time he so purchased said mares they were in the actual possession of said E. J. Jackson in Bryan county, state of Oklahoma; that said Jackson was a resident citizen of Bryan county, Okl., at the time defendant so purchased said mares, as well as at the time plaintiff’s alleged mortgage was executed and filed in Lamar county, Tex.; that said E. J. Jackson was not a resident of Lamar county, Tex., at the time plaintiff’s alleged mortgage was executed, nor at the time the same was filed for registration in Lamar county, nor was said Jackson a resident of Lamar county, Tex., at any time thereafter prior to the date this defendant purchased said mares as aforesaid; that the said mares were not situated in Lamar county, Tex., at the time plaintiff’s alleged mortgage was filed with the county clerk of Lamar county, Tex., for registration, and that plaintiff failed to exercise due diligence to file said mortgage, or to comply with statutes giving lien, nor at any time thereafter prior to the date this defendant purchased said mares as aforesaid; that said mares did not remain in Lamar county, Tex., after said E. J. Jackson acquired possession of them, but that they were immediately removed by said Jackson from Lamar county, Tex., to Bryan county, Okl., and there kept by him at his place of residence until sold to this defendant, as aforesaid.” After hearing the testimony the court instructed the jury to find in Hurst’s favor as prayed for, and, on the verdict returned in accordance with his instruction, rendered judgment against Jackson for the amount due on the note, and decreed a foreclosure of the mortgage on the horses as against both Jackson and appellant. The latter alone appeals.
    Gross & Leslie, of Bonham, and Wright & Patrick, of Paris, for appellant. Moore & Hardison, of Paris, for appellees.

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

   WILLSON, O. J.

(after stating the facts as above). In support of his plea claiming his privilege to be sued in Fannin county, appellant proved that at the time the suit was commenced against him, and ever afterwards, he resided in Fannin county, and did not reside in Lamar county. He further proved, quoting from the record, “that none of the .exceptions to the exclusive venue of the county of one’s residence mentioned in articles 1194 and 1585 of the Revised Statutes of 1895, and of article 2308 of'the Revised Statutes of 1911, exist in this cause.” He further proved that Jackson, during the years 1911 and 1912, resided with his wife in Bryan county, Okl., on the Lake West Farm; that the latter part of December, 1912, Jackson’s wife went to her father’s home in Lamar county on a visit; that Jackson rented a farm for the year 1913 at Ben-nington, Okl., and about January 1, 1913, while his wife was still visiting her father and his family, moved their household effects from the Lake West Farm to the farm at Bennington; that later, during January or February, 1913, Jackson left Oklahoma and went to New Mexico, it seems, to avoid arrest on a felony charge against- him; that he returned from New Mexico between the 15th and 20th days of March, 1913, to his father’s home in Lamar county, Tex., where on the 26th day of March, 1913, he was arrested on said charge and carried to Paris, where he was lodged in the Lamar county jail; and that afterwards, a short time before this case was tried, he was convicted on said charge and sent to the penitentiary. And he further proved that, unless the facts just stated made Jackson a resident of Lamar county, he was never a resident thereof after he purchased the horses of Hurst.

The statute in force at the time the suit was commenced declared that “no person who is an inhabitant of this state shall be sued out of the county in which he has his domicile,” except in certain cases — none of which are like this one, unless the following are, to wit: “3. Where the defendant, or all' of several defendants, reside without the state, * * * in which case the suit may be brought in the county in which the plaintiff resides. 4. Where there are two or more defendants residing in different counties, in which case the suit may be brought in any county where any one of the defendants resides. 5. Where a person has contracted in writing to perform an obligation in any particular county, in which case suit may be brought either in such county, or where the defendant has his domicile.” Article 1830, R. S. 1911. If Jackson at the time he was sued was a resident of the state of Oklahoma, by force of the exception numbered “3" above, he might have been, as he was, sued in Lamar county, where Hurst resided. But the fact that he might have been, and that appellant was a proper party to a suit to foreclose the mortgage, did not entitle Hurst to sue appellant there. “There is no provision of law,” said the court in Hudgins v. Low, 42 Tex. Civ. App. 557, 94 S. W. 412; “that will authorize suit against a resident of Texas by joining him with a nonresident, in any other than the county of residence” of the former. So, if Jackson’s contract was to pay the note in Lamar county, as appellant, it seems, assumes it was, he might, by force of the exception numbered “5” above, have been sued there, without respect to where he resided; but the fact that he might have been sued in that county, though not domiciled there, did not entitle Hurst to maintain his suit as against appellant in that county. Behrens Drug Co. v. Hamilton & McCarty, 92 Tex. 284, 48 S. W. 5.

It seems, therefore, that unless the case is within the exception numbered “4” above, appellant’s plea should have been sustained. We think it is not within that exception, because it appeared that Jackson was not a resident of Lamar county within the meaning of the statute. “Domicile,” as used in the statute, we think implies more than a mere temporary sojourn in a given place. The testimony showed that Jackson had leased land for the year 1913 in Oklahoma, and that if he had a domicile it was in that state. If he did not have a domicile there he should be regarded as a transient person, for there is nothing in the testimony indicating an intention on his part to become a resident of Lamar, or any other county in this state. On the contrary, the inference from the testimony rathef is that, having abandoned his residence in Oklahoma, he was in the attitude of a fugitive from justice, without a fixed place of residence. We think appellant’s plea of privilege should have been sustained ; but as, on another assignment, the rights of the parties can now be determined and the litigation finally disposed of in the way, we think, it must be in the end, we have concluded not to reverse the judgment so far as it is against appellant, and remand the cause, with instructions to transfer same to Eannin county for trial of the issue between Hurst and appellant, as otherwise we would, but to dispose of the appeal by sustaining the other assignment referred to.

Appellant insists, and we agree, that when he purchased the horses of Jackson he did not take them subject to the mortgage, but acquired, as against Hurst, a good and perfect title to same. It was conclusively shown that Jackson, on the day after he purchased the horses of Hurst, carried them to his home in Oklahoma, where he kept them until more than five months thereafter-wards, when he entered into a contract with appellant to sell same to him and to deliver them to him in Eannin county, and that Jackson, in compliance with his contract, after-wards did deliver the horses to appellant in Eannin county. It was further conclusively shown that appellant, acting in good faith and without any actual notice of Hurst’s claim, paid to Jackson the purchase price agreed upon between him and Jackson. It was further conclusively shown that the mortgage in favor of Hurst was not filed for registration in Lamar county until five or six days after the date the horses were carried by Jackson to Oklahoma, and it was not shown same was ever registered either in Bryan county, Okl., or in Eannin county, Tex. The statute declared that “every chattel mortgage, deed of trust, or other instrument of writing, intended to operate as a mortgage of or lien upon personal property, which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the property mortgaged or pledged by such instrument, shall be absolutely void as against the creditors of the mortgagor or person making the same, and as against' subsequent purchasers and mortgagees or lien-holders in good faith, unless such instrument, or a true copy thereof, shall be forthwith deposited with and filed in the office of the county clerk of the county where the property shall then be situated, or if the mortgagor or person making the same be a resident of this state, then, of the county of which he shall at that time be a resident.” Article 5655, R. S. 1911. It conclusively appearing, as stated above, that Jackson was not a resident of this state at the time he purchased the horses, and that on the day after he purchased same he carried them to his home in Oklahoma, and it further conclusively appearing that the mortgage was not filed in. the office of the county clerk until five or six days after the horses were carried to Oklahoma, it is clear, we think, that the registration of the mortgage in Lamar county was not notice to appellant, and that as to him it was void. By the plain language of the statute, to render the registration of the mortgage effective as against an innocent purchaser, as appellant was, the horses must at the time of such registration have been in, Lamar county. Stirk v. Hamilton, 83 Me. 524, 22 Atl. 391; Hockaday-Gray Co. v. Jonett, 74 S. W. 71; Oxsheer v. Watt, 91 Tex. 402, 44 S. W. 67. It follows that the judgment is wrong in so far as it is in favor of Hurst against appellant. It will be reversed in so far as it is against appellant, and judgment will be here rendered that as against him said Hurst take nothing. In so far as it is in favor of Hurst against Jackson it ., will be affirmed.


text:
    STEVENS v. MATTERN.
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 18, 1914.)
    Sales (§ 221) — Passing Title — Teanseeb by Buyeb — Caveat Emptok.
    Plaintiff, in consideration of $10, gave B. an option to purchase two mules, the trade to be consummated by a date named, or the option forfeited. Plaintiff took the written option to a notary and directed him to draw an agreement for B. to sign in accordance therewith, with instructions to deliver the mules to him on signing the agreement. The notary, however, prepared and had B. sign a chattel mortgage on the mules as security for the price, and then delivered them to him, when he immediately traded them to defendant. Plaintiff repudiated the acts of the notary, but later agreed to make the sale on receiving a note from B. signed b.y another; but B., being unable to obtain this, returned the mules to plaintiff, after which they were taken from him by a deputy sheriff at defendant’s request. Held, that no title to the mules passed to B., and, under the rule caveat emptor, defendant acquired no title by the transfer from B. to him.
    [Ed. Note. — Eor other cases, see Sales, Cent. Dig. §§ 604, 605, 607, 608; Dec. Dig. § 221.j
    Appeal from Grimes County Court; Reid Reikard, Judge.
    Action by B. M. Stevens against S. T. Mat-tern. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    W. W. Meaehum, of Anderson, for appellant.

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

   McMEANS, J.

B. M. Stevens brought this suit against S. T. Mattern for the conversion of two mules, alleged to be of the value of $220, and for the reasonable value of their use from the time of such conversion. Defendant answered by general denial. The trial of the case before the court, without a jury, resulted in a judgment for the defendant, and plaintiff has appealed.

The substance of the testimony offered at the trial is as follows: Plaintiff owned two mules of the reasonable market value of $110 each. Joe Bates, Jr., wanted to buy them, and plaintiff offered to sell them at the price above stated. On December 21, 1912, the time the negotiations were opened, the parties prepared and signed the following writing: “This is a receipt for $10.00, option on a pare of mules for $220.00; this ten dollars is part payment for the mules; the trade is to he consummated the 28th day of December, 1912, if not it is forfeit.” Just what the terms of the sale were the evidence does not disclose; but there can be gathered from the testimony that $50 was to be paid in cash on December 28, 1912, and the trade then to be finally consummated, or the option given Joe Bates, Jr., should be at an end. The mules at this time were in plaintiff’s pasture adjoining his home. Plaintiff was following an occupation that required his absence from home from Monday morning until Friday night of each week. Before leaving his home the next Monday morning following the signing of the receipt or option, plaintiff took the paper to Hollis Williams, a notary public residing in the neighborhood, and, after stating the terms of the agreement with Bates, directed him to draw up an agreement for Bates to sign in accordance therewith, and told him that after Bates had signed such agreement to let him have the mules. Williams, instead of drawing the agreement as instructed, prepared and had Bates to sign and acknowledge an ordinary chattel mortgage on the mules as security for the purchase price, and then authorized Bates to take the mules, which, he did. After thus getting possession, Bates traded the mules to S. T. Mattern, the defendant, for a three year old horse and $25 in money. When plaintiff returned to his home on the following Friday night the chattel mortgage was shown to him, whereupon he declared that the instrument was not such as he directed Williams to draw, and that he would not accept it as compliance by Bates with the terms of their agreement; and when he spoke to Williams the next day about the matter the latter acknowledged he had violated the instructions given him by plaintiff. This was on December 27, 1912, and the next day was the date agreed upon for consummating the sale. On the 28th Bates went to plaintiff’s house and told him that he could not get the $50 cash, but that he had $7, which he would pay, and would get Mr. MeMurrah to sign his note for the balance and deliver it to him on the following Saturday, and to this plaintiff agreed. On the following Saturday plaintiff again saw Bates, and the latter informed him that MeMurrah would not sign the note, and plaintiff then told him to return his mules, and on the next morning about daybreak Bates returned the mules to plaintiff, and plaintiff again put them in his pasture. While plaintiff was away from home the succeeding week, the defendant Mattern, accompanied by a deputy sheriff and another party, entered plaintiff’s pasture, took the mules, and carried them away. When plaintiff heard of this, and after Mattern had refused to surrender the mules to him, he consulted a justice of the peace with the view of taking legal action for the recovery of the mules; but this officer, claiming that his court was without jurisdiction, did not entertain plaintiff’s claim. Whereupon this suit was filed in the county court. The justice of the peace testified that at the time plaintiff consulted him he (the plaintiff) stated that he had let Bates have the mules to trade them. This was denied by plaintiff.

We think that under the facts stated the title to the mules did not pass to Bates, and that defendant Mattern, by his purchase, did not acquire any greater title than Bates possessed. Being personal property, the rule caveat emptor applies.

We do not think that the statement of the justice of the peace as to what plaintiff told him about letting Bates hare the mules to trade is of such controlling force as to authorize an affirmance, in the face of the otherwise uncontradicted eviden'ce of plaintiff.

We think the judgment of the court below should be reversed, and the- cause remanded for a new trial, and it has so been ordered. * Reversed and remanded.