text:
    WYATT v. CHAMBERS.
    (No. 7029.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 23, 1915.)
    1. Deeds &wkey;>70 — Validity—Fraud.
    Where a grantee, to procure a deed to real estate, and for the purpose of defrauding and deceiving the grantor, promised to pay the grantor 8700 in cash, with the intention at the time of not making such payment, and the grantor relying thereon, executed and delivered the deed, and the payment was never made, the grantor was guilty of such fraud as authorized the cancellation of the deed, since, while a failure to keep a promise to perform an act in the future is not fraud in legal acceptation, though the promise is the consideration upon which a deed is executed, and the failure to keep it is wholly without excuse, this rule is subject to a well-recognized exception applicable where the representations and promises are made for the purpose of defrauding and deceiving, and with no intention at the time of performing them.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 165-182; Dec. Dig. &wkey;70J
    2. Appeal and Error <&wkey;1067 — Harmless Error — Instructions.
    In a suit to cancel a deed for fraud, plaintiff requested an instruction that if the grantee promised and represented that he would pay the grantor $700, upon the execution of the deed, with the design of cheating and deceiving the grantor, and with the intention at the time of not paying such sum, and if the grantor relied thereon and executed the deed, and if the payment was never made, to find for plaintiff. The court charged that if it was agreed that the grantee was to pay the grantor $700, and pay up all back taxes and support the grantor for life, and if the grantee had failed to make such cash payment and to pay such back taxes, and to furnish such support, and if such promises and agreements were fraudulently made for the purpose of deceiving the grantor, and without intention of carrying out and performing them, the verdict should be for plaintiff. Held, that the evidence being sufficient to raise the issue, the refusal of the requested instruction was prejudicial error, as the instruction given did not authorize a verdict for plaintiff if the grantee complied with the promise to pay the taxes and support the grantor, though he failed to pay the cash consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. &wkey;>1067; Trial, Cent. Dig. § 475.]
    3. Deeds <&wkey;70 — Validity—Fraud.
    If a grantee promised to pay $700 for real estate and to pay up back taxes and support the grantor, and if he did not intend to make such cash payment, but made the promise fraudulently for the purpose of procuring the execution of the deed, and if he did not pay the cash consideration, the deed should be set aside, notwithstanding his faithful compliance with his other promises.
    [Ed. Note. — For other cases, see Deeds, Gent. Dig. §§ 165-182; Dee. Dig. &wkey;70.]
    4. Cancellation oe Instruments <&wkey;43 — Pleading — Issues.
    In a suit to set aside a deed conveying lots 4 and 5, the petition alleged that lot 4 was fraudulently inserted in the deed without plaintiff’s knowledge or consent, that she could not read or write, and did not intend to convey lot 4, that defendant promised to pay $700 for lot 5, and support plaintiff as long as she lived, and pay all back taxes, that defendant did not intend to pay anything for the property, but made the promise for the sole purpose of decoying plaintiff into signing the deed, that plaintiff believed the promise, and with that belief executed the deed, and that no money was ever paid her. Held, that this raised an issue as to defendant’s fraudulent promise to make the cash payment without intent of making it, with respect to lot 4, as well as lot 5, there being but one conveyance which included both lots.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 96-99; Dec. Dig. <&wkey;43.]
    5. Trial c&wkey;234 — Instructions—Burden oe Proof.
    A party to a suit is only required to prove his case by a preponderance of the evidence, and an instruction requiring a party to establish the facts relied upon by him as grounds for a recovery by a clear preponderance of the evidence imposes too great a burden upon him.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 534-538, 566; Dec. Dig. &wkey;234J
    6. Witnesses <&wkey;178 — Comfetenoy—'Trans-action with Deceased Party — “Calling” of AVitness. ,
    In a suit by the administrator of W. against the administratrix of O., an heir of W., who was incompetent to testify against defendant as to statements made to her by deceased, “unless called to testify thereto by the opposite party,” was not called by defendant within the statute, where plaintiff prepared and filed interrogatories to her stating that her deposition would be taken in answer thereto, and defendant thereupon propounded cross-interrogatories and procured the issuance of a commission under which the deposition was taken, and the deposition could not be introduced by plaintiff, as the filing of the direct interrogatories was the “calling” of the witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 722-725; Dee. Dig. &wkey;178.)
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by P. B. Wyatt, administrator, against W. J. Chambers, who died pending action, which was then defended by his ad-ministratrix. From judgment for defendant, plaintiff appeals.
    Reversed and remanded.

      A. C. Van Yelzer and Fred R. Switzer, both of Houston, for appellant. W. H. Ward and Hortense Ward, both of Houston, for appel-lee.
   McMEANS, J.

Catherine Wiliams brought this suit against W. J. Chambers to set aside a deed executed by her to W. J. Chambers conveying lots 4 and 5 in block 49 in the Baker addition to the city of Houston. She died before a trial was had, and P. B. Wyatt was appointed administrator of her estate, and the suit is prosecuted by him in that capacity. It is alleged in plaintiff’s petition that lot 4 was fraudulently inserted in said deed without her knowledge or consent, and that she could not read or write, and that she did not intend to convey lot 4; and that defendant promised to pay to Catherine Williams for lot 5 the sum of $700 in cash, and to support her as long as she lived, by providing her with the necessaries of life, and also to pay all back taxes then due upon the property; that defendant did not intend to pay her anything therefor at the time he made the promise, but made the promise for the sole purpose of decoying her into signing the deed; that she believed the promise, and with that belief she executed and deliverd the deed, and that no money was ever paid her for said conveyance.

Pending a trial Chambers died, and the suit was defended by his administratrix, who pleaded that the consideration for the execution of the deed was only that the said Chambers should pay the taxes owing upon the property, repair the house upon the property, in which Catherine Williams lived, and permit her to have a home there for the balance of her life; that he fully performed his agreement with her by paying the taxes, amounting to several hundred dollars, and by furnishing a home to her during her lifetime; specially denied that there ever was an agreement to pay her $700, or any cash sum; specially denied that lot 4 was inserted in the deed without the knowledge and consent of Catherine Williams, but averred that, on the contrary, the same was included in the sale.

A trial before a jury resulted in a verdict and judgment for defendant, and the plaintiff has appealed.

Upon the trial the plaintiff introduced testimony which, if given credence by the jury, would have warranted a finding for plaintiff upon the issues presented by his pleadings. On the other hand, the defendant introduced testimony, which, being believed by the jury, warranted their finding on the issues raised by her pleadings. The verdict is not questioned upon this appeal by any assignment of error challenging the sufficiency of the evidence to sustain the same, but the assignments presented are predicated upon alleged prejudicial errors in the court’s charge, the refusal to give a certain charge requested by plaintiff, and upon the exclusion of certain testimony offered by the plaintiff upon the trial.

The fifth assignment complains of the refusal of the court to give to the jury the following special charge requested by plaintiff:

“You are instructed that if W. J. Chambers at the time he secured said deed from Catherine Williams, dated October 3, 1907, promised and represented to her (if you find from the preponderance of the evidence that he made such promises and representations) that he would pay her the sum of $700 cash upon her execution of the deed to him of the corner lot No. 5, and did so with the design of cheating and deceiving said Catherine Williams and had the-intention at the time of not paying the said $700 at that time or any other time in the future, but merely used such promises and representations, if any, as a false pretense, if any,, to induce the said Catherine AVilliams to execute said deed, and if the said Catherine Williams relied upon such promises and representations at the time, if any, and executed the said deed, and would not have executed the said deed had such promises and representations, if any, not been made to her, and if she had not believed the same, if you find she did believe same, and if you find that the said $700 was not paid, then you will find for the plaintiff for both of said lots.”

Appellant, under his first assignment of error, advances the following proposition:

“Where a proposed grantee in order to procure a deed to real estate made promises and representations to the grantor that he would pay her $700 in cash upon the delivery of the deed, and the grantor relying upon such promises and representations executed and delivered the deed to the grantee, when at the time of making said promises and representations said grantee made the same for the purpose of defrauding and deceiving the grantor, and had the intention at the time of not paying the promised cash payment, and never did pay the same, the grantee was guilty of such fraud as will authorize the cancellation of the deed.”

The above proposition is an accurate statement of the law as we understand it. While a failure to keep a promise to perform some act in the future will not be regarded as fraud in legal acceptation, although the promise is the consideration upon which a deed is executed and the failure to keep it is wholly without excuse, there is a well-recognized exception to this rule where the representations and promises are made for the purpose of defrauding and deceiving, and without any intention at the time the same are made of performing the same. This exception is recognized in Railway v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39, Railway v. Smith, 98 Tex. 553, 86 S. W. 322, May v. Cearley, 138 S. W. 165, and Insurance Co. v. Seidel, 52 Tex. Civ. App. 278, 113 S. W. 945, and was applied by the El Paso Court of Civil Appeals on the former appeal of this case. Chambers v. Wyatt, 151 S. W. 864.

The evidence being sufficient to raise the issue, and the court recognizing the exception to the general rule above stated, gave to the jury in its charge in chief the following instructions:

“Now you are charged that if you believe from a clear preponderance of the evidence in this case that on the date mentioned, to wit, the 3d day of October, 1907, that said Catherine Williams executed a deed conveying to the defendant, W. J. Ohambers, lots 4 and 5 in block No. 49, Baker addition to the city of Houston, Tex., but if you further believe from the evidence that it was agreed by and between the said parties that the said Ohambers was to pay the said Catherine Williams the sum of $700 in cash, to pay up all back taxes due on the said property, and to support the said Catherine Williams during her life as the considerations for the execution and delivery of the said deed, and you further believe from the evidence in this case that the said W. J. Chambers has not paid the consideration mentioned and agreed upon, if you find such to be the ease—-that is to say, that he has failed to pay the $700 in cash, has failed to pay up all back taxes due on said property, and failed to provide the sgid Catherine Williams with all the necessaries of life—if you find such was the consideration for the execution of the said deed, and you further find that at the time said promises and agreements were made by said Chambers, that they were fraudulently made and made for the purpose of deceiving the said Catherine Williams, and without any intention on the part of the said W. J. Chambers of carrying out and performing same, then in such event you will let your verdict be in favor of the plaintiff as to lot No. 5 of said block No. 49, Baker addition.”

It will be observed that under this charge the jury could not have found for the appellant, unless they believed from the evidence that all of the promises made by Chambers to Catherine Williams, as the consideration for the execution and delivery of the deed, had not been kept; that is to say, that unless Chambers had failed to perform his promise to pay the back taxes due upon the property and to provide her with the necessaries of life, and to pay her $700 upon the execution and delivery of the deed, the jury ’would not have been authorized by the charge to find for plaintiff, even though they may have believed from the evidence that he had complied with his promise to pay the taxes and furnish her a support, yet had not paid the cash consideration promised. In other words, the charge required the jury to find that Chambers had failed to comply with all the promises made by him before they could return a verdict for the plaintiff. We believe that if Chambers promised to pay Catherine Williams $700 for the property and to perform certain other agreements made as the consideration for the sale, and that at the time he promised to pay the cash consideration he did not intend to pay it, but made the promise fraudulently for the purpose of procuring her to execute the deed, and that thereafter he did not pay the cash •consideration, the deed could and should be set aside, notwithstanding he thereafter faithfully complied with his other promises.

The special charge contained an accurate instruction in this regard and should have been given, and the refusal of the court to give it was such prejudicial error against the appellants as to require a reversal.

Appellee contends that the refusal to .give the special charge was not error for the reason that there were rio pleadings to support it, in that plaintiff did not ask for cancellation of the deed to lot 4 for failure to pay the consideration of $700, but asked for cancellation for such alleged failure as to lot S.

We think the pleadings were sufficient to raise the issue as to both lots. There was but one conveyance and it included both lots; and plaintiff alleged that the deed was obtained by Chambers by making false and fraudulent promises to Catherine Williams that he would pay her $700 in cash, and that he would pay the back taxes upon the property and support her as long as she lived. While it is alleged that Catherine Williams did not know that lot 4 was inserted in the deed, that it was so inserted by Chambers fraudulently, and that if she had so known she would not have signed the deed, nevertheless it is alleged that she was induced to sign the deed that was executed by reason of each of the promises and representations made to her by Chambers, which she believed and relied on, and was thereby decoyed into parting with the title to her property, and that Chambers made the promises with the sole purpose of deceiving her and defrauding her 'out of her property, and without any intention on his part of complying with the same at the time when made or any time thereafter.

In submitting the issues presented by the plaintiff’s pleadings and raised by the evidence, the court instructed the jury that if they believed from a clear preponderance of the evidence that certain facts alleged by plaintiff as grounds for recovery existed, to find for plaintiff. The appellant contends that the charge, requiring plaintiff to prove his case by a clear preponderance of the evidence, imposed a greater degree of proof upon him than required by law, and is erroneous.

The law only requires that a party to a suit shall prove his case by a preponderance of the evidence, and the charge requiring that he establish the facts relied upon by him as grounds for recovery by a clear preponderance of the evidence imposes a greater burden upon him than is imposed by law. Green v. Keegans, 54 Tex. Civ. App. 237, 118 S. W. 173; Prather v. Wilkens, 68 Tex. 187, 4 S. W. 252. The charge is erroneous; but in view of the fact that the judgment will be reversed for the error hereinbefore indicated, and as the error above stated is not likely to happen upon another trial, we will not pause now to determine whether such error should require a reversal.

We think that the court did not commit error in refusing to permit Alma Whitby to testify in behalf of plaintiff. She was an heir of Catherine Williams, deceased, and was incompetent to testify against the defendant as to statements made to her by the deceased, “unless called to testify thereto by the opposite party." The facts that gave rise to the questions are these: The plaintiff prepared interrogatories to Alma "Whitby which were filed with the clerk, stating that her deposition would be taken in answer thereto and would he used by plaintiff as evidence upon the trial of the case, and notice of such filing was served upon the defendant. Thereupon the defendant propounded cross-interrogatories to her. Thereafter the defendant procured the issuance by the clerk of a commission to take the deposition of the witness and caused the same to be placed in the hands of a notary public for execution. Her deposition was taken accordingly and the fees of the notary for taking same Were taxed as costs in the case. However, the amount of these costs were advanced and paid to the notary by the defendant. Under these facts the plaintiff makes the contention that when defendant procured the answers of the witness to be taken she was “called to testify thereto by the opposite party,” and that this gave the plaintiff the right to introduce her testimony, although she would have been incompetent to testify as to the same matters had she been called by the plaintiff to testify.

We cannot agree to this contention. The filing of the direct interrogatories was the “calling” of the witness in this instance, and she was therefore called by the plaintiff and not by the defendant. Ivy v. Ivy, 51 Tex. Civ. App. 397, 112 S. W. 112. We think the court correctly sustained the objection to the introduction of her deposition, and the assignment raising the point is overruled.

For the error first hereinbefore indicated the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.
      ©=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    THOMAS v. ABBOTT et al.
    (No. 6988.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 10, 1915.
    Rehearing Denied Jan. 6, 1916.)
    Appeal and Error <&wkey;1002 — Revew — Verdict on Conflicting- Evidence.
    A verdict on conflicting testimony, justifying a verdict either way, according to which witnesses are believed, will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dee. Dig. 1002.)
    Appeal from Brazoria County Court; J. W. Munson, Judge.
    Action by W. C. Abbott and another against Norman F. Thomas. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Wilson & Follett, of Angleton, for appellant. A. T. Carleton, of Houston, and Mas-terson & Rucks, of Angleton, for appellees.
   McMEANS, J.

W. C. Abbott and Milton Kennedy, cattle brokers, brought this suit against Norman F. Thomas to recover $300 as commission for the sale of 300 cattle belonging to defendant, alleging in their petition that defendant had contracted to pay them $1 per head for finding a purchaser for that number of cattle, and that they had found such a purchaser to whom the defendant had made sale.

The defendant denied making such contract, but claimed that he, having that number of steers for sale at the price of $35 per head, agreed to pay Abbott $1 per head, provided Abbott could find a purchaser who would pay $36 per head.

The case was submitted by the court to a jury upon a charge against which no valid complaint is made, and resulted in a verdict for plaintiffs for the amount sued for, upon which a judgment in their favor for such an amount was accordingly entered..

The effect of all of the appellant’s assignments is that the verdict and judgment are contrary to the facts proved or against the overwhelming weight and preponderance of the testimony.

We have examined the evidence closely, and find that the plaintiffs introduced testimony which, if believed by the jury, justified them in returning a verdict for the plaintiffs. On the other hand, the defendant introduced testimony which, if believed by the jury, would have justified them in finding that no such contract as alleged by plaintiffs had been made.

It was the peculiar province of the jury to settle such conflict in the evidence, and, having settled it in favor of plaintiffs, this court in such case has no power to substitute its judgment as to the weight of the testimony for that of the jury. In such circumstances it becomes the duty of this court to affirm the judgment of the court below, and it has accordingly so been affirmed.

Affirmed.


author: PLEASANTS, C. J.

text:
    TEXAS CITY TERMINAL CO. v. PETITFILS.
    (No. 7006.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 11, 1915.
    Rehearing Denied Jan. 6, 1916.)
    1. Pleading &wkey;>290 — Admission .by Failure to Deny undee Oath in Reply.
    In an action against a railroad for injuries to a passenger on its car, where the defendant, pleaded that plaintiff was guilty of contributory negligence in standing in the aisle, which plea was not denied under oath, the action of the court in refusing to instruct a verdict for defendant was proper; it being unnecessary for a plaintiff to traverse allegations in the answer which are the mere converse of those in the petition.
    [Ed. Note. — For other cases, sée Pleading, Cent-Dig. §§ 859-863, 886y2 ; Dec.Dig. &wkey;290.]
    2. New Trial @=^96 — Grounds—Absence oi? Witnesses.
    Where motion for new trial was made by defendant for its inability to obtain the testimony of witnesses summoned by plaintiff, but who were not called by him, and who, when informed by plaintiff, at the close of his evidence at about 10 o’clock in the morning, without knowledge that their further attendance was desired by defendant, that they were excused, left the courtroom, with defendant’s knowledge, which failed to ask process for their return, though the witnesses, were within one hour’s drive by automobile, while defendant did not conclude its evidence until 3 o’clock in the afternoon, and asked no continuance, postponement, or delay of the trial in order to obtain the testimony, the motion was properly denied.
    [Ed. Note. — Por other cases, see New Trial, Cent. Dig. §§ 172, 190-194; Dec. Dig. ©=390.]
    3. Tbial ©=> 133 — Argument ox Counsel.
    In a personal injury case against a railroad, where the improper, but not inflammatory, language of plaintiff’s counsel in his address to the jury was immediately withdrawn by him upon objection while the court, on his request, instructed the jury to disregard it, in the absence of anything in the size of the verdict or the record to indicate that the remarks had any effect on the jury to influence them to find for plaintiff, or to award larger damages, there was no error.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. § 316; Dec. Dig. ©¿>133.]
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Action by A. P. Petitfils against the Texas City Terminal Company. Prom a judgment for plaintiff, defendant appeals.
    Affirmed.
    W. T. Armstrong and Eugene A. Wilson, both of Galveston, for appellant. Prank S. Anderson and Aubrey Puller, both of Galveston, for appellee.
   PLEASANTS, C. J.

A. P. Petitfils brought this suit against the Texas City Terminal Company, which owns and operates a railroad between Texas City and Texas City Junction for the carriage of passengers for hire, to recover damages for personal injuries sustained by him while a passenger on defendant’s passenger car, due to the alleged negligence of defendant in operating its car whereby the car upon which he was a passenger, while moving at a high rate of speed, ran off the main track through a switch onto a side track and came into collision with a car there standing. The negligence charged is that the switch connecting the side track with the main track was negligently left open so as to cause the passenger car to pass from the main track into the switch, thereby colliding with a car standing on the side track, and that the motorman driving the passenger car negligently failed to observe the open switch, as it was his duty to do, and as he might have done by the exercise of reasonable diligence. The plaintiff alleged that at the time he entered the passenger car, and at the time of the accident, he was compelled to, and did, stand in the aisle of the car, being unable to obtain a seat on account of the crowded condition thereof.

The defendant answered, pleading among other defenses that plaintiff was standing in the aisle of the car without any necessity therefor, and that in so doing he was guilty of negligence- which contributed to his injuries. This charge of contributory negligence was- not specifically denied by any pleading thereafter filed by the plaintiff.

The case was tried before a jury, and resulted in a verdict and judgment for plaintiff for $500, from which the defendant has appealed.

By its first assignment of error appellant complains of the refusal of the court to sustain its motion for a new trial upon the ground that, appellant having pleaded that the appellee was guilty of contributory negligence in standing in the aisle of the car, and this plea not having been denied under oath, the court should have instructed a verdict in its favor, and erred in refusing to give its first special charge which contained such an instruction. This case was tried before the repeal by the last Legislature of the law requiring pleadings to be under oath, and providing, in substance, that any defensive plea duly sworn to, not denied under oath, should be taken as confessed. A similar question was presented in the case of Railway v. Pennington, 166 S. W. 467, and decided adversely to' the contention here made; and, in overruling the assignment, we shall content ourselves by referring to the reasoning there made, which applies with peculiar force under the facts of this ease. See, also, Denison Cotton Mills v. McAmis, 176 S. W. 621; Railway v. Tomlinson, 169 S. W. 217; Tablet Bros. Co. v. Higginbotham, 170 S. W. 118.

The fourth assignment complains of the refusal of the court to grant appellant’s motion for a new trial on account of its inability to obtain upon the trial the testimony of two witnesses, Capt. Heintzelman and Lieut. Blackford, both of whom were United States Army officers stationed at Texas City. These witnesses had been summoned by the appellee, but were not placed upon the stand by him, and when he concluded the introduction of his evidence he informed said witnesses that he would not need their testimony, and, being told 'by them that they had not been summoned by the appellant, he excused them from further attendance upon the trial, and they immediately left for their headquarters at Texas City. This was about 10 o’clock in the morning, and the appellant was apprised about that time that they had been excused and had left the courtroom. Appellant did not conclude the introduction of its evidence until 3 o’clock that afternoon, Texas City was only about one hour’s drive by automobile from Galveston, and the round trip could have been made in about two hours, but, notwithstanding this the appellant asked for no process to secure the return of these witnesses, nor did it ask for a continuance, postponement, or delay of the trial in order to obtain their testimony. When appellee excused the witnesses from further attendance he did so without knowledge that their further attendance was desired by appellant or that their testimony was material to the appellant’s defense.

We think that under the foregoing facts the court properly refused to grant a new trial upon the ground urged in the assignment.

The language used by appellee’s counsel in his address to the jury, while improper, was not inflammatory, and was immediately withdrawn by him upon objection being mate thereto by the appellant. In addition to this, the court instructed the jury to disregard the remarks objected to, which the counsel also requested the jury to do. There is nothing in the size of the verdict or anything in the record to indicate that the remarks had any effect upon the jury, either in their finding in his favor or in fixing the amount of their award. The second assignment, which raises the point, is overruled.

The remaining assignment complains that the verdict is excessive. We have carefully read the evidence, and find therefrom that the verdict was warranted thereby, or at least was not so excessive as to justify this court in substituting its judgment for the judgment of the jury as to the extent of plaintiff’s injuries and as to the sum of money that would properly compensate him therefor. The assignment is overruled.

We find no reversible error in the record, and the judgment of the court below is affirmed.

Affirmed.
      <®=s>For other oases see same topic and KEY-NUMBER in *all Key-Numbered Digests and Indexes

      ©=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. WALLRAVEN.
    (No. 6837.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 2, 1915.
    Rehearing Denied Nov. 24, 1915.)
    1. Limitation or Actions <S=>185( — Pleading — Defenses—Denial.
    Under Bev. St. 1911, art. 1829, providing that if any special defense is pleaded, the plaintiff shall be required to answer, and that any fact so pleaded which is not denied shall be taken as confessed, plaintiff, in an action against a carrier for damages to household goods, whose petition fixed the date of the accrual of her cause of action within two years next preceding the filing of her suit, was not required to. repeat such allegation by a special denial of defendant’s plea of the two-year statute of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 694; Dec. Dig. 185.]
    2. Careiers @=136 — Delay in Delivery — Question for Jury.
    Evidence, in an action for damages to household goods and wearing apparel, held to make defendant’s negligence in not delivering the goods to plaintiff after their arrival at destination a question for the jury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 478, 596-598; Dec. Dig. @=>136.]
    Appeal from Galveston County Court; George E. Mann, Judge.
    Action by Willie 'Wallraven against the Galveston, Harrisburg & San Antonio Bail-way Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    See, also, 160 S. W. 116.
    Baker, Botts, Parker & Garwood, of Houston, and W. T. Armstrong and Barret Gibson, both of Galveston, for appellant. Marsene Johnson, Elmo Johnson, and Boy Johnson, all of Galveston, for appellee.
   LANE, J.

During the preceding term of this court we sustained appellant’s first assignment, and reversed the judgment of the lower court in favor of appellee, and rendered judgment for the appellant. The substance of said assignment is that, as appellant, defendant in the trial court, had pleaded in its answer, which was sworn to, that the cause of action declared upon by appel-lee had accrued more than two years prior to the institution of the suit, and was therefore barred by the two-year statute of limitation, and as appellee had not, as required by law, specifically denied such special defense, the court erred in not instructing a verdict in its favor. At the preceding term of this court appellee filed her motion for a rehearing. Upon further consideration of the case upon said motion we concluded we were in error in our holding, and granted said motion and set aside the judgment so rendered. Upon further consideration we find that appel-lee’s petition clearly fixes the date of the accrual of her cause of action within two years next preceding the filing of her suit, and that, having so done, she was not required to repeat such allegation by special denial of appellant’s plea of limitation, and we therefore overrule appellant’s first assignment of error. Word v. Bank, 170 S. W. at page 846; Railway Co. v. Pennington, 166 S. W. 467; Memphis Cotton Oil Co. v. Tolbert, 171 S. W. at page 311.

Appellant’s second assignment is as follows:

“Because the plaintiff failed, by the evidence introduced by her and in her behalf, to sustain the allegations of paragraph 2 of her first amended original petition, alleging that plaintiff ‘delivered, and caused to be delivered, to the defendant’s station and freight agent at the said town of San Leon certain personal property, to be shipped by defendant railway company’ for this reason: That the plaintiff wholly failed to prove that such freight was delivered to any person bearing the relation of agent to the defendant for the purpose of receiving or shipping such freight, or m any wise binding the defendant by any act as an agent for such purpose.”

There was no evidence showing that appellant railway company had a freight agent, or other agent authorized to receive appel-lee’s household goods, or that she delivered the same to any such agent at San Leon, as alleged, but on the contrary, the undisputed evidence shows that appellant had no such agent at San Leon to whom appellee could or did deliver her property. Had the allegation mentioned been the only allegation which would have entitled appellee to recover for her property placed in charge of appellant, no recovery could be had under the proof made. But we find that in the nineteenth section of appellee’s petition it is alleged:

“After same [the household goods named] were delivered to defendant by plaintiff, defendant’s further negligence and delay in failing to promptly * * * deliver said goods to her within a reasonable time after said goods had reached Galveston was the proximate cause of said injuries, damages, and losses by plaintiff.”

The undisputed evidence shows that appellant railway company did take possession of said goods, and did transport them to Galveston; and there was ample testimony that after the goods were transported to Galveston they were permitted by appellant to remain in its depot for six or more days before dppellee was advised of their arrival, although she had repeatedly made inquiry for them, to support a finding that appellant was negligent in not delivering said goods to ap-pellee after their arrival in Galveston. Whether this testimony was true or false was for the jury, and it found against appellant on that issue. We therefore overrule appellant’s second assignment.

What we have said with reference to appellant’s second assignment will also apply to its third assignment. We, therefore, for the same reasons given for overruling the second assignment, overrule the third assignment. What has been said disposes of all of appellant’s assignments. '

While in every judicial investigation the discovery of the truth and justice should be the aim and desire of the courts, and if this discovery can be had, the paramount effort 'of the court should be to see that justice is done to all parties to the suit, and while there may be errors committed in the trial of this case which, had they been presented for review, would have caused a reversal of the judgment rendered, we are not at liberty to consider them in the state of this record, and as no such error in the trial of this cause has been presented to us as should cause a reversal of the judgment rendered by the trial court, the same is affirmed.

Affirmed.
      «S^JTor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MAGILL et al. v. McCAMLEY.
    (No. 7026.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 23, 1915.
    Rehearing Denied Jan. 20, 1916.)
    1. Pleading @=>8 — Conclusions.
    The answer to a suit on a note that defendants were merely accommodation makers, and that the note was signed by them for the sole accommodation of the payee, was bad as merely stating the pleader’s conclusions.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 12^-28%) 68; Dec. Dig. c@^8.]
    2. Bills and Notes <®^>96 — Accommodation 'Indorsement — Consideration — Answer —Suebicienoy.
    It is no defense to a suit on a note given by the principal maker in payment of an account due to plaintiff that defendants signed without consideration at plaintiff payee’s request upon his statement that he was hard pressed for money and that if they would sign the note he 'could sell it to P. and get money on it, since the extension of the time of payment of the due account by the execution of the note was sufficient consideration therefor, and no intention to excuse defendants from liability thereon is inferable from the facts pleaded.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 165; Dec. Dig. <§^>96.]
    Appeal from District Court, Matagorda County; Sami. J. Styles, Judge.
    Action by W. L. McCamley against G. M. Magill and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Gaines & Corbett, of Bay City, for appellants. Linn & Austin, of Bay City, for ap-pellee.
   PLEASANTS, C. J.

This suit was brought by appellee against the Burton D. Hurd Land Company, Burton D. Hurd, F. H. Jones, and C. M. Magill, to recover the principal, interest, and attorney’s fees due upon a note for $2,894.25 executed by defendants and payable to appellee.

The defendants Magill and Jones, in their first amended original answer, pleaded specifically as follows:

“Now come the defendants, C. M. Magill and P. H. Jones, and, leave of the court first had and obtained for such purpose, file this their first amended original answer herein, and demurring generally to plaintiff’s original petition filed herein, say that the same is insufficient to entitle the plaintiff to the relief prayed for, or to any relief whatsoever, and of this the judgment of the court is prayed.
“ (1) And for answer herein, if any there need be, these defendants, in a purely formal way, deny each and every, all and singular, the allegations in said original petition contained, and will demand strict proof thereof.
“(2) Specially answering said petition, and particularly the first paragraph thereof, these defendants say that they admit that they signed the promissory note for $2,894.25, but deny that they or either of them are in any manner liable thereon, because they say that, in so far as these defendants and each of them are concerned, they and each of them were merely accommodation makers of said note, and that said note was signed by them and each of them for the sole accommodation of the payee therein, who is still the legal holder thereof, as is shown by plaintiff’s original petition filed herein.
“(3) Further specially answering paragraph 1 of said original petition, these defendants and each of them say that no beneficial consideration or thing of value moved to either of these defendants, or the Burton D. Hurd Land Company, or Burton D. Hurd individually, for the execution and delivery of said note, and long prior thereto the Burton D. Hurd Land Company, the principal maker of said note, was indebted to either W. L. McCamley, Wm. E. Austin & Co., or the Wm. E. Austin Abstract' Company (these defendants being unable, because of the confusion in the contentions of the plaintiff herein, to determine to which of the three foregoing named persons or corporations said debt was due) for certain abstract work covering a long period of time, and all of which abstract work was done for the sole and exclusive, use of the .Burton D. Hurd Land Company; that the said McCamley, at the time of the execution and delivery of said note sued upon, approached the defendant G. M. Magill and stated to the said G. M. Magill that if the said Magill, Jones, and Hurd would sign the note for the amount due by the said Burton D. Hurd Land Company, along with the said Burton D. Hurd Land Company, the plaintiff could and would negotiate and sell said note to A. B. Pierce, of Blessing, Tex., stating that he was hard pressed for money, and that if the said Magill, along with the others, would sign said note, he could sell the note to A. B. Pierce and get money therefor, and that such execution and delivery of said note by the said G. M. Ma-gill, Jones, and Hurd, for such purpose, would be an accommodation to the plaintiff ; that upon such state of facts, upon such request, and for such purpose, the said Magill signed, and likewise the said Jones and Hurd signed along with the said Burton D. Hurd Land Company for the purposes and under the state of facts just above set out.
“ (4) That, as a matter of fact, the said plaintiff never did offer such note to the said A. B. Pierce for purchase, and never did seek to sell said note so signed to A. B. Pierce, which is the note sued upon in this cause.
“(5) That if the said McCamley had, as he had agreed to do, offered such note to A. B. Pierce, for purchase, these defendants charge, on information and belief, that A. B. Pierce would have purchased said note for money.
“(6) That if the said Pierce had acquired said note, as it was intended by the parties, plaintiff and defendants, that he should, these defendants say upon information and belief that the said A. B. Pierce would have collected said note out of equities, rights, or interest then in his hands belonging to the said Burton D. Hurd Land Company, or out of assets, equities, rights, and interest afterwards coming into his hands, and that said note would have been paid off, satisfied, and discharged.”

The plaintiff filed a second supplemental petition and directed special exceptions to paragraphs 2, 3, 5, and 6 of defendants’ amended answer, and the court sustained the exceptions to paragraphs 2 and 3 of defendants’ amended answer.

The answer of the remaining defendants, who have not appealed from the judgment of the trial court, need not be noticed.

.The trial in the court below without a jury resulted in a judgment in favor of plaintiff against all of the defendants for the amount due upon the note.

Under appropriate assignments of error, the appellants assail the judgment on the ground that the trial court erred in sustaining plaintiff’s special exceptions to paragraphs 2 and 3 of defendants’ answer.

The special exceptions sustained by the court were as follows:

“And specially demurring to paragraph No. 2 of said answer, he says that the same is insufficient because it states merely a conclusion of the pleader and does not set out any facts that would create an accommodation maker of the note of the defendants.
“And specially demurring to paragraph No. 3 of said answer, he says same is wholly insufficient because it fails to show any defense or that these defendants were not beneficiaries of said note and the extension of the debt thereby granted, and because it fails to show or allege that the plaintiff was in any way obligated to pay off or discharge said note, or that he incurred any liability thereon whatever at any time.”

We do not think the court erred in sustaining these exceptions. Paragraph 2 of the answer states no facts upon which the conclusion that appellants were merely accommodation makers of the note, and not liable to plaintiff thereon, can be based, and it is elementary that an allegation or averment of a legal conclusion, when no facts are stated from which such conclusion can be drawn, is insufficient pleading.

The facts averred in paragraph 3 of the answer show that the note sued on was executed for an amount then due by the land company. The note was payable 12 months after date, and its execution necessarily extended the time of payment of the then due account. This was a sufficient consideration for the note. The fact that the plaintiff stated to these appellants, before they executed the note, that he was hard pressed for money and that if they would sign the note with the other defendants he could sell it to Mr. Pierce and “get money thereon,” and that it would be an accommodation to him if appellants would execute the note, and that appellants signed the note upon this state of facts, present no defense to plaintiff’s suit. It cannot be inferred from these facts that either plaintiff or appellants understood or intended that appellants would not be held liable on the note. Certainly there was no agreement, expressed or implied, on plaintiff’s part, to protect appellants against the liability incurred by them by signing a note for a debt due by their comakers, and they cannot upon the facts stated claim to be relieved of their contract undertaking to pay plaintiff the amount due upon the note.

In Parker v. Lewis, 39 Tex. 395, cited by appellants, there was an agreement by the payee of a bill of exchange with the drawee that, if the latter would accept the bill so as to enable the payee to raise the money thereon, he, the payee would protect the drawee against any liability thereon.

A similar state of facts existed in the case of Bank & Trust Co. v. Ford, 152 S. W. 704, also cited by appellants. The facts of these cases easily distinguish them from the instant case.

We are of opinion that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.
      @=»Eor other cases see same topic and KEY-NUMBER in-all Key-Numbered Digests and Indexes


text:
    HOUSTON & B. V. RY. CO. v. HUGHES.
    (No. 7209.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 14, 1915.
    Rehearing Denied Jan. 13, 1916.)
    1. Appeal and Error @=^920 — Presumption Favoring Court Below.
    Assignments of error that the appointment of a receiver for defendant corporation was erroneous because no grounds therefor were stated in plaintiff’s petition, .and that the petition upon which the order appointing a receiver was granted stated no cause of action against defendant, were equivalent to a general demurrer, when urged in a trial court, and required the appellate court to indulge all reasonable intend-ments in favor of the sufficiency of the petition to sustain the appointment of the receiver.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 8714-3721; Dec. Dig. @=> 920.]
    2. Railroads @=>205 — Receiver— Propriety 03? APPOINTMENT — STATUTE.
    Whore a bondholder of an insolvent railroad corporation sued it, alleging waste and mismanagement and asking the appointment of a receiver, the petition, by its express allegations, showing that a suit on the bonds and for foreclosure would be premature, as the road had committed no default in the performance of the conditions of the mortgage constituting the contract between the parties, the appointment of a receiver was improper, although Rev. St. 1911, art. 2128, provides that receivers may be appointed in cases where a corporation is insolvent, since insolvency alone does not justify the appointment of a receiver, which is an ancillary remedy, while the instant suit was primarily for such purpose.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 673-675; Dec. Dig. @=>205.]
    3. Appeal and Error @=>781 — Dismissal — Moot Question.
    The appeal of a railroad, for which, at the instance of its bondholder, a receiver has been appointed, from the order of appointment, will not be dismissed as moot on the ground that the subject-matter of controversy has ceased to exist, because, subsequent to the appointment, a second receiver for the property is appointed by a United States court, and the road does not appeal from such second appointment, apparently acquiescing therein.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 63-80, 3122; Dec. Dig. @=>781.]
    Appeal from District Court, Brazoria County ; Samuel J. Styles, Judge.
    Suit by Ed. S. I-Iughes against the Houston & Brazos Valley Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    A. E. Masterson, of Angleton, W. T. Andrews, of Stamford, and Andrews, Street-man, Burns & Logue, of Houston, for appellant. A. R. Rucks, of Angleton, S. P. Hard-wicke, of Abilene, and Theodore Mack, of Ft. Worth, for appellee.
   McMEANS, J.

On October 27, 1915, Ed. S. Hughes brought this suit against the Houston & Brazos Valley Railway Company, praying for the immediate appointment of a receiver to take charge of all the properties, rights, and franchises of appellant, and his petition was presented to the honorable judge of the district court of Brazoria county in chambers and in vacation. On the same date, and upon ex parte hearing without notice to the defendant, the judge made an order in said cause appointing II. O. Wooten receiver of the defendant and all its properties, rights, and franchises of every kind, character, and description, directing that all persons in possession of any property of defendant should forthwith deliver the same to the receiver, and restraining all persons from interfering with the possession and use thereof, or with the taking possession of said properties. From this order and judgment, the defendant has appealed.

The appellant in its brief has undertaken to set out the substance of the material allegations in the plaintiff’s petition, as well as the exhibits attached to and made a part, thereof, and, as this seems to have been correctly dono, and as no objection thereto is urged by plaintiff, we adopt the same as our statement of the material allegations of the petition.

(1) The first paragraph merely alleges the residence of the parties. The second paragraph alleges that appellee is the owner of 205 of the first mortgage bonds of appellant of the denomination and par value of $1,-000 each, dated July 1, 1907, payable July 1, 1937, with interest at the rate of 5 per cent, per annum, interest payable semiannually on the 1st day of July and on the 1st day of January of each year, that said bonds are of the aggregate value of $205,000, and that to secure and insure the payment thereof the defendant on July 1, 1907, made, executed, and delivered to Mercantile Trust Company of St. Louis, Mo., as trustee, its deed of trust mortgage upon all of the properties, rights, and franchises of the defendant railway company of every kind, character, and description whatsoever and wheresoever situated. The paragraph further describes said properties more in detail, and the petition refers to the said deed of trust mortgage and incorporates it in the petition. This exhibit is attached to the petition, and will be more particularly referred to in this statement.

(2) The third paragraph of plaintiff’s petition alleges that the bonds are secured by first mortgage lien notes upon the properties of defendant, and that the payment of £he bonds and the interest thereon is dependent upon the earnings and upon the successful operation and maintenance of the railroad and its properties.

(3) The fourth paragraph of the plaintiff’s petition alleges that defendant is insolvent, that its present earnings are not sufficient to pay its operating expenses, and that for the past year or more the operating expenses have exceeded its earnings from $800 to $1,-500 per month, and that plaintiff fears:

“That, if the operation is permitted to be continued by the defendant railway company under its present management, the expenses will continue to exceed the earnings.”

(4) The same paragraph of plaintiff’s petition further alleges that the alleged insolvent condition of defendant is due to the extravagance and mismanagement in the operation of the same, in that it has an excessive number of employes and pays excessive prices for its supplies and materials, and purchases inferior material and uses a great portion of its earnings for the construction of additional facilities not justified by the traffic, in that said facilities are more than ample to take care of the traffic that may be reasonably expected for several years.

(5) The fifth paragraph of plaintiffs petition alleges that defendant has borrowed from time to time large sums of money to meet and pay obligations incurred by it by reason of its extravagance and mismanagement, and that it is indebted for moneys borrowed and advanced to it and material furnished to it, and is without funds with which to pay the same; that said indebtedness is increasing, and defendant cannot now secure further loans and advances to pay the current operating expenses; that the persons who have heretofore been making advances and loans to defendant have advised plaintiff that they will not continue to do so.

(6) The sixth paragraph of plaintiff’s petition reads as follows:

“Plaintiff alleges that he fears, and has reason to believe, that if the properties of said railway company are permitted to remain in the control and operation of its present management that it will be so mismanaged and so extravagantly operated, and not having funds with which to meet same, as hereinbefore alleged, that large debts will accumulate against the properties of said railway company, including debts for wages and personal services, material furnished, and accounts of other railroads accumulate against it, all of which will create a prior lien upon the properties of said railway company, and will accumulate to such an amount as to materially injure, if not totally destroy, the value of plaintiff’s bonds; that said railway company has not heretofore, and is not now, making any effort whatever, on account of the mismanagement and extravagance of the operation thereof, to pay, and has been unable to pay, the interest out of the earnings of said road on said bonds, and has not and is unable to create any sinking fund with which to eventually redeem said outstanding bonds when same mature, and, if they are permitted to continue to manage and operate same, that no provision will or can be made for the payment of said interest, or create a sinking fund for the ultimate redemption of said bonds at maturity, and that, therefore, by reason of the facts herein alleged, unless a receivership is granted herein and the properties of said railway company taken out of the hands of the present management, that plaintiff will suffer irreparable injury; that plaintiff has no adequate remedy at law.”

(7) The seventh paragraph of plaintiff’s petition reads as follows:

“And in this behalf plaintiff further shows to the court that it is necessary and imperative that your honor immediately appoint a receiver to take charge of and operate the properties of the defendant railway company, to prevent the present management from contracting for further additional and unnecessary materials, and thereby further increasing the indebtedness of said company, and impairing and injuring the properties of said company as security to plaintiff’s bonds, and for the further reason that the persons owning the balance of the first mortgage bonds of said company, to wit, $215,000, and upon which default has been made in the payment of the interest due thereon, are nonresidents of the state of Texas, and are threatening to immediately file a petition in another jurisdiction asking that the properties of the defendant company be placed in the hands of a receiver, and in this behalf plaintiff shows that all of the properties of the defendant railway company are located in Brazoria county, Tex., that the greatest number of creditors of said company reside in Brazoria county, Tex., and that the management and operation of the defendant railway company can be • best, most conveniently, and most economically managed and operated by and under the order of this court.”

(8) The eighth paragraph of plaintiff’s petition alleges that defendant railway company, by reason of the matter set forth in said petition, as above referred to, “became, and is now, indebted to and liable to plaintiff in the sum of $205,000, together with interest thereon from and since the 1st day of July, 1915.” The plaintiff does not in this or any other paragraph of the petition allege any default by defendant, or any demand by plaintiff and refusal by defendant, or that any sum of the principal or interest is past due.

(9) The prayer of plaintiff is that the court immediately appoint a receiver and authorize him to take charge of all of the properties of defendant and operate the same under the orders of the court, to the end that they may be preserved, saved from injury and loss, and operated in such manner as to earn sufficient moneys to pay the expense of said defendant, including interest on plaintiff’s bonds, as it will mature, and to create a sinking fund to redeem the bonds at maturity ; the order to be perpetuated to such end. This is the primary prayer of the petition.

(10) The .plaintiff makes an alternative prayer that, in the event the properties of defendant do not earn sufficient funds to pay the operating expenses and to meet and pay the obligations of said defendant, on final hearing in the cause plaintiff have judgment for $205,000, with interest thereon from July 1, 1915, at 5 per cent, per annum, together with foreclosure of his mortgage lien and order of sale and general and special relief.

(11) As above stated, the mortgage is incorporated in plaintiff’s petition, and the parts thereof which are material in this proceeding are shown herewith. The mortgage contains a substantial copy of the form of bond, and it shows the following provisions:

“For a description of the mortgaged property, the nature and extent of the security, the rights of the holders of bonds, and the terms and conditions on which the bonds are issued and secured, reference may be had to said mortgage and deed of trust.”

(12) After the description of the property conveyed in the granting clause, the trust of the conveyance is expressed as follows:

“But in trust, nevertheless, for the equal pro rata benefit and security of all the holders of the first mortgage bonds issued or to be issued under this indenture, without preference or priority of any bond over any other, or the coupons thereto belonging, by reason of priority in the time of issue and negotiation thereof, or otherwise, howsoever, and for enforcing the payment of the principal and interest thereof according to their tenor, with the power and authority, and subject to the agreements, covenants, provisos, and conditions hereinafter expressed and declared.”

(13) Of the succeeding covenants of the mortgage only the fourth, fifth, sixth, ninth, thirteenth, and fifteenth have any bearing upon the questions involved in this case. The fourth paragraph specifically provides that the railway company shall be entitled to retain possession of the premises until the events of default thereinafter described shall occur, and reads as follows:

“Eourth. Until the happening of one or more of the events hereinafter specified and termed the events of default, the railway company, its successors and assigns, shall be entitled to retain possession of the mortgaged premises, and to operate and use the same and receive and enjoy the earnings, income, and profits thereof.”

(14) The fifth paragraph contains the description of all of the events of default named in the mortgage, and we give them by quoting the paragraph as follows:

“Fifth. If one or more of the following events, hereinafter called the events of default, shall happen, that is to say: (a) Default shall be made in the payment of any installment of interest of the first mortgage bonds when and as the same shall become payable as therein and herein expressed, and such default shall continue for the space of 30 days, or default shall be made in the payment of the principal of any of said bonds, when the same shall become due and payable by their terms, or by declaration, or otherwise; (b) default shall be made by the railway company in the observance or performance of any other of the covenants, conditions, and agreements in the first mortgage bonds, or in this indenture expressed, and the railway company shall not remedy such default within three months after written notice stating such default, and requiring the railway company to comply with such covenant or condition, shall have been served upon the railway company by the trustee — then and in any of such events the trustee, personally or by its attorneys or agents, may, in its discretion, enter into and upon all and singular the mortgaged premises and each and every part thereof, and shall until the same be sold, or surrendered to the railway company, its successors or assigns, as hereinafter provided, possess, use, manage, and operate the same.”

The covenants and agreements of the railway company are shown in paragraph 13 of the mortgage, and are described hereinafter.

(15) The following constitutes all of the material part of the sixth paragraph:

“Sixth. If one or more of the events of default shall happen, the trustee, upon requisition of the owners of a majority in amount of the first mortgage bonds then outstanding, shall declare the principal of all the first mortgage bonds, unless already due, to be forthwith due and payable, without notice to the railway company, anything in said bonds or herein contained to the contrary notwithstanding. Such requisition may be evidenced by an instrument in writing, duly signed and acknowledged by persons proved to the reasonable satisfaction of the trustee to be the owners of a majority in amount of the first mortgage bonds then outstanding, or by their representatives duly authorized in writing. Such proof may be made by affidavit.”

(16) The thirteenth paragraph contains the specific covenants of the railway company, the first of which is to pay the interest and principal upon the bonds; the second to pay taxes, assessments, and governmental charges, unless it shall in good faith contest the validity thereof; the third is a covenant that it will not create or suffer to be created any lien or charge upon the mortgaged premises prior to the lien of this indenture, “or do any act or thing whereby the lien or security hereof may be impaired” ; the fourth is a covenant that the railway company will properly maintain the mortgaged premises, renewing and replacing the same as may be necessary, preserve the franchises, and keep the buildings adequately insured against loss by fire; the fifth covenant provides that the company will execute such further deeds and conveyances as may be required by the trustee; and the sixth covenant provides that it will indemnify and save harmless the trustee from loss occasioned by the execution of the trust, and not caused by the personal misconduct of the trustee.

(IT) The fifteenth paragraph of the mortgage is as follows:

“Fifteenth. No holder of the first mortgage bonds or coupons shall have the right to institute any suit, action, or proceeding, at law or in equity, upon or in respect of this indenture, or for the execution of any power or trust hereof, or for the appointment of a receiver, or for any other remedy under or upon this indenture, unless such holder shall previously have given to the trustee written notice of some existing default and of the continuance thereof as hereinbefore provided; nor unless also the holders of a majority in amount of the first mortgage bonds- then outstanding shall have made written request upon the trustee, and shall have afforded to the trustee reasonable opportunity to proceed itself to exercise the powers hereinbefore granted or to institute such action, suit, or proceedings in its own name after such right of action shall have accrued to the trustee, nor unless also such holder or holders shall have offered to the trustee adequate security and indemnity against the costs, expenses, and liabilities to be incurred in or by reason of such action, suit, or proceeding; and such notification, request, and offer of indemnity are hereby declared in every such case, at the option of the trustee, to be conditions precedent to the execution of the powers and trusts of this indenture, and to any action or cause of action for foreclosure or for the appointment of a receiver, or for other remedy hereunder; it being intended that no one or more holders of the first mortgage bonds or of the coupons pertaining thereto shall have any right in any manner whatever to affect, disturb, or prejudice the lien of this indenture by his or their action, or to enforce any right hereunder, except in the manner herein provided, and that all proceedings hereunder shall be instituted, had, and maintained in the manner herein provided and for the equal benefit of all the holders of such outstanding bonds and coupons; but the foregoing provisions of this section are intended only for the protection of the trustee, and shall not be construed to affect any discretion or power by any provisions of this indenture given to the trustee to determine whether or not the trustee shall take action in respect of any default without such notice or request from bondholders, or to affect any other discretion or power given to the trustee. No delay or omission of the trustee or of any holder of the first mortgage bonds to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of and sueli default or acquiescence therein, and every power and remedy given by this indenture to the trustee or to the bondholders may be exercised from time to time and as often as may be deemed expedient by the trustee or by the bondholders.”

The appellant’s first assignment of error complains that the appointment of the receiver was erroneous for the reason that no legal or equitable grounds therefor are stated in the appellee’s petition which would justify the appointment of a receiver; and the second assignment asserts that the petition upon which the order appointing a receiver was granted stated no cause of action against appellant. These assignments are equivalent to a general demurrer when urged in a trial court, and require us to indulge all reasonable intendments in favor of the sufficiency of the petition to sustain the action of the court in appointing the receiver, wresting the property of the appellant from the control of its owner and placing it in the possession of another. If, indulging such intendments, it can be held that the petition states a cause of action, then the assignments must be overruled; if not, then the order appointing a receiver must be reversed and vacated, and the receiver discharged.

Looking to the allegations of the petition, and construing the same most favorably to the pleader, we are of the opinion that the pleading sufficiently charges that the Houston & Brazos Valley Railway Company was insolvent, or in imminent danger of insolvency, at the time the petition was exhibited. Article 2128, Revised Statutes 1911, provides that receivers may be appointed “in cases where a corporation has been dissolved, or is insolvent, or in imminent danger qf insolvency. * * *” But does insolvency of a corporation alone justify the appointment of a receiver? This question has been answered negatively by the Ft. Worth Court of Civil Appeals in Espuela Land, etc., Co. v. Bindle, 5 Tex. Civ. App. 18, 23 S. W. 819, where a similar question was presented. In that case Justice Stephens, speaking for the court, said:

“While it is not very clear to us that the fact of insolvency was established, we ai*e of opinion that we would not be warranted in disturbing the finding on that issue. The question then arises: Can a stockholder or lien creditor of an insolvent corporation which is-still a going concern have a receiver appointed to take charge of the entire assets, and convert the same into money for general distribution, on the sole ground of insolvency? * * * The answer to this question involves a construction of article 1461 of our Revised Statutes (now article 2128), which provides, in substance, that any judge of a court of competent jurisdiction may appoint a receiver in case where a corporation is insolvent. This question has never been * * * adjudicated in this state, that we are aware of. Statutes of identical import with ours have been construed by the Supreme Courts of California and Indiana; but the decisions seem to be directly in conflict. French Bank Case, 53 Cal. 495; Bank v. Tile Co. [105 Ind. 227] 4 N. E. 851. In the former case it is said: ‘There is, of course, no such thing as an action brought distinctively for the appointment of a receiver; such an appointment, when made, is ancillary to or in aid of the action brought.’ It was there held that the statute providing for the appointment of a receiver where a corporation becomes insolvent, in the absence of a more explicit legislation, did not ‘confer upon a private person, either as stockholder or creditor, the right to maintain an action to dissolve a corporation upon the ground that it was insolvent, or to obtain relief by seizing its property out of the hands of its constituted management, and placing it in the hands of a receiver.’ In the latter case the opposite conclusion seems to have been reached. * * • We see nothing in our statute to indicate that the Legislature intended thereby to so change the whole scope of re-ceiverships as to convert a merely auxiliary proceeding into a primary object of litigation. • * * Unless the statute providing for the appointment of a receiver enabled appellees to sue where they would otherwise have had no cause of action, the appointment should have been denied. As already seen, we cannot give the statute such a construction. Until a plaintiff has a cause of action of some sort — until he can show himself entitled to recover something —he is not in an attitude to appropriate any of the merely ancillary remedies of the courts.”

The same principle, viz., that insolvency alone is no ground for the appointment of a receiver of a corporation, is recognized in Galvin v. McConnell, 53 Tex. Civ. App. 486, 117 S. W. 211, where it is said:

“Mere insolvency of a corporation in equity is no ground for the appointment of a receiver (5 Pom. Eq. § 116), though by our statute in general terms it seems to have been made so.”
In the case last referred to a suit was filed by "the plaintiff against the Jacksboro Stone Company, a corporation, and certain private individuals, to recover judgment upon a promissory note then due, and to foreclose a mortgage upon property of the corporation which had then matured. After-wards certain of its creditors intervened and prayed for the appointment of a receiver. They set up no cause of action against the corporation in their intervention, and asked for no judgment against it, but sought, as a primary object, the appointment of a receiver ; and it was upon their petition that the receiver was appointed. It was upon this state of facts that the language quoted was used.
We do not wish to be understood as holding that the insolvency of a corporation is not a ground for the appointment of a receiver, for such holding would be directly contrary to the provisions of the statute above quoted; but wbat we tbink that the cases referred to hold, and what we mean to hold, is that a receiver should not be appointed on the ground of insolvency unless the plaintiff shall by his suit seek the recovery of a judgment of some kind against the insolvent corporation and pray for the appointment of a receiver as a purely ancillary remedy. In no case ought a receiver to be appointed on the ground of insolvency of a going concern, as the primary and sole object sought to be effected by the suit.
It will be observed by referring to the material allegations of plaintiff’s petition as above set out that plaintiff alleged no default in the payment of the mortgage indebtedness according to contract; it alleges no default in the performance of the conditions of the mortgage constituting the contract between the parties; it does not allege that there is any present impairment in the security given to secure the payment of the bonds held by plaintiff; it does not allege that there would be any impairment in the future by a con- ' tinuation of the alleged mismanagement which had theretofore prevailed according to the allegations of the petition. The petition contains in full the contract of the mortgage to which plaintiff, as a holder of bonds, is subject, and this mortgage provides in paragraph 4 that the appellant shall be entitled to the enjoyment and possession of the mortgaged properties so long as it is not in default in the performance of the covenants of the mortgage. The events of default are set forth in said contract and in the petition, and there is no allegation in any part of the petition to the effect that any of said events of default have occurred, or that the covenants of appellant have not been performed. The petition charges appellant with no fraud, and does not charge the trustee with any fraud or neglect. It shows on its face that, before it can proceed with an action, it must first request the trustee to act, but the petition does not allege that any such request has been made on the trustee, or that the trustee has refused to act to the complete protection of the appellee. It shows further that all interest due upon appellee’s bonds has been paid to him as it accrued, and that the bonds do not mature until 1937. It is true that appellee in the alternative prayed that, in the event the properties of defendant do not earn sufficient funds to pay the operating expenses and to meet and pay the obligations of appellant, on final hearing he have judgment for the amount of his bonds, with interest and foreclosure of his mortgage lien, etc.; but, whatever his ultimate rights may be, the petition by its express allegations shows that a present suit upon the bonds and for foreclosure is premature, and that he has no more standing in court on the face of the petition than if he had brought a simple suit to recover a judgment upon a promissory note which had not matured. Looking to the whole petition, it is manifest, we think, that the primary and sole purpose of the suit was for the appointment of a receiver, and that such appointment was not sought as “an ancillary right to a cause of action and a preliminary protective measure by which the property is impounded and held by the court until the cause of action alleged is judicially determined.”

It is well settled by Texas decisions that the appointment of a receiver is an ancillary remedy, and that before a receiver will be appointed the plaintiff’s petition under which the appointment is sought must state a cause of action against the defendant. If it does not, the prayer for the appointment of a receiver should be denied. We have already held that the mere insolvency of a corporation, there being no cause of action stated in the petition, or other ground than insolvency alleged, is of itself no ground for the appointment of a receiver. The authorities are numerous, but we shall quote but few of them.

In Farwell v. Babcock, 27 Tex. Civ. App. 162, 65 S. W. 509, it is said:

“The first proposition of appellants is, in substance, that the right to the appointment of a receiver of a corporation is not a cause of action, but only an ancillary right to a cause of action, ’and a preliminary protective measure by which property is impounded and held by the court until the cause of action alleged is judicially determined. If there is no cause of action alleged, then no right exists to have a receiver appointed. This proposition is correct, and is supported by the following authorities: Land & Cattle Co. v. Bindle, 5 Tex. Civ. App. 21, 23 S. W. 819; Investment Co. v. Crawford, 45 S. W. 738; Iron Co. v. Blevens, 12 Tex. Civ. App. 410 [34 S. W. 828].”

In Hermann v. Thomas, 143 S. W. 195, this court, speaking through Chief Justice Pleas-ants, says:

“The general proposition that the right to the appointment of a receiver is not a cause of action, or, in other words, does not exist, independent of some other right, or the infringement of some right of the plaintiff which would entitle him to maintain an action therefor, and when no cause of action is shown in the petition, and no relief sought, other than the appointment of a receiver, such relief will not be granted, is well settled.”

In Style v. Lantrip, 171 S. W. 786, it is said:

“Except in case of lunatics and infants, the appointment of a receiver alone does not constitute a cause of action. The exercise of such appointing powers is purely auxiliary, depending upon the pendency of a suit seeking some other and ultimate relief which is within the jurisdiction of the court. * * * It is not only essential that the petition should state grounds calling for the appointment of a receiver to take charge of the property involved in the litigation, but it should also show upon its face an independent cause of action within the jurisdiction of the court.”

In Continental Trust Co. v. Brown, 179 S. W. 939, the San Antonio Court of Civil Appeals ruled as follows:

“Hildebrand and Hopkins are not suing the Boston & Texas Corporation, except that they ask for a receiver. So, as to them, it is purely a suit for a receiver, and the courts of this state, as well as all other recognized authorities, have uniformly held that a bill which has for its sole object the appointment of a receiver will not be entertained. This court has only recently so held in an opinion written by the Chief Justice. Toomey v. First Mortgage Trust Co., 177 S. W. 539. A receivership is ancillary to the main suit where a cause of action exists and is asserted independent of such receivership. * * *»

See, also, Williams v. Watt, 171 S. W. 268. It follows from what has been said that it is tlie opinion of this court that the judge of the court below was without authority to appoint a receiver under the allegation of the petition exhibited to him. It is therefore ordered that the judgment be reversed and the order appointing a receiver vacated, and the receiver discharged. This obviates the necessity of a discussion of the other assignments of error presented by appellant in its brief. .

At the time of the submission of this case the appellee presented, a motion to dismiss the appeal therein, the reason suggested therefor being that the question submitted to this court for adjudication is a moot question and purely academic, and that it does not involve any substantial issue or genuine controversy. This contention is based upon the fact that upon the same day in which the district judge of Brazoria county appointed I-I. O. Wooten receiver, but at a later hour of the day, a receiver for the property of the appellant corporation was appointed by the United States District Court for the Southern District of Texas, upon the application of the Freeport Texas Company, a Delaware corporation, without notice. Attached to the motion as exhibits are: (1) A certified copy of the petition of the Freeport Texas Company, which is in the nature of a creditors’ bill, in which, as such creditor, it sought to subject the property of the corporation to the payment of its debt, bringing the suit for itself and for all creditors of the appellant similarly situated, and praying for the appointment of a receiver as an ancillary remedy; (2) a certified copy of the order of the judge of said court appointing a receiver ; and (3) the oath; and (4) the bond of the receiver.

Appellee contends with much earnestness, in effect, that the fact of the appointment of a receiver in another forum, from which no appeal is taken, and which is apparently acquiesced in by the appellant, brings the case within that class of cases illustrated by the case of Telegraph Co. v. Galveston, 59 S. W. 589, in which it was held that, when the subject-matter of controversy between the parties to a suit has ceased to exist, the courts will not try the ease to determine the question of what the rights of the parties are, or, as stated by Chief Justice Roberts in Lacoste v. Duffy, 49 Tex. 768, 30 Am. Rep. 122, it has not been customary in our courts to decide questions of importance after their decision has become useless.

We are unable to appreciate the force of appellee’s contention in this regard or the applicability of the principle enunciated in the case relied upon by him. The subject-matter of the litigation has not been destroyed nor ceased to exist by reason of the action of the United States District Court, or otherwise. Our statutes authorize appeals from interlocutory orders appointing receivers, and in appealing in this case the appellant was exercising a legal right, and has the right to have its appeal determined upon its merits. What some other court has done, or what it may do, in case the order appointing a receiver, when tried out on its merits, may be vacated, is a matter with which this court cannot concern itself.

We think the motion to dismiss the appeal should be overruled; and it has so been ordered.

Reversed and rendered.
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