text:
    W. C. MUNN CO. v. WESTFALL.
    (No. 7386.)
    (Court of Civil Appeals of Texas. Galveston.
    June 19, 1917.)
    1. Appeal and Error <&wkey;731(l), 740(1) — -Scope op Review — Assignments op Error —Sufficiency.
    An assignment of error that the verdict was contrary to the evidence and was not supported by it, in that plaintiff’s testimony was not corroborated, but was contradicted, is too general, and is multifarious.
    2. Appeal and Error &wkey;>742(4) — Scope op Review — Assignments . op Error — Sufficiency.
    An assignment of error that evidence of one witness was insufficient to support the verdict, having neither a proper proposition nor statement following it, cannot be considered.
    3. Libel and Slander <&wkey;121(l) — Excessive Damages.
    A verdict of $1,500 in favor of a woman who was accosted on the streets with the demand that she permit defendant’s servant to examine certain bundles under 'accusation that she was a thief and a shoplifter was not excessive.
    4. Witnesses <§=^318 — Evidence — Character op Plaintiff.
    In action for damages by accusation of shoplifting, where the defendant had made no attack upon plaintiff’s good character, it was improper to ask plaintiff whether she had ever before been accused of any dishonest act.
    5. Appeal and Error <&wkey;>1048(5) — Harmless Error.
    But the mere asking of such question is not ground for reversal if the question was not answered.
    6. Appeal and Error &wkey;>1050(l) — Harmless Error.
    In action for damages by false accusation of shoplifting, where plaintiff’s employer testified that he had told defendant that defendant’s employé had held up plaintiff without pretending to know the truth of such statement, admission of the testimony was no ground for reversal.
    7. Trial <&wkey; 133(2) — Argumeni^Cure of Error.
    Improper argument of counsel is no ground for reversal, where the court specifically instructed that the jury must find its verdict according to the pleadings and evidence, and not the argument.
    8. Trial <&wkey;133(5) — Argument—Cure of Error.
    While it is improper for counsel to say that he thinks a transaction in question did happen, the error is cured by a specific instruction not to regard the argument of counsel.
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Action by J. E. Westfall against the W. C. Munn Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    E. B. O’Quinn and D. E. Simmons, both of Houston, for appellant. L. E. Blankenbeeker, of Houston, for appellee.
   LANE, J.

This suit was instituted by J. E. Westfall against W. O. Munn Company, a mercantile corporation, and for cause of action, among other things, he alleges, that on the 19th day of April, 1915, the W. O. Munn Company was a corporation conducting a mercantile business in the city of Houston, Tex.; that on said date Mrs. Emma West; fall, wife of plaintiff, visited the store of defendant to make purchases; that after she left said store and was upon the streets of Houston, one of defendant’s agents and servants accosted her and demanded that she, said agent, be permitted to examine certain bundles which plaintiff’s wife had in her possession; that said agent and servant stopped plaintiff’s wife upon said street and hastily and in an angry and threatening manner grabbed said bundles from her hands and accused her of being a thief and shoplifter and of stealing from defendant’s store; that such act of defendant’s said agent and servant was done in her capacity as such agent and’ in line of her employment as detective for defendant, etc. Plaintiff also alleged that such acts and conduct of said agent and servant greatly humiliated his wife and caused her much mental anguish and physical pain, to plaintiff’s damage in the sum of $2,500, for which he prays judgment. Defendant answered, denying all the allegations of plaintiff’s petition wherein it is charged that defendant’s agent and servant accosted, searched, or assaulted plaintiff’s wife, or wherein it is charged that said agent accused plaintiff’s wife of being a shoplifter and thief. It further specially says that if any person in its employ did the acts and made the utterances to and toward plaintiff’s wife alleged in plaintiff’s petition, such acts and utterances on the part of such employe were not acts done within the scope of the authority of said employe, hut were acts unauthorized by defendant, and for which it is not liable. The case was tried before a jury, and a verdict returned in favor of plaintiff, J. B. Westfall, against W. O. Munn Company for the sum of $1,500, and judgment was accordingly rendered.

By the first assignment it is stated that the verdict of the jury is contrary to the evidence and is not supported by it, in that, the testimony of the plaintiff, Mrs. Eimma Westfall, is not supported or corroborated by the testimony of a single witness, while Mrs. E. I. Smith and Mrs. E. J. Baeher absolutely contradict the testimony of Mrs. Emma Westfall. Then follows, as a part of the same assignment, an argument covering more than three pages of appellant’s printed brief, discussing the effect of the testimony of several witnesses. The assignment is too general, is multifarious and is incumbered with reasons and arguments tending to obscure the point intended to be presented, rather than to distinctly specify the grounds relied upon for reversal of the judgment complained of. An assignment, to be sufficient, should distinctly point out or specify the grounds relied upon for a reversal of the judgment, and if it is not, it should not be considered by the appellate court. S. A. & A. P. Ry. Co. v. Timon, 45 Tex. Civ. App. 47, 99 S. W. 418; Hardy v. Lamb, 152 S. W. 650; Hodo v. Bank, 88 Tex. 523, 32 S. W. 511; Stevens v. Ins. Co., 26 Tex. Civ. App. 156, 62 S. W. 824; Bourland v. Schulz, 39 Tex. Civ. App. 572, 87 S. W. 1167.

The simple proposition evolved out of the mass of matter, reasons and argument, etc., contained in the assignment is that the testimony of the one witness alone, Mrs. Westfall, is insufficient to support the verdict of the jury, because it is contradicted. There is no contention that the evidence as a whole does not support the verdict of the jury, nor even that the testimony of Mrs. Emma West-fall, wife of the plaintiff, alone was insufficient to warrant the jury in finding a verdict in favor of plaintiff, but only that her testimony is not supported or corroborated by other witnesses, while, on the other hand, her testimony was directly contradicted by witnesses Mrs. Smith and Mrs. Bacher. The assignment is insufficient to raise the issue as to whether the evidence is sufficient to support the verdict of the jury and the judgment. It has neither a proper proposition nor statement following it. However, if we should consider the assignment, we would hold that the testimony of Mrs. Westfall was sufficient to support the verdict of the jury. By the second assignment it is insisted that the verdict and judgment for $1,500 is excessive.

Since the evidence is sufficient to support the finding of the jury that Mrs. West-fall suffered the wrongs at the hands of the agent and servant of appellant as alleged in plaintiff’s petition, the judgment for $1,500 is not excessive, and we do not feel authorized to interfere with the judgment so rendered upon the ground that it is excessive. The assignment is overruled.

Tne third assignment is as follows:

“The judgment of the court herein is contrary to the law as applied to the facts shown by the evidence introduced on the trial of this cause, and in view of the improper argument made by the counsel for plaintiff during his argument to the jury, an improper remark made by counsel for plaintiff during the trial of said cause, which latter will be treated in another ground of this motion.”

The assignment is vague, indefinite, and multifarious. It is followed by no proposition, nor is it a proposition within itself. Nor is it followed by any statement in its support.. The remarks following this assignment in appellant’s brief is in no sense a statement in support of the assignment, but is an argument of counsel. We cannot intelligently discuss the assignment as presented. We therefore decline to consider the same.

By the fourth assignment it is insisted that, while Mrs. Westfall, the alleged injured party, was testifying she was asked by counsel for plaintiff, over the objection of 'defendant, if she had ever been accused of any dishonest act before the alleged accusation involved in this case; and that she replied that she had not been so accused. It is urged that the admission of such question and answer by the court was error, because no attack had been made upon the character of the witness by defendant, and therefore it was not permissible for plaintiff to introduce evidence to show the good character and reputation of the witness. In approving the bill of exception reserved to the matter complained of in the assignment, the trial judge qualified the same as follows:

“Approved, with the qualification that the statement of facts does not show the introduction of any such testimony, nor is such recalled as having been introduced; that is to say, the question was -not answered.”

The question complained of was improper,, and should not have been asked, but the bill as- qualified presents no reversible error. The assignment is therefore overruled.

The fifth assignment is as follows:

“The court erred in admitting the following testimony, in that, while Bernard Hamilton, a witness for plaintiff, was on the stand, on direct examination, among other things, he made the following statement: T rang the Munn Company and stated that I would like to speak to the manager. I told him that Mrs. Westfall had been held up in the entrance to the Bice Hotel, and that I did not think that was the way for anybody to be treated, and that it was a personal matter with me for one of. my employés to be treated that way,’ to which statement by the witness, and especially that part thereof, to wit, ‘I told him that Mrs. Westfall had been held up in the entrance to the Bice Hotel, and that I did not think that was the way for anybody to be treated,’ defendant objected, and asked that it be stricken from the record, and that the jury be instructed not to consider the same, for the reason that such statement made by said witness was the attempted statement of, or assuming of, a fact about which the witness knew nothing except from hearsay, as shown by the testimony prior thereto of said witness, and same was hearsay, assuming, inadmissible for any purpose, and highly prejudicial to defendant, which objection was, by the court, overruled, with the further statement by the court that, ‘He can certainly tell what notice he brought home to you.’ ”

The bill of exception reserved to the matter complained of in the assignment was qualified by the court in the following words:

“The exception is approved with the qualification that the answer to the question was made before objection was raised, and no motion made to exclude the answer-, and counsel for plaintiff, after answer made, stated to the court and jury that the witness could not know anything of the truth of what he reported.”

We do not think the bill of exception as qualified presents reversible error. While the testimony was not admissible, we are inclined to the view that as it is shown by the testimony of the witness as a whole that he did not pretend to know or say that the statement he made over the phone was true, but that he was only repeating what Mrs. Westfall had told him, it was not calculated to improperly affect the verdict of the jury, and therefore it presents no reason for a reversal of the judgment rendered, even had the court not qualified the bill.

By the sixth and seventh assignments complaint is made of argument alleged to Rave been made by counsel for plaintiff. The bills of exception reserved, showing appellant’s complaints, were both' qualified by the trial court, in which qualification the court stated that counsel made no such argument as alleged by appellant so far as the court heard. It is made to appear by the bill of exception in support of the sixth assignment that during the controversy between counsel as to what was said by plaintiff’s counsel in argument, the trial court instructed the jury as follows:

“The court instructs the jury that the case, as submitted to you, is based upon the pleadings and the evidence admitted under the pleadings, and from this alone you must determine your verdict. The plaintiffs are not entitled to recover herein any damages by reason of any allegations contained in the defendant’s pleadings, nor by ’ reason of any testimony adduced upon the trial which is not strictly in support of the pleadings of plaintiff. And you are further instructed that you will not consider, in arriving at your verdict in this case, the statement of counsel for plaintiff that the defendant’s pleadings are a perpetual memorial against her good name and reputation.”

The qualification of the court to this bill is as follows:

“The foregoing is approved with the qualification that it is not to be understood by the instruction of the court to the jury that the court is undertaking to say that counsel for plaintiff said that the defendant’s pleadings ‘are a perpetual memorial against her good name and reputation.’ The court, not having heard the language used by counsel for plaintiff, was simply giving an instruction to the jury to safeguard, as far as he could, the defendant’s interest against language which its counsel charged that plaintiff’s counsel had used, and which plaintiff’s counsel disclaimed having used.”

The qualification to the other bill is as follows:

“The foregoing bill is approved with the qualification that what actually took place is substantially as follows: Counsel for plaintiff said this instead of the statement above: ‘That men could hardly conceive of a woman who was so zealous in a matter of this kind that when apprehending women she would have them confess and reduce their confessions to writing.’ Counsel also said, substantially, that the evidence showed Mrs. Westfall to be a working woman at Hamilton Bros., honest, earning her own living, attending to her own business, and who had always borne a good reputation, and asked the jury to compare her with the witness Mrs. Bacher, who put pride in her scalps, in her confessions, and who could not be satisfied with apprehending women, but was of that zealous nature that she wished their confessions to be in writing. The witness Mrs. Bacher apparently had brought to court with her a box in which she kept confessions of those she had caught and 'apprehended and stated on the stand several times, voluntarily without questioning, substantially, ‘Here are my confessions,’ T can show you my confessions,’ T have got a box full of them there,’ and, ‘Do you want to see them?’ and were referred to under cross-examination as ‘scalps,’ the witness stating substantially, ‘You bet we do keep^ a lookout for scalps.’ Counsel for plaintiff did use substantially the language attempted to be quoted in, tlie second paragraph of the bill, with the exception that counsel did not say that the suit would cause the witness to lose her job, or that she was interested in the suit because of her job, but said substantially that while the plaintiff, Mrs. West-fall, was an interested.witness, nobody was more interested in the result of this suit than the witness Mrs. Bacher, but he did not say or insinuate that the result of the suit might cause Mrs. Bacher to lose her job. That he did say substantially that she was vitally interested because, in his opinion, she did not want her conduct to be held against her in the future as a reflection upon her conduct as a detective.”

Neither of the bills of exception as qualified, in view of the instruction given in relation to the matters complained of by appellant, presents reversible error, and they are therefore overruled.

During the trial of the cause and while plaintiff’s witness Hamilton was on the stand, the colloquy, remarks, and instruction from the trial court, as indicated below, took place:

“Blankenbecker (for plaintiff): Q. Did you, or not, tell the gentleman you were talking to over the phone that one of his detectives had stopped her and apprehended her and searched her? A. I did.
“Mr. O’Quinn (for defendant): I object to the question and answer in that form.
“Mr. Blankenbecker: What form?
“Mr. O’Quinn: You assume that such a transaction actually happened.
“Mr. Blankenbecker: I think it did.
“Mr. O’Quinn: I take exception to the remarks of counsel that he thinks it did happen.
“The Court: I instruct the jury not to regard the remarks of counsel. They will find their verdict from the evidence admitted by the court on the witness stand. Strike out the answer made.”

Appellant excepted to "the statement of counsel for plaintiff, “I think it did,” and makes such remarks the basis of its eighth assignment of error. The remarks of counsel complained of were improper, but in view of the instruction of the court relative to such remarks, as shown above, it is not at all probable that injury resulted to appellant therefrom.

We have discussed and disposed of all of appellant’s assignments, and we find no 'such error in the trial of the cause as should cause a reversal of the judgment rendered by the trial court; therefore such judgment is affirmed.

Affirmed.
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source: Caselaw Access Project

author: LANE, J.

license: Public Domain

text:
    FRICK et al. v. GIDDINGS et al.
    (No. 7424.)
    (Court of Civil Appeals of Texas. Galveston.
    June 19, 1917.)
    1. Appeal and Error <&wkey;544(l) — Review— Insuiwicient Record.
    There being no statement of facts with the record, nor bills of exceptions therein, assignments complaining of findings of fact of the trial court, or the refusal of said court to find facts requested, cannot be reviewed.
    2. Appeal and Eeboe &wkey;223 — Fundamental Error — Void Decebe.
    If the plaintiffs have described in their petition and sued for one tract of land, and the judgment delctreed to them another different tract, the decree would be void; and if the record discloses such condition, it would disclose fundamental error, which may be complained of for the first time on appeal.

      3. JUDGMENT <&wkey;248— CONFORMITY TO Pleadings— Evidence.
    In an action for title to land, held, that description given in petition and that given in the judgment described one and the same tract of land, and that the judgment was not void.
    4. Judgment <S&wkey;248 — Conformity to Pkad-ing — -Description of Land.
    The description in a judgment, sufficient to identify the land as that described in the petition, is sufficient; and a more comprehensive description 'in the judgment than that given in the petition does not render the judgment void.
    5. Appeal and Error &wkey;»907(3) — Absence of Statement of Fact — Presumption.
    In the absence of a statement of facts, it will be presumed on appeal that the evidence supported the court’s findings.
    6. Appear and Error &wkey;3265(l) — Exceptions to Findings — Necessity.
    Where plaintiffs reserved _ no exception to the court’s findings, this court is not called upon to consider complaints made of such findings in the motion for new trial.
    Error from District 'Court, Harris County; Charles E. Ashe, Judge.
    Suit by D. C. Giddings, in his own behalf as executor of the estate of D. C. Giddings. deceased, and as next friend and trustee for Mabel Wilkins and others, minors, against Joseph Frick and another. Judgment for plaintiffs, and defendants bring error.
    Affirmed.
    A. F. Sundermeyer, of Houston, for plaintiffs' in error. . Campbell, Myer, Myer & Freeman, of Houston, for defendants in error.'
   LANE, J.

This suit was instituted by D. C. Giddings, in his own behalf, as executor of the estate of D. C. Giddings, deceased, and as next friend and trustee for Mabel, Marion, and Lillian Wilkins, minors, against Joseph Frick and A. F. Sundermeyer, for title to 55.1 acres of land situated in Harris county, Tex.

It is alleged in plaintiffs’ petition: That they are the joint owners of 55.1 acres of land, situated about 15 miles north from the city of Houston, and being out of and a part of the Washington County Railroad Company section No. 23, block 4; said tract being described by metes and bounds as follows:

““Beginning at a point in the east line of Washington County R. R. Sec. No. 23, block 4, same being 1,900 varas south of and 1,520 varas west of the N. E. corner of the J. B. Sanders survey, in the west line of the old abandoned Richardson survey, said point being- a stake in the center of the North fork of Green’s bayou; thence west 1,259 varas, along fence and a partially constructed fence, to its N. W. comer; thence south 263 varas, along fence, to the south line of section 23, Washington County R. R. survey, block 4, said point being the S. W. corner of the tract of land here described; thence east, along the fence erected on the south line of Sec. 23, 1,259 varas, to the S. E. corner of an old fence, being the S. E. comer of said section 23, Washington Co. R. R. survey, block 4; thence north along said old down fence, being the east line of said section 23, 263 varas, to the place of beginning.”

That on or about the 1st day of January, 1913, the defendants unlawfully entered upon said premises and ejected the plaintiffs therefrom, and unlawfully withheld from them the possession thereof, to their damage in the sum of $3,000.

Defendants answered by pleas of general denial, not guilty, and the five-year statute of limitation in bar of plaintiffs’ alleged cause of action. The case was tried before the court without a jury, and judgment was' rendered for plaintiffs. In said judgment the land recovered is described as follows:

“55.1 acres of land situated about 15 miles north from the city of Houston, Tex., and being out of and a piart of the Washington County Railroad Co. section No. 23, block 4, said tract being described by motes and bounds as follows, to wit: Beginning at a comer in the east line of said Washington County Railroad Company section 23, block 4, at a point 1.900 varas south and 1,900 varas east of the S. W. comer of section 14 of the Washington Cbunty R. R. Co. survey, block 4, said point also being 1,399 varas N. of the north line of the T. N. Dorsett survey, and being also at a point in the fence line along the northern boundary of section 22, Washington County R. R. Co. survey, block 4, where an old fence running north intersects therewith, this said point being the S'. E. corner of saffi section 23. Thenco Ñ. along said old fence line, the same being the east line of section 23, 263 varas, to a point where said old fence line intersects another fence line running east and west. Thence west, and parallel with the south line of section 14, Washington County Railroad Co. survey, along a fence line and partially constructed fence line, 1,259 varas, for comer. Thence south, along the fence line, 263 varas, to a point, the same being the N. E. comer of section 24 and the N. W. comer of section 22, Washington County Railroad Company survey, block No. 4, as said two surveys are now fenced; said point being 1,399 varas N. of the north line of the T. N. Dorsett survey. Thence east from said point, along the N. line of section 22 as fenced, 1.259 varas, to the place of beginning. Said land being a rectangle o-ut off the S. E. corner of section 23.”

There is no statement of facts with the record, nor is there any bill of exception in the record. We are therefore in no position to consider such of the assignments of plaintiffs in error as complain of the findings of fact of the trial court, or the refusal of said court to find facts requested by plaintiffs in error. The only question presented which requires our consideration is presented by the first assignment, which was not filed in the trial court. We are of the opinion, however, that, if this assignment presents error at all, it presents fundamental error, and can be presented for the first time on appeal.

The first assignment, in effect, is that the court erred in rendering judgment in favor of defendants in error for the land described in said judgment, because the land there described is not the same as that described in the plaintiffs’ petition, but is other and different land, and therefore the trial court was without authority to render a judgment for defendants in error for land not described in their petition. The contention of plaintiffs in error is, first, that the judgment, in describing the land sued for, must follow and be confined to the exact • description of the same ,given in the petition; second, tiat, if they be in error in the first proposition, then they say the description given in the judgment in this cause does not identify the land as being the same land sued for by plaintiffs, and therefore the judgment does not adjudicate and determine the controversy between the parties as made by the pleadings, and for such reason is void.

If, as contended for by plaintiffs in error, the plaintiffs in the trial court have described in their petition and sued for one tract of land, and the judgment of the court has decreed to them another and different tract from that so described, such decree would be void, and if the record discloses such conditions, it would disclose fundamental error, which may be complained of for the first time on appeal, without assignment in the trial court. But we are unable to agree that the record discloses any such error. The description 'of the land sued for is 55.1 acres of land situated about 15 miles from the city of Houston, and being out of and a part of the Washington County Railroad Company section No. '23, block 4, and is further described as beginning at a point in the east line of said Washington County Railroad Company section 23, block 4, at a stake set in the center of the north fork of Green’s bayou; thence west 1,259 varas with a fence for its N. W. corner; thence south 263 varas along another fence to the south line of said section No. 23 of Washington County Railroad Company survey, block 4, for its S. W. corner; thence east, along a fence on the south line of said section 23, 1,259 varas, to the southeast corner of said section 23, for its southeast corner; thence north, along the east line of said section 23, 263 varas, to place of beginning. These field notes describe a rectangular tract of land in the southeast corner of said section 23, to begin in the east line of said section at a point 263 varas from its southeast corner; its north line to run thence west 1,259 varas, parallel with the south line of said section 23; its west line to run south 263 varas, parallel with the east line of said section 23, to the south line thereof ; its south line to run east with said south line of section 23, 1,259 varas, to the southeast corner of the same; and its east line to run with the east line of said section 23 to place of beginning. The essential description of the land decreed to plaintiffs by the judgment is as follows:

'‘55.1 acres of land situated about 15 miles north from the city of Houston, Tex., and being out of and a part of Washington County Railroad Co. section No. 23, block 4,” beginning at the southeast corner of the Washington County Railroad Company section 23, block 4; thence along and with the east line of said section 23, 263 varas, for its northeast comer; thence west 1,259 varas for its northwest comer; thence south 263 varas for its southwest corner (this last call establishes the southwest corner in the south line of said section 23); thence east 1,259 varas to place of beginning (which is the southeast corner of said section 23).

The concluding words of the descriptive matter in the judgment are as follows:

“Said land being a rectangle out of the southeast corner of section 23.”

While there are many calls for fence lines and other objects in the two sets of calls, those in the petition and those in the judgment, which we have omitted from our description in the above discussion, we have carefully set out the essential calls in both the said descriptions, and have reached the conclusion that the description given in the petition and that given in the judgment describe one and the same tract of land, and that the judgment is not void because it describes a different tract of land from that sued for, as contended by plaintiffs in error. We must presume, in the absence of a statement of facts, that the evidence was sufficient to show the location of the south and east lines of section 23 called for in the description set out in plaintiffs’ petition, as well as all the boundary lines of the land sued for.

We cannot sustain the contention of plaintiffs in error that, in describing land sued for, the ■ description in the judgment should necessarily follow and be confined to the description given in the petition of the plaintiffs. A description in the judgment sufficient to identify the land as that described in the petition is sufficient, and by no means would a more comprehensive description in the judgment than that given in the petition render such judgment void. Reed v. Cavett, 1 Tex. Civ. App. 154, 20 S. W. 837; Wilhelm v. Baumann, 133 S. W. 292; Johnson v. Gary, 157 S. W. 237; Jones v. Andrews, 72 Tex. 5, 9 S. W. 170; Richardson v. Powell, 83 Tex. 588, 19 S. W. 262.

The findings of fact by the court support the judgment rendered, and in the absence of a statement of facts we must presume the evidence supported such findings; and, besides, plaintiffs in error reserved no exception to such findings, and in the absence of such exception we are not called upon to consider complaints made of such findings in the motion for new trial.

What we have said disposes of all of the assignments, and, as we find no error in the judgment of the trial court, it is in all things affirmed.

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

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


author: HALL, J.

text:
    NATIONAL LIFE & ACCIDENT INS. CO. v. REAMS.
    (No. 1194.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 13, 1917.)
    1. INSURANCE <&wkey;360(l) — Reinstatement-Insurer’s Liability After Default.
    An accident policy was issued to plaintiff June 2Sth, and provided that plaintiff was insured from 12 o’clock noon of the day of the contract until 12 o’clock of the 1st day of August, “and for such further periods stated in the renewal receipts as the payment of the premium specified in said schedule will maintain this policy and insurance in. force.” The policy provided that, if the payment of any renewal premium was made after the expiration -of the policy or the last renewal receipt, neither the assured nor beneficiary will be entitled to recover for any accident or .injury happening between the date of such expiration and 12 o’clock noon, standard time, of the day following the date of such renewal payment, * * nor shall the acceptance of an overdue premium or nremiums constitute a waiver of the requirement that all renewal premiums be paid in advance as specified in this contract. The acceptance of any renewal premium shall be optional with the company.” The premium due on December 1st was not tendered until December 7th, three days after plaintiff’s injury, and was refused by the company. Held, in an actiori on the policy, that it was not in force at the time of the injury.
    2. INSURANCE <&wkey;>388(4) — -Payment oe Premiums — Time—Waiver.
    There was no waiver by the company by reason of the fact that it had theretofore accepted premiums from the insured after the first of the month.
    3. Evidence &wkey;441(13) — Parol Evidence^ Agreements Not Embodied in Insurance Application ok Policy.
    Plaintiff was permitted to testify at 'the trial that, at the time he was solicited by the company’s agent, the agent told him that he would see that the policy would never lapse, and that there was a personal understanding that the policy would be kept in force “if I was out of the city three, four, or five days after the first day of the month.” Held, that the testimony was improperly admitted, in view of Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 4953, providing that “every policy of insurance issued or delivered within this state on or after the first day of January, 1910, by any life insurance company doing business within this state, shall contain the entire contract between the parties, and the application therefor may be made a part thereof,”, and article 4968-, providing that the agent shall be regarded as agent of the company, but shall not have power to waive, change, or alter any of the terms or conditions of the application or policy.
    Appeal from Dallas County Court; T. A. Work, Judge.
    Action by T. B. Beams against the National Life & Accident Insurance Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Bead, Lowrance & Bates, of Dallas, for appellant. Allen & Allen, of Dallas, for ap-pellee.
   HALL, J.

Appellee sued appellant company for the sum of $300 as indemnity, $50 as attorney’s fees, and 12 per cent, statutory damages, alleged to be due him under the terms of a policy of accident insurance issued to him June 28, 1910. He alleged that he sustained injuries as the result of an accident on December 4, 1914, and was totally disabled for a period of 12 weeks from that date. The insurance company defended on the ground that the policy had lapsed on account of plaintiff’s failure to pay the premium, which, under the terms of the policy, was due December 1, 1914. It was further alleged that the claim, if any, had been settled on December 19, 1914, and that appellant had been released. By a supplemental petition, appellee ’set up a waiver on the part of appellant of its right to forfeit his policy for nonpayment of premium, and alleged that plaintiff received a check from the defendant in the sum of $100 on December 19, 1914, but that said check was in payment of a prior liability under said policy and had no connection whatever with the injuries involved in this suit. It appears that the policy was issued June 28, 1910, and its duration was governed by the following stipulation:

“Does hereby insure T. B. Beams, the person described in said schedule (hereinafter called the assured), subject to the provisions, conditions and limitations herein contained and indorsed hereon from 12 o’clock noon, standard time, of the day this contract is dated, until 12 o’clock noon, standard time, of the first day of August, 1910, and for such further periods stated in the renewal receipts as the payment of the premium specified in said schedule will maintain this policy and insurance in force, to wit:” (Here follows schedule of contingencies and the amount of indemnity payable upon the happening of such contingencies.)

Among other provisions, the policy contained the following:

“N. If the payment of any renewal premium shall be made after the expiration of this policy of the last renewal receipt, neither the assured nor beneficiary will be entitled to recover for any accidental injury happening between the date of such expiration and 12 o’clock noon, standard time, of the day following the date of such renewal payment, nor for any illness originating b'efore the expiration of thirty days after the date of such renewal payment, nor shall the acceptance of an overdue premium or premiums constitute a waiver of the requirement that all renewal premiums be paid in advance as specified in this contract. The acceptance of any renewal premium shall be optional with the company.”
“P. The company may cancel this policy at any time without prejudice to the rights of the assured to any claim then pending by a written notice of cancellation, served upon or mailed to the address of the assured, as it appears of record with the company, together with the company’s check for the unearned portion, if any, of the premium paid, which check shall be sufficient tender.”
“R. An agent has no authority to change this policy nor to waive any of its conditions. Notice to or from him shall not be held to effect a change or waiver of this policy, or any conditions thereof. No assignment or change of this policy or waiver of any of its conditions, shall be valid unless agreed to in writing by an executive officer of the company and indorsed hereon.”

The schedule of warranties made by the assured attached to the policy and made a part thereof contains this statement, signed by the assured:

“(16) I understand and agree that this insurance is not effective until the policy has actually been issued by the company and delivered to me, and the policy fee or premium paid; that the company is not bound'by any knowledge or statement made by or to any agent unless written hereon. I further agree to accept the policy subject to all its conditions and pay the monthly premium of $2.50 in advance without notice. I have carefully read all the foregoing, particularly my warranty of the truth of the facts herein stated.”

The premium receipt book issued to plaintiff with the policy had printed on the front, outside cover this notice, “Read notice on second page of cover.” And the notice referred to is as follows:

“The next payment of your premium is due and must be paid on or before the date named herein. Future premiums are due and must be paid on or before the first of each month thereafter without further notice, or your policy and insurance will be void. Each and every premium payment accepted or receipted for herein is accepted subject to all the provisions and conditions of the policy on which said premiums are paid, particularly paragraph ‘N’ of said policy, should receipt be given therefor, upon the express condition that neither the assured nor the beneficiary will be entitled to recovery for any accidental injury happening between the date on which the last renewal premium was due and 12 o’clock noon, standard time, of the day following the date of any such receipt herein given, nor for any illness originating before thirty days have elapsed after the date of any such receipt here given, and each and every such receipt herein entered is taken by the insured upon the foregoing conditions, by which acceptance all such claims of indemnity are waived.”

By the second notice, printed on the second page of the premium receipt boob, it is provided that, if any premium is not paid on or before due date, the policy lapses and the insurance is void until the policy is revived and reinstated as provided in paragraph N, and that no indemnity will be paid for any injury sustained or any illness contracted or beginning after the policy lapses and before it is reinstated; and, further, that no indemnity will be paid for any illness contracted, beginning within ten days after the policy is reinstated, if the assured is in arrears over five days.

The premium due, according to the terms of the policy, on December 1st, was not tendered until December 7th. The appellee was injured by a fall on December 4th, and sent a check to appellant for the purpose o'f paying the premium on the 7th, which was refused. It appears that he was in Dallas and went to appellant’s office with a check on December 1, 1914, for the purpose of paying the premium; but his visit was made so late in the afternoon that he found the office closed, and no further effort was made to pay it until after the injury on December 4th. The facts relie'd on by appellant as a waiver of the forfeiture are pleaded by him as follows:

“And specially denying so much of paragraph 5 of said answer as sets up a forfeiture of said policy by reason, of nonpayment of the monthly premium for the month of December, 1914, plaintiff says that his policy of insurance sued on herein contained, as stated by the defendant, pleaded by it the several clauses pleaded in said amended answer, but that as a matter of fact the defendant at the time of the issuance of its policy herein was notified by the plaintiff that he was a traveling salesman and would necessarily be at different places on the first of several months at which time his monthly premium of $2.50, according to the terms of said policy, would fall due, and the said defendant then and there at time of delivery of said policy agreed that the plaintiff could remit said $2.50 monthly at any time during the current month at which it fell due, and plaintiff did from time to time so pay and remit to the defendant, and the defendant accepted his said payment without question up to and including the year 1914, and as shown by one receipt of February 6, 1914, issued by the cashier of defendant at Birmingham, Ala., acknowledging the receipt on February 6, 1914, of $2.50 due for a certain month, as shown by said receipt, which is hereby attached, marked ‘Exhibit A,’ and made a part of this petition, and also as shown by receipt dated October 5, 1914, showing the receipt of the payment of $2.50 on that date, signed T. O. Natsor, Sup., marked ‘Exhibit B,’ and made a part of this petition; and the defendant continued said course of dealing with this plaintiff up to and including the month of December, 1914, as will be shown by the last premium receipt book, delivered to plaintiff by defendant, which book is now in the possession of the defendant,” etc.

It is further alleged that the appellant, by its continued course of dealing, in the acceptance of premiums, after the first of each month, is estopped from claiming or asserting a forfeiture of said policy for such nonpayment of premium.

In support of this plea it was shown that from August 1, 1910, up to and including December 3, 1912, only four of the monthly premiums were paid on the 1st of the month, and that the payments for October, November, and December were made after the 1st of the month. Plaintiff also introduced in evidence two letters from the home office at Birmingham, Ala., showing that his payments for February and October, 1914, were received on the 6th and 5th of said months, respectively. The appellee testified that at the time he was solicited by the appellant’s agent, Mr. Dye, to apply for a policy, he had a policy with the Continental Casualty Company of Chicago, and that Dye told him, if he would cancel the policy with the Casualty and take it up with the National Life, “that he would see that as I was traveling considerably the policy would never lapse, and there was a personal understanding with him and with the office that the policy would be kept in force, with the assurance from me that I would not drop the policy without giving them 30 days’ notice, and then on their part they would not drop it if I was out of the city 3, 4, or 5 days after the 1st of the month.” Mr. Dye was in charge of the office at Birmingham at that time and took the application and delivered appellee the policy. The case was tried before the court without a jury, and from a judgment in favor of appellee this appeal is prosecuted.

Appellant assigns as error first that the court erred in holding that the policy was in force at the date plaintiff sustained his injuries. The first two propositions urged under this assignment are that the policy of insurance sue'd upon is not one which either party might require the other to continue in effect, but merely provided for insurance from month to month contingent upon the payment by the insured and the acceptance by the insurer of the stipulated premium •upon the 1st day of each month, and that it was renewable on the 1st day of each month by the mutual agreement of the parties, and that, plaintiff having failed to renew the contract by promptly paying the premium on December 1st, the policy lapsed by its own terms, and there was no waiver by the company by reason of the fact that it had theretofore accepted premiums from the insured after the 1st of the month, because the policy contained a provision that the premiums might be paid after their due dates, but protected the company in such case against liability, if any accident which might have happened to the insured between the date when the premium was due and noon of the day following the date of payment, and that plaintiff had failed to allege or prove that the company had ever accepted a premium from him and paid him any claim for indemnity between the date when the premium was due and noon of the day following the date of payment of such premium.

These propositions must be sustained. The case of Crosby v. Vermont Accident Ins. Co., 84 Vt. 510, 80 Atl. 817, is the leading authority upon insurance contracts of the character •under consideration. There it is said:

“The plaintiff contends that by the company’s •acceptance of the past-due premiums in the ■months of February, March, April, and May, respectively, 1909, as above stated, he was led to 'believe that he might make payment of the premium at any time during the month for which it was due, and that, notwithstanding the premium •for June overdue and unpaid at the time of the accident, the company is estopped from claiming that the policy was not then in force. Yet the record does not show such a course of conduct on the part of the company as gave the plaintiff Just and reasonable ground to infer that a forfeiture would not be exacted. The provisions •of the contract respecting the payment of premiums at stated periods in advance, the effect of ¡a default therein, the option of the insurer tq receive past due premiums, and the effect of such acceptance, are material and reasonable between the insurer and the insured, and, in the absence of fraud or imposition, the plaintiff, by signing •the application, accepting the policy, and bringing suit on it, must be held to have had notice of, to have understood, and to have agreed to, ■the terms, the limitations, and conditions cited in the application and in the policy. (Citing .authorities.) The plaintiff knew that, unless he paid the monthly premium in advance on the date specified, the policy would lapse .and he would be without protection by his own fault. He also knew the effect of the acceptance of past-due premiums by the company in the exer•cise of its optional right to be, as expressly stipulated in the contract. There is no doubt that the course of conduct by the insurer may he ■such as to afford a basis for a reasonable excuse for defaulting a premium when due, but to have that effect something more than a course of action within the express terms of the policy— ■such only as was had in this instance — is required. It must be a course of conduct on which the insured had a right to rely as giving him a just and reasonable ground to infer that the forfeiture would not be asserted.”

■ While the record-in the instant case shows that appellant company received premiums a great many times after the 1st of the month, it was neither alleged nor proven that the company had ever accepted a premium from appellee after its due date and paid him a claim for indemnity under his policy on account of an accidental injury sustained by him between the date when the premium was due and noon of the day following the date of the payment of such premium. The mere receipt after its due date was nothing more than was contemplated by the terms of the policy, and could not, in the nature of things, be justly construed as a continuance of the contract, which by its terms expired on the 1st of the month if payment of the stipulated premium Trad not, on or before said date, been made. Many of the authorities draw a distinction between policies of the character under consideration, which, by their terms, are from month to month, .where the premium is payable in advance, and such payment extends the policy only for the specified term, and policies for indefinite or longer terms, providing for premium payments at stated intervals — holding, in cases of the former class, that if the required amount has not been paid on or before the day upon which the policy, by its stipulations expires, there is no contract; that the payment on such day is the making, of a new contract, and, since the failure by payment to renew the contract has abrogated it, there is nothing which the company can waive by the receipt of premiums after the expiration date. On the other hand, a life insurance policy, issued for a term of years, may provide for its lapse by failure to pay the annual, semiannual or quarterly premiums, and usually provides that the company may declare a forfeiture, but that the assured by a tender of the amount within 30 days after due date, accompanied by a health certificate, may revise the contract. The policy in the instant case provided that the company might, at its option, receive or reject any monthly tender and offer to renew the contract, and, under its clear and unequivocal terms, such acceptance, after the 1st of each month, should not he construed as a waiver, nor did it have the effect of bringing within the contract any damages resulting from injuries received between the 1st of the month and noon of the day following the payment; and in this particular the case is clearly distinguishable from the case of Equitable Life Assurance Soc. v. Ellis, 105 Tex. 526, 147 S. W. 1152, 152 S. W. 625, and other authorities of like character in this state.

The rule announced in the Crosby Case is sustained in other jurisdictions and by the weight of authority where the rights of the parties, under accident policies providing for payment of premiums in advance, and the termination of the contract upon failure to renew at stated intervals are involved. McMahon v. Travelers’ Ins. Co., 77 Iowa, 229, 42 N. W. 179; Lantz v. Vermont Life Ins. Co., 139 Pa. 546, 21 Atl. 80, 10 L. R. A. 577, 23 Am. St. Rep. 202; Plumer v. Continental Casualty Co., 12 Ga. App. 594, 77 S. E. 917. And the rule seems to have been adopted in this state. American National Insurance Co. v. Roberts, 146 S. W. 326; National Life Insurance Co. v. Manning, 38 Tex. Civ. App. 498, 86 S. W. 618.

Over the objections of appellant, appellee was permitted to testify to the agreement made with Dye hereinbefore set out, and the admission of this evidence is assigned as error. Article 4953, Vernon’s Sajdes’ Civil Statutes, provides:

“Every policy of insurance issued or delivered ■within this state -on or after the first day of January, 1910, by any life insurance company doing business within this state, shall contain the entire contract between the parties, and the application therefor may be made a part thereof.”

The effect of this statute is to preclude parol evidence of any agreements or undertakings at variance with the terms of the contract as evidenced by the policy and application. Article 4968, Id., is:

“Any person who shall solicit an application for insurance upon the life o'f another, shall in any controversy between the assured and his beneficiary, and the company issuing any policy upon such application, be regarded as the agent of the company, and not the agent of the insured, but such agent shall not have the power to waive, change or alter any of the terms or conditions of the application or policy.”

The policy in this case provides for the payment of $1,000 in the event of the death of the assured, and is issued by a life and accident insurance company. We are not called upon to hold that the two articles of the statute quoted above apply to insurance contracts issued by accident companies to indemnify against accidents only; but in our opinion they do apply to the policy in question, and the court should therefore have excluded the evidence of the conversation between appellee and 'Dye, set out above.

It appears that áppellee had suffered a previous injury during the life of this policy, and on December 19th signed a receipt for full settlement of all claims on account of injury sustained or illness or disease contracted prior to the date of the voucher. Appellant set up this receipt as a defense to the action for damages claimed herein. Under appropriate pleadings, this position was attacked, and the evidence is sufficient to show that the $100 named in the receipt was not paid in settlement of the claim involved in this suit.

What has been said disposes of the remaining assignments. If upon another trial ap-pellee fails to allege that by payment of indemnity for injuries sustained between the due date of the premium and the date of its actual payment, or in some other legal manner, appellant has waived the provision of its policy discussed above, the demurrer should be sustained.

The judgment is reversed, and the cause remanded.
      <§s5jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <3s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    CITY OF FT. WORTH v. ASHLEY.
    (No. 8609.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 23, 1917.)
    On Motion for Second Rehearing.
    Eminent Domain <§=^150 — Excessive Dam-ases — -Inconvenience.
    In a suit for damages caused by change of grade of city street, where the value of the premises was estimated at $3,500, a verdict for $1,500 for damages to the real property, and for $1,000 for discomfort, and $500 for suffering of plaintiff’s wife, was excessive, and should be reduced to the amount allowed for injury to the real estate.
    On motion for second rehearing.
    Modified and affirmed.
    For former opinion, see 197 S. W. 307.
   CONNER, C. J.

Appellee presents a second motion for rehearing addressed to our opinion on the first motion and insisting with earnestness that we erred in holding that fundamental error had been presented by the record. Our holding in this respect was more particularly applicable to the Issue of damages on account of alleged' sickness and because of the alleged discomfort and inconvenience, and to this extent, at least, we see no reason to alter our opinion. As to these elements of the appellee’s damage we think we were clearly right and therefore, in so far as applicable to these elements, appellee’s second motion for rehearing will be overruled.

In the motion, however, appellee as an alternative plea offers to remit all damages recovered below because of sickness and because of discomfort and inconvenience, and prays that we affirm the judgment for damages to the real property involved, and this prayer we have concluded to grant. As stated in our original opinion, the jury itemized plaintiff damages, assessing damages to his real property in the sum of $1,500, and no attack by assignment, proposition, and statement that we can sustain has been made upon this finding. Nor are we quite willing to say that on the face of the record the finding was fundamentally wrong, in view of the general trend of the authorities to the effect that, under the circumstances shown in this case, the injury to the property was a continuing one, and therefore, at all events, damages to the real property occurring subsequent to the notice discussed in our opinion on- the first motion for rehearing 'would be recoverable. See M., K. & T. Ry. Co. v. Anderson, 194 S. W. 662.

Appellee’s remittitur will, accordingly, be accepted and entered of record, and our former order reversing and remanding the cause will be set aside, and the judgment now and here affirmed in appellee’s favor to the extent only of the damage found to have been done to his real property, to wit, the extent of $1,500, appellee being denied a recovery for the elements of damages because of alleged sickness and discomfort, and ap-pellee will be taxed with the costs of appeal.


text:
    ROWSE v. WOODY et al.
    (No. 1204.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 20, 1917.)
    1. Partnership <&wkey;206 — Actions — Change of Theory op Action.
    Where plaintiff sued two as partners, alleging that his right of action arose under a contract with them as a firm, he cannot change his action to one against one of the partners as an individual by taking a nonsuit as to the other.
    2. Partnership <&wkey;216(3) — Actions—Recovery.
    One sued as a partner cannot be held liable save on a partnership obligation.
    3. Partnership &wkey;>210(2) — Actions — Evidence-Admissibility.
    Plaintiff sued both members of a firm for commissions as a broker claimed to have been earned under contract with the firm. One of the partners died, and the action was revived against his widow, whereupon plaintiff took a nonsuit against the other partner seeking recovery solely against the widow of the deceased partner. Held that, as plaintiff could not recover on proof of the individual liability of deceased, evidence of a contract between the purchaser obtained by plaintiff, and another showing that the transaction was an individual one between deceased and plaintiff, was admissible.
    4. Trial <&wkey;351(5) — Issues—Submission.
    A party cannot complain of the court’s refusal to submit separate issues covered by the issues submitted.
    Appeal from District Court, Crosby County; W. R. Spencer, Judge.
    Action by C. E. Rowse against Pink D. Parrish and J. C. Woody, revived against Mrs. Ettie M. Woody on the death of the last-named defendant. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    R. A. Wallace, of Crosbyton, for appellant. J. W. Burton, of Crosbyton, for appellees.
   HALL, J.

Appellant Rowse sued Pink L. Parrish and J. C. Woody to recover the sum of $2,175, alleged to be due him as commissions on the sale of certain real estate situated in Crosby county. Upon the death of Woody, appellant filed his second amended petition, making Mrs. Ettie M. Woody, the wife of J. C. Woody, a party defendant Omitting the formal allegations, appellant alleged in substance that on thei 2d day of February, 1914, Pink L. Parrish and J. C. Woody were engaged as partners in the business of purchasing and selling real estate under the firm name of Woody & Parrish; that they were still so engaged at the time of the death of J. C. Woody; that on the 2d day of February, said Woody, acting for the firm of Woody & Parrish, made, executed, and delivered to plaintiff a contract in writing duly executed in the firm name of Woody & Parrish, wherein said Woody & Parrish employed plaintiff to procure purchasers for lands they had for sale; that the said Woody & Parrish agreed to pay plaintiff the sum of $5 per acre for lands sold by them to purchasers furnished by plaintiff; that pursuant to said agreement plaintiff, on or about the 3d day of February, 1914, made a trip to the state of Nebraska, and while there induced one Erick Peterson, who resided in Nebraska, to purchase 523.4 acres of land in Crosby comity, Tex., from the firm of Woody & Parrish; that the sale of the land was made by J. C. Woody; that the land sold to Erick Peterson was, at the time of such sale, the property of J. C. Woody; that the sale was consummated on the 17th day of February, 1914, and upon the consummation of said sale Woody & Parrish became jointly and severally bound to pay plaintiff the sum of $2,617; that the said J. C. Woody has paid plaintiff $750, leaving a balance due of $1,867; and that the debt is a community debt on the part of J. C. Woody, now deceased.

Parrish and Mrs. Woody answered, setting up that prior to January 10, 1914, plaintiff and J. C. Woody entered into an agreement between themselves with reference to procuring purchasers for certain lands that J. C. Woody had for sale belonging to various parties, and on said 10th day of January, acting under his said agreement with Woody, plaintiff procured Erick Peterson as a purchaser, who entered into a written contract on January 10, 1914, to buy the land that is described in plaintiff’s amended original petition; that said contract between Woody & Peterson was signed by the firm as agent for J. L. Holman; that the consummation of the sale of the land to Peterson was in pursuance of the written contract executed by him on the 10th day of January, 1914; that the sale of the land mentioned herein was an individual transaction of J. O. Woody and was not a part of the partnership business of Woody & Parrish; that the negotiations were concluded without the knowledge of the defendant Parrish; that the contract between appellant and J. C. Woody, made' prior to January 10, 1914, was oral, and appellant’s right of action under it is barred by the two years’ statute of limitations.

By first supplemental petition appellant replied specially to the original answer of the defendants, in substance, that if plaintiff had any agreement with J. O. Woody before the execution and delivery to him of the written contract between himself and Woody & Parrish, dated February 2, 1914, as set forth in plaintiff’s second amended original petition, it had been abandoned and was of no force and effect on the 2d day of February, 1914, the date of the written agreement aforesaid; that if Erick Peterson signed the alleged contract with Holman, as set forth in defendant’s answer, he abandoned it before the 2d day of February, 1914, and that said Holman abandoned said agreement on February 9, 1914.

The contract of February 2, 1914, between appellant and Woody & Parrish, recites that whereas Woody & Parrish have various and sundry tracts of land for sale in Crosby county, and it is agreed and understood that they are to furnish means, and at their own expense to show these lands to prospectors when brought to them by appellant, and to protect appellant in pricing the lands to the amount of $5 per acre; said $5 to be paid to appellant as commissions when any deal is consummated. There are other stipulations with reference to the duties and liabilities of the parties which need not be stated here. A deed from Holman and wife, dated February 9, 1914, conveying to John Swor 623.4 acres in Crosby county was introduced in evidence; also, a deed from John Swor, dated February 17, 1914, conveying the same land to Erick Peterson. Appellant then introduced a transfer of the vendors’ lien notes executed by Peterson, payable to Swor, showing that said notes had been conveyed from Swor to Woody. A contract between J. B. Holman and Erick Peterson, signed by the latter, and by J. C. Woody, as agent for Holman, bearing date January 10, 1914, was also introduced in evidence. It recites that Holman has sold the 523.4 acres of land mentioned above to Peterson, and s.ets out the terms of sale, binding Holman to furnish an abstract showing good title, etc. In addition to this documentary evidence, there is considerable oral- testimony which will be referred to hereafter. The case was submitted to the jury upon the following special issue:

“Was the sale of the land to Erick Peterson a partnership transaction between J. 0. Woody and Pink L. Parrish?”

This issue was answered by the jury in the negative. From a judgment in favor of appellee, appellant bripgs the ease here for review.

The first error assigned is to the action of the court in permitting the contract of January 10, 1914, between Holman and Peterson to be introduced in evidence. The first proposition urged under this assignment is that a broker’s right to commissions depends upon an express contract with the employer, and that transactions between the purchaser and other parties not parties to the action are inadmissible.

The record shows that, after the evidence was all introduced, appellant dismissed his action as to Parrish; but no reason for so doing is stated. Having sued Woody and Parrish as partners, and having declared that his right to recover arose under a contract with them as a firm, appellant could not change his action to one against Woody personally and recover against his widow upon an individual liability of her husband by merely taking a nonsuit against Parrish, who had been made a party solely because he was alleged to be a member of the partnership. Appellant’s suit is based upon his written contract with the firm; and he alleges that the firm agreed to pay him $5 per acre for all the lands which they sold to purchasers furnished by him, and that under said agreement he furnished the purchaser, Erick Peterson, for the tract of land described in his petition. The defendants alleged that the partnership had nothing to do with this land, and that the sale of it was an individual transaction of J. O. Woody. It is shown that the firm of Woody & Parrish was .formed about January 20, 1914. Prior to this time, a written contract of sale between Holman (who at that time held the legal title to the land) and Peterson was entered into. Uncontro-verted evidence shows that Woody was the real party at interest, and the real owner of the land. Under these conditions, we think the evidence was admissible. If the sale of this particular tract was the- individual business of Woody and was a matter with which the firm of Woody & Parrish had no concern as a firm, clearly appellant would not be entitled to a judgment against the firm or against either member thereof under his pleadings seeking to recover against a partnership. There was no count in his petition entitling him to recover against Mrs. Woody upon a contract made with Woody individually. One who is sued as a partner cannot be held liable except as a partner. Baptist Book Concern v. Carswell, 46 S. W. 858. It is not denied that appellant was instrumental in bringing about the sale and had earned a commission- by his activity in consummating the deal with Peterson; but the issue made by- appellee’s pleadings is that the firm had no interest in the land, and the facts proved did not bring the transaction within the terms of the contract. The written contract introduced in evidence was competent evidence of the fact that the land belonged to Woody as an individual, and, when taken in connection with other evidence appearing in the record, we think was sufficient to sustain appellee’s allegations. While it is true that Peterson testified that he had declared the contract off, it further appears that he finally closed the trade upon the identical terms specified in the written contract, and it does not appear that Woody, the real party at interest, ever assented to the abrogation of the contract by Peterson. Appellant himself testified that he knew of no other written contract entered into by Peterson for the land, and that he induced Peterson to “go ahead and consummate the trade.” The evidence is sufficient to show that the deal was closed under the original contract.

Appellant complains that the court refused to submit four special issues requested by him, inquiring as to: (1) Whether or not the contract introduced in evidence had been abandoned by Holman and Peterson; (2) whether or not the oral contract between Woody and appellant had been abandoned; (3) whether appellant’s trip to Nebraska on February 3d was made under the written contract with the firm; and (4) whether Peterson was induced to purchase the land by appellant while on said trip. We do not understand that it is denied that appellant induced Peterson to purchase the land. The matters which the appellant sought to have submitted by the first three issues are all comprehended in the single issue submitted by the court to the jury. If the firm had no interest in the sale to Peterson, appellant’s trip to Nebraska could not have been made under the contract of February 3d. If Parrish had no interest in the transaction, appellant’s services were necessarily rendered to Woody, and neither the partnership nor either member thereof as a partner was liable, whether either or both contracts were in force, or either or both had been abandoned.

None of the remaining assignments present reversible error, and they are therefore overruled. We believe the judgment rendered by the court below is the only judgment which could have been properly rendered under the pleading and evidence, and it is therefore affirmed.
      ®^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    MAGEE et al. v. SNEEL et al.
    (No. 8312.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 25, 1916.
    On Rehearing, June 9, 1917.)
    1. Jury <&wkey;25(6) — Trial by Jury — Demand— Substituted Judge.
    Where the regular judge was disqualified, the substitute judge who presided after the first day of the term had power to grant an application to have the case placed on the jury docket, and where the parties failed to present such application, a subsequent demand for a jury trial came too late, under Rev. St. arts. 5175 and 5180, providing that the party desiring a jury trial shall make application on the first day of the term.
    2. Mortgages <&wkey;2®5(l) — Transeer oe Property-Merger.
    The owner of land borrowed money giving notes secured by a trust deed on the entire tract. Later he sold a part of the tract to one from whom plaintiff purchased, and thereafter plaintiff secured an assignment of the notes and trust deed. Held, in a foreclosure suit by plaintiff, that his purchase of the notes did not extinguish them in favor of defendants, who purchased tracts subsequently.
    On Rehearing.
    3. Mortgages <&wkey;290 — Foreclosure—Tbans-eer oe Mortgaged Property — Inverse Order of Alienation.
    M. borrowed money giving his notes secured by a trust deed duly recorded on a tract of land. Thereafter M. sold parts of the tract to different persons including L. and J. The sale to J. was prior to the date of the purchase of L. L. paid cash for his tract, while J. executed vendor’s lien notes which were hypothecated by M. to the bank, which later became the owner of the notes before maturity. By regular chain title, the J. tract passed to P., who reconveyed to M. by deed reciting cancellation of the J. notes; but the bank did not consent to cancellation of the - notes nor surrender them. M. was adjudged a bankrupt, and at a bankruptcy sale the bank purchased all title and right of M. to the J. tract subject to all liens existing. The assignee of the trust deed proceeded to foreclose it. Held, that the question whether the L. tract should be first subject to the payment of the trust deed before resort to the J. tract, now held by the bank, should be governed by the rules applicable to innocent purchasers and lienholders on real estate, which involved the -registration statutes, rather than by the laws protecting innocent purchasers of promissory notes not secured by such liens, and if the sale of the tract to L. occurred prior to the hypothecation of the J. notes to the bank, or if at the time of such purchase L. had neither actual nor constructive notice of such hypothecation, then the interest of the bank should be sold for the purpose of satisfying the trust deed debt before resort to the L. tract, and the same reasoning applied to other purchasers.
    Appeal from District Court, Nolan County; Royall G. Smith, Special Judge.
    Suit by J. H. Snell and others against Mrs. Berta Magee, T. R. and J. W. Rhodes, and others. From a part of the decree entered, Mrs. Magee and children, and the Rhodes, appeal.
    Reversed and remanded.
    B. A. Cox, Bruce E. Oliver, and Eugene De Bogory, all of Abilene, for appellants. Beall & Douthit, of Sweetwater, and J. M. Wag-staff, qf Abilene, for appellees.
   DUNKLIN, J.

On January 2, 1905, J. D. Magee borrowed $6,558.11 from the American Freehold Land & Mortgage Company of London, Limited, for which he executed his promissory notes and secured the same by a deed of trust upon a tract of land embracing approximately 1,600 acres, which deed of trust was duly recorded. Thereafter, J. D. Magee at different times sold portions1 of said tract to different persons. J. H. Snell, the assignee of said notes, and the owner by purchase of two of the tracts from the original vendees of Magee, instituted this suit against the owners of all other portions of the original tract to establish the mortgage lien and have the different tracts sold for satisfaction of his debt, according to the equities of all owners. From a judgment in his favor, the owners of two of the tracts sold by J. D. Magee have appealed; the owners of one of the tracts being Mrs. Berta Magee and her minor children, heirs of L. V. Magee, deceased husband of Mrs. Berta Magee and father of said minor children, who purchased one of the tracts from J. D. Magee; and the owners of the other tract being T. R. and J. W. Rhodes. The case was tried before the court without the aid of a jury, and the findings of fact and conclusions of law filed by the trial judge appear in the record.

On November 19, 1913, J. D. Magee was adjudged a bankrupt in the federal court, later duly receiving his discharge in bankruptcy. 'The foreclosure decreed by the court was, first, upon 115 acres of land which J. D. Magee had never sold, and upon the remainder of the tracts in the inverse -order of their alienation by J. I>. Magee.

Two tracts aggregating approximately 250 acres of land were sold by J. D. Magee to T. G. Jenkins prior to the date of the purchase by L. V. Magee of his tract of 160 acres. As a part of the purchase money of said conveyance, Jenkins executed to Magee vendor’s lien notes which have never been paid, and upon which was due at the date of 'the trial the sum of $14,000. These notes were hy-pothecated to the Citizens’ National Bank of Abilene by J. D. Magee as collateral security for indebtedness he owed to the bank, and later the bank became the owner of said notes before their maturity.

By regular chain of conveyances, the title of T. O. Jenkins in said two tracts passed to J. J. Patterson, who reconveyed the same to J. D. Magee by- deed, which recited the cancellation of said Jenkins’ notes, then held by. the Citizens’ National Bank of Abilene; but the bank did not consent to such cancellation, nor did it surrender said notes. At a sale by the trustee in bankruptcy of J. D. Magee, the bank also purchased all right, title, and interest of J. D. Magee in the two Jenkins tracts, subject to all liens existing thereon. At the time of the trial, the amount due on said notes so held by the bank exceeded the value of the said two Jenkins tracts of land. The court further found that, for the tract of 160 acres so purchased by L. V. Magee, the purchaser paid a cash consideration of $1,600, and that the deed received by him from J. D. Magee contained the usual warranties of title and was duly recorded. L. Y. Magee died intestate, leaving his said wife, Mrs. Berta Magee, and' said minor children as his only heirs.

By their first assignment, appellants Mrs. Berta Magee and her minor children insist that the court erred in decreeing that the tract owned by them should be sold and the proceeds applied to plaintiff’s debt prior to the sale under foreclosure of the two Jenkins tracts mentioned above and owned and claimed by the bank. Appellants do not question the principles of the equitable rule of subjecting different tracts of land to the satisfaction of a blanket lien in the inverse order of their alienation, but insist that - under , such rule the Jenkins tract should have -been resorted to before recourse to their tract, in view of the fact that the Jenkins title was reacquired by J. D. Magee after the purchase of their tract, and the bank later acquired that title from J. IX Magee. As shown by the findings noted already,, the title acquired by the bank-to the two - Jenkins, tracts at the-trustee’s sale was an equity only, and -was.subject, to all- prior outstandingjliens, one of which- -vyag the vendor’s lien to secure the purchase-money notes held by the bank. -As these, notes amounted to more than the value of the land, the interest purchased by the bank at such trustee’s sale was but a shadow only, and constituted no substantial interest in the land. The vendor’s lien notes then held by the bank, which were acquired before maturity, constituted the real interest of the bank in those two tracts, and all rights and interest evidenced by them originated prior to the purchase by L. V. Magee. The rule applied by the trial judge in the foreclosure is founded upon broad, equitable principle, the reasons and foundation of which would apply in favor of the'holder of those notes the same as it would have applied in favor of Jenkins, had he paid a cash consideration for the tract so purchased by him and had owned them at the time of the suit. Accordingly, we overrule the assignment of error now under discussion.

The court further found that L. V. Magee, during his lifetime, and his widow and children since his death, occupied, used, and claimed the tract purchased by himself as their homestead. Appellants insist that the facts so found, considered in connection with the further facts that L. V. Magee was claiming the land under a deed with warranty of title, reciting a cash consideration and duly recorded, were sufficient to put the bank upon notice of a parol contract on the part of J. D. Magee with L. V. Magee, at the time of such purchase, that the vendor would protect that tract from the blanket lien, as testified to by J. D. Magee upon the trial, but upon which issue the court made no finding. We are cited to no registration statute, nor decision, which would charge the bank with such notice, even if it could be said that such testimony of Magee conclusively established such agreement; and we are unable to perceive upon what principle of equity a prior right could be impaired and perhaps destroyed in that manner. As said before, if Jenkins had paid a full consideration for his two traqts, clearly he-would be entitled to inyoke the equitable rule applied by the trial court, By the purchase of the vendor’s lien notes before their, maturity-, the bank certainly acquired at least a part of the interest which-'Jenkins would have acquired had he paid cash, for the -land, and we fail to see any reason why the bank shojild not, therefore, have an equal cldim with Jenkins for protection.- . - - -

. We are of the. opinion that the evidence was sufficient to sustain the court’s findings that the bank did not consent to a surrender and cancellation of the vendor’s -lien notes held, by it when Patterson reconveyed the land to J. D. Magee, contrary to the contention- made by another assignment.. ■

. Eojr.the- reaspns. given . aboye,the., assign-menta of error of appellants Mrs. Berta Magee and her minor children are overruled.

Appellants T. R. and J. W. Rhodes by their first assignment insist that the court erred in refusing their demand for a trial of the case by a jury. As shown by the bill of exception, upon which that assignment is predicated, the regular judge of the district court in which this suit was instituted and tried was disqualified to try it. The citation to the defendants was returnable to the November term, 1914, of the district court of Nolan county, at which term these appellants filed answers in the case. By reason of his disqualification, Hon. W. W. Beal, the regular judge of that court, exchanged districts with Hon. O. E. Spencer, judge of another district, and the judge last named held said court for one week during the November term, 1914, at which time a regular jury was present. During that week, these appellants made no demand for a jury, and, as this case was not reached for trial, it went over to the March term, 1915. During that term Judge Spencer again presided in that court for one week, with a jury duly impaneled; but the present suit was not reached for trial, neither did these appellants make any demand that the ease be placed on the jury docket, while he so presided. Both of said exchanges of districts by the two judges were made for the purpose of trying the cases on the docket in that court in which the regular judge Hon. W. W. Beal was disqualified.

At a later date during the March term, 1915, of the district court, Hon. Royall G. Smith was duly elected as a special judge, and presided over said court for the purpose of trying the cases pending in that court in which the regular judge was disqualified. This case was then called for trial, and after announcement of ready for trial by plaintiff, and after demurrers and pleas filed by defendants T. R. and J. W. Rhodes to the venue had been presented and overruled, those defendants then for the first time demanded a trial by jury, which demand was refused. At the time of such demand there was no jury in attendance upon court; the jury impaneled for the week having been discharged on the preceding day by the regular judge of the court. By articles 5175 and 5180 of our Statutes, it is provided that any party desiring a jury trial shall make application therefor in open court and pay the jury fee on the first day of the term of court at which the case is to be tried, unless the case is an appearance case, and in that event on appearance day. Appellants insist that as the regular judge was presiding on the dates contemplated by those statutes, and as he was disqualified to try the case, he was also disqualified to entertain the application that the case be placed on the jury docket, and that, under such circumstances, the demand made for a jury when the case was finally called for trial should have been granted.

Under the decisions of our Supreme Court, there is no doubt that Judge Spencer could properly have granted an application for the case to be placed on the jury docket at any time during the two preceding weeks of court when he presided, one of which was during the November term, 1914, and the other during the March term, 1915, as noted above. And in view of appellant’s failure to then present an application for trial by jury, and the other facts and circumstances related, we are of opinion that their demand for a jury came too late, and that there was no error in refusing it. City Loan & Trust Co. v. Sterner, 124 S. W. 207, and decisions therein cited.

As shown by further findings by the trial judge, two other tracts of the land were sold by J. D. Magee prior to the sale to L. V. Magee and T. R. and J. W. Rhodes, one of which sales was made to J. McCoy and the other to Robert A. Dinn. Thereafter Snell purchased those tracts, and, from his testimony shown in the statement of facts, it appears that this purchase antedated his purchase of the mortgage lien notes upon which he instituted this suit, and that he bought those notes in order to protect the land so purchased by him, although those facts are not included in the court’s findings of fact, nor was there any request for a finding of the same by the court. In view of that testimony in connection with the court’s finding that plaintiff purchased those two tracts and owned them at the date of trial, appellants insist that the notes were in reality paid off and extinguished, and that plaintiff’s only cause of action against appellants and the other defendants was for contribution. It is further insisted that in allowing contribution the interest chargeable to defendants should be at the legal rate, rather than the contract rate specified in said notes, which was allowed, and that under the doctrine of contribution plaintiff could not recover the 10 per cent, attorney’s fees, provided for in the notes and likewise included in the judgment.

Those contentions are presented by two assignments, in one of which complaint is made of the excessiveness of the judgment by reason of the facts just stated, and the other is addressed to the action of the court in overruling a special exception to plaintiff’s petition challenging the right asserted therein to recover the attorney’s fees stipulated in the notes. The petition contained no allegation that those notes had been discharged; on the contrary, it contained specific allegations of ownership of the notes by transfer from the original payee. And no assignment is addressed specifically to the finding that plaintiff was the owner and holder of the notes by such transfer.

In the absence of any findings or evidence to show that it was the intention of plaintiff and J. D. Magee that the transaction between them should operate to extinguish the notes, we fail to perceive upon any principle of equity any reason for holding that the same necessarily had that effect; especially, as such transaction did not operate injuriously to subsequent purchasers of the smaller tracts. While the notes were in the hands of J. D. Magee, clearly the contentions last suggested were not available against him, and we perceive no reason why plaintiff did not acquire all his rights by the purchase of the notes.

Another assignment presented by these appellants, T. R. and J. W. Rhodes, that the two tracts sold by J. D. Magee to T. O. Jenkins and afterwards sold by the trustee in bankruptcy to the Citizens’ National Bank of Abilene should have been subjected to payment of plaintiff’s debt before recourse had to the lands owned by the Rhodes, is overruled for the same reason given by us in the disposition of substantially the same assignment presented by appellants Mrs. Berta Magee and her minor children.

For the reasons noted, the judgment rendered against the appellants mentioned above is affirmed; in all other respects, the judgment is undisturbed, no appeal therefrom having been prosecuted.

On Rehearing.

In 3 Jones on Mortgages (7th Ed.) § 1620, the reason for the equity rule that the foreclosure on several tracts all covered by the same mortgage in the inverse order of their alienation is stated as follows:

“This order of equity proceeds upon the supposition that each subsequent purchaser has actual or constructive notice, by the record of the deed or otherwise, of each prior conveyance, by the mortgagor of portions of the premises.”

In Moran v. Wheeler, 87 Tex. 179, 27 S. W. 54, the following was said:

“It is the policy of the law to require that all matters affecting the title to lands should be placed upon the public records, so that one who seeks to purchase it may safely judge of the validity of the title. When a purchaser who seeks to buy land has examined the records of titles, and finds nothing to indicate that there is an adverse claim, and he is not in possession of any facts that would put him upon inquiry as to any matter not of record, he has the right to presume that any person claiming an adverse right would have placed the same upon record, and that there is none.”

In that case it was held that it was within the power of the assignee of a vendor’s lien note to take a written assignment of the vendor’s lien and to place it upon record, and that, in the absence of such a record, a subsequent mortgagee of the land took a lien superior to the vendor’s lien where the deed records showed that the vendor in whose favor the note was made had executed a release of such lien. To the same effect is Mansur Tebbetts Imp. Co. v. Beer, 19 Tex. Civ. App. 311, 45 S. W. 972; Lubbock State Bank v. Wooten Gro. Co., 179 S. W. 1141; Biswell v. Gladney, 182 S. W. 1168.

The vendor’s lien reserved by J. D. Magee to secure the payment of the purchase-money notes for the Jenkins tract passed to the Citizens’ National Bank of Abilene as an incident to those notes; but there was no transfer of record indicating that transaction, while the deeds from J. D. Magee to L. V. Magee and also to T. R. and J. W. Rhodes were duly recorded.

Whether or not the transaction between J. D. Magee and the bank, toy virtue of which the bank took the Jenkins notes as collateral security for money owing to it by J. D. Magee, antedated the sale by J. D. Ma-gee to L. V. Magee, or the sale to T. R. and J. W. Rhodes, does not appear in the court’s findings of fact; nor is the evidence shown in the statement of facts by any means clear upon those issues, which seem to have been treated by the court as immaterial in view of the fact that the Jenkins notes were hypothecated to the bank before their maturity and for valuable consideration. And upon our original consideration of the ease we were of the same opinion, but, after a more mature consideration, we have reached the conclusion that the question whether or not either the L. Y. Magee tract or the T. R. and J. W. Rhodes tract should be subjected to the payment of plaintiff’s mortgage debt before resort had to the Jenkins tract, upon which the bank has a lien, should be governed by the rules applicable to innocent purchasers of, and lienholders on, real estate, which involve our registration statutes rather than by the law protecting innocent purchasers of promissory notes not secured toy such liens.

If the sale of the L. Y. Magee tract occurred prior to the hypothecation of the Jenkins notes to the bank, or if at the time of such purchase L. Y. Magee had neither actual nor constructive notice of such hypothecation, then we are of the opinion that the interest o.f the bank in the Jenkins tract should be sold for the purpose of satisfying plaintiff’s debt before resort to the Magee tract, and the same conclusion applies to the tract sold to T. R. and J. W. Rhodes. When J. D. Magee sold the Jenkins tract, the superior title as well as the vendor’s lien was retained by him. Such lien, considered separate and apart from the superior title, was an interest in the land itself, and, if J. D. Magee had never parted with it, clearly the owners of all tracts sold by him could have claimed that it should be subjected to the payment of plaintiff’s debt before recourse to any of those tracts. The bank, which now owns that lien; stands in Ms shoes, with no greater rights with respect to the owners of the Magee tract and of the tract sold to T, R. and J. W. Rhodes, except such as may result from the law 'applicable in case of the purchase of an interest in the land or the acquisition of a lien thereon.

For the reasons noted, the motions of appellants for rehearing are granted, the judgment of the trial court as between the bank and appellants is reversed, and the cause is remanded for á new trial of -all issues between those parties. The judgment as between the other’ parties to the suit, of which no complaint is made here, is undisturbed, and upon another trial the court will render the same judgment as between them as was rendered before, to the end that there shall be but one final judgment; it appearing that, whatever may be the judgment as between the bank and appellants, the final results to the other parties will be the same.
      <§rs>For other oases see same topic and ItEY-NUMBBR in all Key-Numbered Digests and Indexes