text:
    WEINBERG v. STATE.
    (No. 4445.)
    (Court of Criminal Appeals of Texas.
    May 9, 1917.)
    1. Intoxicating Liquors <@=>239(5) — Definition — Instructions.
    In a prosecution for selling liquor in local option territory, where it was exceedingly doubtful whether beverage was intoxicating, the court should have instructed the jury, as requested, that before they could convict they must believe the beverage to be an intoxicant, as defined by instruction.
    [Ed. Note. — For other eases, see Intoxicating Liquors, Cent. Dig. § 336.]
    2. Intoxicating Liquors <@=>233(2) — Appeal —Reversible Error.
    In a prosecution for selling liquor in local option territory, admission of testimony that sheriff took, from defendant’s residence some beer, wine, and whisky some time subsequent to alleged sale was reversible error; such liquor being bought for the purpose of entertaining guests attending marriage of his daughter.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 295.]
    Appeal from Johnson County Court; B. Jay Jackson, Judge.
    Frank Weinberg was convictefd of selling intoxicating liquors in violation of the local option law, and he appeals.
    Reversed and remanded.
    J. E. Warren and W. E. Myres, both of Cleburne, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of selling intoxicating liquors in. violation of the local option law; his punishment being assessed at a fine of $50 and 30 days’ imprisonment in the county jail.

He did not himself sell, but his son did in his absence. The state’s case was that the prosecuting witness went to appellant’s home and called to his minor son for a bottle of Budweiser. The boy handed him the bottle, which the witness drank. This witness leaves it exceedingly doubtful as to whether the beverage was intoxicating or not. The defendant’s theory was that he did not have Budweiser, but sold what he called Nearweiser, which seems to have been a nonintoxicating malt liquor. Under this view of the record we think the court should have instructed the jury, as requested by appellant, that before they could convict they must believe the beverage to be an intoxicant. If the liquor sold was not an intoxicant, or there was a reasonable doubt of that, appellant ha'd not violated the local option law. This special charge contained the accepted definition in our decisions as to what an intoxicant is under that law as follows:

“Any liquor intended for use as a beverage, or capable of being used, which contains alcohol, either obtained by fermentation or by the additional process of distillation, in such proportion as it will produce intoxication when taken in such quantities as may practically be drunk, is an intoxicant.”

This has been recognized by the authorities and elementary writers as a proper definition of what is an intoxicant. Upon another trial this charge should be given. Appellant would not be guilty if he did not sell intoxicating liquors. The special charge lays down the recognized rule since the Decker Case was written by Judge Hurt in 39 Tex. Cr. R. 20, 44 S. W. 845. It is not necessary here to discuss Moreno’s Case, 64 Tex. Cr. R. 660, 143 S. W. 156, inasmuch as the question there decided is not involved.

There is another question we desire to mention as reversible. A month or such matter after this alleged sale the sheriff went, to the residence of appellant, and took from his residence some beer, wine, and whisky. This the evidence shows had been bought by appellant for a great number of guests who attended the marriage of his daughter. We are of opinion this testimony was not admissible. It was some time subsequent to the alleged sale, and was shown to have been bought, not for the purpose of selling, but for the purpose of entertaining his guests, or those who had been invited to be present at the marriage of his daughter and the jollification incident to it. This was some time after the alleged sale, and would have no relation to the sale of the bottle of Budweiser, or Near-weiser, referred to by the witnesses, and had no relation to the actual surroundings of that sale.

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


source: Caselaw Access Project

author: ■ PRENDERGAST, J.

license: Public Domain

text:
    AGUILAR v. STATE.
    (No. 4416.)
    (Court of Criminal Appeals of Texas.
    March 28, 1917.
    On Motion for Rehearing, May 9, 1917.)
    Lakceny <S=»55 — Weight and Sufficiency of Evidence.
    On a trial for theft of a calf, evidence held insufficient to sustain a conviction, though defendant was present when the stolen calf was sold and took some part in the negotiations for the sale.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169.)
    Appeal from District Court, Maverick County; W. S. Anderson, Acting Judge.
    Elíseo Aguilar was convicted. of cattle theft, and he appeals.
    Reversed and remanded.
    David E. Hume and Sanford & Wright, all of Eagle Pass, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   ■ PRENDERGAST, J.

Appellant was convicted of cattle theft and assessed the lowest punishment.

The question in the case is whether the evidence is sufficient to sustain the conviction. When this is the question, all incriminating testimony and all reasonable deductions that may be drawn therefrom must be considered against an appellant and, if sufficient to justify the verdict, must he held against him.

Appellant did not testify and introduced no witness, except one to testify that he had never before been convicted of any felony, so that if convicted he could get his sentence suspended.

The one head of cattle, a calf about six months old, alleged to have been stolen, was amply identified as the property of the alleged owner and was shown to have been stolen from him on or about the date alleged. Joseph Schmerber, Jr., was .also indicted for the theft of, the same calf. His case was next on the docket after appellant’s. On Saturday, June 10, 1916, Alberto Oasos, a goat herder, found said calf tied to a mesquite tree in a thick brushy place in a certain pasture. He reported the facts to his employer when he went home that evening. His employer informed Mr. Lehmann. The officers and others were also informed. Mr. Lehmann, the officers, and others the next morning went to the place where, said calf had been tied. They found on the ground there where the calf had been tied, and also the tracks of two persons and the tracks of a vehicle drawn by one horse. They tracked the horse and vehicle from this place for some distance towards Eagle Pass and until the vehicle got in the Eagle Pass public road. They could track it no further.

Mr. Wyrick traveled said road from Eaglg Pass to his brother’s place Sunday morning. He met said Schmerber and another young Mexican with him who were in an express wagon drawn by one horse and had said calf in the wagon. He did not know whether the other young Mexican was appellant or not. They were going towards Eagle Pass.

Andres Barrientes, who it appears was a butcher in Eagle Pass, testified that appellant alone came to his house and told him said Schmerber would sell him the calf and told him to take it (or go) to a certain dairy, “and I paid them there for the calf.” 1-Ie knew both appellant and said Schmerber. He said: “I bought a calf from this defendant and Joseph Schmerber, Jr.” That he paid $7 for the calf, killed and sold it, and sold th.e hide on the same day to Mr. McAlpin, a hide dealer. He further said: “Schmerber and this defendant were together when they brought the calf there.” He also further swore that he bought the calf from Schmer-ber — did not buy it from this defendant. And further: “I don’t know whether they came together or not, but they were together when I got there and bought it, and they gave me a bill of sale to the calf.” That he bought it from Schmerber, who alone signed the bill of sale. “This defendant did not sell me the calf, and I didn’t pay him for the calf. I was dealing with Schmerber.” That he never saw appellant in possession of the calf — only saw him up there when they were both together. Mr. MeAlpin testified that he bought the hide of said calf at the time indicated and later turned it over to the officers. The hide was amply identified as the hide of the stolen calf.

The above is substantially the substance and effect of the whole testimony.

The court gave a full and complete charge. He charged on circumstantial evidence and the law of principals. No complaint whatever is made of the court’s charge.

It will be seen that the evidence of the butcher is contradictory. At one time he testified that he bought said calf from appellant and said Schmerber and paid them $7 for it; that they were then together, and when he bought the calf they gave him a bill of sale to it. Then again he said he did not buy it from appellant but from Schmerber, and that he paid Schmerber, and that Schmer-ber signed the bill of sale.

The taking of the calf occurred at the time when it was first taken possession of and tied. The tracks of two persons at and around where the calf was tied would authorize the jury to conclude, and it would be a most reasonable conclusion, that two persons participated in the taking. Said Schmer-ber and another young Mexican — appellant was a young Mexican — were seen in possession of the calf soon after its taking. Appellant brought the purchaser and said Schmer-ber together. He and no other person is shown to have been with Schmerber in connection with the sale of the calf. It is most reasonable to conclude from the evidence that appellant was that other young Mexican who was seen with Schmerber in the express wagon when they were carrying it to Eagle Pass. It would be unreasonable from the testimony to infer that any other person than appellant was with Schmerber at the time of the taking, as no other except appellant was seen with him at any time from the time of the taking until after thei sale was consummated. The calf, under the circumstances, was apparently as much in appellant’s possession as it was in Schmerber’s, and both were seen coming from the direction where the calf had been taken and tied in. possession of it.

Upon the whole, while the evidence of appellant’s guilt is somewhat weak, this writer is not prepared to hold that the evidence was insufficient to sustain the conviction and believes that the judgment should therefore be affirmed.

On Motion for Rehearing.

The whole court considered the evidence herein when the original opinion was rendered, and all then agreed to said opinion, and the affirmance of the judgment.

On again considering the evidence in determining the motion for rehearing, my Associates have changed their minds, and now hold the evidence is not sufficient to sustain the conviction. I am confirmed in the opinion that the evidence is sufficient as formerly held, and as held by the judge of the lower court and the 12 jurors. I think the motion for rehearing should be overruled, and the affirmance should stand.

But, in accordance with the opinion of my Associates now, the rehearing is granted, the former affirmance set aside, and the cause is now reversed and remanded.
      <S=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    STATE v. SEIDELL.
    (No. 5851.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 2, 1917.)
    Taxation <©==>592 — Delinquent Taxes — StatUTE.
    Acts 34th Leg. c. 147, § 3, provides for suits for the collection of delinquent taxes not later than January 1, 1917, in counties of less than 50,000, not later than January 1, 1918, in counties over 50,000, and not later than June 1st of each year thereafter. Section 1 provides that in all counties of less than 50,000 the collector of taxes shall, not later than May 1, 1916, mail to the address of each record owner of land notice showing amount of taxes appearing delinquent, and shall also furnish the county or district attorney duplicates of the statements, or in lieu thereof lists of land located in such counties, containing amounts of taxes due and unpaid, etc. Held, that the last day upon which notice can be sent does not enjoin upon the tax collector the duty of sending the notice on that date or afterwards, but fixes the date after which no notice can be given and in a suit brought under the provisions of the act it devolved upon the state, in order to successfully prosecute the suit, to allege and prove that the requirements of the act including such notice and statements had been complied with, since, when certain things are as prescribed in a statute for the protection of a citizen and to prevent the sacrifice of his property and by disregard of which his rights may be jeopardized, such provisions are mandatory, and, unless followed, any acts thereunder are null and void.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1205-1213.]
    Appeal from District Court, Zavala County; R. H. Burney, Judge.
    Suit by the State of Texas against W. G. Seidell. From a judgment sustaining exceptions to the petition, the plaintiff appeals.
    Affirmed.
    John C. Jackson, of Crystal City, for the State.
   FLY, C. J.

This is a suit by appellant to collect taxes due by appellee for 1912, 1913, and 1914, with interest, penalty, and costs, on 30 acres of land in Zavala county. Appel-lee was cited by publication, and, being a nonresident, counsel was appointed to represent bim. Special exceptions to tbe petition were filed by counsel and sustained by the court. The suit was filed under the provisions of section 3, c. 147, Acts 1915, p. 250 et seq., which provides:

“Not later than January 1, 1917, in counties of less than 50,000 inhabitants, and not later than January 1, 1918, in counties of more than 50,000 inhabitants, and not later than June 1 of each year thereafter, it shall be the duty of the county attorney, or the district attorney if there be no county attorney, to file and institute suits as otherwise provided by law for the collection of all delinquent taxes due at the time of filing such suit on land or lots situated in such county, together with interest, penalties and costs then due as otherwise provided by law,” etc.

This suit was instituted on January 11, 1916. In section 1 of the same act it is provided that, in all counties of lqss than 50,000 inhabitants, the collector of taxes shall, not later than May 1, 1916, mail to the address of every record owner of any land or lots situated in their respective counties a notice, showing the amount of taxes appearing delinquent or past due' and unpaid against such land and lots, such notice to contain a brief description of the land or lots appearing delinquent according to the records, giving the amount due for each year, and also, furnish the county or district attorney duplicates of the statements—

“or in lieu thereof, lists of lands and lots located in. such counties containing amounts of state and county taxes due and unpaid, and the years for which due, on lands or lots * ⅞ * in the name of ‘Unknown’ or ‘Unknown Owners,’ or in the name of persons whose correct address or place of residence in or out of the county said tax collector is unable by the use of due diligence to discover or ascertain. ⅜ ⅜ * ”

The act in question went into effect on or about July 29, 1915, and expressly repealed article 7707 of the Revised Civil Statutes of 1911, and all other laws and parts of laws in conflict with the act. The act has made it incumbent upon the tax collector to furnish certain statements to the county or district attorney, and that statement is a necessary and essential matter of allegation and proof. The suits are to be filed and instituted as otherwise provided by law, but in order to prosecute to a successful termination the suits authorized by the act, certain duties are enjoined upon the tax collector, and a statement of the performance of those duties and of certain facts are absolutely essential to be alleged and proved.

The last date, May 1, 1916, on which the notice can be given, in counties of less than 50,000 inhabitants, does not enjoin upon the tax collector the duty of sending out the notice on that date or afterwards as contended by appellant, but fixes the date after which no notice can be given. It means that in the counties having less than 50,000 inhabitants the notice must be given at some time between the date on which the law went into effect and May 1, 1916. The statute is too clear to demand construction.

When this suit was brought on January 11, 1916, the law of 1915 was in effect, and the suit purports to have been brought under the provisions of that law, and it devolved upon appellant, in order to successfully prosecute the suit, to allege and prove that the requirements of the act had been complied with. There was no such allegation in the petition.

When certain things are prescribed in a statute for the protection of a citizen and to prevent the sacrifice of his property, and by a disregard of which his rights may be jeopardized and injuriously affected, they are not directory, but mandatory. They must be followed, or any acts thereunder will be hull and void. Cooley on Taxation, pp. 480-486; French v. Edwards, 13 Wall. (80 U. S.) 506, 20 L. Ed. 702. Any notice required as to assessments, or as to any subsequent proceedings, must be given in the time and in the mode prescribed. It has been held that to obtain jurisdiction by publication, as was attempted in this case, it must affirmatively appear that the statute has been pursued strictly, and strict compliance with its provisions followed. Cooley, Tax. p. 484; Payson v. People, 175 Ill. 267, 51 N. E. 588. The unbroken current of authority sustains the proposition that property cannot be taken from the owner for taxes unless every statutory requirement affecting the property is strictly complied with. Carrier v. Comstock, 108 Ark. 515, 159 S. W. 1097; Meredith v. Coker, 65 Tex. 29; McCormick v. Edwards, 69 Tex. 106, 6 S. W. 32; Bean v. Brownwood, 91 Tex. 684, 45 S. W. 897.

The judgment is affirmed.
      @=>For other cases see same topic ana KEY-NUMBER in all Key-Numberea Digests and Indexes


author: WILUSON, C. J.

text:
    HATTAWAY v. PLANTERS’ COTTON OIL CO.
    (No. 1734.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 1, 1917.)
    1. MASTER AND SERVANT <$=265(3) — INJURY to Servant — Burden of Prioof.
    In an employé’s action for injuries, the burden was on plaintiff to show not only thatde-fendant was guilty of negligence, but that its negligence was the proximate cause of the injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 879, 897.]
    2. Appeal and Error <®=1068(3) — Harmless Error — Instructions.
    Alleged errors in the giving and refusal of instructions in an employé’s action for injuries were harmless, where it appeared that the court should have given a peremptory instruction for defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4227; Trial, Cent. Dig. § 475.]
    3. Master and Servant <§=276(3) — Injury to Servant — Sufficiency of Evidence.
    Evidence, in an employé’s action for injuries while using a pinch bar to remove flooring, held
      to show that plaintiff’s fall was due to'the giving way of a piece of timber on which he stood, and not to any defect in the pinch bar.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 951, 969.]
    Appeal from District Court, Fannin County; Ben H. Denton, Judge.
    Action by J. D. Hattaway against the Planters’ Cotton Oil Company. From judgment for defendant, plaintiff appeals.
    Affirmed.
    Appellant was employed by appellee to assist in tearing down an old wooden building it bad used in operating a cotton ginning plant. In tearing away planks forming tbe floor of a platform 6 or 8 feet high from 2 by 4 inch pieces of timber to which they had been nailed, appellant used a pinch bar while standing on one of the pieces of timber. Because it gave way he fell to the ground, which was covered with pieces of old planks he and those working with him had torn from the building and thrown there. In falling one of his feet struck and was pierced by a nail projecting from one of the pieces of plank. His suit against appellee was for damages for the injury to his foot caused by the nail piercing it. In his petition he alleged that the injury he suffered was due to negligence on the part of appellee, in that the pinch bar it furnished him was broken, and therefore so defective as to make it necessary, when otherwise it would not have been, for him to stand on the 2 by 4 inch piece of timber to which the flooring was nailed while tearing it away, and was further guilty of negligence in failing to remove the pieces of old planks from the place where they were under the platform. In response to special issues submitted to them the jury found: (1) That appellee furnished to appellant the pinch bar which he used in tearing away the flooring; (2) that appellant was “guilty of contributory negligence in the way and manner he used” the pinch bar; and (3) in reply to the question, “what amount, if paid now, would be reasonable compensation for plaintiff for his injuries, if any, caused by the negligence, if any, of the defendant?” answered, “Damage $200.” The jury failed to answer questions propounded to them by the court as follows:
    “Question No. 2. Was the defendant guilty of negligence in furnishing the plaintiff with the pinch bar that plaintiff was using, in the condition it was in at the time of the alleged injury? Answer ‘Yes’ or ‘No.’
    “•Question No. 3. Was such negligence, if any, the proximate cause of the injuries complained of? Answer ‘Yes’ or ‘No.’ ”
    On the findings of the jury as stated the court rendered judgment that appellant take nothing by his suit against appellee, for which he prosecuted this appeal.
    J. W. Donaldson, A. P. Bolding and A. B. McRae, all of Bonham, for appellant. Cunningham & McMahon, of Bonham, for appel-lee.
   WILUSON, C. J.

(after stating the facts as above). It devolved upon appellant to adduce testimony tending to show, not only that appellee was guilty of negligence, but that its negligence was the proximate cause of the injury he suffered. “Proximate cause” has been defined as “the direct cause, without which the injury would not have happened.” Railway Co. v. Averill, 136 S. W. 98; Railway Co. v. Harton, 36 Tex. Civ. App. 475, 81 S, W. 1236; Hilji v. Hettich, 95 Tex. 321, 67 S. W. 90; Jones v. Wlalker County Lumber Co., 162 S. W. 420; Oil Co. v. Edgmon, 155 S. W. 1012; Railway Co. v. Smith, 133 S. W. 482. In the Hartón Case the plaintiff claimed his injury was due to a defect in machinery he was assisting in installing in the defendant’s shops. The court said:

“Before * * * the defect in the machinery, * ■* * could be considered the proximate cause of the injury, the evidence would have to show that such defect * * ⅜ was mo-re than the mere occasion of the application of steam in order to expel the plunger. It would have to go further, and show that no injury would probably have resulted from the expulsion of the plunger by the use of the steam but for the * * * defect in the machinery,”

Consideration of tbe record has convinced us that there was no testimony on which to base a finding that the proximate cause of the injury to appellant was negligence on .the part of appellee, and therefore that the court should have peremptorily instructed the jury to find in appellee’s favor. This being true, as we think, if appellant was not in the attitude-of having approved the action of the trial court in givjng and refusing the instructions specified in the assignments in his brief numbered 1, 2, 3, 4, 5, and 8, respectively, because of his failure to object thereto as required by the statute (articles 1971, 2161, Vernon’s Statutes; Palmer v. Logan, 189 -S. W. 761), none of those assignments could be sustained. Nor, in that view of the record, is he entitled to have either of the other assignments in his brief (to wit, the one numbered 6, based on the action of the court in accepting the findings of the jury as their verdict when they had failed to find as to two of the issues submitted to them, and the one numbered 7, based on the refusal of the court to render judgment in his favor for $200 on the findings made by the jury) sustained. For, in that view, the judgment rendered was the only judgment which properly could have been rendered in the case.

It appeared from appellant’s testimony as a witness that he had used the pinch bar in question in tearing away the flooring of the platform and had removed about half of same at the time he fell. Had the pinch bar not been broken he could and would, he said, have stood on the part of the floor remaining while tearing away and removing the plank he was endeavoring to tear loose when he fell. It was because the pinch bar was broken, he said, that it became necessary for him in removing that plank to stand on the 2 by 4 inch piece of timber to which it was nailed. The piece of timber, he said, gave way while he was standing on it engaged in an effort to tear loose the plant, causing him to fall.

It is plain from appellant’s testimony referred to that the thing which caused him to fall was the giving way of the 2 by 4 inch piece of timber on which he stood, and that the defect in the pinch bar had nothing to do with it. Had the pinch bar been without a defect, and had he used it as he did the defective one, while standing as he did on the piece of timber, he would have fallen as he did when it gave way.

It was not pretended,, and could not be, that the giving way of the piece of timber, which was the proximate cause of the injury appellant suffered, was due to negligence on the part of appellee. 4 Thompson on Neg., § 3979; Rumbley v. Railway Co., 153 N. C. 457, 69 S. E. 416; Bunn v. Railway Co., 169 N. C. 648, 86 S. E. 503.

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


author: TALBOT, J.

text:
    MUNGER OIL & COTTON CO. v. CITY OF GROESBECK.
    (No. 7794.)
    (Court of Civil Appeals of Texas. Dallas.
    April 28, 1917.)
    1. Municipal Corporations <®=»63(2) — Police Powers — Pire Orbinance — Reasonableness.
    The question ns to the reasonableness or unreasonableness of a municipal ordinance is open to inquiry, unless expressly authorized by the Legislature.
    [Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 155, 1378, 1384.]
    2. Municipal Corporations @m>i22(2), 641— Orbinance — Reasonableness—Burben op Pro op.
    When an ordinance is attacked as unreasonable and void, the party alleging its invalidity must aver and prove facts which made it so, and if the facts be controverted, they must be determined by the jury; but whether the facts relied upon show the ordinance to be unreasonable or not is a question for the court.
    [Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 284-286, 1411.]
    3. Municipal Corporations <®^>122(4) — Police Powers — Pire Orbinances.
    Evidence held insufficient to show that a fire ordinance prohibiting repairs or erection of buildings of inflammable material within certain areas of a city was unreasonable.
    [Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 288, 289.]
    Error from District Court, Limestone County; A. M. Blackmon, Judge.
    Suit by the Hunger Oil & Cotton Company against the City of Groesbeck. Decree for defendant, and complainant brings error.
    Affirmed.
    C. S. Bradley, of Groesbeck, for plaintiff in error.
   TALBOT, J.

This suit was instituted by Hunger Oil & Cotton Company, a private corporation, hereinafter designated the “oil company,” against the city of Groesbeck, a municipal corporation, incorporated and operating under the general laws of the state as a city of more than 1,000 inhabitants, herein called the “city,” for the purpose of restraining the city and its officers from enforcing an order of the city to abate a certain wooden building situated on lots 9 and 10 in block 33 in the city of Groesbeck owned by the oil company and used by it as a cotton seed house. The court granted a temporary injunction restraining the city from abating or interfering with said building, and upon trial perpetuated the injunction and there is no complaint made of this portion of the decree, and from it no appeal is prosecuted.

Pending the suit in the trial court, the city passed an ordinance placing the block in question and other blocks of the city in the limits of the fire ordinance then already in force in the city, and which ordinance amended the said fire ordinance accordingly. After the adoption of such amended fire ordinance the oil company amended its suit and attacked the amended ordinance and its validity, in so far as it affects the block in question, alleging grounds and reasons for its invalidity, as hereinafter appears. Upon a trial before the court without a jury judgment was rendered, in effect, that the order for the abatement of the building was invalid and restraining its enforcement, but upholding the amended fire ordinance and refusing the relief asked by the oil company as against that ordinance, and it is to revise the judgment upholding the fire ordinance that this writ of error is sued out. The city has filed no brief in this court, and the foregoing statement of the nature and result of the suit is taken from the oil company’s brief, which appears to be correct.

The amended'fire ordinance, of which complaint is made, is substantially as follows:

“It shall not be lawful for any person to build, erect, move to, place, enlarge or repair any wooden building, house or structure whatsoever constructed of wood or other combustible material, or with wooden roof in the said city of Groesbeck, Texas, within the following described limits,, to wit: Blocks 102, 103, 104, 56, 57, 58, 8, 9, 10, 33, 34, 35, said blocks being described in the map of said city of Groesbeck, Texas, drawn by Theo. Kosse, and said map being now of record in the Deed Records of Limestone county, Texas, to which said map and its said record reference" is here made for a more complete and accurate description of said fire limits of the said city of Groesbeck, Texas.
“Any person attempting to erect, build, place, move to, enlarge or repair any such house, building or other structure shall be immediately commanded by the chief of police or any other person authorized by the said city commission of said city, of Groesbeck to desist therefrom, and in case he or she fails or refuses to desist', such person or persons shall be fined not less than $25.00 nor more than $100.00, for each and every day he or she fails or refuses to comply and conform to the conditions of this ordinance, each and every day of such refusal or failure shall be and the same is hereby a separate and distinct offense and the city commission of said city, or any of its authorized agents, shall remove such building or structure at the expense of the person so offending, which expense shall be charged against the owner or occupant of such building or structure, and said sum so expended by the said city of Groesbeck shall be collected by suit in the name of the city of Groesbeck in any court of competent jurisdiction.”

The oil company charges that this ordinance is unauthorized and void as to block 33 in which its lots are situated, because: (1) It attempts to absolutely prohibit the repair of any structure within the fire limits prescribed made of combustible material, regardless of the character, nature, or extent of the repairs. (2) Because said block is situated on the east side óf the Houston & Texas Cental Railroad and separated from all of the business part of tire city by the reservation, or right of way of said railroad, which is 300 feet wide, upon which no objects of a combustible nature are situated on the west of said block, and is bounded north by State street, which is 100 feet in width, with no buildings adjoining same and across said street except some lumber sheds, on the east by a street SO feet wide, with only two residences and no other obstructions facing said street on tbe opposite side, each of which residences is situated 20 or 30 feet back from the street, on the south by another, street SO feet wide, without any buildings on either side of said street within a distance thereof of more than 100 feet; that said block. 33 is 150 feet east and west and 250 feet north and south, and is occupied by the building of this plaintiff, which is about 20x30 feet, and is situated near the northwest corner thereof and more than 125 feet from any other building, and is the only building situated on the entire block, and the only building which has been situated thereon (with the exception of a church, which has been removed six or eight years) since long before the city of Groesbeck was incorporated in the year 1890; and that more than one-half of said block is now and for years has been dedicated to and used for agricultural purposes, and is only suitable and fit for residences and cotton seed houses for shipping purposes, to which plaintiff’s building is dedicated and used. Excluding six blocks which are situated entirely west of the railway and more than 400 feet from any part of block 33, there are no other buildings situated in the city of Groesbeck constructed of noncombustible material, with the exception of the county courthouse and jail, the public school building, which are many blocks away, and the ice plant, which is two blocks away, and that all of the buildings on all of the blocks adjacent to block 33 are wooden buildings, and that all of the adjacent blocks except one are used entirely for residence purposes, with the residences only sparsely situated thereon, except the block immediately north of block 33, which is entirely used for lumber sheds and one or two small iron-clad buildings in connection therewith; that any kind of wooden structure situated on block 33 would not in any way be a dangerous exposure to any part of the business part of the city of Groesbeck; and would be no more of an exposure to any of the adjacent property than exists in the case of any block in the city upon which residences or other buildings are now situated ; that the ordinance in question was adopted (if at all) as an amendment to a previous ordinance, which confined the fire limits to the six blocks mentioned above, and was adopted for the purpose of preventing this plaintiff from erecting a cotton seed house on his said land and premises, and was not enacted in good faith by the city of Groes-beck in an effort to protect said city against injury by fire, and that no more reason exists for embracing said block in the said fire limits of the said city than exists for embracing any other block in the fire limits, upon which any building is constructed. (3) Because said ordinance is an arbitrary, unjust'and oppressive attempt of the city to exercise its power, and if enforced will be opx>ressive to plaintiff, and will amount to a practical confiscation of its property, and by reason of all the facts set out hereinabove said ordinance is absolutely void and beyond the power of the city of Groesbeck to enact in so far as said block 33 is Concerned.

The oil company further alleges:

“That it owns the two lots in question with the house now situated thereon, and that if it is compelled to abate its building and the said fire ordinance set out and mentioned above is held to be valid; that its said lots of ground will be practically of no value, and same will be practically confiscated, and the public will not be correspondingly benefited or benefited in any appreciable degree, and this it is ready to verify. That there are no business houses of any kind on any block adjacent to said block 33, except a small lumber office, and there is no effort being made by any one to erect any such business house upon any such blocks adjacent thereto, and no prospect that same will be erected on any such adjacent block for many years to come. That the action of the city in passing such ordinance is unjust to plaintiff, is arbitrary, and if permitted to be enforced will practically destroy the value of plaintiff’s said property.”

By appropriate assignments of error the oil company asserts that the trial court erred to its prejudice in not declaring void and canceling the ordinance in question, and contends for the following propositions:

“A city incorporated under the general laws of the state as a city of more than one thousand inhabitants may pass fire ordinances prohibiting the erection of wooden buildings in prescribed limits for the purpose of preventing fires; but an effort on its part to prohibit the erection of such buildings in any portion of the city where there is no apparent necessity for same in the prevention of fire is a nullity, and the court has the right to inquire into the necessity and propriety of such ordinance, as affecting given territory, and to declare such ordinance void as to such territory when it determines that there is no necessity for the ordinance to prevent the spread of fire within such territory” ; “that an arbitrary exercise of the police power of a city; in fixing the fire limits of such city, actuated by other motives than an honest desire to prevent the spread of fire, will be enjoined by the court as an unlawful interference with the property rights of a citizen.”

If it conclusively appeared that there was no necessity for the passage of the ordinance in question, and that the governing authority of the city of Groesbeck adopted it, not in the exercise of a reasonable discretion, but as a mere excuse for an unwarranted and arbitrary interference with the constitutional right of the oil company to carry on a lawful business or to use and enjoy its property, we would sustain the assignments and propositions. In City of Austin v. Cemetery Association, 87 Tex. 330, 28 S. W. 528, 47 Am. St. Rep. 114, it was held that while it was within the power of the Legislature to make arbitrary laws, provided they neither infringe the Constitution of the state nor that of the United States, yet unless a city’s charter contains an express power to enact an arbitrary and unreasonable ordinance it should be held that it was not the intention of the Legislature to confer authority to enact such ordinance. It is also the well-established doctrine that when the court has only a municipal ordinance to deal with the question as to the reasonableness or unreasonableness of such an ordinance is open to inquiry in the courts, the recognized and declared exception being that the reasonableness vel non of an ordinance cannot be thus questioned if it be expressly authorized by the Legislature and be a regulation which the Legislature itself has power to adopt and enforce. IT. & T. C. Ry. Co. v. City of Dallas, 98 Tex. 396, 84 S. W. 648, 70 L. R. A. 850, and cases therein cited.

It is a further established -rule that when an ordinance is attacked upon the ground that it is unreasonable, and therefore void, it is incumbent upon the party alleging its invalidity to aver and prove facts which made it so, and that if the facts be controverted, they must be determined by the jury; but whether the facts relied upon show the ordinance to be unreasonable or not is a question for the court. Now the familiar rule that it is within “the power of the Legislature to regulate the use of property and the carrying on of business so as to protect the health, safety and comfort of citizens, * * '* and its use is not to be defeated by the mere fact that loss or expense may be imposed upon the owners of the property or business,” is recognized by counsel for the oil company. But it is contended that this power is not an arbitrary' one; that it is commensurate with, but does not exceed, the duty to provide for the real needs of the people in the respects just'mentioned, as consistently as may be with private property rights; that it clearly appears that the ordinance involved in this suit is unnecessary and unreasonable, and should have been so declared by the trial court. We regard the contention that the power to regulate the use of property does not exceed the duty to provide for the real needs and safety of the inhabitants of a city as sound, but we are not prepared to subscribe to the proposition that it clearly or manifestly appears from the record before us that the ordinance attacked is unnecessary, arbitrary, and unreasonable.

Clearly, the ordinance does not appear on its face to be unreasonable, and in our opinion the .facts in evidence do not conclusively show, or establish as a matter of law, that it was an arbitrary enactment and wholly unnecessary to prevent the spread of fire in the city of Groesbeck. The following remarks of the Supreme Court of Minnesota in the case of Evison v. Railway Co., 45 Minn. 370, 48 N. W. 6, 11 L. R. A. 436, are quoted with approval in the case of H. & T. C. Ry. Co. v. City of Dallas, supra, and appropriate here:

“Much must be left to the judgment and discretion of the city council, and when they ha-ve exercised their judgment and discretion in passing _ an ordinance it is prima facie valid, and, to justify a court in setting aside their action, its unreasonableness, and the want of necessity for it as a measure for the protection of life and property, must be clear, manifest, and undoubted, so as to amount, not to a fair exercise, but an abuse of discretion, or a mere arbitrary exercise of the power of the council.”

The statement of facts contains a map of the city of Groesbeck. This map shows the location of the fire limits of the city, and all of the buildings in such limits which are built of brick or other material (except wood) are shown by tinted lines. The width of the streets and distances of the buildings from each other are fairly shown. The Houston & Texas Central Railroad runs practically north and south on the east side of the business houses of the city. By the amended ordinance, which is assailed as being unnecessary and unreasonable, three blocks were added to tbe fire limits on the west side of the railroad, and three blocks, including block 33, in which the oil company’s property is situated, were added on the east side of said railroad. The railroad reservation or right of way is 300 or 350 feet in width and separates block 33, the block in which the oil company’s property is situated, from the main business part of the city on the west.. It is separated, however, from lumber sheds and an ofiice owned by Walker & Son on the north by a street only 100 feet wide. Block 33 is 250 feet north and south and 150 feet east and west, and has no building or structure of any character on it except the oil company’s seed house, which is a one-story shingle-roof wooden building about 25 feet wide and 40 feet long. Immediately east of block 33 is a street 90 feet wide, running north and south, with two frame residences, setting back therefrom about 25 feet, fronting on said street. Immediately north of said block 33 is a street 100 feet wide running east and west. This street separates blocks 33 and 34, and upon block 34, which is directly north of block 33, is situated the lumber sheds and office of Walker & Son. Immediately east of block 34 and the said street running north and south, 90 feet wide, and northeast of block 33, are three frame residences. South of block 33 is a street running c-ast and west SO feet wide. This street immediately south of block 33 is not fronted by any building, but south of and adjoining a vacant lot which abuts on said street are the residences of W. H. Jones and John Smith. There are also two residences in the block east of and across the 90-foot street running north and south mentioned above. One of these residences is situated in the northwest corner of said block, and the other in the southwest corner. West of block 33 about 350 feet away is Browder’s Hotel, a two-story wooden building, a barn and lot to its west, and a small “shack” in its southwest corner. The seed house is near the northwest corner of th'e block. There is a one three-story building (three blocks from the one in question), eight two-story buildings, and all other building in town are one-story buildings. The city has an estimated population of 1,600 people. All the residences in town are built of wood, and most of them are covered with wooden shingles. The oil company contemplates building a large iron-clad seed and storage house to take the place of the one in question, but it would not build a brick or other fireproof house, because they say the cost of the same would be prohibitive. There is practically no oral testimony, aside from that showing the location of the buildings and their distances from each other, etc., in regard to the hazard of fire, should it originate in the oil company’s building. The testimony of the witness, J. W. Thompson, without contradiction, tends to show that should it originate in the courthouse, which was not the original fire limit, but added by the amended ordinance, the spread would, be great and the consequences very disastrous. Surely this court, under the evidence, would not be Justified in setting aside the action of the trial court in holding that the city commissioners had not abused their discretion in enacting the ordinance in question, .and declaring as a matter of law that said ordinance was unreasonable. The presumption is that the ordinance is valid, and repeating what we have already said, when an ordinance like the one we are considering “is attacked upon the ground that it is unreasonable and therefore void, it is incumbent upon the party who alleges its invalidity to aver and prove the fact which made it so.” The oil company has not, according to the record sent to this court, discharged this burden in such manner as to authorize us to reverse the Judgment of the district court. It is therefore the order of the court that said Judgment be affirmed.

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


author: ' WABTHABL, J.

text:
    PADGITT BROS. CO. v. DORSEY.
    (No. 682.)
    (Court of Civil Appeals of Texas. El Paso.
    April 5, 1917.
    On Rehearing, April 26, 1917.)
    1. Pleading <S=204(o) — General Demurrer —Pleading Good in Part.
    In an action on open account supported by plaintiff by the statutory affidavit, a general demurrer to a defendant’s entire answer is properly overruled, where defendant files a$ part thereof a cross-action which is properly pleaded.
    [Ed. Note. — For other cases, see Pleading, Gent. Dig. § 488.]
    2. Account, Action on <§=37 — “Open Account” — Prima Facie Evidence.
    An action on account for goods sold at different times without.agreement as to time or times of payment was founded on an open account not closed by the assent of the party to be charged as to its correctness, in which case the sworn statement of account constitutes prima facie evidence under the statute.
    [Ed. Note. — For other cases, see Account, Action on, Cent. Dig. §§ 13-17.'
    For other definitions, see Words and Phrases, First and Second Series, Open Account.]
    3. Account Stated <§=»5— Assent — Necessity.
    To be a “stated account” the account must be closed by assent to its correctness by the party to be charged.
    [Ed. Note. — For other cases, see Account Stated, Cent. Dig. §§ 16-29.
    For other definitions, see Words and Phrases, First and Second Series, Account Stated.]
    4. Sales <§=>417 — Aciton for Price — Cross-Action — Evidence.
    In an. action on an open account for goods sold, where defendant alleged as part of his cross-action that the goods were not up to sample and worthless, evidence held, to sustain the action of the trial court in finding against defendant on his cross-action.
    [Ed. Note. — For other eases, see Sales, Cent. Dig. § 1173.]
    5. Contracts <§=3346(10) — Actions — Evidence.
    In a suit on a contract, one cannot recover .unless the evidence sustains the exact contract or agreement alleged in the pleadings.
    [Ed. Note. — For other .cases, see Contracts, Cent. Dig. §§ 1737-1743, 1746, 1747, 1749.]
    Appeal from Midland County Court; Earl Anderson, Judge.
    Action by the Padgitt Bros. Company against H. B. Dorsey. From a Judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    J. M. Caldwell and H. A. Beaverton, of Midland, for appellant. Chas. Gibbs, of Midland, for appellee.
   ' WABTHABL, J.

This suit was originally brought by appellant, a corporation, against appellee, in the county court of Dallas county, Tex., and, on a plea of privilege the suit was transferred to Midland county. The following is the statement of the cause of action:-

“That heretofore, to wit, on or about March 1, 1916, and on various dates thereafter, as shown by the itemized verified statement of account hereto attached and marked Exhibits A to I, inclusive, plaintiff, at the special instance and request of the defendant, sold and delivered to him the various items of goods, wares, and merchandise therein set out, and at the various prices therein charged, the same being- the reasonable market value and agreed purchase price of the same, aggregating the sum of $404.57, for which the said defendant promised and agreed to pay and become bound and obligated to pay plaintiff the said sum of money. That said debt is past due and unpaid, and though often requested, the said defendant has failed and refused, and still refuses, to pay the same, or any part thereof, to plaintiff’s damage in the said sum of $404.57.”

Attached to the petition, was the statutory affidavit and properly itemized statement of account marked Exhibits A to I, the prices at which the .goods were sold aggregating the amount sued for. Defendant answered by general demurrer, general denial, and further alleged, substantially, that he is engaged in the business of cowboy bootmaker, and that his trade requires the best of materials and products that the market affords. That plaintiff is engaged in the manufacture and wholesale of what is known to the boot trade as “uppers,” which are boots completed except the fitting and sewing on the soles and heels. That plaintiff was familiar with the business in which the defendant is engaged at the time of the transaction in question and knew the kind of products and materials required by the defendant’s trade. Defendant alleged that during the past two years he had bought great quantities of such “uppers'' from plaintiff which were sold by samples, and that plaintiff agreed that the goods sold would compare favorably with the samples; that the samples exhibited were made of high-grade Ereneh calfskin; that plaintiff agreed to fill defendant’s orders of the same grade and class so long as plaintiff was able to furnish Ereneh calfskin favorably comparing with such samples, and would notify defendant when unable to do so; that plaintiff filled the first orders with first-class Ereneh calfskin “uppers,” but later his orders were filled with an inferior grade of American calfskin uppers which were worthless; that the worthless orders filled by plaintiff for defendant, together with the price paid by defendant for such uppers, are shown by invoices attached to his answer as exhibits; that defendant has paid plaintiff the amount shown in such exhibits in ignorance of the inferior materials used by plaintiff in manufacturing the said “uppers”; that the defects in the material used were latent, and could not be discovered upon inspection, and that defendant did not know of such defects until he had received and paid for said “uppers” ; that the “uppers” shown in plaintiff’s petition shipped under said agreement to furnish same favorably comparing with said samples, but are inferior in quality and are not French calfskin, and are worthless and unfit for defendant’s trade; that defendant has paid plaintiff $783.73 for “uppers” since January 1, 1916, as shown by the invoices attached ; that said “uppers” are wholly worthless to defendant; and that thereby plaintiff became bound to reimburse defendant for said sum of $783.73. Defendant prayed that plaintiff take nothing against him, and that he have judgment in the sum above stated. The answer is verified by defendant as follows:

“H. B. Dorsey, being sworn, deposes and says that the matters and facts set forth in the foregoing answer are true”

—and was subscribed and sworn to before a notary public. To defendant’s answer is attached an itemized statement of goods bought by defendant from plaintiff between January 1, and February 25, 1919, and referred to in defendant’s answer. To defendant’s answer plaintiff presented a general demurrer as follows;

“That the plaintiff excepts to defendant’s amended original answer and says that the same is insufficient in law, wherefore he prays the judgment of the court.”

Plaintiff also presented to defendant’s answer general denial, and to the cross-action says, substantially, that the sales of the goods were not made by samples as alleged, denies that they were worthless, but were of high-class American calf; were furnished to defendant where he inspected, or had an opportunity to inspect, same, and that by inspection defendant could have become aware of any defects therein; that the material was not manufactured by plaintiff, and that defendant had equal opportunity with plaintiff to inspect said goods; that by reason of these facts “caveat emptor” applies, and denied liability for any defects should there be any, alleged that in case there were defects in the goods, it was defendant’s duty to reduce any damage, and that defendant has not done so, but has acted in such way as to increase his damage rather than reduce it, should he have sustained any. The court overruled plaintiff’s general demurrer, and, a jury being waived, the court heard the evidence and rendered judgment for plaintiff for $76.05. and that defendant take nothing on his cross-action. Plaintiff prosecutes this appeal, and defendant assigns error to the judgment of the court on his cross-action.

Appellant’s first assignment complains of the action of the court in overruling its general demurrer to defendant’s answer, the contention being that in an action founded upon an open account, supported by the statutory affidavit, an answer by general denial is insufficient though under oath. The answer to plaintiff’s cause of action, except that of a general demurrer, was a general denial. The answer did not contain a statement under oath, that appellant’s statement of account is not just or true, in whole or in part, stating the items and particulars which are unjust, as required by article 3712, E. S. But appellee did file as a part of his answer a cross-action, and it is not claimed in the assignment or any proposition thereunder that the cross-action was not properly pleaded or was subject to the general demurrer. If appellee’s answer contained 'any defensive matter properly pleaded, he would have the right to have that part remain in his answer, and the court could not properly, on the general demurrer, strike out his whole answer, as would he the result if the general demurrer was sustained, although it does not join issue on appellant’s verified open account. Appellee’s general denial, it is true, was no answer to the items pleaded by appellant, but if appellee’s cross-action, though not sustained by the proof, was properly pleaded, that part of the answer would be good as against the general demurrer. The result of the failure to properly answer appellant’s suit on the open account where any part of the answer is good as a. cross-action would be that appellant could have its judgment on its suit on its pleading alone, without evidence to sustain it, to be effected alone in part or wholly by the result of the suit on the cross-action. The first assignment is overruled.

The court struck out from the evidence the appellant’s sworn itemized account, supporting its petition. The appellant complains of this action of the court, in its second ground of error. If the appellant’s cause of action is founded upon an open account, it was error to strike out the sworn statement of account, as the statute makes it prima facie evidence that it is just and true, that it is due, and that all lawful offsets, payments, and credits have been allowed, in the absence of a sworn answer under the statute joining issue on the items. As stated above, appel-lee’s answer was a general denial, and a cross-action to recover damages on sales of goods made by appellant to appellee at dates between the Sd of January and, the 25th of February, 1916, which he alleged to be worthless.

The accounts sued upon are shown to be mutual, current dealings between appellant, a wholesome dealer, and appellee, a retail dealer. The sales and deliveries of the items of account are shown to have been made at different times; the time or times of payment not being stated or alleged to have been agreed upon. It is alleged that the purchase price of the goods was agreed upon. In Mc-Camant v. Batsell, 59 Tex. 363, our Supreme Court said:

“If a single article be sold and delivered, and the price or time of payment be left in uncertainty, this is an open account, because there is a term of the contract to be ascertained; the account is therefore unliquidated; it is open.”

To be a stated account it must he closed by the assent to its correctness by the party charged. Whittlesey v. Spofford, 47 Tex. 13; Wroten Grain & Lumber Co. et al. v. Mineola Box Mfg. Co., 95 S. W. 744. The last-cited case refers to Abbott’s Haw Dictionary for the following as an approved definition of a stated" account:

“An agreement between two persons who have had previous transactions, fixing the amount due in respect to such transactions and promising payment.”

A very similar definition is given in Ruling Case Haw, vol. 1, p. 207, where it is said:

“An account stated is an account which has been rendered by one to another, containing the balance which is alleged to be due, which balance is assented to or admitted to be a correct account of the debt it represents as due from the debtor.”

The Supreme Court of Alabama, in Comer v. Way, 107 Ala. 300, 19 South. 966, 54 Am. St. Rep. 93, said:

“An account stated is an account balanced and rendered with an assent to the balance, express or implied, so that the demand is essentially the same as if a promissory note had been given for the balance.”

The petition does not allege that the statement of account balanced and sued on was ever closed by the assent of appellee as to its correctness. Where the account is not closed by the assent of the party to be charged as to its correctness it follows that it is still an open account. Our conclusion is that appellant’s action is founded upon an open account, and that it was error to strike out the sworn, itemized account, and that appellant should have had judgment for the amount of the account, to be affected only by the result of the suit on appellee’s cross-action. What we have said above renders it unnecessary that we pass upon appellant’s remaining assignments.

Appellee’s one assignment on his cross-action claims error in the trial court’s “concluding as a matter of law that the evidence was insufficient to entitle defendant to recover on his cross-action.” The issue tendered in appellee’s answer is that the goods were sold by appellant to appellee by samples, and that appellant agreed that the goods sold would compare favorably with the samples; that the samples exhibited to appellant were made of high-grade French calfskin, and that appellant agreed to fill ap-pellee’s orders from time to time with materials of the same class of the samples so long as appellant was able to furnish French calfskin; and that if appellant was unable to furnish such French calfskin, favorably comparing with such samples, appellant would notify appellee of its inability to fill appellee’s orders with such French calfskin. The pleading does not state the date of such agreement, but we take it that it was in August, 1914, at the time of appellee’s order for 98 pairs of uppers. The issue of fact tendered as to the quality of' goods sold in January and February, 1916, and embraced in the invoices upon which the cross-action is based is that all of the uppers sold by appellant to appellee since January 1, 1916, have been inferior in quality and worthless. The evidence is that appellee had paid appellant §783.11, the full invoice price of the “uppers” shown in his cross-action, and his cross-action was to recover of appellant that sum. He testified that:

The uppers “were absolutely worthless and had no value whatsoever. I used them and made boots with them and sold the boots, but I could not determine the inferiority of the material by inspection, because the uppers had been stitched, shaped, and glazed over with some kind of gum or polish that covered the grain of the leather. Soon after I sold these boots I had to make good more than 100 pairs, and had many complaints from others. The leather was rotten, and would not wear out the first pair of soles, though they should have worn the first pair of soles out and two additional pairs of half soles. These uppers were worthless and rotten, though I paid for them without knowing that they were worthless.”

He further testified:

“I put from $6 to §7.50 worth of work on each pair of boots made with uppers bought from Padgitt Bros. Company, and I sold these boots from §8.50 to §15.50 per pair. When I had so many complaints about these boots, X put on a sale and sold what I had left of the Pad-gitt Bros. Company boots or rather boots made by me with uppers bought from Padgitt Bros Company at $8.50 per pair, and explained to my customers that I could not guarantee these boots. This sale was in May, 1916. I didn’t have many pairs of boots made with Padgitt Bros. Company uppers at that time. Yes, it is true that I sold some boots made with Padgitt Bros. Company uppers and had no complaint from the purchasers of same.”

There is neither pleading nor proof as to whether Padgitt Bros. Company was able or unable in 1916 to furnish high-grade French calfskin uppers comparing favorably with the samples exhibited by appellant to appel-lee in 1914, or whether appellee was notified that appellant was unable to furnish high-grade French calfskin uppers in 1916. The cross-action is based on the theory that appellant was able to furnish high-grade French calfskin uppers in 1916 without alleging or proving that such was the fact. The proof shows that there is a shortage of European tannage due to the war. Witness Thain, foreman of appellant in its shoe-cutting department,' said: That he sold appellee the first bill of goods he bought of appellant. That appellee expressed a preference for French calf as over American .calf, and that he told appellee he would fill his orders with French calf as long as he could get it, and told him at that time that French calf was getting scarce on account of the war. Witness filled appellee’s orders. Said that where calf was ordered he used the best French calf as long as he could get it. Otherwise he used the best American calf. That ap-pellee never asked for a guaranty nor was one given. That on one or two occasions ap-pellee mailed back a pair of uppers which he did not think were as good as they should be, and that on each occasion he mailed to him another pair in its stead. At one time Dorsey made a general complaint to the effect that the American calf being put in the uppers was not giving satisfaction to his trade, and claimed at that time that appellant was not giving him French calf when it might have done so, and witness said such was not true, and that he so advised Dorsey at the time. That during 1914 and the latter part of 1915 appellant was using French calf. That during the first part of 1916, appellant was using the best quality of American calf that appellant could get. That on March 27, 1916, witness took an order from appellee. That Dorsey was then manufacturing hoots and was using American calf, the same kind appellant was using and had been using. Hinckley, manager of the shoe department of appellant, met appellee the first time he placed an order with appellant. The last time Dorsey was in appellant’s house — time not named — Dorsey made complaint to him about the uppers. It was a general complaint, to the effect that the uppers were not giving satisfaction to his customers. Padgitt Bros. Company does not manufacture the material for their uppers. They buy from the tanners. The leather is never guaranteed. Since the war began it has been impossible to get French calf. The evidence is too lengthy to even state it substantially.

A careful reading of the evidence convinces us that the court was not without evidence to support its finding against appel-lee on his cross-action. It is quite clear that before January 1,1916, appellee knew that he was not getting high-grade French calfskin uppers. The evidence does not even tend to show that appellant was able, after January 1, 1916, to fill appellee’s orders for uppers with high-grade French calfskin. It is an axiom of the law that, in a suit on a contract, one cannot recover unless the evidence sustains the exact contract or agreement alleged in the pleadings. Mason v. Kleberg, 4 Tex. 86; McGreal v. Wilson, 9 Tex. 427; Gammage v. Alexander, 14 Tex. 418; W. U. Tel. Co. v. Smith, 88 Tex. 9, 28 S. W. 931, 30 S. W. 549; Orynski v. Menger, 15 Tex. Civ. App. 448, 39 S. W. 388; Bagley v. Brack et al., 154 S. W. 247. The cross-assignment is overruled. The evidence having been fully developed on the trial, the judgment of the lower court is reversed in part, and here rendered in favor of appellant and against appellee for the sum of $404.57, and affirmed as to appellee’s cross-action; that he take nothing by his cross-action.

On Rehearing.

The former order reversing and rendering this cause is set aside, and the cause is now reversed and remanded for retrial.

Upon further consideration of the record, the conclusion has been reached that: the ends of justice will be better served by reversing and remanding rather than reversing and rendering.

It is so ordered.
      <&»Por other cases see same topic and KD Y-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, O. J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. PRESTON.
    (No. 1757.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 22, 1917.
    On Appellant’s Motion for Rehearing, April 5, 1917.)
    1. Carriers <g=>283(2) — Passengers—Negligence oe Servant — Scope oe Employment.
    If it was a railroad porter’s duty to open doors of a ear vestibule at a station, it wasv not outside the scope of his employment as to“ a passenger to open the door on a particular side, notwithstanding that in opening it he may have violated the railroad’s instructions and rules.
    [Ed. Note. — For other cases", seo Carriers, Cent. Dig. §§ 1121, 1122.]
    2. Carriers <S=>303(1) — Passengers — Injuries — Liability oe Road.
    Where a railroad porter undertook to open a car vestibule door for plaintiff and to aid him in alighting from the team with a box of whisky, but in performing such duty the porter negligently caused the box to fall down the steps and against plaintiff, thereby knocking him from the steps, and his act in causing the box to fall down the steps was the proximate cause of injury to plaintiff, the road was liable to plaintiff for the damages he sustained by falling from the car.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1224.]
    3. Trial <3=5352(5) — Special Issues.
    In an action for injuries to a railroad passenger when alighting, questions eliciting the jury’s findings held not confusing- and misleading or on the weight of the evidence in assuming the existence of controverted facts.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 841.]
    4. Carriers <®=5>318(9) — Passengers — Injuries — Sueeioiency oe Evidence.
    In an action for injuries to a railroad passenger when he was knocked off the steps of a car by the porter’s pushing a box against him, evidence held sufficient to authorize findings establishing the railroad’s liability.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1314,]
    5. Appeal and Error <®=5¡10O2 — Review— , Findings — ConelIioting Evidence.
    It was the jury’s duty to determine a conflict of the testimony, and their findings should not be set aside by the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3035-3937.]
    On Appellant’s Motion for Rehearing.
    S. Carriers <3=5283(21 — Carriage oe Passengers — Duty oe Railroad Servant.
    That a railroad passenger induced its porter to violate the road’s instructions in regard to opening car vestibule doors did not relieve the porter of his duty as such to use care to avoid injuring the passenger, as by pushing- 'down the stops against the passenger a box of whisky carried by the latter.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1121, 1122.]
    Appeal from District Court, Franklin County; A. B. Ward, Judge.
    Action by W. E. Preston against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Appellee was a passenger from Dallas to Winfield on appellant’s train due at the latter place at about 4 o’clock on the morning of May 21, 1914. He was in the coach next to the baggage car from the locomotive. The front end of the coach was equipped with a vestibule, and was divided into compartments, the front one being for negro passengers, and the other being a “smoker” for white passengers. Appellee was in th« “smoker.” 1-Iis home was in or near Win-field. Appellant’s depot at Winfield was situated on the north side of its track, and passengers from and to that station, in compliance with appellant’s rules and regulations, usually got on and off its trains on that side. While in Dallas, where he had gone the day before, appellee purchased for himself and other persons 16 quarts of whisky in bottles, which, packed in a paper box weighing, with its contents, 40 or 50 pounds, he was carrying back to Winfield. When “Winfield” was called by the porter on the train as it approached that place, appellee, carrying the box of whisky in his hands, went from the “smoker,” through the compartment for ne-groes, to the vestibule of the coach, preparatory to alighting from the train when it stopped at the depot. Appellee testified that as he passed through the compartment for ne-groes on his way to the vestibule he turned the box of whisky over to appellant’s train porter, a negro, who carried it to vestibule, and who, appellee said, after opening the door to the south side of the coach — the side opposite to and farthest from the depot —placed it on the top one of the steps to that side of the coach. On reaching the vestibule appellee took a position on the bottom one of said steps, preparatory to alighting from the train on the south side thereof when it stopped. While occupying that position, according to his testimony, and while the train was still moving, the porter pushed or shoved the box down the steps against ap-pellee, causing him to fall from and under the coach, the wheels of which ran over his right leg, so injuring it as to necessitate the amputation thereof, 1-Ie brought this suit against appellant, and recovered judgment against it for $5,000, on the theory that the porter was guilty of negligence in pushing or shoving the box as stated, rendering appellant liable to him for damages he suffered because of the injury. Appellant’s answer to appellee’s petition consisted of a general denial and special pleas setting up (1) contributory negligence on the part of appellee, and (2) that its porter in acting as appellee charged he did on assisting him to alight from the south side of the coach, instead of the side thereof next to the depot, acted outside the scope of his duty as its employé and collusively with appellee for his accommodation. The case was submitted to the jury on special issues, which, with the findings thereon, were as follows:
    “Question. No. 1. State whether or not you find from the evidence in this case that the defendant’s train porter, as charged by plaintiff, undertook to open the vestibule door for plaintiff and to aid the plaintiff in alighting and taking his box of liquor from defendant’s train at Winfield, Texas. Answer: Yes.
    “Question No. 2. State whether or not you find from the evidence in this case that defendant’s train porter negligently pushed or shoved or caused plaintiff’s box of liquor to fall from the steps in the vestibule of defendant’s train, down the steps thereof, onto or against the plaintiff, thereby knocking him from the said steps, as alleged by plaintiff, as negligence is defined to you in this charge. Answer: Yes.
    “Question No. 3. If you find from the evidence that defendant’s train porter did negligently push, shove, or cause plaintiff’s box to fall from the steps in the vestibule of defendant’s train, down the steps thereof, onto or against plaintiff, then state whether or not the said act of defendant’s train porter, if any, was the proximate cause as defined to you herein. Answer: Yes.
    “Question No. 4. State whether or not you find from the evidence in this case that the plaintiff, while a passenger on defendant’s train, took his box of intoxicating liquor to the vestibule of defendant’s train at the front end of the coach prepared for colored people, with •the intention to alight from said train on the opposite side from the depot, for the purpose of avoiding detection and arrest by the officers. Answer: No.
    “Question No. 5. State whether or not you find from the evidence in this case that the plaintiff, without the aid of defendant’s employes, or either of them, opened the vestibule door of defendant’s train on the opposite side from its station at Winfield, and negligently undertook to alight with his box of liquor from defendant’s moving train. Answer: No.
    “Question No. 6. If you find from the evidence that plaintiff took his box of liquor to the vestibule of- defendant’s train, and opened the door and undertook to negligently alight with his box of liquor from defendant’s train without the aid of defendant’s servants or either of them, _ then ■ state whether or not you find that the said act of the plaintiff was the proximate cause of his injury. Answer: No.
    “Question No. 7. State the amount, if any, of damages the plaintiff has sustained and suffered by reason of his injuries. Answer: $5,000.”
    The court, having overruled appellant’s motion to set aside the findings of the jury, and its motion to render judgment in its favor notwithstanding said findings, on motion of appellee rendered judgment in his favor on said findings.
    Glass, Estes, King & Burford, of Texarkana, E. B. Perkins, of Dallas, J. M. Burford and Butler Rolston, both of Mt. Pleasant, and L. W. Davidson, of Mt. Vernon, for appellant. Evans & Shields, of Greenville, and R. T. Wilkinson, of Mt. Vernon, for appellee.
   WILLSON, O. J.

(after stating the facts as above). As we view the record, the only issues made by both the pleadings and the evidence were one as to negligence vel non on the part of the train porter, and, if he was negligent, one as to the amount appellee was entitled to recover as damages for the injury he suffered. It conclusively appeared that the injury appellee sustained was due to his falling from the train. There was no evidence tending to show that, if he fell because the porter negligently shoved the box against him, negligence of his own co-operated and concurred with that of the porter in causing him to fall. Therefore the issue as to contributory negligence on the part of appellee, made by the pleadings was not made by the testimony. Nor do we think the testimony made an issue as to whether the porter, if he, at appellee’s request, in violation of appellant’s rules, opened the door to the south side of the vestibule to enable appellee to alight from the train on that side, acted outside the scope of his duty as appellant’s employs or not.

If it was the porter’s duty to open doors of the vestibule at the station, it was not outside the scope of his employment to open the one in question, notwithstanding, in opening it, he may have violated appellant’s instructions and rules. Burnett v. Oechsner, 92 Tex. 588, 50 S. W. 562, 71 Am. St. Rep. 880; Ry. Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902. The testimony of appellant’s assistant superintendent, Hutchings, on its behalf, that it was the porter’s duty to open vestibule doors at stations and assist passengers was uncontro-verted.

The validity, of the judgment depends, we think, upon the answers which should be made to questions, to wit: (1) Did the findings made by the jury authorize it? (2) Were the findings supported by testimony? If both questions should be answered in the affirmative, the judgment should be affirmed. If either should be answered in the negative, it should'be reversed.

The jury found, as is shown in the statement above, (1) that the porter undertook to open the door for appellee and to aid him in alighting from the train with his box of whisky; (2) that in performing his undertaking the porter “negligently” caused the box to fall down the steps and against ap-pellee, “thereby knocking him” from said steps; • and (3) that his act in causing the box to fall down tbe steps was tbe proximate cause of the injury to appellee.

Unquestionably, we think, the findings specified established liability on the part of appellant to appellee, and authorized judgment against it for the damages he sustained as a result of his falling from the car.

The objections to the findings based on the questions they were answers to are, we think, not tenable. Neither of the questions was “confusing and misleading” or “on the weight of the evidence in assuming the existence of controverted facts.”

That each of the findings specified was supported by testimony is shown by the record. Appellee, as a witness on his own behalf, testified, in effect, repeating much that is said in the statement above, as follows: At his request the porter agreed to assist him in getting off the train on the south side thereof when it reached AVinfield. After calling that place, and before the train reached the station, the porter took appellee’s box of whisky, and, accompanied by appellee, went to tlie vestibule of the coach. Wlien they reached the vestibule the porter opened the door to the south side thereof,. and placed the box on the floor, “right close up to the top” of the steps thereto on that side. Ap-pellee took a position on the step above it, holding with one hand to the handrail of the coach, and resting his other hand on the box. While he was standing in that position, and while the train was still moving, the porter told him it was “time to get off,” and with his foot shoved the box down the steps. The box, falling against appellee’s legs, caused him to fall from the train. “I saw the porter push that box,” appellee testified; “he just taken his foot this way and pushed it. He pushed it with such force until it knocked me off.” Appellee’s testimony was corroborated by that of the witness Spruill, whom the jury had a right to believe.

It is clear, we think, that the testimony referred to authorized the findings establishing appellant’s liability to appellee. The fact that that testimony was contradicted in toto by the testimony of other witnesses is not a reason for reversing the judgment. As the accident could have happened as appellee said it did, we have no right, in face of the finding of the jury that it did happen that way, to say it did not.

It was the duty of the jury to determine the conflict in the testimony, and, they having determined it, their findings should not be set aside by us.

Other assignments in the briefs not in effect disposed of by what has been said are believed to be without merit, and are overruled.

The judgment is affirmed.

On Appellant’s Motion for Rehearing.

Notwithstanding it appeared from the un-contradieted testimony of its assistant superintendent and others who testified on its behalf that it was the porter’s duty to open vestibule doors at stations and assist passengers in alighting from appellant’s trains, appellant insists that we erred in holding that it appeared as a matter of law 'that the porter acted within the scope of his duty as such if he opened the door to the south side of the vestibule to enable appellee to alight from the train on that side.

The insistence is not based on a claim that there was any testimony showing it was not the porter’s duty to do that, but on testimony showing that the porter’s instructions were to open only doors to the sides of the vestibules next to stations, and to assist negro passengers in alighting from the train through those doors; and on testimony which appellant thinks shows that if the porter opened the door on the south side as claimed by appellee, and so violated his instructions, he acted in collusion with appellee, and should be held to have acted as appellee’s agent and not in his capacity as porter.

It is, we think, plain enough, without discussion or a. citation of authorities, that if the duty appellant devolved on the porter was to open vestibule doors at stations, it should not be heard to say, as against a passenger, that he acted outside .the scope of his authority as porter when he opened a particular one of such doors, notwithstanding in doing so he may have violated its instructions.

The testimony relied upon as supporting the contention made, that if the porter opened the door as claimed he acted in collusion with appellee, was that of appellee as follows:

“I told him (the porter) I wanted to get off on the opposite side and wanted him to assist me in getting off, and he said he would.”

Appellee further testified that at the time he made the request of the porter he thought a compliance with it would be against appellant’s rules, and for that reason did not make it until after another porter and the conductor, who were in the coach as it approached Winfield, had left it.

We do not think the testimony referred to made an issue as to whether appellant was responsible for the conduct of the porter or not. Appellee was a passenger.

That he may have induced the porter to violate appellant’s instructions in regard to opening vestibule doors did not relieve the porter of his duty as such to use care to avoid injuring him. Appellee was not injured because of the violation by the porter at his instance of appellant’s rules. He was injured because of the negligent, act of the porter in pushing the box against him; in other words, because of the failure .of the porter to discharge the duty he owed to exercise care for appellee’s safety while a passenger •on the train. We do not think the principle applied in Grahn v. Ry. Co., 100 Tex. 27, 99 S. W. 104, 5 L. R. A. (N. S.) 1025, 123 Am. St. Rep. 767, cited by appellant as supporting its contention, is applicable to the facts here. 'Grahn was not a passenger on the freight train. I-Ie was on it without authority from any one authorized to accept him as a passenger, in violation of the company’s rules, and in collusion with the conductor. He was a trespasser on the train, and the company owed him no duty it did not owe a trespasser.

The motion is overruled.
      <S=5Por otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    KANSAS CITY, M. & O. RY. CO. v. TRAMMELL.
    (No. 692.)
    (Court of Civil Appeals of Texas. El Paso.
    April 19, 1917.
    Rehearing Denied May 17, 1917.)
    1. Railroads <®=>415(3)—Animals on Track —Necessity oe Lookout.
    Defendant railroad’s employés may assume that a law prohibiting the running at large of animals will be obeyed, and are not negligent in failing to keep a lookout for animals on the track at such points.
    [Ed. Note.—Eor other cases, see Railroads, Cent. Dig. § 1478.] •

      2. RailRoads @=>443(7) — .Animals on Track —SUFFICilENCY OF EVIDENCE.
    In action to recover for mules killed on defendant’s railroad track, evidence not showing that their presence in a place of danger was discovered iby defendant’s! temployés in time to avoid the accident is insufficient to raise an issue under the doctrine of discovered peril.
    Appeal from Nolan County Court; Jno. H. Cochran, Jr., Judge.
    Action by D. Trammell against the Kansas City, Mexico & Orient Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    H. S. Garrett, of San Angelo, and Beall & Douthit, of Sweetwater, for appellant. Gris-ham & Grisham, of Sweetwater, for appellee.
   HIGGINS, J.

Trammell brought this suit to recover the value of three mules killed by one of appellant’s trains in the town of Sweetwater. Verdict was returned and judgment rendered in his favor.

The animals were killed within the limits of the incorporated town of Sweetwater and at a point where defendant was not required to have its right of way fenced. The animals had escaped from a pen in which they were confined and wandered upon the track of defendant. They were killed by a train passing in the night. No one saw the animals killed, and there is an utter, want of testimony showing the circumstances under which they were killed. At the time the town of Sweetwater had in force an ordinance pror hibiting animals from running at large within its corporate limits and providing a penalty for its violation.

The plaintiff alleged that defendant was guilty of negligence proximately causing the death of the animals in this: First, in failing to have a proper headlight upon its engine; second, if it had a proper headlight, that it failed to maintain a proper lookout; third, if it maintained a proper lookout and had a proper headlight, that it was negligent in pursuing the animals and killing them, and in any event was liable for their value.

As to the first ground of negligence, it is sufficient to say that there is not an iota of evidence that the engine or train which struck the animals was without a proper headlight.

A judgment cannot be maintained upon' the second ground because they were killed at a point where animals were prohibited by law from running at large. The employés of the railway company had a right to assume that no animals would be at large at that point. Hence they were under no obligation to maintain a lookout for them, and their failure so to do was not negligence. Railway v. Cocke, 64 Tex. 151; Railway Co. v. Byrd, 58 Tex. Civ. App. 609, 124 S. W. 738; Railway Co. v. Russell, 43 S. W. 576; Railway Co. v. Hudgens, 43 Tex. Civ. App. 201, 94 S. W. 378; Railway Co. v. Decatur, etc., 179 S. W. 1104.

As to the third ground, of negligence, the only theory which it presents is discovered peril. The evidence is wholly insufficient to raise any issue of liability under the doctrine of discovered peril because it fails to show that the presence of the mules in a place of danger was discovered by the operators of the train, and that such discovery was made in time to avoid the accident by the use of the means at hand consistent with the safety of the train, and that such operators failed to so use such means. Recovery could not be had upon that doctrine, unless the evidence raised the issues indicated. Irving v. Railway Co., 164 S. W. 910, and cases there cited. Under the evidence, there is no theory under which a judgment could be sustained.

Reversed and rendered.
      ©u^Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    OXWELD ACETYLENE CO. v. DARDEN.
    (No. 1721.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 20, 1917.
    Rehearing Denied March 29, 1917.)
    1. Sales <⅜=347(4) — Seller’s Action for Price — Defense of Fraud.
    In suit on a note given for purchase of an acetylene plant, defense of fraud in inducing defendant to execute the contract must be such as would justify its rescission, the note being an executed contract to unconditionally pay money at a stipulated time.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 966.]
    2. Sales <®=338(3) — Misrepresentation—Expression of Opinion — Climatic, Conditions.
    Misrepresentations relating to climatic conditions causing water to freeze are to be treated as mere expressions of opinion, being matters of general knowledge.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 67.]
    3. Sales <¾=38(3) — Contract oe Saui— Fraud — Future Occurrence.
    False representations that water in the retainer of an acetylene plant sold to defendant would not freeze is not actionable fraud, since it relates to a future occurrence.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 67.]
    4. Sales @=>52(1) — Contract of Sale — Defense of Fraud — Burden of Proof.
    Where defendant in action on note given in purchasing an acetylene plant alleged fraud m inducing him to execute contract, burden was upon him to prove such defense.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 118-123, 1045.]
    Appeal from Smith, County Court; Jesse F. Odom, Judge.
    Suit iu justice court by the Oxweld Acetylene Company against E. J. Darden. Judgment for defendant, and plaintiff appealed to county court, where judgment was affirmed, and plaintiff appeals.
    Reversed, and judgment rendered for plaintiff.

      Price & Beaird, of Tyler, and J. A. Mallory, of Lindale, for appellant. Simpson, Lasseter & Gentry, of Tyler, for appellee.
   HODGES, J.

This case originated in the justice court of precinct No. 6 of Smith county in a suit by the appellant against the appel-lee to recover the sum of $165, together with interest and attorney’s fees on a promissory note. From a judgment in favor of the ap-pellee the appellant appealed to the county court, and from a similar judgment in the county court this appeal is prosecuted. The only error assigned is that the verdict of the jury and the judgment rendered were contrary to the undisputed evidence.

The facts show that on February 25, 1914, the appellant’s agent took from the appellee an order for an acetylene plant. The order was in the form of a contract, and contained the following warranty:

“It is agreed that in accepting this order the .company warrants the apparatus furnished to be a thoroughly durable galvanized steel acetylene generator, automatic in action and of good material and workmanship, and that it is on the permitted list of the National Board of Fire Underwriters.”

It is further stipulated:

“That this order shall become a contract between the purchaser and the company upon the acceptance thereof at any of its regular offices in the spaces below by duly authorized manager or officer of said company; it being understood that this instrument upon such acceptance covers all of the agreements modifying or adding to the terms and conditions herein set forth. It is further understood that upon the acceptance of this order the contract so made cannot be canceled or repudiated by the purchaser-, or altered or modified by any agent or representative of the company, or in any manner except by agreement in writing between the purchaser and the company acting by a duly authorized manager or officer of said company.”

On March. 3, 1914, the appellee executed his promissory note, agreeing to pay the sum of $165 on February 25, 1915, together with. interest at -the rate of 10 per cent, per annum from date and 10 per cent, as attorney’s fees.

The defense rests upon the plea that the agent who took the above order made certain material misrepresentations. According to the appellee’s testimony the agent told Mm that the water in the retainer would not freeze during the winter in that climate. He says that he read part of the contract; he had an opportunity to read it all, but failed to do so because he relied upon the agent’s representations concerning the contract. He further testified that after the plant was erected he used it until the following winter; that when the weather became cold the water in the retainer froze, and while frozen the plant could not be operated. 'He stated that he made no effort to inclose the plant with a house, or otherwise protect it from cold weather. It appears from other testimony that the freezing of the water merely prevented the formation of the gas consumed in producing the light; that when the ice melted or if the ice were broken the gas would form in the usual manner. There does not seem to be any other objection to the plant made or relied upon as a defense.

The note sued on being an executed contract to unconditionally pay money at a stipulated time, the appellee can escape liability only by showing that he was induced to enter into the contract by such fraud as would justify its rescission. The only fraud charged is the misrepresentation that the water in the retainer would not freeze during the winter. Climatic conditions which cause water to freeze are matters so generally known that such representations should be treated as mere expressions of opinion. X Black on Rescission and Cancellation, § 76. But conceding that it should be regarded as the statement of a fact, it related to a future occurrence, and there is no such fraud shown as would authorize the court to rescind the contract between the parties. The defendant below having alleged fraud and rested his defense entirely upon that ground, it devolved upon Mm to prove that defense by satisfactory evidence. TMs he has failed to do.

The judgment of the c.ounty court will therefore be reversed, and judgment will be here rendered in favor of the appellant for the full amount sued for and for all costs both of this court and of the court below.
      @=>For other oases see same topic and KEY-NUMBER ⅛ all Key-Numbered Digests and Indexes