author: KEY, C. J.

text:
    HOLDERMAN v. REYNOLDS.
    (Court of Civil Appeals of Texas. Austin.
    March 5, 1913.
    Rehearing Denied June 25, 1913.)
    1. Trial (§ 60) — Reception of Evidence— Proof of Agency.
    Where, in a suit upon promissory notes, the answer averred that the notes had been paid off and discharged by contracts entered into with agents of the owner of the notes, defendant was properly permitted to testify as to contracts with the alleged agents, there being some proof tending to show that they were the agents of the owner with authority to make the contracts.
    (Ed. Note. — For other cases, see Trial, Cent. Dig. §§, 141-145; Dec. Dig. § 60.]
    2. Release (§ 55) — Evidence.
    As a defense to a suit upon notes, defendant pleaded that they were executed for a cotton gin which was afterwards sold by the defendant to .a third ■ party, who assumed the payment of the notes sued on; that at the time of the sale of the cotton gin he also ■sol'd to the third 'party a lot and corn sheller, for which the third party executed to defendant his mote for $600, and a vendor’s lien was retained by ddf endaat on the corn sheller and lot to secure 'this note; that' afterwards the owner of the notes sued on agreed to release defendant frsm all liability on them if defendant would release his lien and permit the owner to subject the corn-sheller and Rot to the satisfaction -of the notes sued on. ¡HM, that it was •error to ¡permit defendant to «cuse his failure to ¡release ’the mote and lien ’by testifying that he had never been requested to do so, as the burden of prodf was on defendant to ¡prove the ■contract pleaded as a defense .and his compliance with ¡it.
    '[Ed. Note. — For other cases, see Release, Cent. Dig. >§§ 94-100; Dee. Dig. •■§ 55.]
    ¡3. Bills and Notes (| 511') —Evidence — RELEVANCY.
    •In ¡a -suit upon promissory -nates, it was isnror to -admit evidence before the -jury showing that the volume of business of the owner -of the notes amounted to from $45,‘000 to $90,-<000 annually, which was -entirely immaterial; tfihe only -purpose being to exeite the sympathy -o'f the jury by contrasting the ¡financial condi-itio-ns <oí the parties.
    '[Ed. Note. — For other cases, -see Bilis and Notes, 'CeBt. Dig. §§ 1700-17!?®:; Dec. Dig. § 611.3
    4. Limitation of Actions i(§ ¡193.) — Pleading — Necessity.
    itn a suit upon promissory mates .it was error to admit evidence before the .jury showing that some .of the notes sued on were barred and could have been defeated by a ¡plea of limitation if it had been desired, as it was not proper to prove a defense not pleaded.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 704-710; Dec. Dig. § 193.]
    Appeal from District Court, McLennan Comity; J. N. -Gallagher, Special Judge.
    Action by M. Holderman against C. S. Reynolds. From a judgment in favor of defendant, plaintiff appeals.
    Reversed.
    Davis & Cocke, of Waco, for appellant. Spell & Sanford, of Waeo> for appellee.

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

   KEY, C. J.

Appellant instituted this suit against appellee upon several different promissory notes, some made payable to appellant and others to the firm of D. June & Co., but all owned by appellant. The petition admitted that certain payments had been made and sought to recover the balance alleged to be due on several notes.

In his answer appellee admitted his liability on one of the notes for $150, admitted that he executed all the other notes, but alleged that they had been paid off, settled, and discharged; the answer in that respect being summarized in appellant’s brief as follows: “As to the note of $562.50, dated April 16, 1900, defendant admitted that he executed and delivered the said note as alleged in. plaintiff’s petition, but that the same had been fully paid off and satisfied as follows: That D. June & Co., doing business at Waco, Tex., was engaged in the sale off cotto'n gin machinery, and that M. Holder-man, to whom said note was payable, was¡ manager, and. that defendant, about the date-of said note, purchased from said D. June Co., or Holderman, but, as he understood’ D. June & Co., the gin plant and gin machinery claimed to be owned by either the partnership or M. Holderman, located at Pancake, in Coryell county, Tex., together with: the land on which same was located, about an acre, and that as a part of the purchase price executed th-e said note for $562.50, but thereafter paid to Holderman or D. June & Co. a sum -of money which was received by Holderman, either for himself or D. June & Ca, as a credit upon said note, the exact amount and date of which is not remembered, but according to his best recollection was mot less than $200 and not exceeding $300. and the date was about November, 1901, and that, if the note was then owned by D. June ■& Co., Holderman, in receiving it, acted as the agent of D. June & Co. with full power and authority to receive payments and credits upon said note. That the gin plant was operated by said defendant during the ginning season of 1900 and a part of 1901, when the same was accidentally set on fire, resulting in tile total and partial destruction of a part thereof, and the remainder not damaged at all or very slightly, but that the gin plant was rendered useless and was not -repaired by defendant That some time in 1902 defendant and the then owner of the note, either Holderman or D. June & Co., entered into an agreement by which the defendant conveyed to Holderman or D. June & Co., all the portions of said gin plant and machinery having-any value after the fire, and the land upon which the same was located, in consideration of the balance due upon said note. That the negotiations with reference to said agreement, and in making the same, the owner of said note acted through said Hold-erman partly and partly through one Sid Farmer, both of whom defendant alleged had full power and authority to act for said Holderman In the particulars of said agreement. That, as to the said note’s for $300 each, defendant admits that he executed and delivered the same as alleged by plaintiff, but that the same had been paid off and discharged as follows: That about the date of said two notes defendant purchased from D. June & Co. a complete outfit of wheat threshing machinery at the agreed price of $1,100 and paid D. June & Co. the sum of $200 in cash and executed three promissory notes for $300 each, of which the two of the $300 notes are a part. That the first of said notes was paid in full and canceled and delivered to defendant, and that in the year 1902 defendant and the owner of said two notes for $300 each, either D. June & Co. or Holderman, entered into an agreement by which defendant transferred and delivered to the owner of said two notes all of the threshing machinery in consideration of the cancellation and discharge of said two notes of $300 each. That, in negotiations leading up to said agreement and making the same, the owner of said two notes acted through Holderman partly and partly through one Sid Farmer, both of whom had full power and authority to act for said owner. That, as to the three notes of $2,000 each, defendant admits that he executed and delivered same as alleged in plaintiff’s petition, but that they have been long since fully paid off, satisfied, and discharged as follows: That some time previous to the date of the said three notes defendant purchased from D. June & Co. a gin plant, including gin machinery and the land upon which it was located and the buildings thereon, at Corsicana, Tex., at the agreed price of $7,000; in part payment the three notes were executed and delivered to D. June & Co. That the gin plant was operated by defendant during the ginning season of 1903 and 1904, but that at the close of the 1904 season, some time during the year 1905, defendant sold said gin plant and the land on which same was located to one Thompson, having in the meantime made some payments as credits on the indebtedness represented by said three notes, and that a part of the purchase price to be paid by said Thompson was. the assumption of the balance due on said three notes. That thereafter defendant moved to the state of Oklahoma, and after he had removed said gin plant was set on fire and partially destroyed in the latter part of the summer or early fall of 1905, according to defendant’s best recollection. That contemporaneously, with the sale by the defendant to said Thompson of the said gin plant he also sold and conveyed to said Thompson a certain other parcel of land in the city of Corsicana, adjoining the gin plant, upon which was located a corn-sheller plant, and as part payment of the purchase price thereof said Thompson gave to the defendant his promissory note for $623.10, and to secure the same a vendor’s lien was retained on the other parcel of land. That shortly after the said fire, and at the special instance and request of one George A. Clark, agent and employé of the then owner of the said three notes, either the said D. June & Co. or the said Holderman, defendant went from his home in the state of Oklahoma to Corsicana and there met Clark. That upon his arrival at Corsicana he learned that the gin plant at the time of the fire was insured against loss by fire, and that the said Thompson and the owner of said three notes, acting by him or their agent Clark, were in a controversy as to how and to whom the amount due and owing under the insurance policy should be paid and how the indebtedness represented by the said three notes, a portion of which still remained unpaid, should be paid and adjusted, and the said Clark, acting as such agent, proposed to defendant that, if he would assist him in an effort to induce Thompson to settle the controversy satisfactorily to Clark and permit the owner of said notes to take whatever steps might be necessary to subject to the payment of the said notes the said other parcel of land upon which the corn sheller was located without objection or interference by defendant, then defendant should be discharged and acquitted of any further liability upon said three notes for $2,000 each, and his liability thereon to be discharged and annulled, which was agreed to by defendant; and an agreement was made between defendant and Clark, acting as such agent with full authority, in accordance with the terms of said proposition, made by said Clark, and that defendant carried out and performed every obligation undertaken and assumed by him under said agreement and thereby was discharged from any further liability upon said notes. And that therefore defendant is not liable for the payment of said notes or any part thereof.”

The court instructed the jury to return, a verdict for plaintiff for the amount due on the $150 note and to find for him as to the balance alleged to be due on the other notes unless they found in favor of the defendant upon one or more of his pleas of settlement and discharge. The jury returned a verdict for plaintiff as to the $150 note and made specific findings as to each of the others in favor of the defendant. Judgment was rendered accordingly, and the plaintiff prosecutes this appeal.

Much of appellant’s brief and argument rests upon the contention that the trial court committed error in permitting appellee to testify as to certain alleged contracts and agreements between him and one Sid Farmer and one Geo. A. Clark. The testimony referred to was in support of the averments in appellee’s answer wherein he alleged that the notes had been paid off and discharged by contracts entered into by Sid Farmer and Geo. A. Clark, acting as agents for D. June & Co., the owner of the notes. The main objection to the testimony was that there was no proof that either Farmer or Clark was authorized by Ü. June & Co. to make any such contracts or enter into any such agreements. The proof shows that at that time the notes belonged to D. June & Co., and both Farmer and Clark had, for many years, been collecting agents and salesmen for that company; and there was some testimony tending to show that the making of such contracts was within the scope of their authority; and therefore we overrule the assignments relating to those questions. The court submitted the case to the jury by a charge which, in connection with the special charges given at appellant’s request, constituted a fair and reasonably accurate statement and submission of the law of the case; and we overrule all the assignments predicated upon the giving or refusal of instructions. As to all of the issues presented to the jury, there was sharp conflict in the testimony; and, to say the least, that portion of the verdict finding for the defendant as to the balance claimed by the plaintiff upon the notes for the Corsicana gin lots rests upon very meager and unsatisfactory testimony; and, this being the case, we have reached the conclusion that the judgment should be reversed on account of the errors hereafter referred to, when considered collectively.

The sixth assignment complains of the action of the court in overruling appellant’s objection and permitting appellee, while a witness on the stand, to testify that neither appellant nor any one representing D. June & Co., had requested him to sign a release for the corn sheller note executed to defendant by Thompson for something over $600; and if they were to do so he would sign such release. That testimony related to the alleged agreement ih reference to the notes for the Corsicana gin property. The materiality of the lien secured by the note referred to rested upon the fact that it constituted an obstacle tending to prevent D. June & Co. from subjecting the property covered by the lien to the payment of the Corsicana gin lot notes; and the burden rested upon appellee, under the contract pleaded by him, to show that he had removed that obstacle; and therefore it was not proper for him to undertake to excuse himself for a failure to obtain or execute a release of the lien by testifying that he had never been requested, but was willing, to do so.

The seventh assignment is addressed to the action of the court in permitting counsel for appellee to ask appellant on cross-examination, and requiring appellant to answer, as to the volume of business transacted by D. June & Co. from 1900 to 1905. The answers of the witness showed that the business referred to ranged from $45,000 to $90,000 annually. That testimony was utterly immaterial upon any phase of the case, and we can surmise no reason why it was placed before the jury, unless it was for the purpose of contrasting the financial conditions of D. June & Co. on the one hand and appellee on the other. The undisputed proof shows that appellant was a member of the firm and general manager of D. June & Co.; and, unless this testimony was intended to suggest to the jury that a rich man was suing a poor man, we can conceive of no reason why it was offered, and counsel for appellee in their brief have suggested none. In fact, they have not replied to any of the assignments which we hold to be well taken.

The ninth and tenth assignments are predicated upon the ruling of the court permitting appellee’s counsel, over appellant’s objection, to require appellant, while on cross-examination, to state that he had been' informed by his lawyer that some of the notes sued on by appellant were barred and could have been defeated by a plea of limitation, if appellee had interposed that plea. That testimony was wholly immaterial to any issue before the jury; and it was not proper for appellee to prove a defense which he had not pleaded, although he proposed to obtain the pro'of from the mouth of his adversary.

As the case will be reversed for the reasons stated, we deem it unnecessary to pass upon the assignments which charge that the verdict of the jury is not supported by the testimony. All the other assignments have been considered, and we hold that they do not disclose reversible error.

For the errors pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    CHAISON et al. v. McFADDIN et al.
    (Court of Civil Appeals of Texas. Galveston.
    June 16, 1913.
    On Motion for Rehearing June 26, 1913.)
    Principal and Agent (§ 136) —Personal Liability op Agent.
    Where, in trespass to try title, it was undisputed that defendant M. had held no possession of the land in controversy during the time plaintiffs claimed the right to recover for rents and profits, but that the possession had been held by persons and corporations for whom M. acted as agent, etc., which persons and corporations were not parties to the suit, a judgment against M. personally for such rents and profits was properly denied.
    [Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 447-450, 476-491; Dec. Dig. § 136.]
    Error to District Court, Jefferson County; E. A. McDowell, Special Judge.
    Action by Clara Chaison and others against W. P. H. McFaddin and others. From a judgment for defendants denying plaintiffs’ right to recover rents and profits for the use of certain land, they bring error.
    Affirmed.
    See, also, 132 S. W. 524.
    Presley K. Ewing, of Houston, George O. Greer and E. E. Easterling, both of Beaumont, for plaintiffs in error. F. 0. Proctor, F. J. Duff, and D. Edward Greer, all of Beaumont, for defendants in error.

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

   McMEANS, J.

This is an action by Clara Chaison, as widow, and the other plaintiffs as, or in the right of, the children and heirs at law, of Jeff Chaison, deceased, against W. P. H. McFaddin, to recover the David Cunningham survey of 1,170 acres of land situated in Jefferson county, less a tract of 208 acres sold by Chaison and Hebert to W. P. H. McFaddin on February 7, 1885. The petition was filed February 2, 1901. Plaintiffs filed their first-amended petition July 19,1901. In these petitions plaintiffs, in addition to their prayer for recovery of the land, prayed only for general damages. On 'January 2, 1904, the American Oil & Refining Company of Texas, a corporation, filed its intervention with the usual averments of trespass to try title against W. P. H. McFad-din, alleging that it had acquired the land, and “all of the rights of action of the original plaintiffs thereto.” In this petition, in addition to the averments of the plaintiffs’ petition, it was alleged that in the month of February, 1901, defendant McFaddin by violence, force, and fraud wrested the possession from tlie petitioner and those whose estate it holds, and ejected them therefrom, and appropriated the possession and use of, and the rents and revenues from, said premises ever since; that the reasonable rental value of or the value of the use of said premises is the sum of $6 per acre per year, of which rents and use the defendant had deprived the petitioner and those under whom it holds, and had appropriated same to his own use and benefit since February, 1901, to the damage of petitioner in the sum of $16,182 up to the date of filing the petition, and that such damage will continue at the rate of $6.per acre per year as long as defendant withholds possession of said premises from petitioner. January 11, 1909, Intervener American Oil & Refining Company, joined by its duly qualified and acting receiver, J. D. Martin, filed its first-amended petition against defendant Mc-Faddin, setting up the same averments of trespass to try title as in the original petition and substantially the same averments for the recovery of the value of the rents and use of the land. March 6, 1912, Clara Chai-son and others, the original plaintiffs, and the intervening plaintiffs, American Oil & Refining Company and its receiver, J. D. Martin, joined by the Texas Rice Land Company, a corporation, filed a third amended petition, reiterating the averments of trespass to try title against the defendant McFaddin, and alleging that tlie new party, Texas Rice Land Company, had acquired the lands, and all rights and rights of action for rents and damages formerly belonging to the original plaintiffs and the other intervening plaintiffs. This petition contained substantially the same aver-ments as to rents and use and occupation. November 17, 1911, an intervention was filed by Marie Elizabeth Gleises, the widow, and John Gleises and others, the children and heirs at law of Paul Joseph Gleises, deceased, alleging their ownership of an undivided half of the Cunningham survey, with the usual allegations of trespass to try title. V. Weiss intervened, alleging that he owned a half interest in said survey, setting up the usual averments of trespass to try title, claiming his interest as derived from the widow and heirs of Joshua B. 1-Iyde, deceased. It seems to have been admitted by all the other parties to the suit that Weiss held the superior title to the half claimed by him, and all of them withdrew their contest thereof. To the claim of the Gleises to an undivided half of the survey, the plaintiffs and intervening plaintiffs answered by plea of not guilty and by five and ten years’ statute of limitations, and by cross-action of trespass to try title, setting up ownership in the cross-petitioners both by the record and by limitation. To said cross-action the Gleises replied by a plea of not guilty. This case was before this court at a former term, when it was held, in effect, that the record title of said survey was, to tlie extent of an undivided half interest, in V. Weiss, and that the ownership of the other undivided half depended upon whether the plaintiffs, or those holding under them, had title by five or ten years’ limitation, otherwise such half was owned by the Gleises. Chaison et al. v. McFaddin et al., 132 S. W. 524. Thus the issues on the trial from which this appeal is taken were (1) whether said plaintiffs, for the Benefit of Texas Rice Land Company, were entitled to the undivided half of said land claimed by the Gleises, by limitation, and (2) whether the defendant McFaddin was liable to them for rents or the value of the use and occupation and to what extent. A trial before a jury resulted in a verdict and judgment in favor of the plaintiffs, for the benefit of the Texas Rice Land Company, for said undivided half interest in the land sued for, and of this no complaint is made upon this appeal. The court, however, instructed the jury to return a verdict in favor of McFaddin on the issue of rents and damages, and .on return of such verdict a judgment was duly entered in McFaddin’s favor on that issue; and from this part of the judgment the plaintiffs have appealed, and assign as error the giving by the court of said peremptory instruction.

The survey in question of 1,170 acres was granted to David A. Cunningham July 23, 1835. He through his duly authorized agent sold to Joshua B. Hyde and Paul J. Gleises, of the firm of Hyde & Gleises, on June 10, 1836. Hyde & Gleises were adjudged bankrupts in the District Court of the United States for the Eastern District of Louisiana, under petition filed July 27, 1842, and by bankruptcy proceedings the land in question, situated in Texas, was conveyed by the as-signee in bankruptcy to Theophilus R. Hyde. This sale was on the first appeal held to be void on account of the land lying in a foreign territory. See 132 S. W. 524. The heirs of Theophilus R. Hyde, through their attorney in fact, by deeds dated June 10, 1882, and June 20, 1882, conveyed said survey to T. Jeff Chaison and J. N. Hebert, who composed the firm df Chaison & Hebert. Chaison & Hebert conveyed 208 acres, excepted in the petition of plaintiff, to W. P. H. McFaddin, by deed dated" February 7, 1885. March 24, 1S96, Hebert sold to Chaison his interest in the survey. The original plaintiffs, who are the widow and heirs of T. Jeff Chaison, deceased, by deed dated February 16, 1901, conveyed the land in controversy to the American Oil & Refining Company, a West Virginia corporation, which deed included all of said survey except said 208 acres conveyed to McFaddin February 7, 1885, and except a strip of about three acres conveyed to the Sabine & East Texas Railroad Company for its right of way. On May 27,1901, they made a similar conveyance to the American Oil & Refining Company of Texas, a Texas corporation. By deed dated April 29, 1901, the West Virginia corporation conveyed to the Texas corporation said Cunningham survey, with the exception stated in the next two preceding deeds. J. D. Martin was, by the district court of Jefferson county, appointed receiver of the American Oil & Refining Company of Texas, and as such receiver on June 9, 1910, conveyed the survey in controversy, together with its rights of action for rents and damages to the intervening plaintiff, Texas Rice Land Company. In the fall of 1900, the heirs of Theophilus R. Hyde (including the heirs of Joshua B. Hyde) brought suit to recover the Cunningham survey, and on January 14, 1901, McFaddin paid to Mr. Thompson, the attorney of the plaintiffs in that suit, $1,300 in checks for their deed for said survey, and had his name inserted in the blank which had been left in it for the grantee. McFaddin did not know until he was informed in February, 1901, that the bankrupt sale under which Theophilus R. Hyde bought the survey was void. The grantors in the deed to McFaddin brought suit in the federal court to set it aside making all adverse claimants parties defendant, and on December 12, 1905, a decree was entered in that court canceling the sale and adjudging a half interest in said survey to the claimants under Joshua B. Hyde, viz., Katherine B. Hyde and Lawrence Hyde. These conveyed to V. Weiss such one-half interest on October 25, 1907, and this is the half interest adjudged to V. Weiss, about which there is no controversy. After the nullity of the bankrupt sale was discovered the heirs of Paul J. Gleises, interveners herein, set up claim to an undivided half interest in the survey which their ancestor held, and on July 8, 1901, an agreed decree of partition was rendered in the district court of Jefferson county, in a suit between the Gleises and defendant McFaddin, by the terms of which McFaddin was awarded the north half of the survey and the Gleises the south half; but neither the original nor intervening plaintiffs were parties.

On January 14, 1901, McFaddin, on the next day after getting the deed through the attorney, Thompson, fenced up the entire Cunningham survey, and took actual possession of it. His purpose, as stated by him, was: “I fenced this land to take possession of it against anybody, * * * and to hold it against them. * * * I fenced the land and tried to hold it against Mr. Chaison; that is true. * * * Ves, sir, the Chaisons were out; they had been grazing their cattle there for 20 years; they did not graze them there any longer after W. P. H. Me-. Faddin went in, not until 1909 and 1910.” He further testified: “When I obtained this deed, which was eventually set aside in the federal court, under which I claim I fenced the land, or had it fenced; I fenced it under a claim of absolute right in myself, under that deed. I held it exclusively for myself and adversely to the Chaisons or anybody else at that time — when I bought it and for awhile afterwards. I didn’t recognize the right of anybody to go there and share that possession with me until they could show me.” He further testified; “I held possession until July (1901). Along in May, I think it was, the Gleises had a representative down there and brought suit. That was in 1901. A judgment was entered in that case. That is the judgment that has been offered in evidence. We agreed on a judgment. After that judgment was entered I never held possession; that is, the only possession I held was for McFaddin-Weiss Canal Company. Under that decree the use was surrendered to Mr. Swor, the Gleises’ representative. I had a canal down there which belonged to the McFaddin-Weiss Canal Irrigation Company, a corporation at that time, and we expected to extend this canal across this land in 1902; we hadn’t done it in 1901, and I rented this land for the Canal Irrigation Company to put in rice.” He further testified that from the time of the lease by the Canal & Irrigation Company from the Gleises in 1901 up to the time there was a change of possession under the federal judgment in 1905, the Canal & Irrigation Company, as tenant of the Gleises, and himself under his individual claim of title by purchase from the Hyde heirs, held possession of this land — the corporation holding under the Gleises and he holding under his deed — that up to the time of the cancellation of his deed by the federal judgment he was claiming in his own right, adversely to everybody so far as the Hyde half interest was concerned, and the Canal & Irrigation Company was asserting exclusive possession to the other half under the lease from Gleises. The uneontradicted testimony shows that it was the Hyde half interest claimed by Mc-Faddin that was finally decreed to Weiss, and that the half interest held by the Canal & Irrigation Company under lease from the Gleises was decreed in this suit to the plaintiffs and intervening plaintiffs.

The contract of lease from the Gleises to the Canal & Irrigation Company shows that it was dated November 17, 1901, and that the Gleises’ heirs rented to the Canal & Irrigation Company 440 acres for two years. When this contract expired, another contract for one year was entered into on January 5,1904. In 1904 the Canal & Irrigation Company was sold out to McFaddin-Weiss-Kyle Land Company, a joint stock association, and this company leased the land from the Gleises for the year 1905. The undisputed testimony is that for the years 1902, 1903, 1904, and 1905 the Canal & Irrigation Company and the McFad-din-Weiss-Kyle Hand Company were occupying the land claimed by the Gleises, and awarded to the plaintiffs and intervening plaintiffs in this suit, and cultivating it under written leases from the Gleises, and that any act of McFaddin in obtaining the leases or holding possession of that half of the land was done only as an officer or agent of one or the other of said companies. The uncontra-dicted testimony of McFaddin further shows that his companies only used half of the Cunningham survey in 1906 and 1907. Since 1907 neither McFaddin nor said companies have used more than half of the land. The land was not used by them in 1908, but the Chaisons used it for grazing their cattle in 1908, 1909, and 1910. Neither the McFaddin-Weiss Canal & Irrigation Company nor the McFaddin-Weiss-Kyle Land Company was a party to this suit.

The foregoing constitutes, we think, the substance of the material testimony on the issue of McFaddin’s liability to plaintiffs for the value of the rents, use, and occupation of the land. The court’s peremptory charge, complained of by plaintiffs in error in their only assignment of error, is as follows: “On the question of rents and damages, the evidence in this case shows that the defendant W. P. H. McFaddin has held no possession of the land, but that the same has been held by persons and corporations who are not parties to this suit, and I therefore instruct on said issue to find in favor of defendant, W. P. H. McFaddin.” We think the giving of this charge under the facts in evidence was not error. It will be observed by what has been hereinbefore stated that one-half of the Cunningham survey was acquired by V. Weiss by title superior to that of plaintiffs in error, and hence no rents or profits could be recovered by them against any one for one-half of the land. It will further be noticed that in none of the petitions of plaintiffs was the value of the rents and profits claimed against McFaddin until the filing of the amended petition on January 2, 1904, so that the recovery of damages for use and occupation, confining the same to two years before the filing of such petition, would begin from January 2, 1902. In July, 1901, when Mc-Faddin was claiming the entire survey under his purchase from the Hydes, a judgment was rendered in favor of the Gleises against him for a half interest in the survey, and this half interest was delivered to one Swor, the agent of the Gleises. This is the half interest recovered by the plaintiffs in error in this suit. From and including the year 1902 to and including 1905, the Gleises leased their half interest to the McFaddin-Weiss Canal & Irrigation Company, a corporation, and the Mc-Faddin-Weiss-Kyle Land Company, a joint stock association, and any holding of this interest adverse to the plaintiffs was by the Canal & Irrigation Company and the Land Company, who were not parties to this suit, and not by McFaddin, whose only claim was under the Hyde title. In 1906 only half of the survey was used, and that was the half claimed by the Hyde heirs. The same was true in 1907; and it does not appear that for the years 1906 and 1907 McFaddin in any way prevented the plaintiffs in error from taking possession of the Gleises’ land. In 1908, 1909, and 1910 plaintiffs in error put their cattle on the place, thus showing that McFaddin did not resist the taking possession by plaintiffs in error of the Gleises’ land. In 1911 the Land Company leased from V. Weiss his half interest in the survey. At no time after the judgment was rendered between McFaddin and the Gleises heirs, in 1901, did the former claim the right to hold their interest in the land, except under lease from them to the companies he represented. We think, therefore, that no right to recover damages for use and occupation of the land against McFaddin individually was shown. The mere fact that he was active in procuring leases from the Gleises for his companies, and that he was in the active management and control of said companies, would not make him a joint tort-feasor with his companies and individually responsible to plaintiffs in error for the value of the use and occupation of the land.

The judgment of the court below is affirmed.

Affirmed.

On Motion for Rehearing.

We have carefully examined plaintiffs in error’s motion for a rehearing, and are of the opinion that the same should be refused, and it has been so ordered.

We are requested to find additional facts to those set out in our opinion and in deference thereto we find the following:

W. P. H. McFaddin had the management, control, and use of the land for the companies he represented whenever the companies had it, and was their active representative on the ground.

Charles J. Chaison, the active one of plaintiffs, testified that he had no notice from Mc-Faddin, or any one else, that McFaddin had ceased at any time to exclude plaintiffs from possession of any land after he first excluded them; that he did not know of the friendly judgment of partition between Mc-Faddin and the Gleises, that after McFad-din first excluded plaintiffs, they had been similarly excluded, so far as he knew, since then down to the trial, and that in January, 1901, shortly after McFaddin fenced the land, witness made demand of him for possession.

McFaddin testified that Judge A. T. Watts told him that he, Watts, and his partner, Chester, owned two-fifths of the Gleises interest.

By deed dated July 3,1903, filed for record July 14, 1903, and duly recorded in the deed records of Jefferson county, A. T. Watts conveyed to McFaddin a two-fifths interest in the half of the Cunningham survey claimed by the Gleises, reciting a consideration of $2,100. McFaddin testified that he took this deed, with the understanding that the title had to be perfected before he paid the purchase price, and that in the meantime he paid rent as shown. The evidence shows that as the title was never perfected the consideration was never paid, and that this deed never became operative.

During all the time the land was occupied, as shown in our opinion, it had a substantial rental value.


author: DUNKLIN, J.

text:
    WILSON v. FORD.
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 17, 1913.
    Rehearing Denied June 14, 1913.)
    1. Courts (§ 122) — Jurisdiction — Amount in Controversy — Pleading.
    Where, in a suit on certain notes and to foreclose a chattel mortgage, in a court the jurisdiction of which depended on the amount in controversy, the petition contained no allegation of the value of the property on which a foreclosure of the lien was sought, it was insufficient to confer jurisdiction.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413, 427; Dec. Dig. § 122.]
    2. Appeal and Ebbob (§ 635) — Jubisdiotion OP TRIAL COURT.
    Where an appeal was taken from the county court in a suit on certain notes and to foreclose a chattel mortgage, and there was no affirmative showing in the record that the amount in controversy was less than $1,000, so as to be within the trial court’s jurisdiction, the judgment will be reversed, and the cause remanded.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2285, 2776-2782, 2829; Dec. Dig. § 635.]
    Appeal from Wichita County Court; C. B. Felder, Judge.
    Action by Henry Ford against J. D. Wilson. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    W. T. Carlton, of Wichita Falls, for appellant. Mathis & Kay, of Wichita Falls, for appellee.

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

   DUNKLIN, J.

This is an appeal from a judgment rendered in favor of Henry Ford against defendant, J. D. Wilson, instituted' in the county court of Wichita county to recover upon certain promissory notes and for a foreclosure of chattel mortgage liens upon several horses and a crop of 150 acres of cotton.

Neither the original nor the supplemental petition, which constituted the pleadings upon which plaintiff relied upon the trial, contains any allegation of the value of the-property upon which a foreclosure of lien was sought. According to the well-settled1 rule, if the value of this property exceeded the sum of $1,000, the county court had no' jurisdiction of plaintiff’s suit.

In the absence of an affirmative showing of jurisdiction of the county court to' hear and determine the controversy, the judgment must be reversed, and the cause remanded; and it is so ordered. Ware v. Clark, 125 S. W. 618; Stricklin v. Arrington & Carter, 141 S. W. 189.

Reversed and remanded.


author: RICE, J.

text:
    DELAWARE INS. CO. v. HUTTO.
    (Court of Civil Appeals of Texas. Austin.
    May 14, 1913.
    On Motion for Rehearing, June 18, 1913.)
    1. Insurance (J 627) — Actions—Process— Service — Return—Sufficiency.
    Return of service of citation, in an action, against an insurance company having local agents in the county, which recites that the citation was executed by delivering to one of the local agents at a specified place, “the within named defendant, in person, a true copy” of the writ, is sufficient to show service on the company.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1573, 1574; Dec. Dig. § 627.]
    2. Corporations (§ 668) — Service of Process — Return—Amendments.
    Under Rev. Civ. St. 1911, art. 1879, providing that any mistake in the return may be corrected by the officer under the direction of the court, the defect, if any, in the return of service of citation in an action against a corporation, which recites that it was executed by delivering to a local agent a true copy, may be cured by an amendment, reciting that the citation was executed by summoning the company by delivering to its local agent named, in person, a copy of the writ.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2603-2627; Dec. Dig. §• 668.]
    3. Judgment (§§ 143, 145) — Default Judgment — Vacation—Grounds.
    A default judgment cannot be set aside unless there is a meritorious defense and a good excuse for failure to answer at the proper time.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 269-271, 272-291, 292-295; Dec. Dig. §§• 143, 145.]
    4. Judgment (§ 143) — 'Vacation of Default Judgment — Diligence.
    Where a corporation, seeking to vacate a default judgment against it, did not assert that the agent served with process was not its agent, hut showed that he could not employ counsel, and that the general agents empowered to employ counsel were not notified of the suit, and did not show when the agent forwarded the process served on him, and, so far as shown, he might not have forwarded the citation until after the default judgment, it did not excuse its failure to present its answer in time, and the court properly refused to vacate the judgment.
    [Ed. Note. — Por other cases, see Judgment, Cent. Dig. §§ 269, 270, 272-291; Dec. Dig. § 143.]
    5. Judgment (§ 124) — Default Judgment-Process — Service—Proof of Agency.
    Where the citation, in an action against a corporation, gives the name of its agent, and the citation contains directions requiring service on him, judgment by default may be taken, without proof that the person is the agent.
    [Ed. Note. — Por other cases, see Judgment, Cent. Dig. § 226; Dec. Dig. § 124.]
    6. Appeal and Error (§ 907) — Presumptions — Proof.
    The court on appeal to sustain the judgment may, in the absence of anything in the record to the contrary, presume that proof of an essential fact was made.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2899, 2911-2915, 2916, 3673, 3674, 3676, 3678; Dec. Dig. § 907.]
    On Motion for Rehearing.
    7. Judgment (§ 17) — Process to Sustain Default Judgment — Service — Sufficiency.
    Where the petition in an action against a corporation, alleged that a firm, composed of-persons named, residing in the county, was its agent, and the citation issued commanded service on the corporation by delivering a copy thereof to the agent, and the return of the sheriff showed that the citation was served by delivering a copy thereof to one of the partners, the service was sufficient to support a default judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §•§ 25-33; Dec. Dig. §, 17.]
    8. Judgment (§ 17) — Process to Sustain Default Judgment — Service — Default Judgment.
    Where the court, in an action against a corporation permitting an amendment of return of service, found that it appeared that the person on whom service was made was at the time a local agent of the corporation, the question whether such person was the agent was judicially determined, and a default judgment was proper.
    [Ed. Note. — Por other cases, see Judgment, Cent. Dig. §§ 25-33; Dec. Dig. § 17.]
    9. Process (§ 141) — Service—Return—Sufficiency.
    The sheriff’s return of service of process imports absolute verity.
    [Ed. Note. — For other cases, sea Process, 'Cent. Dig. §§ 189-192; Dec. Dig. § 141.]
    Error to District Court, Coleman County; John W. Goodwin, Judge.
    Action by M. J. Hutto against the Delaware Insurance Company. There was a judgment for plaintiff, and defendant brings error.
    Affirmed.
    William Thompson, of Dallas, and Snod-grass & Dibrell, of Coleman, for plaintiff in error. Woodward & Baker, of Coleman, and J. E. Brown,' of Brady, for defendant in error.

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

   RICE, J.

This writ of error was sued out by plaintiff in error to reverse a judgment by default, rendered in favor of defendant in error, against it on a fire insurance policy, on the ground chiefly that said judgment was rendered without legal service, and that it had a meritorious defense, which it was prevented from setting up without fault on its part.

The petition alleged that the firm of Dumas, Zimmerman & Dibrell, composed of L. M. Dumas, R. E. L. Zimmerman, and Geo. Dibrell, was tbe local agents of plaintiff in error; and it questioned the sufficiency of the original return on-the citation to support a judgment by default. The return shows that “citation came to hand on the 29th day of June, 1912, at 10 o’clock a. m., and was executed on the 29th day of June, 1912, at 10:30 o’clock a. m., by delivering to L. M. Dumas, local agent for Delaware Insurance Company, in the Coleman National Bank in the town of Coleman, Coleman county, Tex., the within named defendant in person, a true copy of this writ.” Before the motion to set aside the default judgment was passed upon by the court, defendant in error was permitted to amend said return on the citation, and the same was amended as follows, to wit; “Came to hand on the 29th of June, 1912, at 10 o’clock a. m., and executed on the 29th day of June, 1912, at 10:30 o’clock a. m. by summoning the Delaware Insurance' Company, the within named defendant, by delivering to L. M. Dumas, its local agent in the town of Coleman, Coleman county, Tex., in person, a true copy of this writ,” duly signed, etc. “Any mistake or informality in the return may be corrected by tbe officer at any time under direction of the court.” R. S. 1911, art. 1879. We think the original return in this case was sufficient, but the amendment, which is permissible, cured the error, if any there was, in the original; for which reason this objection must be overruled.

With reference to the second question, it may be said that if it be admitted that plaintiff in error is shown to have had a meritorious defense to any portion of the cause of action asserted against it, then we think it appears that it was clearly guilty of negligence in not pleading it. The motion to set aside a judgment by default must not only show a meritorious defense, but a good excuse for failure to answer at the proper time. See Watson v. Newsham, 17 Tex. 438; Foster v. Martin, 20 Tex. 122; Gillaspie v. City of Huntsville, 151 S. W. 1115. It is not asserted im this ease that Dumas, who was served, was not the local agent of plaintiff in error; but it appears that neither he nor his firm had any right to employ counsel, but that the firm of Gross R. Scruggs & Co., who were general agents, were charged with this duty, and that they were not notified ■of the pendency of said suit, for which reason no answer was filed. It is alleged in said motion that it was Dumas’ duty to forward such citation to said general agents; and, while it is alleged that he did this, yet such fact was not proven by his affidavit, nor was it shown when it was forwarded, although it appears that citation was served on Dumas ■on the 29th of June, and no judgment was taken until the 6th of November thereafter; •and the affidavit does not exclude the idea that such citation may have been forwarded ■by him after judgment by default had been taken. The motion for new trial was not ■verified by Dumas or Gross R. Scruggs & Co., ■but by John M. Dawson, who is not shown to have had any connection with said transaction. We think this showing does not excuse plaintiff in error for failing to present its defense. We do not think there is any merit in plaintiff in error’s contention that service of citation upon one member of a firm of local agents was not sufficient, under the law, to give the court jurisdiction to render judgment by default. In Continental Insurance Co. v. Millikean, 64 Tex. 47, it was held that service on one member of the firm of local agents was sufficient. We believe that such service was sufficient, because each member of said firm was in fact the agent of the company, and was so alleged in the pleadings.

Nor is there anything in the contention that no proof was offered to the effect that Dumas was the agent of the company. Where the petition, as in the present case, gives the name of the agent, and the citation ■contains directions requiring service of citation on such designated agent, judgment by ■default may be taken without proof showing ■that the said person is the agent of the corporation. See H. & T. C. Ry. Co. v. Burke, 55 Tex. 329, 40 Am. Rep. 808; G., H. & S. A. Ry. Co. v. Gage, 63 Tex. 568.

Nor does it appear from the record that such proof was not in fact made; and, if it became necessary for such proof to be made, then, in the absence of said showing it will be presumed that it was. See S. A. & A. P. Ry. Co. v. Wells, 3 Tex. Civ. App. 307, 23 S. W. 31.

Finding no error in the proceedings of the trial court, its judgment is affirmed.

Affirmed.

On Motion for Rehearing.

It is asserted in the motion for rehearing that we erred in holding that the petition of defendant in error set forth the name of the local agent of plaintiff in error, and also in holding that the motion for new trial filed by plaintiff in error did not negative the fact that the party served was its agent, and that said motion likewise failed to assert that proof was made of such agency. While this may be true, yet we think the allegation in the petition was equivalent to the statement that Dumas was the local-agent of plaintiff in error; and, where this is the ease, it has been held sufficient. See H. & T. C. R. R. Co. v. Burke, 55 Tex. 323, 40 Am. Rep. 808. In that case it was alleged “ ‘that said company had an office for the transaction of its business as a common carrier in the city of Austin, Travis county, Tex., at which place the agent of said company is Robert S. Collins;’ ” the court remarking that it sufficiently appeared from the averments of the petition that Robert S. Collins was the local agent of the company in Travis county, although the petition does not follow the language of the statute. It will be observed in the instant case that the petition alleged that plaintiff in error was a private corporation, doing business in Coleman county, Tex. with Dumas, Zimmerman & Dibrell, a firm composed of L. M. Dumas, R. E. D. Zimmerman and Geo. Dib-rell, who reside in said Coleman county, Tex., as its agents. This was equivalent, we think, to saying that said parties were its local agents in said county. The citation commanded service upon defendant by delivering a copy thereof to said local agent, and the return of the sheriff shows that the citation was duly served upon defendant, by delivering a copy thereof to L. M. Dumas, its local agent in said county. This being true, we think the service was sufficient; but, in addition to this, when the judgment was assailed on the ground of the insufficiency of the return of the sheriff, the court permitted the amendment of said return, in which judgment it is recited that it appeared to the court that Dumas was, at the time of the service of citation upon him, the local agent, of the defendant company in Coleman county, Tex., and at the time of such service he resided in said county, and the service was made upon said company by delivering to him in person a true copy of the citation issued in said cause. It, therefore, appeared that the question of whether Dumas was the local agent of the company was in fact judicially determined by said court upon said hearing. See G., H. & S. A. Ry. Co. v. Gage, 63 Tex. 568.

The return of the officer, showing service upon the local agent, imported absolute verity, and was sufficient to authorize the rendition of judgment by default. See Gatlin v. Dibrell, 74 Tex. 36, 11 S. W. 908; Randell v. Collins, 58 Tex. 231; Wood v. City of Galveston, 76 Tex. 126, 13 S. W. 227.

We believe there is no merit in plaintiff in error’s motion for rehearing, and the same will therefore be overruled.

Motion overruled.


author: RAINEY, C. J.

text:
    CITY OF DALLAS v. DALLAS CONSOL. ELECTRIC ST. RY. CO.
    (Court of Civil Appeals of Texas. Dallas.
    June 14, 1913.
    Rehearing Denied June 28, 1913.)
    1. Municipal Corporations (§ 108) — Initiative Ordinance — When Effective.
    Under the initiative provisions of the charter of the city of Dallas that, if the majority of the qualified electors voting on a proposed ordinance should vote in favor thereof, it should thereupon become a valid ordinance of the city, an initiative ordinance, directing the mayor to draft an ordinance for the enforcement “of this expression of the people’s will. Be it ordained by the board of commissioners of the city of Dallas, acting under the initiative provisions of the charter” — if valid, was effective when the board of commissioners ascertained and declared the result of the election without further action on its part.
    [Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. § 108.]
    2. Municipal Corporations (§ 108) — Initiative Ordinance — Validity.
    Under the charter of the city of Dallas, containing a general initiative provision as to the passage of ordinances and not mentioning the regulation of rates and the services of public utility corporations, but elsewhere delegating such duty to the board of commissioners and providing for the making of rules after a hearing to persons affected thereby the board of commissioners was the only tribunal having power to regulate public utility corporations, so that an ordinance adopted at a popular election, purporting to regulate the fares charged by street railway companies, was invalid, since it did not afford the fair hearing prescribed by the charter.
    [Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. § 108.]
    3. Injunction (§ 85) — Subjects of Protection-Void Ordinance.
    • Although an ordinance purporting to regulate the fares of street railroad companies, and to have been adopted under the initiative provisions of a charter, was void, and although there might not be any attempt to enforce it, yet as it stood on the minutes of the city as a law, menacing the property of a street railway company and subjecting it to numerous complaints and suits, to interruption of its service, to depreciation of its securities, to disturbance in its transfer arrangements, and to interference with its employes in the performance of their duties, the company was without adequate remedy at law, and was entitled to enjoin its enforcement.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 155, 156; Dec. Dig. § 85.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action for injunction by Dallas Consolidated Electric Street Railway Company against the City of Dallas. Temporary injunction granted, and the city of Dallas appeals.
    Affirmed.
    See, also, 150 S. W. 1198.
    J. J. Collins and Lee Richardson, both of Dallas, for appellant. Baker, Botts, Parker & Garwood, of Houston, and Spence, Knight, Baker & Harris, of Dallas, for appellee.

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

   RAINEY, C. J.

The statement of the-nature and result of the case as stated by appellant we find correct, and is as follows:.

“On the 23rd day of November, 1912, a judgment was entered by the Fourteenth judicial district court of Dallas county, Tex., upon the application of appellee, Dallas Consolidated Electric Street Railway Company, granting a temporary injunction against the-city of Dallas and its mayor and commissioners, and the city secretary, commanding them to abstain and refrain from asserting the validity of, or enforcing or attempting to enforce, a certain initiative ordinance adopted at a general election of the city on the 2d day of April, 1912, which said ordinance reads as follows:
“ ‘An ordinance requiring the sale of not less than seven street car tickets for 25 cents; requiring street railways to charge not more than 3 cents as fare unless the passenger is provided with a seat within two blocks of the point where said passenger enters the car; requiring all street cars to stop when properly signaled; making it unlawful to eject persons who tender these rates of fare, and directing the mayor to-draft an ordinance for the enforcement of this expression of the people’s will.
“ ‘Be it ordained by the board of commissioners of the city of Dallas, acting under the initiative provisions of the charter:
“ ‘(a) That all persons, firms, corporations, lessees, assignees or receivers operating street railways in the city of Dallas, are hereby required to have on sale with each conductor on every car, tickets each good for one ride with transfer privilege, at the rate of not less than seven tickets for 25 cents.
“ ‘(b) That it shall not be lawful on street railways in the city of Dallas, to collect more than 3 cents as a fare, unless the passenger is provided with a seat within two blocks of the point where said passenger entered the car.
“ ‘(c) That all street cars in the city of Dallas, when signalled in the usual way, shall stop for passengers, unless another car of the same line is following within two-blocks.
“ ‘(d) That it shall not be lawful for any public officer or any private person to eject from a street car in the city of Dallas, or to refuse to allow passage on same to any person who has tendered to the conductor the fare based on the hereby established rates.
“ ‘(e) That the mayor is hereby instructed to draft and recommend to the city commission, within thirty days, an ordinance for the enforcement with appropriate penalties of this expression of the people’s will.’

“The petition of appellee sets forth the ordinance and, in detail, the grounds upon •which it asks for a temporary injunction .against the city of Dallas and its officer’s. In response to. the petition of appellee, the ¡appellant filed an answer, containing a general demurrer, and certain special exceptions, and denied specifically that the city of Dallas proposed to enforce the said initiative ordinance in the manner stated by the petition of the appellee, and declaring that the said ordinance complained of by appellee was not •susceptible of being enforced until the mayor .and board of commissioners complied with its directions, all of which more fully appears from the answer, as shown on pages 23 to 26, inclusive, of the transcript. (Said .answer was not sworn to.) Upon hearing the petition of appellee read, and the answer of appellant and the argument of counsel thereupon, judgment was entered, overruling appellee’s general and special demurrers and granting a temporary injunction, as more fully appears from the judgment, from which judgment the appellant duly perfected its appeal to this court.”

The foregoing ordinance embodies the will ■of the majority of the citizens of the city ■of Dallas as expressed by ballot at an election duly held in said city, and which election was field by virtue of article 8 of the •charter, popularly known as the “Initiative and Referendum” provisions. The vote on said ordinance was canvassed by the board of commissioners, and the result thereof was ■officially declared to be the adoption thereof, and said ordinance was duly enrolled upon the minutes of said board, and the same •duly published under orders of said board ■of commissioners. The petition of plaintiff attacks said ordinance, and sought an injunction to restrain its enforcement on several grounds: (a) Because in violation of the •constitutional guaranties protecting appel-lee’s property; (b) because violative of its vested contract rights; (c) because confiscatory ; (d) because in violation of the limits •of the city charter. And further, that the franchise and property rights of the plaintiff would be injuriously affected by the exist•ence of said ordinance. The appellant contends that, as the board of commissioners have not passed any ordinance in obedience to the requirement of the initiative ordinance for its enforcement, the injuries likely to re.sult are imaginary, as none could result until the board should pass the ordinance for its enforcement, and that a court of ■equity will not interfere, by way of injunction, with the discretion reposed by law in a municipal government,' nor will the passing of any ordinance be enjoined because of :its alleged or real invalidity, unless such ordinance is actually being enforced by the officers of the government, and that a court of equity will interfere only with the enforcement of invalid municipal ordinances when irreparable injury is threatened to property rights by the actual enforcement, or attempted enforcement, of such ordinance.

If the initiative ordinance is valid, it became effective upon the board of commissioners ascertaining and declaring the result of the election. Charter of the City of Dallas, art. 8; City of Dallas v. St. Ry. Co. (Sup.) 148 S. W. 292. The charter of Dallas provides: “If a majority of the qualified electors voting on said proposed ordinance shall vote in favor thereof, such ordinance shall thereupon become a valid and binding ordinance of the city and any ordinance proposed by petition or which shall be adopted by a vote of the people cannot be repealed or amended, except by a vote of the people.” In the ease of City of Dallas v. St. Ry. Co., supra, where this question was involved, Mr. Justice Phillips, in passing upon the foregoing provision of the charter of Dallas, said; “The plain declaration of this charter provision * * * forbids the view that the completed enactment of this ordinance was dependent upon anything further than the ascertainment by the board of commissioners that a majority of the qualified electors had voted in favor of it.” The board of commissioners having declared that a majority of the electors had voted for the ordinance, it became effective in so far as the people and the board of commissioners could make it, irrespective of any further action on the part of the board.

But was the action of the people in voting said ordinance valid and subject to enforcement? Or, in other words, had the people under the provisions of the charter of the city of Dallas any right by vote to initiate any ordinance with reference to regulating the rates of the street railway? We think not. The initiative and referendum provision of the charter is general as to the passage of ordinances, and does not mention the regulation of rates and service of public utility corporations; whereas paragraph 7, § 8, art. 2, delegates this duty to the board of commissioners. Said section provides: “The right is hereby delegated to the city of Dallas, acting through its board of commissioners to determine, fix and regulate the charges, fares or rates of any person, firm or corporation enjoying or that may enjoy a franchise or exercising any other public privilege in said city and to prescribe the kind of service tb be furnished by such person, firm or corporation, and the manner in which it shall be rendered and from time to time to alter or change such rules, regulations and compensation.” And further provides for the making of rules granting a hearing to persons, firms, or corporations to be affected by such regulation, and no change to be made therein except after notice and hearing to such parties.

The board of commissioners under the charter of the city of Dallas is the only tribunal to which the power to regulate public utility corporations was delegated, and then only after a fair hearing. There is no provision made for a hearing before the people in reference to the advisability of making such change as provided by said ordinance, and therefore the adoption of the ordinance in the manner it was makes it invalid. Our Supreme Court, in passing upon the right of the citizens by initiation to direct an ordinance regulating rates, etc., of a telephone company under the charter of the city of Dallas, in Telegraph Co. v. City of Dallas (Sup.) 134 S. W. 321, speaking through Mr. Chief Justice Brown, said: “Gan it be supposed that a Legislature would require a board of commissioners to secure a fair hearing to the party to be affected, and yet would permit some unknown party to draft an ordinance, specifying rates and regulations, without the knowledge of any facts, and submit such ordinance to the popular vote, where there can neither be an investigation nor any character of ascertainment of the facts? That would be to place upon the language of the charter an unreasonable construction. If the charter provided for the submission of such issues to the voters at large, its validity would, at least, be questionable. In Telephone Co. v. Dos Angeles, 211 U. S. 280, 29 Sup. Ct. 55, 53 L. Ed. 176, that question was raised, and the court said: ‘The charter of the city also contains a provision that upon petition of 15 per cent, of the voters of the city any ordinance proposed must be submitted to the people, and may be by them adopted. It is said, therefore, that the power of rate regulating might be, in this manner, exercised directly by the electorate at large. It may well be doubted whether such a result was contemplated by the Legislature. There are certainly grave objections to the exercise of such a power, requiring a careful and minute investigation of facts and figures by the general body of the people, however intelligent and right minded.’ The charter of a city is to its citizens and officers the measure of their authority over persons and property- That charter secured to the plaintiff in error ‘a fair hearing’; and, as such hearing was not and could not be had in the adoption of this ordinance, it was not enacted in accordance with the charter and is void.”

Although the ordinance is void, and it may never be attempted to be enforced, it stands on the minutes of the city of Dallas as a law, and therefore a menace to the street railway company’s property. As said in City of Austin v. Cemetery Association, 87 Tex. 330, 28 S. W. 528, 47 Am. St. Rep. 114, wherein an ordinance regulating the burial of the dead was held void, that “as long as the ordinance remains undisturbed it acts in terrorem, and practicably accomplishes a prohibition against the burial of the dead within the limits of the city of Austin, save in the excepted localities.”

The contention that as the board of commissioners have not adopted a criminal ordinance for the enforcement of said initiative ordinance, 'and are not threatening to do so, nor taking any steps to enforce it, the appellee has no right to the writ of injunction. That no criminal ordinance has been passed, or threatened to be passed, we think makes no difference. The ordinance stands as having been passed and it is the duty of the railway company to obey until it is annulled by judicial action or repealed. Although no criminal ordinance for its enforcement be enacted, the appellee is entitled to be relieved from the civil injuries that will result to its property rights.

The petition alleges: “Unless enforcement of same is restrained by your honor’s most gracious writ of injunction, the enforcement of same will be attempted by the officers of the city of Dallas and numerous citizens of said city who are and will continue to be patrons of the lines of petitioner’s railway system; numerous complaints will result; numerous suits complaining of the refusal of petitioners to comply with said purported ordinance will be brought; its affairs will be thrown into irretrievable confusion, its service to the public interrupted, its franchise privileges disturbed and impaired; its securities depreciated; its employés subjected to the interference and embarrassment in performing their duties to petitioner and to the public; its exchange of business with other carriers will be disturbed; its transfer arrangements in force under and pursuant to'’ ordinances of the city interfered with; its earnings unlawfully diminished, as hereinafter particularly alleged; and its property confiscated to public use without allowing it any adequate return upon its capital invested, as hereinafter particularly shown.” The injuries were fully specified in the petition, and authorized the granting of the writ of injunction under the showing made in this case.

The appellee is not seeking to enjoin the board of commissioners from passing an ordinance or interfering with its legal function to legislate for the city, but is seeking to prevent the enforcement of an ordinance already in existence, which enforcement would work irreparable injury to its property rights, etc., and for which it has no adequate remedy at law. Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994.

The learned district judge did not err in granting and perpetuating the injunction,, and the judgment is affirmed.


author: CONNER, C. J.

text:
    AMERICAN HOME LIFE INS. CO. et al. v. COMPERE.
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 5, 1913.
    On Motion for Rehearing, May 17, 1913.)
    1. Insurance (§ 32) — Organization or Company-Subscriptions por Stock — Collateral Agreement.
    Where the promoters of an insurance company took a stock subscription and agreed that the company, if organized, would loan a certain sum to the stockholder, and the company accepted the contract, it took its burdens as well as its benefits and was liable for refusal to make the loan as agreed.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 37; Dec. Dig. § 32.]
    On Motion for Rehearing.
    2. Trial (§ 251) — Subscriptions por Corporate Stock — Instructions—Pleading.
    The promoter of a life insurance company took a stock subscription and agreed that the company, if organized, would loan the subscriber a certain amount. Part of the price of the stock was paid in cash to the promoter, and the subscription contract provided that if the company were not organized, or if it did not accept the contract, the money would be returned. After the completion of the organization, the subscriber brought an action against the company and the promoters in which he alleged that the company had accepted the subscription but refused to make the loan and asked for a return of the payment, with other damages. The court charged the jury that, if the insurance company did not accept the subscription in good faith, the subscriber was entitled to recover from the promoter the amount already paid by him. Held!, that the instruction was erroneous as submitting to the jury an issue not made by the pleadings, considered as a whole, even though the supplemental petition prayed in the alternative for a judgment against the promoter if the plaintiff were mistaken as to the acceptance of the contract by the company.
    [fed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.]
    Appeal from Tarrant County Court; Charles L. Prewitt, Judge.
    Action by M. H. Compere against the American Home Life Insurance Company, R. T. Stuart, and another. Judgment for the plaintiff as against the defendants R. T. Stuart and another, and they appeal.
    Reversed and remanded on rehearing.
    Goree & Turner, of Ft. Worth, for appellants. Lattimore, Cummings, Doyle & Boul-din and W. M. W. Splawm, all of Ft. Worth, for appellee.

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

   CONNER, C. J.

On the 22d day of April, 1909, appellee executed the following instrument in writing:

“The American Home Life Insurance Company.
“Subscription for Capital Stock.
“No. 2501. 50 Shares.
“Whereas, Stuart, Walker & Company, of Fort Worth, Texas, are promoting the organization of a life insurance company, to be incorporated in pursuance of the laws of the state of Texas, under the name of the American Home Life Insurance Company, with an authorized capital of at least $500,-000.00 and a paid up capital of at least $500,000.00 and a net surplus of at least $500,000.00 paid up and free from promotion and organization expenses, all in accordance with printed prospectus issued by them and delivered to me.
“And whereas by their acceptance of this subscription said Stuart, Walker & Company, agree to endeavor with all reasonable diligence to accomplish on or before December 31st, 1909, the organization of said corporation with capital stock and surplus fully paid as aforesaid, they defraying all expenses of promotion and incorporation:
“Now, therefore, I do hereby subscribe for fifty shares, of the par value of $10.00 each, of the capital stock of said the American Home Life Insurance Company, and I do hereby agree with said company and with the said Stuart, Walker & Company to pay therefor the sum of $1,500.00 as follows: The sum of-$1,250.00 I agree to pay to said the American Home Life Insurance Company, at any time after May 1, 1909, immediately upon notice from said Stuart, Walker & Company that said company had been duly incorporated and that its capital stock had been subscribed in good faith in amounts and at the price netting the company at least $500,000.00 of capital and at least $500,000.00 surplus in the aggregate when paid. The remaining sum of $250.00 I agree to pay, concurrent with this subscription to the said Stuart, Walker & Company in consideration of their agreement herein-before recited and in lieu of any further or other contribution to the expenses of promoting and incorporating said company.
“Witness my hand this the 22d day of April, 1909.
“M. H. Compere, Name of Subscriber.
“Abilene, Texas, P. O. Address.”
“Subject to loan of $2,500.00 made on collateral acceptable to the finance committee at the rate of six per cent per annum for from 1 to 5 years as may be desired by applicant.”

At the time of the execution of this stock subscription contract, appellee paid the $250 advance payment therein provided for and received from Stuart, Walker & Co. the following receipt:

“Number 246. Amount Paid, $250.00. Total Subscription, $1,500.00.
“Abilene, Texas, Apr. 22, 1909.
“Received of M. H. Compere of Abilene, Texas, the sum of two hundred and fifty & no-100 dollars as part payment for 50 shares of stock in the American Home Life Insurance Company of Fort Worth, Texas, as set forth in his subscription application No. 2501, bearing even date herewith. Should ■said subscription be not approved and accepted, the amount as per this receipt will be returned.
“Stuart, Walter & Company,
“By G. T. Brothers, Secy.
“Not valid unless countersigned by W. T. Coleman, Salesman.”

Thereafter, on April 21, 1910, appellee instituted this suit against Stuart, Walker & Co., the American Home Bife Insurance Company, and others not necessary to name inasmuch as they were later dismissed from the suit, alleging that Stuart, Walker & Co. had induced the execution of the stock subscription contract and had executed the receipt quoted as promoters of the insurance company to be thereafter organized, promising that if plaintiff would so subscribe for stock that the insurance company, when organized, would loan to the plaintirc the sum •of $2,500 at the rate of 6 per cent, interest per annum for a period of from one to five years as might be desired by the plaintiff. It was further alleged that the American Home Bife Insurance Company thereafter became duly organized, offered to-issue stock in said company to the plaintiff and others whose stock subscriptions had been solicited and obtained by Stuart, Walker & Co.', and in other ways did “fully ratify, indorse, and approve of all the acts of the said agent in the premises,” and thereafter “agreed to make said loan and to carry out the agreement made by said parties with plaintiff,” but that, after repeated applications made in accordance with the terms of the agreement made between him and the said Stuart, Walker & Co., the said insurance company “upon some excuse and pretext and another and from time to time put off and for an unreasonable length of time refused to make such loan, and demanded of plaintiff that he pay the other amount of $1,250 aforesaid upon the stock, and finally failed and refused to make such loan to plaintiff and failed and refused to pay back to plaintiff the said sum of money so advanced.” The prayer was for the recovery of the advance payment of $250, with interest thereon, etc., as well also as for certain damages, to which the court sustained an exception, and which hence we need not notice.

Upon the conclusion of the evidence the court gave a peremptory instruction in favor of the American Home Bife Insurance Company but submitted the case to the jury as between the plaintiff and appellant R. T. Stuart and C. W. Walker, composing the firm ■of Stuart, Walker & Co. on the issue embodied in the following charge: “You are further instructed that if you believe from the evidence that the defendant American Home Bife Insurance Company did not, in good faith, approve and accept the subscription of stock in question, and did not in good faith intend to make the loan under the terms mentioned in said contract, you will find for the plaintiff against the defendants Stuart, Walker & Co. for $250, with 6 per cent, interest from November 3, 1909; but if you believe from the evidence that the American Home Bife Insurance Company did approve and accept the subscription for the stock signed by plaintiff in good faith, intending to make the loan under the terms above mentioned, provided plaintiff furnish security satisfactory to the American Home Bife Insurance Company, then you will find for the defendants.”

The verdict and judgment was in appellee’s favor as against Stuart, Walker & Co. and also in favor of the American Home Bife Insurance Company against the plaintiff’s cause of action and as against a cross-plea presented by Stuart, Walker & Co., which in view of the.disposition we have made of the case we do not think it necessary to further notice.

Appellants have assigned error to the court’s charge on the ground that it submitted an issue not made by either the pleadings or evidence, and we think the assignment must be sustained. If, as presented in the charge quoted, the subscription contract was not accepted in good faith by the American Home Bife Insurance Company, the plaintiff was entitled to recover as he did under the very terms of appellants’ receipt for the money received; a good faith acceptance being necessarily implied, in appellants’ undertaking. But no such issue is presented in plaintiff’s pleadings.

The plaintiiff’s petition is susceptible to no other construction than that he alleges that the insurance company, after its organization and as contemplated in his subscription contract, accepted the contract, and one or more of its officers so testified. If so, the American Home Bife Insurance Company adopted the act of its promoters as its own and took the contract with its burdens as well as its benefits; among the burdens being the obligation to make the loan specified in the subscription contract. W. M. W. & Ry. Co. v. Granger, 86 Tex. 350, 24 S. W. 795, 40 Am. St. Rep. 837. The failure, therefore, to make the loan under the circumstances alleged constituted but a breach of the contract on the part of the insurance company. Such breach, if any, would entitle the plaintiff, as against the insurance company, to damages or to a rescission of the subscription contract with a recovery of the money advanced thereon.

Because the case was tried and submitted upon a theory not presented in the pleadings, the judgment is reversed, and the cause remanded for a new trial.

On Motion for Rehearing.

In deference to the very earnest and skillful presentation of the motion for rehearing, we have again examined the record with great care but find no reason to alter our former conclusion. Appellee’s petitions as a whole do not present a case of nonacceptance of the subscription contract sued upon on the part of the appellant insurance company. On the contrary, in the original anid supplemental petitions are reiterated averments that such contract was accepted, nor is such acceptance specially denied in the answers of appellants. There were general denials by all of them, but each presented special pleas based upon the theory that the insurance company after its organization “accepted, approved, ratified, and adopted” the contract. The insurance company answered that, after the corporation had been organized, “it offered to accept the subscription contract of said M. H. Compere, plaintiff, and to issue to plaintiff the stock subscription by the said Compere and to loan to plaintiff the sum of $2,500 upon the terms and conditions stipulated in the subscription contract.” Again: “That the defendant (the insurance company) has at all times been willing and anxious to make the loan to the said Compere Bros., and is still willing to do so and now offers, if the said Compere Bros, still desire to carry out the contract and take the stock for which they subscribed, to loan to the said Compere Bros, the sum of $5,000 for the period of five years, with interest at the rate of 6 per cent, per annum, provided the said Compere Bros, .will secure the same by mortgage upon real estate which is acceptable to the finance committee and to which they have good titles,” etc. It is true that appellee in his supplemental petition has an averment to the effect that, if he be mistaken as to the fact alleged that the insurance company had accepted the contract, then he prays in the alternative for a judgment against Stuart, Walker & Co., but we do not think that such aver-ments, in the light of the petition as a whole, can support the issue submitted in the court’s charge. It is certainly clear that nothing in any of the pleadings raises the issue of a pretended, simulated, or bad-faith acceptance on the part of the insurance company, and when we refer to the statement of facts we find the matter yet more clear, if possible.

But three witnesses testified:

R. T. Stuart testified that after the organization of the insurance company he became its president and said: “When the American Home life Insurance Company was organized, those contracts were turned over to the- company and accepted by them, I suppose; they were all turned over to the company. I suppose this particular contract was accepted by the company.” Here Judge Bell for the company “admitted that the particular contract was accepted by the company.” Again he testifies: “The company received, as far as I know, this particular stock subscription of Compere, and it received the benefit of the promotion and organization of the company toy Stuart, Walker & Co. * * * The Home Life Insurance Company to my knowledge never repudiated at any time any of the actions of the agent; anything that was done by the promoters in the work of the organization, selling of stock, and the advertising; no objections that I know of.”

T. B. Yarborough, who testified that he was a vice president of the First National Bank and was elected treasurer of the Home Life Insurance Company when it was organized on the 3d of May, 1909: “I guess we accepted the contracts of Stuart, Walker & Co. in the condition they were in at the time the company was organized. There was never any objection to them that I know of. The company undertook to carry out those contracts according to the terms of them. * * * At the time this application blank here (the stock subscription sued upon) was turned over to the company, I took it for granted that we were to collect the $1,250, the balance due the Home Life Insurance Company under the subscription; we would have to comply with this contract before we collected that $1,250; we would have to make a loan of $2,500. * * * I knew there was stock on which he (Compere) had already paid $250; I knew that the subscription blank says he paid Stuart, Walker & Co. and agreed that that was organization expenses. * * * These different subscriptions have been turned over to me, as treasurer of the company, for the purpose of being collected. I know the plaintiff in this ease and on the 6th of May notified him to 'pay up his subscription. * . * * Up to the time that the property was found to be a homestead, I had agreed to make them a loan of $5,000 at 6 per cent. The only thing that was in the way at that time was the title; the fact that it was a homestead. The company has been ready, provided the title to the property was pronounced satisfactory to make the loan from that time to this. We offered to do so in our pleadings. I have been treasurer of the Home Life Insurance Company since its organization.”

The remaining testimony is that of the appellee M. H. Compere and numerous letters passing between the appellee and Mr. Yar-borough extending from May 6, 1909, to November 3, 1909, none of which tends to raise the issue of a failure on the part of the insurance company to accept the subscription contract sued upon. The entire burden of the correspondence was with reference to the loan; it appearing that the property first offered as security was claimed to be a homestead by Mr. Yarborough, and there being long delays relating to other property offered as security, until finally on November 3d the appellee wrote demanding a.return of the amount paid on his subscription contract declining to further prosecute his efforts to secure the loan. It may be that the evidence would support the conclusion that the insurance company, after its acceptance of the subscription contract in question, did not in good faith attempt to make the loan as therein provided, but that issue and the legal consequences that would follow its determination in appellee’s favor was not presented in the court’s charge. The recovery was upon no such theory, so that we can but reiterate our former conclusion that the court erred in submitting “an issue not made by either the pleading or evidence,” as appellant assigned.

The motion for rehearing is accordingly overruled.