author: HIGGINS, J.

text:
    THORNTON et al. v. GOODMAN.
    (No. 552.)

    (Court of Civil Appeals of Texas. El Paso.
    April 6, 1916.
    On Rehearing, April 27, 1916.)
    1. Mobtgagbs <&wkey;369(3) — Trust Deed — Sale by Trustee — Setting Aside — Construotive Fraud.
    For the trustee in a deed of trust to accept employment by the beneficiary as her attorney to collect the note secured, without knowledge and consent of the grantor, is a constructive fraud on the grantor, disqualifying the trustee to act as such in making a sale, which, coupled with the fact that the sale was for a fifth or sixth of the value of the property, warrants the setting aside thereof, especially where the beneficiary was the purchaser, and still has the premises, and the grantor in the deed of trust promptly sought to set aside the sale, and offered to do complete equity.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1093, 1094, 1096; Dec. Dig. &wkey;s 369(3).]
    2. Costs <&wkey;32(l) — Right to Costs.
    By provision of Rev. St. 1911, art. 2035, the successful party is entitled to costs.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 108, 110, 115-132; Dec. Dig. &wkey; 32(1).]
    3. Appeal and Error <&wkey;1170(3) — Harmless Error — ¡Rulings on Pleadings.
    Overruling exceptions to allegations of the petition as irrelevant and immaterial, if error, held harmless, for which, under Court of Civil Appeals rule 62a (149 S. W. x), reversal is not to be granted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4066, 4075, 4098, 4101, 4542; Dec. Dig. &wkey;1170(3).]
    4. Appeal and Error <&wkey;1062(5) — Harmless Error — Immaterial Special Issues.
    The case having been submitted on special issues, submission of immaterial issues, which could not have influenced the finding on the controlling and main issues, was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4218; Dec. Dig. <&wkey; 1062(5).]
    5. Appeal and Error <&wkey;959(3) — Pleading <&wkey; 236(4) — Amendment—Discretion .
    Refusal of an amendment of the answer, asked for after the evidence had all been submitted, even if material, held a matter of discretion, which will not be revised on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3830; Dec. Dig. @=⅛959(3); Pleading, Cent. Dig. § 601; Dec. Dig. 236(4).]
    6. Mortgages <&wkey;369(3) — Sale by Trustee-Inadequate Price.
    A sale by a trustee under a deed of trust for $1,000 was for an inadequate price, whether the property was worth, as found, $5,800, or $1,000 less.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1093, 1094; Dec. Dig. <&wkey;> 369(3).]
    On Rehearing.
    7. Damages i&wkey; 106 — Detention oe Premises —Measure oe Damages — Special Issues.
    The measure of damages for unlawful detention of premises is its fair cash value during the period of detention, so that refusal to submit the issue how much rent defendant received was not error.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 272; Dec. Dig. <&wkey;>106.]
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Suit by Lewis Goodman against A. M. Thornton and others to set aside a sale by a trustee under a deed in trust. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    G. L. & Atlas Jones, of El Paso, for appellants. Lea, McGrady & Thomason, of El Paso, for appellee.

      Application tor writ of error pending in Supreme Court.

   HIGGINS, J.

On February 14, 1911, Lewis Goodman and his wife conveyed to Atlas Jones certain premises in the city of El Paso; the same being conveyed in trust to secure the payment of the grantors’ note in sum of $2,500, due one year after date, payable to order of A. M. Thornton, the wife of A. L. Thornton. The note provided for an attorney’s fee of 10 per cent., if placed in the hands of an attorney for collection. The deed in trust granted to the trustee the usual authority to sell upon default in payment of note. By virtue of the authority so delegated, the trustee sold the premises on the first Tuesday in November, 1914, after notice had been given as the instrument required, and the premises were struck off! to A. M. Thornton for the sum of $1,000; she being the highest bidder. The premises were thereupon conveyed to her by the trustee. Upon November 11, 1914, Lewis Goodman filed this suit against the Thorntons to cancel the trustee’s deed and to recover the premises and rentals. Goodman, in his petition, offered to pay all principal and interest due upon the note, all expenses incident to the sale, any attorney’s fees which the court might find to be due upon the note, and asked the court to prescribe the amount which he should be required to pay the Thorntons as fair and equitable.

The case was tried before a jury and submitted upon special issues. By the jury’s findings, the following facts are established:

At all times prior to the sale of the premises by the trustee, Goodman was unaware that the trustee had advertised or was threatening to advertise the property for sale. The trustee did not use reasonable efforts to make the property bring the highest price at the sale. Goodman did not consent to or agree for Atlas Jones to act as trustee to sell the property at trustee’s sale, after the said Jones had been employed by the Thorntons as their attorney to collect the Goodman ijote. Before he signed and delivered said note and deed in trust, Goodman knew that Jones was Mrs. Thornton’s attorney in examining the title to the land in controversy and preparing the note and deed in trust. The fair rental value of the property from November 3, 1914, to date of trial is $885.50, and the fair cash market value of the land and improvements covered by the deed in. trust w,as $5,800 on November 3, 1914.

In addition to the facts established by the findings of the jury, the court, upon motion of the defendants, filed the following additional findings of fact:

That Goodman executed and delivered the note and deed in trust above mentioned. On October 5, 1914, Mrs. Thornton, acting through her agent, A. L. Thornton, placed the note in the hands of G. L. & Atlas Jones, partners in the practice of law. Said Atlas Jones was the trustee mentioned in the deed of trust. On October 5, 1914, G. L. & Atlas Jones wrote and. mailed to plaintiff, at his address in El Paso, Texas, this letter:

“Mr. Lewis Goodman — Dear Sir: We have for collection your note for $2,500.00, dated February 14, 1911, payable to A. M. Thornton, bearing interest at the rate of 8%, with interest paid to February 14, 1914, and providing for 10% additional as attorney’s fees. We are requested to inform you that, if this note is not paid by the 9th of this month, the property securing the note will be sold under the deed of trust you gave, and notices of the sale will be posted on the 10th instant. If you pay the note without further trouble, we shall make you some reduction in the attorney’s fees. We shall be glad to have you give the matter your prompt attention.
“Yery respectfully, G. L. & Atlas Jones.”

Thereafter Atlas Jones advertised the property for sale under the terms of the deed in trust, the sale to take place on November 3, 1914, between the hours of 10 a. m. and 4 p. m. The trustee, through' his law partner, G. L. Jones, posted three notices of sale in three public places of El Paso county, one of which was posted at the courthouse door, which notices were in proper legal form. The trustee also caused a copy of the notice to be published in a newspaper published in the English language in El Paso, with a circulation in excess of 18,000, for three consecutive weeks, prior to the date of sale, which advertisement in the paper was in full compliance with the law respecting execution sales; and on October 12, 1914, the trustee mailed a copy of the notice to Goodman at his street address in El Paso, accompanied by this letter:

“Oct. 12, 1914.
“Mr. Lewis Goodman — Dear Sir: Mrs. Thornton has requested us to foreclose on your property because your note was not paid. We inclose notice that was posted and published in Morning Times.
“Yery respectfully, Atlas Jones.”

On November 3, 1914, at about 2:25 p. m., while the sheriff was making execution sales, the trustee read the notice of sale and offered the property for sale at public outcry at the courthouse door of El Paso county, first offering for sale the 26 ft. piece of property, and thereafter offering for sale the 33 ft. 4 in. piece of property. Mrs. Thornton was the only buyer at the sale, and the property was knocked off to her for the sum of $500 for each piece. She made her bid through A. L. Thornton, who was present at the sale, acting for her. On November 4, 1914, the trustee executed and delivered to Mrs. Thornton deed conveying the property to her, and Mrs. Thornton, through her agent, A. L. Thornton, thereupon paid to the trustee $1,000 in cash, out of which the trustee retained a commission of $100 for making the sale and $5 to cover the expense of the advertisement in newspaper, and applied $895 to the payment of the note, and delivered that sum back to Mrs. Thornton, through her agent, A. L. Thornton. The trustee then made this in-dorsement on the note:

“November 4, 1914, the sum of $895.00 from trustee’s sale of property mentioned in this note is credited hereon.”

The trust deed provided for a commission of 10 per cent, to the trustee in making the sale of the property, and also for expenses of sale. Two or three days after November 4, 1914, Goodman, through his agent, offered to pay to A. L. Thornton, the duly authorized agent of Mrs. Thornton, the face of the note, together with all accrued interest thereon, with 10 per cent, as attorney’s fees and expenses of trustee’s sale, and $100 to cover A. L. Thornton’s expense in coming from Los Angeles, Cal., to El Paso, to attend the sale, which offer was declined by A. L. Thornton. At the time of the execution and delivery of the note and deed in trust, Goodman knew that Atlas Jones was the attorney for Mrs. Thornton in examining the abstract of title and passing upon the sufficiency of the title to the property in controversy herein. In the matter of advertising and making sale of the property, the trustee acted in good faith and without actual intent to defraud Goodman. The court further found the facts established by the verdict of the jury, but stated that he was inclined to believe that the evidence did not support the' finding that the trustee did not use reasonable efforts to make the property bring the highest price at the trustee’s sale. This issue the court stated it regarded as being immaterial in the cause.

Upon the facts so found by the jury and the court, judgment was rendered in Goodman’s favor, setting aside the trustee's sale, and for title and possession of the premises, together with the rental value of $885.50 for the use of the premises from November 4, 1914, to date of judgment. The court further found that Goodman was indebted to Mrs. Thornton in the sum of $3,139.76, same being the principal, interest, and attorney’s fee due upon the note above mentioned, and judgment for this amount, less said sum of $8S5.50, was had against Goodman in favor of Mrs. Thornton, with foreclosure of lien upon the premises, and ordered that, if said sum be not paid by Goodman, the property' be sold in satisfaction thereof. From this judgment, the Thorntons prosecute this appeal.

Prior to the sale, the trustee informed William Moeller, appellee’s agent in securing the loan, that the property would be sold. The trustee tried to sell the property to Nick Konsiakis, who was able to buy and desired to lend his money, and also pointed out the notice of sale to Jim Conklin, whom lie heard had money. The trustee sold the property in two parcels, as they were described in the deed of trust, and according to the terms of the deed of trust, at 2:25 o’clock p. m., November 3, 1914, and each parcel was bid in by A. Ij. Thornton for the beneficiary in the deed of trust, bidding $500 for each parcel. The sale' was made between judicial sales then being made by a deputy sheriff of El Paso county, and several persons, besides the trustee, the deputy sheriff, and A. L. Thornton, were present at said sale. Each of said lots of land could be used separately, and were salable separately, and the lots were more easily sold to purchasers separately than together, though the evidence was conflicting as to whether the property would have brought more sold all together or sold in parcels. At the sale, the trustee stated that the purchaser would get a good title, and that the property was worth $5,000 or $6,000, and described the improvements on the land. The trustee went and looked at the property, and thought from the improvements on the same that it ought to be sold in separate parcels.

Jones testified that he desired to see the property sell for as much as possible to increase his trustee’s fee of 10 per cent; that he handled the matter as trustee, and not as attorney, from the time he posted the notices of sale; that if appellee came to his office in response to the letter to appellee dated October 5, 1914, and signed by G. L. & Atlas Jones, he intended to collect some attorney’s . fees on the note, and regarded that the whole attorney’s fee had attached to the note, and when, after appellee failed to respond to said letter, and he prepared the trustee’s notice of sale, he still regarded that the attorney's fee had attached to the note, and so stated in said notice; that he, as trustee, never intended to collect, and never attempted to collect, any attorney’s fee by a sale of the property; that his action in selling the property was in the utmost good faith. Neither the trustee nor his partner at any time said anything to A. L. Thornton about collecting any attorney’s fee on the note. The trustee was attorney for appellants in other matters at the time of sale. At the time of sale, the trustee requested those attending one of the sheriff’s sales to remain, and sold so that those standing around could hear.

Appellants, in their answer, admitted that they placed said note in the hands of G. L. & Atlas Jones as attorneys for collection, but denied that said land was sold to pay any attorney’s fee. Atlas Jones was Mrs. Thornton’s attorney in examining title to the property and preparing the note and deed of trust when the loan was negotiated, which fact was known to appellee. Appellee paid for Jones’ services in so doing.

The primary question in this case is whether, upon the facts stated, the court below erred in setting aside the sale and restoring the property to Goodman upon condition that he do equity. In our opinion, such action was correct. This is an equitable proceeding, and was addressed to the sound discretion and conscience of the trial judge, in the exercise of the equity jurisdiction of the district court The action of the trustee in accepting employment by the beneficiary as her attorney to collect the note without the knowledge and consent of Goodman constituted a constructive fraud upon Goodman, and this, coupled with the very great inadequacy of price, was sufficient to warrant the setting aside of the sale. This is especially true when it is considered that the beneficiary was the purchaser, the premises were still in her hands, and Goodman had promptly sought to set aside the sale, and offered to do complete equity. It is not an answer to the relief sought by Goodman to say that the trustee was guilty of no positive fraud against Goodman. This does not meet the issue at all. Having been selected by the parties as trustee, Jones became the agent of both parties. He was as much the representative of Goodman as Mrs. Thornton. In law he had no right to accept an employment from the beneficiary, which it must be conceded was not altogether compatible with the rights and interests of the mortgagor. He certainly could not be regarded as still occupying an unbiased and impartial attitude towards the mortgagor and beneficiary alike. By his acceptance of employment from the beneficiary with respect to the subject-matter of his trust he became disqualified to act as trustee in making sale, and the sale made by him in the instant case should be avoided. We shall not undertake to discuss the different principles of law and authorities discussed by appellants. It is, of course, well settled in this state that mere interest in the debt secured does not disqualify a trustee from acting as such, and that a mortgagee with power of sale may purchase at his own sale. We also regard those authorities to correctly state the law which hold that a lawyer, agent or employó of the beneficiary, is qualified to act as a trustee in a deed .of trust; but they are inapplicable to the facts here presented. We have been unable to find an authority directly in point in this case, and, in support generally of the views expressed, see Nabours v. McCord, 97 Tex. 526, 80 S. W. 595; Id., 100 Tex. 456, 100 S. W. 1152; Id., 101 Tex. 494, 109 S. W. 913, 111 S. W. 144; Tenison v. Patton, 95 Tex. 284, 67 S. W. 92; Irion v. Yell, 132 S. W. 69; Parks v. Worthington, 101 Tex. 505, 109 S. W. 909; Smith v. Downey, 38 Colo. 165, 88 Pac. 159; Herbert v. Bryan (Cal.) 68 Pac. 1020; In re Mayfield, 17 Mo. App. 684; Hedlin v. Lee, 21 N. D. 495, 131 N. W. 390; Dyer v. Shurtleff, 112 Mass. 165, 17 Am. Rep. 77; 28 Am. & Eng. Enc. 764; 27 Cyc. 474-486; note in 19 Am. St. Rep. 289, 290.

Before passing from this point, we desire to testify to the high regard which this court has for the personal and professional integrity of the trustee, Jones. It is quite inconceivable to us'that he should have been guilty of any intentional impropriety or actual fraud in the premises, and our holding in this case is not to be construed as any reflection upon him or his firm. The grounds of our decision exclude such an hypothesis.

The court did not err in taxing costs against appellants. No question was made concerning the sufficiency of the tender of payment made by appellee. R. S. art. 2035.

The following allegations appear in plaintiff’s petition:

“Plaintiff says that on or about the-day of August, 1914, his brother, Sam Goodman, in the city of El Paso, Texas, was taken severely ill, and on that account it became necessary for plaintiff to take his said sick brother from the city of El Paso, and go with him to Rochester, Minn., to undergo a serious surgical operation, to attend to the bedside of such relative, where he, plaintiff, was detained until the 1st day of November, 1914, the said relative having recovered so as to be out of danger. * * * Plaintiff says that he has a residence in El Paso, and his family and his wife resided in El Paso, which facts were well known to the defendants and the said G. L. & Atlas Jones, and had a telephone at his home, whore his wife could be reached at any minute in the day, and his residence in El Paso was well known to defendants and to their said attorneys and to the post office authorities, and not only this, but he had a brother, Joe Goodman, engaged in the wholesale mercantile business in the city of El Paso, and who had been engaged and was well known in said city for several years, and who was known to be friendly to plaintiff and interested in plaintiff’s financial success, and yet, notwithstanding all these facts, known to defendants and said trustee, * ⅜

Exceptions were addressed to these allegations upon the ground that they were irrelevant and immaterial, and raised no issue in the case, and tended to prejudice and bias the jury against appellants. The overruling of these assignments is assigned as error. The error, if any, in so doing was harmless. Rule 62a (149 S. W. x).

The tenth and fourteenth assignments are disposed of by what has heretofore been said.

Error is assigned to the submission of this issue:

“Do you find from a preponderance of the evidence that at all times prior to the sale of the property in controversy by the trustee, Atlas Jones, the plaintiff, Louis Goodman, was unaware that said trustee had advertised or was threatening to advertise the property, in controversy for sale?”

Which was answered, “Xes.” It is objected that it was immaterial whether Goodman knew or did not know that his property was advertised for sale. This error, if any, was harmless. The case having been submitted upon special issues, it is not apparent how the submission of this issue could have in any wise influenced the finding of the jury upon the controlling and main issues in the case. The same is true of the assignment which complains of the submission of this issue:

“Did Atlas Jones use reasonable efforts to make the property in controversy bring the highest price at the trustee’s sale?”

Which issue was answered by the jury, “No.”

The thirteenth assignment is disposed of by the requirement hereinafter indicated with reference to remittitur.

The fifteenth assignment complains of the refusal of the court to permit defendants to amend their answer, so as to make the same contain, in lieu of the admission “that defendants placed said note in the hands of G. L. & Atlas Jones as attorneys for collection” the following admission:

“That G. It. & Atlas ■ Jones understood that said note was placed in their hands by defendants for collection, and that they undertook to collect the same as attorneys up to October 10, 1914”

—said amendment being requested for the purpose of making the pleadings conform to the truth and facts, as shown by the evidence introduced upon the trial of the cause. This motion was made after the evidence in the case had all been submitted, and, coming at this time, the refusal of the court to permit the amendment was a matter within his discretion, and will not be here revised. Furthermore it may be said that it does not appear to us that the amendment was in any wise material. The legal effect and consequences of the two admissions, it seems, is the same.

It is assigned as error that the finding of the jury that the property in question was worth $5,800 is excessive to the extent of at least $1,000. A sale for $1,000 would be a very inadequate price, whether the property was worth $4,800 or $5,800.

It is also assigned that the jury’s finding that the rental value of the property from November 3, 1914, to the date of the trial, was $885.50, is excessive. This assignment is sustained. The evidence does not justify a finding of this amount. It is admitted, however, the defendant had received as rentals the sum of $593.10, and a remittitur reducing recovery for rents to this sum would cure any error in this respect. If, within 15 days from this date, the appellees shall file a re-mittitur reducing to $593.10 the amount of their recovery for rents, then the judgment will be modified and affirmed. If such remit-titur be not filed, the judgment of the lower court will be affirmed, in so far as concerns the recovery by appellees of the title and possession of the premises in controversy, and that branch of the case relating to the rentals will be reversed and remanded for retrial; such issue of rents being severable from the issue of title.

On Rehearing.

Upon consideration of appellee’s motion for rehearing, it is apparent we erred in requiring a remittitur reducing to $593.10 the amount of his recovery for rents. Prom the date of dispossession by appellants to date of verdict and judgment (November 8, 1914, to October 22, 1915) is 11 months and 19 days. Goodman testified that the rental value of the property was $80 to $85 per month. His testimony upon this phase of the case is amply corroborated by disinterested witnesses. It is thus quite apparent that the allowance of $885.50 for rents was not excessive. Our error was occasioned by a miscalculation which the writer made of the time intervening between the date of dispossession and the date verdict was returned and the judgment rendered.

The appellants’ thirteenth assignment complains of the refusal to submit this issue, viz.:

“How much rent do you find that defendants have received from the property, and for what period of time was such rent received?”

The proper measure of appellee’s damage for the unlawful detention of the premises was the fair cash rental value of the property during the period of detention, and the court, therefore, did not err in refusing to submit the issue indicated. What has been here said disposes of all assignments relating to this phase of the case.

Appellants’ motion for rehearing is overruled. Appellee’s motion is granted, the order requiring a remittitur, heretofore entered as a condition of affirmance, is set aside, and the judgment of the court below is in all things affirmed.
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    STREETMAN et al. v. LASATER et al.
    (No. 562.)
    (Court of Civil Appeals of Texas. El Paso.
    April 27, 1916.)
    1. Landlord and Tenant <&wkey;273(l) — Distress — Wrongful Levy — Liabilities on Bonds — Extent—Punitive Damages.
    The . sureties on a distress warrant bond are not liable for exemplary damages, though they are liable for actual damages.
    [Ed. Note. — Por other eases, see Landlord and Tenant, Cent. Dig. §§ 1149, 1150; Dec. Dig. &wkey;273(l).]
    2. Landlord and Tenant &wkey;>273(l) — Distress— Liabilities on Bonds — Extent — Costs.
    While sureties on a distress warrant bond are not by reason of being on the bond, responsible for all the costs of the suit, they are liable for costs incurred by them or on account of their appeal.
    [Ed. Note. — Eor other cases, see Landlord and Tenant, Cent. Dig. §§ 1149, 1150; Dec. Dig. &wkey;273(l)J
    3. Appeal and Error <&wkey;938(4) — Presumptions.
    Where the statement of facts was made up by the court after failure of the parties to agree, it will be presumed that the bill of exceptions properly recites the facts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3800; Dec. Dig. <§¿^938(4).]
    4. Malicious Prosecution <&wkey;67 — Wrongful Distress — Actions—Evidence-^-D am-ases.
    A tenant suing for damages for the wrongful suing out of a distress warrant by the landlord could not testify over objection that after service of the distress warrant he could not rent another place in the county, and that he and the members of his family were in bad health, that being evidence of damages too remote and speculative.
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 155, 156; Dec. Dig. <&wkey;67.]
    5. Malicious Prosecution &wkey;>50 — Wrongful Distress — Actions — Pleading—Malice.
    A tenant’s petition seeking recovery for alleged wrongful suing out of a distress warrant, charging that the writ was issued and served without cause, illegal, unjust, and for the purpose of harassing and vexing the tenant and putting him to trouble and expense, and impairing his credit and reputation in the community, sufficiently charges malicious suing out of the writ, although it does not use the word “malice.”
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. § 97; Dec. Dig. <&wkey;> 50.]
    6. Malicious Prosecution <&wkey;G8 — Wrongful Distress — Damages—Elements.
    If properly alleged together with a charge of malice, mental worry and trouble, and damage to reputation and credit are proper elements to be considered in estimating exemplary damages for the wrongful suing out of a distress warrant by the landlord upon the tenant’s goods.
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. § 157; Dec. Dig. «&wkey; 68; Damages, Cent. Dig. § 204.]
    7. Malicious Prosecution «&wkey;67 — Wrongful Distress — Actions—Damages—Attorney’s Fees.
    In the absence of a contract to pay them, neither party can recover attorney’s fees expended in prosecuting or defending an action by the landlord where he has unlawfully sued out a distress warrant.
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 155, 156; Dee. Dig. &wkey;>67.]
    8. Malicious Prosecution &wkey;>68 — Wrongful Distress — Exemplary Damages — Discretion of Jury.
    Exemplary damages for the wrongful suing out of a distress warrant are allowed as a punishment, and are largely in the discretion of the jury.
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. § 157; Dec. Dig. &wkey;> 68; Damages, Cent. Dig. § 204.]
    9. Malicious Prosecution <&wkey;>69 — Wrongful Distress — Excessive Damages.
    Verdict for $75 exemplary damages for the tenant for wrongful suing out of a distress warrant by the landlord held not excessive.
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. § 158; Dec. Dig. &wkey;> 69.]
    Error from Taylor County Court; E. M. Overshiner, Judge.
    Action by J. W. Streetman and others against C. B. Lasater and others. Judgment for defendants on their cross-action against plaintiff Streetman and his sureties, and the plaintiffs bring error.
    Reversed and remanded.
    S. P. Hardwicke, of Abilene, for plaintiffs in error. Ben L. Cox, of Abilene, for defendants in error.
   HARPER, C. J.

In this' case, appellant Streetman sued appellee C. B. Lasater upon a note for $30, and to foreclose landlord’s lien, made affidavit and bond, and procured the issuance and service of a distress warrant upon two bales of cotton, one as the property of Lasater, and the other as the property of Wristen & Johnson, with W. L. Grogan and H. B. Cooke, sureties on the bond. Trial in justice court resulted in judgment for the amount of note, with foreclosure of lien. An appeal was taken to the county court, where the same judgment was rendered. The cause was then appealed to the Court of Civil Appeals, Second District. Reversed and remanded, with holding that no lien existed. A more complete statement of the nature of the suit is contained in the opinion to be found in 154 S. W. 657.

Upon return of the mandate, the cause again came on for trial. Defendants Wristen & Johnson were dismissed from the suit, and defendant Lasater admitted the plaintiff’s cause of action upon the note and reconvened for damages against Streetman and the sureties upon the distress bond for damages, for wrongful issuance and levy of distress warrant, and by his pleadings set up the following items of damages:

Actual damages, decrease in the price of the cotton .$ 6.00

Interest . 3.00

Exemplary damages, attorney’s fees.... 25.00

Damages to reputation and credit. 65.00

Mental worry and trouble on account of unlawfully suing out and levy of writ.. 100.00

To this cross-action the plaintiff and his sureties demurred as to each item thereof, because not a proper element of damages, and specially denied the allegations, and pleaded that the distress warrant was sued out in good faith upon legal advice and without malice, etc. Tried before a jury and a verdict was rendered for $9 actual damages, and $75 exemplary damages, in favor of Lasater, and in favor of Streetman for $45.37, being amount of the note, interest, and attorney’s fees. Thereupon the court entered judgment for appellee for $38.63, being the difference between the two, against Streetman and the sureties upon the bond, from which the cause is brought here by writ of error for review.

The first and third assignments urge that the court erred in rendering judgment against the sureties for exemplary damages. The appellee concedes the point to be well taken, and the proposition of law is settled in this state (Lynch v. Burns, 79 S. W. 1086) in support of the assignment. But they are held liable for actual damages. Findley v. Mitchell, 50 Tex. 147.

The second is that the court erred in rendering judgment for costs against the sureties, because they are not responsible for costs by reason of the bond.

It is true the sureties are not responsible by reason of the bond for all the costs of the suit, but they are liable for all costs incurred by them, and the judgment of the court properly limits their liability. It reads:

“It is therefore ordered, adjudged and decreed by the court that the plaintiff J. W. Streetman take nothing herein as against any defendant, and that defendants Wristen & Johnson go hence without day and recover of and from the plaintiff J. W. Streetman and his sureties on his distress bond, to wit, H. B. Oooke and W. L. Grogan, jointly and severally, all costs incurred by them and paid out by them herein which arose by virtue of the unlawful and unjust issuance and levy of distress warrant upon their bale of cotton described in the pleadings, and that they recover of plaintiff alone all other costs incurred herein by them in prosecuting their defense herein and which did not accrue by virtue of said unjust and illegal levy, for all of which let execution issue.”

The fourth assignment charges that it was error for the court to permit the plaintiff to testify that:

“After he had made an attempt to make a crop on some new land, the next year he had to move to Wise county.”

The statement of facts does not contain any such testimony, and for that reason the appellee objects to our considering the assignment. The statement of facts was made up by the court after the parties had failed to agree; in such cases it is presumed that the bill of exceptions properly recites the facts.

By the fifth assignment, it is urged that it was error to permit plaintiff to testify that he and members of his family were in bad health. And by the sixth, that it was error to permit plaintiff to testify over objection that after the distress warrant was served he was unable to rent another place in Taylor county, except to break new land for what he could make on it.

The evidence, the admission of which is complained of in the three preceding assignments, was not competent, because too remote and speculative. It did not embrace the elements of actual or exemplary damages; therefore the exception to it should have been sustained. Burger v. Rhiney, 42 S. W. 590; Findley v. Mitchell, 50 Tex. 147.

The ninth is that the court erred in overruling exceptions to the $100 item, mental worry and trouble, and the tenth is that the item for $65 as damages to reputation and credit is not a proper element of damages. The petition alleged:

“That the writ was caused to be issued and served without cause, illegal, unjust, and for the purpose of harassing and vexing the defendant, for the purpose of putting him to trouble and expense, and for the purpose of impairing his credit and reputation in the community,” etc.

While the petition does not contain the term “malice,” we think the allegations are sufficient to charge that the writ was maliciously sued out; and, if so, they become proper elements of damages, not actual damages, but may be considered by the jury in estimating exemplary damages. Sedgwick on Damages (9th Ed.) § 359; Trawick v. Martin Brown Co., 79 Tex. 460, 14 S. W. 564; Biering v. First National Bank of Galveston, 69 Tex. 599, 7 S. W. 90; Kaufman & Runge v. Wicks, 62 Tex. 234; Culbertson v. Cabeen, 29 Tex. 247; Kaufman & Runge v. Armstrong, 74 Tex. 65, 11 S. W. 1048.

The eleventh claims that the item of $25 attorney’s fees was not a proper item of damages. In Tyler v. Sowders, 173 S. W. 640, it was held:

“It is a well-settled general rule of law that, in the absence of a contract to pay the same, neither party can recover attorney’s fees expended by him in prosecuting or defending a lawsuit, and the rule has been applied to cases where a landlord has unlawfully sued out a distress warrant”

—-citing other cases. The assignment is therefore good.

The seventh and eighth urge that the exemplary damages awarded by the jury’s verdict are excessive and out of proportion to the actual damages. Exemplary damages are allowed in such cases as this as a punishment to the wrongdoer and are largely in the discretion of the jury, and we cannot under the facts of this record hold that the amount is excessive.

For the errors indicated, the cause must be reversed and remanded for a new trial.
      <g^jFor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: DUNKLIN, J. CONNER, Chief Justice

text:
    FT. WORTH & D. C. RY. CO. v. GATEWOOD.
    (No. 8348.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 25, 1916.
    Rehearing Denied May 6, 1916.)
    1. Evidence <&wkey;481(3) — Opinion—Delay In Transportation — Law and Fact.
    In an action against a railroad for delay in transporting live stock, testimony of a witness, with 25 or 30 years’ experience, who knew the distance of the shipment and had traveled with it, as to what he considered a reasonable time within which to transport the live stock in question, was inadmissible as an opinion on a mixed question of law and fact.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 2251, 2254; Dec. Dig. &wkey;481(3).]
    2. Evidence <&wkey;497 — Opinion — Value op Pboperty — Law and Fact.
    Testimony of a cattleman, who had inspected the stock in question at destination, as to the difference between their value and what it would have been had they been brought on without delay, was inadmissible as an opinion on a mixed question of law and fact.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2285-2288; Dec. Dig. &wkey;497.]
    3. Evidence &wkey;>481(3) — Opinion—Raw and Fact.
    It was error to permit the shipper, a veterinary surgeon, and another, to testify ttat the cattle should not have been held side-tracked in the cars for more than an hour while the cars were being repaired, the testimony being opinion on a mixed question of law and fact.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2251, 2254; Dec. Dig. &wkey;3481(3).]
    4. Carriers &wkey;>22S(3) — Carriage op Live Stock — Negligence—Evidence—Custom.
    Testimony, to rebut the imputation of the road’s negligence in failing to have employés present -in its yards ready to malee heavy repairs as soon as the necessity therefor was dis-. covered, that other roads operating in the city where the delay occurred kept no such employés on hand at night, but depended on calling them whenever their services were needed, was admissible, since unless the conduct of a business in a certain manner is negligence per se, proof that others, in the same line of business, are in the custom of following the same course is admissible, as tending to show that the method adopted is not negligent.
    [Ed. Note. — For other cases, see Carriers, .Cent. Dig. § 960; Dec. Dig. t&wkey;228(3).]
    5. Appeal and Error <&wkey;843(2) — Review-Matters Unnecessary to Decision.
    In an action against the initial and connecting carriers of a shipment of live stock, where the judgment was in favor of the connecting road, and no complaint made of it, the question of the admissibility of testimony of plaintiff that he signed without reading the written contract of shipment, limiting the initial carrier’s liability for damages to the cattle to injuries sustained on its own line, became immaterial and unnecessary to be decided.
    [Ed. Nóte. — For other cases, see Appeal and Error, Cent. Dig. § 3331; Dec. Dig. <&wkey;843(2).]
    6. Carriers <&wkey;230(8) — Carriage of Live Stock — Action—Instruction.
    In an action against a carrier of live stock for delay in transporting a shipment, defendant’s contention, supported by evidence, that after the arrival of the shipment at a connecting point it repaired defective cars and delivered to the connecting road as quickly as possible under the circumstances should have been submitted to the jury in an affirmative form.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 961; Dec. Dig. &wkey;>230(8).]
    7. Carriers &wkey;216(l) — Carriage of Live Stock — Delay in Transportation — Liability.
    Where a carrier of live stock, upon arrival of the shipment at a connecting point, repairs the cars, containing part of the shipment, as soon as possible, and delivers the whole shipment to the connecting road as quickly as a person of ordinary prudence, similarly situated, would do under the same circumstances, it is not liable for a delay in transportation, though the cattle were injured by heating by the stoppage.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 923; Dec. Dig. <&wkey;215(l).1
    8. Carriers &wkey;216 — Carriage of Live "Stock — Liability of Road.
    Where a shipment of cattle, suffering from Texas fever, is negligently delayed by the railroad, and the cattle are damaged solely on account of their infection with the disease, the shipper cannot recover for the damages so caused.
    [Ed. Note — For other cases, see Carriers, Cent. Dig. § 929; Dec. Dig. <Sum210.]
    9. Carriers <&wkey;229(2) — Carriage of Live Stock — Delay in Transportation — Damages.
    Where some cattle shipped by rail were dead when they reached destination, negligent delay of the shipment at an intermediate point being the proximate cause, the measure of the shipper’s damages for the dead cattle was their market value at destination on arrival had no delay occurred.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 964; Dec. Dig. &wkey;229(2).]
    10. Carriers <&wkey;229(2) — Carriage of Live Stock — Delay in Transportation — Damages.
    Where cattle shipped reached destination afflicted by distemper or catarrhal fever, proximately caused by the negligent delay of the shipment at an intermediate point, the measure of the shipper’s damages was the difference in the market value of the cattle in their diseased condition at destination on arrival and such value in the condition they would have been in had the delay not occurred.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 964; Dee. Dig. <&wkey;229(2).]
    11. CARRIERS &wkey;215(l) — Carriage of Live Stock — Liability of Railroad.
    Where the shipper of cattle by rail, upon part of the shipment’s being necessarily delayed by repairs becoming necessary to the cars, refused the road’s offer to forward the residue of the shipment immediately, stating that he preferred that the entire shipment go forward at tiie same time, he could not recover for the delay of the residue of the shipment, so offered to be immediately transported.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 923; Dec. Dig. &wkey;215(l).]
    Conner, .0. J., dissenting in part.
    Appeal from District Court, Johnson County ; O. L. Lockett, Judge.
    Suit by R. E. Gatewood against the Ft. Worth & Denver City Railway Company and another. From a judgment against the named defendant, it appeals.
    Judgment reversed, and cause remanded.
    Thompson & Barwise and G. W. Wharton, all of Ft. Worth, and Brown & Lockett, of Cleburne, for appellant. Johnson & Harrell and S. C. Padelford, all of Cleburne, for ap-pellee.
   DUNKLIN, J.

R. E. Gatewood shipped 438 head of cattle from Henrietta to Cle-burne; over the Ft. Worth & Denver City Railway from Henrietta to Ft. Worth, and from Ft. Worth to Cleburne over the Gulf, Colorado & Santa Fé Railway. The cattle left Henrietta at 8 o’clock p. m. October 12, 1912, and arrived at Ft. Worth about 3 o’clock a. m. on October 13th. After their arrival in Ft. Worth three of the cars in which the cattle were loaded were inspected and found to be in bad order. Those three cars were cut out of the train, and placed on what is known as the “rip” track for repairs. The entire shipment was held while these repairs were being made, and after the cars were repaired the cattle were turned over to the Gulf, Colorado & Santa Fé Railway Company, and that company carried them to their destination at Cleburne, leaving Ft. Worth at 10:15 a. m. on October 13th, and arriving at Cleburne about 12:15 p. m. of the same day. The owner of the cattle instituted this suit against the two railway companies to recover damages for alleged injuries to them during the shipment. A trial before a jury resulted in a verdict and judgment in favor of the Gulf, Colorado & Santa Fé Railway Company, but against the Ft. Worth & Denver City Railway Company for $4,451.46, from which judgment that company has appealed.

According to allegations -in the plaintiff’s petition, the appellant company was guilty of negligence in delaying the shipment at Ft. Worth, during which delay the cattle became overheated by being confined in the cars while the weather was warm, and without the cool air which they would have received if the cars had been in motion or had they been unloaded from the cars, and that by reason of becoming so overheated and exhausted, and by reason of their sudden cooling off when they resumed their journey at a high rate of speed, they contracted distemper and catarrhal fever, from which some of them died and on account of which the rest lost weight and were greatly depreciated in value.

The distance from Henrietta to Ft. Worth is 96 miles, from Ft. Worth to Cleburne, 28 miles. The only issue of negligence of appellant raised by the evidence was the delay of the shipment in Ft. Worth. Eason, appellant’s yardmaster at Ft. Worth, testified that the defective cars were set on the rip track for repairs at 4:30 in the morning. Tanner, appellant’s car repairer, testified that he commenced the repair work on those cars at 4:35 in the morning, and finished it at 7:02 of the same morning. According to the testimony of other witnesses, it was necessary for the train carrying the cattle to go through the interlocker in order to be transferred to the Gulf, Colorado & Santa Fé Railway; that the train was pulled up to the interlock-er at 8 o’clock in the morning, but that it could not get through until 9:27 in the morning, at which time the train was delivered to the Gulf, Colorado & Santa Fé Railway Company.

The following question was propounded to plaintiff, R. E. Gatewood:

“What is the time of shipment from Henrietta to Cleburne; the time that they should have been brought through, how many hours? What is the proper and reasonable time for these cattle to have arrived in Cleburne after they had been taken from Henrietta?”

To which the witness answered:

“They should have made the time in eight or nine hours.”

He was also asked the following question: “Mr. Gatewood, in your best judgment, what was the difference in the market value of these 438 head of cattle per head in the condition in which they should have been delivered had they not been delayed at Ft. Worth an unreasonable time? What in your best judgment was the difference in the market value of those cattle?” To which the witness answered:

“There was at least $15 a head difference; in fact I do not believe I could have gotten a man to have them at any price.”

To each of those questions and the answer thereto, appellant objected because it called for the opinion of the witness upon a mixed question of law and fact, and to give such an opinion would be an- invasion of the province of the jury. Those objections were overruled, and those rulings have been assigned as error.

Notwithstanding the fact that the witness testified that he had had 25 or 30 years’ exxjerlence in shipping cattle and knew the distances from Henrietta to Ft. Worth, and from Ft. Worth to Cleburne, and the rate of speed at which the train traveled, and that he accompanied the shipment, we are oi the opinion that this assignment should be sustained upon the authority of H. & T. C. Ry. Co. v. Roberts, 101 Tex. 418, 108 S. W. 808, and numerous other decisions following that one, among which are G., C. & S. F. Ry. Co. v. Bogy, 178 S. W. 577, I. & G. N. Ry. Co. v. Hamon, 173 S. W. 613.

The following Question was propounded by plaintiff’s counsel to the witness Arch Ferguson, who had already testified that he had been engaged in the cattle business for a number of years and had inspected plaintiff’s cattle at Cleburne:

“What, in your judgment, would he the difference in the market value of the cattle here at Cleburne at the time you saw them in the condition they would have been in had they been brought on without any delay and in the condition they were in; what would have been the difference in the market value of those cattle in Cleburne, at that time, in your best judgment?”

To which the witness answered:

“I would judge $15 or $20 a head; $20 1 would think.”

The same objection was urged by appellant to that Question and answer, as was urged to the testimony of plaintiff, himself, discussed above, and we think the objection should have been sustained. It would be impossible to make such a shipment without some delay, as every one knows, and in answering the question necessarily the witness took into consideration what, in his opinion, was a reasonable time for such a trip, which was an opinion upon a mixed question of law and fact.

For the same reason we are of opinion that the trial court erred in permitting the plaintiff to testify, in effect, that the cattle should not have been held in the cars at Ft. Worth without being unloaded for a longer period of time than one hour, and in admitting the testimony substantially to the same effect, given by Roe Robinson, an experienced shipper, and by Dr. Bums a veterinary surgeon.

Tanner, appellant’s car repairer, testified that in order to repair two of the cars which were in bad order, it was necessary to put in draft bolts in both ends of each, working on the inside of the cars; that he did this without unloading the cattle therefrom, and described his method of doing it as follows:

“I got in there and pushed the cattle back and jabbed them with sticks and put a bar across. I would not say I got them back 2½ feet. You can push them back from the outside and put a bar across and then get in there.”

According to other testimony the cars were 36 feet in ■ length, and there were 21 or 22 head of three or four year old steers in each car.

In rebuttal of the testimony of Tanner, the court permitted W. G. Powell, an experienced cattle shipper, to testify for plaintiff that the cattle 'could not be pushed back sufficiently for one to get in the cars to do any work at all; that the cattle could be pushed back with a prod pole, but as soon as the pressure was released they would fall back to their former positions. Appellant objected to the testimony on the ground that it related to an issue upon which expert testimony was not admissible. Perhaps an experienced shipper would know better than the average juror to what extent a car of the dimensions stated would be crowded by the number and size of cattle loaded therein, but upon that question there seems to have been no difference between his testimony and that of the witness Tanner. The witness Powell did not claim to know whether or not the cattle could be held back by a bar, as Tanner testified was done, and under all the circumstances we do not believe his testimony was admissible as against a proper objection,. but we doubt the sufficiency of the objection noted above. What we have said relative to that testimony is by way of suggestion, in view of another trial of the case.

The train reached Ft. Worth shortly after 3 o’clock in the morning, and as soon as the defects in the cars were discovered, E. R. Miller, the car inspector, sent a call boy for Tanner, the car repairer, to remedy the defects in two of the cars. According to the testimony of different witnesses, the repairs required in those two cars were what are known as “heavy repairs,” done by men especially qualified to do such work. Miller testified that appellant did not have such em-ployés in its yards ready to do such work during the night, but had such men subject to call, and that Tanner came and did the work in response to a call by the call boy, who was dispatched to his home for that purpose. To rebut the imputation of negligence in failing to have employes present in the yards and ready to make such repairs as soon as the necessity therefor was discovered, appellant offered to prove by Miller that it was the custom of all railway companies operating in Ft. Worth to keep no such employes on hand at night, but to depend on calr ing them whenever their services were needed, just as appellant did in this instance. To that testimony plaintiff objected on the ground that it was immaterial, and that appellant could not excuse its negligence in not having car repairers present at the time to make such repairs, by reason of the custom of other roads to follow the same course. In sustaining that objection we think there was error. The rule is well settled that unless the conduct of a business in a certain manner is negligence per se, then proof of a general custom of others'following a like business to pursue the same course is admissible, as tending to show that the method so adopted was not a negligent one. H. & T. C. Ry. v. Alexander, 103 Tex. 594, 132 S. W. 119; Missouri, K. & T. Railway v. Pace (No. 8308) 184 S. W. 1051, by this court.

The written contract under which the shipment was made was pleaded and proven by appellant for the purpose of showing that thereby its inability for damages to the cattle was limited to injuries sustained on its own line. In reply to that proof plaintiff testified that he signed the contract without reading it, and' that he was not given an opportunity to read it, and appellant com, plains of the admission of that testimony. Since the judgment was in favor of the Gulf, Colorado & Santa Fé Railway Company, and no complaint is made of that judgment, the question of damages to the cattle while in transit over that road is now eliminated; and for that reason it is not necessary to discuss the assignment last referred to. And as the judgment is to be reversed it will not be necessary to discuss other assignments relative to the alleged misconduct of the jury while considering their verdict.

Relative to other assignments of error in which complaint is made of the charge given by the court to the jury and of the refusal of charges requested by appellant, we think it sufficient to make the following suggestions for the guidance of the court upon another trial:

We are of the opinion that the evidence in the record is insufficient to show that the defective condition of the three cars upon their arrival in Ft. Worth was the result of any negligence on the part of the defendant, and if there is the same lack of such proof on another trial, then the court should give a peremptory instruction in favor of appellant as to that issue, such as is shown in appellant’s requested instruction No. 7. G., C. & S. F. Ry. Co. v. Kizziah, 86 Tex. 81, 23 S. W. 578; T. & P. Ry. Co. v. Endsley, 103 Tex. 434, 129 S. W. 342; H. & T. C. Ry. Co. v. Barrager (Sup.) 14 S. W. 242; G., C. & S. F. Ry. Co. v. Davis, 161 S. W..932.

Appellant’s contention, which was supported by evidence, that after the arrival of the shipment in Ft. Worth it repaired the defective cars and delivered the entire shipment to the Gulf, Colorado & Santa Fé Railway Company as quickly as a person of ordinary prudence similarly situated, would have done under the same or similar circumstances should be submitted to the jury in an affirmative form, and the jury should be told that, if that contention is sustained, then a verdict should be returned in appellant’s favor. Progressive Lumber Co. v. M. & E. T. Ry. Co. (Sup.) 155 S. W. 176; E. P. & S. W. Ry. Co. v. Foth, 101 Tex. 133, 100 S. W. 171, 105 S. W. 322; G., H. & S. A. Ry. Co. v. Washington, 94 Tex. 510, 63 S. W. 534; Yellow Pine Lumber Co. v. Noble, 101 Tex. 125, 105 S. W. 318. And that, too, even though the jury should further find from the evidence that the cattle sustained the injuries alleged. I. & G. N. Ry. Co. v. Neff, 87 Tex. 303, 28 S. W. 283; H. & T. C. Ry. Co. v. Burns, 41 Tex. Civ. App. 83, 90 S. W. 688; Cleburne Electric L. & Gas Co. v. McCoy, 128 S. W. 457; Tex. Tract. Co. v. Wiley, 164 S. W. 1028; Wells Fargo Co. v. Benjamin (Sup.) 179 S. W. 513.

The jury should' be further instructed, in effect, that if they should find that any of the cattle sustained damages, but that if they were suffering from Texas fever at the time, and that such damages were caused solely by Texas fever, then plaintiff cannot recover for such damages so caused, even though the jury should further find from the evidence that the shipment was negligently delayed in Ft. Worth. We are inclined to the opinion that the charge given by the court on the measure of plaintiff’s damages was rather confusing, if not erroneous; and we suggest that the usual form of charge on that issue is clearer and better.

If some of the cattle were dead when they reached Cleburne, and if the negligent delay of the shipment in Ft. Worth was the proximate cause of their deaths, then the measure of plaintiff’s damages for the cattle so dying would be what the evidence shows would have been their market value in Cleburne upon, their arrival there had not such negligent delay occurred.

If some of the cattle that reached Cle-burne alive were afflicted with distemper or catarrhal fever and if such negligent delay of the shipment in Ft. Worth was the proximate cause of such diseased condition of those cattle, then the measure of plaintiff’s damages for such injuries to those cattle would be the difference in their market value in that condition in Cleburne upon their arrival and what the evidence shows would have been the market value of the same cattle in Cleburne upon their arrival there in the condition they would have been in, if such negligent delay had not occurred.

According to the testimony of one of appellant’s witnesses, which, however, was controverted by plaintiff’s testimony, during the delay in Ft. Worth, and when plaintiff complained of the delay appellant, through one of its employés; offered to forward all of the cattle except those contained in the three defective cars without holding them to await the repairs upon those cars, but that plaintiff declined said offer, stating at the time that he preferred that the entire shipment go out of Ft. Worth at the same time. If such was the fact, then plaintiff would not be entitled to recover for such additional delay of the cattle so offered to be immediately transported. No specific assignment of error has been presented upon this appeal to the failure of the court to submit that issue' to the jury, but the suggestion of error for such failure has been made under another assignment, and if upon another trial a proper charge upon that issue is requested, the same should be given.

Por the reasons noted, the judgment is reversed, and the cause remanded.

CONNER, Chief Justice

(dissenting in part). I concur with the foregoing opinion, except that I am unable to agree to the conclusion of the majority that the second question to the plaintiff and his answer thereto, and the question to and answer of the witness Arch Ferguson and others all relating to the question of market value, are within the decision of the Roberts Case, and therefore erroneous. My view of questions and answers of this character has been expressed at some length in dissenting opinions presented by me in the cases of Tex. & Pac. Ry. Co. v. Prunty (No. 8341) 187 S. W. —-, this day decided by this court, and Railway Co. v. McIntyre & Hampton, 152 S. W. 1105. I, therefore, refer to those dissenting opinions for my conclusions in this case on that subject.
      i&wkey;>For otter eases see same topic and KKY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;>For other oases see same topic and KEY-NXJMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    MOORE et al. v. COLEMAN et al.
    (No. 8507.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 22, 1916.)
    1. Nuisance <&wkey;61 — Nuisance Pee Se — Cotton Gin.
    A cotton gin is not a nuisance per se, but may become so by reason of the manner or place of its operation.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 142-151; Dec. Dig. &wkey;61.]
    2. Nuisance <&wkey;75 — Suit to Restrain — Bue-DEN OE PROOF.
    In a suit to enjoin the erection of a cotton gin as a nuisance, the burden is on petitioners to show by allegations, in a verified petition, where the relief is sought without hearing, or by both allegations and proof, where hearing is had, that the conditions constituting a nuisance exist, or will occur if defendants are permitted to erect the gin.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 176-184; Dec. Dig. &wkey;75.]
    3. Nuisance <&wkey;62 — “Nuisance” by Pollution of Atmosphere.
    An act, omission, or use of property, resulting in polluting the atmosphere with noxious or offensive odors, gases, or vapors, thereby producing material discomfort and annoyance to persons residing in the vicinity, or injuring their health or property, is a “nuisance.”
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 153-157; Dec. Dig. <&wkey;>62.
    For other definitions, see Words and Phrases, First and Second Series, Nuisance.]
    4. Nuisance <&wkey;62 — Abatement by Injunction.
    Not every use to which property is devoted causing incidental discomfort and annoyance to those residing in the vicinity will give rise to the right of injunction to abate it, but the surrounding circumstances, the location of the alleged nuisance, and the necessity of the objectionable features of the use will be considered by the courts in determining the right and propriety of granting injunctive relief.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 153-157; Dec. Dig. &wkey;62.]
    5. Nuisance <&wkey;62 — Cotton Gin as “Nuisance.”
    A cotton gin, the operation of which produces loud noises, and causes dust, sand, dirt, and cotton lint to be deposited in churches and residences thereabout, and also causes the deposit of offal and excrement from animals used in hauling cotton, the production of noxious gases and odors, and swarms of gnats and flies, is a “nuisance.”
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 153-157; Dec. Dig. &wkey;62.]
    6. Injunction <&wkey;144 — Temporary Injunction — 'Verified Petition.
    In determining the propriety of granting a temporary injunction restraining , defendants from erecting a cotton gin on the ground that it would constitute a nuisance, the averments of the petition must be taken as true.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 316, 317, 321; Dec. Dig. &wkey;144.]
    7. Nuisance <&wkey;75 — Injunction Suit — Petition.
    In suit to restrain the erection of a cotton gin as a nuisance, whore the petition alleged that certain results, harmful to plaintiffs, would follow the erection and operation of the gin, and “that the matters and things hereinbefore complained of are incident to, and the usual results of, such a gin plant as is contemplated and will be erected by defendants,” the court was justified in concluding from the averments of the petition that the operation of the gin would entail the results alleged.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 176-184; Dec. Dig. &wkey;75.]
    Appeal from District Court, Mitchell County ; W. W. Beall, Judge. •
    Suit by P. C. Coleman and others against B. C. Moore and others. • From an order granting a temporary injunction, restraining defendants from erecting a cotton gin on described lots, they appeal.
    Judgment affirmed without prejudice as to any hearing upon the merits.
    R. G. Smith and T. R. Smith, both of Colorado, Tex., for appellants. Shepherd & San-dusky and C. H. Earnest, all of Colorado, Tex., and Beall & Douthit, of Sweetwater, for appellees.
   BUCK, J.

This is an appeal from the order of the judge of the district court of Mitchell county, entered in chambers, March 14, 1916, granting a temporary injunction, restraining appellants from proceeding to erect, and from erecting, a cotton gin on certain described lots in the city of Colorado, Tex.

In order to determine the sufficiency of plaintiffs’ allegations, it will be necessary for us to review the petition as a whole, and we wall, in brief, set out its contents.

Plaintiffs were shown to be; (1) Persons whose residences were located in the near vicinity of the proposed site of the gin whose erection was sought to be restrained; and (2) trustees of three churches, likewise so located, two of them alleged to be within SO feet of the gin’s proposed location. After reciting that prior to the filing of the petition, and after learning of the intentions of defendants, the plaintiffs had addressed a friendly letter to the three defendants, asking them to desist from erecting a gin on said lots, representing to them that said gin would be and constitute a nuisance to the three churches mentioned, and to each of the several owners of residences who were plaintiffs, and praying for a pacific adjustment of the matter, without recourse to the courts, and that said letter received no attention, except an evasive reply, plaintiffs alleged that defendants were placing material on the ground, and were threatening to erect on said lots a cotton gin and other appurtenances thereto. Plaintiffs further averred “that the erection of the gin aforesaid on said lots of the defendants herein, and the operation thereof, will become a veritable nuisance to the churches for public worship located in the vicinity of said gin, and a nuisance to all the rest of your plaintiffs herein in the enjoyment of their homes; that the presence and location of the gin to be erected * * * will produce noises, loud and deafening,” and that the noise from the operation of the machinery, the blowing of whistles, etc., would interfere with and prevent the use of said churches as places of worship, and interfere with the peace and quiet of petitioners’ homes; that the operation of said gin would produce “clouds of dust and sand and dirt, which will be deposited by this operation” in said places of worship and homes; also that, it would cause cotton lint to be deposited in same, so as to “render the use and habitation of such residences and churches intolerable.” In addition to noise, dust, lint, etc., it was charged that the operation of said gin would cause many horses, mules, and other draft animals used in the hauling of cotton, cotton seed, etc., to gather at and congregate around said gin, and would.cause the deposit of quantities of offal and excrement, the noxious gases and odors from which would cause the health of petitioners, in the use of their churches and homes, to become impaired, and would produce swarms of gnats, flies, etc., causing great discomfort and damage to petitioners. It was alleged the churches and residences of the petitioners were located in the residence section of the city, and that they were highly improved with trees, plants, flowers, etc., and* that the dust, lint, etc., would settle thereupon and would destroy the same; that the prevailing winds in the locality of Colorado are from the south during the cotton season which would intensify the damages and injuries from the dust, lint, flies, gnats, noise, and odors emanating from said cotton gin plant to be erected, petitioners’ premises lying and being situated north and northeast from said plant. In one of the paragraphs of plaintiffs’ petition is contained the following allegation, to wit:

“That the matters and things hereinbefore complained of are incident to and the usual results of such a gin plant as is contemplated and will be erected by defendants.”

It is also alleged that the Are hazard will be increased by the erection of said plant.

It is urged by appellants that the court erred in granting the writ without notice, for the following assigned reasons, to wit; (1) Because “an application for injunction which does not disclose the injuries sought to be restrained to be imminent, so that full relief cannot be had at a trial on the merits before they occur, should be denied”; (2) because the petition shows on its face that the injuries alleged and complained of are merely threatened, probable, and contingent, not inevitable and undoubted; (3) that the operation of a cotton gin is not a nuisance per se.

It is true that the authorities hold that a cotton gin is not a nuisance per se, but may become so by reason of the manner or place of its operation. Robinson v. Dale, 131 S. W. 308; Hamm v. Gunn, 51 Tex. Civ. App. 424, 113 S. W. 304; 1 High on Injunctions, § 787. But a cotton gin which causes noise, vibration, dust, and cotton lint, or smoke, so that owners are deprived of the comfortable enjoyment of their homes, is held, in Robinson v. Dale, supra, a nuisance. The burden would be on the petitioner seeking an injunction to show, by allegations in verified petition, where the relief was sought without a hearing, or by both allegation and proof, where a hearing was had, that the conditions constituting a nuisance do exist, or would occur if the defendant were permitted to do the thing or create the condition against which complaint is made. Blackstone defines a private nuisance as;

“Anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another.”
“A nuisance per se is an act, thing, omission, or use of the property which, in and of itself, is a nuisance, and hence is not permissible or excusable under any circumstances.” Eng. & Am. Enc. of Law (2d Ed.) vol. 21, p. 684.
“A nuisance at law or a nuisance per se is an act, occupation, structure, which is a nuisance at all times and under all circumstances, regardless of location or surroundings.” 29 Oyc. 1153, and authorities in note (10) thereunder.

It may be laid down broadly, as a general rule, that any act, omission, or use of property that results in polluting the atmosphere with noxious or offensive odors, gases, or vapors, thereby producing material discomfort and annoyances to those residing in the vicinity, or injuring their health or property, is a nuisance. Ft. Worth v. Crawford, 74 Tex. 404, 12 S. W. 52, 15 Am. St. Rep. 840. Wood on Nuisances (1883 Ed.) § 3. While it is not every use to which property is devoted causing incidental discomfort and annoyance to those 'residing in the vicinity that will give rise to the right of injunction in order to abate it, yet the surrounding circumstances, the location of the alleged nuisance, the necessity vel non of the objectionable features of the use, will be considered by the courts in order to determine the right and propriety of granting the relief prayed. The author above cited (section 6) well says:

“A party who devotes his premises to a use that is strictly lawful in itself, that is fruitful of great benefits to the community, that adds materially to its wealth, and enhances its commercial importance and prosperity, and whose motives are good and intentions laudable, may find that, by reason of the violation of the rights of those in the vicinity of his works, from results that are incident to his business and that cannot be so far corrected as to prevent the injury complained of, his works are declared a nuisance, his business stopped, and himself involved in financial ruin. Therefore it is proper and highly important that courts should proceed with extreme caution, and weigh the relative rights of parties with exceeding care, and never declare a,business a nuisance except there be such es; sential injury and damage that the act or thing cannot be justly tolerated without doing great violence to the rights of individuals and the pub-' lie. People living in cities and large towns must submit to some inconvenience, to some annoyance, to some discomforts, to some injury and damage; must even yield a portion of their rights to the necessities of business, which, from the very nature of things, must often be carried on in populous localities and in compact communities, where facilities alone exist upon which it can be kept up and prosecuted.”

But on the other hand., even though a business be lawful, and even though it contribute to public convenience and prosperity, one should not be permitted to conduct it in a manner or in a locality where it will unnecessarily work injury to those living in the vicinity. Therefore it was held in Hockaday v. Wortham, 22 Tex. Civ. App. 419, 54 S. W. 1094, that an injunction would lie to restrain the use of premises for a barnyard and breeding ground for live stock in a town, and an injunction was held proper to restrain defendants from maintaining a feed stable and wagon yard. Woods v. Lowrence, 49 Tex. Civ. App. 542, 109 S. W. 418; Burditt v. Swenson, 17 Tex. 489, 67 Am. Dec. 665. None of the uses to which the defendants in these cited cases put their property were nuisances per se, but were held to be so because of the manner of the use, the locality and construction of the improvements. In the last-cited case, Justice Wheeler says:

“A livery stable in a town is not necessarily or prima facie a nuisance. Such erections may be, and usually are, harmless and useful. But if they be so built, or so kept, or so used, as to destroy the comfort of persons owning and occupying adjoining premises and impair their value, stables do thereby become nuisances.”

We are of the opinion that plaintiffs’ petition contains averments sufficient to show that the'cotton gin proposed to be erected would, in the locality where placed, and in the manner in which it was alleged it would be operated, be,a nuisance. But it is .urged that the injuries sought to be restrained and described in plaintiffs’ petition are contingent, only probable, and may never occur ; that with modern devices and equipment much of the discomforts and annoyances could be, and would be, obviated. But we think the court below was justified in concluding from the averments of the verified petition that the operation of the character of gin defendants were proposing to erect would entail the results alleged. The aver-ments must be taken as true. If defendants proposed to erect a kind of gin different from that alleged in plaintiffs’ petition, of a character that would avoid and eliminate the objectionable incidents stated, by a motion to dissolve, predicated upon proper pleadings and supported by evidence, such facts could have been established. Defendants have not seen fit to take this course, but have relied upon the claimed insufficiency of plaintiffs’ petition, and upon such petition the trial court, and this court, must base its conclusions and judgment. Plaintiffs, it is true, have acted with promptness, but, as is said in High on Injunctions, § 786:

•‘He who seeks relief against a nuisance must show due diligence in the assertion of his rights; and when complainant has been guilty of great laches, or has allowed defendant for a, long period to continue in the erection of his obnoxious structure at great expense and without molestation, equity will not interfere.”

If the court had set the case for hearing for the Blay term, as defendants claim ought to have been done, it may be that the plaintiffs would have been enabled to secure the protection claimed before the operation of the gin began, yet, on the other hand, defendants would either have been forced to stop the further erection of the plant until a hearing, or take the chances of an adverse holding of the court after greater expense had been incurred. As before suggested, if defendants had desired a speedier hearing on the facts, they could undoubtedly have secured the same by filing their motion to dissolve. We are not prepared to say or hold that the court below erred in granting the temporary injunction on the showing made.

The judgment of the trial court is affirmed, without prejudice as to any hearing upon the merits which may be had.
      <®=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, O. J.

text:
    HAMILTON v. HANNUS.
    (No. 7387.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 20, 1912.
    On Rehearing, April 8, 1916.)
    1. Appeal and Error &wkey;5512 — Record — Showing Jurisdiction — Intermediate Courts.
    The transcript on appeal from the county court in a case originating in justice’s court should contain a transcript from the justice’s court showing the rendition of judgment and the giving of appeal bond there, necessary for jurisdiction of the county court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2326; Dec. Dig. &wkey;>512.]
    On Rehearing.
    2. Appeal and Error c&wkey;>635(2)'— Record — Amendment.
    The judgment on appeal from the county court in a case originating in justice’s coui’t should not be reversed for failure of the record to show rendition of judgment and giving of appeal bond in the justice court, necessary for jurisdiction of the county court, without opportunity being first afforded for correcting the record, if possible.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2776, 2829; Dec. Dig. &wkey; 635(2).]
    3. Evidence <&wkey;444(6) — Parol Evidence — Condition oe Payment — Notes.
    As between the parties to a note, the oral condition on which it was delivered, that it should be payable only on the happening of a certain event, is valid.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 1913, 2049; Dec. Dig. &wkey;444(6).]
    4. Evidence <&wkey;213(l) — Odder oe Compromise.
    Offer of the maker of a note to the payee, long after its maturity and refusal of payment, and after it had been given to an attorney to collect by suit, to allow it on a piano if said maker would buy a certain piano from said payee, being clearly one of compromise, containing no admission of liability or of any fact from which liability could be inferred, cannot be shown in an action on the note, in which the defense was delivery of the note on an oral condition of payment, which had not been satisfied.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 745, 748-750; Dec. Dig. &wkey; 213(1).]
    5. Trial &wkey;>251(7) — Instructions — Undisputed Pacts.
    Where plaintiff in an action on a note, in which the defense was that it was delivered on the oral condition that it should not be paid unless a $400 note given by B. to defendant on the purchase of land was paid, merely denied that there was any such condition, and did not raise the issue of collusion or good faith, it was error to submit the issue of whether the note of B. was paid, it appearing that B. refused to pay it, and otherwise refused to comply with his contract of purchase, on the ground of misrepresentations by plaintiff, the broker, and that defendant, to protect the property, had to take up a note, constituting a lien on the land, which B. had assumed, and that consequently defendant canceled the contract of sale, and surrendered to B. his $409 note.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. § 592; Dec. Dig. ©=»251(7).]
    Appeal from Baylor County Court; Nat G. Mitchell, Judge.
    Action by J. J. Hannus against J. W. Hamilton. Prom a judgment for plaintiff on appeal from a justice, defendant appeals.
    Reversed and remanded.
    D. A. Holman, of Seymour, and S. J. Hunter, of Pt. Worth, for appellant. Glasgow & Kenan, of Seymour, for appellee.
   CONNER, O. J.

This is an appeal from a judgment of the county court in appellee’s favor for the sum of $184, the amount found to be due upon a promissory note in the sum of $126.

The transcript before us discloses a transcript from the justice’s court showing that the suit upon the note mentioned had originated therein, and reciting that the plaintiff, J. J. Hannus, had recovered a judgment against the defendant, J. W. Hamilton, on July 27, 1909, but the justice’s transcript does not contain the judgment so recited, and wholly fails to show that any appeal bond, as required by law, had been given or approved by the justice of the peace.

Under such circumstances the judgment must be reversed, and th'e cause remanded to the county court, with instructions to dismiss the appeal unless the jurisdictional facts are made to appear in a'ccordance with the principles heretofore decided by us in the cases of American Soda Fountain Co. v. Mason, 55 Tex. Civ. App. 532, 119 S. W. 714, and Ware v. Clark, 58 Tex. Civ. App. 356, 125 S. W. 618. See, also, case No. 7400, Patrick v. Pierce, 187 S. W. -, this day decided by us.

Reversed and remanded, with instructions.

On Rehearing.

This suit was instituted in a justice court by the appellee upon a nonnegotiable note for $126, with interest and attorney’s fees. The result of the trial in that court was in the plaintiff’s favor, and the defendant appealed to the county court, where the plaintiff again recovered judgment. On appeal to this court, to wit, on April 20, 1912, the judgment was reversed, for the reason that the transcript failed to contain a judgment of the justice court, or copy of the bond given on appeal to the county court.

Later the appellee presented his motion to set our judgment aside, and proffered a corrected transcript from the justice court containing the omissions noted. We were inclined to the view on the authority of amended rule 22 (142 S. W. xii) as promulgated by the Supreme Court in the ease of H. & T. C. R. Co. v. Parker, 104 Tex. 162, 135 S. W. 369, that the record could not be so corrected after submission; but, in view of other rules and authorities, we certified the question for determination to our Supreme Court in the case of Patrick v. Pierce, No. 7400, 187 S. W. —, and we have since retained the case now before us awaiting the decision sought by the certificate. On a recent day of the present term, to wit, on March 27th, we received the decision of our Supreme Court on the certified question in the case of Patrick v. Pierce, 183 S. W. 441, and that court holds, in substance, as will be seen by a consideration of their opinion, that the rules relating to the question are in conflict, and that in cases such as here the judgment should not be reversed without affording the parties an opportunity to correct the record, if they can.

We accordingly grant appellee’s motion to set our former judgment aside, and to file the corrected record proffered, and will proceed to consider the appeal upon its merits.

As pleaded, and as there was evidence tending to show, the substance of defendant’s defense to the note is that it is without consideration, in that it was executed and delivered upon an agreement that it was not to be paid until the payment of a certain unpaid note for $400 executed by one Balucek to defendant in a purchase of land. As more par-tieularly detáiled in defendant’s pleading and evidence, defendant owned a certain tract of land situated in Baylor county which he desired to sell, and he listed the same for sale with plaintiff, who was a land agent, upon an agreement that, if he (plaintiff) sold the land for $9 per acre, with a ¿ash payment for $1,-100, then he (defendant) would pay th'e usual commissions of 5 per cent, upon the sale, and that, if he (plaintiff) could effect a sale at a greater sum per acre than $9, securing the $1,-100 cash payment, the defendant would give him, in addition to the 5 per cent, commissions, one-half of the excess price plus $50. It was alleged, and defendant and his wife both so testified, that plaintiff negotiated a sale of the land with said Balucek for $9.50 per acre, but the proposed purchaser found himself unable to pay the full sum of $1,100 in cash, whereupon plaintiff, as defendant alleged and testified, urged that defendant accept the $700 in cash and take Balucek’s note for $400, payable the following December; plaintiff assuring defendant at the time that Balucek was a relative of some means, and that he thought th'e $400 note would be promptly paid. Finally, defendant accepted this conclusion of the matter, and conveyed ■the land to Balucek, receiving at the time $700 in cash and Balucek’s $400 note, payable the following December; Balucek also assuming a number of outstanding vendor’s lien notes that had been executed by defendant. Defendant alleged and testified, however, that before this was done it was distinctly agreed that th'e extra compensation above noted should not be paid to plaintiff until, and only in event, Balucek paid the $400 note. Defendant further alleged that some time after this the plaintiff came to him and insisted upon the execution of the note sued on in this case to cover said extra commissions, stating that it would be necessary in the event of the death of either party, at th'e ■time, however, conceding that it was not to be paid until the payment of the Balucek ,$400 note. Defendant thereupon, as he alleges and testifies, executed the note sued upon, and in furtherance of their agreement that it was not to be paid until the payment of the $400 note made th'e note payable upon the*, same date as was the Balucek note, and also indorsed thereon the following words; “This note is not to be transferred or used as (Collateral.” It further appeared without dispute that upon the receipt of the $700 paid by Balucek as his first cash payment defendant paid to plaintiff the full 5 per cent, commissions upon' the sale. Plaintiff, however, both' in his pleadings and evidence denied the agreement for the conditional payment of the note sued upon as alleged and supported by defendant’s testimony.

On cross-examination the defendant was required to testify over his objection that he proposed to the plaintiff “that, if he would buy a certain piano from defendant, he would allow that note [the one in controversy] in the settlement for the piano.” The objection was that the proposition was made purely as one of compromise, as the defendant testified, although it was not so stated to the plaintiff at the time the proposition was made. It further appears that the proposition was made after a demand had been made upon the defendant for payment of the note and after the note had been delivered to the plaintiff’s attorney for legal action thereon, and, in view of the sharp conflict in the testimony on the defensive issue presented by defendant, we think the objection should have been sustained. That, as between the original parties to the note, the agreement pleaded by the defendant, if established by the evidence, would constitute a perfect answer to the suit, seems well established in the authorities. See Holt v. Gordon, 176 S. W. 902; Id. (Sup.) 174 S. W. 1097; 3 R. C. .L. p. 869, par. 53. And it seems evident that the testimony objected to had a tendency to disprove the existence of the condition upon which the note in controversy was to be paid as pleaded by the defendant. It also had the further tendency to cause the jury to believe that the defendant thus admitted his liability upon the note sued upon, regardless of the conditional contract for its payment, as urged by the defendant, and this becomes material in view of further evidence to the effect that Balucek refused to pay the $400 note upon the date of its maturity, and refused to pay other notes assumed by him upon his purchase of the land, and that thereupon the defendant, as he testified, was compelled to cancel the purchase and surrender to Balucek the $400 note; thus, as plaintiff contends, effecting a payment of that note, even though the conditional agreement set up by the defendant was true. So that, if the testimony was inadmissible, as we think, it cannot be doubted that it was prejudicial. Plaintiff defends the ruling on the ground, substantially, that the proposition amounted to a simple admission of liability, and that, as such, it was admissible. The trial court, in explanation of the bill of exception, however, seems to predicate his ruling upon the fact that at the time of the proposition the defendant did not state that it was made without prejudice. We think neither suggestion can be adopted.

¡Overtures for the compromise of controversies are frequently made by parties who, in good faith, believe in the justice of their claim or defense, or who desire to avoid the annoyance and uncertainty of litigation. Hence, offers of compromise are not necessarily admissions that the claim or defense is lacking in merit, and such offers are not in general admissible. Mr. Jones in his work on Evidence, vol. 2, § 291, says:

“The rule is very clear that, when such offers are expressly stated to be without prejudice, they are inadmissible. If the contrary rule prevailed, no attempt to amicably settle litigation could safely be made; and the courts are inclined to encourage, rather than discourage, such adjustments. Accordingly offers by a party with, a view to compromise, to pay or accept a sum of money, or to make deductions, or to submit to arbitration, or to surrender certain property, or to purchase the property in dispute, .and in general any efforts to secure a settlement, are inadmissible. While there are cases that an offer of compromise is admissible, unless it is stated to be without prejudice, yet the prevailing rule in England and in this country is that the offer will be presumed to have been made without prejudice, if it was plainly an offer of compromise. The courts look at the intrinsic character of the transaction; and, if the offer is clearly one of compromise, it is inferred to have been made without prejudice. In such case no caution that the offer is confidential or without prejudice need be expressed.”

See, also, I. & G. N. Ry. Co. v. Ragsdale, 67 Tex. 24, 2 S. W. 615. In that suit Rags-dale sought to recover of the railway company damages for the destruction by fire of grass and timber caused, as claimed, by sparks negligently emitted from a locomotive of the railway company. It seems that one Gooch, purporting to act on behalf of the company, undertook to adjust the claim, and the testimony admitted in the case was that Ragsdale demanded of Gooch $250 as payment of his damages, and that Gooch “offered to pay this as soon as he could hear from the auditor at St. Louis, and that ap-pellee agreed to accept it.” Our Supreme Court held that this testimony was inadmissible. In disposing of it they say:

“The principle is elementary that an offer to compromise a prospective suit, if expressly or impliedly made, without prejudice, cannot be admitted in evidence when objected to. To permit the introduction of such offers tends to discourage the adjustment of suits, and for that reason is against the policy of the law. If the object of the party in making the offer was to buy his peace (which is impliedly manifested by a mere proposition to pay a sum in settlement), it is deemed to have been made without prejudice, and will be excluded. 2 Whart. Ev. 257; 1 Groenl. Ev. § 192; Home Insurance Co. v. Baltimore Warehouse Company. 93 U. S. 527 [23 L. Ed. 80S], See, also, 2 Whart. Ev. 252. Numerous authorities may be cited to show that the admission of a fact pending a negotiation for compromise may be admitted; but we have found none that a proposition which has not been accepted and become a contract is legal testimony. In Home Insurance Company v. Baltimore. Warehouse Company, supra, the court say: ‘The letter was an offer of compromise, and, as such, upon well-recognized legal principles, it was inadmissible. It contains no statement which can be separated from the offer and convey the idea which was in the writer’s mind.’ This shows the distinction between a fact admitted pending, an attempt to compromise and a mere proposition of settlement. The testimony introduced in the case before us was purely an offer by Gooch to pay $200 in settlement of appellee’s claim, subject to the approval of the auditor of the company, and, though accepted by appellee, could not, under the rules laid down above, be admitted in evidence over appellant’s objection.”

It seems plain to us that the defendant’s offer was in its very nature one of compromise. It was made some year or more after the maturity ot the note sued upon, and after he had refused to pay it, and after the plaintiff had delivered the note to his attorneys for collection by suit. The proposition did not contain an admission of his liability, or of any independent fact from which liability could be inferred. It was a simple proposition to settle the note if the plaintiff would buy the piano, the price not being stated, and the proposition not being accepted. Under all of the circumstances, therefore, we think the court erred in the ruling, and that appellant’s first and second assignments of error presenting the question discussed must be sustained.

In view of another trial we should perhaps also briefly notice several other questions presented by the assignments of error. The objection to the testimony of R. O. Jones to the effect that the' defendant on an occasion mentioned stated that it was his “intention to charge in his proposed compromise of the debt sued on a price of the piano over what it was worth to pay the debt” need not be discussed, inasmuch as the exclusion of the compromise proposed will render the testimony last mentioned irrelevant and immaterial, as will doubtless be so ruled by the court below. So, too, under the present state of the pleadings do we think it immaterial that the defendant failed to consult the plaintiff about his rescission of the Balucek sale. It seems undisputed that the defendant, in order to protect the property, was compelled to pay one of the notes that Balucek in his purchase assumed to pay. It is further undisputed that Balucek refused to pay the $400 note, and otherwise refused to comply with his contract of purchase, on the ground “that matters were misrepresented to him” by the plaintiff in this suit. The resultant cancellation by defendant of the contract for the sale of the land wherein he delivered to Balucek the $400 note has not been attacked on the ground that it was collusive, or that the compromise then made between Balucek and the defendant was not made jn good faith, or that this arrangement in any sense amounted to a purchase of the land on defendant’s part, wherein, as part of the consideration, Balucek paid his $400 note. Eor the reasons just stated, we think it was error for the court to submit the issue of whether the $400 note of Balucek was paid. Under the circumstances this was not an issue. The fact was undisputed, and it is uniformly held to be erroneous to submit as doubtful an issue about which there can be no controversy.

Other assignments need not be noticed, but for the errors indicated it is ordered that the judgment be reversed, and the cause remanded.
      (g^>Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ig^ofor other oases see. same topic and KEY-NUMB BR in all Key-Numbered Digests and Indexes.