author: TALIAFERRO, J.

text:
    T. A. HILL & SON v. PATTON & SCHWARTZ.
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 12, 1913.
    Rehearing Denied Dec. 10, 1913.)
    1. Brokers (§ 88) — Conflicting Instructions.
    An instruction, in an action for commissions for assisting to exchange property, that if plaintiffs were acting as agents for both parties they could not recover was not inconsistent with an instruction that if the jury find certain facts stated to be true, they should find that plaintiffs did not occupy , a dual trust relation.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 121, 123-130; Dec. Dig. § 88.]
    2. Brokers (§ 86*) — Action for Commissions —Sufficiency oe Evidence.
    Evidence, in an action for commissions for assisting in the exchange of realty, held to sustain a finding that defendant knew, when the contract was made with plaintiffs, that they had also undertaken to find a purchaser for the land of another who afterward exchanged with defendant.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 116-120; Dee. Dig. § 86.]
    3. Appeal and Error (§ 1064*) — Harmless Error — Submitting- Issues.
    Any errors in an action for commissions for assisting to procure the exchange of realty, in charging upon the issue of ratification by defendants of the contract with plaintiff, after discovering that plaintiff was the agent for the other party, when ratification was not pleaded, was harmless, where the undisputed evidence showed that after all parties understood the relation between plaintiffs and such other, and after it was terminated, plaintiff and defendants changed their original contract by reducing the commissions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221 — 4224; Dec. Dig. § 1064.]
    4. Brokers (§ 65) — Commissions — Agency por Both Parties.
    Even if defendants did not know, when they contracted with plaintiff for assistance in procuring a purchaser for realty, that plaintiff was also acting for one who subsequently exchanged property with defendants, such fact would not affect plaintiff’s right to a commission if such relation between plaintiff and the other had been terminated when defendants learned thereof.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 48-50; Dec. Dig. § 65.]
    5. Brokers (§ 67) — Commissions.
    A broker cannot act as agent for both the buyer and seller, and, if he does so, cannot claim commissions from either unless they both had knowledge of his dual agency, but this rule only applies where the agent has some discretion in fixing the terms, or has power to bind the principal to sell the property, and if the broker is a mere middleman employed to bring the parties together when they make their own bargain, he may recover commissions from both; not every agent being under the duty of obtaining the highest price possible for land list-,e'd with him for sale.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 52-54; Dec. Dig. § 67.]
    6. Brokers (§ 88) — Actions por Commission —Supficiency op Evidence.
    Evidence, in an action for commissions in assisting to procure an exchange of realty, held to raise the issue of good faith in canceling the agency after plaintiff had interested another in defendant’s property.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 121, 123-130; Dec. Dig. § 88.]
    Appeal from Lavaca County Court; S. F. Grimes, Special Judge.
    Action by Patton & Schwartz against T. A. Hill & Son. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    Sam C. Lackey, of Cuero, W. H. Blanton, of Gonzales, and McFarland & Lewright, of San Antonio, for appellants. Paulus & Rags-dale, of Hallettsville, for appellees.

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

   TALIAFERRO, J.

This suit originated in the county court of Lavaca county, and was an action by appellees for the recovery of ?500 as commissions alleged to be owing to them by appellants for the alleged services of appellees in assisting appellants to effect an exchange of certain real properties owned by them for other property owned by one H. S. Dew and his wife. Appellees recovered a judgment in the trial court for the sum of $500, together with interest and costs of suit, and this appeal has been perfected in due form by appellants. This is the second appeal of this case. The former opinion, which was by the Court of Civil Appeals at Austin, will be found on ,page 1025 of 141 Southwestern Reporter. The case is fully stated in that opinion, and will not be repeated here.

Appellants’ first assignment of error, presented as a proposition, and also followed by several subsidiary propositions, assails the general charge of the court upon the ground that it is upon the weight of the evidence. The portion of the charge criticised is the preliminary portion of the general charge, wherein the court explains to the jury the nature of the issue. The expression complained* of by appellants, if it stood alone and unexplained, might be open to objection, but the language of the court, as a whole, could not be misleading to a jury. The language is not happy in parts, but upon the whole the charge in this respect is sufficiently clear. The first assignment of error is overruled.

The second assignment of error complains of the court’s general charge in instructing the jury “that even if plaintiffs had such a contract with defendants as the one alleged by plaintiffs, and even if plaintiffs had performed their duties themselves, still they could not recover herein, provided the jury should find that plaintiffs were also acting as agents of the said H. S. Dew for the sale of his wife’s land in Lavaca county, unless the jury should also find that, pending negotiations between defendants and Dew, defendants were informed by plaintiffs of the terms of plaintiffs’ contract with Dew, and that defendants, with full knowledge and understanding that plaintiffs were also acting for H. S. Dew, then ratified their contract, if any, with plaintiffs, either in words or by their acts.”

By the first proposition thereunder it is contended that this charge is in conflict with special instructions given by the court at the request of plaintiffs. We do not find it so. In the general charge the court informs the jury that if appellees were acting in a dual capacity as agents of both parties to the proposed trade, they could not recover from appellants; in the special charge they are instructed that in the event they find certain facts to be true, they shall then find that appellees did not occupy a dual trust relation. There is no inconsistency in these two statements.

There is no merit in the second proposition under this assignment, which asserts that there was no evidence from which the jury could find that appellant had knowledge, at the time the contract was made between him and Schwartz, of the relation between appellees and Dr. Dew. Both Schwartz and Dr. Dew testified that appellant told them that he knew Patton & Schwartz had the Dew land for sale, and that this knowledge was what prompted him at first to call upon Schwartz.

The third proposition raises an issue which appellant urges with great earnestness; that is, whether the contract made by appellant and Schwartz was not void ás against public policy. This point is presented also by appellants in their third, seventh, eighth, and eleventh assignments of error, which .present the question in its various aspects as raised in the trial of the cause. The facts upon this issue are as follows: Several months before this transaction, Dr. H. S. Dew “listed” with Patton & Schwartz, of Hallettsville, Tex., who were his attorneys, the tract of 450 acres of land, named in this suit, for sale. The price at which it was to be sold was “$40 to $50 per acre,” but any offers obtained were to be submitted to Dr. Dew. No authority was given the brokers to make contracts for, or in any way bind, Dr. Dew in reference to a sale of the land. Patton & Schwartz, the brokers, as attorneys, also held for collection a note of $5,000 due by Dr. Dew upon the purchase price of the land. On September 5, 1908, appellant T. T. Hill, learning in some way that appellees held the said note and also were acting as brokers for Dew for the sale of the land, called upon appellee Schwartz and told him that he would like to trade Dr. Dew certain property in Hallettsville for the 490 acres in question, and proposed to Schwartz that if he would interest Dew in such a trade in a manner which would result in such a trade, he would pay to the firm of which he was a member— Patton & Schwartz — $1,000 commissions. Schwartz accepted the offer, and at once, on September 7, 1908, wrote to Dew telling him that Hill had approached him with reference to the trade, and that if Dew thought well of the proposition and wanted further information, he, Schwartz, would again see Hill and obtain it for him. He advised Dew that Hill valued the property at $20,000. Dew answered on September 19th, stating he had been away from home, but that he would be in Hallettsville soon, and would talk over the trade. He went to Hallettsville on October 7th, and called first upon Schwartz, and was sent by him direct to Hill. Hill and Dew discussed the sale most of the day, which resulted in a proposition by Dew to trade the land for the town property and $8,000 in cash or its equivalent. Hill did not accept the offer. During this conversation Hill told Dew that Schwartz represented him in the transaction, and that in event of the trade Dew would not have to pay any commissions. Later, upon the same day, Schwartz told Dew the same thing, and stated that any relation of agency between his firm and Dew was at an end. Dew returned to his home with full knowledge that Schwartz was the agent of Hill, and that no relation of agency existed between him and the firm of Patton & Schwartz in relation to the land. As stated, there was evidence to support the finding of the jury that Hill knew from the first of Schwartz’s relation to Dew and acted upon the knowledge.

Early in November, and after all the above occurrences, Hill and Schwartz met on the streets of Hallettsville and at the request of Hill Schwartz agreed to reduce his commission and accept $500 instead of the promised $1,000. Hill and Schwartz had continued to negotiate with Dew, and Schwartz, at Hill’s instance, had submitted several propositions to Dew, all less than the offer made him by Dew,- all of which Dew had rejected, when, on November 25th, Hill wrote Schwartz a letter canceling his agency, and declaring that nothing then pended between him and Dew. On December 5th, Hill wrote to Dew, informing him that he had discharged Schwartz, his agent, and proposing that they get together npon a trade. They did get together upon the identical trade that Dew had first offered; that is, to trade his land for Hill’s Hotel and $8,000 cash, or its equivalent. Such are the facts sustained by the record, and in accordance with which the jury found against appellants.

Appellants contend that since the plaintiffs did not specially plead a ratification of the contract after discovery of the alleged dual agency, the court erred in charging the jury upon that issue, and technically this was, perhaps, an error. But it was harmless, because the facts indisputably show that the alteration in the contract by which Hill agreed to pay appellees $500 was made after all parties were fully advised of the relations between appellees and Dew, and after they had been expressly terminated. There was nothing left to ratify. The parties were continuing to deal in the light of a full knowledge of every fact, and with every appearance of the utmost good faith, and there was nothing to ratify.

It is urged that appellees must recover, if at all, upon their original contract, which they say was made while Hill was in ignorance of appellee’s fiduciary relation to Dr. Dew. The jury have found that Hill was not ignorant of this iact at the time, but, assuming that he was, it could not change the condition. When he learned this fact and also the fact that the relation, whatever it was, had been terminated, he continued operating' under the contract, altered only in the reduction of the amount of commission to be paid. We are asked to hold that, because appellant claims to have been ignorant of the fact that appellees were, at the time of his contract with Schwartz, acting as brokers, to find a buyer for the land for which appellants wanted to trade, the whole transaction was so tinctured with fraud and bad faith as to be against public policy and void. We can hardly imagine a more fair and open course of dealing than that above delineated, and can find no fact which indicates that appellees ever for a moment were, or considered themselves, the agents and under contract for remuneration from two principals. The propositions of law presented under these assignments are, in the main, correct and well supported by the authorities cited, but they are not applicable to the facts proven in this case.

The third, seventh, eighth, and eleventh assignments of error are overruled.

The fifth proposition under the second assignment of error and the twelfth assignment of error will be treated together.

The first is as follows: “That portion of the court’s general charge referred to in this assignment of error was also erroneous because therein the court omitted to instruct the jury that Dr. Dew also must have known of the dual agency of appellees in order to entitle them to recover from appellants herein.”

The twelfth assignment complains of the refusal of the court to give a special charge instructing the jury that “if the contract between appellants and appellees was entered into before Dr. Dew learned that ap-pellees had undertaken to represent appellants for a commission in the matter of this trade, then that appellees could not recover because of the dual agency.” This contention is no doubt based upon the elementary and familiar doctrine that a party cannot act in the capacity of agent for both the buyer and seller, or receive a commission from both, and from principles of public policy such an agent will not be allowed to collect a commission from either party, unless it be shown that both parties have full knowledge of the dual capacity in which the agent acts. Armstrong v. O’Brien, 83 Tex. 648, 19 S. W. 268; Mechem on Agency, §§ 798, 67, 643, 644; Ryan v. Kohler (Sup.) 46 S. W. 71; Tinsley v. Penniman, 1§ Tex. Civ. App. 591, 34 S. W. 365; Leathers v. Canfield, 117 Mich. 277, 75 N. W. 612, 45 L. R. A. 33.

The above principle of law is applicable only to cases of agency in which the agent is clothed with some discretion in the matter of advising or negotiating, in fixing or agreeing to the price, or has the power to bind his principal by contract in reference to the property in question. It is not true that every ordinary real estate broker with whom land is listed for sale occupies the position of trust and confidence, upon whom rests the duty to obtain the highest price obtainable for his principal’s land. McLure v. Luke, 154 Fed. 647, 84 C. C. A. 1, 24 L. R. A. (N. S.) 659; Pollatschek v. Goodwin, 17 Misc. Rep. 587, 40 N. Y. Supp. 682; Knauss v. Brewing Co., 142 N. Y. 70, 36 N. E. 867; Empire State Ins. Co. v. American Central Ins. Co., 138 N. Y. 446, 34 N. E. 200; Manders v. Craft, 3 Colo. App. 237, 32 Pac. 836.

If the duty of the broker is that of mere middleman to bring the parties together that they may treat with each other and make their own bargain, the position of the broker is in no wise improper or inconsistent. Atkinson v. Pack, 114 N. C. 597, 19 S. E. 628; Cox v. Haun, 127 Ind. 325, 26 N. E. 822; Yinton v. Baldwin, 83 Ind. 104, 45 Am. Rep. 447; Rowe v. Stephens, 53 N. Y. 621; Barry v. Schmidt, 57 Wis. 172, 15 N. W. 24, 46 Am. Rep. 35. There is no dispute here that the employment of appellees by Dr. Dew was simply to receive and submit to him cash offers for his property. They were not vested with any discretion of any nature, and their only duty was to advise the landowner of possible opportunities to sell.

In reference to the employment of Schwartz by Hill, the evidence is sufficient to show that Schwartz was employed only to interest Dr. Dew in the trade to the extent of bringing' him in contact with T. Y. Hill, and that all negotiations thereafter were to be conducted by Hill alone. Appel-lees were invested with no discretionary powers by either of the principals. No duty or power was vested in them to negotiate or close a trade. Their employment was to bring the parties together. These facts bring the case very clearly under the second rule above stated. Appellees were acting merely as middlemen, and, even in the absence of the showing of good faith on their part, there would have been nothing improper or inconsistent in their position. The fifth proposition under the second assignment and the twelfth assignment of error are therefore overruled.

What has been said disposes of the fifth, sixth, and fourteenth assignments of error, and they are overruled.

There is no merit in appellants’ fourth assignment of error. The charge given by the court, and there complained of, was fully justified by the evidence.

The ninth assignment of error presents the following proposition: “Where the owner of land employs a broker to render services in matter of exchange of properties between such owner and a third person, but no definite time is agreed upon within which such broker is to perform his undertaking, the broker is entitled only to a reasonable time within which to perform his undertaking, and if he fails within a reasonable time thus to perform, the owner has the right to revoke the agency, provided such revocation be made in good faith, and not for the purpose of evading the payment of commissions to broker; and, in a suit by the broker for commission, it is the duty of the court so to instruct the jury whenever the testimony raises such issue and the defendants request such instructions.” This is a perfectly correct proposition of law, but not applicable to the facts in this case. ' Appellees were not employed to effect a sale or trade of the property, but to bring the parties together for the purpose of personal negotiations. The compensation of appellees was to be paid in case a trade was effected by the parties. The negotiations by appellee Schwartz with Hill were continued in some sort all the time from October 7 to November 25, 1908, upon which date Hill wrote to Schwartz a letter attempting to cancel his agency. On December 5, 1908, Hill wrote to Dew proposing to eliminate Schwartz and so continue the negotiations. On December 7, the trade was closed on exactly the terms originally proposed by Dew. We think this evidence quite sufficient to raise the issue of good faith on the part of Hill in canceling the agency, and, the court having fully charged the jury upon that issue in his general charge, there was no error in refusing the appellants’ special charge. The ninth assignment is overruled.

No error appearing which justifies a reversal, the judgment of the lower court is affirmed.


source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. HENDRICKS.
    (Court of Civil Appeals of Texas. Dallas.
    March 22, 1913.
    Rehearing Denied Nov. 29, 1913.)
    1. Railroads (§ 389) — Injuries to Person Near Track — “Proximate Cause.”
    The negligent construction of a railroad trestle over a street, but for which a lump of coal would not 'have fallen and injured plaintiff, driving below, was in law the proximate cause of the injury, since though negligence he removed from the injury by intermediate causes and effect, yet, where the one guilty of negligence ought reasonably to have foreseen tbe ultimate consequence, it is the'“proximate cause.”
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1319-1323; Dee. Dig. § 389.

    For other definitions, see Words and Phrases, vol. 6, pp. 5758-5769; vol. 8, p. 7771.]
    2. Railroads (§ 398) — Injuries to Person Near Track— Sufeiciency' oe Evidence — Negligence.
    In an action for injuries from a lump of coal falling upon plaintiff as he was driving underneath defendant’s railroad trestle, evidence held sufficient to sustain a finding that the trestle was negligently constructed.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356, 1358-1363; Dec. Dig. § 398.]
    3. Trial (§ 251) — Action eoe Injuries — Instructions.
    In an action for injuries from a lump of coal falling from defendant’s trestle over a street, where it was not charged that any particular part of the trestle was out of repair, but that as built it was inherently unfit for the protection of the public using the street, the refusal to charge as to the particulars in which the trestle was defective was proper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.]
    4. Railroads (§ 401) — Actions for Injuries —Instructions—Negligence.
    In an action for injury from a lump of coal falling from a locomotive tender from defendant’s trestle upon plaintiff riding beneath, where it appeared that it might have fallen over the railing of the trestle, a charge, limiting the jury to negligence from defendant’s failure to board up the open spaces in the railing, was properly refused.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1382-1390; Dec. Dig. § 401.]
    Appeal from District Court, Grayson County ; W. M. Peck, Judge.
    Action by J. W. Hendricks against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Alex. S. Coke, of Dallas, and Head, Smith. Hare & Head, of Sherman, for appellant. Wolfe, Wood & Haven, of Sherman, for ap-pellee.

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

   RASBURY, J.

At a former term this case was affirmed without considering the assignments of error, for the reason that same did not comply with rules 24 and 25 (160 S. W. 43S) recently promulgated by the Supreme Court for the government of the Courts of Civil Appeals. Subsequent to the affirmance of the case the Supreme Court held the rules so promulgated to be in violation of articles 2061, 2062, Revised Statutes 1911, in requiring litigants to set out in a motion for new trial alleged error in giving or refusing charges, or other action of the trial court appearing of record. Missouri, Kansas & Texas Ry. Co. v. Beasley (Sup.) 155 S. W. 183; Benton v. Kuykendall et ux., 160 S. W. 438, decided by this court October 25, 1913. For the reasons stated in the opinion last cited our former opinion in this case will be withdrawn, the assignments considered, and what we here say stand as our opinion in this case.

Appellee sued appellant in the court below, alleging that while driving upon a public street in the city of Denison, and while passing beneath three trestles or bridges, which spanned the street, built and maintained by appellant, and upon which appellant’s railroad tracks were laid, appellant halted one of its locomotives, and permitted a lump of coal to roll therefrom and strike appellee, seriously injuring him. The negligence alleged against appellant was in failing to have its trestles so constructed that, in the event coal or other objects should drop from appellant’s locomotives or cars, same could not fall to the street below and thus endanger the limbs and lives of persons using the street, and in negligently and carelessly constructing its culverts and trestles so that when used by its locomotives and cars across said public street same endangers the limbs and lives of those using the street by anything escaping or falling therefrom, and that appellant knew, or by the exercise of ordinary care could have known, said acts of negligence, each and all of which were the proximate cause of appellee’s injuries. The foregoing is a sufficient statement of appel-lee’s pleading under the errors assigned. Appellant met the complaint by general denial, assumed risk, and contributory negligence.

The following sufficient statement of the facts is supported by the evidence: Appel-lee, at the time he received his injuries, was a merchant in the city of Denison. Going from his place of business fo his home it was necessary for him to use Crawford street, which passed under the railway tracks of the appellant. The tracks at that point were supported by trestles or bridges high enough to allow vehicles to pass thereunder. The railroad runs north and south, Crawford street, east and west. There are three trestles, with an intervening space between each. Each trestle is double tracked, making six tracks in all. The trestles are all floored, and the flooring on the outside of the east and west trestles are used by pedestrians who travel along the railway track. On the outside edge of the flooring on each trestle is a banister which is a distance of 3 or 3½ feet outside of the outside rail. The tender of the engine when passing over the tracks extends over this floor about 2 feet, leaving about 1 or 1 ½ feet of the floor exposed. This subway under the tracks on Crawford street was the only place where parties could go from the main part to the east part of the town for several blocks, and therefore was used a great deal. Just south of the point where appellee was injured, appellant coaled its engines, which was its yards, and as a result the traffic, day and night, .was increased over the trestles. On the night that appellee' received his injuries he was driving in a buggy, going from his place of business to where he lived, about 9:30 or 10:00 o’clock at night. He passed under two of the trestles, and when he arrived at a point about the east side of the middle trestle, or between there and the east trestle, a locomotive stopped suddenly overhead, and a large piece of coal fell therefrom, going through the top of ap-pellee’s buggy and striking appellee upon the head, and causing the injuries complained of. The point where appellee was hurt was a public thoroughfare, and had been for a great length of time prior to the date on which the injuries were inflicted. Upon trial by jury there was a verdict for appellee for $10,000, followed by judgment, from which this appeal is taken.

After charging the jury relating to certain facts necessary to be found in order to return •a verdict for appellee, and which are not in dispute on this appeal, and after instructing the jury that if appellee was hurt, while passing under the trestles spanning Crawford street, by a lump of coal falling from one of appellant’s engines that was being operated across and upon said trestle the court proceeded with his charge as follows: “And if you further believe from the evidence that said trestles were so constructed as that there was danger of injury to persons traveling under said trestles from anything escaping or falling from defendant’s engines or cars; and if you further believe from the evidence that in the exercise of ordinary care said trestles could have been so constructed as to prevent anything escaping or falling from said engine or coals falling through and under said trestles; and if you further believe from the evidence that in constructing said trestles in the condition in which you find from the evidence same were at the time plaintiff claims to have been injured, and in maintaining and permitting same to remain in such condition, the defendant was guilty of negligence as this term has hereinbefore been defined to you; and if you further believe from the evidence that such negligence, if any, was the direct and proximate cause of plaintiff’s injuries, if any he received — you will find for plaintiff, and assess his damages under instructions herein-before given you.”

The first assignment of error complains of that portion of the charge just quoted. By authority of the assignment it is asserted, in a number of forms, that the testimony does not sustain the action of the court in submitting to the jury whether appellant was negligent in constructing its culverts and trestles so that coal or other objects could not escape from its locomotives and ' cars and drop upon persons in the street below and injure them. We think the criticism directed against the charge untenable. If the culverts and trestles were negligently constructed, such negligent construction jvas in law the proximate cause of the injury, since, “though a negligent act or omission be removed from the injury by intermediate causes and effect, yet if the party guilty ought reasonably to have foreseen the ultimate consequence, such negligence is deemed in law the proximate cause of the injurious effect.” G. C. & S. P. Ry. Co. v. Rowland, 90 Tex. 365, 38 S. W. 756; T. & P. Ry. Co. v. Bigham, 90 Tex. 225, 38 S. W. 162. Accordingly, if the lump of coal which fell from appellant’s locomotive and injured appellee could not have done so but for the negligent construction of the culverts and trestles, the submission of that issue is clearly sustained. The lump of coal may have been thrown from the locomotive by carelessly operating same, or it may have been due to negligence in overloading the tender, or it may have been precipitated over or under the railing'to the street below, or fallen to the floor of the board walk and rolled therefrom to the street, yet the proximate cause of the injury could be the negligent construction of the culverts and bridges if the jury found, as a matter of fact under the adduced evidence, that same were negligently constructed.

Thus we are led to a consideration of whether or not the evidence is sufficient to sustain the finding of the jury that the culverts and trestles were negligently constructed, which finding appellant attacks under several propositions. The evidence, as we have said, shows that appellant has three trestles which span Crawford street, and admitted public highway, each trestle carrying two railroad tracks. The trestles are all floored, the flooring extending about 3½ feet beyond the outermost rail on either side. On each side of each trestle where the flooring ends is built a banister or railing. The space between the banister and the outside rail of appellant’s track is commonly used by pedestrians in Denison. The banister is open and not boxed up, and consists of upright pieces with railings placed thereon, extending at right angles thereto. The space between the trestles, or between the several banister railings on the trestles, is open, and if coal should fall from an engine and escape through the opening in the railing, or bounce through such opening after falling upon the floor, or be precipitated clear of the railing from the engine, the tender of which stands 9 feet above the top of the railing, it would be unimpeded in its fall to the street below. The tender of an engine which carries its coal supply extends to within 6 or 12 inches of the banisters or railing above described, and renders possible what we have just suggested. Appellee was in the space between two of the trestles when injured. The foregoing is, in substance, the most the jury could have found from the evidence adduced upon trial, and upon those facts the jury has indicated by its verdict that appellant’s trestles were negligently constructed. Do the facts support the findings? We think so, since negligence is always a question of fact to be found by the jury, and consideration of the evidence detailing the construction of appeh lant’s culverts and trestles make it inevitably a matter for the jury. We could say that the. dropping of the lump of coal was as much due to appellant’s negligent construction of its trestles as we could say it was not due thereto ; and, did we say either, it would be none the less an adjudication of a question of fact. Missouri, Kan. & Tex. Railway Co. v. Rogers, 9.1 Tex. 52, 40 S. W. 956.

It is also urged that the charge above quoted was erroneous in that it failed to submit to the jury some rule for their guidance as to the particulars in which the construction of the trestles was faulty. It seems to us that the answer to this criticism is that it was not charged that some particular part of the trestle was faulty or out of repair, but that the trestles as built were inherently unfit for the protection of the public who used the street below, and that therein was the negligence, if any, to be passed upon by the jury. The negligence might have been one of omission in the construction of the trestles, as well as one of commission, and we may have views upon what the jury based their finding, but an expression of same would be both improper and immaterial, since our functions cease when it is ascertained that there is evidence in the record upon which the verdict can be sustained.

The fifth and sixth assignments of error complain of the refusal of the court to confine the jury to the consideration only of any negligence due to appellant’s failure to board up the open space formed by the banisters. This was on the theory that the lump of coal could only have fallen to the street below by falling on the platform or board walk and then rolling therefrom to the street below. The tender of the engine, according to the evidence, is 9 feet higher than the banister rail, and reaches within 6 or 12 inches of the rail, and it is not inconceivable, as we have said at another place, that the lump of coal may have been precipitated into the space between the trestles directly to the street below in the ways there suggested.

Our conclusions and findings under appellant’s first assignment of error render unnecessary a discussion of appellant’s fourth, sixth, seventh, eighth, and ninth assignments of error.

The judgment is affirmed.


author: FLY, O. J.

text:
    DAVIS v. CITY OF SAN ANTONIO et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 12, 1913.
    Rehearing Denied Dec. 10, 1913.)
    1. Municipal Corporations (§ 921*) — Bonds —Sale—-Commissions—’ ‘Par Value. ’ ’
    • Under Sp. Acts 1907, c. 70, amending the charter of San Antonio, and providing that all bonds shall net the city not less than their par value, with accrued interest to date of payment of the proceeds into the city treasury, no commissions, attorney’s fees, or other expenses connected with the issuance and sale of bonds can be taken from the proceeds, unless the bonds are sold at a premium sufficient to pay such expenses; the term “par value” meaning a value equal to the face of the bonds, or at the rate of $1 in money for $1 in bonds.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1932-1935; Dec. Dig. § 921.

    For other definitions, see Words and Phrases, vol. 6, pp. 5163, 5164.]
    2. Municipal Corporations (§ 921) — Bonds —Sale—Expenses—Payment.
    By San Antonio City Charter, as amended by Sp. Acts 1907, c. 70, providing that bonds of the city shall not be sold for less than their par value, with accrued interest to date of payment of the proceeds into the city treasury," the city was not precluded from contracting to pay necessary expenses incident to the issuance of bonds, including commissions for the sale thereof and fees of expert attorneys for an opinion as to their validity, out of the general fund.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1932-1935; Dec. Dig. § 921.]
    3. Municipal Corporations (§ 214) — Em-ployés — Agents and Attorneys.
    Under San Antonio City Charter (Sp. Acts 1907, c. 70) § 56, conferring on the city authority to create any office or agent deemed necessary to the city’s good government and interest, the city was authorized to employ expert attorneys to pass on the validity of a bond issue, and to employ agents to sell the bonds on commission; the judgment of the council as to the necessity for such employment being final, unless fraudulent or unreasonable.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 582-588; Dec. Dig. § 214.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Suit by Frank C. Davis against the City of San Antonio and. others. Judgment for defendants, and complainant appeals.
    Affirmed.
    George C. Altgelt, of San Antonio, for appellant. William Aubrey and George R. Gillette, both of San Antonio, for appellees.

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

   FLY, O. J.

Appellant instituted this suit against the city of San Antonio, its mayor, Clinton G. Brown, and J. Frank Gallagher, its treasurer, to restrain the payment by the city of San Antonio to a certain bank of a commission of 1.99 per cent, for the sale of certain improvement bonds issued by the city in the sum of $3,450,000, and the payment of a fee of $3,000 to a firm of attorneys of New York City. It was alleged in the petition that the city council of San Antonio is authorized by section 53 of its charter to borrow money on the credit of the city, and to issue bonds for permanent public improvements, after being authorized so to do by the vote of the taxpaying voters of the city; that under section 108 of the charter the council has power to create special funds- for special purposes, but does not have power to transfer money from one fund to another, except an excess in the general fund over current expenses, which may be transferred to any other special fund, and that the city treasurer shall not pay any draft on the permanent improvement fund, except in payment for such improvements provided for by ordinance; that on July 18, 1913, in pursuance of an ordinance passed on June 16, 1913, an election was held in the city of San Antonio on the question of the issuance of bonds in the sum of $3,450,000 for certain public improvements, distinctly specified in said ordinance, the sums to be expended on each improvement named, and the taxpaying voters declared in favor of such issuance; that advertisements were inserted in different newspapers for the sale of said bonds, and on October 4, 1913, one Allen Frake, claiming to represent certain parties, made the following proposition to the city council; “We agree to find purchasers for your proposed $3,450,000 of bonds issued for various purposes, offered for sale on October 2, 1913, bearing interest at the rate of 5 per cent, per annum, payable semiannually in New York or San Antonio at the option of the holder, of date, maturities and denominations as advertised, at a price of not less than par, and accrued interest to date of delivery of the bonds to us at the Continental & Commercial Trust & Savings Bank in Chicago, said bonds to be delivered to us as follows: $500,000 as soon as'legality is established; $500,000 three months from that date; $500,000 six months from that date; the remainder of the issue to be delivered within six months thereafter. We are to have the option of having all or any part of the bonds delivered at any time earlier upon giving to the city of San Antonio, Texas, notice in writing 30 days beforehand. This bid is subject to the legality of the issue, and the sale of the bonds under the terms hereof Being approved by Dillon, Thomson, and Clay, of New York City. In consideration of our acting as your agents in this matter, and placing the bonds at a price of not less than par and accrued interest, a commission of one and 99/100 per cent. (1.99%) to be paid us simultaneously as we take up the bonds. We tender herewith check for sixty-nine thousand dollars ($69,000) on the Lockwood National Bank of San Antonio, Texas, as evidence of our good faith, said check to be held by you uncashed pending the investigation of the legality of the bonds, and is to apply pro rata in payment as the various installments are delivered in the ratio of two per cent. (2%) of the bonds delivered under the terms hereof. If the bonds are not awarded us, or the legality of the issue is not approved by Dillon, Thomson, and Olay, or if the sale or delivery of these bonds are the subject of legal proceedings for an injunction, this check is to be immediately returned to the said Lockwood National Bank.”

It was further alleged: “And that said proposition was afterwards, by an ordinance of said city council, passed and approved on Monday, October 13, 1913, ratified, approved, adopted, and accepted, and the same referred to as an original contract entered into on the 4th day of October, A. D. 1913, by and on behalf of the city of San Antonio, through the mayor and finance committee of the city council, with the Continental & Commercial Trust & Savings Bank, Kountz Bros., and C. W. McNear & Co., acting through their agent, Allen Drake, and that by said ordinance the said Continental & Commercial Trust & Savings Bank, Kountz Bros., and C. W. McNear & Co. were made, constituted, and appointed the agents of said city of San Antonio in the name, place, and stead of said city to find purchasers and negotiate a sale or sales of said bonds upon the terms and conditions stated in said contract, which is made a part of said ordinance, and the check for sixty-nine thousand dollars ($69,-000) deposited by said parties shall be placed in the custody of the city treasurer, and by him held or applied in accordance with the terras of said contract.” “That on the same day and at the same meeting of said city council said council passed an ordinance authorizing and directing the mayor of said city to employ Dillon, Thomson, and Clay, attorneys, to furnish to the city of San Antonio an opinion with reference to said bonds proposed to be issued and sold, said opinion to include and cover the legality of the issue and the sale of the bonds under the terms of said contract dated October 4, 1913, and said council at the same time appropriated the sum of three thousand ($3,000) dollars, or so much thereof as may be necessary out of the revenue for the current year, to provide for the payment of such fee in accordance with said ordinance and the proposition of said Dillon, Thomson, and Clay contained in their letter of September 15, 1913.”

It was alleged that the ordinances were void, because, under the terms of the charter, the bonds could not be sold for less than par and accrued interest, and the commissions and attorney’s fees could not be paid out of the money received for the bonds, and the ' city attorney alone is authorized to represent the city in all legal matters, and the Attorney General of Texas is required to pass upon the legality of all bonds, that appellant is a taxpaying citizen of San Antonio and a resident thereof, and he prayed that appellees be restrained from paying any part of the -’ommission of 1.99 per cent, to any person, and be restrained from paying the attorney’s fee or any part thereof to any one, and that a temporary restraining order be issued.

Appellees filed a general demurrer, and answered all the allegations as to the power of the council to issue bonds when authorized by the taxpaying voters, as to creating special funds, and that no funds can be transferred from one special fund to another, except as indicated, as to drawing warrants, as to the election on the issuance of bonds, as to the issue being authorized, and as to the advertisement for bidders and the proposition by Frake. It was further alleged that the first ordinance, passed on October 13, 1913, provided that the bonds should be sold according to the terms of the charter; that the commission was not a discount on the bonds; that the parties contracting for the commissions are not the purchasers of the bonds; that the employment of the attorneys was a customary and proper measure; that the payment for their legal opinion was properly a part of the current expenses of operating the affairs of the city for the current year; and that there were necessarily many items of expense incident to the bond issue which were proper and legitimate current expenses of the city.

It was further alleged that, after the passage of the ordinance of October 13, 1913, that is, on October 20, 1913, the said ordinance was amended, altered, and modified by another ordinance, which is as follows:

“Be it ordained by the city council of the city of San Antonio:

“Section 1. That the original contract attached hereto made and entered into on the 4th day of October, 1913, by and on behalf of the city through the mayor and the finance ■ committee of the city council, with the Continental & Commercial Trust and Savings Bank, Kountz Brothers, and C. W. McNear & Company, acting through their agent Allen Frake, with reference to the sale of $3,-450,000 bonds of the city of San Antonio, dated September 1st 1913, and in the above recitals more fully described, be and the same is hereby ratified and confirmed as the contract of the city of San Antonio and is made a part of this ordinance; provided however that the term ‘legality’ shall be deemed to include, inter alia, the approving opinion of the Attorney General, the registration by the comptroller and the submission of the bonds to the option of the state board of education, all said measures being requirements of statute; and provided further that said bonds when sold shall net to the city not less than their par value, with accrued interest to the date of the payment of the proceeds into the city treasury; and subject to the provisions of this ordinance the said Continental and Commercial Trust and Savings Bank, Kountz Brothers and C. W. McNear & Company are hereby authorized and directed to proceed with the finding of purchasers for said bonds and to arrange a sale or sales therefor to the best advantage of the city in accordance with said contract and this ordinance, and subject to and conditioned upon the ratification and approval of the city council; and the check for said sixty-nine thousand ($69,000) deposited by said contracting parties shall be placed in the custody of the city treasurer and shall be by him held, applied or disposed of in accordance with said contract.
“Sec. 2. That all ordinances or parts of ordinances inconsistent herewith be and the same are, hereby repealed.”

In a trial amendment by appellant it was alleged “that neither said attorney’s fees nor said commission can be lawfully paid out of any funds belonging to the city of San Antonio, because said bonds would not then net the city par and accrued interest, and the pretended payment out' of any other fund belonging to the city would be an evasion of the charter requiring the bonds to net par and accrued interest.”

The trial court entered a decree overruling the general demurrer to the petition, and denied a temporary injunction.

In the decree it is recited that it was agreed by the parties “to submit the case on bill and answer without argument or further evidence,” and it may be inferred from that recital that the agreement was that the pleadings should be considered as evidence.

The allegations of the petition amount to a claim that the appellees were endeavoring to sell to a Chicago bank the bonds of the city of San Antonio for the face value of the bonds, with accrued interest, less the sum of $68,655, called commissions, and $3,000, denominated attorney’s fees; that the transaction was a scheme to evade the provisions of the charter, and to sell the bonds at a sum less than par and accrued interest. This was fully denied by the appellees, and it is provided in the ordinance of October 20, 1913: “That said bonds shall net to the city not less than their par value, with accrued interest to the date of the payment of the proceeds into the city treasury; and subject to the provisions of this ordinance the said Continental and Commercial Trust and Savings Bank, Kountz Brothers and C. W. Me-Near & Company are hereby authorized and directed to proceed with the finding of purchasers for said bonds and to arrange a sale or sales therefor to the best advantage of the city, in accordance with said contract and this ordinance, and subject to and conditioned upon the ratification and approval of the city council. * * * ” All ordinances inconsistent with the last ordinance were repealed.

Article 617, Revised Statutes of 1911, which was enacted in 1893, provides: “Hereafter no bonds executed by any county, city, or town shall bear a higher rate of interest than six per cent, per annum, and shall not be sold at less than its par value and accumulated interest, exclusive of commissions.” By reasonable implication the explicit exclusion of commissions might be deemed permission to take the other necessary expenses arising from the issuance of bonds out of the proceeds of the sale; but we incline to the opinion that the Legislature desired to intensify its opposition to the payment of commissions out of the funds voted for a specific purpose. The law, with many others of that period of our history, was an expression of the reaction of the people, under the guidance of the wisest and greatest of Texas Governors, against the exploitation of the money of the people then so prevalent by all classes of corporations, both public and private. It was especially an expression of the people against the use of public money in paying large commissions to political favorites without any competent service rendered therefor, thereby diverting large sums from the purpose for which it has been intended.- However, in 1907 a special law was passed amending the charter of the city of San Antonio, in which it was enacted: “All bonds shall specify for what purpose they were issued and when sold, shall net the city not less than their par value, with accrued interest to the date of payment of the proceeds into the city treasury, and the bonds may be negotiated in lots as the city may direct.” That provision of the charter is fully as stringent and comprehensive as the general law. The whole of the special law on the subject has not been quoted, however, for another alternative seems to be contemplated, and that is the implied power granted the city council to contract to pay the contractor undertaking such public improvements, who shall agree thereto in said bonds for the work to be performed. That provision, if executed, would place the money of the people at the. mercy of contractors, who, to protect themselves, would enter bids that would form the basis for discounts amounting, not to 2, but perchance to 10 or even 20, per cent. Bids would be made for such sums for public improvements as that the bonds would not only not bring par and accrued interest, but would realize sums largely under par. The effect of the whole provision would be to prevent any expenses being taken out of the proceeds of the bonds which must realize par value and accrued interest, and thereby force the making of contracts in which the work performed would be paid for in bonds. This would undoubtedly be the result of the contention of appellee that expenses such as commissions or attorney’s fees cannot be paid out of any fund whatsoever. Under that construction of the charter provision bonds could not be sold at all, unless at a heavy premium, and to make improvements the bonds would necessarily be used as the basis of compensation therefor. No such alternative should be forced upon any city.

Much space is given in appellant’s brief to the discussion of repeals by implication, and a number of decisions are cited to the effect that repeals by implication are not favored. We need not consider repeals by implication in this case, for, if the general statute is in conflict with the special law, it is directly and expressly repealed. Subdivision 3, § 124, p. 562, Acts of 1907. , It follows that it does not matter whether there is no conflict between the two laws, as we are inclined to believe, or that they are in conflict; the special law of 1907 must govern, so that in either case the special law will be the charter of the power conferred upon the city council.

In order that the bonds should “net the city not less than their par value, with accrued interest to the date of payment of the proceeds into the city treasury,” it is clear that no expenses can be deducted from that sum, not only commissions and attorney’s fees, but any other expense connected with the issuance and sale of the bonds. This construction has been placed by some courts upon statutes not so drastic or exacting as the one in consideration. State of Illinois v. Delafield, 8 Paige (N. Y.) 527; Evans v. Tillman, 38 S. C. 238, 17 S. E. 49; Commonwealth v. Williamstown, 156 Mass. 70, 30 N. E. 472; Village of Ft. Edward v. Fish, 156 N. Y. 363, 50 N. E. 973.

In the Delafield Case cited it was said: “The very idea of a sale of a bond, or draft, or other security for the payment of money at par is that it is to be sold dollar for dollar of the amount due and payable thereon. * * * Such is the popular or generally received meaning o'f the terms ‘par’ or ‘par value,’ and this was unquestionably the sense in which these terms were used by the Legislature of Illinois in the statute under which the officers of the state were authorized to t issue these bonds.”

Speaking on the same subject, the Court of Appeals of New York, in the cited case of Village of Et. Edwards v. Fish, held: “The Legislature enacted that the bonds should not be ‘disposed of by such commissioners at less than the par value thereof.’ * * * The first question presented for decision is, What is the meaning of the words ‘par value’ as thus used in the statute? ‘Par’ means equal, and ‘par value’ means a value equal to the face of the bonds. A sale of bonds at par is a sale at the rate of a dollar in money for a dollar in bonds. This is the accepted meaning of the term in the mercantile world, which the Legislature is presumed to have adopted in enacting the statute.” The provision of the charter is broader and more rigid than the statute of New York, to which that construction was applied, for it provides that “the city shall net” par value and accrued interest. The word “net” must mean clear of all charges, expenses, discounts, commissions, or sums of any kind.

In passing upon the powers of the commissioners pf the village, the New York court held: “The actual power was to borrow money by issuing and selling bonds at not less than par. The express power to issue bonds involved the implied power to pay for engraving, printing, and the like. The express power to sell bonds doubtless carried with it the implied power to pay counsel for an opinion as to the validity of the bonds, as was done in this case, and possibly to pay a commission to brokers for selling the bonds. These expenses were incidental to the duty imposed, and fairly came within the scope of the main power.” Approving that case, the same court, in Armstrong v. Village of Ft. Edward, 159 N. Y. 315, 53 N. E. 1116, held: “Where there is an express grant of power to them it carries with it, by necessary implication, every other power needful and proper to the exécution of the power expressly granted. The authority to sell water bonds, therefore, carries with it the authority to secure such reasonable and proper assistance as may be requisite to bring about an advantageous sale of the bonds. * * * Those having charge of the selling of bonds have the right to exercise their discretion in selecting the agencies by which they shall make disposition of them; but in the selection of such agencies it is their duty to exercise their best judgment in the interests of the public whom they serve. The selection, therefore, must be made in good faith, and with a fixed purpose to further the interests of the constituency represented.” That was said in a case in which suit had been filed to recover commissions for selling bonds, and, we think, correctly states the law applicable to such cases.

The opinion of the Supreme Court of Tennessee, in Miller v. Park City, 150 S. W. 90, goes further, and holds that the prohibition of the statute against sale of bonds at less than par was not violated by deducting an attorney’s fee and other expenses incident to the sale, such as printing, lithographing the bonds, postage, etc. The court said: “They were sold at par and accrued interest. One thousand dollars was deducted by agreement for counsel fees, and the remainder for printing bills and the like. It has been held in numerous cases that the deduction of such expenses, when reasonable in amount and done in good faith, does not violate the prohibition contained in the enabling act against a sale at less than par. It would seem that there could be no fair dispute over a deduction for expenses incident to printing the bonds and placing them upon the market,. because the city could not reasonably espect a purchaser of its obligations until the obligation itself was cast into such form and published in such manner as the market would demand. It could not fairly be said to hare bonds for sale until they were formulated so as to conform to the provisions of the enabling act and printed in accordance with the demands of the market. A like reason wouid include attorney’s fees. It is well known that public securities are not readily marketable until their legality and validity have been approved by competent •and reputable attorneys.”

As in the Tennessee case, so in this, there was no evidence of fraud or bad faith on the part of appellees; but there was an evident attempt to comply fully with every requirement of the law. As was said in that case: ■“It is needless to say that, if charges of this kind are sought to be made the cover for an actual sale at less than par, or if they are grossly unreasonable and attended by marks of bad faith, the court would not hesitate to declare such transaction fraudulent and void.”

The cases cited, we think, declare the proper doctrine as to the sale of bonds by a public corporation; but, under the peculiar reading of the charter, which requires that the sale of the bonds “shall net the city” the par value and accrued interest, we are not justified in going to the extent of holding that the expenses of putting the bonds upon the market can be deducted from the money received from the sale of the bonds. But, in order to execute the powers conferred upon the municipal government to sell bonds, some expense must be incurred, and to hold that no expense shall be incurred or paid out of the money realized from a sale of bonds or any other fund would be to prohibit the sale of bonds, unless they could be sold for a premium high enough to meet all expenses, which would amount to a prohibition of the sale, unless sold at a premium.

It cannot, with reason, be contended that the special statute was intended to prevent any expenditure of money in the submission of the question of a bond issue, for the publication of notices of the election and of tickets, for the preparation of voting booths and remuneration of election officers, for the expenses incident to declaring the result and the printing of the bonds, and obtaining the approval of the Attorney General of the state. These expenses must necessarily be paid out of some public fund, or the bonds cannot issue. They are absolutely necessary expenditures of money, and, if they must be paid out of some fund, any other expense must be paid out of some fund. The expenses of the issuance and sale of the bonds, it is clear, cannot be paid out of the money realized from their sale, unless a premium sufficient to meet the expenses is obtained, for that sale must net the city the principal and accrued interest to date of payment of the proceeds into the city treasury.

No issue of bonds for public improvements can be made by the city of San Antonio, without first submitting to the qualified tax paying voters of the city the proposition to borrow money, which shall distinctly specify the purposes for which the loan is desired and the improvements to be made, and, unless a majority of the votes cast is in favor of the proposition, no bonds can be issued. The use to which the money is to be devoted is designated and named by the voters, and the' city council cannot divert it from the designated purpose, and to safeguard and pro- • tect the fund set apart by the voters to a certain purpose, and prevent its diversion and spoliation, the Legislature make it unlawful to sell the bonds for less than par and accrued interest. This provision is imperative,, and any sale for less than the sums mentioned would be null and void, “not simply as ultra vires, but as a forbidden act.” Village of Ft. Edward v. Fish, herein cited. But the expenses incident to and arising out of the submission of the proposition to issue bonds, the election, the printing of the bonds, and their sale must necessarily be paid, and, as they cannot come out of the special funds, they must be taken, if at all, out of the general fund kept for current expenses. If the expenses cannot be obtained from the general fund, public improvements must cease, progress be thwarted, and advanced civilized methods be abandoned. That the Legislature intended any such result will not be entertained. The Legislature, while protecting the money voted by the people and dedicated by them to certain specific purposes, could not have desired to impede the march of progress, and prevent the improvements demanded by the civilization of the age in which we live. While restricting the use of the dedicated money, it was not designed to manacle municipal authorities, and cause all improvement and material progress to cease. The reasonable expenses absolutely necessary for the issuance and sale of bonds for public improvements must be paid, and, if the special fund arising therefrom cannot be touched, the money must come from some fund not set apart for a special purpose. The Legislature has not attempted to interfere with the power of the city council to use the general fund for what may be deemed by it to be legitimate, necessary, current expenses.

As to what are necessary expenses in issuing and floating the bonds need not concern this court, because that question is not raised in the case, the sole contention being that certain items of expense cannot be paid out of any fund belonging to the city; in other words, that the city government can under no circumstances pay a commission for the sale of bonds, nor attorney’s fees. In section 56 of the charter the city council is given the authority “to create any office or agent deemed necessary for the good government and interest of the city,” and under numerous decisions the language is broad enough to authorize the employment of an agent to sell bonds or to pass upon their legality. Abbott, Mun. Corp. § 708; Franklin County v. Layman, 145 Ill. 138, 33 N. E. 1094; Connolly v. Beverly, 151 Mass. 437, 24 N. E. 404; Garrigus v. Howard County, 157 Ind. 103, 60 N. E. 948; Harris v. Gibbins, 114 Cal. 418, 46 Pac. 292; Church v. Hadley, 240 Mo. 680, 145 S. W. 8, 39 L. R. A. (N. S.) 248; Manitou v. First Nat. Bank, 37 Colo. 344, 86 Pac. 75; State v. Land Co., 75 Minn. 456, 78 N. W. 115; Hunt v. Fawcett, 8 Wash. 396, 36 Pac. 318. The charter giving the authority to employ agents, the necessity for such employment is a matter for the judgment of the city council, and such judgment cannot be questioned, unless shown to be fraudulent and unreasonable. Simrall v. City of Covington (Ky.) 29 S. W. 880. The authority to employ carries with it the authority to pay the agent.

In the case of Allen v. Abernethy, 151 S. W. 348, this court sustained the judgment of the district court which was based on a new order of the commissioners’ court of Atas-cosa county setting aside objectionable portions of a former order, and denied a writ of injunction, on the ground that the new order had given the applicant all he demanded. So in this case the ordinance passed by appellees on October 20, 1913, met all objections urged as to the bonds not being sold for their net par value with accrued interest. If, as contended by appellant, the first ordinance was void, nothing was accomplished by it, and, if the parties desiring to buy the bonds were not parties to the last ordinance, and are not bound by it, that fact could not possibly injure appellant, and can be a matter of no concern whatever to him. If the contracting parties do not accede to the last ordinance, the whole negotiation falls to the ground, and there would be nothing to restrain, and the writ of injunction was properly refused.

' The necessity for the employment of agents to assist the city in the negotiations necessary in the sale of bonds must be addressed to the judgment and sound discretion of the city council, and some latitude must be extended to that discretion in the sale of bonds of such denominations as have been provided for by the people of San Antonio. The number of purchasers of bonds for so large an amount as nearly $3,500,000 are necessarily few, and the greatest caution will be exercised by them in detecting irregularities in the issue of the bonds, or matters that may affect their validity, and they have the right to demand the opinions of attorneys of undoubted reputation who have devoted themselves to the consideration of such questions. It has been held that, even where there had been no stipulation in the contract for the opinion of reputable attorneys as to legality of bonds, “it is necessary, in order to give effect to the intentions of the parties, to read into- the contract an implied condition that the buyers should not be bound to take the bonds, unless the proceedings of the city government had been conducted in substantial conformity with the laws, and proper records had been made, so that competent lawyers of good reputation would be able to certify to the validity of the bonds.” City of Great Falls v. Theis (O. C.) 79 Fed. 943.

Recurring to the position taken by this court that, under the provisions of the char-tér, the expenses attending the issuance and sale of bonds cannot be paid out of the proceeds arising from the sale of the bonds, but that they can and must be paid out of the general fund, we find the position sustained by -the Supreme Court in the case of Dallas County v. Land & Cattle Co., 95 Tex. 200, 66 S. W. 294, which is cited by appellant.. In that case it was held that the gross proceeds of the sale of school lands by counties must be used for school purposes, and that no expenses of the sale can be deducted therefrom, but that all such expenses must be paid out of the general fund. The court, in construing the effect of the grant of lands to counties for school purposes, held: “This legislation tends to show that the policy was 'to preserve the entire lands and their entire proceeds intact as a permanent school fund for the use of the public schools of the county. The words ‘said lands’ as used in section 6 evidently mean all the lands. The provision embraces as well all lands that might thereafter be granted as well as those which had been previously acquired, and it would seem to have been contemplated that in case of future grants all the lands which were granted to a county should become its permanent special school fund, and that no part should be given for the expenses of locating and surveying them. In other words, it was intended that such expenses should be paid by the county from its general fund. If such was the'intent as to the lands themselves, it is to be inferred that there was a like intention as to the proceeds — that the entire proceeds should be held, and that the county should pay. the expenses of a sale, if any, out of its own proper funds.” So in this case the money arising from the sale of bonds for permanent public improvements at par with accrued interest is devoted by the statute to a special purpose, and no part of it can be diverted from that purpose; but the necessary expenses attendant upon the issuance and sale of the bonds must come from a fund not dedicated and set apart to a special purpose.

It may be contended that the burden at last falls upon the taxpayer, no matter from which fund the expenses may be paid; but, the expenses being absolutely necessary, the taxpayer should not be heard to complain at tlieir payment, nor should he complain that the expenses are taken from a fund other than that raised for public improvement, and that every dollar of that fund is devoted to the purpose for which it was voted.

There was no attempt to use the special fund voted by the people of San Antonio for the improvement of its streets for any other purpose, and it is not so charged in the bill, nor contended for in this court, and it is the opinion of this court that the city council, having been clothed with authority to sell bonds, had the implied authority to incur any legitimate, reasonable expense necessary to execute its powers, and that it is empowered to pay such expenses out of the general fund of the city.

The judgment of the district court is affirmed.


author: CONNER, C. J. PER CURIAM.

text:
    NEBLETT v. BARRON et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 15, 1910.
    On Rehearing, March 11, 1911.)
    1. Chattel Mortgages (§ 275) — Foreclosure — Proper Parties.
    In a proceeding to enforce a chattel mortgage, others who claim a prior lien on the mortgaged property are proper parties, and it is immaterial that the mortgagee has sold the mortgaged property.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 562; Dec. Dig. § 275.]•
    2. Pleading (§ 228) — Exceptions.
    Matters not appearing on the face of a petition cannot be reached by exception.
    TEd. Note. — For other eases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. § 228.]
    3. Appeal and Error (§ 667) — Record—Conclusiveness — Recitals in Judgment.
    Where the judgment recited due service on the principal defendant, plaintiff cannot complain on appeal that such defendant was not cited by the intervener who sought to foreclose lien superior to that of plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2862, 2863; Dec. Dig. § 667.]
    4. Appeal and Error (§ 877) — Persons Entitled to Allege Error.
    In a proceeding to foreclose a chattel mortgage the mortgagee cannot complain on appeal that the intervener who sought to enforce a landlord’s lien on the same property did not serve citation upon the defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dec. Dig. § 877.]
    5. Appeal and Error (§ 1050) — Review on the Same.
    The admission of oral testimony of a bookkeeper as to an itemized account of supplies furnished by a firm for which he worked is cured by the subsequent introduction of the books of account, with proof that they had been regularly and accurately kept.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dee. Dig. § 1050.]
    6. Evidence (§ 158) — Oral Evidence — Best Evidence.
    In a proceeding to enforce a landlord’s lien for supplies furnished his tenant, oral testimony that supplies were furnished the tenant’s employs, upon his written orders, is admissible; the orders themselves not constituting any better evidence that they were given by the tenant, and that supplies were furnished thereon, than the positive testimony of a witness having knowledge of the facts.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 472, 473, 474½-504, 506-526; Dec. Dig. § 158.]
    7. Appeal and Error (§ 1002) — Review — Findings.
    . The finding by the trial court on a contested issue of fact will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and ¾0°⅞] Cent. Dig. §§ 3935-3937; Dec. Dig. §
    8. Chattel Mortgages (§ 144) — Landlord’s Lien — Priority.
    The prior registration of a mortgage upon a tenant’s future crop will not defeat the landlord’s lien conferred by Rev. St. 1895, art. 3235, declaring that all persons leasing land shall have a preference lien for all money and provisions furnished by the landlord to enable a tenant to make a crop, and article 3237, declaring that such lien shall continue so long as the property remains on the demised premises and for one month thereafter, and shall be superior to all exemptions; a mortgagee taking his mortgage with notice of the landlord’s statutory rights.
    [Ed. Note. — F& other cases, see Chattel Mortgages, Cent. Dig. § 241; Dec. Dig. § 144.]
    9. Chattel Mortgages (§ 288) — Foreclosure-Right to Proceeds.
    Where plaintiff sought to foreclose a mortgage upon a part of a ténant’s crop and certain animals, and the landlord intervened, claiming priority by virtue of his general lien, plaintiff cannot complain of judgment in favor of the landlord on the ground that he had distrained other property on the ground out of which he might satisfy his lien, where the judgment required him to first exhaust such property.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 577, 578; Dec. Dig. § 288.]
    10. Agriculture (§ 12) — Laborer’s Lien-Filing oe Notice — Accrual oe Debt — “Due.”
    Rev. St. 1895, art. 3339a, gives farm laborers a lien on the agricultural products, while article 3339b requires a laborer desirous of such a lien to make duplicate accounts for his service, and to file one with his employer and one with the county clerk within 30 days after the indebtedness shall have accrued. Article 3339c declares that all wages, if service is, by agreement, performed by the day or week, shall be due and payable weekly. Held,_ that the term “due” used in the last section is equivalent to “owing,” and includes all debts payable in prm-senti or in futuro, and this indebtedness for farm labor accrues weekly within the purview of article 3339b, where the services are rendered by the day, even though it was agreed that the laborers should not be paid until the crop was sold, and hence to protect his lien the laborer must file the account within 30 days after the expiration of the week in which the services were rendered.
    [Ed. Note. — For other eases, see Agriculture, Cent. Dig. §§ 40, 41; Dec. Dig. § 12.

    For other definitions, see Words and Phrases, vol. 3, pp. 2213-2220; vol. 8, p. 7643.]
    11. Appeal and Error (§ 239) — Presentation oe Ground eor Review in Court Below — Necessity.
    In a proceeding to foreclose a chattel, mortgage, in which property was sequestered, plaintiff cannot complain that the costs of the sequestration were assessed against him, where there was no motion to retax the costs, and the record showed that the only sequestration had was sued out by plaintiff.
    TEd. Note. — For other cases, see Appeal and Error, Dec. Dig. § 239.]
    Appeal from Erath County Court; J. B. Keith, Judge.
    Action by Charles Neblett against H. C. Barron, in which J. W. Hall and Adam Caughman intervened. From á judgment for interveners, plaintiff appeals.
    Affirmed as to intervener Hall, and reversed and rendered as to intervener Caughman.
    See, also, 104 Tex. Ill, 134 S. W. 208.
    Daniel & Carlton, of Stephenville, for appellant. Eli Oxford, of Wichita Falls, and Wm. Pannill, of Stephenville, for appellees.

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

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

   CONNER, C. J.

Appellant Neblett, on October 31, 1908, sued H. C. Barron, a tenant on the farm of J. W. Hall, upon a note for $542.76, and to foreclose a mortgage given by Barron to secure the note upon two certain mules and the first, second, third, fourth, fifth, and sixth bales of lint cotton to be raised on Hall’s farm. Neblett sequestered the mules and cotton, and soon thereafter J. W. Hall intervened in the suit, seeking a judgment against Barron upon an itemized account for supplies, tools, etc., furnished said Barron with which to make the crop of 1908, amounting to $275.75. He alleged that therefore he had the landlord’s preference lien upon the cotton sequestered by Neblett, and he prayed as against Neblett for a foreclosure of the lien. Yet later one Adam Caughman also intervened, claiming an in-4ebtedness against Barron in the sum of $39.60 for daily labor, to secure which he also asserted a lien on the cotton sequestered by Neblett. Both intervener Hall and Caugh-man alleged that Neblett had converted the six bales of cotton mentioned in his mortgage and sequestered by him, and they prayed for judgment for its value, less the amount of the landlord’s rent, which had already been paid to Hall, in so far as necessary to satisfy their several demands.

The trial resulted in a judgment in substance that Neblett recover as against Barron the amount of his debt and for a foreclosure of his lien, and for Hall and Caugh-man as against Barron for the value of the cotton, but provided that certain other cotton and crops of the tenant, Barron, who had not answered in this suit, which had been distrained by Hall, be sold, and the proceeds, after deducting costs of gathering and the costs of the suit in which the distress warrant had issued, be applied in satisfaction ■of the judgment in this case in Hall’s favor, nnd that for any balance due him he should have judgment and execution against Neb-lett ; that if, after the satisfaction of Hall’s claim, there yet remained anything of the judgment against Neblett for the value of the cotton sequestered by him (fixed at the sum of $168.26) that Adam Caughman should have judgment and execution for such value so left in Neblett’s hands to the extent of his, Caughman’s, claim. From this judgment, Neblett has appealed.

It is elementary that all persons interested in the subject-matter of litigation are proper parties, and the court, therefore, did not err in overruling the exception to intervener Hall’s petition because of the fact that appellant had disposed of the cotton, and that intervener sought to hold him liable as for a conversion. Appellant’s action throughout was to establish and foreclose a mortgage lien on the cotton; so, too, was that of intervener Hall, the latter asserting a superior lien, so that the vital questions in the case were questions of priority of lien, and the actual disposition of the cotton was immaterial save as to the issue of conversion and as a guide to the court in forming his judgment. Besides, the fact of sale referred to did not appear on the face of intervener’s petition, and the exceptions, therefore, did not reach it.

The objection to the proof of inter-vener Hall’s itemized account against the tenant, Barron, on the ground that Barron was not cited, is not well taken, in view of the fact recited in the judgment that he was cited and of the character of the action. Proof of supplies advanced to the tenant was one of the necessary steps in establishing Hall’s asserted preference lien, arid appellant cannot be heard on a question of service in which the tenant, Barron, alone is interested, and of which he has made no complaint.

The objection to the oral testimony of the bookkeeper of the firm which furnished the supplies, to the effect that the itemized account was correct, was rendered harmless by the subsequent introduction of the book of accounts to the same effect, with proof that the book had been regularly and correctly kept.

Nor was there error in the oral evidence that some of the items had been furnished an employs of the tenant on written orders of the latter. The material inquiry was whether the items had been advanced by the landlord. They were charged to him, they have not been disputed by the tenant, and the form and contents of the orders were immaterial. They would not constitute better evidence of the fact that they were given by the tenant, and that supplies were furnished thereon, than the positive testimony of a witness having knowledge of the facts.

It is insisted that the judgment in favor of the intervener is erroneous on the ground that he waived his lien. But this was clearly a controverted issue of fact denied by him, and the finding of the court is in his favor. We therefore cannot disturb the finding.

The suggestion that intervener Hall was affected by the prior registration of appellant’s mortgage, and that thereafter the lien for supplies furnished would be in subordination to the mortgage lien of appellant, is, we think, contrary to the terms and effect of article 3235 of the Revised Statutes, conferring the landlord’s lien, which declares that: “All persons leasing or renting lands or tenements, at will, or for a term, shall have a preference lien * * * for all money and the value of all animals, tools, provisions and supplies furnished by the landlord to the tenant to enable the tenant to make a crop on such premises.” Article 3237 is to the effect that such lien as to agricultural products, and as to the animals, tools, or other property furnished to the tenant, shall continue so long as they remain on the land or leased premises and for one month thereafter, and that such lien shall be superior to all laws exempting such property from force sales. At the time appellant took his mortgage he was affected with notice of the landlord’s right as conferred by this statute, and his lien was evidently in subordination to the right of the landlord. Any other construction would in effect oftentimes altogether deprive a farm tenant of the ability to bring into existence agricultural products upon which a lien of any kind could operate, and the evident purpose of the statute is, as it says, to give the landlord a preference lien on all supplies necessary to the end in view.

The objection to the judgment in favor of intervener Hall upon the ground that the record shows that he had also distrained other property of the tenant (eorn and cotton) sufficient to satisfy the account for supplies furnished is answered at all events by the form of the judgment. The record fails to show the value of such other property levied upon by Hall; but, whatever its value, the form of the judgment is such that it in no event is to operate against appellant, if such other property is in value sufficient to liquidate the account after deducting the costs in the suit in which the levy was made.

Appellant’s fifteenth assignment of error, however, we think is well taken. It is to the effect that the record fails to show a lien in favor of the intervener Caughman. Caughman testified that: “I worked for D. C. Barron as a hired hand from May 25th to August 6th, 1908, assisting him in making the crop on the J. W. Hall place for the year 1908, at the rate of $1 per day, making a total of $12 for my work, which Barron agreed to pay out of the first cotton he sold.” On cross-examination he testified: “My contract with Mr. Barron was that I was to work by the day, and was to receive $1 per day wages. The work I did was on the 125 acres rented by Barron from J. W. Hall, and worked on the entire 125 acres in both eorn and cotton. This account for my wages has not yet been paid. * * * At the time I filed my account Mr. Neblett had taken possession of the cotton; but I don’t know whether it had been sold or not. Mr. Barron had told me that the plaintiff had taken possession, but said nothing as to whether it had been sold. I then made out and filed the account, and then gave Barron and Hall a copy. ' * * * My money was not due until the cotton was sold. * * * My money was to come out of the first cotton sold, and I could not file the account until the money was due. * * * None of the cotton had been sold except what was taken possession of by Mr. Neblett, who also took the mules.” The record further shows that Caughman made out and filed his account for record with the county clerk of Erath county on November 7, 1908.

Article 3339a of the Revised Statutes gives a farm hand a lien upon agricultural products that may be created in whole or in part by his labor “to secure the payment of the amount due” by the contract of employment. The next article, 3339b, provides, in so far as is here pertinent, that the laborer who shall have performed services shall make duplicate accounts for such services for the amount due him for the same, and present one of the duplicates to his employer within 30 days after the said indebtedness shall have “accrued.” The other of the said duplicate accounts shall within the time mentioned be filed with the county clerk of the county in which the services were rendered, to be recorded by the clerk in a book kept for that purpose. A compliance with these requirements is necessary to fix and preserve the lien given in thé chapter on the subject, and it is provided that a purchaser from the owner without actual or constructive notice of the claims of the lienholder shall take good title. The next article, 3339c, is as follows: “Under the operation of this chapter, all wages, if service is by agreement performed by the day or week, shall be due and payable weekly, or if by the month, shall be due and payable monthly. All payments to be made in lawful money of the United States.”

In the absence of the statutes referred to, Caughman had no lien to secure payment of the services performed by him, and he must bring himself within the statutes in order to be accorded the relief he sought in this suit. While the statutes evince the purpose of the Legislature to confer the benefit of the lien, it also has been careful to guard the rights of others by specifically requiring the.' prompt record of the claim for wages required by the law. And where, as here, the labor is by the day, the statute specifically declares that, within the meaning of the chapter on the subject, the wages therefor shall be due and payable weekly. In view of which, in eases of daily or weekly service, the fact that by the terms of the agreement the wages are to be paid at a future time is immaterial. The term “due” does not necessarily mean that the debt is immediately payable. In commercial law it is often used as synonymous with “owing,” and includes all debts, whether payable in prsesenti or in 'futuro, and it is in this latter sense, we think, it is used in the statute under consideration. In other words, in such cases the wages not only “accrue,” within the meaning of the statute — for the purpose of securing the lien — at the end of the week, but are also then due and payable, regardless of an agreement to the contrary. Inasmuch, therefore, as it appears without dispute that he attempted to fix his lien by the record of his claim some two months or more after his wages accrued and were due within the meaning of. the statute, we think the court erred in his judgment in favor of Caughman.

This disposes of all assignments save one complaining of the action of the court in taxing the cost of sequestration against appellant; but, in view of the fact that no motion was made below to retax the costs, and of the further fact that the only sequestration proceedings evidenced by the record in this case are those sued out by appellant, the assignment must be overruled.

We conclude that the judgment should in all respects be affirmed, save that part thereof in favor of Adam Caughman, as to whom the judgment is reversed and here rendered in favor of appellant.

On Rehearing.

PER CURIAM.

Motion granted, and judgment of the county court affirmed as per our original opinion and the opinion of Supreme Court on certified question. See 104 Tex. 111, 134 S. W. 208.