text:
    QUARLES et al. v. HARDIN et al. SAME v. CONWAY et al.
    (Nos. 725, 726.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 18, 1917.
    Rehearing Denied Nov. 8, 1917.)
    1. Fraudulent Conveyances @=271(3) — Debts Subsequently Contracted — Presumption.
    No legal presumption of fraud arises from the mere fact that debts were contracted subsequent to a husband’s execution of a conveyance of his property to his wife.
    2. Fraudulent Conveyances @=>295(1) — Evidence — Sufficiency.
    Evidence held sufficient to support a finding of fraud in the husband’s conveyance of the homestead to his wife.
    3. Fraudulent Conveyances @=>295(2) — Evidence of Fraud — Sufficiency.
    Fraud in a conveyance may be proved by circumstances as well as by positive evidence.
    4. Fraudulent Conveyances @=>69(2) — Validity — Subsequent Creditors.
    A deed executed with fraudulent intent by the husband to his wife is void as to subsequent creditors.
    5. Fraudulent Conveyances @=210 — Right
    of Subsequent. Creditors — Recording Conveyance — Effect. >
    Where the husband in making a conveyance of land to his wife intended to defraud his creditors, and immediately had the deed recorded in the county where the land lay at the county seat, at a considerable distance from the places of business of his creditors with which communication was difficult, the record of the instrument did not, under .Rev. St. 1911, arts. 6828, 6842, as to the effect of recording conveyances, constitute such constructive notice to subsequent creditors as that they could not attack the deed.
    6. Fraudulent Conveyances @=162(1) — Right to Attack — Grantee’s Intent.
    The intent of the grantee is immaterial in a voluntary conveyance fraudulent as to the grantor’s creditors.
    7. Fraudulent Conveyances @=242(1) — Right to Attack — Defense—Conveyance to Wife.
    Where the husband conveyed property tO‘ his wife in fraud of creditors, the deed reciting that the consideration on her part was payment of a certain sum monthly and provision' of a place for the husband to live, the wife could not prevent an attack upon the deed as fraudulent on the ground that she was an innocent purchaser where she did not perform her part of the agreement, and therefore was not a purchaser for value.
    8. Fraudulent Conveyances @=301(4) — Right to Attack — Evidence — Wife’s Knowledge and Intent.
    Evidence held to show either that the wife participated in the fraud or had constructive notice thereof, so that she could not as an innocent purchaser enjoin an action of the husband’s creditors to set aside the conveyance of land to her as fraudulent.
    9. Appeal and Error @=213 — Preservation, of Grounds of Review — Submission of Special Issues.
    In the absence of request to submit special issues, it will be presumed that such issues were resolved against the party so as to support the judgment in view of the specific provisions of Rev. St. 1911, art. 1985.
    10. Injunction @=200 — Determination Against Plaintiff — Assessment of Penalty.
    The wife’s action to enjoin a sale of property which had been conveyed to her by the husband in fraud of creditors, in the absence of showing that it was brought for delay, did not merit, on determination against her, the assessment of the penalty of 10 per cent.
    Appeal-from District Court, Erath County; W. J. Oxford, Judge.
    Two suits by L. A. Quarles and another against H. H. Hardin and others, and against J. W. Conway and others. From the decrees rendered, plaintiffs appeal.
    Reformed and affirmed.
    Robt. L. Thompson and J. A. Johnson, both of Stephenville, for appellants. W. P. Gibbs, of Gordon, and Chandler & 'Pannill, of Ste-phenville, for appellees.
   HIGGINS, J.

By deed dated January 25, 1915, John Quarles conveyed to his wife, L. A. Quarles, for the term of her life various tracts of land situated in Erath county; also two lots in the town of Gordon, Palo Pinto county; also certain live stock, farming implements, and a vendor’s lien note. The property belonged to the community estate of Quarles and his wife, and was all or practically all of the property owned by John Quarles available for the payment of his debts. The deed was filed for record upon the day of its date in the office of the county clerk of Erath county in the town of Stephenville, and was duly recorded. The instrument was not recorded in Palo Pinto county, so far as the record discloses. The deed recites that it was executed in consideration of love and affection for L. A. Quarles, and on condition that she should give him a home during his lifetime and pay him the sum of $33.33 monthly during his life. The instrument also constituted a will, and by its terms provided that after the death of the wife his property should descend to his five children in equal parts. Subsequent to the date and record of this instrument, John Quarles, in the year 1915, contracted debts to various parties in the town of Gordon, among whom were H. H. Hardin and J. W. Conway. Default being made in the payment of these debts, suits were filed thereon by Hardin and Conway and attachments issued which were levied upon the lands conveyed by John Quarles. In these suits judgments were rendered in favor of Hardin and Conway against John Quarles for their respective debts with foreclosure of the attachment liens. Orders of sale were issued upon these judgments and placed in the hands of the sheriff for execution. Thereupon these two suits were filed by L. A. Quarles, joined by her husband, John Quarles, to enjoin the sale. From adverse judgments, Mrs. Quarles and husband prosecute these appeals. The causes were tried before juries and submitted upon special issues. In Quarles v. Hardin, these findings were made by the jury:

“No. 1. Was the instrument in writing in evidence before you, dated January 25, 1915, and signed by John Quarles, made by him with the intent to protect the property of said Quarles from future debts and with intent to defraud future creditors? Answer: Tes.
“No. 2. Eliminating the property set out in the instrument dated January 25, 1915, was John Quarles solvent or insolvent at the time he contracted the debts due defendant for lumber and material? Answer: Yes, insolvent.
“No. 3. Did John Quarles at the time he bought entertain the intent to pay for the materials purchased from'- the defendant, or did he intend to defraud defendants out of their debt? Answer: Yes, he intended to defraud defendants out of their debt.
“No. 4. If John Quarles was insolvent at the time he contracted the defendant’s debt, and if he did not intend to pay for the material obtained from the defendant at the time he purchased the same, then did Mrs. Quarles know of his insolvency and of his intention not to pay for said material? Answer: Yes.
“No. 5. Has the material furnished by defendant to plaintiff John Quarles that went into the improvements on the land enhanced the value of the same? If so, how much? Answer: Yes, $850.”

In Quarles v. Conway, these findings were made:

“No. 1. Was the instrument in writing in evidence before you, dated January 25, 1915, and signed by John Quarles made by him with the intent to protect the property of the said John Quarles from future debts and with the intent to defraud future creditors? Answer: Yes.
“No. 2. Has the material that was furnished by defendant Conway to the plaintiff John Quarles, that went into the improvements on the lands now claimed by L. A. Quarles, if any did go into said improvements on the lands, enhanced the value of the same? If so, how much? Answer: Yes, to the amount of the cost of material furnished and the money advanced for the improvement of the place, to wit, $264.-

It is insisted by appellants that there is1 no evidence, or at least no sufficient evidence, to support the finding that the conveyance of January 25, 1915, was made by John Quarles with intent to protect his property from future debts, and with intent to defraud his creditors.

It is quite true that no legal presumption of fraud would arise from the mere fact that debts were contracted subsequent to the execution of the conveyance (Searcy v. Gwaltney Bros., 36 Tex. Civ. App. 158, 81 S. W. 576; Bump on Fraudulent Conveyances [2d Ed.] p. 308), but upon consideration of all the facts adduced it is ample to support the finding indicated. There is no direct evidence of such fraudulent intent, but when all of the facts and circumstances surrounding and connected with the transaction are considered, they tend very strongly to show that the conveyance was conceived in fraud by John Quarles and executed for the purpose of defrauding his subsequent creditors. Fraud is almost always difficult to prove by positive evidence and may be proved as well by circumstances. Day v. Stone, 59 Tex. 612; Schmick v. Noel, 72 Tex. 1, 8 S. W. 83; Giddings v. Steele, 28 Tex. 732, 91 Am. Dec. 315; Linn v. Wright, 18 Tex. 317, 70 Am. Dec. 282; Layton v. Hall, 25 Tex. 204. The evidence in the cases is quite lengthy, and we deem it unnecessary to detail same and point out the facts and circumstances which in our opinion tend to establish; the fraud. It is. sufficient to say that we sustain the finding of the jury upon this issue. It is well established that a deed executed with the fraudulent intent and purpose which the jury has found prompted the execution by John Quarles of his deed to his wife is void as to subsequent creditors. Bergson v. Dunham, 40 S. W. 17; Cole v. Terrell, 71 Tex. 549, 9 S. W. 668; Dosche v. Nette, 81 Tex. 265, 16 S. W. 1013; Raymond v. Cook, 31 Tex. 385; Rives v. Stephens, 28 S. W. 707. Neither Hardin or Gonway had any actual knowledge, of the existence of the conveyance by Quarles to his wife until after their debts had been created, and the question arises as to the effect upon their rights by reason of the fact that such conveyance was immediately filed for record in the office of the county clerk at Stephenville in Erath county where the land is situate, and that their debts were created after such registration.

The evidence shows that Quarles' was a farmer and resided upon the land. His home was 6 or 8 miles from the little town of Gordon in Palo Pinto county, where for many years he had traded and marketed Ms products and established a good reputation for honesty and uprightness. He had always paid his debts, and his1 credit was good. The merchants and traders there were glad to extend him credit. Hardin was a lumber dealer in Gordon and his debt was for lumber and other materials furnished to John Quarles and used by him in the construction of a residence upon the land which he had theretofore conveyed to Mrs. Quarles and in which he and Mrs. Quarles and their children resided. Conway was a merchant doing business in Gordon, and Ms debt was for supplies furnished to John Quarles during 1915 to support his family and operate the farm, except the sum of $125, which was paid, for Quarles, to the carpenter who erected the above-mentioned residence. Some of the debt was also for material used in the building of said house. Gordon, in Palo Pinto county, is 25 or 30 miles from Stephenville, the county-seat of Erath county, where the conveyance in question was registered. Travel between the two towns was very limited. The facts recited 'in some measure show the strong equity reflected by this record in favor of the appellees upon the question of the effect upon •their rights by the prompt registration by Quarles of the conveyance in question, but perhaps they have no bearing upon the legal question involved, namely: Are Hardin and Conway precluded from setting aside the fraudulent conveyance of Quarles by the fact that their debts were created subsequent to its registration? The pertinent provisions of the statutes are as follows:

Article 6828, R. S., provides that:

“Every conveyance, covenant, agreement, deed, deed of trust or mortgage in this chapter mentioned, or certified copies of any such original conveyance, covenant, agreement, deed, deed of trust or mortgage copied from the deed or mortgage records of any county in the state whore the same has been regularly recorded, although the land mentioned may not have been situated in the county where such instrument was recorded, and which shall have been acknowledged, proved or certified according to law, may be recorded in the county where the land lies; and when delivered to the clerk of the proper court to be recorded shall take effect and be valid as to all subsequent purchasers for a valuable consideration without notice, and as to all creditors from the time when such instrument 'shall have been so acknowledged, proved or certified and delivered to such clerk to be recorded, and from that time only: Provided, however, that all certified copies filed and recorded under the provisions of this article shall take effect and be in force from the time such certified copy was filed for record; and provided, further, that nothing in this shall be construed to make valid any instrument which was at tho time of its execution from any cause invalid.”

Article 6842, R. S., provides that:

“The record of any grant, deed or instrument of writing authorized or required to be recorded, which shall have been duly proven up or acknowledged for record and duly recorded in the proper county, shall be taken and held as notice to all persons of tho existence of such grant, deed, or instrument.”

The question presented has never been directly passed upon by the courts of this state, so far as we have been able to ascertain. Appellants contend that the record of John Quarles’ deed to his wife was constructive notice to all of its existence, and since the debts of appellees were created with such notice they cannot set the deed aside. The cases most strongly supporting this contention are Lewis v. Simon, 72 Tex. 470, 10 S. W. 554; Martin v. Jourdanton Mercantile Co., 185 S. W. 583; Monday v. Vance, 51 S. W. 346; De Garca v. Galvan, 55 Tex. 53. In Lewis v. Simon, Solomon Simon made a voluntary conveyance of his property to his wife. Lewis claimed title thereto under attachment proceedings levied thereon upon a debt contracted above five months after the accrual of the rights' of the wife. Her deed was recorded on .the day of its date. Judge Gaines in that case discusses what is now 3967, R. S. 1911, as it relates to -the rights of existing and subsequent creditors to set aside a voluntary conveyance and makes no specific reference to the registration statutes then in force. It was held that there was no evidence to warrant a judgment for Lewis. The rule announced in Wait on Fraudulent Conveyances that “as a general rule a subsequent creditor who acquired his claim with knowledge or notice of the conveyance sought to be annulled cannot attack it as fraudulent,” is quoted with approval, but we think the decision in that case rested upon the conclusion that the evidence as a whole failed to disclose such fraud in the execution of the conveyance as would authorize subsequent creditors to set it aside. We do not think it was intended to base the decision upon the proposition alone -that the debt was created subsequent to the registration of the deed. Rather, that what was said in this connection was in passing -upon the issue of fraud vel non sufficient to authorize a subsequent creditor to set the deed aside. A radical distinction between Lewis v. Simon and the cases at bar lies in the fact that there the evidence considered as a whole failed to disclose the existence of such fraud upon subsequent creditors in the execution of the deed as would authorize them to attack it, whereas here the jury has found that such fraud did exist upon John Quarles’ part when he made the conveyance to his wife, and this finding we approve. Lewis v. Simon may he further distinguished in this important particular, viz.: What is now article 6828 of the chapter relating to registration, at that time read:

“Every conveyance, covenant, agreement, deed, «deed of trust or mortgage in this chapter mentioned, which shall be acknowledged, proved or •certified according to law, and delivered to the cleric of the proper court to be recorded, shall take effect and be valid as to_ all subsequent purchasers for a valuable consideration, without notice, and as to all creditors, from the time when such instrument shall be so acknowledged, proved or certified, and delivered to such clerk to be recorded, and from that time only.” Article 4834, R. S. 1879.

In 1895 that article was amended and appears in R. S. 1911 as article 6828, and is quoted in full above. The last proviso in the amended article expressly provides that nothing in the same shall be construed to make valid any instrument which was at the time of its execution from any cause invalid. Under the jury’s finding, the deed from John Quarles was invalid as to the creditors whom he proposed to defraud, and by virtue of the proviso indicated, its registration did not validate same. If it was invalid as to them, its registration did not affect such subsequent creditors with constructive notice thereof. Stiles v. Japhet, 84 Tex. 91, 19 S. W. 450. In Martin v. Jourdanton Mercantile Co., supra, neither the pleadings nor the evidence showed that the conveyance was made to shield the property from future debts, and anything that may have been said as to the effect upon the rights of subsequent creditors by the registration of the deed prior to the creation of such debts was not necessary to a decision. In Monday v. Vance, supra, the parties were subsequent purchasers with record notice of the prior deed, and the right of a creditor was not before the court. Furthermore, the rights of the parties in that case, as affected by the law of constructive notice, were governed by article 4334, R. S. 1879. In Cole v. Terrell, 71 Tex. 549, 9 Si Wl 668, the right of a subsequent creditor to set aside a conveyance made with intent to defraud him is affirmed and the true basis of the decision in De Garca v. Galvan, supra, is thus pointed out:

“The cases, 55 Tex. 53, De Garca v. Galvan, and 65 Tex. 658, Willis & Bro. v. Smith, where the general proposition is given that subsequent creditors cannot complain, seem to have been cases where the conveyances were attacked without producing evidence of intent to defraud the complaining creditors.”

As is indicated above, the decision in Lewis v. Simon is subject to the distinction thus pointed out in Cole v. Terrell.

Passing now from the cases which seem most strongly to support the contention of appellants, we find in Dosche v. Nette, supra, that the court recognized the right of a creditor to set aside a voluntary conveyance executed with the view of shielding the grantor’s property from future debts. The deed in that case was executed and recorded prior to the accrual of the rights of the attacking creditor. It may be noted, too, that this case was decided prior to the amendment of article 4334, R. S. 1879. The court did not discuss the effect of the registration of the deed upon the rights of the creditor, but held as follows:

“Our opinion is that the court should have instructed the jury, as requested, that if the conveyance was made with a view to protect the property of the donor from future debts and with intent to defraud such creditors, it would be void.”

In Sikes v. Bank, 197 S. W. 227, it was held that subsequent creditors could not be heard to say that they had no notice of a deed alleged to have been executed to defraud them because the deed was of record. But it was held that the evidence was insufficient to show that the deed was executed in fraud of the rights of the creditors. It being a valid deed, not vitiated by fraud, the provisions of article 6828, R. £>., with reference to notice, were of course applicable. A study of the opinion in that ease will disclose that it seems to recognize the right of a subsequent creditor to set aside a conveyance upon the ground of fraud existing at the date of its execution; that such right is not affected by any constructive notice afforded by the record of the deed, the registration of the deed not operating to give notice by virtue of the proviso to article 6828.

We therefore hold that in view of the fraudulent purpose with which John Quarles executed the deed to his wife, existing at the date of its execution, the same was invalid as to subsequent creditors, and their rights were not impaired by. the fact that the deed was immediately registered in the county where the land lay.

As to those assignments relating to the good faith of Mrs. Quarles, it is sufficient to say that the intent of the grantee is immaterial in a voluntary conveyance fraudulent as to the grantor’s creditors. 20 Gyc. 469. The consideration for the deed was executory, and if it had been shown that Mrs. Quarles had complied with her agreement to provide a home for her husband and pay him the sum of $33.33 per month she might be considered a purchaser for value, in which case her intent would be material, But her own testimony shows that she did not provide the home in ■which he is residing. It shows that this home was built out of material purchased by John Quarles from Hardin and Conway, for the payment of which John Quarles became personally liable, and appellees have recovered a personal judgment against him therefor and are now seeking to enforce it. She also testified that it was John’s business to pay for the house, and that she expected him to do so out of the crops. By her testimony she shows that she did not comply with one of the conditions upon which the deed was executed, and therefore cannot be considered a purchaser for value. But if she be considered a purchaser for value the evidence is sufficient to justify the inference that she was a party to the fraud which her husband has attempted to perpetrate, or at least, that the facts were sufficient to put her upon notice so as to deprive her of the rights of a bona fide purchaser. Wright v. Linn, 16 Tex. 34. If Mrs. Quarles desired these issues submitted to the jury, request therefor should have been made in writing. In the absence of such request the issues will be presumed to have been resolved against her by the trial court in such manner as to support the judgment. Article 1985, R. S. No such request was made in the Conway Case. In the- Hardin Case special issues 2 and 3 requested by the Quarleses bear upon the issue of Mrs. Quarles’ participation in the fraud, but were not in proper form, and the trial court was authorized to refuse same. There was no request in the Hardin Case at all for the submission of the issue of notice to Mrs. Quarles at the time of the execution of the deed of John Quarles’ fraudulent purpose in executing the same. It follows, therefore, in this condition of the record, that it must be assumed that the issues of participation by Mrs. Quarles in the fraud and notice of her husband’s fraudulent purpose were both found against her by the trial court.

Various assignments complain of the overruling of exceptions to the issues submitted. They present no reversible error. Possibly some of the exceptions should have been sustained, but if so, overruling same was harmless error.

In both of these cases temporary injunctions were issued enjoining the sale of the property. Upon final hearing the judgment in the Hardin Case dissolved the temporary injunction; the conveyance to Mrs. Quarles was canceled and held for naught, and a personal judgment rendered against Mrs. Quarles for $850 as the value of the materials furnished; also against John and L. A. Quarles and the sureties upon the injunction bond for $72.33, being 10 per cent, damages. It is admitted by Hardin that the sum of $850 is excessive, and that it should have been rendered for only $723.35. In the Conway Case judgment was entered as follows: Eirst, dissolving the temporary injunction; second, against John and L. A. Quarles and the sureties upon the injunction bond in the sum of $781.10; third:

“In accordance with the verdict of the jury in response to special issue No. 2, the court finds that in the event that said deed or instrument in writing dated January 25, 1915, from John Quarles to Lula Quarles is a valid deed, then that the separate property of the said L. A. Quarles has been enhanced in value by the stuff pur-chased from said J. W. Conway and placed on said separate property to the amount of $264.10, and the court is therefore of the opinion that the said J. W. Conway should have judgment against the said L. A. Quarles for said sum and interest, even though said deed should finally be held to bo valid. It is therefore ordered, adjudged, and decreed by the court that in tlie event said deed- be held to be valid, nevertheless, the said J. W. Conway shall have and recover of and from the said L. A. Quarles the sum of $264.10, together with 6 per cent, interest thereon from January 1, 1916, for which let execution issue, and the execution provided for in subdivision 3 of this judgment shall bo levied on the lands and chattels of the said L. A. Quarles.”

There is nothing in the record, evidencing that the suit was for delay, and there was no authority to assess a penalty of 10 per cent, in the Hardin Case. These were not suits to enjoin the collection of money, the collection of a debt, or the execution of a money judgment, but simply to enjoin the sale of certain property which it was claimed by Mrs. Quarles was not subject to sale to satisfy the judgments theretofore rendered against John Quarles. The judgments will be reformed in proper manner, and as thus reformed will be affirmed.

Judgment in the Hardin Case will be entered as follows: (1) Dissolving the temporary injunction. (2) That plaintiffs take nothing by their suit. (3) That the conveyance in question is void as to Hardin, and that the property conveyed thereby (except the homestead) is subject to sale in satisfaction of the judgment theretofore rendered wherein Hardin obtained judgment against John Quarles for his debt with foreclosure of his attachment lien. (4) Taxing costs against the plaintiffs. A similar judgment will be entered in the Conway Case. These judgments will permit the sheriff to proceed with the execution of the process in his hands, issued upon the judgments originally rendered against John Quarles, and adequately and fully protects the rights of Hardin and Conway and of purchasers of the property at the sheriff’s sale. The conveyance in question is valid as between the parties thereto. The costs of appeal will be taxed against appellants.

Reformed and affirmed.
      @=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    YOUNGBLOOD v. INDEPENDENT ORDER OF PURITANS.
    (No. 746.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 18, 1917.)
    Courts <S=»121(2) — Jurisdiction — Amount Involved.
    Action in the county court will be dismissed for want of jurisdiction; the petition, though to recover $500, on its face disclosing that no more than $70 can be recovered.
    Appeal from Taylor County Court; E. M. Over shiner, Judge.
    Action by Mrs. Evie Youngblood against the Independent Order of Puritans. Erom an adverse judgment, plaintiff appeals.
    Affirmed.

      Will S. Payne, of Abilene, for appellant. Kirby & King, of Abilene, for appellee.
   HIGGINS, J.

Appellant sued appellee upon a policy of insurance seeking a recovery of $500. The petition upon its face discloses that a recovery for more than $70 could not he had. A special exception was addressed to the petition, asking that the cause he dismissed for want of jurisdiction. The exception was sustained, and the cause dismissed. In this there was no error. Continental Casualty Co. v. Morris, 46 Tex. Civ. App. 394, 102 S. W. 773; Malin et al. v. McCutcheon, 33 Tex. Civ. App. 387, 76 S. W. 587; Telegraph Co. v. Arnold, 97 Tex. 365, 77 S. W. 249, 79 S. W. 8.

Affirmed.
      <gz=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HIBDON v. MOYER et al.

      (No. 734.)

    (Court of Civil Appeals of Texas. El Paso.
    Oct. 18, 1917.)
    1. Libel and Slander <&wkey;15 — Libel Pee Se —Publication.
    An article entitled “Misstatement® or (?),” and charging untruthfulness, is libelous per se.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Libel.]
    2. Libel and Slander <&wkey;33 — Evidence-Special Damages.
    Under Rev. St. 1911, art. 5596, defining libel as a defamation expressed in printing or writing tending to injure the reputation of one who is alive, and thereby expose him to public hatred or to impeach his honesty, etc., and thereby expose such person to hatred, ridicule, or financial injury, an article being libelous per se, in that it charged plaintiff with untruthfulness, it was unnecessary for plaintiff to offer evidence of special damages to authorize recovery.
    3. Libel and Slander <&wkey;16 — Charging Natural Defect — Exposure to Ridicule.
    Accusing one of having “brainstorms,” even if not libelous per se, is a charge of a natural defect, and exposes the one accused to ridicule.
    4. Libel and Slander <&wkey;>119 — Mental Suf-ferin g — Statute .
    Damages for mental anguish caused by publication of matter actionable under Rev. St. 1911, art. 5595, defining libel is recoverable regardless of whether there was any other injury or damage.
    Appeal from District Court, Eastland County; Thos. L. Blanton, Judge.
    Suit by John Hibdon against E. J. Moyer and others. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    J. R. Stubblefield, of Eastland, and Ben Palmer, of Pecos, for appellant. J. A. Buck and Ross & Hubbard, all of Pecos, and Scott & Brelsford, of Eastland, for appellees.
   HIGGINS, J.

Hibdon, appellant, the editor and owner of “The Enterprise,” a newspaper, brought this suit against the editor and owners of “The Pecos Times,” another newspaper, to recover damages alleged to have been sustained by the publication in the last-named paper of an alleged libelous ar-tide. The article is headed thus, “Misstatements or (?),” and-reads thus:

“A number of friends of the Editor and of The Times have asked why we ignore the attacks of the Enterprise from week to week. It’s simple; in the first place, we do not intend to prostitute the columns of this paper by replying to such baseless statements that he sees fit to publish; secondly, we know that our readers do not care to be bored by this kind of whimpering prattle. Another thing: W ere he to confine himself to the mere borders, of that lofty virtue, truth, we might possibly have had cause to plead justification. This, however, he persistently refuses to do. So, gentle reader, do not worry. We do not intend to feed your minds on such vituperations from week to week, for this is our first and last answer to the Enterprise (?).
“In last week’s issue he saw fit to attack our circulation, and every point he sought to gain was approached by a misrepresentation. We know not, nor do we care, who his informant was or is — he undoubtedly was at one time connected with The Times — but whoever it was, he did not know the facts. This we can prove.
“He says that three-fourths of our circulation goes out of the state of Texas. Well, if it did, we would feel a just pride in the fpct, for what good is a newspaper if it does not preach the gospel of its town and community; and how can it thus preach it unless it goes forth? But such is not the truth. We print for circulation (bona fide subscribers) 1,200 copies weekly — 300 to Pecos City alone, and if it does not enter all families of the city of Pecos our population figures wrong. In the territory from which our merchants draw a big per cent of trade we have 684 subscribers, while in the state of Texas we number valuable readers an even 800. The remainder are scattered over the United States, including nearly every state, Canada, Costa Rica, South America, and one Korea, in Asia.
“Now, we firmly call the gentleman’s hand and ask that he produce the proof that three-fourths of our circulation goes out of the state.
“ ‘The Times is forced upon its readers,’ or words to that effect, is what he insinuates. This, besides being unkind and underhanded, is false. Our paper is forced upon no one. Our policy since' taking charge on the 1st day of January, this year, has been to take off every name when notified that the paper is no longer desired. We are glad to state that this happens but seldom. We possibly could say something along this line in regard to a certain paper that made its debut in Pecos recently, but right now we are defending our own position, not condemning that of others.
“He says, ‘The Enterprise is also able to give you “publicity” among the better class.’ This phrase is an enigma to us. We doubt not that the Enterprise numbers among its readers some of our best citizens, friends of both papers; but if this sentence is meant to cast reflection on our readers, and relegate them to a lower class of mortals, we give the gentleman the lie direct.
“He says the advertisers are entitled to know certain things. We indorse this statement from the bottom of our heart. They know our large circulation, and that they recognize its value to them is evidenced by one little glance through our columns. Numbers is what they want, and The Times can produce this feature.
“Every advertisement in The Times is contracted for, and all are treated alike. We are prepared to prove this, too.
“But there is one thing that Pecos business men might possibly be interested in if they’re anxious to be treated square by a man they are helping. It is this: On the editorial page of the Enterprise is the legend: ‘Display advertising, 12% cents per column inch; readers •5 cents per line each insertion.’ We do not doubt that he has been collecting this amount from his home advertisers, but the next time ask him .how much he collects from foreign advertisers that occupy space in his paper weekly. East week 107 (low approximate) inches of patent medicine advertising, .also ads. of Post Toasties and Oastoria in big display, and he is running these from week to week absolutely free. Why? It strikes us that if any discrimination is to be made by a home enterprise, it should be in favor of home people. Por all advertising out of this vicinity The Times has a written contract, and our own people can have and have had space at the same rates, the only difference being that we do not require written contracts from them — in other words, our ■confidence in them is supreme. This,-we feel, will be news to some of the advertisers who are paying hard dollars while foreign advertisers pay nothing for Enterprise space.
“Somewhere in the good book is a saying about motes and beams; we respectfully advise our contemporary a careful perusal of same. We fear, though, like everything else, he would misunderstand.
“Another thing calling forth brainstorms from this gentleman is the ownership of The Times. What gets our nanny is, what’s he going to do when he finds out.
“Now, friends, we have only glided over the surface of this subject, the above being merely a defense'and a comparison. It’s our first offense and will be our last, unless extenuating circumstances arise, for, in future, we shall wholly ignore such ungentlemanly efforts to disparage a paper whose efforts for nearly 30 years has been for the uplift and prosperity of the town and the men who support it by a liberal patronage.”

The article appeared in the issue of May 12, 1916.

A peremptory instruction to find for defendants was given, in accordance wherewith verdict was returned and judgment rendered.

The article unquestionably, charges appellant with untruthfulness. This being its nature, it is libelous per se. Fleming v. Mattinson, 52 Tex. Civ. App. 476, 114 S. W. 652; Democratic Pub. Co. v. Jones, 83 Tex. 307, 18 S. W. 652; Mitchell v. Spradley, 23 Tex. Civ. App. 43, 56 S. W. 134; Knapp & Co. v. Campbell, 14 Tex. Civ. App. 199, 36 S. W. 765.

We cannot agree with appellee’s contention that appellant has admitted the truth of this libelous matter and that this warranted the peremptory instruction.

The article being libelous per se in the particular indicated, it was unnecessary for plaintiff to offer evidence of special damage in order to authorize a recovery. Bailey v. Chapman, 15 Tex. Civ. App. 240, 38 S. W. 544; Belo & Co. v. Smith, 40 S. W. 856.

Furthermore, the rules of the common law were altered by article 5595, R. S. 1911. In Guisti v. Galveston Tribune, 105 Tex. 497, 150 S. W. 874, 152 S. W. 167, Judge Dibrell, in construing this article said:

“It is immaterial that the publication complained of is not libelous per se; it is libelous and actionable, nevertheless, if by such innuen-does as may not extend but simly explain the effect and meaning of the language used and the identity of the person libeled, the publication is of such character as tends to injure the reputation of plaintiff and expose her to public hatred, contempt, or ridicule, or tends to impeach her honesty, integrity, virtue, or reputation. * * * We think it clear that in the enactment of the law the purpose was not only to make definite what constitutes actionable libel in this state, but to materially modify the doctrine of the common law upon that subject. By the terms of the present law, a libelous publication, contrary to the common-law rule, becomes actionable without the proof of malice, whether it is or not libelous per se. Under the present law, it is not necessary to the right to maintain an action for a publication not libelous per se to allege or prove special damages. Walker v. San Antonio Light Pub. Co., 30 Tex. Civ. App. 165, 70 S. W. 557. In this particular the common-law rule has been modified. Again, at common law, where the libel was not actionable per se, damage for mental anguish was recoverable, if at all, only when proof had been made of other injury or damage, but the contrary is the rule under the present law.”

The article implies that plaintiff is subject to “brainstorms.” This clearly implies an uneven mental balance, and its usual significance is derisive. It is immaterial, under the authority last quoted, whether or not it is libelous per se. To accuse plaintiff of having “brainstorms” is the publication of a natural defect and exposes him to ridicule.

Damages for mental anguish caused by the publication of matter actionable under the article is recoverable regardless of whether there was any other injury or damage. Guisti v. Galveston Tribune, supra.

The peremptory instruction was improperly given. Reversed and remanded.
      £^?For other eases see same’topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    LEMONS v. EPLEY HARDWARE CO. et al.
    (No. 733.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 18, 1917.)
    1. Judgment &wkey;>768(2) — Abstract — Sufficiency.
    Where the abstracts of judgment of a justice court recited the amounts of the judgments incorrectly, no lien was created by filing and registry thereof, under Rev. St. art. 5612, providing that an abstract of judgment shall show the amount for which it, was rendered.
    2. Judgment &wkey;>768(2) — Amount—Interest— Attorney’s Fee — “Costs.”
    Accrued interest and attorney’s fees awarded plaintiff are part of the principal sum for which the judgment is rendered, and not a part of the costs.
    Appeal from District Court, Dawson Comity; W. R. ^pencer, Judge.
    Suit by P. W. Lemons against the Epley Hardware Company and others. From an adverse judgment, plaintiff! appeals.
    Reversed and rendered.
    McGuire & Warren, of Lamesa, for appellant. S. W. Pratt, of Stanton, for appel-lees.
   HIGGINS, J.

On September 15, 1909, there was rendered in cause No. 222 in a justice court of Martin county a judgment in favor of appellees against D, W. Barger for tlie sum of $37.50 principal, accrued interest, $6.59, and attorney’s fees of $4.41, aggregating the sum of $48.50, together with interest thereon from date at the rate of 10 per cent, per annum and all costs. The costs in this cause amounted to $3.90. On October 20, 1909, an abstract of this judgment was filed for record in the county clerk’s office of Dawson county and duly recorded and indexed. The abstract recites that the amount of the judgment was $37.50, the rate of interest 10 per cent., the amount of costs $14.75, and the total amount due as $52.25.

On September 15,1909, there was rendered in cause No. 223 in a justice court of Martin county another judgment in favor of ap-pellees against D. W. Barger for the sum of $35 principal, and $6.09 accrued interest, and the sum of $4.11 attorney’s fees, aggregating the sum of $45.20, with interest thereon from date until paid at rate of 10 per cent, per an-num, and all costs. The costs in this case amounted to $3.90. On October 20, 1909, an abstract of this judgment was filed in the office of the county clei’k of Dawson county, and duly recorded and indexed. The abstract recites that the amount of the judgment was $35, the rate of interest 10 per cent., the amount of costs $14.95, and the total amount due as $49.95. The judgments in the two cases were entitled to no credits at the time the abstracts were filed and recorded.

The appellant, Lemons, a remote vendee of Barger, brought this suit to remove the cloud cast upon his title to certain land by the record of these abstracts. B’rom an adverse judgment Lemons appeals. Article 5612, R. S. provides, among requisites, that an abstract of judgment shall show the amount for which it was rendered and the amount still due upon the same. Construing this statute, the courts have uniformly held that a substantial compliance therewith must be shown in order to fix a lien. In cause No. 222 judgment was rendered for $48.50, being the aggregate amount of the principal, accrued interest, and attorney’s fees. The costs were $3.90. The abstract recites that the amount of the judgment was $37.50. This was manifestly incorrect. The amount of the costs was also incorrectly stated. Like errors occur in the abstract of the judgment in cause No. 223. It is useless to speculate how the error occurred. The accrued interest and attorney’s fees were part of the principal sums for which the judgments were rendered, and not a part of the costs. If the justice, in preparing the abstracts, treated these items as a part of the costs, it does not aid appellees.

The error in the abstracts in the statement of the amount for which the judgments were rendered is there, and it is immaterial how it occurred. Under the authorities it must be held that the record of the abstracts fixed no lien. Glasscock v. Stringer, 32 S. W. 920; Wicker v. Jenkins, 49 Tex. Giv. App. 366, 108 S. W. 188.

Reversed and rendered.
      @5»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    NATIONAL BANK OF GARLAND v. GOUGH.
    (No. 7805.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 3, 1917.)
    1. Tbial <&wkey;>382 — Without Jury — Duty to Pass on Issues of Pact.
    On trial without a jury, it was the trial court’s right and duty to pass on the issues of fact.
    2. Abstracts of Title <s&wkey;3 — Liability of Ab stractor — Contractual Character.
    Though an abstractor is liable for damages resulting from errors or defects in an abstract compiled, furnished, and certified to by him to be true, etc., his liability is contractual, therefore to be measured by the nature, extent, and terms of the employment.
    3. Abstracts of Title <&wkey;3> — Liability of Abstractor — Questions of Pact.
    In suit against an abstractor for damages from Ms negligence in the preparation of an abstract, whether or not defendant contracted only to compile abstract covering lands west of a road, and whether he performed, were issues of fact.
    4. Abstracts of Title <&wkey;3 — Liability of Abstractor — Contract — Sufficiency of Evidence.
    In suit against an abstractor for damages from his negligence in the preparation of an abstract, evidence held to support the trial court’s finding that defendant contracted only to compile abstract covering lands west of a road.
    5. Appeal and Error <&wkey;690(4) — Bills of Exception to Admission of Testimony-Necessity of Showing Evidence.
    Bills of exception to the admission of testimony which fail wholly to show the facts elicited from the witness are insufficient.
    6. Abstracts of Title <&wkey;3 — Liability of Abstractor — Evidence—Immateriality.
    In suit against an abstractor for damages resulting from his negligence in preparing an abstract, testimony as to the indebtedness of the. owner of the land to plaintiff bank, being immaterial as to defendant’s negligence in the compilation of the abstract, was inadmissible.
    7. Appeal and Error &wkey;>1054(l)^-HARMLESS Error — Evidence.
    Error in the admission of immaterial testimony was not prejudicial, where the trial was before the court, particularly where neither of the grounds of the court’s judgment could have been based upon the evidence.
    Appeal from Collin County Court; H. L. Davis, Judge-
    Suit by the National Bank of Garland against J. R. Gough. Prom a judgment for defendant, plaintiff appeals.
    Affirmed.
    Claude M. McCallum, of Dallas, for appellant. W. R. Abernathy, of McKinney, for appellee.
   RASBURY, J.

This is an appeal from the judgment of the county court in favor of ap-pellee in a case originating in the justice court, wherein appellant sued appellee for $116.20 damages, alleged to have resulted from the negligence of appellee in the preparation of an abstract of the title to certain lands in Collin county, the precise ground of negligence being that appellee, who was engaged in the business of compiling abstracts of title to lands, was employed to compile such an abstract to 40 acres of land in the Henry Maxwell survey in Collin county, title to •which was claimed by Prank Sachse and in pursuance of which he did compile and deliver to appellant an abstract, which he certified was a complete abstract of all conveyances or other instruments affecting said 40 acres, and relying upon which appellant purchased said 40 acres, paying therefor $70 per acre, but notwithstanding which, it subsequently developed there was on record in Collin county at the time appellee certified and delivered said abstract a deed by Prank Sachse conveying 1.66 acres of said land to J. K. Sachse, unknown to appellee prior to or at the time of its purchase, and by reason of which he was damaged in the price paid therefor. Upon request of appellant the county judge, to whom the case was submitted upon the law and the facts, filed conclusions in both respects, and from which the following essential facts stated in our own language and material to the issues presented are deducible: Frank Sachse on and prior to April, 1908, was the owner of a 40-acre tract of land in the Henry Maxwell survey in Collin county, at which time he conveyed to J. K. Sachse 1.66 acres thereof. The tract of land is intersected by a county road in such manner as to separate in a triangular shape the 1.66 acres from the balance of the tract, leaving the -small tract east of the county road, and the remainder west thereof. In November, 1911, Prank Sachse was insolvent and indebted to appellant in the sum of $1,960, at which time appellant contracted with Sachse to purchase all his interest in said 40 acres for $2,800. In pursuance of the contract Sachse and appellant’s cashier, A. R. Davis, called on appellee, who was then, and had been for several years, engaged in the abstract business at McKinney, and contracted with appellee to compile an abstract of the title to the lands in Sachse appellant’s cashier referring appellee to Sachse for a description of the land he desired abstracted. Sachse directed appellee to abstract only that portion of the 40 acres lying west of the public roa.d, which he did, omitting any reference therein to that portion sold to J. K. Sachse, and forwarded the abstract to appellant, after examination of which, Prank Sachse conveyed the entire 40 acres to said A. R. Davis, appellant’s cashier, loin a consideration of $2,800> of which amount about $700 was paid in cash, $840 by assuming an existing debt for that amount against the land, and about $1,260 by crediting that amount on Sachse’s debt to appellant. Subsequently Davis conveyed the land to appellant for the same consideration. When appellant learned of the conveyance of the 1.66 acres this proceeding was commenced with the result stated.

After appellant filed its briefs in this court objections to the manner and form of presenting appellant’s case therein and to the consideration of certain assignments of error were filed. It is stated by counsel for appellant in his reply thereto and by the clerk of this court that all such objections are waived by counsel for appellee. Accordingly, we pretermit any further discussion of such objections, and will consider all issues presented in the brief on their merits.

By authority of its first assignment and various propositions advanced thereunder appellant, in substance, asserts that it appears from the evidence, without controversy, that appellee was negligent in preparing the abstract relied upon by appellant, and that as a consequence appellant was and is entitled to judgment. There is in the record, we believe, no material uncontroverted fact. Appellant’s theory of the transaction as disclosed by its testimony was that appellee was employed to compile a complete abstract of title to the 40 acres of land. Appellee’s theory as disclosed by his testimony was that he was employed to compile an abstract of title covering only that portion of the 40 acres of land lying west of the county road. Davis and Sachse testified in support of appellant’s theory of what the contract of employment was. Appellee testified in support of his theory. The conflict was presented to the court, a jury not having been demanded, who resolved it in favor of appellee. It was the trial court’s right and duty to pass on the issues of fact. Under the finding of the court on the fact issues it occurs to us correct judgment was entered.

While it is not to be denied that an abstractor is liable for any damages resulting from errors or defects in an abstract compiled and furnished and certified to by him to be true, etc., yet his liability is contractual, and as a consequence is to be measured by the nature, extent, and terms of the employment. Decatur Land, Loan & Abstract Co. v. Rutland, 185 S. W. 1064; 1 C. J. 368; 1 R. C. L. 92. The application of the rule in the instant case is that the court found as a fact that appellee contracted only to compile abstract covering the lands west of the county road, and further found as a fact that appellee complied fully with his contract. Whether he did or not was purely an issue of fact, which, when determined as it was in this case, discloses no legal liability.

By the second assignment it is asserted that the judgment of the court is against the preponderance of the testimony, for which reason it should have been set aside. It will serve no good purpose to insert in this opinion in hsec verba the testimony of Davis, Sachse, and Gough on the issue of what were the terms of the latter’s employment. It is enough, in order to disclose the state of the testimony, to say that Davis and Sachse testified without qualification and in detail that appellee was employed to prepare for Davis an abstract to the 40 acres, and that appellee testified without qualification and in detail that while Davis employed him to prepare the abstract, he referred appellee to Sachse for a description of the land, and that in that connection Sachse drew a rough outline of the 40 acres, portraying its intersection by the county road, and directed ap-pellee to omit from the abstract the 1.66 acres east of the road. Thus it is seen that the statements of Davis and Sachse on the one side and appellee on the other are irreconcilably In conflict. Preponderance of evidence is said to be the greater weight of the evidence, or that which is more credible and convincing to the mind, or which best accords with reason and probability. Bouvier. It is also said that “it has become almost a maxim that witnesses are not counted, but that their testimony is weighed.” Jones Ev. § 900. Other than the bare statements of the witnesses named there is in the record no fact or circumstance bearing upon the disputed issue that would serve us as a basis for holding that the court’s judgment is against the preponderance of the evidence because the statements of Davis and Sachse are more credible and convincing and better accord with reason and probability than the statements of appellee. It cannot be said to be incredible or unreasonable or improbable that Davis or Sachse would desire omitted from the abstract land previously sold to another, since Sachse could not convey nor Davis by Saehse’s deed acquire title thereto. For such reasons we believe the evidence fails to present a case authorizing us to set aside the judgment on the ground invoked.

The fourth and fifth assignments relate to the admission, over appellant’s objection, of testimony relating to the state of accounts between appellant and Sachse covering the time from the contract with appellee and the date of the trial, while the seventh assignment attacks the court’s finding in that respect, as being without support in the testimony. While the bills of exception relating to the admission of the testimony are insufficient, in that they fail wholly to show the facts elicited from the witness, and we are, as a consequence, unable to pass upon its materiality, at the same time it does appear from the bill that facts apparently immaterial to any issue in the case were sought to be elicited, since it is difficult to conceive what light Sachse’s indebtedness to the bank would throw upon appellee’s negligence vel non in the compilation of the abstract. At the same time we are unable to see that the error was prejudicial in view of the fact that the trial was before the court Further, the court placed its judgment on the grounds: (1) That appellee was not in law liable because he had complied with his contract of employment; and (2) that appellant did not sustain any injury from any negligence on the part of appellee, neither of which could have been based upon the testimony with regard to the state of accounts between appellant and Sachse. The record being as stated, it presents at most harmless error as now defined by rule 62a (149 S. W. x), and does not therefore constitute reversible error. What we have said with reference to the above assignments applies to the disposition of the sixth assignment.

The eighth, ninth, and tenth assignments of error attack the court’s findings of fact as without support in the evidence, while the tenth, eleventh, and twelfth assignments attack the court’s conclusions of law, but, as presented, are in analysis also attacks upon the sufficiency of the findings of facts as basis for the conclusions of law. In view of what we have already said in reference to the testimony, any extended discussion of the issue so raised is unnecessary. The court’s findings of fact depend for their support on the testimony of appellee, and, for the reasons indicated at another place in this opinion, we conclude we are not justified in discarding that testimony as wholly wanting in credibility or reasonableness.

For the reasons indicated the judgment is affirmed.
      For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HOUSTON v. JOHNSON et al.
    (No. 732.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 25, 1917.)
    1. MORTGAGES <&wkey;151 (6) — PRIORITIES—MORTGAGE- and Vendor’s Lien.
    Purchase-money notes, to secure payment of which a vendor’s lien is retained in the deed, are a first lien as against a deed of trust given by the grantee.
    2. Judgment <@=3707 — Persons Aeeected.
    Rights of holder of second lien, a deed of trust, are not affected by suit, to which he is not a party, to foreclose the first lien, a prior vendor’s lien.
    3. Vendor and Purchaser <&wkey;288 — Foreclosure oe Vendor’s Lien — Rights oe Purchaser.
    The purchaser at foreclosure of a first lien, a vendor’s hen, to which foreclosure suit the holder of the second lien, a subsequent deed of trust, is not a party, acquires.the land subject, but not subordinate, to the rights of the second lienholder.
    4. Mortgages <&wkey;535(l) — Sale under Power —Title Acquired.
    The purchaser at trustee’s sale under the power of sale in a deed of trust, a second lien, acquires title superior to that of purchaser under prior foreclosure of vendor’s hen, the first hen, the second lienholder not having been made party to such foreclosure, suit; but the title under such sale is subject and subordinate to the vendor’s lien.
    5. Trespass to' Try Title <&wkey;47(1) — Condition oe Recovery — Payment into Registry-Vendor’s Lien.
    Plaintiff in action for title and possession of land, having title subject to a vendor’s hen, securing three notes, should not as condition to recovery be required to pay into the registry of the court the amount of such notes; the holder of only one of them being a party, especially where there is no evidence that the others are not paid, and so far as appears they are barred by limitations.
    Appeal from District Court, Eastland County; Tilos. D. Blanton, Judge.
    Action by Otho S. Houston against A. B. Johnson and others. Erom part of the judgment, plaintiff appeals.
    Reformed and affirmed.
    There is no statement of facts in this record, and the appeal is presented upon findings of fact and conclusions of law filed by the trial court. A condensed statement thereof is as follows: On July 29, 1910, George T. Mathews conveyed to J. D. Kinnison the land in controversy, retaining in the deed a vendor’s lien to secure the payment of a note for $70, due November 1, 1910, another note for $S2.05, due January 1,1911, and another note for $100, due July 29, 1911, which deed was filed for record August 2, 1910, and duly recorded. On July 5, 1911, J. D. Kinnison executed and delivered to W. L. Smallwood, trustee, a deed of trust upon said land to secure Otho S. Houston in the payment of tne following notes: One in the sum of $50, due in one year, another in the sum of $50, due December 15, 1912, and seven notes for $100 each, due respectively on December 15th in the years 1913, 1914, 1915, 1916, 1917, 1918, and 1919, which deed of trust was filed for record July 6, 1911, and duly recorded. Some time in the year 1912 and prior to June 4th, Utterback & Harris Company, a corporation, filed suit against Kinnison upon above-mentioned note for $82.05, and on June 4, 1912, judgment was rendered in said suit against Kinnison for the amount of said note with foreclosure of vendor’s lien upon the land in controversy as it existed on July 29, 1910. Upon this judgment an order of sale was issued, and on September 3, 1912, the land was sold thereunder to Utterback & Harris Company for the consideration of $150, which deed was filed for record October 2, 1912, and duly recorded. On December 2, 1912, Utter-back & Harris Company conveyed the land to George T. Mathews for a consideration of $150, which deed was filed for record on February 22, 1913, and duly recorded. On February 18, 1913, Mathews conveyed the land to A. B. Johnson, which deed was filed for record February 22, 1913, and duly recorded. On May 5, 1913, the trustee in the above-mentioned deed of trust sold the land in controversy under the provisions of the deed of trust to Houston for the sum of $100, and the same was by the trustee conveyed to Houston, and the conveyance was thereafter filed for record and duly recorded; that the plaintiff has never made any tender other than the proffer contained in his pleadings. The tenth finding of fact reads:
    “Based upon the legal presumption, the court finds that none of the three notes specified in the deed from Miathews to Kinnison have ever been paid, there being no evidence concerning the same in the record, other than the recitations in the deeds introduced and the actions of the parties relative thereto, and judgments rendered.”
    Based upon the foregoing findings of fact, the court’s conclusions of law are as follows:
    “Upon the above findings, I conclude, as a matter of law, that before the plaintiff would be permitted to invoke the equitable powers of this court, in his behalf, he must be forced to do equity in paying off the outstanding notes which were shown by recorded instruments to be due against the land at the time he made his loan upon same, and which proffer the plaintiff renders judgment that upon the plaintiff paying into court the amount of said three notes, that he will then be entitled to a judgment for the land, and in that connection the court holds that he should pay such notes and all interest provided for therein, up to their maturity, at the rate of 10 per cent, up to the date that the land was purchased by Johnson, and 6 per cent, thereafter.”
    The court entered judgment, the material portions of which are as follows:
    “The court finds that there is a prior and subsisting lien and claim against the property hereinafter described for the sum of $370.80., being the amount due on the three notes described in deed, dated July 29, 1910, from George T. Mathews to J. D. Kinnison, which is duly recorded in the deed records of Eastland county, Tex., volume 69, p. 626, said notes being one for $70, one for $82.50, and one for $100, the total amount above being the principal and interest due thereon. And the court further finds that subject to the above claim of $370.80, the plaintiff is entitled to recover the title and possession of the land hereinafter described as against the said defendants, and it appearing to the court that the plaintiff has offered and is willing to do equity in this case, and has offered to pay such sum or sums as the court may find is just and right. It is therefore ordered, adjudged, and decreed by the court that the plaintiff in order to recover the land herein shall pay into the registry of this court the sum of $370.80, within 30 days from the adjournment of this court, said money when so paid to be by the clerk of this court held subject to further order of this court. It is further ordered, adjudged, and decreed by the court that the plaintiff do have and recover of and from the defendants A. B. Johnson and J. D. Kinnison the following described property: [Here follows description, of property] for which plaintiff may have his writ of possession: Provided if the plaintiff Otho S. Houston fails or refuses to pay said sum of money above set forth into the registry of this court as herein provided he shall take nothing herein and the title and possession of said land in such event is hereby adjudged and quieted in the defendant A. B. Johnson. * * * It is further ordered, adjudged, and decreed by the court that a writ of possession issue in this cause in favor of the plaintiff Otho S. Houston as against the defendants herein immediately upon the payment into the registry of this court the sum of money above provided.”
    The appellant Houston was plaintiff in the case and complained of A. B. Johnson and J. D. Kinnison, defendants. The amended petition upon which the cause was tried contains several counts. The first count was in the ordinary form of trespass to try title, and akked judgment for title and possession of the premises.
    Ohas. E. Witt, Edgar E. Witt, and G. W. Barcus, all of Waco, for appellant. J. R. Stubblefield, of Eastland, for appellees.
   HIGGINS, J.

(after stating the facts as above). The various assignments will not be considered separately. They are sufficient to raise the questions upon which the rights of the respective parties depend, and we will simply indicate the principles controlling the proper disposition of the case.

The three notes executed by Kinnison to Mathews in consideration of the conveyance of July 29, 1910, constituted a first lien upon the land. The deed of trust of July 5, 1911, for the benefit of Houston constituted a second lien upon the land. The rights of Houston under the deed of trust were not affected by the foreclosure proceedings in the suit of Utterback & Harris Company against Kinnison, because Houston was not a party thereto. The purchaser under this foreclosure (Utterback & Harris Company) acquired the land subject to, but not subordinate to, the rights of Houston under the deed of trust of July 5, 1911.

By the foreclosure proceedings under the deed of trust, the purchaser at the trustee’s sale (Houston) acquired title to the land superior to that of -Utterback & Harris Company. This title was the superior one because the second lienholder was not a party to the foreclosure suit in the district court, and therefore the rights which he had under his deed of trust were unaffected by that foreclosure. On the other hand, the foreclosure under the deed of trust was made under the power of sale conferred in the instrument and passed title subject only to the prior vendor’s lien. While the title secured by Houston under the foreclosure of the deed of trust was superior to the title acquired by Utterback & Harris Company, under the first foreclosure, yet Houston’s •title so acquired was subordinate to the vendor’s lien upon the land securing the notes of July 29, 1910, and the holders of such notes had the right to foreclose their lien. Utterback & Harris Company had acquired the $82.05 vendor’s lien note, and their remote vendee, Johnson, has succeeded to all of their rights. No other holder of this vendor’s lien is a party to this suit. The trial court therefore erred in requiring the payment by Houston into the registry of the court of the amount of the two vendor’s lien notes in the sums of $70 and $100. If the holders of those notes had been before the court and seeking to protect their rights, such action would have been proper. Not so, however, where they are not parties. Furthermore, the court’s findings of fact and conclusions of law disclose that the evidence is silent as to whether these other two notes remain unpaid. It would certainly not be proper to require Houston to deposit in the registry of the court money to cover the amount of the other notes in the absence of any evidence to show that they remain unpaid. Especially is this true when, so far as the record discloses, these other two notes have become barred by limitation.

In view of the foregoing, judgment should have been entered in favor of Houston against Johnson and Kinnison for the title and possession of the lands in controversy, with proper provision in the judgment for the protection of Johnson in the payment of the amount found to be due on the note for $82.-05. The pleadings of the parties set up all the facts, and are sufficient to give them all of the relief, legal or equitable, to which either may be entitled. The judgment of the court below will therefore be reformed and affirmed as follows:

In favor of Houston against A. B. Johnson and J. D. Kinnison for the title and possession of the lands in controversy. The amount due upon the $82.05 note, aggregating the sum of $125.02, is found to be and is established as a first lien upon the land in favor of Johnson, and the same is hereby foreclosed against Houston, and the land ordered sold in satisfaction thereof, and all proper and appropriate process for the enforcement of this judgment will be ordered issued.

Reformed and affirmed as indicated.
      cg=»For other eases see same topic and KEY-NDMBER in all Key-Numbered Digests and Indexes 197 S.W. — 71


author: FLY, O. J.

text:
    BAKER v. EAST.
    (No. 5893.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 24, 1917.)
    1. Appeal and Error &wkey;1039(4) — Harmless Error — Petition Seeking Double Recovery.
    If a petition against the receiver of a railroad for damages to cattle from negligent handling and failure to transport expeditiously had sought double recovery, the error was harmless to defendant, where the measure of damages presented to the jury absolutely precluded such recovery.
    2. Trial <&wkey;349(l) — ■ Special Issues —Purpose.
    The presentation of special issues to a juiy is permitted in order to simplify matters and have the issues clearly found, that the law may be applied to them, not to find a multitude of facts neither establishing nor destroying an issue.
    3. Carriers <§s=o228(3) — Carriage oe Live Stock —Delay in Transportation — Evidence.
    In an action against a receiver of a railroad for damages to cattle from negligent handling and failure to transport expeditiously, proof of delay in transportation, causing the cattle to reach destination on a declining market, was properly admitted; the testimony being pertinent to the issues involved.
    4. Appeal and Error <&wkey;1052(5) — Harmless Error — Evidence.
    Testimony objected to on the ground that it tended to support a double recovery was harmless to defendant, where the cause was submitted on the proper measure of damages, to which the jury responded in a verdict clearly indicating that a double recovery was not obtained.
    Appeal from District Court, Jim Hogg County; Y. W. Taylor, Judge.
    Suit by T. T. East against James A. Baker, receiver. Erom a judgment for plaintiff, defendant appeals.
    Affirmed.
    Greer & Hamilton, of Laredo, and Wilson, Dabney & King, of Houston, for appellant. Dougherty & Dougherty, H. S. Bonham, and B. D. Tarlton, Jr., all of Beeville, for appel-lee.
   FLY, O. J.

This is a suit for damages alleged to have been caused by the negligent handling and failure to expeditiously transport 345 head of cattle from Hebbronville to Ft. Worth, Tex. Appellee declared for damages against the International & Great Northern Railway Company, through its receiver, James A. Baker, on itg common-law liability as a common carrier. The only defense was that the cattle were so thin, weak, and poor that they were received for shipment under protest, and that they died, or were injured, not on account of any negligence, but on account of the inherent weakness and inability of the cattle to stand shipment. The cause was submitted to a jury on special issues, and upon the responses thereto judgment was rendered in favor of appellee for $1,236.38.

The evidence was sufficient to show that the cattle were damaged through the negligence of appellant in the sum found by the jury. The Texas-Mexican Railway Company, the initial carrier, was joined as a defendant, but was relieved from liability by the jury.

The first assignment is overruled. The brief fails to disclose what the special exception contained, the overruling of which is assailed in the assignment of error. In what the double recovery sought in the petition consists is not pointed out. If there had been a proper assignment of error, however, it could not be sustained, because the measure of damages presented to the jury, not only did not authorize a double recovery, but absolutely precluded it, and if a double recovery had been sought, it was without injury to appellant. The measure of damages was correctly given by the court, and the jury found for only $1,246.38 when $2,000 was claimed.

The second assignment of error is overruled. The issues appellant desired presented to the jury were upon questions of fact which, if answered, would not have decided the issue as to negligence, but would merely have determined the existence or nonexistence of certain facts which might or might not bear upon the question of negligence. Some of the questions were upon the weight of the evidence, and they would have devolved upon the court the burden of separating the good from, the bad, the proper from the improper. The presentation of special issues to a jury is permitted to simplify matters and have the issues found clearly in order that the law may be applied to them, and it was never intended that a multitude of facts should be found which do not establish or destroy an issue. Heldenfels v. School Trustees, 182 S. W. 386. The court in one issue presented everything necessary as to the condition of the cattle when delivered to appellant contributing to their injury.

The third assignment of error is overruled. The questions asked by the court were not upon the weight of the testimony, did not assume the existence of any fact, and presented in one question, in a concrete form, all the matter sought to be presented by the rejected questions of appellant.

There was no error in permitting proof of delay in the transportation of the cattle, which caused them to reach Ft. Worth on a declining market. The testimony was pertinent to the issues involved, and was objected to only on the ground that it tended to support a double recovery. We fail to see any force in the objection. The evidence could not have injured appellant, because the cause was submitted to the jury on the proper measure of damages, to which the jury responded in a verdict, clearly indicating that a double recovery was not obtained.

There was ample evidence to sustain the verdict of the jury, and the judgment is affirmed.
      <gu=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    NEAL COMMISSION CO. v. GOLSTON.
    (No. 747.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 25, 1917.)
    1. Limitation of Actions <&wkey;54(2) — Accrual of Cause of Action — “Mutual Accounts.”
    Where the transactions between plaintiff and defendant consisted entirely of sales by plaintiff to defendant, and no credit was ever extended by defendant to plaintiff, there was no mutual and current account between merchant and merchant within Rev. St. art. 5688, subd. 3, providing that actions upon mutual and current accounts concerning the trade of merchandise between merchant and merchant shall be commenced within four years, and that the cause of action shall be considered as having accrued on a cessation of the dealings.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Mutual Accounts.]
    2. Limitation of Actions @=^195(4) — Burden of Proof — Absence from State.
    In an action on an open account, defendant discharged the burden resting on him respecting the defense of limitation by showing that the suit was filed more than two years, after the accrual of the cause of action, and it then devolved upon plaintiff to show defendant’s absence from the state for such periods as would reduce the time to less than two years.
    3. Limitation of Actions <3=^193 — Pleading —Issues and Proof.
    In an action on an open account brought more than two years after the cause of action accrued, it was not sufficient for plaintiff to allege that defendant was a nonresident without supporting such allegation by proof, especially as the allegation merely referred to the date of the filing of the pleading, and did not show how long defendant had been a nonresident.
    4. New Total <&wkey;150(l) — Newly Discovered
    Evidence — Affidavits.
    It is not error to refuse a motion for a new trial on the ground of newly discovered evidence when the motion is not supported even by an affidavit of the party applying.
    5. New Trial &wkey;>101 — Newly Discovered
    Evidence — Time oe Discovery.
    A motion for a new trial on the alleged ground of newly discovered evidence was properly denied where the existence of the alleged facts was known to the party applying at the time of the trial and for at least twenty days prior to the rendition of the judgment.
    6. New Trial <&wkey;124(l) — Newly Discovered
    Evidence — Sufficiency oe Motion.
    A motion for a new trial for newly discovered evidence, which failed to give the names of the witnesses by whom the alleged facts could be proved, and offered no proof that they would testify as claimed, was properly denied.
    7. New Trial <&wkey;102(l) — Newly Discovered
    Evidence — Diligence.
    A motion for a new trial for newly discovered evidence which failed to show any diligence to discover such evidence prior to a trial was properly denied.
    Error from Nolan County Court; Jno. H. Cochran, Jr., Judge.
    Action by the Neal Commission Company against Boy D. Golston. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    Grisham & Grisham, of Sweetwater, for plaintiff in error. Beall & Douthit and Allen Wight, all of Sweetwater, for defendant in error.
   HIGGINS, J.

Plaintiff in error filed this suit on January 14, 1916, to recover of defendant in error a balance due on open account.

The case was tried before the court, which filed findings of fact. A condensed statement of the material facts found is as follows: E. J. Neal, doing business as Neal Commission Company, at the time of the transactions involved in this suit, was a merchant at Sweetwater, Tex., and Golston, at such time, was a merchant at Quanah, Tex. That Gol-ston is indebted to the Neal Commission Company in the sum of $224.48, being the balance due on certain items of merchandise sold to defendant on December 19,1913, by the plaintiff, which debt is just, due, and unpaid. That the dealings of the parties comprise three transactions, being in each case the sale of merchandise to defendant by plaintiff; the first sale taking place in November, 1913, said merchandise being paid for upon the delivery thereof by check or draft; the second transaction taking place December 19, 1913, and being the sale of merchandise to the defendant by plaintiff on a credit to the value of $324.40; the third transaction involving the sale of merchandise to the value of $877.-80 to defendant for cash, the defendant herein at the time paying $100 on the purchase theretofore made in December. That in regard to the items sold to defendant in November and December, 1913, the plaintiff extended credit to defendant and only on these occasions. That at no time did Golston extend any credit to the plaintiff. That no sales of merchandise were made by defendant to plaintiff on credit or otherwise. That the transactions herein sued on do not constitute a “mutual and current account concerning the trade or merchandise between merchant and merchant,” but said suit is for a balance due on a single sale of merchandise by plaintiff to defendant, a debt not evidenced by a contract in writing. That this suit was brought on the 14th day of January, 1916, which was more than two years after the sale of. the items herein sued on. The evidence sustains these findings, and the correctness thereof is not challenged.

The court held that the transactions of the parties did not constitute a mutual and current account concerning the trade of merchandise between merchant and merchant, and that the action ,was barred by the two-year statute of limitation.

Plaintiff in error contends that the facts stated show a mutual and current account between merchant and merchant, and that the cause of action was not barred under the provisions of article 5688, B. S. subd. 3. All of the sales were made by the Neal Commission Company to Golston; no credit was ever extended by Golston to the former. There were no mutual and current accounts between the parties, and' the statute quoted has no application. Richardson v. Vaughan, 86 Tex. 95, 23 S. W. 640; Cohen v. Shwarts, 32 S. W. 820; Guichard v. Superveile, 11 Tex. 522; Judd v. Sampson, 13 Tex. 20. The cause of action was upon an ordinary open account, and was barred by the two-year statute of limitation. Article 5687, B. S. subd. 5.

The plaintiff in error’s third assignment is:

“The court erred in rendering the judgment against the plaintiff and in favor of the defendant on the sole and only issue on limitation, that issue not being supported by the weight of the testimony in this case, and it appearing that the defendant is a nonresident, the burden was upon the defendant to prove the issue of limitation as tendered by him.”

The supporting proposition being:

“The burden of proof on an issue of limitation is upon him who asserts it.”

The facts recited show that the suit was filed more than two years after the accrual of the cause of action and discharged the burden resting upon defendant. It then devolved upon the plaintiff to show that defendant had been absent from the state for such periods of time as would, if taken from the whole time from the accrual of the cause of action to the institution of the suit, reduce the time to less than two years. Phillips v. Holman, 26 Tex. 277.

There was no evidence offered by plaintiff upon this issue, and tlie court did not err in the particular indicated by this assignment. The mere allegation in the amended petition that defendant at that time was a nonresident is not sufficient. Allegations must be supported by evidence. Even if the allegation were to be taken as true, it merely referred to the date' of the filing of the amendment, and did not show how long defendant had been a nonresident. Neither the pleading nor the evidence of the plaintiff meets this phase of the case.

The last assignment of error complains of the refusal of a new trial upon the ground of newly discovered testimony, to the effect that defendant had been out of the state after the accrual of the cause of action for about a year. This ground of the motion for new trial was properly overruled for the following reasons: (1) It is not error to refuse a motion for new trial on the ground of newly discovered evidence when said motion is not supported even by an affidavit of the party applying, which is the case here. (2) Because the existence of the alleged facts was known to the party applying at the time of the trial and for at least twenty days prior to the rendition of judgment. (3) The motion fails to give the names of the witnesses by whom the alleged facts could he proven, and offers no proof at all that such witnesses will testify as claimed. (4) The motion wholly fails to show any diligence to discover such evidence prior to trial.

Finding no error, the judgment is affirmed.
      <®S»For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=s>Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PIARPER, C. J.

text:
    STEVENS v. GUSTINE MERCANTILE CO.
    (No. 745.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 18, 1917.)
    1. Sales <&wkey;354(l) — Actions — Pleading — Stweicienoy.
    In an action on a note, an answer alleging that the payee represented to defendant that it would ship five pianos, worth $350 each, as an advertising proposition, for the price of $350, and that a friend of defendant’s had accepted the proposition, when in truth and in fact the pianos were worth only $125 each, and no sale had been made to the person named, is sufficient to permit the showing of fraud in procuring the note as well as proof of failure of consideration, and is therefore sufficient.
    2. Bills and Notes <&wkey;452(l) — Defenses— Fraud.
    That the maker of a note did not read it when he signed it would not preclude him from showing fraud and failure of consideration as between the original parties.
    3. Appeal and Error &wkey;?499(4) — Scope of Review — Preservation oe Exceptions.
    In the absence of record showing objections to the charge given or requests for other charges, assignments of error to peremptory instruction will not be considered.
    Harper, C. J., dissenting in part.
    Appeal from Comanche County Court; J. H. McMillan, Judge.
    Action by Fred L. Stevens against the Gus-tine Mercantile Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Robt. U. Thompson, of Stephenville, for appellant. Smith & Palmer, of Comanche, for appellee.
   PIARPER, C. J.

Fred L. Stevens, appellant, filed this suit against Gustine Mercantile Company upon a promissory note for $350 and interest, etc.

As a defense, the appellee alleged that the note was secured to be executed by the fraud of the payee, the Lyon Taylor Company. We copy the allegations from appellee’s answer:

“Answering further herein, defendant says that the alleged note herein sued on was procured by the Lyon Taylor Company through fraud and misrepresentations, in this: That the said Lyon Taylor Company, acting by and through its agent, came to defendant’s place of business in the town of Gustine, in Comanche county, Tex., and among other matters stated and represented to the defendant and its agents that if they would sign the alleged obligation that they would at their earliest convenience ship to the defendant and deliver to it at Gus-tine, Tex., one piano, and four other pianos whenever demanded by the defendant; that the defendant, relying upon said representations and promises, signed said alleged obligation believing that the said Lyon Taylor Company would ship one piano at an early date, and the four other pianos when called for by the defendant, as they had agreed they would do, and that after said agent of the Lyon Taylor Company had left, taking said obligation with him, and in a few days thereafter, the said Lyon Taylor Company sent to the defendant through the mail a statement as to the shipment of one piano and certain other items that were to be sent to the defendant by the said Lyon Taylor Company in additioñ to the piano, and the defendant immediately communicated directly with the Lyon Taylor Company to know if it meant and intended to send to the defendant five pianos in consideration of the $350 evidenced by said alleged note, as had" been represented would be done by said purported agent, and that the said Lyon Taylor Company declined and refused to deliver to the defendant at Gustine, Tex., the five pianos as represented by said agent would be done, but did ship to Gustine, Tex., one piano, which the defendant declined and refused to accept. And the plaintiff has never tendered or offered said other four pianos as it agreed through its said agent it would do.
“Defendant further says that it believes and so alleges to be a fact that said representations so made by said agent of the Lyon Taylor Company were made to it with the purpose and intent to swindle and defraud this defendant, and were not made with the intent and purpose at the time of keeping and complying with the said representations.”

In other counts defendant alleged:

“That the Lyon Taylor Company, through its agent, among other matters represented to the appellee that the purpose of the contract and sale of said pianos was one of advertising; that the cost of advertising is well known, and in widely circulated magazines like The Literary Digest was enormous, and that the Lyon Taylor Company had concluded to advertise their products by selling to merchants in various communities a number of their pianos at far below the actual cost of production, if the merchants would conduct a sale advertising contest, and in this way place the pianos in representative homes; and that the pianos were worth $350 and were first class, and that their increased sales would compensate them for all losses; and further representing to the appellee that he, meaning the traveling salesman, had taken this matter up with R. W. Gray, of Proctor, a man well known to appellee for his business acumen and sagacity, and R. W. Gray, after a thorough investigation of the plan and its merits, had then subscribed to a like plan to that presented to appellee; and representing further, in effect, that said contract was the work of the advertising and that of the sales department of the Lyon Taylor Company; anti among other things represented that in truth and in fact that said contract was not the work of the advertising department, but a scheme to sell said products at their full value, and made with the purpose of defrauding; and alleging that in fact that pianos were not sold at a price below the cost of production, but at an extravagant price in excess of their value on the market, and were not first-class pianos, but a cheap, inferior grade and worthless, and worth less than $125; and that in truth that it was never contemplated that five pianos would be delivered, and were not sold to advertise the Lyon Taylor pianos; and in truth said R. W. Gray of Proctor, Tex., had not examined their contract and had not made a similar contract; and that relying upon said representations, and believing that the said Gray had made a thorough examination of said contract as represented^ and having great faith and confidence in the business judgment of said Gray, the appellee was induced to sign said contract and note sued on.”

Upon trial with jury the court instructed a verdict for defendant, and judgment was entered accordingly, from which this appeal is prosecuted.

First assignment:

“The court erred in overruling plaintiff’s general demurrer, and his special exception No. 1 as contained in his first supplemental petition, because defendant’s answer on its face showed that it did not read the contract and note here sued on, and did not allege facts, sufficient under the law, excusing it from not reading same.”

The view we take of the answer filed is that it is sufficient to permit proof of fraud in procuring the execution of the note which at the time was a part of a contract with Lyon Taylor Company as well as proof of failure of consideration therefor; therefore is sufficient. That the maker of a note did not read it at the time he signed it would not preclude him from pleading and proving fraud and failure of consideration as between the original parties to it.

The other assignments complain that it was error for the court to peremptorily instruct the jury, urging under the several assignments and their attendant propositions various reasons why it was error.

The record here presented does not show that any objections were urged to the charge as given, nor that any special charge or charges were requested upon any issue in the case. These assignments will therefore not be considered by the court. Carr v. Pecos Valley State Bank, 189 S. W. 988.

The writer of this opinion does not concur in the holding next above for the reason indicated in Thorne v. Dashiell, 189 S. W. 986; but, nevertheless, concurs in the judgment of affirmance for the following reasons:

It is urged by the appellee that the peremptory instruction was properly given because the undisputed facts show that the note sued on was taken, together with other notes, by the appellant as collateral security for the payment of another note, and that he (appellant) has not met the burden upon him to prove that he will lose his debt unless permitted to collect the note sued upon, in cases where there is fraud or failure of consideration, as in this ease. The undisputed evidence is that the note sued on was made payable to the Lyon Taylor Company; that the consideration for this note was as alleged in defendant’s answer; that no pianos were delivered in compliance with the contract — that is, that the number of pianos called for in the contract were not delivered nor offered for delivery according to its provisions, as contended for by appellee, but if the one piano tendered was all that the contract called for, as contended by the Lyon Taylor Company, the undisputed evidence is that it was of such inferior quality as to justify the ap-pellee in refusing to accept it as it did. It is further undisputed that appellant took the note of said Lyon Taylor( Company in the sum of $2,895, and that the note sued on, together with several others, was taken as collateral security therefor, and there is no dispute that the Lyon Taylor Company were solvent and able to pay the whole of their note held by Stevens. Under this state of facts, it clearly appears that it was not necessary for appellant to collect the note sued on to collect his debt; and it further clearly appearing that the note sued on was obtained, by fraud, and that the consideration therefor had wholly failed, the court did not err in giving the peremptory instruction for defendant. Bank v. Meister et al., 186 S. W. 377.

The fourth assignment is that:

“The court erred in peremptorily instructing the jury to find a verdict for the defendant because it was a material question of fact to be determined by the jury whether the agent of the Lyon Taylor Company misrepresented to the defendant the contents of the contract and note here sued on.”

There was no request for instruction upon this issue; therefore appellant will not be heard to complain here. Foster v. Bennett, 178 S. W. 1001; Texas, etc., R. Co. v. Claybrook, 178 S. W. 580.

For the reasons assigned above, the assignments are overruled and cause affirmed.
      i£s»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes