author: RICE, J.

text:
    HOVEY et al. v. TANKERSLEY.
    (No. 5481.)
    (Court of Civil Appeals of Texas. Austin.
    April 21, 1915.
    Rehearing Denied May 26, 1915.)
    1. Carriers <&wkey;46 — Interstate Commerce-Bills oe Lading.
    The validity of a provision in a bill of lading' issued by a carrier for an interstate shipment must be determined under the federal Interstate Commerce Acts (Act Feb. 4, 1887, c. 104, 24. Stat. 379, as amended by Act June 29, 1906, e. 3591, 24 Stat. 584).
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 220; Dec. Dig. <§¿^46>]
    2. Carriers <&wkey;228 — Carriage oe Live Stock — Burden oe Prooe.
    .Under Act Cong. Feb. 4, 1887, as amended by the Hepburn-Carmack Act, requiring common carriers to transport interstate shipments upon just and reasonable terms, an interstate carrier has the burden of showing that a provision in its bill of lading is reasonable.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. &wkey;228.]
    3. Carriers <&wkey;218 — Carriage oe Live Stock — Action—Reasonableness.
    Under Act Cong. Feb. 4, 1887, as amended by the Hepburn-Carmack Act, requiring interstate shipments to be transported upon reasonable terms, a provision, in a bill of lading for the shipment of live stock, that, as a condition precedent to a right of action for damages for injuries to the 'stock, the shipper must give written notice to the nearest station agent of the carrier or to the agent at destination before the stock can be removed, or mingled-with others, such written notice to be served within one day after delivery, and the stock not to be moved within three hours after service, is unreasonable where it does not appear that the carrier had an agent at place of destination, or that notice could have been given within the time fixed, and the justice of the demand is not denied.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. t&wkey;>218.]
    Error from Irion County Court; W. F. Fokes, Judge.
    Action by Fayette Tankersley against S. B. Hovey and another, as receivers of the Kansas City, Mexico & Orient Railway Company. There was a judgment for plaintiff, and defendants bring error.
    Affirmed.
    H. S. Garrett, of San Angelo, for plaintiffs in error. Blanks, Collins & Jackson, of San Angelo, for defendant in error.
   RICE, J.

This suit was- brought by defendant in error, plaintiff below, to recover damages to a shipment of cattle from Mert-zon, Tex., to Wichita, Kan., over plaintiffs in error’s lines of railway. The negligence alleged consisted of rough handling and delay in transit resulting in extra feed charges, depreciation in market value, decline in price and shrinkage, aggregating a total of $720.25. The defense was that it was an interstate shipment, and that on account of the reduced rate given the shipper, defendant in error entered into a written contract containing a provision, as a condition precedent to his right to maintain this suit, that he agreed to give plaintiffs in error one day’s written notice of any damages claimed by him before the cattle were moved from point of destination or intermingled with other cattle, and then hold same for three hours for inspection by plaintiffs in error; that no such notice was ever given, whereby defendant in error lost his right of action, if any he had, and praying an abatement of the suit. The section of the contract referred to reads as follows:

“As a condition precedent to the right to institute a suit for the recovery of damages for any loss or injury to live stock covered by this contract for any cause, including delays, the shipper will give notice in writing of the claim therefor to the nearest station agent of the carrier or to the agent at destination, or to some general officer of the delivering line before such stock is removed from point of shipment or slaughtered or mingled with other stock, such written notice to be served within one day after the delivery of stock at destination, and will not move said stock from destination or place of delivery to consignee within three hours after notice is served, to the end that such claim may be fully and fairly investigated, provided that a failure to comply with the provisions of this clause shall be a bar to the recovery of any and all such damages.”

When the case was called for trial the defendant in error reduced the amount of his claim to $300, whereupon an agreement was made by the parties that defendant in error had a good cause of action for $300, subject to be defeated by the facts set up in plaintiffs in error’s plea relative to giving said notice, failure to comply with which on the part of defendant in error was admitted. The case was tried before the court without a jury, and judgment rendered for the defendant in error for $300, with legal interest thereon, from which this appeal is prosecuted.

Error is predicated on the court’s failure to sustain plaintiffs in error’s defense of failure on the part of defendant in error to give notice of his claim for damages, as required by the terms of the written contract of shipment, as above set out, contending that the giving of such notice was a condition precedent to his right to institute and maintain this suit. The provision in question, under our state statute, would be absolutely void and nonenforeeable. See article 5714, R. S. 1911. But its validity must be tested by the federal statutes on the subject, and the decisions thereunder. See G., H. & S. A. Ry. Co. v. Sparks, 162 S. W. 943. By the act of February 4, 1887, as amended June 29, 1906, known as the Hepburn-Car-mack Act, common carriers engaged in interstate commerce are authorized to establish, observe, and enforce just and reasonable classifications of property with reference to which rates, tariffs, regulations, and practices are to be prescribed, and just and reasonable regulations made with reference to the form and substance of bills of -lading; and they are also required to transport interstate shipments upon just and reasonable terms, and all unjust or unreasonable regulations and practices with reference to commerce between the states are expressly prohibited and declared to be unlawful. See subdivision 4, § 8563, U. S. Comp. St. 1913. But it is contended by defendant in error that the provision in question is unreasonable in failing to point out and name some agent to whom the notice may be delivered, and therefore the trial court was justified in rendering judgment for him. It may be observed that there was neither allegation nor proof that plaintiffs in error had any agent at Wichita, Kan., the point of destination of this shipment; nor was there either allegation or proof that the delivering carrier had either local or general agents at the point of destination to whom notice might have been given. If this feature of the contract is unreasonable, as claimed by defendant in error, then the proper judgment was rendered. The burden of proof was on plaintiff in error to show its reasonableness. See Ft. Worth & D. C. Ry. Co. v. Greathouse, 82 Tex. 111, 17 S. W. 834 (eighth subdivision); Railway Co. v. Fagan, 72 Tex. 132, 9 S. W. 749, 2 L. R. A. 75, 13 Am. St. Rep. 776; Railway Co. v. Harris, 67 Tex. 167, 2 S. W. 574. In Railway Co. v. Greathouse, supra, where the provisions of a similar contract were under consideration, Mr. Justice Fisher said:

“When such provisions of a carrier’s contract are enforced, it is upon the assumption that such agreement is reasonable when considered in the light of the subject-matter of the contract and the circumstances and surroundings of the parties. To prove that such conditions in the contract are reasonable is a burden resting upon the carrier, who must show by proper pleadings and evidence the existence of facts that call for an enforcement of the condition. There were no pleadings and proof whatever upon this question coming .from the carrier-.”

The federal statute upon the subject for the regulation of interstate commerce, as we have seen, provides that all such regulations must be just and reasonable. Is this provision reasonable? It is not alleged or shown that the company had an agent at the point of destination; nor does it appear that it would have been practicable, under the circumstances surrounding the shipper at the time of arrival, to have given notice within the time named. It is probable that he may not have discovered the injuries to the cattle upon their arrival and in time to have given the notice required. Would a failure to give notice under such circumstances defeat his right of action? We think not. Mr. Chief Justice Tarlton, in the case of Mo. Pac. Ry. Co. v. Paine, 1 Tex. Civ. App. 623, 21 S. W. 79, in discussing a contract containing a similar provision, Says:

“The contract, * * * as pleaded, is upon its face unreasonable. It fails to state the name of the agent in Chicago to whom the notice must be given. It required the plaintiff to leave his stock, on the arrival of the cars at the point of destination, and within 24 hours to seek and find the person to whom notice should be given, without indicating to him whether or where such person would be found, or at what hour he would be found at his place of business. It may well be conceived that a large corporation in an immense city has numerous agents engaged in different departments of its business other than the particular agent charged with the duty of investigating claims of the character here in question. We can understand how the shipper, under such circumstances, would interview one after another of these agents, only to be truthfully told by each agent interviewed that he was not authorized to pass upon such a demand. W*e do not hold that a contract requiring the shipper to give notice is necessarily invalid, but we do hold that it is unreasonable, and cannot be enforced, unless it be made to appear that the person to be notified is so conveniently accessible to the person who is to give the notice as that the latter can reasonably discharge that duty within the time limited by the contract. The burden rests upon the carrier to show that this condition exists, either by the terms of the contract indicating that the requisite information is thus furnished to the shipper, or that the latter is, in fact, possessed of such information, from what source soever it may come” (citing Mo. Pac. v. Childers, 1 Tex. Civ. App. 302, 21 S. W. 76; Mo. Pac. v. Fagan, supra).

The object of this provision. was to afford an opportunity on the part of the railroad company to investigate the merits of the claim. In the present case plaintiffs in error have admitted the justness of defendant in error’s demand; hence no reason existed for giving the notice, and the failure to do so could not, in any sense, be held to prejudice the rights of the carrier; so that giving the notice, under the circumstances of the instant case, became unnecessary.

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

Affirmed.

Additional Statement of the Case and Findings of Fact.

At the request of plaintiffs in error we have concluded to add the following additional statement of the .case contained in the pleadings and statement of facts. Through inadvertence we merely stated that the shipment went forward from Mertzon, Tex., to Wichita, Kan., over plaintiffs in error’s line of railway; whereas, we should also have added that the cattle were shipped from Mertzon, Tex.,’ to Altus, Old., over the line of railway operated by plaintiffs in error, thence to Wichita, Kan., over a line of railway operated by other receivers as a common carrier; the two lines of railway forming a continuous connected line of railroad from Mertzon, Tex., to Wichita, Kan.

Paragraph 20 of plaintiff in error’s answer reads as follows:

“And in this connection defendants show that, notwithstanding the valid and binding conditions contained in said special contracts and above specifically set out [referring to section 6 thereof], the plaintiff and shipper of said live ■stock wholly failed to give notice in writing of the claim for damages thereto, which plaintiff attempts now to assert by his petition herein, to the nearest station agent of these defendants, or to the agent at destination, or to some general officer of the delivering line before such stock was removed from point of shipment at Wichita or slaughtered or intermingled with ■other stock, or to serve such written notice within one day after delivery of the stock at destination, or to comply with said condition -above set forth; hence plaintiff cannot now be heard to assert his alleged cause of action herein or to prosecute this suit, and of this defendants pray judgment of the court.”

Which paragraph was verified by affidavit.

Paragraph 11 of the statement of facts contains the following:

“That the plaintiff and shipper of said live ■stock and his said agent, Hughes, failed to give notice in writing of the claim for damages thereto to any agent of these defendants, or to the agent at destination, or to any general officer of the delivering line before such stock was moved from the point of shipment at Wichita, or slaughtered or intermingled with other stock, and failed to serve such written notice within one day after the delivery of the stock at destination, or to comply with said conditions above set forth.”
      @=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    BRAZILE et al. v. BLAYLOCK et al.

    (No. 5458.)
    (Court of Civil Appeals of Texas. Austin.
    April 28, 1915.
    Rehearing Denied May 26, 1915.)
    Evidence <í^370 — Documentary Evidence —Deeds—Admission oe Execution.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1829, providing that any fact specially pleaded as a defense that is not denied by the plaintiff shall be taken as confessed, plaintiff cannot object to the introduction in evidence of deeds under which defendant claims title, because of defects in their execution, where his supplemental petition admitted the execution of the deeds and he himself had introduced them in evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. 1§ 1538, 1559, 1560, 1562-1578, 1592; Dec. Dig. <&^370.]
    Appeal from District Court, Milam County; J. C. Scott, Judge.
    Trespass to try title by Mary Ella Brazile and another against L. L. Blaylock and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    A. W. Dycus, of Port Arthur, and M. G. Cox, of Cameron, for appellants. John Watson and W. A. Morrison, both of Cameron, for appellees.

       Writ ol error pending in Supreme Court.

   RICE, J.

Mary Ella Brazile, joined by her husband, Jesse B. Brazile, brought this suit in the- district court of said county against L. L. Blaylock, of said county, and Emma F. Booker and husband, D. A. Booker, of Cumberland, Me., on the 8th of March, 1911, in trespass to try title, for title and possession of 100 acres of land situated in Milam county, out of the Jas. McLaughlin league, described by metes and bounds, and for annual rentals, amounting to $250 per year, since the date of their alleged eviction, which occurred March 6, 1907.

Appellees answered by general and special exceptions, plea of not guilty, statute of three years limitation as to title and two years as to rent, and by special plea to the effect that on January 18, 1902, appellants, Brazile and wife, executed a deed of trust to W. F. Crawford, trustee, on said land, to secure Mrs. Emma F. Booker in the payment- of a note for $750, together with interest thereon, bearing even date with said deed of trust, due and payable on the 1st of January, 1907; that said deed of trust contained a stipulation authorizing the sale of said land by said trustee in default of payment of said note upon maturity, with authority to make the purchaser a good and perfect title thereto; it also contained a provision granting authority to Mrs. Booker to appoint a substitute trustee, in the event of failure or refusal on. the part of said trustee to act; that Crawford died before maturity of said note; that after the death of said Crawford, and after maturity of said note, which was not paid, the said Mrs. Booker, the owner thereof, by virtue of the authority vested in her, joined by her husband, did on the 30th of January, 1907, by an instrument of writing, duly appoint John Watson substitute trustee, who thereafter duly advertised and sold said land on the 5th of March, 1907, to the said Mrs. Emma Booker, she being the highest and best bidder therefor, to whom he duly executed his deed of conveyance for said land, which instrument was duly recorded, and that thereafter, to wit, on the 18th of October, 1907, the said Mrs. Emma Booker, joined by her husband, conveyed said land to L. L. Blaylock, which deed was placed of record, whereby he became and is the lawful owner of said land, and was such owner at the time this suit was instituted, for which reason, it is claimed, plaintiffs are not entitled to recover.

In answer to the above, appellants filed a supplemental petition, containing, first, a general demurrer and special exception, and, specially answering, admitted the execution of the deed of trust as alleged, together with the sale of the land thereunder and the purchase of the same by Mrs. Emma F. Booker, who, together with her husband, conveyed the same to Blaylock, and, further, by special plea to the effect that the land in question at the time of the execution of said deed of trust thereon was their homestead, and was then being used by them as such, wherefore, defendants’ deed of trust and sale thereunder were null and void and of no effect.

Appellees filed their first supplemental answer, supplementary to their second amended original answer, and in reply to plaintiffs’ supplemental petition specially denied that said land was the homestead of appellants at the time of the execution of said deed of trust or sale thereunder, but alleged that long before the execution thereof said appellants had abandoned said land as their homestead, with fixed and avowed intention of not returning thereto, and that at the time of the execution of said deed of trust they had acquired another and different homestead in the town of Rosebud, Palls county, where they were then living, and continued to occupy same for many years thereafter. Ap-pellee Blaylock further alleged that before he purchased said land he made diligent inquiry as to any claim or right that appellants, or either of them, might have therein, and found that they and each of them had, long before such time, openly abandoned such premises as their homestead, and that the same was so abandoned prior to the execution of said deed of trust, and had repeatedly made statements to such effect, claiming that their homestead was then in the town of Rosebud, Palls county, where they were then living, and that, relying upon said acts, conduct, and statements, he purchased said land, paying a valuable consideration therefor, wherefore plaintiffs are estopped from claiming any interest therein. He further pleaded improvements in good faith.

There was a non jury trial, resulting in a judgment for appellees, from which appellants have prosecuted this appeal. The court, at the instance of appellants, filed the following conclusions of fact and law:

“(1) I find that prior to December, 1898, the plaintiffs lived on the land in controversy as their homestead, and that some time in said month of December, 1898, they removed from said premises with their family to the town of Rosebud, in P’alls county, Tex., which town was distant about 25 miles from the land in controversy, and that after removing to Rosebud the said plaintiffs purchased a house and lot in said town of Rosebud which was better suited to their convenience and comfort as a homestead than the house on the land in controversy, and that upon the acquisition of the house and lot in Rosebud they moved into the same with their family and lived therein for several years, and that they acquired said property in Rosebud for a homestead and actually resided therein with their family, and that before the execution of the deed of trust to W. P. Crawford, trustee, through which L. L. Blaylock claims title, the said plaintiffs had permanently abandoned the homestead, with the intention never to use the same as a homestead again, and that upon the acquisition of the property in Rosebud they made it their homestead, and it was their homestead, used, occupied, and enjoyed by them for several years, and which they were so using and enjoying at the time of the execution of said deed of-trust.
“(2) I further find that, after removing from the land in. controversy, both of the plaintiffs expressed to various parties their intention of never returning to the land in controversy to live, and that such expressions of intention were continually made by said plaintiffs for many years, and were made before the execution of the deed of trust before mentioned, and that the said defendant Blaylock had been informed and knew of such expressions and intentions before he purchased the land in controversy, and that he paid a valuable consideration therefor with the knowledge that said plaintiffs had made such expressions of abandonment.
“(3) I find that the plaintiff, Mary Ella Bra-zile was in fact the head of the. family, and that she controlled and managed the family affairs, and was so recognized as the head of the family, and that her expressions of intention to abandon the land in controversy, and that it had been abandoned as a homestead, v?ere made by her while acting as head of the family, and that the plaintiffs were in accord, and there was no disagreement in reference to them about the abandonment of the land in controversy as a home, and that it was done in good faith, and the new homestead acquired in Rosebud by the mutual efforts of both parties and in an entire accord with one another.
“Conclusions of Law.
“I conclude on the foregoing that the plaintiffs could not have two homesteads at the same time, and that the property acquired in Rosebud was the homestead of the plaintiffs at the time of the execution of the deed of trust to W. E. Crawford as trustee, and that the sale under such deed of trust passed the title to the defendants Booker, and through them to the defendant L. L. Blaylock, and that by reason thereof the plaintiffs are not entitled to recover.”

The first four assignments are based upon the contention that the court erred in permitting appellees to offer in evidence, first, the written appointment by Mrs. Booker and husband of John Watson as substitute trustee, and the two deeds from him, as substitute trustee, to Mrs. Emma P. Booker, as well as the deed from the Bookers to Blay-lock, on the ground, first, that such written appointment of Watson, as substitute trustee, did not describe the land involved by field notes, nor by reference to any volume and page of any record of any county where description of such land could be found; and, second, because the acknowledgment of the Bookers purported to have been taken before a notary public of Cumberland county, Me., whereas the seal shows it to have been taken before a notary public of Brunswick, Me. The bill shows that such appointment describes the land as:

“A part of the Jas. McLaughlin league, and containing 100 acres as fully set out by metes and bounds in said deed of trust, which is fully described in volume 17, page 78 et seq., to which reference is here made for a more minute description of said land and the indebtedness for which it was given to secure,” etc.

It appears, however, that appellants themselves introduced in evidence said written appointment of Watson as substitute trustee, as well as each of the deeds above mentioned, and, in addition thereto, after appellees had pleaded their title, based upon the execution of said deed of trust, reciting the death of Crawford and the appointment of Watson as substitute trustee, as well as the sale by him of the land thereunder to Mrs. Booker, and the sale and conveyance by herself and husband to Blaylock, all of which, facts are fully set out in detail, answered, admitting the execution of said deed of trust, as alleged, with power of sale, and that said Emma E. Booker had sale made thereunder, as alleged, and became the purchaser of the lands as alleged, and that L. L. Blaylock purchased from the Bookers, as alleged, etc., which admission was offered in evidence by appel-lees without objection on the part of appellants.

Such being the state of the record, we think the assignments are not well taken. Certainly appellants, after introducing the deeds themselves, and especially after such admission on their part, cannot be heard to complain of their introduction by appellees; the obvious effect of such admission being the confession'of the truth of appellees’ allegation of title as pleaded. See article 1829, vol. 2, Vernon’s Sayles’ Civ. Stats. 1914.

The remaining assignment questions the correctness of the court’s finding that the property in question was not the homestead of appellants at the time of the execution of the deed of trust, but that they had abandoned the same and had acquired a homestead in the town of Rosebud, where they were then living. Without undertaking to discuss the facts, we think they are .sufficient to sustain the finding on the part of the court' in this respect, and overrule this assignment.

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

Affirmed.
      <§=^Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    SCHULZE v. WACO LAND & TRUST CO. et al.
    (No. 5467.)

    (Court of Civil Appeals of Texas. Austin.
    April 28, 1915.
    Rehearing Denied May 26, 1915.)
    Accord and Satisfaction <&wkey;7 — What Constitutes — Part Payment.
    Where a mortgagee expressly stated that he insisted on the full 10 per cent, interest which the notes called for after maturity, his acceptance for several years of 8 per cent. ■ interest was not a satisfaction of his claim for the excess, for part payment of a debt under an agreement that it shall be taken as full payment does not have that effect; the agreement being without consideration.
    [Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. §§ 46-58, 66, 94, 95; Dec. Dig. <&wkey;>7.]
    Appeal from District Court,, McLennan County; Tom L. McCullough, Judge.
    Suit by the Waco Land & Trust Company and another against William Schulze and another. From a judgment for plaintiffs, defendant named appeals.
    Reversed and rendered.
    Sleeper, Boynton & Kendall, of Waco, for appellant. D. A. Kelley, of Waco, for appel-lees.

       writ of error pending in Supreme Court.

   JENKINS, J.

This suit was begun October 31, 1913, by appellee trust company and S. Levy, against C. A. Boynton, substitute trustee, and Wm. Schulze, who lives in Scotland, to enjoin the sale of a parcel of land described in the petition, upon which a deed of trust, with power of sale, had been executed by D. H. Orand and wife, to secure the Waco Land & Trust Company in the payment of three notes, dated March 1,1905, two for the sum of $500 each, due, respectively, March 1, 1906, and March 1, 1907, and one for the sum of $2,300, due March 1, 1909, each bearing interest from date at the rate of 8 per cent, per annum, with interest at the rate of 10 per cent, per annum after maturity. These notes were sold by the Waco Land & Trust Cbmpany. to appellant, and payment thereof guaranteed. The first $500 note has been paid, and interest on the other notes at the rate of 8 per cent, per annum was paid on or about March 1st of each year, and the principal of the other notes was deposited by the trust company in the First National Bank of Waco to the credit of appellant on March 14, 1911. Appellant declined to receive said deposit in full payment of the amount due him, but insisted upon the payment of interest at the rate of 10 per cent, per annum after maturity of said notes. The trust company having declined to pay this interest, and the original trustee having declined to act, appellant appointed Boynton substitute trustee, who advertised said land for sale under said deed of trust. This suit was brought to enjoin said sale.

Appellees insist that appellant waived his right to demand 10 per cent, interest on said notes after maturity. The evidence in this case consists principally of correspondence between the trust company and appellant. It shows, as above stated, that interest at the rate of 8 per cent, per annum was promptly paid on these notes, and appellees insist that said correspondence shows that appellant accepted such interest in full of his demand for interest on said loan, and thereby waived his right to demand the full 10 per cent.

The common-law rule recognized in England, and in all of the states of the Union, except Connecticut and Mississippi, is that, part payment of a debt, the amount of which is definitely ascertained or agreed upon, made under an agreement that it shall be taken as full payment of the whole debt, will not have that effect; that such agreement is without consideration and nudem pactum. Bowdon v. Robinson, 4 Tex. Civ. App. 628, 23 S. W. 816; Rotan v. Noble, 36 Tex. Civ. App. 226, 81 S. W. 586; Russell v. Meek, 58 S. W. 373, 22 Ky. Law Rep. 498; Wetmore v. Crouch, 150 Mo. 671, 51 S. W. 738; Atty. Gen. v. A. L. H., 196 Mass. 151, 81 N. E. 966; McIntosh v. Johnson, 51 Neb. 33, 70 N. W. 522; Life Ass’n v. Caine, 224 Ill. 599, 79 N. E. 956; Leeson v. Anderson, 99 Mich. 247, 58 N. W. 72, 41 Am. St. Rep. 597; Hodges v. Truax, 19 Ind. App. 651, 49 N. E. 1079; Hoidale v. Wood, 93 Minn. 190, 100 N. W. 1100; Chambers v. Insurance Co., 58 N. J. Law, 216, 33 Atl. 283; Commonwealth v. Cummins, 155 Pa. 30, 25 Atl. 996; Bank v. McCormick, 97 Md. 703, 55 Atl. 439. Numerous citations might be added from other states. These are made for the reason that they appear in the Reporter System, which is accessible to most of the attorneys in this state.

This doctrine has been severely, and we think justly, criticized by courts that nevertheless felt bound by it. In Herman v. Schlesinger, 114 Wis. 382, 90 N. W. 460, 91 Am. St. Rep. 922, the court said:

“The rigorous rule of the common law permitting a person to receive part of an undisputed, presently due indebtedness, pretending to accept the same in satisfaction of the whole indebtedness, the debtor parting with the amount paid with that understanding, and then change front and sue for the balance of such indebtedness on the ground that the release thereof was void for want of consideration, is so little favored by courts that it is commonly held not to apply where anything, whether of advantage to the creditor or disadvantage to the debtor, can be reasonably said to stand for that part of the indebtedness not measured by an equivalent in money actually paid to the creditor.”

The Court of Civil Appeals for the Fifth District in this state said:

“The least consideration, however, in such a case (where the creditor has agreed to accept part in payment of the whole), is sufficient to make the agreement binding.” Rotan v. Noble, 36 Tex. Civ. App. 226, 81 S. W. 588.

The common-law rule has been abolished by statute in Alabama, Georgia, North Carolina, Tennessee, Virginia, and Maine. In a very vigorous opinion in Clayton v. Clark, 74 Miss. 499, 22 South. 189, 37 L. R. A. 771, 60 Am. St. Rep. 521, the Supreme Court of Mississippi refused to recognize the common-law rule on this subject, saying that it was founded on a dictum in Pinnel's Case, 5 Coke, 117a, and “is absurd, irrational, unsupported by reason, and not founded in authority.” So far as we know, this question has not been passed upon by the Supreme Court of this state. It is not necessary that we should pass upon it in the instant case, for the reason that the evidence does not show that the appellant agreed to accept the interest paid (8 per cent.) in satisfaction of the interest called for in the notes, which, as we have stated, was 10 per cent, per annum after maturity. On the contrary, appellant in April, 1909, and again in 1911, expressly stated that he insisted upon the full amount of interest as called for in the notes. Such being the facts, the court should have rendered judgment for appellant dissolving the injunction, and the judgment of the trial court is reversed, and here rendered for appellant.

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


text:
    PHILLIP-CAREY CO. v. MANES.
    (No. 5423.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 20, 1915.
    On Rehearing April 7, 1915. Further Rehearing Denied May 26, 1915.)
    1. Evidence <&wkey;441 — Parol Evidence Varying Contract — Letter.
    In an action to recover the price paid for a roof put on by defendant in accordance with a written contract, because of the breach of a warranty, a letter written by defendant which accompanied the contract, and which contained additional statements in the nature of warranties, is inadmissible, since, if it had any effect, it varied the terms of the contract.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1719, 1723-1763, 1765-1845, 2030-2047; Dec. Dig. &wkey;441.]
    On Motion for Rehearing
    2. Trial <&wkey;255 — Submission of ■ Issues to Jury — Necessity of Request.
    In an action to recover the amount paid for a roof put on by defendant in accordance with a written contract warranting it for 10 years, the failure to submit the issue as to the value of the roof as constructed does not require a reversal of a judgment for plaintiff, where defendant made no request for such submission, and the court, in substance, found that the roof was valueless at the time the action was brought, and that the value of the use thereof did not exceed the interest on the purchase price.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. &wkey;255.]
    3. Appeal and Error <&wkey;1052 — Harmless Error — Admission of Evidence — Cure by Special Verdict.
    Error, in admitting in evidence, in an action for breach of warranty, a letter which accompanied the written contract is harmless, where the findings of the jury, aside from those based on that evidence, were sufficient to sustain the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. <S&wkey; 1052.]
    4. Sales <&wkey;440 — Remedies of Buyer — Breach of Warranty — Recovery of Purchase Price — Evidence.
    In an action to recover the price of a roof put on in accordance with the contract warranting it for 10 years if painted with a certain paint at times directed by the defendant, evidence that defendant’s salesmen vainly attempted to sell some paint to plaintiff is immaterial, where there was no showing that the salesmen requested him to paint the roof, or that they had any authority to make such request.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1261-1276; Dec. Dig. <¿=3440.]
    5. Trial <&wkey;260 — Submission of Special Issues — Issues Covered by Court’s Charge.
    It is not error for the court to refuse to submit special issues, which were sufficiently submitted in the court’s charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260J
    6. Sales <&wkey;446 — Action ' for Breach of Warranty — Submission of Special Issues —Incorrect Issues.
    In an action for the price of a roof put on by defendant five years before, in accordance with a written contract warranting it for 10 years, at the end of which time the roof should be perfectly water tight, it was not error to refuse to submit issues requested by defendant as to whether the roof could have been then repaired and made water tight, so as to last for several years.
    [Ed. Note. — For other cases, -see Sales, Cent. Dig. §§ 1309-1317; Dec. Dig. &wkey;446.]
    Appeal from Coleman County Court; F. M. Bowen, Judge.
    Action by O. B. Manes against the Phillip-Carey Company. Judgment for the plaintiff, and defendant appeals.
    On rehearing, former opinion set aside and judgment of the trial court affirmed.
    J. A. B. Miller and Woodward & Baker, all of Coleman, for appellant. Snodgrass, Dibrell & Snodgrass, of Coleman, for appellee.
   JENKINS, J.

Appellant and appellee entered into the following contract:

“Dr. O. B. Manes, Coleman, Texas — Dear Sir: We herewith offer to apply our Carey roofing on your buildings in course, of erection in Coleman, figured on a basis of 135 squares for the sum of $685.00. We further agree to guarantee'this roofing as applied by us for a period of ten years from date of application, against all imperfections of workmanship and material, provided you paint, or cause the roofing to be painted with our magnesia paint, four times during the term of this guarantee.
“We furthermore agree that the price of this paint shall not exceed 45$ per gallon, f. o. b. Dallas, Texas. These four paintings to be at isuch intervals, as will, in our judgment, best subserve the interest of the roofing. We furthermore agree to turn over to you at the end of ten years’ guarantee, a perfectly water-tight roof. We furthermore agree upon due notice in writing to correct any defect for which we are responsible within a reasonable time after such notice.
“The above price includes guttering and down spouts.
“Yours very truly,
“The Phillip-Carey Mfg. Co.,
“W. J. Meyersick, Manager, Dallas Branch.
“Accepted. O. B. Manes.
“Dated Oct. 15, 1906.”

Said contract was sent to appellee in an envelope with a letter giving reasons why appellant’s paint should be used instead of any other good paint, as had been suggested by appellee. After the roof had been used by appellee for about five years he brought this suit to recover the price paid for the same, together with amounts paid for repairing and painting, alleging that the value of the roof did not exceed the interest on the money paid by appellee, which he did not seek to recover. The case was submitted to a jury on special issues. Upon their findings that appellee paid appellant $685 for the roof, $100 for repairs, and $120 for painting same, that the material used in said roof was not such as was called for in the contract, and that the same was rotten and worthless when taken off, judgment was rendered for appellee for $905.

By proper bills of exception, motion for new trial, and assignments of error, appellant submits the proposition that the court erred in not submitting to the jury the question of the value of the roof as the same was constructed, and in refusing to submit this issue as requested by the appellant. We sustain the assignments of error presenting this issue. If the roof was not as guaranteed, but was not wholly worthless, appellee’s measure of damages was the difference between the value of same as constructed and the price that appellee paid for the same, with interest thereon to date of trial. If the roof was worthless, appellee was entitled to recover back the purchase price, together with any amount expended by him in attempting to repair and maintain said roof, which appeared to be reasonably necessary for such purpose, and which was so expended before he discovered that the same could not be made of value by repairing or painting same. The judge, in an explanation to a bill of exceptions as to his refusal to submit to the jury the issue of the value of the roof when constructed, said that he did not consider that such value exceeded the interest on the money paid by appellee for the roof. He may have been correct in his opinion on this matter, but this was a disputed issue of fact for the jury, and not the court, to pass upon.

We think the court erred also in admitting the letter above referred to, to be read in evidence to the jury. The character of the roof guaranteed by appellant is stated in the written contract. The effect of the letter, if given any consideration, was to vary the terms of the written contract.

For the reasons stated, the judgment of the trial court is reversed and this cause is remanded for a new trial.

Reversed and remanded.

On Motion for Rehearing.

Upon a former day we reversed and remanded this case on account of the failure of the court to submit to the jury the question of the value of the roof when the same was constructed. We were then under the impression that appellant requested the submission of this issue, and excepted to the failure of the court to submit it. Appellant’s bills of exception and assignments of error are full of references to the proposition that the correct measure of damages is the difference between the value of the roof agreed to be put on and the value of the roof which was put on at the time the same was constructed; but appellee has called our attention to the fact that, notwithstanding the frequent references to this issue, the appellant did not, in fact, request the court to submit such issue.

Appellee did not allege that the roof was entirely worthless when constructed, but that it was comparatively worthless, and that it became utterly worthless in the course of four or five years, when the same was tom off, and that the value of the use of the roof did not exceed the interest on the money paid therefor. While this issue was not submitted to the jury, and no request was made that it should be, it would be presumed that the court found upon such issue in favor of ap-pellee ; but this case does not rest upon such assumption, for the reason that the court, in qualifying the bills of exception to its refusal to peremptorily instruct the jury to return a verdict for the defendant, stated the allegations of the plaintiff as above set out, and in substance that he found the same to be true; that is to say, that he found that the use of the roof did not exceed in value the interest on the money. Such being the state of the record, we were in error in reversing this case on the ground that the issue as to the value of the roof at the time it was constructed was not submitted to the jury.

We stated in our former opinion that the court erred in admitting the letter from appellant to appellee to be read in evidence. We are still of this opinion, but this does not demand a reversal of this case. The letter added to the contract two items only, one was that the roof would be as good at the end of 10 years as when it was put on, and the other was that it would probably be a good roof for SO years. Both of these issues were submitted to the jury, and found in favor of appellee. These findings, however, are rendered immaterial in that the other findings sustain the judgment rendered. Such other findings are: (1) That appellee paid appellant $685' for putting on said roof; (2) on January 17, 1907; (3) that the material used in said roof was worthless when taken off; (4) that the material was not of the kind required by the contract; (5) that it would not have been a water-tight roof at the end of 10 years had it been painted as specified in the contract; (6) that appellee paid appellant for paint $70; (7) for putting same on roof $50; (8) that the reasonable amount expended by appellee in repairing the roof was $100; (11) the appellant never requested the appellee to paint the roof, except in September, 1909; (12) appellee complied with1 such request in February, 1910; (13) appellee notified appellant in writing of the defects in the roof, and requested that it remedy the same; (14) appellant failed to comply with such request; (15) the roof at the time it was torn off could not have been repaired so as to make it a water-tight roof; and (16) (at request of appellant) it could not have been repaired at a reasonable cost and made a practically good, water-tight roof.

Appellant requested the court to submit to the jury whether or not the salesmen of appellant at certain times called on appellee for the purpose of selling him magnesia paint with which to paint the roof, and that appellee refused to purchase the same. These issues were not material. These agents were traveling salesmen for the sale of said paint, and did not request appellee to paint the roof, and do not appear to have had any authority from appellant to make such request.

Appellant’s requested issue No. 3 was as to whether the roof at the date of filing this suit could have bene repaired at a cost of about $100 and made a water-tight roof, which would have lasted from date of such repair for several years. Appellant’s requested issue No. 7 was as to whether the roof could have been repaired at a reasonable cost when torn off, so as to make the same a water-tight roof. The court did not err in refusing to submit these issues to the jury for the reason: (a) They were sufficiently submitted in the court’s charge; (b) under the contract appellant was required to construct a roof which would be water tight, not when repaired several years after it was put on, but at the end of 10 years. This the jury found it did not do.

For the reasons stated, the motion for rehearing is granted, our former judgment reversing and remanding this case is set aside, and the judgment of the trial court is affirmed.
      <@n=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g£5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CITY OF TEAGUE v. FABRIC FIRE HOSE CO.
    (No. 5503.)
    (Court of Civil Appeals of Texas. Austin.
    May 19, 1915.)
    Municipal Cobpobations &wkey;>1034 — Action Against — Petition—Conversion.
    The .action against a city not being for debt, but for conversion, the petition need make no allegation as to manner of contracting debt for the property, or provision for its payment.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 2203-2205; Dec. Dig. &wkey;>1034.]
    Appeal from Freestone County Court; R. B. Williford, Judge.
    Action by the Fabric Fire Hose Company against the City of Teague. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    A. B. Geppart, of Teague, for appellant.
   RICE, J.

Appellee brought this suit against the city of Teague, to recover damages for the conversion of 1,000 feet of fire hose. A trial before the court without a jury resulted in a judgment in favor of appellee in the sum of $320, from which judgment appellant has prosecuted this appeal, urging, first, that the court erred in overruling its special exceptions to plaintiff’s petition, on the ground that the same failed to allege that the debt due the plaintiff was contracted for either by ordinance or resolution, as required by law. Second, that said petition fails to allege that at the time the debt was created provision was made for the annual assessment and collection of a sufficient sum to pay the interest thereon and create a sinking fund of at least 2 per cent, or that any provision was made at the time said debt was created for its payment, as required by law. Both of these exceptions were properly overruled, because this was not a suit to collect a debt in the sense suggested by said exceptions; but, on the contrary, was a suit for the unlawful conversion on the part of said city of the hose in question, for which reason we overrule said contentions.

The evidence amply supports the judgment rendered. We do not believe, however, that this is a case that would warrant our affirming with damages, as requested by appellee.

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

Affirmed.
      cg^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    SANDS v. CURFMAN.
    (No. 7353.)
    (Court of Civil Appeals of Texas. Dallas.
    May 22, 1915.)
    1. Evidence &wkey;317 — Heabsay — Conversations — Action on Note.
    In a transferee’s action on a note given to a minor for a debt which defendant claimed to have paid to the payee after confirmation of the contract creating the debt, testimony of defendant and his attorney as relative to conversations had with the payee before and at the time of the confirmation, as to the renunciation of the contract transferring the note, being hearsay where the payee was not a party to the suit and the conversations were not had in the presence of plaintiff, was improperly admitted.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. &wkey;317.]
    2. Bills and Notes <&wkey;427 — Nonnegotiable Note — Action by Tbanseeeee — Defense — Payment.
    In a transferee’s action on a nonnegotiable note, it is no defense that defendant alter notice of the transfer, has paid the amount of the note, or any part thereof, to the payee.
    [Ed. Note.- — For other cases, see Bills and Notes, Cent. Dig. §§ 1233-1244; Dee. Dig. <&wkey;> 427.]
    3. Bills and Notes <&wkey;443 — Nonnegotiable Notes — Rights oe Transferee.
    Recitals in a deed that the note given for the purchase price was “nonnegotiable and nonassignable” could not, in view of Rev. St. 1911, art. 583, authorizing the assignment of nonnegotiable notes, defeat the right of a transferee to recover as owner thereof, though he took the note with knowledge of the recitals in the deed.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1377-1380, 1383-1392, 1394-1423; Dec. Dig. &wkey;443.]
    4. Infants <S=»47 — Contbacts — Disaffirmance.
    A minor’s contract is not void by reason of his minority, but is voidable only at his instance, where he acts within a reasonable time after reaching his majority.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 99, 101-108, 110; Dec. Dig. &wkey;47.]
    Appeal from District Court, Rockwall County; Kenneth Foree, Judge.
    Action by J. M. Sands against W. A. Curf-man. From judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    H. M. Wade, of Rockwall, for appellant. E. D. Foree and T. B. Ridgell, both of Rock-wall, for appellee.
   RAINEY, C. J.

In the year 1909 Jesse Fletcher, a minor, conveyed to W. A. Curfman a tract of land situated in Rockwall county in consideration, among other things, of a promissory note for $975, executed by said Curf-man, payable to said Fletcher January 1, 1911, and to secure same a lien was reserved in the said conveyance on said land. During said year 1909 said Fletcher, for a valuable consideration, transferred said note to the appellant, J. M. Sands. On February 21, 1913, appellant, Sands, sued appellee, W. A. Curfman, to recover on said note and to foreclose the lien on said land. Curfman answered that said note was nonnegotiable and unassignable; that he had no notice of the transfer to Sands, and that he had paid off and settled same with Fletcher; that Fletcher was a minor when the note was executed, but, since, his disabilities had been removed, and he had confirmed the sale of the land and had received payment of the note from Curfman and had released the lien on said land. The case was submitted to the jury by the court on one issue only, that is, “Did the defendant Curfman know, at the time he paid the note to Fletcher, that said note was in the possession of plaintiff, Sands?” To which they answered, “Yes.” Both parties moved for a judgment for each respectively. The court entered judgment for Curfman, and Sands appeals.

Assignment 3 complains of the court in permitting, over objections of Sands, Curfman, and his attorney Foree, to relate conversations had before and at the time of the execution of the deed of confirmation with Fletcher as to his intentions regarding the renunciation of the contract transferring the note. We think this testimony .should not have been admitted.' Fletcher was not a party to this suit, such conversations were not had in the presence of Sands, were hearsay, and were not legitimate as against Sands.

The note was nonnegotiable, and Sands took it subject to all legitimate defenses urged by Curfman that accrued before Curfman had notice of such transfer. If after Curfman received notice of said transfer to Sands he paid any sum to Fletcher on said note, he did so at his own risk, and is not entitled to recover same as an offset against the claim of Sands.

But it is claimed by Curfman that Sands was not the owner of the note, as the deed recited that the note was “nonnegotiable and nonassignable,” of which Sands had notice, and he. was entitled to recover thereon. The note on its face showed only that it was nonnegotiable, and did not contain the said recitals in the deed. Sands testified that when he traded' for the note he knew nothing about the transaction between Fletcher and Curfman, except what the note itself showed. But if it be conceded that Sands knew of such recitals in the deed, his position would have been the samé, as from the face of the note lie was notified of its nonnegotiability. Article 583, R, S., authorizes the assignment of nonnegotiable notes, and article 584 makes such, subject to all defenses by a former owner before notice of the assignment. Curfman could not defeat tbe right of Sands to recover on the ground that he was not the owner as stated.

Appellant further contends that Fletcher, upon the removal of his disabilities, and at the time of the confirmation of the sale of the land, repudiated the transfer of said note, and Curfman was justified in paying off the note, and Fletcher was relieved from further liability thereon. Aside from the conversations of Curfman and Foree as to what Fletcher stated to them, we find no evidence in the record sustaining this contention of Curfman. Fletcher did not testify on the trial, and there is no evidence showing that he made known to Sands any intention of repudiating the said transfer. Upon the other hand, we find evidence in the record tending to show that Fletcher never. did repudiate said transfer.

A contract made by a minor is not void for the reason that he is a minor, but it is voidable only at the instance of the minor, and he must, within a reasonable time after reaching his majority, disaffirm the contract or it will be binding. Fletcher did not dis-affirm the contract with Sands; therefore Sands had the right to rely thereon.

The jury having found that Sands was in possession of the note, and that Curfman had notice thereof the court should have submitted to the jury the issue of amount due thereon, and rendered judgment for plaintiff according to such findings. As there is some confusion in the evidence as to what credits, if any, should be allowed on the note, the judgment will be reversed, and cause remanded.
      <©^?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    ÆTNA ACCIDENT & LIABILITY CO. v. WHITE et al.
    (No. 7232.)

    (Court of Civil Appeals of Texas. Dallas.
    May 8, 1915.
    Rehearing Denied June 5, 1915.)
    1. Insubance <@=287 — Bubglaby Insubance —Defense—False Statements — Evidence of Matebiality.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4947, providing that any provision in an insurance policy that false statements shall render the policy void or voidable shall be ineffective, unless it appear that the statements were material to the risk, or contributed to the insurer’s liability, a false statement in a burglary policy as to the ownership of a safe and the price paid for it was no defense to an action on the policy, in the absence of proof that such statements contributed to the loss or were material to the risk.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 658, 659; Dec. Dig. <@=2S7.]
    2. Appeal and Ebbob <©=>1070 — Habmless Ebbob — Conflicting Findings — Submission of Issues.
    Where issues of fact not. made .by the pleadings are submitted to the jury, the fact that the jury’s findings thereon conflict with findings on issues made by the pleadings does not require a reversal.
    [Ed. Note. — For other cases^ see Appeal and Error, Cent. Dig. §§ 4231-4233; Dec. Dig. <@= 1070.]
    3. Insubance <@=256 — Bubglaby Insubanoe —Subsequent Misstatements — Effect.
    Any statements made by the insured to the insurer in good faith, relative to the safe, after issuance and delivery of a policy of burglary insurance, in response to the latter’s request for information, when not required by the policy, cannot affect the insured’s rights, unless he agrees without consideration other than that originally inducing the issuance of the policy, that they shall do so; especially where the insurer’s request for information contains no warning that the information may be used, in case of loss, to defeat payment, and no opportunity is given for any arrangement to meet the changed condition, but insured is left in fancied security until a loss occurs.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 540, 549; Dec. Dig. <@=256.]
    4. Banks and Banking <@=111 — Cashiee— Scope of Authobity — Statements to In-subee.
    Statements made by a bank cashier in response to an inquiry of the company which had issued a burglary policy, which statements incorrectly described the door of the safe, were not made within the apparent scope of his authority.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 269, 270; Dec. Dig. <@=
    5. Insubance <@=397 — Bbeach of Warranty —Waives.
    Where the insurer’s general agent inspected the burglarized safe immediately after the burglary, secured details of its construction and character, and thereafter promised to pay the loss, and, as an incident to the adjustment, publicly exhibited a placard announcing that the loss had been adjusted on the date on which it occurred, any breach of warranty by the insured was thereby waived, though the policy provided that no condition should be waived except by a designated officer in a designated way.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1078-1082; Dec. Dig. <@=397.J
    6. Insubance <@=602 — Bubglaby Insubance —Pbovision fob Damages and Attobneys’ Fees — Application of Statute — Liability Insubance.
    Rev. St. 1911, art. 4746, providing that 12 per cent, of the loss and a reasonable attorney’s fee for procuring a claim against a defaulting insurance company shall be paid the insured whenever the “life insurance company, or life and accident, health and accident, or life, health and accident company liable therefor shall fail to pay the saíne,” does not apply to policies indemnifying against loss by burglary, commonly known as liability insurance, though the company issuing the policy also does an accident insurance business.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1498; Dec. Dig. <@=602J
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by Lou White and others against the .¡Etna Accident & Liability Company. From judgment for plaintiffs, defendant appeals.
    Affirmed.

      Harry P. Lawther, of Dallas, for. appellant. Locke & Locke, of Dallas, for appel-lees.

       Writ o£ error pending in Supreme Court

   RASBURY, J.

Appellees sued appellant upon a policy of insurance indemnifying them against loss by burglary, alleging that by the terms of the policy appellant agreed to indemnify appellees, who were engaged in the banking business at Wilmer, Tex., against all direct loss by burglary of money, bullion, bank notes, etc., not in excess of $5,000, if feloniously abstracted from appellees’ safe. It was further alleged that a loss did occur by burglary, and that appellees had complied with all the provisions of the policy, but that appellant refused to pay the loss. Judgment was sought for the amount of the loss, approximating $3,300, together with 12 per cent, on the amount of the loss as damages, and together with $500 attorney’s fees; the right to recover the last two items being based upon the provisions of article 4746, R. S. 1911.

Appellant admitted the issuance of the policy of insurance, denied any knowledge of a character sufficient upon which to base any belief concerning the burglary and consequent loss and damage, but specifically charged as defensive matter that appellees had breached certain warranties in the policy, and made certain false representations concerning the safe kept by appellees in their banking house, which would reduce the amount of appellant’s liability, it being provided by said policy that in case of misstatement in the description of safe, etc., the policy should not be forfeited, but that appellant would in case of loss pay the amount only which the premium actually paid would have purchased at the rate charged by the appellant for the actual hazard. The defenses referred to generally above were pleaded specifically by appellant as follows:

(1) That the plaintiffs warranted that the price paid for safe by present owner was $500, and that the warranty was breached, in that the plaintiffs were not the owners of the safe, and had not paid either $500 or any sum therefor.

(2) That the plaintiffs warranted that “the safe proper is fire and burglar proof”; that “fire and burglar proof,” as so used, was defined in the policy to mean “that class of safe or vault so designated by safe manufacturers to denote construction intended to protect against loss by fire and burglary”; that, in fact, the safe was not of such class, and was known by the plaintiffs not to be so.

(3) That the policy contained a provision authorizing the company to cancel it on five days’ notice on return of unearned premium; that after the policy had been delivered by it to The plaintiffs and accepted by the plaintiffs, to wit, on September 21, 1910, its general agents wrote to the plaintiffs a letter as follows:

“Recently we executed the above policy covering your bank, but the home office has asked us for a little additional description of your safe. Will you please tell us whether the outer door of your safe is reputed of solid steel construction to resist burglary, or if it is simply of iron cases with concrete filling.”

And the plaintiffs replied:

.“Replying to your inquiry of the 21st inst., will state that the outer doors of our bank safe at this place are of solid steel construction four and one-half inches thick.”

That, in fact, the outer doors were iron cases with concrete filling, and that, if the company had known this fact, it would have canceled the policy.

In response to the foregoing pleas appel-lees pleaded certain facts, not necessary to enumerate, but which will be referred to in our discussion of the issues when necessary.

There was trial by jury, to whom the case was submitted on special issues of fact. Upon the findings of the jury judgment was rendered for appellees, the court refusing to allow the damages and attorneys’ fees. Erom the judgment appellant has appealed, and appellees file a cross-assignment challenging the court’s action concerning the damages and attorney’s fees.

The facts necessary to a disposition of the appeal are that appellant did issue to appel-lees, who were bankers in the town of Wilmer, Tex., a policy of insurance by which appellant agreed to indemnify appellees against direct loss by burglary of money, bullion, bank notes, etc., to the extent of $5,000, which might be feloniously abstracted from appellees’ safe and their other office furniture, fixtures, etc. The policy issued to ap-pellees was not based upon a written application made therefor by appellees. One O. R. Rea, of Lancaster, solicited appellees to take the insurance, and after appellees agreed to take the insurance Rea offered the business to the general agency of appellant in Dallas, where it was accepted, and the policy prepared and delivered to Rea, who made all representations of fact upon which the policy was issued, and who in turn delivered it to appellees. The policy was issued August 25, 1910. Thereafter O. H. Verschoyle, appellant’s general agent ^ at Dallas, wrote and forwarded to appellees the following letter:

“Dallas, Texas, September 21, 1910.
“White Banking Company, Wilmer, Texas.
“In re Burglar Policy No. BB340.
“Recently we executed the above policy covering your bank, and the home office has asked us for some little additional description of your safe. Will you please advise us whether the outer door of your safe is reputed of solid steel construction to resist burglars, or is it simply of iron casing with concrete filling. Kindly favor us with an early reply.
“Yours Very truly,
“C. H. Yerschoyle & Co.,
“General Agents.”

To the foregoing the following reply was received:

“Wilmer, Texas, September 22nd, 1910.
“O. H. Versehoyle & Co., Dallas, Texas:
“Replying to your- inquiry of the 21st inst., will state that the outer doors of our bank safe at this place are of solid steel construction, four and one-half inches thick. If we can be of further service to you, kindly command us.
“Yours very truly,
“White & Co.,
“Carl Tygert, Cashier.”

Subsequent to the foregoing appellees did suffer a loss by burglary approximating $3,-300, which appellant refused to pay. In the policy were certain conditions which the parties agreed should be conditions precedent to any recovery by appellees under the policy, among such conditions being the following:

“(b) ‘Eire and burglar proof,’ as used in this policy, shall be deemed to mean that class of safe or vault so designated by safe manufacturers to denote construction intended to protect against loss by fire and burglary.
“(c) In case of misstatement in description of safe, vault, or protective appliances, or failure to maintain watchman service as described in the warranties of this policy, the insurance hereunder shall not be forfeited, but the company shall pay the amount of indemnity which the premium would have purchased at the rate charged by the company for the actual hazard.”

Certain information furnished by appellees and made in the form of statements of fact was contained in the policy, which was warranted by appellees to be true, and among which statements were the following: (1) The safe proper is fire and burglar proof (i. e., fireproof with steel lining and exposed bolt work — steel); (2) thickness of outer burglar proof door, exclusive of bolt work, is four inches; (3) safe was purchased secondhand August, 1910; (4) price paid for safe by present owner was $500. The safe was burglarized in the early morning of February 15, 1913. Entry was effected by forcing the safe open or apart by some character of explosive. Versehoyle, appellant’s general agent, was informed of the burglary promptly, and proceeded to Wilmer, arriving there about 8 or 9 o’clock of the morning of the burglary. He inspected the safe and the premises and examined and checked the books, counted the cash, and said everything was -satisfactory, and informed appellees that as soon as he could prepare proof of loss, which would be the following Saturday, and appellees could sign same, the loss would be paid. Ver-schoyle, in effect, admitted the promise to pay, but said that the promise was made upon the assumption that everything was, in fact, satisfactory, and because the conditions of the policy, upon which liability was after-wards denied, did not occur to him, although he examined the safe while adjusting the loss, and saw that it was not as represented in the policy. Returning to Dallas, Ver-sehojde examined his records and prepared and forwarded proofs of loss to appellees for the amount of the adjustment for appellees’ signature. In the meanwhile Versehoyle gathered portions of the safe and some of the silver left by the burglars and placed them in a display window in a building on one of the principal streets of Dallas, accompanied by the following placard:

“Burglars.
“Pieces of Safe of White Banking Company,
“Blown at Wilmer, Texas.
“Burglary February loth, 3 a. m.
“Loss adjusted February 15th, 11:30 a. m.
“iEtna Accident & Liability Company,
“C. H. Versehoyle & Co.”

It was shown at the trial practically without dispute that the safe installed in appel-lees’ bank was that class of safe designated generally by safe manufacturers as a fire and burglar proof safe. The safe, however, while fireproof, did not have steel lining and exposed bolt work, nor was the thickness of the outer door, exclusive of bolt work, four inches. The character of the safe was known to Rea when he solicited the insurance from appellees. Rea claims to have imparted his knowledge to Versehoyle, which Versehoyle denied. Appellant declined to pay the amount demanded by appellees for the reasons set forth in its answer, but did offer to pay the amount it would have been liable for under the amount of premium paid, based on the alleged actual hazard.

Many issues of fact were submitted to the jury, and we have carefully analyzed them with reference to- the issues to which they relate. The findings are supported by the evidence, and will supply any facts omitted by us. These findings, in our own language are: (1) That the safe which was burglarized was that elass of safe designated by manufacturers as “fire and burglar proof,” but it did not have steel lining and exposed steel bolt work; nor did it have an outer door four inches thick, exclusive of bolt work; (2) that the difference in the specifications contained in the policy and those of the safe actually in use was not material to the risk; (3) that they did not know who owned the safe, but that ownership was also immaterial to the risk; (4) that Rea, who solicited the insurance from appellees, knew the exact character of the safe when the policy was issued, but ■ that Versehoyle, appellant’s general agent, did not; (5) that Versehoyle, appellant’s general agent, had he known that Ty-gert misstated the character of the safe when Versehoyle inquired about it, would have canceled the policy; (6) that Tygert did not have the authority to speak for appellees concerning the safe, and did not consult them, and was but giving his opinion in that respect; (7) that Versehoyle, after inspecting the safe after the loss, and ascertaining its character, admitted liability on the policy and promised payment.

It is first asserted as a proposition under several assignments of error that the trial court should have granted appellant a new trial, because the findings of the jury are so conflicting and contradictory that they do not sustain the judgment of the court entered thereon.

In connection with the proposition thus stated we will discuss its application to the first issue raised in appellant’s pleading. This issue is that appellees, by a misstatement of fact, breached the warranty in the policy to the effect that the “price paid for [the] safe by present owner was $500,” while it was shown by the evidence that appellees not only did not pay $500 for the safe, but did not own same, and that as a result the amount recoverable was reduced in accordance with other provisions of the policy herein noted. As bearing on this issue, the jury found that from the evidence they did not know whether the owner of the safe paid $500 for it at the date of the issuance of the policy or not, but that, if the then owner did not pay so much for it, such fact was immaterial to the risk. It was in evidence as an undisputed fact that at the time the policy was issued appellees were lessees of the safe, and W. D. Blair, a dealer in safes, was the owner. The policy seems to contemplate that ownership may be in the assured or another, since it agrees to indemnify the owner against loss to the safe, etc., “to the extent of the assured’s interest or his liability as tenant,” and appellees did agree with Blair to insure the safe. Blair received the safe from a customer in part payment of another safe, and was unable to say what he allowed for it, though he thought about $250. There was no evidence introduced by appellant tending to show wherein the price paid for the safe by the owner was material to the risk assumed by appellant. Article 4947, Yernon’s Sayles’ Stats. 1914, provides, in effect, that any provision in a policy of insurance that statements therein made, if untrue or false,' shall render the contract of insurance void or voidable, shall be without effect, and constitute no defense to any suit thereon, “unless it be shown upon the trial.thereof that the matter or thing misrepresented was material to the risk or actually contributed to the contingency or event on which said policy became due and payable and whether it was material and so contributed in any case shall be a question of fact to be determined by the court or jury trying such case.” This statute clearly places upon the litigant who alleges a breach of the contract by misstatement or misrepresentation the burden of showing that the “matter or thing misrepresented was material to the risk or actually contributed” thereto. No such showing was made, and, while the jury found the price paid for the safe was not material to the risk, we think the finding under the statute was unnecessary, since, in the absence of proof showing the materiality of the provision, it is, as matter of law, immaterial. The article of the statute is plain and unambiguous, and applies to every character of insurance. Scottish Union & National Insurance Co. v. Wade, 127 S. W. 1186. Hence the undisputed facts that appellees were not the owners of the safe and the failure of the jury to find the price paid for the safe by Blair when he acquired it do not, in view of the statute, present such conflicts and contradictions as prevent a valid judgment thereon. These facts, however true, constituted no defense to the suit in the absence of a showing that they in some manner contributed to the loss or were material to the risk.

Under the proposition just stated it is further urged that the findings of the jury on appellant’s second defense pleaded are also so conflicting and contradictory that they will not sustain the judgment of the court. This defense, which we have stated in full at another place in this opinion, was that appellant was not liable because appellees had breached the warranty in the policy that “the safe proper is fire and burglar proof,” and which warranty was defined at another place in the policy to mean “that class of safe or vault so designated by safe manufacturers to denote construction intended to protect against loss by fire and burglary.” The findings of the jury on the issue thus presented, as shown in our statement of the ease, is that the safe was that class of safe designated by manufacturers as fire and burglar proof. Thus it is seen that the jury found, as matter of fact, that the safe was exactly the kind of safe defined in appellant’s policy, and of the kind specifically pleaded by appellee as having been warranted. But, as further matter of fact, the policy provided in another warranty, in further definition of a fire and burglar -proof safe, that it should have steel lining and exposed steel bolt work, with an outer door 4 inches thick, exclusive of bolt work. A reference to the pleading of appellant, however, will show that it did not plead that portion of the -warranty just quoted, and did not rely upon the same as a defense though for some reason the evidence on that issue was submitted to the jury, and the jury found that appellant’s safe did not meet the specifications last enumerated. We conclude, however, that such findings afford no reason why the judgment should have been set aside, even though in conflict with the findings upon the warranty actually set up in the pleading. It would be useless for us to discuss or cite authorities in support of the long-settled rule that evidence developed upon trial in support of issues of fact not made by the pleading should not be referred to the jury for their findings thereon. When such issues of fact are submitted when not raised by the pleading, the jury’s conclusions thereon may and should be ignored by the trial court, and will be by this court.

Under the proposition originally stated it is further urged that the findings of the jury upon the issues presented by appellant’s third defense are so conflicting and contra-dietory that the court’s judgment cannot be sustained. Appellant’s third defense is that it would have canceled the policy before the burglary, as it had the right to do upon five days’ notice to the assured and a return of the unearned premium, had appellees’ cashier truthfully answered appellant’s agent’s letter inquiring of the character of their safe. As shown at another place in this opinion, Oarl Tygert, appellees’ cashier, purporting to act for appellees, did, in answer to a query from appellant’s general agent as to whether the outer door of appellees’ safe was reputed to be of solid steel, reply that it was of solid steel 4% inches thick. The jury found in response to appropriate questions that the safe door was not of solid steel 4% inches thick, and that, if Verschoyle, appellant’s general agent, had known the real character of the safe, or had known that Tygert misstated its true character, in responding to Versehoyle’s letter, Verschoyle would, under the provision of the policy authorizing him to do so, have canceled the insurance and returned the unearned premium. Bearing on the issue, it is to be remembered that the letter inquiring concerning the safe and Tygert’s answer thereto were both written after the issuance and delivery of the policy. It is thus obvious that the findings of the jury in the respects stated are conflicting. But it is urged that such conflict is immaterial as matter of law, for the reason that after the policy of insurance was issued and delivered any statements made by the insured to the company in good faith in response to the company’s request for information, and not required by the policy to be made, cannot affect the rights of the assured thereunder, unless the assured agrees, for considerations other than those originally inducing the issuance of the policy, that they shall do so. The principle announced is a well-settled rule of law, and is applicable in all respects to the case at bar. The policy contains no provision imposing upon the assured the duty to make such statements, nor does it appear from the evidence that any right, privilege, or benefit not granted by the original contract of insurance was conferred upon the assured in consideration of the statement requested and given and sought to be made a warranty by appellant. As we have said, the policy was not issued upon an application by the assured, but was issued at the request of O. R. Rea, an insurance agent who knew the true character or specifications of the safe, and upon whom appellant relied for information in'that respect. Having relied upon the statements furnished by Rea, appellant, as against appellees, is not entitled after loss to defeat payment by showing that the statements of fact contained in the policy are misstatements, and to establish that issue by statements made by the assured after the policy was issued, and after all concerned had finally acted and adjusted their respective rights. This is particularly true when the request for information contains no warning to the assured that such information may be used, in case of loss to defeat payment, without affording opportunity of rearranging same to meet the changed condition, but, on the contrary, leaves the assured in fancied security until a loss actually occurs. The rule of law invoked is sustained in Liverpool & London & Globe Ins. Co. v. Stern, 29 S. W. 678, and Fire Ass’n of Phila. v. Bynum, 44 S. W. 579. In the case last cited it is said:

“The insurance was effected without a written application. We think that when plaintiff was afterwards asked to make such an application, and he did so, it did not relate back and become a part of the original contract. As we have stated, it might have become the basis of a new contract, for the continuance of the policy, in consideration of the company’s not exercising its right to cancel, but this was not set up or claimed. The policy went into force without any application. The signing of an application afterwards, containing statements of certain facts, cannot be said to have induced the issuance of the policy sued on.”

The editors of L. R. A. state the rule to be that:

“If there is no application, or if the answers are written in the application by the agent on his own knowledge or authority, without questioning the applicant, or if some of the questions are left unanswered in the application, or the answers given are incomplete, the company is generally held estopped to set up a forfeiture on the ground of falsity of such answers as are written by its agent, or on the ground of failure of the insured to answer questions material to the risk.” People’s Fire Ins. Ass’n v. Goyne, 79 Ark. 315, 96 S. W. 365, 9 Ann. Gas. 373, 16 L. R. A. (N. S.) 1180.

See note, page 1243, collating and annotating cases from numerous jurisdictions. The rule just stated is of peculiar significance in this case when it is recalled that the evidence shows that some one in the office of appellant, with authority to do so, prepared and delivered the policy to C. R. Rea without questioning appellees in reference thereto, or demanding an application from them, but acted in that respect wholly upon its own knowledge and authority, or that of Rea.

While we think what we have just said is conclusive of the issue under discussion, at the same time we think that the jury’s finding that Tygert was without actual authority to make the representation that he did make in the letter is supported by the evidence, and that the evidence further sui> ports the conclusion of - law on our part that in making the statements he did Tygert was not acting within the apparent scope of his authority. Giving to the position of cashier the broadest authority fairly inferable from the term, it would not, clearly, comprehend as a presumption of law the authority to bind his principal with reference to the specifications or other details of the construction of a safe used by appellees in their business, and concerning which it is not shown that he had any actual knowledge and certainly concerning which his profession or the capacity in which he is employed imports no knowledge.

The foregoing reviews specifically the several points urged by the appellant in support ol' the proposition that the findings of the jury are so conflicting as not to support the judgment rendered by the court thereon. Counsel for appellees presents as a further counter proposition that all of the claimed conflicts and contradictions urged by appellant are wholly immaterial to the validity of the judgment by reason of the fact that appellant’s general agent, A^erschoyle, inspected the safe immediately after the burglary, secured the details of the construction and character of the safe, and thereafter promised appellees that the loss would be paid, and, as an incident to such adjustment, exhibited a placard in a show window in the city of Dallas announcing that the loss had occurred February 15, 3 a. m. and had been adjusted the same day at 11:30 a. m., whereby appellees’ breach of any warranty contained in the policy was, as matter of law, waived. The jury found the facts as stated in the proposition, and the finding has support in the evidence. The rule asserted is abundantly sustained by the decisions of our appellate courts, and a discussion of the reason for the rule would be profitless, and for that reason we content ourselves with citing a few of the cases. Georgia Home Ins. Co. v. Moriarty, 37 S. W. 628; German-American Ins. Co. v. Evants, 25 Tex. Civ. App. 300, 61 S. W. 536; Couch v. Home Protective Fire Ins. Co., 32 Tex. Civ. App. 44, 73 S. W. 1077; Co-operative Ins. Ass’n v. Ray, 138 S. W. 1122. But it is urged by appellant that the rule stated has no application, because it is provided in the policy sued on that “no con dition or provision of this policy shall be waived,” except by a designated officer in a designated way. The policy does so provide. Such provision does not affect the rule in case of a general agent with such authority as Yersehoyle had, such as to contract for insurance and issue and deliver policies. In Wagner & Chabot v. Insurance Co., 92 Tex. 549, 50 S. W. 569, it is said concerning a clause in a policy that none of its provisions could be waived except by designated officers, and then in writing, just as appellant’s policy does, that “an agent who has the power to make the contract of insurance, to issue the policy, and, in fact, exercise the highest authority which the law confers upon the corporation, stands in the place of the corporation itself, and that, having the authority to contract, he, no more than the corporation, can be bound to place his contract in writing because it is a limitation upon the exercise of the authority conferred upon him.” See, also, Continental Ins. Co. v. Cummings, 98 Tex. 115, 81 S. W. 705; Sun Life Ins. Co. v. Phillips, 70 S. W. 603; Continental Fire Ass’n v. Norris, 30 Tex. Civ. App. 299, 70 S. W. 769; Washington Life Ins. Co. v. Berwald, 72 S. W. 440; British American Assur. Co. v. Francisco, 123 S. W. 1144; Delaware Ins. Co. v. Hill, 127 S. W. 283; Co-operative Ins. Ass’n v. Ray, 138 S. W. 1122; Texas Nat. Fire Ins. Co. v. White, Blakeney & Fuller D. G. Co., 165 S. W. 118; Western Assur. Co. v. Hillyer-Deutsch-Jarratt Co., 167 S. W. 816; Commercial Union Assur. Co. v. Hill, 167 S. W. 1095. What we have just said applies to the issues presented by appellant’s proposition under fourth, sixth, thirteenth, and sixteenth assignments of error, for which reason that proposition will not be discussed. AH other assignments of error contained in the brief present in different form the same issues herein discussed, and for that reason will not be further considered. Finding no reversible error in the judgment of the trial court, it is affirmed.

Appellees however, in the court below moved the court to allow them as damages 12 per cent, on the 'amount of the judgment rendered, and $500 as attorney’s fees, agreed by all concerned to be reasonable, which the court refused to do. The action of the court thus stated is presented by a cross-assignment of error which it is necessary for us to discuss, and is asserted to be erroneous, for the reason that appellees are entitled to the damages and the attorney’s fee by force of article 4746, B. S. 1911. This article provides, in substance, that 12 per cent, on the amount of the loss and a reasonable attorney’s fee for prosecuting the claim against the defaulting company shall be paid the assured whenever “the life insurance company, or life and accident, health and accident, or life, health and accident company liable therefor shall fail to pay the same,” etc. In support of the contention it is urged that the purpose of the Legislature was to penalize every company the name of which included the words “life,” “health,” or “accident,” or a combination of two or more of the words, regardless of whether the loss was on something other than life, health, or accident policies. We conclude that the construction sought to be placed upon the statute is erroneous. The statute did not, prior to 1909, include accident companies. In that year, however, it was amended in order to meet the rule announced in Fidelity & Casualty Co. of New York v. Dorough, 107 Fed. 389, 46 C. C. A. 364, afterwards adopted by the appellate courts of this state in Ætna Life Ins. Co. v. Parker & Co., 96 Tex. 287, 72 S. W. 168, 580, 621; Id., 30 Tex. Civ. App. 521, 72 S. W. 621. In Dorough’s Case it was ruled that the statute then existing which only enumerated life or health insurance companies, did not, in the legislative mind, include accident companies. Such conclusion was based largely upon other provisions of our statutes defining life or health insurance companies and accident companies, and which definitions are now to be found in article 4724, Yernon’s Say les’ Stats. 1914, without material change, if any at all. There a “life insurance company” is defined to be one which agrees to pay a sum of money “conditioned on tile continuance or cessation of human life or * * * for the payment of endowments or annuities.” A “health insurance company” is there defined to be one which agrees to pay a sum of money “upon loss by reason of disability due to sickness or ill health.” -And an “accident insurance company” is there defined to be one that agrees to pay a sum of money “upon the injury, disablement or death of persons resulting from traveling or general accidents by land or water.” These definitions were said by the court in the case cited to indicate plainly a distinction between accident insurance companies, on the one hand, and health and life insurance companies, on the other, and concluded for that reason that life and health insurance companies did not include accident companies, assigning as a reason that each character of insurance was distinctive, and the purpose of the statute was to penalize the companies, not as such, but for their failure to pay losses of the character indicated by the words used and as defined by other provisions of the statute. The policy in this case agrees to indemnify appellees against loss to property by burglary, and is what is commonly known as liability insurance. The only definition found in our statutes defining liability or burglary insurance is article 4922, Vernon’s Sayles’ Stats. 1914, which is a part of chapter 12, authorizing the incorporation of mutual companies insuring against loss by burglary, ■ etc. Such company is there said to be “any insurance company organized under the laws of this state, or any other state, for the purpose of insuring against loss or damage resulting from burglary and robbery, or any attempt thereat, and securing against the loss of money 'and securities in course of transportation. * * * ” Further, it is the common knowledge of all that burglary insurance is what it is defined to be by the statute quoted. Adopting, then, the reasoning in Dorough’s Case, together with our statutory definition of accident insurance companies, it seems clear that the Legislature did not intend that companies doing a liability or burglary insurance business should also pay the damages and attorney’s fees upon failure to pay such loss upon demand. The fact that appellant was doing both an accident and burglary or liability business, as indicated by its name, does not, as urged by appellees, have ally bearing upon the question. It is the distinctive kind of losses pointed out and enumerated by the statute that is required to be paid promptly, and not every kind of loss against which the company may insure. Such construction would result in palpably unfair discriminations, when it is considered that either life, health, or accident companies might engage in such business under names not indicating the class of insurance involved, and yet escape the penalty intended particularly for such class.

Finding no error in the judgment of the court as presented by appellees’ cross-assignment, the judgment in that respect is also affirmed.

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


text:
    INTERNATIONAL & G. N. RY. CO. v. FRANK et al.
    (No. 5485.)
    (Court of Civil Appeals of Texas. Austin.
    April 28, 1915.
    Rehearing Denied June 2, 1915.)

    1. Caebiebs <@=>228 — Cabbiage of Live Stock — Actions—Evidence.
    Evidence held sufficient to support judgment against a railroad company for damages for injuries to live stock on account of delay and rough handling.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. <@=>228.]
    2. Appeal and Eeeob <@=>215 — Peesentation of Grounds of Review in Court Below— Necessity.
    Under Acts 83d Leg. c. 59, assignments complaining of errors in the charge cannot be reviewed where no objection was taken below.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1309-1314; Dec. Dig. <@=>
    3. Caebiebs <@=>230 — Cabbiage of Live Stock — Actions—Instbtjction.
    In an action against a carrier for injuries to cattle caused by delay and rough handling, where the carrier asserted that the stock suffered because of their weakness, the charge that no recovery could be had unless the damages were caused by the carrier’s negligence and not the weakness of the cattle, that plaintiffs must make out their case by preponderance of the evidence and that the carrier was not an insurer sufficiently safeguarded the carrier’s interests.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. <@=>230.]
    Appeal from Falls County Court; W. E. Hunnicutt, Judge.
    Action by Max and Otto Frank against the Intérnational &i Great Northern Railway Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Neff & Taylor, of Waco, for appellant. Tom Connally and Prentice Oltorf, both of Marlin, for appellees.
   RICE, J.

Appellees brought this suit against appellant to recover damages to 106 head of cattle, shipped by them from Grape-land to Marlin over appellant’s line of railway, alleging negligent delay and rough handling en route as the basis for recovery. The chief defense relied upon was that the stock in. question were poor, weak, and unable to stand shipment at the time they were delivered to appellant, and that if they were damaged in the manner and to the extent claimed, such damage resulted from their said condition. There was a jury trial, resulting in a judgment in behalf of appellees, from which this appeal is prosecuted’.

The first assignment complains of the refusal, on the part of the court to give a peremptory instruction in behalf of appellant, and the second urges that the verdict of the jury is contrary to the evidence in that it shows that the damaged condition of the cattle on arrival at Marlin was due directly and proximately to their weak and unfit condition for shipment, and not from any rough handling or negligent delay on the part of appellant. We think both of these assignments should be overruled. While there was evidence showing that the cattle were poor and weak and not in condition to ship, still there was evidence on the part of appellees that they were not too poor to ship and were in good shipping condition. Besides this, there was evidence showing a delay of two days, and that the cattle were roughly handled en route, from which they suffered damage. It appears that 13 of them died from the effects of such ill treatment, and that the others were shrunken and drawn and greatly reduced in value, and the evidence in these respects is ample to sustain the judgment. The court therefore did not err in refusing a peremptory instruction, nor in refusing to grant a new trial.

The third assignment complains of the court’s charge on the measure of damages. We have examined the charge and do not believe that it is subject to the objection urged; but, even if there had been error, appellant is not entitled to a reversal on this account for the reason that an inspection of the bill discloses that no objection was made to the charge for this reason. Therefore it must be regarded as waived. See Gen. Laws 33d Leg. p. 113; also Floegge v. Meyer, 172 S. W. 194, decided by this court November 18, 1914; also Insurance Co. v. Rhoderick, 164 S. W. 1068, 1069; Gunter v. Merchant et al., 172 S. W. 191, decided by this court November 11, 1914; Quanah A. P. Ry. Co. v. Galloway, 165 S. W. 546; Crow v. Childress, 169 S. W. 927. Besides this, even if the objection as claimed had been made, it would not have been sufficiently specific. See Pecos & North Texas Ry. Co. v. Grundy et al., 171 S. W. 318, where it is held that a similar objection to the one in question did not sufficiently point out the error complained of.

The fourth assignment complains of the charge of the court as being upon the weight of the evidence, and that it assumes as established the facts that are disputed and at issue. We do not think the charge, when taken as a whole and in connection with the special charges given, is subject to the complaint made against it; because in the main charge, as well as in the several special instructions given at the request of appellant, the jury were told that no recovery could be had by plaintiffs unless the damages claimed resulted from the negligence of defendant. They were also told that the burden was upon plaintiffs to make out their case by a preponderance of the testimony, and were instructed that if the damages resulted from the poor and weak condition of the cattle, no recovery could be had. They were also told that appellant was not an insurer, and that if the jury believed that the damaged condition of the cattle on arrival at Marlin was caused by the condition of such cattle at the time they were loaded at Grapeland, they would return a verdict for the defendant. It seems to us that the charge in this respect sufficiently guarded the rights of appellant.

No reversible error has been pointed out, and the judgment of the court below is therefore affirmed.

Affirmed.
      <§=»For oilier cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes