text:
    SAMINO v. STATE.
    (No. 5020.)
    (Court of Criminal Appeals of Texas.
    May 29, 1918.)
    1. Breach on the Peace <S=o8 — Evidence— Sufficiency.
    Evidence held sufficient to show accused guilty of disturbing the peace as defined by Vernon’s Ann. Pen. Code 1916, art. 470.
    2. Arrest <®=>63(3) — Authority to Arrest Without Warrant.
    Under Code Cr. Proc. 1911, art. 259, authorizing officer to make arrest without warrant when án offense against the public peace is committed in his presence, a deputy sheriff had the right to arrest without a warrant a person who, in his presence, was creating a disturbance by shooting, hollering, and cursing.
    3. Witnesses ⅞=>301 — Testimony of Defendant in Own Behalf — Cross-Examination.
    Although defendant is called as a witness for sole purpose of making proof to suspend his sentence, testifying merely to name, residence, and the fact that he had never been convicted of a felony, under Code Cr. Proc. 1911, art. 790, permitting him to testify, having taken the stand, he is subject to cross-examination in same manner as any other witness.
    4. Criminal Law <®=»721 (2) —Trial — Remarks of State’s Counsel — Defendant’s Testimony.
    Where defendant in prosecution for, assault with intent to kill was called as witness in his own behalf, it was proper for the state’s counsel in his argument to the jury to comment on the fact that he had not been asked if he did the shooting of which ne was accused.
    5. Criminal Law <§x=956(10) — New Trial-Disqualification of Juror.
    Evidence that a juror was in favor of a felony conviction, although other jurors favored acquittal or conviction of an aggravated assault with a fine of only $25, the jury finally agreeing on conviction of an aggravated assault with fine of $100, is not sufficient to show that the juror was prejudiced.
    Appeal from District Court, Suttou County ; C. E. Dubois, Judge.

      Epifanio Samino was convicted of an aggravated assault, and lie appeals.
    Affirmed.
    Wardlaw & Elliott, of Sonora, for appellant. E. B. Hendricks, Asst. Atty. Gen., for tlie State.
   PRENDERGAST, J.

Appellant was indicted for assault with intent to kill Mr. Cook, a deputy sheriff of Sutton county, which included, of course, an aggravated assault. Upon trial he was convicted of an aggravated assault and fined $100.

The testimony was amply sufficient to show and to justify the jury to believe, as it evidently did, that appellant in the town of Sonora, the county seat of Sutton county, and near a schoolhouse and residences, and in the street or road, created quite a disturbance by shooting, hollering, and cursing while he was in the sight and hearing of Mr. Cook, the deputy sheriff, and while creating this disturbance he said he wanted the gringo to follow him, and was uttering, as the officer swore, a kind of drunken Mexican palaver and saying what he was going to do; that when he first began this conduct he was about 75 yards from the officer. The officer began following him to arrest him. Appellant went faster than the officer and gained a little on him, but was not out of his sight until he reached a house near or at which he lived, near the schoolhouse. _ Where the officer finally arrested him at this house was about 400 yards from where he first began the disturbance, but the officer kept him in sight, following him, and arrested him, until he, for a very brief period disappeared in a house, and then reappeared with a Winchester gun and presented the gun in an attempt to- shoot the officer, refusing to be arrested, and said he would see who was the best man.

The officer had no warrant for his arrest at the time. He needed none. He had the right to arrest him without a warrant, and in which he finally succeeded after a fight with him in which, as stated, he attempted to assault and shoot the officer with a gun he then had.

Undoubtedly the evidence was sufficient to show that appellant was guilty of disturbing the peace under* the statute. Article 470, P. G.; 1 Vernon’s Grim. Stats., and decisions noted thereunder. The statute .(article. 259, G. C. P.) expressly gave the officer the right, and makes it his duty, to arrest appellant under the circumstances without any warrant; the offense being committed in his presence and Within his view. King v. Brown, 100 Tex. 109, 94 S. W. 328; James v. Railway Co., 53 Tex. Oiv. App. 603, 116 S. W. 642.

Taking the testimony of the officer as a whole, there is no question hut that it was Sufficient to show, and did show, that appellant, and not another, was the person who committed .the disturbance in his presence and in his view. Th'e court did' not err therefore in admitting certain evidence of the officer which appellant claims was not sufficient to identify him as the person who committed the disturbance of the peace. Even that portion objected to tended to show that appellant was the person. Hence the court committed no error in not excluding that portion of the testimony objected to.

The statute' (article 790, O. Gi P.) authorizes a defendant to testify. In this case the appellant did testify. His attorney however, at the time he had him sworn and placed on the witness stand announced that he was going to introduce him for the sole purpose of making proof to suspend his sentence, for which he had pleaded, and for no other purpose. When he took the stand he swore what his name was; that he lived in the town of -Sonora, near the schoolhouse, and had lived there for about three years; ■that he was born in Mexico, and had lived in this country since 1892. And then he testified he had never been convicted of a felony. In construing the above statute this court has always held, and in a great many decisions, that when an accused takes the stand and testifies at all, he places himself in exactly the attitude of any other witness, and that he may be made to give evidence against himself, cross-examined as to new matters, and in every other way examined as any other witness could be. See Branch’s Ann. P. G. § 147, where some of the cases are cited.

The decisions of this court are uniform and many to the effect that, when a defendant testifies, the state’s counsel may comment in argument to the jury upon any omissions in his testimony or upon his failure to produce available and legal evidence (McFadden v. State, 28 Tex. App. 245, 14 S. W. 128; Lienburger v. State, 21 S. W. 603; Ray v. State, 35 Tex. Cr. R. 354, 33 S. W. 869; Battles v. State, 53 Tex. Cr. R. 208, 109 S. W. 195; Eggleston v. State, 59 Tex. Cr. R. 550, 128 S. W. 1105 ; Bost v. State, 64 Tex. Cr. R. 475, 144 S. W. 589); also that the state’s counsel may comment on the failure to produce his wife as a witness or typon any omissions in her testimony, if she testifies (1 Branch’s Ann. P. O. § 372, where a large number of cases are cited). There are many others on both of these propositions. Therefore the comment of the district attorney in argument to the jury to the effect that, if appellant was not the person doing that shooting and hollering, then his attorneys could have asked him that question, and he could have denied it, but they did not ask it and you know if it had not been he they would have shown it, etc., was clearly legitimate argument, and the court below did not err in so holding.

In one ground of the amended motion for new trial appellant claims that one bf the jurors, Mr. James, was , prejudiced against appellant and all Mexicans as a race, and hence was an unfair and prejudiced juror. The court heard evidence on this ground of appellant’s motion and overruled the motion. The only evidence introduced by appellant on this issue was by one of the jurors. The effect of his testimony was that when the jury first went in the jury room three or four of them were for acquittal, but the balance, except said James, were in favor of finding him guilty of an aggravated assault and assessing a fine of $25 only; that the juror James contended for a felony conviction and the assessment of his punishment at five years in the penitentiary; that they then all discussed the case, and all hut James wanted to fine him $25; but that finally .all of them agreed to find guilty of an aggravated assault and assess his punishment at a fine of $100, which was done. From the evidence the judge was authcS-ized to find, as he did, that the juror James was not a disqualified juror, and the overruling of his motion on this ground presents no error.

. Each of appellant’s contentions has not been discussed separately. Those discussed and decided are sufficient to dispose of all the others. None of them present error.

The judgment is affirmed.
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source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    MANES v. J. I. CASE THRESHING MACH. CO.
    (No. 844.)
    (Court of Civil Appeals of Texas. El Paso.
    May 9, 1918.
    Rehearing Denied June 6, 1918.)
    1. Judgment <®=>256(2) — Special Findings— Inconsistence,.
    Where the special issues submitted, together with the answers of the jury thereto, authorize a verdict for either party, such verdict is too contradictory to be the basis of a judgment.
    2. Trial <S=^350(2) — Special Issues — Intermingling of Issues — Confusing Jury.
    In view of Yernon’s Sayles’ Ann. Civ. St. 1914, art. 1984a, requiring special issues to be submitted distinctly and separately and without being intermingled, so that each may be answered separately, the trial court should submit questions upon controlling issues only and should avoid propounding questions calling simply for finding of an evidentiary fact, since the propounding of many questions is likely to confuse the jury.
    3. New Trial ⅞=>44(3) — Grounds—Misconduct of Jury — Consideration of Matters Not in Evidence.
    In suit to recover money paid for an automobile because not as warranted, where one juryman, after the jury had retired to consider their verdict, said- he had an engine of similar make, detailed his experiences with it, showing great familiarity with automobiles, and stated that, if the car had been defective as charged, it could not have been driven from the distributing point to another place, and his statements caused a majority of jurors, previously of opinion favorable to plaintiff, to render verdict for defendant, new trial should have been granted.
    4. Sales <⅜^>126(1) — Rescission for Fraud or Breach of Warranty.
    The right of'rescission of a sale contract for fraud or breach of warranty must be exercised promptly and notice thereof adhered to, and if after knowledge of breach the purchaser continues to deal with the property, he thereby affirms the contract.
    Appeal from District Court, Coleman County; Jno. W. Goodwin, Judge.
    Action by O. B. Manes against the J. I. Case Threshing Machine Company. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Snodgrass, Dibrell & Snodgrass, of Coleman, for appellant. Spence, Haven & Smith-deal, of Dallas, for appellee.
   HARPER, C. J.

Appellant brought this suit against appellee to rescind a contract, to recover money paid, and to cancel notes executed for the unpaid purchase money on an automobile, alleging, as applicable to the points urged here, that Joe Evans, being the duly authorized agent of appellee, made false and fraudulent representations to appellant, which induced him to execute the contract, to the effect that the car was to be a perfect car; that the engine would'develop 40 to 50 horse power; that it would go up the brickyard hill in high gear at a speed of 8 to 10 miles an hour; that it would consume but a gallon of gasoline in running 15 to 18 miles per hour; and that but for such misrepresentations he would not have executed the contract; that the car was warranted for 90 days from delivery, limited to replacement in the factory of all parts giving out under normal service, in consequence of defects of material or workmanship, etc.; that the machine developed defects both in material and workmanship; that appellee was so notified as provided in the contract; that the car was delivered to appellee’s agent, who accepted the car and took possession; that, if he was mistaken in the latter, then he tendered same in this suit, etc.

Appellee replied -by general and special demurrers, general denial, and specially that J* W. Evans & Company (in which Joe Evans, the. alleged agent, was a partner), merchants at Coleman, were independent dealers, under contract with appellee which limited them to take written orders for automobiles upon blanks furnished, to be sent to appellee for acceptance or rejection, with no authority to make any other contract or warranty than that contained in the blanks so furnished; that it contained the stipulation, “The company is not responsible to the purchaser for any promises or warranties made by their representatives beyond those expressed herein;” that appellant on February 25, 1915, executed his order for the automobile as above indicated; that he obtained it pursuant thereto; that, notwithstanding the contract provided for notice to the company of defects within 90 days from date of delivery, he applied the machine to his own use until November, 1915, without notice of any defects, etc.; therefore he had no right to rescind.

Tried with a jury submitted by special issues, and upon the verdict judgment was entered for defendant, from which it is here for review.

We have the anomalous situation of the trial court having submitted to the jury, of his own and specials for the parties, 36 special issues, with the simple issue before the court: Is plaintiff entitled to have his contract of purchase canceled, recover the cash paid on it, and to have the notes executed for unpaid purchase money canceled, because the automobile did not meet the written and verbal guaranties?

Each party to this appeal has so logically argued that the questions and answers authorize a verdict for it that we are convinced that both are right. Of course, it follows that such a verdict is too contradictory to be the basis of a judgment. Railway Co. v. Walsh, 183 S. W. 18; Canal Co. v. Gray, 184 S. W. 242.

The statute (article 1984a) requires special issues to be submitted “distinctly and separately, and without being intermingled with each other, so that each issue may be answered by the jury separately.” This has not been done in this case. Telephone Co. v. Andrews, 169 S. W. 218. In this connection we suggest that trial courts should only submit questions, the answers to which will be a finding by the jury upon- controlling issues in the case, and should avoid propounding questions which simply call for finding of an evidentiary fact, as so many of the questions submitted in this case do, for they are of no value in aiding the court to enter its judgment, and are very likely to confuse the minds of the jury.

Again, we have concluded that the case must be remanded for a new trial because of matters which occurred in the jury room after they received the charge and retired to consider their verdict. The jurors, upon examination before the court upon hearing the motion for new trial, testified (uncon-tradicted) that one juryman said he had a Case gasoline engine, and detailed at length his experiences with it, and by Ms statements shows that he had had a great deal of. experience with automobiles; that, if the ear in question had been defective as charged when it reached Dallas, it could not have been driven to Coleman, etc.; that prior to these statements, all of which are not detailed, a majority of the jury were of the opinion that the car did not meet the guaranty, etc., and each of the jurymen testified that these statements caused them to change their minds, and render the verdict they did in several particulars. ⅛

Bearing in mind that plaintiff’s case is based upon the proposition that he had ordered an automobile of a certain quality, guaranteed in writing and verbally to do certain things, etc., and that, if defects should develop within 90 days, the defendant was to correct them, etc., these statements from a man who. by experience was qualified to give an opinion of great weight were in effect original evidence received by the jury after they had retired, and since some of the jurymen testify that it did have effect in causing them to change their minds and in agreeing to the answers to some of the questions, and these being the questions and answers upon which the trial court evidently entered judgment for defendant, the trial court should have granted a new trial. Hobrecht v. Railway Co., 141 S. W. 579; Pridgen v. Cook, 184 S. W. 713.

In view of another trial, we will make the following comment upon the following counter propositions of appellee:

“Tift right of rescission, on account of fraud or breach of warranty must be exercised promptly. Notice must be given promptly and adhered to, and if after knowledge of the breach the purchaser continues to deal with the property, he thereby affirms the contract.”

These are well-settled principles of law, and, when applicable to the facts of the case as determined' by the court or jury, must .govern the disposition of the case, but the facts of this record are not such as that they may properly be determined in favor of appellee as a matter of law, but are questions for the jury under proper instructions from the court. Threshing Machine Co. v. Rachal, 194 S. W. 418; Avery Co. v. Staples Merc. Co., 183 S. W. 43; Haddon v. Finley, 125 Ark. 529, 189 S. W. 353.

For the reasons given, the cause is reversed, and remanded for new trial.

WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court.
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author: FLY, O. J.

text:
    GALVESTON, H. & S. A. RY. CO. v. COMPANIA HULERA DE MONCLOVA.
    (No. 6052.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 22, 1918.
    Rehearing Denied June 21, 1918.)
    Carriers ⅜=>113 — Burning oe Accepted Goods—Liability.
    Goods having been accepted by a carrier for shipment, it is liable for burning thereof before shipment, notwithstanding bill of lading had not been issued, and noncompliance with any requirement of Interstate Commerce Commission for tagging goods.
    Appeal from District Court, Maverick County; Joseph Jones, Judge.
    Action .by Compañía Hulera de Monclova against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, W. B. Teagarden, of San Antonio, and Boggess & Smith,- of Del Rio, for appellant. Sanford & Wright, of Eagle Pass, and Lew-right & Douglas, of San Antonio, for appel-1®3.
   FLY, O. J.

Appellee sued appellant to recover $1,522.20 for the loss by fire of 6,610 pounds of guayule rubber, which it was alleged was delivered to and accepted by appellant for immediate transportation from Eagle Pass, Tex., to New York City. The cause was submitted upon special issues, and upon the answers of the jury thereto judgment was rendered in favor of appellee for the sum of $2,887.62.

A shipment of 62 sacks of guayule rubber came from Mexico to the Mexican side of the Rio Grande and everything required by the customs laws was done, and the sacks brought over to Eagle Pass and placed on the platform of appellant’s railway on April 15, 1916. After being fumigated according to quarantine regulations the rubber was released and appellant advised that it was on the platform for shipment. The agent said that he did not have time to weigh the rubber and issue a bill of lading that afternoon, but would ship the rubber next morning. The rubber was delivered to and accepted by the agent of appellant on Monday afternoon, and it was agreed that it would be shipped next morning. In the meantime it wds nearly destroyed by fire; the salvage amounting to only $127. The rubber was properly marked for shipment and was ready for immediate shipment when tendered to appellant and accepted by it.

It would not matter whether the sacks of rubber were properly tagged and marked or not. It was customary to receive broken car lots unmarked and mark them at the depot, and by the acceptance of the freight for shipment all questions as to marking were waived by appellant. It is not claimed in the brief that the testimony failed to show that the goods were accepted for shipment, and no issue was requested to be submitted as to the sacks being properly marked. It is claimed that it is required by the Interstate Commerce Commission that goods be tagged as well as marked. This court has not had its attention called to any such requirement ; but if there is such a requirement in existence, appellant cannot take advantage of its violation of the rule and thus escape liability. Express Co. v. Essig, 17 Ga. App. 657, 87 S. E. 1090.

The case of Railway v. Hall, 64 Tex. 615, is direct authority for the proposition that a bill of lading is not necessary to show delivery of freight to a common carrier and its acceptance of it, but that if the evidence shows an acceptance in any way, the carrier will be liable. In the cited case certain cotton had been placed on the railroad platform by the plaintiff, and the court said:

“The numbering and counting the cotton, and something remaining to be done before acceptance, might be postponed by the agent until after acceptance. The question was: Had the defendant accepted the cotton — not had all been done that ought to have preceded acceptance?”

See, also, Railway v. Beard, 84 Tex. Civ. App. 188, 78 S. W. 253; Railway v. Martin, 35 S. W. 28; Railway v. Jackson, 37 S. W. 255; Railway v. Edwards, 56 Tex. Civ. App. 643, 121 S. W. 570.

There is no merit in any of the assignments, and the judgment is affirmed.
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text:
    WOOTTON et al. v. JONES.
    (No. 855.)
    (Court of Civil Appeals of Texas. El Paso.
    May 16, 1918.
    Rehearing Denied June 13, 1918.)
    1. Judgment <®=»460(1) — Vacation — Sufficiency of Petition.
    In suit to set aside judgment against plaintiffs on a note for $2,000'and foreclosing of deed of trust, and to rocover statutory penalties for collecting usurious interest, petition setting up an agreement by defendant’s attorney to extend the time of payment of the note, plaintiffs’ reliance on the statements, etc., and defendant’s having taken judgment against them before the cause of action was due, notwithstanding his attorney’s assurance as to the extension, held to state a cause of action.
    2. Judgment <§=^427 — Vacation.
    If defendant’s attorney told plaintiff to go about his business, that defendant’s suit on a note would be dismissed, and no judgment taken, and if plaintiffs relied on this statement, and left the county, but, notwithstanding such assurances, defendant, without notice, 'regular trial, and without jury as demanded, took judgment in May before the cause of action was due in October, plaintiffs could vacate such judgment in equity.
    3. Courts <§=^90(7) — Law of Case — Holding of Other Court of Civil Appeals.
    A holding of a Court of Civil Appeals that a judgment was not a final decree, unappealed from, is controlling in another Court of Civil Appeals on the lack of finality of such judgment.
    Appeal from District Court, Tom Green County; Jas. Cornéll, Special Judge.
    Action by H. A. Wootton and Grace E. Wootton against W. C. Jones. From judgment in part for plaintiffs, they appeal.
    Reversed and remanded.
    See, also, 189 S. W. 350.
    A. L. Brantley and H. S. Garrett, both of San Angelo, for appellants. S. C. Autry, Jos. Spence, Jr., and Blanks, Collins & Jackson, all of San Angelo, for appellee.
   HARPER, C. J.

This suit was filed by appellants in the nature of a bill in equity to set aside a judgment against them in favor of appellee on a note for $2,000 and foreclosure of deed of trust on certain lands, and to recover statutory penalties for collecting usurious interest. From a judgment which sustains a general demurrer to that portion of the petition which seeks to set the judgment aside, and which (judgment) decrees recovery by appellants for penaltiés for usury, the cause comes to us for review.

The only assignment is that the trial court erred in sustaining the demurrer. The only question to be determined is: Does the petition contain such allegations of fact as to be the basis of a decree setting aside the judgment on the note and foreclosure of lien and to reopen the cause for new trial?

The petition first sets' up the facts concerning the execution of the note for $2,000 and the deed of trust, alleging that at the time of the execution of the deed of trust certain of the lands constituted their homestead; then itemized statement of usurious interest paid; then alleges:

That appellee filed his suit April 30, 1914, on the note and to foreclose the lien; that while the said suit was pending, and before trial or judgment, in consideration of additional security, etc., appellee, Jones, signed the following writing:

“I, W. O. Jones, the owner and holder of the above-described note, for and in consideration of * * * additional security and the payment of the annual interest when due, have granted the extension requested, and the said note is hereby extended until October 8, 1915, * *• ⅜ provided the annual interest is paid as it falls due, according to the terms of the note” — signed May 8, 1914.

That in connection with the above extension contract, and in further consideration thereof, the defendants paid back due interest on said note to the amount of $587.77 or approximately such amount, and thereupon plaintiff and his then counsel of record, one Joseph Spence, Jr., advised the defendants that said, suit was settled, that said note would be extended in accordance with the foregoing written extension agreement, that defendants would have a year from that date in which to pay the said note, and that in the meantime the suit would he dismissed, and that no attempt would be madp to take any judgment against defendants therein, which statements so made to defendants were believed by them and relied upon by them and were by them communicated to their attorney of record, W. A. Anderson, Esq., and believed and relied upon by him. That in fact, on or about the 7th day of May, the defendant H. A. Wootton had a personal conversation with Joseph Spence, Jr., attorney of record for the plaintiff, Jones, and his agent in fact, in which the said Joseph Spence, Jr., advised the defendant Wootton that the plaintiff had now given him a year to pay his note, and that he (Wootton) could go about his business and need not pay any further attention to the note or suit, whereupon the defendant Woot-ton did proceed to Lampasas county, Tex., and never knew or had reason to or suspect that the said purported judgment had been rendered against him until the writ of execution was levied upon his property as herein set out. Wherefore the defendants say that they..were.deceived by the.false-and fraudulent representations and statements made by plaintiff and his counsel of record and agent, and defendants allege the facts to be that said representations were made for the purpose of deceiving the defendant and enabling the plaintiff to have such purported judgment entered and execution issued thereon and be levied upon the property of defendants and for the purpose of inducing the defendant H. A. Wootton, husband of Grace E. Wootton, to leave Tom Green county so that the purported judgment might be secretly entered in his absence and without his knowledge and consent, and but for such fraudulent representations the defendants would have been present at the entry or alleged rendition, if there was in fact any rendition, of said purported judgment, and would have protested thereat, and would have asserted each and all of the defenses herein mentioned. That, notwithstanding said agreement, appellee, plaintiff in the original suit, filed an amended petition November 24, 1914, to which appellants answered that the note was not due for the reason that the time of payment had been extended to October 8, 1915, that the suit was wrongfully brought with the intention of harassing defendants, and that they were compelled to pay out $100 for counsel fees, and prayed that plaintiff take nothing by their suit and that they have judgment for the $100. That in January, 1915, a jury was demanded and fee deposited with the clerk in the case. That on May 20, 1915, at a time when the cause was not set down regularly for trial, when there was no jury present, without notice to defendant, and without giving an opportunity to be heard and without any hearing, judgment was taken in said suit as follows:

On( this 20th day of May, A. D. 1915, this cause being regularly reached and called for trial, came plaintiff by his attorney and announced ready for trial on his cause of action against defendants, as well as the cause of action asserted against him to in-tervener A. P. Collins. Defendants, H. A. Wootton and. Mrs. Grace E. Wootton, came not, although they and each of them have heretofore been duly and legally served with citation of plaintiff’s first amended original-petition and have in writing heretofore entered their appearance as defendants in this cause for all purposes, now say nothing in defense of plaintiff’s suit. Also came inter-vener A. P. Collins by his attorney, and says he will no longer prosecute his cause of action against plaintiff or defendants as set out in his petition for intervention filed in this cause, and prays the court that his petition for intervention be dismissed, which is accordingly done; and plaintiff, W. C. Jones, having announced ready on his cause of action against defendants H. A. Wootton and Mrs. Grace E Wootton, and no jury being demanded, all questions of fact and law were submitted, tq .the .court, , ande after Rearing the pleadings, evidence, and argument of counsel, • the court rendered judgment for $2,739.60 for plaintiff, and foreclosed the mortgage lien.

That it was entered without their knowledge or consent, without opportunity to be heard, without a jury, or any trial in fact. That the allegations therein that defendants said nothing are false. That Jones fraudulently concealed from the appellants (here) that he had secured the judgment until execution was issued. That they had a meritorious defense which they would have asserted if given a chance to do so, in this, that the suit was prematurely brought. That the interest sought to be recovered was usurious in the sum of $1,467.63, which they were entitled to have credited against the original sum loaned, $1,900, which would leave $432.-39 due. That the purported lien upon the homestead was void. That, if they had been given an opportunity, these .matters would have been set up in defense of the suit, but by the fraudulent acts of plaintiff in taking the judgment without notice they were not given an opportunity to‘do so. That upon levy by the sheriff of execution under said judgment they applied for and secured a temporary writ of injunction restraining the execution of the judgment, but that upon hearing May 16, 1916, the trial court dissolved the writ. That an appeal was taken from said order, and that the appeal was dismissed because of no final judgment.

Wherefore, they say said judgment of May 20, 1915, is void: (1) Because it is not final, in that it does not dispose of the issues, nor of the cross-action. (2) Because it was unfairly, improperly, and fraudulently taken, in that they were not given a chance to be heard. (3) Because it does not dispose of all the parties, in that it does not dispose of Grace E. Wootton. (4) Because not rendered with the aid of a jury, and was entered- in fact without trial. (5) Because it attempts to foreclose an illegal lien upon homestead.

We are of the opinion that the petition states a good cause of action to set aside the judgment, and that it was error for the court to sustain the demurrer; for plaintiffs (appellants here) were entitled to have their action disposed of upon its merits. Hester v. Baskin, 184 S. W. 726; Eddleman v. McGlathery, 74 Tex. 280, 11 S. W. 1100.

Appellee urges: Mrst, that it is manifest from the pleadings and evidence that there are no equities in favor of appellants, but that they were guilty of such negligence and carelessness in connection with the prosecution of their defense as to preclude them from reopening the case; second, that appellants’ petition does not show that they were prevented by fraud from making a valid defense to the original suit; third, that they have not •shown that the issues presented in the new suit were pleaded o'r necessarily involved in the original action.

The pleadings charge that after the suit was filed there was a valid agreement upon good consideration to extend the time of payment of the note until October 8, 1915, that the attorney told them to go on about their business, that the suit would be dismissed, no judgment would :be taken, and that 'they relied upon the statements and left the county, and that notwithstanding these assurances, the plaintiff, without notice, without a regular trial, and without jury as demanded, took tlieir judgment in May before the cause of action was due in October', all of which constituted questions of fact to be determined upon their merits (Connell v. Nickey, 167 S. W. 313), and, on the other hand, it is charged that they were prevented from making any defense by the assurance that no judgment would be taken in the case, but that it would be dismissed.

It is further urged that the petition shows that appellants had not complied with their extension agreement. If the judgment for usury is correct, they had paid $350 more interest than was due at the time judgment was taken. Appellee further urges that at the time the trial court entered the judgment appealed from May, 1917, it had no jurisdiction to determine the issues involved for the reason that they had been disposed of by judgment entered May 15, 1916. The answer to this contention is that the Court of Civil Appeals at Austin upon appeal held that the judgment now invoked was not a final decree (Wooton v. Jones, 189 S. W. 350), and this holding, not having been appealed from, is controlling, and its effect is that it was no judgment at all.

The cause must therefore be reversed, and remanded for a new trial upon its merits. The appellants suggest that the cause be affirmed as to the judgment for penalty, but the matters are so inseparably connected that in our opinion they should all be adjusted in the same decree; so the order reversing- and remanding applies to the whole case.

WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court.
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text:
    WOOTTON et al. v. JONES.
    (No. 856.)
    (Court of Civil Appeals of Texas. El Paso.
    May 16, 1918.)
    Appeal from Distriot Cburt, Tom Gregn County; Jas. Cornell, Special Judge.
    Suit by H. A. Wootton and Grace E. Wootton against W. O. Jones. Erom judgment sustaining general demurrer to a portion of the petition, plaintiffs appeal.
    Appeal dismissed.
    See, also, 189 S. W. 350.
    A. L. Brantley and H. S. Garrett, both of San Angelo, for appellants.
    S. O. Autry, Jos. Spence, Jr., and Blanks, Collins & Jackson, all of San Angelo, for appellee.
   HARPER, C. J.

The record in the above styled and numbered cause shows that the matters in controversy are the same as in cause No. 855, 204 S. W. 237, opinion this day rendered, but, presented under a different number in the trial court. There is no such final order in the record as is necessary to give this court jurisdiction, but it appears that a final judgment in said No. 855 this day remanded must necessarily determine the questions urged in this.

This appeal is therefore dismissed.

WALTIíALE, J., did not sit, being absent'on committee of judges assisting the Supreme Court.


author: LEVY, J.

text:
    WESTERN UNIQN TELEGRAPH CO. v. VERIIALEN.
    (No. 1972.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 26, 1918.
    Appellee’s Petition for Rehearing Denied June 27, 1918, on Appellant's Petition for Rehearing, June 29, 1918.)
    1. Telegraphs and Telephones <®=^54(4) — Notice op Damages — Validity op Con-tbact.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5714, requiring stipulations as to notice of claim for damages to be reasonable and making stipulations fixing the time at less than 90 days void, does not make invalid a stipulation in a contract to transmit a telegram requiring notice of claim for damages to be presented within 95 days after the cause of action arises, if such a stipulation is reasonable.
    2. Telegeapiis and Telephones <S=»74(1)— Actions poe Failing to Deliver Message —Instructions.
    In an action against a telegraph company for failing to deliver a message, it was error to refuse to submit a charge asking a verdict for defendant on a finding that a stipulation in the contract whereby notice of damages was to be given within 95 days was reasonable, there being evidence of its reasonableness, and it being undisputed that no claim was presented within such time, or that the stipulation had been waived.
    On Rehearing.
    3. Appeal and Erkoe <§=j1177(5) — Determination op Cause — Necessity por New Trial.
    In an action against a telegraph company for failing to deliver a message, where a plea alleging that notice of claim of damages had not been given within 95 days as required by contract was stricken, judgment for defendant could not be entered on appeal on the ground that the undisputed evidence showed that the stipulation as to notice was reasonable, Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5714, providing that notice shall be presumed unless the want of notice is especially pleaded under oath, and there being no pleading under oath after the defense was stricken.
    Appeal from Harrison County Court; W. H. Strength, Judge.
    Action by Walter Verhalen against the Western Union Telegraph Company for failure to transmit a message. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded, and rehearing denied.
    The appellee, who is engaged in buying and selling fruit, obtained an option, commencing May 18th and ending May 19th, to purchase J. W. Ogburn’s matured peach crop at 75 cents a bushel f. o. b. cars at Ogburn, Tex. Immediately after obtaining the option the appellee prepared and delivered to the Western Union Telegraph Company the following message:
    “Marshall, Texas, May 19, 1916.
    “Verhalen & Company, 327 So. La Salle Street, Chicago, Ill. Can buy Ogburn crop seventy-five loaded estimated fifty to sixty cars grade should be good as they can use all seconds in cannery right there. If I find later I am too busy to handle will you and Tony allow me five cents per basket for making trade? If deal shows no profit will sacrifice my commission. Walter Verhalen.”
    The telegraph company failed to transmit the message after receiving it. The appellee brought the suit on March 22, 1917, for $300 damages occasioned to him for alleged negligent failure to transmit and deliver the message to the addressee. The appellant answered by demurrer, general denial, and specially pleaded under oath, as a defense, the stipulation reading:
    “The company will not be liable for damages or statutory penalties in any ease, where the claim is not presented in writing within ninety-five days after the cause of action, if any, shall have arisen”
    —and averring that the stipulation was a reasonable one and was not complied with by the plaintiff. The appellee by supplemental petition excepted to the defense pleaded:
    “Because the provision or stipulation therein is an effort on behalf of the defendant to fix a period of limitation shorter than that prescribed by statute, and is void and ineffective and constitutes no defense to the plaintiff’s suit.”
    The court sustained the special demurrer and struck out the defense alleged from the answer. The defendant excepted.
    It appears that the suit was filed March 22, 1917. Appellee knew on May 20, 1916, that the message had never been transmitted from the receiving office 'Of the telegraph company. It was an admitted fact in the trial that the appellee had not filed a claim in writing for damages with the Western Union Telegraph Company within 95 days as provided by the stipulation. The court refused the following special charge offered by the appellant:
    “You are instructed that, if you find from the evidence that the plaintiff did not file with the defendant a claim in writing for damages within 95 days after his cause of action, if any, accrued, and you further find that the stipulation requiring such notice writing to be filed with the company in that time is a reasonable rule or regulation, then you will find for the defendant.”
    Young & Stenehomb, of Longview, R. A-Sexton, of Marshall, and Albert T. Benedict, of New York City, for appellant. Bibb & Bibb, of Marshall, for appellee.
   LEVY, J.

(after stating the facts as above).

It is concluded that the trial court erred in sustaining the demurrer to the appellant’s defense of alleged failure to comply with the stipulation providing for notice of claim for damages. The statute does not make invalid and void a stipulation in a contract requiring notice, as of the kind here, of claim for damages, if siuch stipulation is reasonable. Article 5714, Vernon’s Sayles’ Stat. The ease of Taber v. Western Union Telegraph Co., 104 Tex. 272, 137 S. W, 106, 34 L. R. A. (N. S.) 185, had a stipulation requiring the claim to be “presented in writing within ninety days after the message is filed with the company for transmission.” The Supreme Court determined that the particular stipulation was invalid and contrary to the terms of the statute because it provided for notice to be given “within 90 days after the message was filed with the company for transmission.” “The purpose of the act,” as ruled by the court, “was to fix a minimum period of 90 days from the time the cause of action arose.” And in Smith v. Railway Co., 138 S. W. 1075, the stipulation there was held invalid because notice was required to be given before the expiration of full 90 days. In Railway Co. v. Marcofich, 185 S. W. 51, though, the stipulation provided for notice to be given within 91 days after the cau§e of action arose, and was not contrary to the terms of the statute. The stipulation was there held valid and binding, if reasonable in point of fact. See Turner v. Henderson, 183 S. W. 51. And even if the company’s liability is to be fixed as interstate, assuming such only for the moment, the stipulation may be sustained, if reasonable. Railway Co. v. Bracht, 172 S. W. 1116, citing authorities.

The appellant also predicated error upon the refusal of the court to submit the charge asking a verdict for the defendant upon the finding that the stipulation was, under the circumstances of the case, a reasonable one. There is evidence that the provision is reasonable, and it is undisputed that no claim in writing was ever presented by appellee, and the suit was not filed until March 22, 1917. There is no pleading of nor any evidence even tending to show a waiver of the stipulation. There is error showing injury and requiring a reversal of the judgment.

It is not deemed necessary to pass upon the other assignments of error.

Judgment reversed, and the cause remanded.

On Rehearing.

The appellant insists that this court, instead of remanding the cause, should render judgment in its favor because the undisputed evidence shows that the stipulation as to giving notice of claim of damages is reasonable. Article 5714, referred to, really means that a stipulation in any contract requiring notice to be given of a claim for damages within a certain time shall not be valid and enforceable as a condition precedent to the right to sue where the time stipulated for the giving of the notice is unreasonably short, and that a less period of time than .90 days within which to give the notice should be, as a matter of law, an unreasonably short time for the performance of the stipulation. And what is a reasonable time is a question of law for the court when, in some particular case, the facts are undisputed and the inferences certain. This court, though, may not render a judgment in this record, because the pleading setting up the defense was stricken out by the trial court on demurrer, and, being stricken out, was not legally thereafter a part of the record or a defense. And after the pleading was stricken out the plaintiff was not legally called upon nor required to offer any evidence respecting such defense. For the statute provides that, “unless the want of notice is especially pleaded under oath,” then “it shall be presumed that notice was given.” And after the pleading-was stricken from the record there was no pleading under oath, as required, and the trial court was bound to give force to the statute. And this court ■ may only render the judgment the trial court could render. Mitchum v. Railway Co., 107 Tex. 34, 173 S. W. 878. The province of tins court is to hold, as we do, that the trial court erred in striking the pleading from the record ; and the effect of such ruling is to require the trial court to reinstate and restore the pleading, which is required to form the legal foundation of the proof to be submitted on the trial.

Motion overruled.
      «SssFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    ÆTNA LIFE INS. CO. v. DUNKEN.
    (No. 5899.)
    (Court of Civil Appeals of Texas. Austin.
    May 14, 1918.)
    1. Trial @=>252(14) — Instructions — Conforming» to Evidence.
    An instruction concerning an understanding that a premium note should not be paid in any event, and that the execution of the note would keep alive a life insurance policy, was erroneously given, where there was no testimony of such matters.
    2. Appeal and Error @=>1177(5) — Reversal
    —Necessity of Remanding-.
    Where it cannot be said there was no testimony tending to show waiver of a policy provision for payment of life insurance premiums and the case must be reversed for erroneous instructions, judgment will not be rendered for the insurer, but the cause will be remanded for new trial.
    Appeal from District Court, MeBennan County; Geo. N. Denton, Judge.
    Suit by Mrs. Pearl Stone Dunken, admin-istratrix of the estate of W. J. Dunken, deceased, against the iEtna Bife Insurance Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    W. J. Moroney, of Dallas, for appellant. Spell & Sanford and Forrester & Stanford, all of Waco, for appellee.
   KEY, C. J.

Appellee accepts as substantially correct the following statement of the nature and result of this suit contained in appellant’s brief:

“This is an appeal from a judgment rendered on January 25, 1917, by the Nineteenth judicial district court, McLennan county, in favor of Mrs. Pearl Stone Dunken, administratrix of the estate of W. J. Dunken, deceased, plaintiff, against the iEtna Life Insurance Company of Hartford, Conn., defendant, for $14,180.72, interest and costs.
“The suit involved two alleged life insurance policies for $10,000 each issued by defendant company on the life of said W. J. Dunken* who died on June 1, 1916, one being policy No. 98322, commonly designated in the record as the ‘first policy,’ the other being policy No. 152775, commonly designated as the ‘second policy.’ Plaintiff alleged that the second policy had been issued in lieu of the first, that either one or the other was in force when the insured died, and plaintiff sought to recover, not on both policies, but on whichever policy should be held to have been in force when the insured died.
“There was a jury verdict and judgment on the first policy, No. 98322, for the principal sum of $9,722.50, being the face of the policy less unpaid premium, $1,166.76 damages, $291.-66 interest, and $3,000 attorney’s fees; total, $14,180.72.
“Thus the effect of the verdict and judgment was that the alleged substitution of policies had not been effected, that the second policy had therefore not gone in effect, and that the first policy remained in effect.
“As no questions arise about the pleadings, it is deemed sufficient to say here that they presented the. issues of law arising on the evidence, which was at least practically undisputed, except on the collateral and dependent issue of the reasonable amount of attorney’s fees. Plaintiff did not even allege that the insured had complied or offered to comply with the terms and conditions of the alleged policies, but in various ways plaintiff alleged that defendant had waived compliance.
“Appellant’s assignments of error are contained in its motion for a new trial which was overruled, exceptions reserved, and appeal duly perfected. The statement of facts was approved and filed and accompanies the transcript, which contains various bills of exceptions.
“The parties having failed to agree on a statement of facts, the original and duplicate statement of facts were settled, approved, and filed by the judge in statutory form. There was no controversy about what actually occurred on the trial, but differences arose: First, about embracing in the record certain matters that appellant considered material; second, on the question-whether certain other matters should appear in the statement of facts or in separate bills of exceptions; and, third, on the form of the statement of facts itself. No objection was made to incorporating in the record a correct statement of everything desired by appellee. The result was that the substance of everything that appellant considered material is in either the statement of facts or in separate bills of - exceptions copied in the transcript. As all these instruments are authenticated in the same manner, by the certificate of the judge alone, and as the record is sufficient in substance, and appellant is not responsible for its form, -1 will refer to such parts of the record as the occasion may require, without alluding further to these merely formal matters.
“While plaintiff did not recover on the second policy, the issues arising on this policy will be presented: (1) Because, as will presently appear, the issues under both policies are so interwoven that practically they cannot be separated ; (2) because' appellant’s proposition that it was entitled to a directed verdict on the whole case requires a consideration of both policies; (3) because I am advised that appellee will contend in this court, as she did in the court below, that she is entitled to recover-on one policy or the other; and (4) because both policies in fact concern different stages of but one contract, and the case can therefore be presented more intelligibly by first presenting its substance as a whole.
“The first and second paragraphs of defendant’s motion for a new trial present the single fundamental proposition that on the undisputed evidence defendant was entitled to a directed verdict in its favor on the whole case, and these two paragraphs will therefore be presented together.”

The volume of business pending in this court is sufficient excuse for not writing an elaborate opinion; and we therefore content ourselves with the statement that we have reached the conclusion that the judgment appealed from should be reversed, and a brief statement of the grounds upon which such conclusion rests.

The second paragraph of the court’s charge reads as follows:

“If you fail to find for the plaintiff under the above instructions, then the court instructs you that if you believe from the evidence that it was the understanding between the defendant company and the assured that the premium note for $106.45, dated February 29, 1916, was not to bo paid at all; and if you further believe from the evidence that it was the understanding between the defendant and said assured that the execution and delivery of said note would keep policy No. 98322 in good standing until it should be converted and the new policy should become effective; or if you believe that all the facts and circumstances which have been introduced in evidence and now before you with respect to the payment of the note for $106.45, dated February 29, 1916, and falling due March 29, 1916, were reasonably calculated to and did actually induce W. J. Dunken, the assured, to believe that the payment of said notes at maturity of same was not required by defendant company, arid that the defendant company would not on account of the failure to pay said note ask that said policy No. 98322 should be lapsed or forfeited — then in either of said events you will find for the plaintiff on policy No. 98322 and so say by your verdict.”

Error is assigned upon this charge, among other reasons: (1) Because there was no testimony of any understanding that the premium note therein mentioned should not be paid at all, except in the event of the completion on or before March 29, 1916, of the proposed conversion of the policy; (2) that there was no evidence of any understanding that the - execution of said note would keep policy No. 98322 in good standing in any event beyond the maturity of the note; and (3) there was no testimony that the defendant gave the assured reason to believe that it would waive the conditions of its contract unless at the option of the defendant and in the manner provided by the contract itself.

We sustain the first and second objections, because, in our opinion, there was no testimony tending to show an agreement or understanding between the parties to the effect that the note referred to in the charge was not to be paid in any event; nor was there any testimony which would warrant a finding that the mere execution and delivery of the note would keep policy No. 98322 in good standing beyond the time of the maturity of the note, Hence we sustain the third assignment of error, which complains of that paragraph of the court’s charge.

We also sustain appellant’s seventh and eighth assignments of error, and hold that the excluded testimony referred to therein was admissible upon the issue of waiver by appellant and its right to forfeit the policy. And, for the same reason, we are of the opinion that the court erred, as complained in the ninth assignment of error, in limiting the testimony of the witness H. B. Alexander, as shown by the record!

The other assignments of error have been considered and are overruled.

In conclusion, it seems to us that the proof shows that the right to recover upon the first policy was by the terms of that instrument forfeited by the failure to pay the note given for the premium at the time of its maturity, unless it shall be made to appear that appellant had waived its right of forfeiture and manifested an intention to keep that policy alive. It also seems equally clear that the second policy never became operative, because of the failure of Mr. Dunken to comply with the terms and conditions upon which it was sent to him, unless it shall be made to appear that the appellant intended to waive compliance with such conditions, and treat the policy as valid and binding.

We cannot say that there was no testimony whatever tending to show either of the waivers referred to, and therefore we decline to grant appellant’s request, and render judgment for it. On the contrary, we hold that the case should go back for another trial, at which, after admitting the excluded testimony heretofore referred to, as well as all other admissible evidence, the issues of waiver should be clearly and distinctly submitted to the jury, and judgment should be based upon the jury’s findings upon those issues.

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

Reversed and remanded.
      ®=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: • RAINEY, O. J.

text:
    GOFORTH v. CORLEY, County Judge, et al.
    (No. 8011.)
    (Court of Civil Appeals of Texas. Dallas.
    June 15, 1918.)
    1. Animals <⅜=»50(2) — Order Calling Stock Law Election.
    Election in commissioner’s precinct, ordered for determining question whether stock should run at large, will not be held invalid because the order of election included territory .within corporate limits of a city and two towns, conceding that election could not be enforced in incorporated territory.
    2. Animals <§=A50(2) — Stock Law Election —Oeder—Sueeiciency.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7215, providing that, if the election is ordered for, any particular subdivision, the county judge shall designate the particular places in such subdivision at which the polls shall be opened, election order of county judge for stock law election for a commissioner’s precinct, describing precinct by metes and bounds, and designating certain places by name as being the voting boxes for each community, sufficiently designated places at which polls should be opened.
    Appeal from District Court, Dallas County ; Kenneth Foree, Judge.
    Action by L. A. Goforth against Q. D. Cor-ley, County Judge, and others. From an adverse judgment plaintiff appeals.
    Affirmed.
    Leake & Henry and R. M. Scott, all of Dallas, for appellant.
    Liveley & Goggans, of Dallas, for appellees.
   • RAINEY, O. J.

Appellant brought this action to contest a stock law election held in commissioner’s precinct No. 2, Dallas county, alleging same was illegal and void, in that the said order of election included a part of the city of 'Dallas and the cities of Garland and Mesquite, which were duly incorporated, and that Dallas has passed an ordinance prohibiting stock running at large within its limits; also that said election was void because said order for election did not specify with such particularity as is required by law the voting boxes in said precinct for voting in said precinct. Defendant duly answered, and upon a hearing before the district court without a jury a judgment was rendered in favor of the validity of said election, from which this appeal was taken.

Conclusions of Fact.

The commissioners’ court of said Dallas county, upon a petition of 50 residents and voters of said precinct, setting out the said precinct by metes and bounds, ordered said election, which order set out the said territory by metes and bounds in which said election was to be held, naming each voting box where said voting was to be held with particular certainty, as required by law, and said election was regularly held in said territory, which included part of the city of Dallas, Garland, and Mesquite, all of which were incorporated. The city of Dallas, under its charter, had jurisdiction of its streets and alleys, and had an ordinance prohibiting stock from running at large within its limits. The towns of Garland and Mesquite were duly incorporated under the general municipal ineorpora-tion laws, containing 3,000 inhabitants each. Said election returns were duly canvassed, and the result was declared that the stock law was carried in said precinct, there being 1,727 votes for and 362 votes against the stock law. Eliminating the returns from the eight election precincts in the city of Dallas in which the election was held and the returns from the two incorporated towns of Garland and Mesquite from the computations as canvassed by the county judge, there would still be a majority in favor of the stock law voted on. “It is agreed that the record in this case may show that the contestant and the contestee each introduced two witnesses from each of the respective voting precincts in Dallas county, in which the election in controversy was held on April 3, 1917, and that the two witnesses introduced by the contestees each testified that in their opinion no voter who was qualified to vote in the election in controversy was deprived of or lost his vote or his right to vote in said election on account of the alleged defect in the notice calling the election in not giving the particular place or building in which the election was to be held. It is also agreed that the witnesses of the contestant testified that in their opinion there were voters who lost their right or privilege to vote, sufficient in number to change the result of the election, on account of the said alleged defects in the notice, and contradicted the witnesses of the contestee on that point.” No witness testified that he was deprived of a vote or know of a voter who failed to vote because the voting boxes were not more particularly specified in the order for the stock election.

Conclusions of Law.

The appellant attacks the election ordered by the commissioners’ court for the running at large of stock in commissioner’s precinct No. 2, claiming it is illegal on two grounds: First. Because the order of election included a part of the city of 'Dallas and also the towns of Garland and Mesquite, situated in said precinct No. 2, said last two named towns being incorporated under the general laws, and the city of Dallas being incorporated by the Legislature, and said city at that time having in existence a city ordinance preventing stock from running at large within its limits. Under this ground the proposition is submitted that:

“The commissioners’ court of a county has no authority under the law to hold a stock law election over any subdivision of the county which subdivision includes and is largely composed of portions of the territory within the corporate limits of a city, which city is given by its charter or by-laws the exclusive control over the public streets within its corporate limits and the running at large of live stock within its corporate limits, and a stock law election, ordered and held to include such portion of the territorial limits of an incorporated town or city, is wholly null and void.”

The trial court held as a conclusion of law that:

"The county commissioners’ court of Dallas county, under the authority vested in it by law, had the legal power to order a stock law election over the whole of commissioner’s district No. 2, a subdivision of Dallas county, and to include in the said election a portion of the city of Dallas and the incorporated towns of Garland and Mesquite.”

The trial court found from the evidence that a majority of the votes cast at said election were in favor of the stock law, and also that, eliminating therefrom the votes cast in the three incorporated places heretofore named, a majority of the votes cast in the territory outside of the incorporated territory were in favor of the stock law being enforced. Such being the result of the election held, we find no error of the trial court in so ruling.

2. The .second ground upon which the legality of the election is attacked is embodied in the proposition submitted by appellant as follows:

“The law requiring that the election order of the county judge for a stock law election, where the election is to be held in any particular subdivision of the county, shall designate the par-, ticular places at which the polls shall be opened, and this provision of the law not having been complied with by the county judge, the election held under such order should be declared invalid.”

The trial court as a conclusion of law found as follows:

“The election order of the county judge, notwithstanding its failure to designate more specifically the particular places in the election precincts at which the polls should be opened, substantially complied with the law, and the election was not invalidated by any defect in the form of the county judge’s order.”

Vernon’s Sayles’ Statute, 1914, art. 7215, reads:

“If the election is ordered for the whole county, the same shall be held at the usual voting places in the several election -precincts; but, if the election is ordered for any particular subdivision, the county judge shall designate the particular places in such subdivision at which the polls shall be opened.”

The order of election was for commissioner’s precinct No. 2. It described said precinct by metes and bounds, and designated certain places by name as being the voting boxes for each community, which designation under the circumstances was a substantial, compliance with the law. There were about 6,900 voters registered in said precinct, and out of that number 2,080 voted for the stock law. There was held on the same day an election for the eradication of ticks for the whole county, and the votes cast in that election were approximately 2,800, and we are of the opinion that all those who were interested in the stock law voted, the votes cast at both elections showing that the people were not especially interested in either election. The court found that a majority of votes cast were for the stock law, but also found that he was unable to tell whether or not the result was affected by voters not knowing of the election by reason of the manner in which the voting places were designated. His views in this respect we think are immaterial, as he found in favor of the stock law. The small number of votes cast for the adoption of the stock law, when we consider the interest the people take in special elections of this character, is due to the fact that only freeholders can vote therein. The election seems to have been fairly and honestly held and conducted and counted, and the result so declared in favor of the stock law.

There are other errors assigned which attack the finding of the court, but none specify any irregularity in ordering or holding the election, all of which we have considered, and are of the opinion the said assignments are not well taken.

We have concluded that the election should be upheld, even if it be conceded that it could not be enforced in the incorporated territory, and the judgment of the lower court is affirmed.

Affirmed.

        <?- — .Nn- oilier oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    DARK v. INDIANA SILO CO. OF TEXAS.
    (No. 857.)
    (Court of Civil Appeals of Texas. El Paso.
    May 16, 1918.)
    1. Trial @=>350(2) — Submission of Issues— Evidentiary Issues.
    The refusal to submit requested issues which were evidentiary, ’ not ultimate, issues and not controlling was not error.
    2. Trial @=3253(5) — Ignoring Issues — Guaranty.
    In a suit to recover on notes given in purchase of a silo, it was not error to. submit to the jury the question whether the silo complied with the written guaranty, ignoring a verbal guaranty relied on by defendant, where there was no material difference between the two guaranties.
    Error to Ooke County Court; D. I. Durham, Judge.
    Suit by the Indiana Silo Company of Texas against G. W. Dark. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Blanks, Collins-& Jackson and E. E. Murphy, all of San Angelo, for plaintiff in error. Arnold & Patterson, of Robert Lee, for defendant in error.
   HIGGINS, J.

Defendant in error sued Dark upon the latter’s notes given to cover the purchase price of a silo sold to Dark by an agent of defendant in error. Dark defended upon the ground that he purchased the silo under a guaranty that it would keep and hold ensilage for 20 years, and that it failed ■to comply with the guaranty. The case was tried before a jury upon special issues, and upon the answers returned judgment was rendered for the amount sued for. In response to the issues submitted, the jury in effect found that the silo was reasonably fit for the holding and curing of ensilage, and complied with the guaranty set up by Dark.

The first assigned error complains of the refusal to submit a number of issues requested by defendant. In this there was no error, as the issues so requested were eviden-tiary and not ultimate issues. If the same had been submitted, the answers made thereto would not have been controlling.

It is next complained of the court’s charge upon the ground that it submitted to the jury the question of whether or not the silo complied with a written guaranty given by the silo company, and ignored the verbal guaranty relied upon by Dark. There are two complete answers to this. In the first place, the evidence, in this case is insufficient to authorize Dark to rely upon the verbal guaranty instead of the written guaranty. It fails to show any fraud, accident, or mistake which would relieve Dark from the terms of the written contract which he signed, and which expressly stated that the silo was guaranteed according to the current cat-alogue. A copy of this catalogue Dark admitted he received. In the second place, there was no material difference in the guaranty contained in the catalogue and in the verbal guaranty which Dark testified the silo company agent made when -the silo was purchased.

There is no merit in the third and last assignment. Upon the finding of the jury, judgment was properly rendered against Dark.

Affirmed.

HARPER, C. J., concurs. WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court.


author: . WILLSON, C. J.

text:
    MALLARD v. DAY et al.
    (No. 1937.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 9, 1918.
    Rehearing Denied May 16, 1918.)
    1. Contracts @=>95(1) — Duress—Effect.
    A contract made under duress is voidable at the instance of the party on whom the duress is practiced.
    2. Contracts @=>139 — Illegality—Stifling Prosecution — Fraud and Duress.
    Defendant, who charged plaintiff with stealing his flour, and, under duress of threats of murder and prosecution, forced him to assign vendor’s lien notes, and thereafter secured a conveyance of the land from the buyer from plaintiff by canceling such notes, could not keep the fruits of his duress as against plaintiff on the ground that both parties were in pari de-licto in contracting to stifle a prosecution.
    3. Trusts @=>95 — Constructive Trusts — Obtaining Land by Fraud and Duress.
    Having acquired the notes by duress, defendant held them as trustee for plaintiff, but charged with the money paid by him to a third person, whom plaintiff owed, and with whom the notes were pledged, and having, while holding the notes, used them and money of his own to acquire the land, defendant held an undivided interest in it as constructive trustee for plaintiff.
    Appeal from District Court, Henderson County; John S. Prince, Judge.
    Suit by R. B. Mallard against Blattie Day. and others. From a judgment adverse to him as against defendants 'Day, plaintiff appeals.
    Reversed, and judgment rendered for plaintiff.
    This was a suit by appellant against the appellees Mattie Day, Willie Day, Maddox Day, Jean Day, Tommie Day, Will W. Day, Cecil Cook, and Boil Miller, and Ms wife, Gabriella Miller. The petition contained two counts; one with, allegations usual in the statutory action of trespass to try title, and the other with allegations substantially as follows: (1) That appellant on April 15, 1914, by his deed of that date conveyed a parcel of land in Athens to Cecil Cook, then a minor. (2) The consideration for the. conveyance was three promissory notes for $166,662/3 each, payable one, two, and three years after their date, to wit, said April 15, 1914, to appellant’s order, made by said Cecil Cook and his mother Gabriella Miller. (3) The vendor’s lien to secure the payment of said notes was expressly retained therein and in appellant’s said deed to Cook. (4) About the middle of July, 1914, appellant deposited said three notes with one Tom Con-ditt to secure indebtedness amounting to $137.50 which he owed said Conditt <5) On January 16, 1915, one W. W. Day, since deceased, who was the husband of Mattie Day and the father of the other Days mentioned above, accused appellant of stealing certain flour from him, and threatened to kill appellant if he did not pay him (said Day) for said flour. (6) The threat was repeated by said Day through one Coffee on January 23, 1915. Day was a violent and dangerous man, likely, as appellant knew, to carry out his threat. (7) Under duress of fear he had that Day would kill him, as he threatened to if he did not pay for the flour which Day had falsely accused "him of stealing, appellant was, on said January 23, 1915, induced to assign the three notes to Day, and to give to Day an order on Coffee, directing him to deliver the notes to Day on the payment by him of the $137.50 due Conditt. (8) Day paid Conditt the $137.50, and secured possession of the notes. (9) Afterwards Day agreed with Cook to cancel and deliver the three notes to him if he, Cook, would convey the land to him, Day. (10) In accordance with the agreement Cook, by a deed dated March 20, 1915, conveyed the land to Day. (11) The Days from the time Cook conveyed the land to W. W. Day.rented it to Cook at a rental of about $10 por month. (12) Appellant by reason of the facts stated was still the owner of the notes and the superior title to the land. (13) It was provided in the notes that a failure to pay either of them should mature all of them at the election of the holder, and that appellant, as such holder, elected to declare all of them due. (14) If the law required he •should repay the amount paid out by Day, less the rents paid by Cook, appellant was ready to do so.
    The prayer was that appellant—
    “have judgment for foreclosure of lien on said property, and that his debt be established according to law; that said property be sold to satisfy said indebtedness herein named. Plaintiff asks such relief be given him as he is entitled to in law and in equity, and if the court concludes that the. plaintiff .is entitled to recover the title and possession of said land, then the plaintiff asks for this relief, and that all title be divested out of the defendants and invested in. the plaintiff, and that all deeds affecting the rights and title adversely be canceled.”
    The answer of the Days consisted of: First, a general denial; second, a plea that the notes were assigned by appellant to said W. W. Day, deceased, (1) to pay for groceries worth several hundred dollars, which, it was alleged, appellant had stolen from said Day, and (2) to induce said Day to agree, as he did, not to prosecute a case then pending in the courts in which appellant was charged with theft of the»groceries, which agreement, it. was alleged, was “contrary to law and public policy;” third, a plea that the agreement between appellant and Day “was completely executed and consummated” by the delivery of the notes to Day, and, therefore, that appellant was “estopped and barred from prosecuting and recovering in this cause”; and, fourth, a plea setting up the fact that Day, to obtain possession of the notes, paid Conditt the $137.50 appellant owed him, and alleging that Day not only canceled and delivered the notes to Cook in consideration of the conveyance to him of the land by the latter, but in addition paid Cook the sum of $105.
    The suit was dismissed as to the Millers, on their disclaimer, it is recited in the judgment, of any claim of interest in the land. Cook answered, setting up his minority at the times he made the notes to appellant and the deed to Day,-and prayed for a cancellation thereof, and in addition thereto for judgment against appellant for $350,’which he paid to appellant for the land as part of the consideration for the conveyance thereof to him. He was denied the affirmative relief he sought, and has not prosecuted an appeal., Therefore further reference to him need not be made.
    It appeared from the testimony: (1) That appellant, by a deed dated April 15, 1914, conveyed the land to Cook in consideration of $350 paid by Cook and three promissory notes for $166.662/3 each, made by Cook and his mother Gabriella Miller, payable one, two, and three years after their date (said April 15, 1914) to appellant’s order, and secured by the vendor’s lien retained on the land; (2) that appellant deposited the notes with one Conditt to secure the payment of $137.50 he owed Conditt; (3) that about January 15, 1915, Day caused proceedings charging appellant with theft from him (Day) of about 200 sacks of flour to be commenced in the courts, and threatened to kill appellant if he did not return the flour or pay him for it; (4) that afterwards, to wit, on January 23, 1915, while Conditt held the notes, appellant gave Day an order, directing Con-ditt to deliver the notes' to Day when the latter paid him (Conditt) the $137.50; (5) that -Day paid Conditt the $137.50, and’ so obtained the notes; (6) that in accordance with an agreement thereafterwards made between them Cook, by a deed dated March 20, 1915, conveyed the land to 'Day in consideration of the cancellation of the notes and the payment to him by Day of $110; (7) that Day died June 19, 1915, but whether testate or intestate did not appear; (8) that Cook rented the land from the Days from April 1, 1915, to August 1, 1916, paying them as rent therefor $8.75 per month; and (9) that this suit was commenced August 30, 1916.
    On special issues submitted to them the jury found that the land was worth $650 at the date of the trial, and further found, among things not material to the controversy between appellant and the Days, as follows:
    (1) That the “consideration” to appellant for the assignment by him of the notes to Day was:
    “That the said Day was to pay the amount duo by Mallard to Conditt, and that Day was not to hurt or molest Mallard, and also that Day would not prosecute the plaintiff Mallard on the charge of having stolen the flour.”
    (2) That a part of the “consideration” to appellant for the assignment of the notes to Day was—
    “to keep Day from killing him and from prosecuting him on a charge of having stolen the flour.”
    (3) That in turning over the notes to Day appellant acted under the fear of threatened violence.
    The judgment was that appellant take nothing by his suit against the Days.
    R. S. Neblett and Ormond Simkins, both of Corsicana, and Miller <& Miller, of Athens, for appellant. Richardson Watkins and J. J. Faulk, all of Athens, for appellees.
   . WILLSON, C. J.

(after stating the facts as above).

The law being that a contract made under duress is voidable .at the instance of the party on whom the duress is practiced (1 Elliott on Contracts, § 142; 1 Black on Rescission, § 225; 9 R. C. L. p. 725; 9 Cyc. 443), and the jury having found that appellant would not have assigned the notes to W. W. Day but for duress practiced on him by said Day, appellant insists it was error for the trial court to refuse him relief.

Appellees combat this, asserting that a sufficient reason for denying appellant relief lies in the further finding of the jury that the duress practiced on him consisted, in part at least, of threats of Day to prosecute him on a charge of felonious theft. They assert that appellant’s agreement to assign the notes to Day to induce him to forbear executing the threats was against public policy, and that, having assigned the notes in compliance with that agreement, appellant properly was denied relief. The proposition presenting the contention in appellees’ brief is as follows:

“Where a contract h,as been entered into the consideration of which is the suppression of prosecution for crime, the courts will refuse to aid either party to same, either in the carrying out or the rescission of same, but will leave them where they are, such a contract being con-, trary to public policy and void; and this is true where any part of the consideration is so obtained and criminal.”

That -the rule appellees undertake to state and seek to invoke does not apply to the ease is clear in the light of the authorities. 1 Elliott on Contracts, § 162; 2 Elliott on Contracts, § 1101; 6 R. C. L. pp. 833, 834 ; 6 Cyc. 317; Gorringe v. Reed, 23 Utah, 120, 63 Pac. 902, 90 Am. St. Rep. 692; Colbey V. Trust Co., 160 Cal. 632, 117 Pac. 913, 35 L. R. A. (N. S.) 813, Ann. Cas. 1913A, 515. The facts in the Gorringe Case were not materially unlike the facts of this one. In that case the court said:

“The very existence of a contract requires that the minds of the parties meet, and that it be executed freely and voluntarily by all the contracting parties. If, then, in a case like the one shown by the evidence herein, one of the parties acts under constraint, induced by the other, and signs the instrument without voluntary assent to it, the party who exerted the improper influence can take no advantage of the contract. * * * One who, under circumstances as now disclosed in this case, makes use of the criminal process of the courts for the purpose of overcoming the will of another to secure an advantage to himself is not in a position to obtain and hold the fruits of a contract, whether executed or executory, so obtained, on the ground that both parties were in pari delicto, and that in equity the court will leave them where it finds them.”

Having acquired the notes by duress practiced, W. W. Day held them as trustee for appellant, but charged with the $137.50 paid by him to Conditt; and having, while so holding the note, used them and money of his own to acquire the land, said Day held an undivided interest in the land as trustee fox-appellant. 39 Cyc. 172; Schneider v. Sellers, 98 Tex. 390, 84 S. W. 417; Fidelity & Deposit Co. v. Wiseman, 103 Tex. 286, 124 S. W. 621, 126 S. W. 1109; Gillean v. Wither-spoon, 121 S. W. 909; Morris v. Vyse, 154 Mich. 253, 117 N. W. 639, 129 Am. St. Rep. 472; Borchert v. Borchert, 132 Wis. 593, 113 N. W. 35. In the Sellers Case Justice Brown quotes the following from 2 Pomeroy’s Equity, § 1053, as a coi-x-ect statement of the rule:

“In general, whenever the legal title to property, real or .personal, has been obtained through actual fraud, misrepresentations, concealments, or through undue influence, duress, taking advantage of one’s weakness or necessities, or through any other similar means or under any other similar circumstances which render it un-eonscientidhs for the holders of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired, in favor of the one who is truly and equitably entitled to the same.”

And in the Wiseman Case Chief Justice Gaines said:

“When one has been defrauded of property, as in this case, he may sue for the pi-operty itself. or, in case it has been sold to an innocent purchaser, he may recover the proceeds. Whether of the property, or of its proceeds, the holder is considered a constructive trustee.”

It appeared that Day gave the notes he held as trustee for appellant and $110 in money he owed in his own right to Cook for the land. The principal and accrued interest of the notes at that time amounted to $540.50. This sum, less $137:50 paid by Day to Conditt, who held the notes as security for a debt appellant owed him, represented the undivided interest in the land held by Day as trustee for appellant; and the $137.50 paid by Day to Oonditt and $110 paid by him to Cook represented the undivided interest owned by Day in his own right. So, it seems, Day paid $403 of the total of $650.50 he gave Cook for the land with property he held as trustee for appellant, and $247.50 thereof with property he owned in his own right. Hence it appeared that appellant owned an undivided interest of 806/1301 in the land. Therefore the court below erred when he rendered Judgment denying appellant relief. The Judgment of that court will be reversed, and Judgment will be here rendered that appellant do have and recover of appellees an undivided interest of 806/1301 in the land described in appellant’s petition.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, O. J.

text:
    G. M. CARLTON BROS. & CO. v. HOPPE.
    (No. 5909.)
    (Court of Civil Appeals of Texas. Austin.
    March 27, 1918.
    Rehearing Denied June 12, 1918.)
    1. Trial <©=>48 — Receiving Evidence Inadmissible as to Coparty.
    A deed will be admitted in evidence, where it is admissible against one of the defendants, although it may be inadmissible as to another defendant.
    2. Landlord and Tenant <®=»330(1) — Landlord’s Lien — Failure to Record.
    A contract giving landlord as rent a share of the crops grown by tenant on the rented farm need not be recorded to give third persons notice of landlord’s interest therein; a landlord’s lien being created by statute.
    3. Landlord and Tenant <©=>332 — Landlord’s Lien — Crops—Purchaser—Burden oe Pro or.
    In action by landlord against purchaser of crops on which he has a landlord’s lien, purchaser has burden of proving himself to be innocent purchaser. *
    4. Chattel Mortgages <©=>138(3) — Crops — Priority — Landlord’s Liens.
    Where chattel mortgage is executed upon future crops, and mortgagor subsequently sold land, remaining in possession as tenant under agreement to give landlord a share of the crops as rent, the landlord’s lien for rent is prior to mortgagee’s lien; the mortgage becoming effective upon growing of crop, but only as to mortgagor’s interest therein.
    Appeal from Coryell County Court; J. J. D. Cobb, Special Judge.
    Action by Will Hoppe against T. W. Burge and G. M. Carlton Bros. & Co. Judgment for plaintiff, and defendant last named appeals.
    Affirmed.
    Mears & Watkins and J. W. Stinnett, all of Gatesville, for appellant. McClellan & McClellan, of Gatesville, for appellee.
   KEY, O. J.

On the 30th day of November, 1915, T. W. Burge was indebted to G. M. Carlton Bros. & Co., a private corporation, to the extent of about $320, and on that date he executed a chattel mortgage to secure Carlton Bros. & Co. as to the indebtedness already existing, and such as might thereafter accrue. The mortgage covered four head of horses, three head of cattle, and a cotton crop to be grown by Burge during the year 1916 on about 150 acres of land. On the 18th day of April, 1916, Burge and his wife, by deed duly executed, conveyed the land upon which the crop was to be grown to Will Hoppe, and on the same date a written contract was entered into by the terms of which Burge became the tenant of Hoppe, and continued to occupy and cultivate the land as such upon 'an- agreement by which Hoppe was to have one-third of all the grain and one-fourth of all the cotton produced on the land during the year 1916, except the cane patch, consisting of 3 or 4 acres. Thereafter Carlton Bros. & Co., which was engaged in the mercantile business, continued to sell merchandise to Burge until about the 1st of September, when Tom Carlton, the general manager of the corporation, was apprised of the fact that Burge had sold the farm to Iioppe, and that the latter was claiming a prior lien for rent. Thereafter Carlton Bros. & Co. bought from Burge the cotton raised by him upon the farm, and applied the agreed price therefor as credit upon Burge’s' account, and refused to recognize Hoppe’s right to any portion thereof. On November 16, 1916, Hoppe brought this suit against Burge and Carlton Bros. & Co., and at a trial before the court, without a Jury, he obtained a Judgment for $243.82, and the defendant Carlton Bros. & Co. has appealed.

The first assignment of error complains of the action of the court in overruling appellant’s objection to- the admission in evidence of the deed from T. W. Burge and wife to the plaintiff. The only proposition submitted under that assignment is that, where the federal law requires that before a deed can be properly recorded it must have certain canceled revenue stamps upon it, a deed placed on record without such canceled stamps upon it would not be notice to a third person. The deed, as well as the rent contract, was certainly admissible in evidence as against the defendant Burge, and therefore the other defendant had no right to have it excluded. Furthermore, a landlord’s lien fdt rent is created by the statute, and it is not necessary that the same should be placed upon record to give notice to third persons ; also, in this case appellant’s nwrtgage covered other property besides the crop, and the proof does not show such facts as would entitle appellant to plead estoppel against ap-pellee. If it he conceded that appellant sold goods to Burge without ^ny knowledge of th'e fact that he had sold the land to appellee, still there is no proof that it would not have done so in reliance upon its other security, even if it had known of the existence of such sale. Besides, the deed and rent contract were admissible against both defendants; and, if appellant claimed protection as an innocent purchaser, the burden of proof rested upon it on that issue, and appellant was not entitled to have th'e deed excluded.

Under the second assignment the contention is made that the court erred in permitting the plaintiff to introduce in evidence the rental contract between him and Burge; the contention being that it was not admissible as against appellant, because it was not a party thereto and had no knowledge of the same. That proposition is unsound, and that assignment is overruled.

Under appellant’s third and last assignment of error three propositions are submitted, all of which present the contention that, as appellant’s mortgage was executed and recorded prior to the sale of the land to ap-pellee, the former’s right as mortgagee is superior to appellee’s right as a landlord lien-holder. The proof shows that very little, if any, of the crop had been planted at the time Burge and his wife conveyed th'e land to ap-pellee, and the former became the tenant of the latter. This and the other facts already stated bring the case within the principle announced pnd applied in Ivy v. Pugh, 161 S. W. 939, in which the Ft. Worth Court of Civil Appeals correctly held that the landlord’s lien was superior to th'e lien of a third party, though the latter was created by an instrument executed prior to the accrual of the rights of the ‘landlord. We approve the following excerpts from that case:

“It is well settled in this state that a chattel mortgage executed upon property not in existence may become operative, if the property covered subsequently comes into the possession of the mortgagor. This, however, is not upon the ground that the execution of such instrument creates at the time a valid lien upon the thing mortgaged, for in the supposed case the thing mortgaged is not in existence, and necessarily there can be no lien against it. It is rather upon the equitable principle of estoppel, or, as it is sometimes expressed, that the subsequent acquisition of the property feeds the mortgage. * * * Appellee’s mortgage lien became effective upon the planting and growing by defendant, Pugh, of the crop embraced in its terms; but it was effective only to the extent of the interest owned by said Pugh in the crops. Pugh could in no event convey a greater title than he had, which, under the operation of our landlord’s lien act, * * * was one subject to the lien of the landlord for rents. In other words, lie never acquired an absolute title to the property previously mortgaged, but only a qualified title. So that the mortgage [in controversy], in the very nature of things, could only operate upon the limited ownership of the mortgagor.”

No reversible error has been shown, and the judgment is affirmed.

Affirmed.
      ifcSsFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes