text:
    HUTSPETH v. STATE.
    (No. 4119.)
    (Court of Criminal Appeals of Texas.
    June 14, 1916.)
    1. Larceny <®=»50 — Evidence — Admissibility.
    In prosecution for larceny the state may show accused’s financial condition immediately before and immediately after the alleged theft.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 142; Dec. Dig. <@=o50.]
    2. Larceny <®=3(2) — Prosecutions—Ootense.
    Where a finder of lost property at the time of the finding intended to appropriate it and deprive the owner he is guilty of larceny; but, if he subsequently converts the property, not having intended to do so at the time of the finding, he is not guilty, though the fact that the property did not contain any means of identification is no defense.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 4; Dec. Dig. <S¿>3(2).
    For other definitions, see Words and Phrases, First and Second Series, Larceny.]
    3. Criminal Law <®=829(1) — Trial—Instructions.
    The refusal of a requested charge covered by one given is not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. t§a^829(l).]
    Appeal from District Court, Nolan County; W. R. Spencer, Judge.
    Joe Hutspeth was convicted of theft, and he appeals.
    Affirmed.
    John J. Ford, of Sweetwater, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft, and his punishment assessed at two years’ confinement in the state penitentiary. The facts would show that while Miss Edna Kelsey was shopping in the city of Sweet-water, while going from the Sweetwater dry goods store to Cox’s jewelry store, she lost her pocketbook containing four $20 bills, a $10 bill, and some silver. She described the pocketbook, and Dave O’Connell says as he was passing along the street he saw a pocketbook of this description, and, thinking it was placed there to fool some one, he kicked it on down the street; that after passing he saw appellant go and pick up the pocketbook, and shove it quickly in his pocket. Bessie Dykes says she saw appellant that afternoon, and he showed her a $10 bill and some silver first, and gave her $12.50, but she returned it to him. That appellant also showed her some more money, and said it was $80, claiming that he had won it at a crap game. Aft-erwards he told her it had been paid to him by Mose Newman, and he had saved it and kept it at the Palace Drug Store. Mr. Newman testified that he had paid appellant no money since January before (this occurring in April), and appellant had been trying to borrow money from him. The proprietor of the Palace Drug Store testified appellant had never kept any money at his drug store. Bob May testified to appellant, two days after Miss Kelsey lost her pocketbook, paying him $27.50 for a suit of clothes, and John R. Cox testified to appellant buying a watch and paying him $22.50 for the watch.

Appellant objected to Bob May, John R. Cox, and Bessie Dykes being permitted to testify about appellant having this money in his possession, as it was not identified as the money lost by Miss Kelsey. It is the rule in a case of this kind that the state may prove the financial condition of the person on trial just before and just after the theft, if such proof would shed any light on the transaction. Armstrong v. State, 34 Tex. Cr. R. 248, 30 S. W. 235, and cases cited in Branch’s Ann. Penal Code, page 1304. Appellant requested peremptory instructions. The court did not err in refusing same, the evidence, in our opinion, being ample to sustain the conviction.

Appellant requested two special charges, in which he asked the court to charge the jury “if the purse or contents did not con-fain any means of identification of the owner” to acquit appellant. We know of no authority announcing any such rule of law, and appellant cites none. The law governing a case of this kind was presented as favorably as he could expect in the third special charge given at appellant’s request:

“In order to constitute the finding of lost property theft, the intent to deprive the owner of his property, and to appropriate it to the taker’s own use and benefit, must have existed in the mind of the finder at the time he found such property and took possession of it; and, if the fraudulent intent to deprive the owner of his property and to appropriate the same to the use and benefit of the finder did not exist at ■ the time of the finding, no subsequent appropriation of such property fry tfre finder would constitute theft. Now, if you believe from the evidence, that the lost money in question was found fry the defendant, Joe Hutspeth, you are charged that you cannot convict him of the theft of such money unless you believe beyond a reasonable doubt that, at the time of the taking, if in fact you find there was a taking, that defendant took áuch money with the fraudulent intent to deprive the owner of the use and benefit of the same, and to appropriate it to his own use and benefit; and, in case you have a reasonable doubt as to the intention of defendant to so do, you should acquit him.” '

The only other special charge requested was one in regard to circumstantial evidence. The court in his main charge gave a charge on circumstantial evidence; therefore it was unnecessary to give the charge requested on this issue. This charge, as given, is not upon the weight to be given the testimony, as contended by appellant. The charge as given is a full and fair presentation of the law as applicable to the evidence adduced. Reed v. State, 8 Tex. App. 40, 34 Am. Rep. 732; Robinson v. State, 11 Tex. App. 407, 40 Am. Rep. 790; Stepp v. State, 31 Tex. Cr. R. 351, 20 S. W. 753; Wharton’s Crim. Law, vol. 2, pp. 1363-1373; Branch’s Ann. Penal Code, pp. 1351-1352.

The judgment is affirmed.
      <SxaoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    DEBTH v. STATE.
    (No. 4121.)
    (Court of Criminal Appeals of Texas.
    June 14, 1916.)
    1. Cbiminal Law @=>1048 — Appeal and Ee-eoe — Scope op Review — Pbeseevation op Exceptions.
    On appeal matters not excepted to, but set up for the first time in motion for hew trial, cannot be noticed.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2656, 2657, 2670; Dec. Dig. @=>1048.]
    2. Cbiminal Law @=51056(1) — Appeal—Pbes-ebvation op Exceptions.
    Unless contrary to the law and the facts, a charge, though erroneous, will not be treated as fundamental error, unless exception is taken on the trial and before the charge is read to the jury, either in felony or misdemeanor cases.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. @=> 1056(1).)
    3. Cbiminal Law @=>1137(3) — Appeal — Invited Ebbob.
    Defendant cannot complain of a charge given at his request, even though erroneous.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3007, 3009; Dee. Dig. @=> 1137(3).]
    4. Cbiminal Law @=>1053 — Tbial — Sweae-ing Witnesses — Recoed.
    Evidence cannot be held insufficient merely because the statement of facts fails to show on its face that witnesses were sworn, if no exception was taken at the trial.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2661, 2665; Dec. Dig. @=> 1053.)
    5. Cbiminal Law @=>1036(1) — Appeal — Re-vebsal.
    Where defendant and his attorney agreed to use of affidavit of absent witness and made no objection to its introduction at the trial, its admission is not ground for reversal.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1631-1640, 2639; Dec. Dig. @=>1036(1).]
    Appeal from Bexar County Court; Nelson Lytle, Judge.
    William Debth was convicted of keeping and aiding in keeping a disorderly house, and he appeals.
    Affirmed.
    Chambers & Watson, of San Antonio, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted under the second count of the information charging him with directly keeping and being concerned in keeping and aiding and assisting in keeping a disorderly house, etc., where men and women met by mutual appointment and by appointment made by another for the purpose of sexual intercourse.

The evidence shows that defendant had married a woman named Belle Cook, whom he had known some time prior to their marriage, and that he was living with her at the alleged disorderly house, and was in charge of the house as shown by the witnesses. Appellant testified in his own behalf, and stated that he had never rented a room either to Virginia Carothers or McMullen; that he was unaware that men and women met at his house for immoral purposes, but he knew that men and women frequently came there without baggage, and some time would stay all night, and some time only an hour or two and go away; that he was a machinist himself, but since his marriage to Belle Cook had not worked at his trade; that he was managing her property, which consisted of a house back of the Menger Hotel, the alleged disorderly house, and 15 acres of land; that he had no income on which to live except what he received from this property, and that his wife lived off the income from the same property; that he had known her two or three years before their marriage, and had lived with her since, making seven or eight years in all; that he had been at her place a number of times before he married her, but did not know what business she was in, and did not know whether she kept a disorderly house or not. Appellant introduced also Ella Jones, a white woman, who was housekeeper for Belle Cook, wife of the defendant. This woman testified that she did no scrubbing nor washed dishes, but did the housework, and that men and women often came there together, and sometimes would stay all night, sometimes only a short while, and that they never brought any baggage, and were not required to register, and that no register was kept for such purpose; that there was only one regular roomer in the house; that she knew Virginia Carothers, who had formerly lived in a house of prostitution, where witness also stayed for a while; that Virginia Oarothers was a sporting woman, and that said house was like the one occupied by the defendant; that Belle Cook and her husband, the defendant, were at their house on many occasions when rooms were rented, and she had seen them on some occasions talking to the parties renting the room; and that defendant and his wife lived there at the time alleged in the information, and had the care, custody, and control of said place, and were there the night of the raid by • the officers. Two of the detectives testified, as well as two policemen, that they were with the police department of the city of San Antonio at the time of the alleged offense, and were familiar with the house back of the Menger Hotel where appellant lived, and knew the general reputation of the house, and that it was a disorderly house, and had been used as such for years, and was being used as such at the time they made the raid; that they had raided this house two or three times and found unmarried men and women in rooms together; that some of the women were well-known prostitutes; and that when they entered the house at the time alleged in the information they inquired for the landlord and keeper of the house, and defendant came forward and stated he was such, and if they had any business to take it up with him; that this was his place and he lived there. They further testified that a prostitute by the name of Virginia Oarothers was taken out of a room with a traveling salesman by the name of McMullen, to whom she was not married, and that they were undressed, and that this was about 1 o’clock in the morning, and that another unmarried couple were found in another room of the same house at the same time, and that appellant was there at this time.

There is also evidence that an attorney named Cresson represented defendant on the trial before the jury, and on the former term of the court defendant asked for a continuance, which was granted, and that there was an agreement had with defendant in open court that, inasmuch as the state was then and there ready for trial, and had all of its witnesses present and that one, Virginia Oarothers, a witness for the state, was likely not to be found again, and likely not to be present at the trial of this cause at a later date, defendant and his attorney then and there agreed with the court and the county attorney that the said Virginia Oarothers should be then and there in open court sworn by the court and examined by the state and defendant, which was done, and defendant cross-examined her and elicited from said witness all testimony material to this cause, and agreed that said testimony then and there in open court obtained from said witness should be used at the trial of this causé at a later date, and that, in order to preserve said testimony exactly as it was given in open court, it should be reduced to writing in narrative form, and sworn to by the witness, and that thereupon same waá reduced to writing at once in the offiee of the county attorney, the attorney for defendant being present and agreeing to the statement as written, which statement was then and there exhibited to the defendant, which the defendant agreed was as given in the court, that the defendant and his attorney then and there agreed that it was as he wished it, and further agreed that said statement was to be read in evidence as the testimony of Virginia Oarothers without reservation by both parties as all that Virginia Oarothers knew or could testify to in this case, and that said statement be taken and admitted in evidence as of the same weight and merit as if the said witness was present at the trial and testified under oath as a witness the said statements that are included in said affidavit. She testified, without repeating it in detail, that she was at that time living in San Antonio, and was not married to Mc-Mullen, and never had been, and was not married to him at the time he and she were in a room at Belle Cook’s house about midnight of the 18th day of December, 1915; that this was the third time she and appellant had been at Belle Cook’s house and stayed there together for the night. Witness says she was rooming at the Menger Hotel at the time she went to Belle Cook’s house, and when they got there Mr. McMullen made arrangements with Belle Cook and her husband, defendant, for the room they were to occupy on these different occasions, and on the first occasion in going there witness heard Belle Cook ask McMullen where he got such a pretty wife. She testified further she was a sporting woman, and was at this house the night the police made the arrest and the raid, and was in the room with McMullen, and they were undressed. She also said Belle Cook knew and had seen her there prior to this time; that both Belle Cook and her husband, appellant, were there at the time they were arrested, and when Mc-Mullen engaged the room. Without going further into detail, this is a sufficient statement of the facts. It might be stated further that Mr. Cresson, who represented appellant on the trial, is not the attorney representing him here, but other attorneys were employed.

There was no exception taken to any action of the court during the trial. The court gave every charge asked by the state and the defendant. In the motion for new trial some matters are set up which, in our judgment, cannot be noticed because no exception was taken to any of the matters, except specified as grounds .of the motion for new trial. The court at the request of the county attorney gave a general definition of what it takes to constitute a disorderly house, etc. The county attorney asked another ■charge applyifig the law to the facts of the case, and also a charge was asked by the de-' fendant. This charge asked by ' defendant is attacked by him in the motion for new trial and here because it is not the law, and that it is of such a nature it ought to reverse the judgment. In order to have the case reversed exception must be taken at the time of the trial and before the charge is read to the jury, if it be a felony, and the same rule has been held to apply to misdemeanors as under the statute before it was amended with reference to the time of taking exceptions to the charge.

In Basquez v. State, 56 Tex. Cr. R. 329,119 S. W. 861, this matter came under review again, and, so far as the writer has been able to ascertain, has been followed by the decisions of the court since. Under that view of the law, even if the charge was erroneous, it would not be treated as fundamental error unless contrary to the law and the facts. The special charge given at the request of appellant is as follows :

“Unless you believe beyond a reasonable doubt that defendant, William Debth, was keeping the premises, or did aid, abet, assist in, or was concerned in keeping said premises where a woman and a man were found together, and unless you further believe also that the defendant, William Debth, rented a room to a man and a woman, or did aid, abet, assist in, or was concerned in renting said room, and at the time knew them not to be married, you will find the defendant not guilty.”

This charge seems to be favorable to the defendant, and it is attacked largely because it fails to require the jury to find that the premises were rented to this man and woman for sexual intercourse by mutual agreement. In addition, the court gave the presumption of innocence and the reasonable doubt, etc. In the absence of an exception taken, these charges cannot be reviewed, especially the charge requested by appellant, if for no other reason under the doctrine of what is termed in the books invited error.

Again, it is urged the evidence is not sufficient because it does not show the witnesses to have been sworn, and this only to be gathered from the statement of facts. Of course, the evidence of Virginia Oarothers was sworn to at the time under the circumstances above stated. The statement of facts is silent as to whether the other witnesses were or were not sworn, and the ground of attack does not show whether they were or were not sworn. It seems to be based upon the fact that the statement of facts does not show on its face that they were sworn. We are of opinion this proposition is not well taken. In Goldsmith v. State, 32 Tex. Cr. R. 112, 22 S. W. 405, the proposition is laid down that, where a witness who was not sworn was permitted without objection to testify on the trial, it is too late on the motion for new trial to raise the question. The same proposition was laid down as far back as Bell v. State, 2 Tex. App. 217, 28 Am. Rep. 429. These cases have been followed, and some of the authorities will be found collated in 5 Rose’s Notes, on page 917 of that work. Reading from the syllabus as found in Goldsmith v. State, supra, this is quoted:

“It is too late on motion for new trial to urge that witness was not sworn before testifying, where no objection was made at the trial.”

This was approved in United States v. Armour & Co. (D. C.) 142 Fed. 825; Dodd v. State, 44 Tex. Cr. R. 482, 72 S. W. 1015; Coleman v. State, 43 Tex. Cr. R. 17, 63 S. W. 322.

It is again urged that the affidavit made by Virginia Carothers and used on the trial was not admissible, for various reasons, among others, it is contended defendant was not confronted with the witnesses, etc. However this may be, there was no bill of exceptions reserved to the affidavit. It was agreed to by the defendant and his attorney in open court, with the concurrence of the court, for reasons already quoted and stated above, and no objection was urged to it on the trial. It comes for the first time on motion for new trial. The writer has not agreed with the majority of the court on the question of the reproduction of testimony under the constitutional provisions requiring the accused to be confronted with the witnesses against him, but this question does not come within that rule as he understands it. A defendant may object to the reproduction of testimony or its production in any form if it has not been legally done. The rule is well settled also that in order to obtain advantage the testimony must be objected to at the time, with the exception of where the wife is used in behalf of the state. There being no exception, and the matter having been fully agreed to by the defendant and his attorney, Mr. Cresson, we find no error in this matter' requiring a review of the question or a reversal for that reason.

As the record is presented, we are of opinion that there is no reversible error shown, or that the errors as shown are not of such nature and presented in such manner that they can be reviewed to the end of reversing. the judgment.

The judgment therefore will be affirmed.
      @=>For other oases see same topic and KEY-NUMBKR in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    DERRY v. HARTY et al.
    (No. 5644.)
    (Court of Civil Appeals of Texas. Austin.
    April 19, 1916.)
    1. Appeal and Error @=>994(3), 995 — Review — Findings.
    On trial by court without a jury, the court is the sole judge of the credibility of witnesses and weight of the testimony.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3904 — 3905[4, 3907; Dec. Dig. <@=>994(3), 995.]
    2. Homestead @=>181(3) — Abandonment — Evidence — Weight.
    In an action by a widow to recover title and possession of a lot as a homestead, evidence of removal and declarations held to support a finding of abandonment.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 353; Dec. Dig. <§==>181(3).]
    3. Homestead <§=>164 — Abandonment — Acquiring Another Homestead.
    A homestead may be abandoned notwithstanding another has not been acquired.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 327, 328; Dec. Dig. <@=>164.]
    4. Homestead <@=>163 — Abandonment — Removal — Intent to Return.
    Removal coupled with intent never to return constitutes abandonment of a homestead.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 320-326; Dec. Dig. <@=>163.]
    5. Homestead <@=>181% — Abandonment—Intent-^Question fob Juey.
    In an action raising issue of homestead abandonment, the intent to abandon is a question of fact for the jury or court trying the case.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 401; Dec. Dig. <@=>181%.]
    Appeal from District Court, Williamson County; C. A. Wilcox, Judge.
    Action by Belle Derry against Charles D. Harty and another. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Wilcox & Graves and J. B. Robinson, all of Georgetown, for appellant.
   RICE, J.

Appellant, who is the head of a family, during the year 1908 purchased a house and lot in Georgetown, in which, with her children, she lived as a home until July, 1011, when she left it, going to points in Bell and Williamson counties, where, it seems, she picked cotton during that season with one Gus Derry, and later cooked for Mr. Roundtree. In the latter part of said year she and Derry were arrested and employed appellee I-Iarty, an attorney, to represent them, by reason of which she became indebted to him for attorney’s fees. 'In April, 1912, she married Derry and moved to Dallas, where she continued to live until July, 1914, when she returned to Georgetown; her husband having died in the meantime. Prior to the death of her husband, Harty obtained judgment against them for the amount due him as attorney’s fees, and thereafter, on the 7th of January, 1913, levied an execution upon the lot in question, and sold the same thereunder, at which sale he became the purchaser, subsequently conveying it to W. R. McElroy, one of the appellees herein; and this suit was brought by appellant against Harty and McElroy to recover title and possession of the lot on the ground that the same was her homestead and not subject to forced sale at the time of the levy, as well as for damages for the alleged conversion of certain personal property left by her in the house. Harty and McElroy answered, denying that the property was her homestead, or that she was the head of a family, or that they had ever converted the personal property, and alleged that if the lot had ever been her homestead she had abandoned it prior to and at the time of the levy, and that the same was subject to execution. The case was tried before the court without a jury, who found as a matter of fact that appellant had abandoned the property as her homestead prior to and at the time of the levy of the execution, and that she was not entitled to recover, and judgment was entered accordingly, from which this appeal is prosecuted; and the principal contention is that the court erred in finding as a fact that appellant had abandoned the property in question as her homestead.

There being no jury, the findings of the court must be treated as we would the verdict of the jury; and, if there is any evidence to support it, the judgment must be sustained. See Wells v. Yarbrough, 84 Tex. 660, 19 S. W. 865. The court in such cases is the sole judge of the credibility of the witnesses and the weight of the testimony. Stee Miller v. Himebaugh, 153 S. W. 338. Appellant left her home in 1911, and did not return to it until 1914. She married in April, 1912, and moved with her husband to Dallas, where she lived until his death, which occurred in December, 1913, and continued to remain in Dallas until the following summer. At the time she left her home, and on numerous occasions during her absence, it was shown that she had frequently declared her intention never to return to Georgetown; that she expected to remain with her husband wherever he might go. When arrested she made a deed to this property to Mr. Round-tree to secure bond, declaring at the time that it was not her homestead, and that she never expected to live in it again. It was also shown that she had written to one of her sons during the time that she was absent, stating that she nevqr expected to return home, and intended to give the place to her children. There was evidence, however, showing that when she left her home she left her household and kitchen furniture there in charge of the children, who remained in the house until the forcible entry and detainer suit was brought against them, when they surrendered possession to appellee Harty. She also specifically denied having stated that she never intended to return. The evidence in her behalf was sufficient, if the court had found in her favor, to have sustained its judgment. The judge, however, evidently disregarded the testimony of appellant and her witnesses. This was his province. Jones v. Jones, 146 S. W. 265-270, and cases there cited. It is true that during her absence she never acquired another homestead, but this was not necessary, since the homestead may be abandoned, notwithstanding another has not been acquired. ‘ See Woolfolk v. Rickets, 41 Tex. 362; Cline v. Upton, 56 Tex. 319; McMillan v. Warner, 38 Tex. 414; Shepherd v. Cassiday, 20 Tex. 29, 70 Am. Dec. 372; Jordan v. Godman, 19 Tex. 275. Removal, coupled witli an intention never to return, constitutes an abandonment of tbe homestead. See Cox v. Shropshire, 25 Tex. 123; Shepherd v. Cassiday, supra; Cline v. Upton, supra. The question of intent to abandon is one of fact solely for the consideration of the court or jury trying the case.. McMillan v. Warner, supra; Edmonson v. Blessing, 42 Tex. 601.

While the evidence, as we have seen, would have sustained a finding in favor of appellant, still, there is ample evidence, in our opinion, to support the judgment of the court, for which reason the same is in all things affirmed.

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

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


author: JENKINS, J.

text:
    CROSS et al. v. WILKINSON et al.

    (No. 5570.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 16, 1916.
    On Motion for Rehearing, April, 1916.
    Rehearing Denied June 7, 1916.)
    1. Boundakies <@=40(1) — Official Surveys —Land Included.
    In trespass to try title, evidence of the location of boundary lines of county school lands held to raise a question for the jury.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 196-203; Dec. Dig. <@=>40 (1).]
    2. Public Lands <@=175(5) — Official- Surveys — Statutory Pro visions — “Survey. ’ ’
    Rev. St. 1S95, art. 4269 (Acts 18th Leg. c. 40) validating surveys theretofore made of county school lands, declaring vested in the several counties “the titles to the lands included in the lines of said surveys and returned to the general land office,” does not mean that in ascertaining the boundaries of county school lands such construction will be given to the field notes so returned to the land office as to give to the county the benefit of those calls most favorable to the county, and the word “survey,” in the expression “the land included in the lines of the survey,” does not mean th'e diagram or map required by Rev. St. 1911, art. 5336, to be returned with and as a part of the field notes, but is there used as synonymous with “field notes,” although the survey, accurately speaking, is the land included in such field notes.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 565, 566; Dec. Dig. <@=175(5).
    For other definitions, see Words and Phrases, Mrst and Second Series, Survey.]
    3. Public Lands <@=175(6) — Official Surveys — Statutory Provisions.
    Such act by its express terms is applicable only to surveys which had been patented at the time it was passed.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 568, 569; Dec. Dig. <@=175 (6).]
    On Motion for Rehearing.
    4. Public Lands <@=178(1) — Conveyance by County — Warranty—Liability.
    Where a county sells land to which it has good title by patent from the state, and conveys by the same description as in the patent, it is not liable to the purchaser on account of differences or difficulties in ascertaining the boundaries of the tract conveyed, since when the boundaries are ascertained the purchaser’s title is good.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 579; Dee. Dig. <@=178(1).]
    Error from District Court, Travis County; Geo. Calhoun, Judge.
    Action by Ed Wilkinson and others against Jesse F. Cross and others. From a judgment for plaintiffs against the named defendant and certain others, they bring error. Reversed as to them, and affirmed as to defendant La Salle County, as to which plaintiffs were denied relief.
    A. H. Kirby, of Ft. Worth, E. H. Yeiser, of Austin, and Theodore Mack, of Ft. Worth, for plaintiffs in error. Morrow & Morrow, of Hillsboro, for defendants in error.

      Application for writ of error pending in supreme Court.

   JENKINS, J.

We copy and adopt the following from plaintiffs in error’s preliminary statement as to nature and result of this suit, omitting references to pages of the transcript:

“Defendants in error Ed. Wilkinson, Ed. Woodall, W. C. Robertson, and Pat E. Hooks, as plaintiffs, instituted suit in the form of trespass to try title against Jesse F. Cross, Cora B. Cross, H. Allison, H. O. Conway, Ben O. Smith, W. H. Grove, J. O. C. Martin, H. L. Stewart, J. C. Hartzog, H. T. Shumake, G. W. Walcott, O. B. Holt, T. B. Duncan, and La Salle county, as defendants, for the title and possession of a tract of land described as a part of La Salle county school land leagues Nos. 322, 323, 324, and 325, in Martin county, Tex.
“H. T. Shumate answered by general denial and not guilty, and by cross-action for a tract of land lying west and south of the La Salle county leagues. La Salle county filed plea of privilege, plea in bar, and its answer consisting of exceptions, general denial, and not guilty, and specially that the lands were conveyed by it, in bulk and for a lump consideration, and gave only a special warranty.
“Jesse F. Cross and Cora B. Cross answered by general denial and not guilty. Ben O. Smith, W. H. Grove, and T. B. Duncan disclaimed as to all of the land except surveys Nos. 1, 2, and 3, block 10, known as the Jesse F. Cross surveys, describing same by field notes, and also by general denial and plea of not guilty. Defendants J. C. C. Martin, H. L. Stewart, A. F. Blue, and J. B. Smith filed plea of privilege and special demurrer. The plea of privilege was overruled, and the demurrer sustained. These defendants answered by adopting the pleadings of the plaintiff in so far as they sought to establish the boundary fines of the four leagues of the La Salle county school land, and in all other respects denied the allegations of plaintiffs’ petition.
“The case was tried before a jury, and on a peremptory instruction given by the court the jury returned a verdict for plaintiffs, and judgment was entered in accordance with such instruction.
“Defendants W. H. Grove, Ben O. Smith, T. B. Duncan, and Jesse F. Cross filed their motion for new trial, which was overruled by the court. W. H. Grove, Ben O. Smith, Jesse F. Cross, Cora B. Cross, and T. B. Duncan filed their petition for writ of error and writ of error bond, and brought the case before this court for review.
“This is really a boundary suit involving the location of the lines and corners of the four leagues of La Salle county school lands, the plaintiffs in the lower court claiming that said boundaries included the lands claimed by plaintiffs in error, which lands were surveyed by the state and platted as existing between the La Salle county school land leagues and the Texas & Pacific surveys, and sold to plaintiff in error Jesse P. Cross as public school land.
“Plaintiffs in error insist that a vacancy existed between the system of school land leagues of which the La Salle county leagues formed a part and the Texas & Pacific system of surveys made at a different time by a different surveyor, and that, the lands claimed by them having been surveyed on such vacancy, _ the surveys were valid, and were not included in the boundaries of the La Salle county school land leagues. There is no question raised in the record as to the title of plaintiffs to the four leagues of La Salle county school land, and none as to the title of plaintiffs in error to the Jesse E. Cross surveys, if said surveys, in fact, exist.”

The evidence as to the location of the boundary lines of the La Salle county school land did not justify a peremptory instruction in favor of the plaintiffs in the court below, defendants in error herein. On the contrary, in our opinion, the evidence greatly preponderated in favor of plaintiffs in error as to the location of the lines and corners of the La Salle county school lands, as originally surveyed. To say the least of it, the evidence was sufficient to raise the issue of boundary for the jury to decide. As this case is to be reversed, we do not deem it proper to further comment on the evidence as to boundary.

The other grounds relied upon, and which evidently formed the basis of the court’s action in this matter, was that such charge was required by article 4269, R. S. 1895 (Acts Leg. 1883, p. 28) which reads as follows:

“Art. 4269. — The surveys.of all county school lands heretofore made, either actually on the ground or by protraction, and returned to the general land office, according to law, and upon which patents have issued, are hereby declared valid surveys, and the titles to the lands included within the lines of said surveys, as returned to the general land- office, are hereby vested in the counties for which the same were made; and in all such surveys the calls for distance shall have precedence and control calls for rivers or natural objects when the calls for distance will give the quantity of land intended to be included in the survey and the calls for natural objects or rivers will not; provided, this law shall not divest any vested right.”

It is contended that this act of the Legislature is applicable in the instant case by reason of the fact that the field notes of the La Salle county, school land leagues 322 and 325‘ call for the lines of sections 1 and 6, Texas & Pacific Railroad surveys, which were located prior to said county school land surveys, and also by reason of the fact that the sketch of said county school lands returned to the land office with said field notes showed that the western lines of leagues 322 and 325 coincided with the eastern lines of the railway company surveys. The field notes referred to are as follows:

322: “Beginning at a point the S. E. corner of 320; thence S. 13° E. 5,000 vrs. to corner on west line of section 2, township 2 north, and Slock 37 of the Texas & Pacific Railway surveys 500 vi'S. S. 13° E. from N. W. corner of said section; thence S. 77° W. 5,000 vrs. to mound for corner; thence N. 13° W. 5,000 vrs. to S. W. corner of No. 20; thence N. 77° E. 5,000 vrs. to place of beginning.”
325: “Beginning at a point the S. E. corner of 322; thence S. 13° E. 5,000 vrs. to a point on the west line of section 6, township 2 N., Blk. 38, T. & P. sur. 200 vrs. N. 13° W. from the S. W. corner of said sec. 6; thence S. 77° W. 5,000 vrs. to S. E. corner of No. 324 (school land); thence N. 13° W. 5,000 vrs. to mound 3 feet high, N. B. corner of 324; thence N. 77° E. 5,000 vrs. to the beginning.”

The sketch of this block of county school land surveys, consisting of 81 leagues, showed that the western lines of leagues 322 and 325 connected with the eastern lines of the Texas & Pacific surveys Nos. 2 and 6, to the extent indicated by their calls, and also with the line of section 3 lying between sections Nos. 2 and 6.

If we should follow the decision of the Supreme Court in Steward v. Coleman County, 95 Tex. 445, 67 S. W. 1016, as was done by this court in Lewright v. Travis County, 54 Tex. Civ. App. 540, 118 S. W. 725, we would affirm the judgment of the trial court. As was said in the latter case:

“In its final analysis this decision (Steward v. Coleman County) means that, in ascertaining the boundaries of county school lands, such construction will be given to the field notes so returned to the land office as to give to the county the benefit of those calls that are most favorable to” the county.

We do not think that the article of the statute referred to admits of such construction. Nothing but a firm conviction of the correctness of our views herein would induce us to decline to follow an opinion of the Supreme Court of this state, and especially one written by the learned judge who wrote the opinion in Steward v. Coleman County, whom we regard as one of the ablest jurists who ever sat upon the supreme bench of this or any other state. The writer of this opinion, who speaks for this court, is not conscious of being influenced herein by the fact that he was of counsel for Steward in the Coleman County Case. That case was settled long ago, and Steward is in his grave. The act in question was not referred to in the Coleman County Case, supra, in the trial court, nor in the briefs or arguments of counsel in the Court of Civil Appeals, as the record, which we have to-day examined, shows, nor In the Supreme Court, except in a supplemental argument filed on behalf of the county,, of which the writer knows, by reason of having been of counsel in that case, counsel for Steward had no notice of. By reason of the fact that the case was compromised, Steward did not file a motion for rehearing in the Supreme Court. For these reasons we do not think that the Supreme Court gave their usual mature consideration to the interpretation of article 42G9 above set out. In fact, for reasons hereinafter stated, we think that all that was said in that case in reference to this article was dicta.

In the concluding portion of the opinion in Steward v. Coleman County, supra, the court says:

“It will not do to say that the language ‘lands included within the lines as returned to the general land office’ means merely such lands as are found on a trial of the question of boundary, to be so included; for that construction would make this provision wholly useless.”

On the contrary, the act might he very useful to a county or counties. In ordinary trials of questions of boundary calls for natural objects take precedence over calls for distance and quantity. But this statute reverses the rule, and declares that:

“The calls for distance shall have precedence and control calls for rivers or natural objects when the calls for distance will give the quantity of land intended to be included in the survey and calls for natural objects or rivers will not.”

Thus, if a county school land survey called to begin at a known corner, and to run thence a given course and distance for another corner on the bank of a river or creek, and such natural object would be reached short of the distance called for, thereby reducing the intended area of the survey, this act, if the land beyond the river or creek was vacant, so that vested rights would not be interfered with, extended such lines the distance called for in the field notes, and appropriated such additional land to the county. If the Legislature did not have one or more such surveys as this in mind, then, indeed, all that portion of the statute referring to calls for natural objects or to course and distance was indeed useless. If a number of such surveys had been made and returned to the land office, great loss might have occurred to the counties but for the passage of this act, and that is just what the emergency clause of the act declares. There is no hint in the act that the Legislature intended to favor counties by giving them more land than the field notes of their surveys called for, but only that under the conditions mentioned they should not lose any part of the quantity of the land to which they were entitled under the laws of this state.

But this act might have been beneficial to counties in another respect. It declared that all surveys for county school lands theretofore made and returned to the general land office according to law were “valid surveys,” from which it might be inferred that the Legislature was informed that some surveys had been made and the field notes returned to the land office as required by law, which were not valid surveys. That such was the main purpose of said act appears from its enacting clause, which reads:

“An act to validate certain surveys heretofore informally or defectively made, in locating the county school lands of this state.”

Surveys which have been legally made and returned to the land office, but which by reason of their calls for natural objects did not include within their lines the quantity of land intended, did not need validating. They were already valid surveys, whether made upon the ground or by protraction, and included all of the land within their lines, as the location of such lines might be fixed by the rules governing the location of boundaries.

The act referred to declares the counties to be the owner of “the lands included within the lines of said surveys, as returned to the general land office.” Section 1. The field notes of a survey are in all cases the field notes returned to the land office. The owner of a valid certificate is the owner, in all cases, of the land included within the lines of his survey, though it is frequently a mooted question as to what lands are so included.

In Steward v. Coleman County, supra, the court lays stress upon the words “the lands included within the lines of said surveys, as returned to the general land office.” The word survey is here used as synonymous with “field notes.” It was the “field notes” which the law required to be returned to the land office. The survey, accurately speaking, is the land included in such field notes, not necessarily as shown by the calls therein for course and distance, nor for lines of prior surveys, nor for natural or artificial objects, but whichever of one or more such calls most correctly showed, under the facts and circumstances of a given case, what land was embraced within the survey. In every instance the surveyor was required by the statute to return with, and as a part of his field notes a “diagram” or map of his survey (Itev. St. 1911, art. 5336); but this diagram or map, while it might aid in construing the field notes, was at most, only a part of such field notes or survey, and could in no proper sense be said to be “the survey” returned to the land office. And this the Legislature is presumed to have known, and, if it was intended that the map or diagram returned by the surveyor should control all other portions of the field notes, it is but fair to the Legislature to presume that it would have said so. But, instead of so doing, the word “map” or “diagram” is not used in said act. Such maps or diagrams have always been held to be admissible in evidence on the issue of boundary, but they ha,ve never been given controlling effect in locating the lines of surveys. In every instance where a survey calls to begin upon one survey and run to another survey, if the surveyor did his duty, he returned with his field notes a diagram showing that his survey covered all of the vacancy between such prior surveys; but, notwithstanding such map, and the calls for the lines and corners of. the prior surveys, it has been held in many cases that the survey, as shown -by the field notes returned to the land office, did not embrace all of such vacancy. All this the Legislature is presumed to have known, and, in the absence of anything appearing to the contrary, is presumed to have used the •words “the land included in the lines of said surveys as returned to the general land office” in the ordinary sense of those words.

That portion of the act declaring that the counties are the owners of the lands included within their surveys, taken by itself, was useless, and added nothing to the rights of the counties. They were, by virtue of the Constitution and the laws regulating the location of vacant lands, already the owners of “the lands included within the lines” of their surveys, if the same were valid surveys. But, when taken in connection with the previous portion of the act which validated such surveys, and with the subsequent portion of the act, which extended the lines of the surveys the distance required to give the quantity intended, it was very useful to the counties having surveys to which it was applicable.

We have said in a previous portion of this opinion that we regard all that was said in the Coleman County Case with reference to the act there referred to as dicta. Our reason for this statement is this: The act, by its terms, applies only to two classes of county school land surveys; one where the survey made and returned to the land office within the time and manner required by law was invalid; the other where, by reason of calls for natural objects, the lines of the surveys were shorter than the distance called for in the field notes, and for that reason the survey did not embrace the quantity of land intended. In the Coleman county survey there was no question as to the validity of the survey, and there was no call for aj river or other natural object. The call to which it was sought to extend the line was a call for an open and unmarked prairie line, which might or might not control the call for distance without reference to said act. It was not sought by the county to give “precedence and control” to “the call for distance,” but to ignore such call in favor of a call, not for a natural object, but which, at most, was a call for an artificial object. It was not sought to give such control to the call for the lines of older surveys in order to give the county ‘“the quantity of land included in the survey,” but in order to give it about 1,500 acres more than such quantity, all of which appears from the opinion in that ease.

The constitutionality of the act referred to, in so far as it relates to the construction of field notes, may be questionable, as not being disclosed by the caption of the act, but, as this issue has not been presented in this case, we will not pass upon it.

We sustain appellants’ assignments of error for another reason. Article 4269, R. S. 1895, is, by its terms, applicable only to surveys which had been patented at the time such act was passed. It was approved March 21, 1883, and took effect from and after its passage. The La Salle county surveys were patented November 1, 1883.

For the reasons stated, the judgment of the trial court herein is reversed, and the cause is remanded.

Reversed and remanded.

On Motion for Rehearing.

This is a boundary suit, and La Salle county was made a party on its warranty. There is no question as to the title of La Salle county to the land described' in its patents. That is the land, and no other, which was sold by La Salle county. No survey was made, and no particular land was pointed out to the purchasers. Whether it shall be determined that the La Salle county school lands are located to the west and south, as contended by appellees, or to the north and east, as contended by appellants, is immaterial so far as La Salle county is concerned, as in either event its gran-' tees will get the land described in their deeds; such description being the same as in the patents. As in no event could any judgment be rendered against La Salle county on its warranty, the motion of said c.ounty for a rehearing is granted, and the judgment of the trial court in its favor is affirmed.

Motion granted.
      ©x»For other oases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    WESTERN UNION TELEGRAPH CO. v. GRIFFIS.
    (No. 588.)
    (Court of Civil Appeals of Texas. El Paso.
    June 1, 1916.)
    Telegraphs and Telephones ,<@=>67(2) — Damages for Mental Suffering — Delay in Delivery.
    A telegraph message, worded, “Tour father died this afternoon at four o’clock” being insufficient to charge the telegraph company with notice that the addressee of the message would request a postponement of the funeral until he could arrive, the damages suffered by addressee by delay in delivery of the message preventing him from attending his father’s funeral were too remote.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 65; Dee. Dig. 67(2).]
    Appeal from District Court, Taylor County; Thos. L. Blanton, Judge.
    Action by R. W. Griffis against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    J. M. Wagstaff, of Abilene, and N. L. Linds-ley, of Dallas, for appellant. W. P. Mahaf-fey, of Abilene, for appellee.
   HIGGINS, J.

Appellee sued appellant to recover damages alleged to have been sustained by reason of alleged negligent delay in the delivery of a telegram sent to appellee by T. O. Griffis, advising of the death of appellee’s father. Verdict was returned and judgment rendered in favor of plaintiff in sum of $250, as damages occasioned by Ms failure to attend tbe funeral of tbe deceased. Tbe defendant prosecutes tbis appeal therefrom, assigning as error tbe refusal of a requested peremptory instruction in its favor. .

Tbomas Griffis, father of appellee, died at bis residence near Lynnville, Tenn., on Sunday, July 4, 1915, at 4 p. m. After bis death, T. O. Griffis phoned to appellant at Pulaski for transmission and delivery to appellee at Abilene, Tex., tbis message:

“Lynnville, Tennessee, 4:25 p. m., July 4th, ’15. R. W. Griffis, Route 6, Abilene, Texas. Tour father died this afternoon at four o’clock. T. O. Griffis.”

Tbe message was promptly transmitted to Abilene, and reached there about 6 p. m. of tbe same day. It was delivered to appellee on Tuesday, July 6, 1915. For tbe purpose of tbis opinion, it will be assumed that the jury was warranted in finding that tbe delay in tbe delivery of the message to tbis date was negligent upon tbe part of defendant, though tMs finding is vigorously contested, and it is contended that tbe undisputed evidence shows no negligence upon appellant’s part in failing to make earlier delivery. Under tbe view which we have of tbe case, it is unnecessary to pass upon this question, and we express no opinion upon that phase of tbe case. Tbomas Griffis was buried at 4 p. m., Monday, July 5, 1915, near Lynnville. R. W. Griffis, the sender of tbe message, testified that be was one of tbe persons in charge of tbe funeral arrangements and burial of tbe deceased, and, bad appellee telegraphed him that be was coming to Lynnville to attend bis father’s funeral, be would have asked that tbe funeral be delayed until bis arrival.

Appellee testified that, bad tbe message been delivered to him promptly after it reached Abilene, be' would have wired back and told them to bold bis father’s body and postpone tbe funeral until be got there; that be would have started to Lynnville tbe same night at 11 o’clock; be would go from Abilene to Pulaski; thence to Lynnville, which was tbe nearest railroad station to tbe place where Ms father died and tbe nearest to tbe place of interment; that be would have reached there Tuesday night, July 6th, or Wednesday morning, July 7th; that be was expecting a message of tbis kind and was prepared to go at any time.

J. D. Griffis, a brother of appellee, testified be was one of those in charge of tbe funeral arrangements and burial of deceased; that tbe message sent appellee was sent at bis (witness) request, and, bad they received a message from R. W. Griffis asking that tbe funeral be delayed, they would have kept tbe body until bis arrival.

Appellant advances tbe proposition that the plaintiff’s claim for damages is too remote, and in tbis contention be is supported by Telegraph Co. v. Linn, 87 Tex. 7, 26 S. W. 490, 47 Am. St. Rep. 58; Telegraph Co. v. Motley, 87 Tex. 38, 27 S. W. 52, and Telegraph Co. v. White, 149 S. W. 790. TMs case falls within tbe principle announced in tbe cited cases, and upon tbe authority thereof it must be held that a peremptory instruction should have been given in appellant’s favor. Appellee relies upon Telegraph Company v. Swearingen, 97 Tex. 293, 78 S. W. 491, 104 Am. St. Rep. 876; Telegraph Co. v. Norris, 25 Tex. Civ. App. 43, 60 S. W. 982; Telegraph Co. v. Lyman, 3 Tex. Civ. App. 460, 22 S. W. 656; and Telegraph Co. v. Ford, 40 Tex. Civ. App. 474,90 S. W. 677. But in each of these cases the message bade tbe addressee to come, and in such case tbe telegraph company was properly charged with notice that tbe injunction would probably be obeyed and that all necessary arrangements would be made, so that interment would not take place until the addressee arrived. A telegraph company handling,such a message must reasonably have foreseen that tbe addressee would wire back and have the funeral postponed if such was necessary in order to prevent tbe same occurring before tbe arrival of tbe addressee. Tbis, we think, is tbe main distinguishing feature between the line of eases first cited and those relied upon by appellee. In tbe case at bar the message, in our judgment, is insufficient to charge tbe defendant with notice that appellee would request a postponement of tbe funeral, and tbe damages for wMcb recovery is sought are too remote. This is tbe rule, as we deduce it from tbe Linn and Motley Cases.

The message considered in Johnston v. Telegraph Company, 167 S. W. 272, was of a precisely similar nature to tbis one. In principle, the cases cannot be distinguished. In that case, tbe trial court sustained a general demurrer to tbe petition. Upon appeal, tbe Court of Civil Appeals reviewed tbe cases noted above and held that tbe principle announced in Linn, Motley, and White Cases did not apply, but tbe case was ruled by tbe Swearingen and Norris Cases, and remanded tbe cause. Thereupon, tbe Supreme Court granted a writ of error and in doing so, we are informed, made this notation:

“We think the terms of the message do not give notice that the plaintiff would request a postponement of the funeral.”

In view of tbe action of tbe Supreme Court in tbe Johnston Case, it is evident that court is inclined to tbe view that the Linn and Motley Cases were applicable; and, if they are applicable in that, they are in tbis case also.

For tbe reason indicated, it must be held that tbe damages sought to be recovered herein are too remote, and tbe peremptory instruction should have been given.

Accordingly, tbe judgment of tbe court below is reversed and here rendered in appellant’s favor.

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


author: SWEARINGEN, J.

text:
    FARMERS’ & GINNERS’ COTTON OIL CO. v. CLEBURNE OIL MILL CO.
    (No. 5685.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 7, 1916.
    Rehearing Denied June 27, 1916.)
    1. SALES @=o22(3) — CONTRACTS—ACCEPTANCE.
    An oil company could not be bound by a broker’s contract or memorandum of sale of oil to the plaintiff, unless it accepted the terms of the contract; and, if it did not accept the terms and notified the plaintiff through the broker, it owed no duty whatever to the plaintiff.
    TEd. Note. — For other cases, see Sales, Cent. Dig. § 41; Dec. Dig. <®=^22(3); Contracts, Cent. Dig. §§ 71, 75.]
    2. Sales <®^53(2) — Action for Breach of
    Contract — Question for Jury.
    In an action for the breach of a contract for the sale of oil to the plaintiff, evidence held to make the defendant’s acceptance of the contract a question for the jury.
    [Ed. Note. — Fqr other cases, see Sales, Cent. Dig. § 148; Dec. Dig. <S=^53(2).]
    Appeal from Travis County Court; Wm. Yon Rosenberg, Jr., Judge.
    Action by the Cleburne Oil Mill Company against the Farmers’ & Ginners’ Cotton Oil Company. Judgment for plaintiff, and defendant appeals.
    Reversed, and cause remanded.
    Lightfoot, Brady & Robertson, of Austin, for appellant. Hart & Woodward, of Austin, for appellee.
   SWEARINGEN, J.

Appellee alleged: That on September 16, 1913, it purchased of and from appellant, through Early-Foster Company, of Waco, Tex., as broker, 5 tanks of prime, crude, cotton-seed oil at 42 cents per gallon delivered f. o. b. cars at Wolfe City, Tex.; said contract being evidenced by a written confirmation in triplicate, executed by said broker on said date. That such execution by the said broker of said contract was accepted and ratified by appellee and appellant as the act and deed of each of said parties. Appellee alleged a breach of the contract by appellant and sued for $480 damages. Appellant denied that it contracted with appellee to deliver the five tanks of cotton-seed oil f. o. b. cars at Wolfe City, Tex. Answered that the memorandum made by the broker was forwarded to appellant for acceptance, but immediately upon receipt of the memorandum, appellant refused to accept the contract as written in the memorandum of sale by the broker and immediately notified the broker that it would not accept the contract. And appellant further averred that the broker promptly notified the appel-lee that appellant refused to accept the contract as written in the memorandum of sale. Several other issues were pleaded by both parties, which, under our view.of the case, need not be stated. Upon motion by appel-lee, the court gave a peremptory instruction to return a verdict in favor of appellee for $480, upon which verdict the court rendered judgment against appellant.

All six of appellant’s assignments very properly complain that the trial court erred by giving to the jury the peremptory instruction to return a verdict in favor of appellee.

It is elementary that appellant could not be bound to appellee by the contract unless appellant accepted the terms of the contract. If appellant did not accept the terms of the memorandum of sale, and notified appellee thereof through the broker immediately, he owed no contract duty whatever to appellee, whether usage or custom, or broker’s memorandum, or rules of the Cotton Crushers’ Association. Appellant neither owed the duty to appellee to sell it oil, nor to notify it when or where to send empty tank cars to receive appellant’s oil.

The question, whether appellant accepted the contract or not, was the issue made by the pleadings, and there was certainly a conflict in the testimony upon that fundamental issue. The broker in Waco wrote out the memorandum of sale, which, among other things, stated that the oil was to be f. o. b. Wolfe City. A triplicate of this memorandum was sent to appellant at Austin, Tex., for confirmation, and a triplicate copy to appellee for confirmation or acceptance. There is no conflict in the evidence as to these recited facts. However, whether or not appellant accepted the memorandum of sale is sharply contested. That appellant did not accept the memorandum of sale is positively testified to by the manager of appellant, whose duty it was to make sale contracts for appellant, and who testified that immediately upon receipt of the memorandum of sale he phoned the broker that appellant would not accept the sale; that it would not sell f. o. b. Wolfe City. In this testimony the manager was corroborated by the testimony of the broker himself, who testified that appellant’s manager immediately notified him that appellant would not accept the sale contract to deliver oil f. o. b. Wolfe City, and the broker further testified that he notified appellee promptly that appellant refused to accept the sale contract. On the other hand, the manager for appellee testified that he never heard or knew that appellant refused to accept the sales contract, and relied upon the triplicate memorandum of sale dated September 16, 1913, which he had received.

This illustrates the conflict in the testimony upon the issue of acceptance by appellant of the sale contract, but is by no means all the circumstances shown by the testimony. To determine this issue was absolutely essential to a determination of the case. It was the exclusive province of the jury to determine the issue from the conflicting testimony. It seems from the evidence that appellant thought it had a contract for delivery f. o. b. cars at Austin, whereas ap-pellee thought it had a contract requiring delivery f. o. b. Wolfe City, and both traveled their respective divergent routes in their dealings after September 16, 1913, and naturally separated further and further. If this be true, there never was any agreement between the parties.

The assignments are correctly taken and are sustained.

The judgment of the trial court is reversed, and the cause remanded.
      <S=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    HARTFORD LIFE INS. CO. et al. v. BENSON.
    (No. 5592.)

    (Court of Civil Appeals of Texas. Austin.
    March 22, 1916.
    Rehearing Denied June 7, 1916.)
    Insurance @=5179% — Policy Loan Agreement — Validity.
    In a paid-up life, policy loan note, an agreement by insured and beneficiary that on nonpayment of the note the amount of paid-up insurance guaranteed in the policy should be reduced in the same proportion as the indebtedness bore to the cash surrender value is reasonable and valid and in harmony with the policy indicated by Rev. St. 1911, art. 4741, requiring policies to stipulate that “the failure to repay any such advance or to pay interest shall not void the policy until the total indebtedness thereon to the company shall equal or exceed the loan value,” although not providing for a sale of the policy pledged for nonpayment of the note, since there can be no general market for life insurance policies outside of relatives and creditors.
    [Ed. Note. — For other eases, see Insurance, Dec. Dig. <¿=5179%.]
    Error from District Court, Tom Green County; J. W. Timmins, Judge.
    Action by Mrs. Ora Benson against the Hartford Life Insurance Company and another. Judgment for plaintiff, and defendants bring error.
    Reversed and rendered in part, and in part reformed and affirmed.
    Plaintiffs in error’s brief contains the following correct statement of the nature and result of this suit, and the facts relied on for a reversal:
    “This suit was brought by Mrs. Ora Benson to recover from the Hartford Life Insurance Company and the Missouri State Life Insurance Company on a policy for $2,000 issued by the first-mentioned company on the life of her husband. The plaintiff sought judgment for the face of the policy, less the amount of a loan. It was alleged that Missouri State Life Insurance Company had reinsured the business of the other company, and had assumed all of its obligations; hence judgment was asked .against it also.
    “The defendants denied liability for any greater sum than $50, for which sum they admitted liability, and pleaded a tender thereof prior to the institution of suit. About 3% years before the death of the insured the company made a loan on said policy of $788. The plaintiff and the insured made written application for such loan, and the same was evidenced by a loan note executed by the plaintiff and the insured. At the time of securing said loan all premuims due under the policy had been paid, and it had become a paid-up policy for its face amount, payable on the death of the insured, though several of the last premiums had been paid with the proceeds of loans under said policy. A provision of the loan note stipulated that, should' any installment of interest thereon remain unpaid for 30 days,, the amount of paid-up insurance guaranteed in the policy should be reduced in the same proportion as the indebtedness bore to the cash surrender value thereof, and that the company should not thereafter be liable on the policy, except for the amount of paid-up insurance so reduced. The interest installment due July 6, 1911, not having been paid updn that date, nor within 30 days thereafter, the defendant company satisfied the note in pursuance of the terms of the loan agreement, allowing, however, a greater cash surrender value than was required under the policy, indorsed said policy as a paid-up policy for $50 in pursuance of the agreement, and duly notified the insured of its action. The insured made no complaint, and died on December 30, 1912, 14 months thereafter.
    “The plaintiff contended that the rights of the parties were to be determined just as if the stipulation in the loan agreement did not exist, and as if the company had not taken the action indicated. The case was tried before the court without a jury, on an agreed statement of facts, and resulted in a judgment in favor of the plaintiff for the face of the policy, less the amount of the note and interest thereon, and together with statutory attorney’s fees and penalties. The court filed findings of fact and conclusions of law. The defendants duly filed a motion for new trial, anl, the same having been overruled; they sued out this writ of error for the revision and correction of the judgment.
    ■ “The policy in suit was a 10-payment life policy ; that is to say, a policy requiring the payment of premiums for 10 years and payable on the death of the insured. The policy was issued July 6, 1900, and became paid up by the payment of the tenth premium in July, 1909. Thereafter, under date of July 30, 1909, the insured and plaintiff applied to defendant Hartford Life Insurance Company for a loan of $788 on the policy, the same being the entire loan value promised in the policy, the application for the loan in part reading as follows: T do hereby apply for a loan of $788 to be made upon said policy, subject to the conditions of the loan note executed by me this day, and do hereby agree that said loan shall be and continue a lien upon said policy and on the money that may become due thereon until said loan and interest thereon shall be fully paid.’ Upon the same date the plaintiff and the insured, in exchange for the amount of the loan, executed and delivered to the company their loan note or agreement as follows:
    “ ‘$788.00. Policy No. 258,186.
    “ ‘On demand, for value received, I promise to pay to the Hartford Life Insurance Company, of Hartford, Conn., seven hundred eighty-eight dollars, with interest at the rate of 5 per cent, per annum, payable annually in advance (interest up to July 6, 1910, to be deducted from the amount received hereon), and I hereby acknowledge the amount of this note, with any interest that may accrue thereon, to be an indebtedness to said Hartford Life Insurance Company on account of policy No. 258,186, issued by said company on the life of Thomas II. Benson, which policy, with all right, title, and interest therein, and all benefit and advantage to be derived therefrom-, is hereby assigned to and deposited with said company as security. I further agree that, if this note remains unpaid 30 days after payment is demanded, or if any interest payment on said note shall remain unpaid 30 days after it becomes due, or if any premium shall become due and remain unpaid for 30 days, the amount of paid-up insurance guaranteed in said policy shall be reduced in the same proportion as the said indebtedness bears to the cash surrender hereof (which cash surrender value shall equal the loan value of the preceding policy year), and the company shall not thereafter be liable on said policy except for the amount of paid-up insurance so reduced, notwithstanding any of the provisions of said policy, and said indebtedness shall then be considered canceled.
    “ ‘All payments, whether of principle or interest, shall be made by the borrower at the home office of the company in Hartford, Conn., or to an agent whose authority for receiving the same shall be the possession of the note or a receipt signed by an executive officer of said company.
    “ ‘Dated at Crowell, Tex., this 30th day of July, 1909.
    “ ‘Insured, Thomas H. Benson.
    “ ‘Beneficiary, Ora B'enson.’
    “ ‘Witness, Ben Henderson.
    “ ‘Witness, J. R. Beverly.’
    “As already stated, the loan was for the entire loan value promised in the policy, and the cash surrender value under the foregoing agreement therefore exactly equaled the loan at all the dates in question.
    “The installment of interest due July 6, 1910, on said loan was duly paid by the. insured, but the interest installment due July ,6, 1911, to wit, $39.40 was not then or thereafter paid by the insured, or by any one for him. A receipt for such interest installment was sent by the company to the First State Bank of Crowell, Tex., for collection, and was presented by said bank to the insured, but he did not pay the same, notwithstanding he received and accepted a check from the company for $4.38 for a dividend declared by it on the policy for the preceding year. Upon the return to the company of the dishonored interest receipt, the company proceeded to act in accordance with the provisions of the loan note, and stamped the policy ‘Paid-up insurance for $50,’ and advised the insured by registered letter, which he duly received, that it had so indorsed the policy, and that said amount of paid-up insurance constituted the sole liability of the company on the policy.. The insured made no complaint, and died a little more than 14 months afterwards, on December 30, 1912. Some 10 months after his death proofs of death were furnished to the company, and claim made on it for the amount of the policy. The company thereupon forwarded its check for $50 to the plaintiff, which she refused to accept, and the company shortly thereafter, and before the present suit was filed, tendered to her in legal tender money of the United States said sum of $50, which tender was rejected. The company has retained ever since the identical legal tender money used on such occasion, holding the same subject to the order of the plaintiff, and in its pleadings has repeated its offer and tender of the same to the plaintiff. Thereafter on April 24, 1914, the present suit was begun.
    “The company’s indorsement of said policy for $50 of paid-up insurance was due to its allowance of $808 as a cash surrender value of said policy, being $20 more than the amount promised in the policy, and $20 more than the amount of the loan. The company allowed this additional sum, because it was enabled by its experience to do so, and because customarily, as in this case, it allowed its policy holders the maximum values 'which their policies had, according to its experience. But for the allowance of this additional sum the entire value of the policy would have been consumed in the satisfaction of the loan.
    “The policy of insurance contains a schedule of loan values, available to the insured from year to year, such value being $788 at the end of the ninth policy year, to wit, on July 6, 1909, and being also $788 at the end of the tenth policy year, to wit, July 6, 1910. Under the policy the insured also had the privilege of surrendering the policy at the end of the tenth year, to wit, July 6, 1910, for the cash value thereof, which was stated to be the same amount as the loan value at the end of the tenth year, to wit, $788.
    “As has been indicated in the general statement under this assignment of error, the policy at the time of default had a value in the experience of the company of $808, being $20 more than that promised in the policy, and accordingly the company, in indorsing the policy for paid-up insurance under the terms of the loan note, allowed the greater sum, as was its custom. At said time the value of the policy according to the American Experience Table of Mortality, and interest at 4% per cent., was $793.70, being less than the value allowed by the company.
    “Article 3050 of the Revised Statutes of 1895, in force when the policy was issued, relating to the duties of the commissioner of insurance, provides as follows: ‘He shall, as soon as practicable in each year, calculate or cause to be calculated, in his office, by an officer or employé of his department, the net value on the 31st day of December of the previous year, of all the policies in force on that day in each life or health company doing business in the state. Calculations of the net value of each policy shall be based upon the American Experience Table of Mortality and four and one-half per cent, interest per annum. And the net value of a policy at any time shall be taken to be the net single premium which will at that time effect the insurance, less the value at that time of the future net premiums called for by the table of mortality and rate of interest designated above.’
    “While the foregoing statute was repealed by the Insurance Code of 1909 (page 192) and substitute provisions enacted therefor, the Texas standard for the valuation of life insurance policies issued at the time in question remains the same. R. S. 1911, articles 4758, 4751, 4493, 4498.”
    Locke & Locke, of Dallas, for plaintiffs in error. Hill, Lee & Hill, of San Angelo, and O. P. Wencker and E. S. Hamilton, both of Dallas, for defendant in error.

      Writ of error pending in Supreme Court.

   KEY, C. J.

(after stating the facts as above). The controlling question involved in the appeal is the validity of the agreement between the insurance company, on the one side, and the insured and beneficiary named in the policy, on the other side, embodied in the loan note, by which it was stipulated that, if the note should remain unpaid 30 days after maturity and demand, or if any interest payment remained unpaid 30 days after maturity, etc., the amount of paid-up insurance guaranteed in the policy should be reduced in the same proportion as the indebtedness bore to the cash surrender value, and stipulating that the company should not thereafter be liable on the policy, except for the amount of paid-up insurance so reduced, etc. Counsel for plaintiffs in error make the contention that the contract referred to does not violate any written law or any rule of public policy of this state; that it provides a reasonable, fair, and just method of settlement in the event of a breach of the contract embodied in the loan note, and therefore it is binding upon Mrs. Benson, the defendant in error, who signed the contract

Counsel for defendant in error present two counter propositions in support of the judgment of the trial court, which are: (1) That the insurance company had no right to cancel the policy because of a note which provided that upon a failure of the insured to pay interest on the note the policy could be canceled by the company so as to deprive the beneficiary of the proceeds of the policy, less the debt and interest due thereon; and (2) that the acts of the company in declaring the policy canceled and issuing a small amount of paid-up insurance without any proceeding to foreclose their pledge was not sufficient to deprive the beneficiary of paid-up insurance as originally provided in the policy, less what might be due under the pledge.

While it seems to have been held otherwise by the Supreme Court of Kentucky, and perhaps a few o£her courts, we think the weight of authority, based upon sounder reason, supports the contention urged in behalf of the insurance company, as is shown by some of the following authorities cited in the brief of their counsel: Sherman v. Mut. Life Ins. Co., 53 Wash. 523, 102 Pac. 419; Hayes v. N. Y. Life Ins. Co., 68 Misc. Rep. 558, 124 N. Y. Supp. 792; affirmed Id., 150 App. Div. 927, 135 N. Y. Supp. 1116; Palmer v. Mut. Life Ins. Co., 114 Minn. 1, 130 N. W. 250, Ann. Cas. 1912B, 957; Wilson v. Royal Union Life Ins. Co., 137 Iowa, 184, 114 N. W. 1051; Palmer v. Mut. Life Ins. Co., 38 Misc. Rep. 318, 77 N. Y. Supp. 869; Eagle v. N. Y. Life Ins. Co., 48 Ind. App. 284, 91 N. E. 814; Frese v. Mut. Life Ins. Co., 11 Cal. App. 387, 105 Pac. 265; Rye v. N. Y. Life Ins. Co., 88 Neb. 707, 130 N. W. 434; Cilek v. N. X. Life Ins. Co., 95 Neb. 274, 145 N. W. 693; Salig v. U. S. Life Ins. Co., 236 Pa. 460, 84 Atl. 826.

It is a well-settled rule of law relating to pledges that the agreement may authorize the pledgee to sell the property, either at public or private sale, and with or without notice to the pledgor, and the pledgee may himself become the purchaser at the sale, the proceeds to be applied to the liquidation of the debt, and the balance held in trust for the pledgor. Of course, the sale must be fairly made and for a fair price, but the power to sell exists, and< by the sale the pledgor is deprived of all interest in the property. It is true that the contract in this case did not provide for the sale of the policy, which was pledged for the security of the debt, but it does not follow that it was unreasonable or unjust or illegal for that reason, as will be shown hereafter. The contract here involved not only does not violate any constitutional or statutory law, nor contravene any rule of public policy, but is in harmony with the policy impliedly sanctioned by article 4741 of Revised Statutes 1911, which article, in part, reads as follows:

“It shall further be stipulated in the policy that failure to repay any such advance, or to pay interest, shall not void the policy untii the total indebtedness thereon to the company shall equal or exceed the loan value.”

To say the least of it, that provision of the statute impliedly recognizes the right of insurance companies to make and enforce contracts similar to the one involved in this ease, and therefore it is clear that such contracts do not violate any rule of public policy ; and the fact that the Legislature enacted that statute is some indication that the lawmaking department of the government did not regard contracts impliedly sanctioned therein as invalid or unreasonable.

Recurring to the question of the reasonableness of such contracts as the one here involved, attention is called to the fact that in this state there can be no general market for life insurance policies, such as exists for stocks, bonds, and other obligations to pay money. This results from the fact that no one except relatives and creditors can become a beneficiary in a life insurance policy. This rule applies to an assignee, as was held in Cheeves v. Anders, 87 Tex. 287, 28 S. W. 274, 47 Am. St. Rep. 107; and therefore, if such a policy were offered for sale, a vast majority of the public would be prohibited from purchasing, and those eligible to purchase would be so few that practically no market for such property would exist. And for that reason, if the contract or the law should require the property to be disposed of by sale, as is generally the case as to other pledges, the result in most instances would be that the insurance company would be the only bidder, and could buy in the policy upon terms much more injurious to the insured and beneficiary than has resulted in this ease.

Of the authorities hereinbefore cited in Palmer v. Mut. Life Ins. Co., 114 Minn. 1, 130 N. W. 250, Sherman v. Mut. Life Ins. Co., 53 Wash. 523, 102 Pac. 419, Eagle v. N. Y. Life Ins. Co., 48 Ind. App. 284, 91 N. E. 814, and Palmer v. Mut. Life Ins. Co., 38 Misc. Rep. 318, 77 N. Y. Supp. 869, contracts similar to the one now under consideration were involved and -held to be valid, and we copy the following, excerpts from two of those cases:

In Palmer v. Mutual Life Insurance Co., 114 Minn. 1, 130 N. W. 250, the Supreme Court of Minnesota said:

“The rule requiring the sale of the property cannot well be made applicable to a life insurance policy, pledged to the company issuing it as security for the payment of a loan; for, whether fully paid or not, it has no marketable sale value, and an attempt to thus dispose of it would be futile. So that some method of enforcement, other than a sale, or unconditional relinquishment of ownership by the pledgor, must be resorted to. A careful consideration of the subject leads to the conclusion that the remedy by cancellation at the cash surrender value of the policy is not inconsistent with sound public policy or violative of the substantial rights of the pledgor. On the contrary, it is a reasonable and practicable method of bringing the contract to a final termination.”

In Sherman v. Mut. Life Ins. Co., 53 Wash. 523, 102 Pac. 419, the Supreme Court of Washington dealt with the question as follows :

“We think the applicable principles of law are well settled. It is true, as the appellant urges, that the general rule is that a contract, whereby the pledged property becomes forfeited to the pledgee for the nonpayment of a debt at its maturity is void on the ground of public policy. Denis, Contracts of Pledge, § 302. The reason for the rule is that in most instances the disparity between the amount of the loan and the value of the security is so great as to make such a contract unconscionable. It is a rule proceeding from equitable principles, and, like other equitable rules, where the reason ceases, the principle fails of application. It is competent for the parties to the contract to stipulate that the pledgee may buy the securities at private sale at the market price, in case of default in payment of the debt, or that he may sell at public or private sale with or without notice, and that he may become the purchaser. [Citations omitted.] In such case the pledgee is treated as the trustee of the pledgor, and is held to the rule of good faith. Not only did the parties stipulate in the assignment that the cash surrender value of the policy was $781, but at the time of the trial they further stipulated that • such was its value at the time the loan was made, according to the hooks of the respondent. Indeed, it may be said that there is nothing in the record which rises to the dignity of evidence tending to show that at such time, or upon the date of its cancellation, it had any greater value. As we have seen, the rule that forbids the parties to stipulate for the forfeiture 'proceeds from equitable principles, to the end that the creditor may not make an unconscionable contract with one in necessitous circumstances. We have seen that an agreement which permits the creditor to take the security at the time of default at its market value has the sanction of law. In effect, that is what the respondent did.’ The policy had no market value in excess of the surrender value. We must determine the lights of the parties from the ultimate result of what was done, rather than the form employed to accomplish the result. Measured by this rule, the acts of the respondent have the sanction of law.”

In our opinion, the two cases last mentioned are in line with both reason and the weight of authority, and therefore we hold that the present case should have been decided in accordance with plaintiff in errors’ contention.

Dor the reasons stated, the judgment of the trial court is in part reversed and rendered for plaintiffs in error, and is reformed so as to permit the plaintiff in the court below, Mrs. Ora Benson, to recover of the defendants in the court below, the Hartford Bife Insurance Company and the Missouri State Bife Insurance Company, the sum of $50, and no more; and, inasmuch as the insurance companies conceded their liability for $50, and tendered that sum before the suit was brought, all the costs of both courts will be taxed against Mrs. Benson.

Reversed and rendered in part, and in part reformed and affirmed.
      <@=^For other-cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, O. J.

text:
    TEXAS & P. RY. CO. v. R. W. WILLIAMSON & CO.
    (No. 7557.)

    (Court of Civil Appeals of Texas. Dallas.
    May 20, 1916.
    Rehearing Denied Juno 24, 1916.)
    V. Bimitation of Actions <@=24(2) — Written Contracts — Bill of Bading.
    Rev. St. 1911, art. 5088, subd. 1, providing t Aat actions for debt or contracts in writing shall be commenced within four years, applies to an action to recover for breach of a bill of lading.
    [Ed. Note. — For other cases, see Bimitation of Actions, Cent. Dig. § 113; Dec. Dig. <@=>24(2)J
    2. Bimitation of Actions <@=346(11) — Accrual of Right of Action — Contracts—Bill of Bading.
    Where cotton was shipped on a through bill of lading from Texas via New Orleans to Liverpool, England, and a portion of it destroyed by fire while in defendant’s possession, the consignor not being under duty to keep track of the shipment while in transit, the statute of limitations did not begin to run till plaintiffs, not being negligent, actually learned of the nondelivery.
    [Ed. Note. — For other cases, see Bimitation of Actions, Cent. Dig. § 250; Dec. Dig. <¿=>46(11).]
    3. Carriers <@=132 — Destruction of Siiip-meniv-Evidenoe — Burden of Proof.
    In an action for the value of 30 bales of cotton destroyed by fire, upon establishment of the plaintiffs’ prima facie case that the cotton was destroyed while in the defendant’s possession under a hill of lading, the burden was on defendant to show freedom from negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 578-582, 605; Dec. Dig. <@=>132.]
    Appeal from District Court, Dallas County; Kenneth Foree,' Judge.
    Action hy R. W. AYilliamson & Co. against the Texas & Pacific Railway Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    George Thompson and Flippen, Gresham & Freeman, all of Dallas, for appellant. D. A. Eldridge, of Dallas, for appellees.

      Application for writ of error pending in Supreme Court.

   RAINEY, O. J.

On December 17, 1908, appellees sued appellant to recover for the value of 30 bales of cotton shipped over appellant’s road, which cotton was destroyed by fire while in possession of appellant, and was never delivered. Defendant answered by demurrer that plaintiff’s cause of action was barred by the statutes of two and four years’ limitation, and specially the denial of liability in that the cotton was destroyed by fire not attributable to its negligence. A trial was had without a jury and resulted in a judgment for appellees.

The case was tried on an agreed statement of facts and those necessary for the determination of the issues in controversy are found in appellant’s brief as follows:

“At Detroit, Tex., on October 27, 1904, W. A. Arthur & Co., delivered to the Texas & Pacific Railway Company 104 bales of cotton to be by it transported to New Orleans, La., and at that port to make delivery thereof to Leyland Steamship Line, the shipment to be thence transported by the Leyland Steamship Line to Liverpool, England, and there delivered to shipper’s order, notify Steel, Bradley & Co. Upon the receipt of said 104 bales of cotton defendant issued the bill of lading hereto attached and marked ‘Exhibit A’ for identification.
“Said 104 bales of cotton were in due course transported to Clarksville, Tex., and there delivered to a compress company; and after compression the same were by the compress company reloaded into cars and delivered to defendant. ' While said shipment of cotton was in possession of defendant in transit from Clarks-ville to New Orleans, 30 bales of said cotton,' in Texas & Pacific box car No. 4868, marked ‘E. N. R. Y. 8,’ which are herein sued for, were on the 5th day of November, 1904, destroyed by fire, the origin of which is to defendant unknown. Said box car No. 4868 was 634 feet from the engine attached to train.
“The remainder of said shipment — that is, 74 bales of cotton — were by defendant in due course transported to New Orleans, and there, on the 14th day of November, 1904, delivered to the Leyland Steamship Line, which steamship line on the 16th day of November, 1904, issued to plaintiffs, the then owners by indorsement of defendant’s said bill of lading, its (said steamship line) bill of lading for said 74 bales of cotton, the original of which last-mentioned bill of lading is lost, but an exact copy thereof, with the identical corrections and interlineations, is hereto attached and marked ‘Exhibit B’ for identification. Said 74 bales of cotton were transported by the Leyland Steamship Line by its steamship Belgian to Liverpool, England, and by it there delivered to the consignee on the 7th day of December, 1904, at which time both of said bills of lading were surrendered, and the following notation was made on defendant’s bill of lading, viz.: ‘Order signed for 74 bales of cotton ex Belgian S. S. 7 — 1201904 for Frederick Leyland & Co. (1900) Limited. [Signed] A. E. Dunne.’
“The shipment of cotton was covered by two bills of lading which are attached to the' agréed statement of facts. The first, Exhibit A, was issued by appellant at Detroit, Tex., and the other, Exhibit B, was issued by the Leyland Steamship Line at New Orleans. The inland bill of lading issued by appellant recites that 104 bales of cotton were received at Detroit, Tex., October 27, 1904, ‘to be carried to the port of New Orleans, La.; thence by Harrison or Leyland Steamship Line to the port of Liverpool, England.’ This bill of lading contains, among others, the following two conditions: ‘This contract is executed and accomplished and the liability of the Texas & Pacific Railway Company as common carrier under said contract is terminated on the delivery of said cotton to Leyland Steamship Company, its master, agent, or servants, or to any steamship of said company, or when said cotton shall have been unloaded on the wharf or steamship pier, or upon the platform or in the warehouse of the Texas & Pacific Railway Company, at said port of New Orleans, La., and said steamship company duly and reasonably notified thereof. Upon the delivery of said cotton to said ocean carrier at the aforesaid port said cotton shall be subject to all the terms and conditions expressed in the bills of lading and masters’ receipt in use by the steamship or steamship company or connecting lines by which said cotton may be transported, and upon delivery of said cotton at the usual place of delivery by the steamship or steamship lines carrying the same at the port of destination the responsibility of said ocean carrier shall cease.’ The ocean bill of lading issued by the Leyland Steamship Line to appellee at New Orleans on November 16, 1904, recites that 74 bales of cotton were ‘received from Texas & Pacific Railway Company for shipment by the steamship Belgian bound for Liverpool.’ ’’

It was also agreed that none of the parties actually knew of the 30 bales of cotton being destroyed by fire until January, 1905, except the railway company.

Complaint is made that appellees’ cause of action was barred by the four-year statute of limitation, and appellant submits the proposition that:

“The bill of lading declared upon in the petition only obligated appellant to transport the cotton to the port of New Orleans, and there to deliver the same .to the Leyland Steamship Company, when its undertaking in respect to the shipment was performed and fully accomplished, and its liability terminated. If appellant breached its contract of shipment and incurred a liability by reason thereof, such breach occurred, and liability resulted, and appellees’ cause of action accrued, when appellant failed to deliver the 30 bales of cotton to the Leyland Steamship Line at New Orleans, and subdivision 1 of article 5688 of the statutes, prescribing a four-year period of limitation, is a bar to this action.”

It is settled that in an action to recover for the breach of a bill of lading the statute of four years applies, and not that of two years. Dempster v. Railway Company, 105 Tex. 628, 154 S. W. 975; Williamson v. Railway Company, 106 Tex. 294, 166 S. W. 692.

Do the facts in this case show that appel-lees’ action was barred by the four-year statute of limitation? We think not. Our conclusion is based in part upon the action of the Supreme Court in Williamson v. Railway Company, supra, which was a former appeal of this case, and wherein the pleading and facts were the same as herein presented, but the trial court and this court held that the statute of two years applied, and the Supreme Court reversed and remanded the cause, holding that the four-year statute instead of the two-year applied. In rendering the opinion in that case Mr. Chief Justice Phillips said:

“It was found by the honorable Court of Civil Appeals that the plaintiffs had notice of there being a shortage of 30 bales in the shipment at the time of the delivery of the cotton to the steamship fine at New Orleans, that the consignee of the cotton had notice to the same effect when the bills of lading were surrendered at Liverpool, but that plaintiffs in error had no actual knowledge of the destruction by fire of the 30 bales in question while in transit to New Orleans until a later time. The suit was filed more than two years after the destruction of the 30 bales, and after the plaintiffs in error acquired actual knowledge of that fact, but within four years from the date they acquired such knowledge, and that accordingly the cotton could not and would not be delivered in compliance with the obligation of the bill of lading. The trial court sustained the plea of limitation interposed by the defendant in error upon the view that the two-year statute of limitation applied to the action.”

From this language of the Supreme Court we take it that the 30 bales were not delivered in compliance with the obligations of the bill of lading, and that the cotton was destroyed, which was not actually known to the appellees until January, 1905, therefore the statute of limitation did not begin to run until that time, and it reversed the judgment, that the trial court might try the cause on the theory that the four-year statute of limitation applied, not feeling certain but that on another trial different facts might be developed.

The hill of lading issued -by appellant was a through bill of lading from Detroit, Tex., via- New Orleans, to Liverpool, England. The consignor was not expected to keep track of said -cotton while in transportation, but could expect the cotton to be transported safely to the point of destination through" connecting carriers named to transport same. A reasonable time is given for delivery, and the statute will- not begin to run until a reasonable time has been given to learn of the nondelivery. Railway Co. v. Adams, 49 Tex. 748, 30 Am. Rep. 116. The evidence fails to show negligence of appellees in failing to ascertain the nondelivery of the cotton before January, 1905, and until then the statute of limitation did not begin to run.

The cotton was destroyed by fire while in the possession of the appellant, but its origin was unknown to appellant. The appellees by showing the destruction of the cotton while in appellant’s possession established a prima facie case of liability on appellant’s part, and to disprove this it devolved upon appellant to show want of negligence in not causing the fire. This it did not do, and therefore it is liable for its value. Railway Co. v. Richmond & Tiffany, 94 Tex. 576, 63 S. E. 619.

The judgment is affirmed.
      <@^»For other oases see same.topic .and KEY-NUMBEB in all Key-Numbered Digests and Indexes