text:
    FRIEND v. THOMAS et al.
    (No. 8400.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 10, 1916.)
    1. Pleading <&wkey;46 — Parties—Designation of Residence — Statute.
    Under Rev. St. 1911, art. 1827, declaring that the petition of plaintiff in a suit shall clearly set forth the names of the parties and their residence, if known, article 1850, requiring the clerk upon the filing of a petition to issue a writ of citation for the defendant, and article 1852, providing that such citation shall be directed to the sheriff of any county where the defendant is alleged to reside, a petition wholly failing to allege the residence of either of the defendants did not authorize the clerk of the county court to command the sheriff of the county to execute citation against the defendants therein.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 101-103; Dec. Dig. &wkey;46.]
    2. Judgment &wkey;>17(10) — Process — Return oe Service — Impossible Date.
    Under Rev. St. 1911, art. 1864, requiring the return of an officer executing a citation to be indorsed tbereon, and that the writ shall state when the citation was served, a return upon a citation that it came to hand the 19th day of July, 1915, and was “executed the 19th day of July, 191,” showing its execution upon an impossible date, would not support a judgment by default.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 31; Dec. Dig. <®¿>T7(10).j 3. Coubts <&wkey;32 — Default Judgment — Record — -Jurisdiction.
    In case of a judgment by default the court’s jurisdiction over the defendant must affirmatively appear.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 134, 137, 139; Dec. Dig. &wkey;32.]
    Error from Wichita County Court, Harvey Harris, Judge.
    Suit by J. T. Thomas against E. M. Friend and T. F. Morrow, with answer by defendant Morrow praying that, if plaintiff had judgment, he have judgment over against his co-defendant. Judgment by default against defendant Friend, and he brings error.
    Reversed, and cause remanded.
    Ed Yarbrough, of Eleetra, and Fitzgerald & Cox, of Wichita Falls, for plaintiff in error. T. R. Boone, of Wichita Falls, for defendants in error.
   CONNER, C. J.

The defendant in error J. T. Thomas instituted this suit in the county court of Wichita county against the plaintiff in error, E. M. Friend, and T. F. Morrow to recover actual damages in the sum of $140 and exemplary damages in the sum of $250, for an alleged wrongful levy upon and conversion of certain personal property charged to be exempt to the head of a family.

The defendant Morrow answered with a general denial, and also pleaded that, if the levy charged had in fact been made, it was done by him at the instance of E. M. Friend, and he prayed that, if the plaintiff recovered a judgment he (Morrow) have judgment over against his co-defendant.

The plaintiff in error, E. M. Friend, failed ■to appear or answer, and the judgment against him was taken by default for the full amount of actual and exemplary damages claimed, and from this judgment a writ of error has been prosecuted.

Plaintiff in error by his assignments complains of the insufficiency of the petition upon which the judgment rests, and of the action of the trial court in refusing to consider the motion for new trial presented by him during the term at which the judgment was rendered, and defendant in error urges objections to all of these assignments. Inasmuch, however, as we think the judgment must be reversed for error fundamental in nature, as hereinafter pointed out, and inasmuch as the deficiencies in the plaintiff’s petition below may easily be corrected by amendment, and inasmuch as the action of the court in refusing to consider plaintiff in error’s motion for rehearing is immaterial in the view we have taken of the case, wé will not stop to discuss the sufficiency of the assignments of error.

The record discloses that the petition of the plaintiff below wholly fails to allege the residence of either of the defendants. It further discloses that a citation was issued to Wichita county on July 17, 1915, commanding service thereof upon the defendants E. M. Friend and T. F. Morrow. The sheriff’s return upon this citation is as follows:

“Came to hand the 19th day of July, A. D. 1915, at 9 o’clock a. m., and executed the 19th day of July, A. D. 191, by delivering- to T. F. Morrow and E. M. Friend, the within named defendants, each in person a true copy of this writ. G-. A. Hawkins, Sheriff Wichita Co., Texas, by J. B. Moore, Deputy.”

Revised Statutes 1911, article 1827, among other things, specifically provides that the petition of a plaintiff in a suit “shall set forth clearly the names of the parties and their residence, if known”; article 1850 makes it the duty of the clerk, upon the filing of a petition, to forthwith issue a writ of citation for the defendant; and article 1852 directs, among other things, that “such citation shall be directed to the sheriff or any constable of the county where the defendant is alleged to reside or be.” The authority, therefore, of the clerk to direct the writ to the sheriff or constable of a named county rests upon the allegations of the petition relating to the residence of the defendant. If, as here, no allegation of the residence of the defendant is made, it cannot be said that upon the face of the record the clerk was authorized to command the sheriff of Wichita county to execute the citation appearing in the record. Tyler v. Blanton, 34 Tex. Civ. App. 393, 78 S. W. 564.

Again, Revised Statutes, article 1864, provides that the return of the officer executing a citation shall be indorsed on or attached to the same, and that the writ, among other things, “shall state when the citation was served”; and it has been held that an officer’s return showing its execution upon an impossible date will not support the judgment by default. Thus, in the case of Llano Improvement & Furnace Co. v. Watkins, 4 Tex. Civ. App. 428, 23 S. W. 612, the return of the officer was:

“Came to band the 24th day of September, A. D. 1891, at 12 o’clock a. m., and executed the 24th day of, A. D. 189.”

It was held that the return was fatally defective, and could not support the judgment by default in that case rendered.

The statutory proceedings noted, and to which the law exacts a close adherence, are all steps necessary to be successively taken in order to show the court’s jurisdiction over the defendant, and in cases of judgment by default such jurisdiction must affirmatively appear. Bates v. Casey Swasey, 61 Tex. 592; Railway v. Rawlins, 80 Tex. 579, 16 S. W. 430; Davidson v. Heidenheimer, 2 Posey, Unrep. Cas. 490; Harrell v. Mex. Cattle Co., 73 Tex. 612, 11 S. W. 863; Thomason v. Bishop, 24 Tex. 302, 303; St. Louis & S. F. Ry. Co. v. English, 109 S. W. 424; Lazarus v. Barrett, 5 Tex. Civ. App. 5, 23 S. W. 822.

We conclude that the judgment below should be reversed, and the cause remanded, for errors apparent upon the face of the record.
      other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-NumBered Digests and Indexes


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    DAVENPORT v. RUTLEDGE.
    (No. 1001.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 24, 1916.)
    1. Judgment <&wkey;335(2) — Service by Publication-Bill of Review.
    Under Rev. St. art. 2026, providing that where judgment has been rendered on service of process by publication, and defendant has not appeared in person or by attorney, he may have a new trial within two years, defendant was entitled to a bill of review and to be heard upon the merits of an action against her in a justice court on service by publication requiring her to appear, at the second term after publication, in which judgment was rendered by default at the first term, although she had actual notice of the pendency of the suit.
    [Ed.- Note. — For other cases, see Judgment, Cent. Dig. §§ 648, 649; Dec. Dig. &wkey;335(2).]
    2. Judgment <5&wkey;119 — Default Judgment-Service by Publication.
    Under Rev. St. art. 2330, providing that, where service is made by publication, the first day of the second term after publication shall be appearance day, a judgment by default at the first term after publication, whether void or voidable, will ordinarily be set aside on appeal.
    [Ed. Note.- — For other cases, see Judgment, Cent. Dig. §§ 208, 209, 211-220; Dec. Dig. &wkey; 119.]
    3. Process <&wkey;153 — Service by Publication —Validity—Error in Name.
    The erroneous statement of defendant’s name in prpcess served by publication will reverse the case.
    [Ed. Note. — For other cases, see Process, Cent.-Dig. §§ 207, 208; Dec. Dig. &wkey;153.]
    4. Judgment <&wkey;335(l) — Service by Publication-Bill of Review.
    Under Rev. St. art. 2026, giving defendant two years in which to file a bill of review and obtain a new trial after service by publication, the remedy given is cumulative, or an additional remedy to an appeal.
    [Ed. Note. — For other eases, see Judgment, Cent. Dig. §§ 647, 650-654, 659, 661; Dec. Dig. &wkey;335(l).]
    5. Process <&wkey;103 — Construction of Statute-Service by Publication.
    The statutes relating to citation by publication are strictly construed, requiring strict compliance with the essential requirements of the statute.
    [Ed. Note. — For other cases, see Process, Cent. Dig. §§ 129, 131; Dec. Dig. (&wkey;>103.]
    6. Judgment <&wkey;335(2) — Vacation—Defect in Service by Publication.
    Under Rev. St. art. 2026, where a judgment was rendered against defendant by default at the first term after service by publication, there not being proper service, defendant was entitled to vacate the judgment, which was void, although the facts might warrant another judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 648, 649; Dec. Dig. &wkey;335'(2).]
    7. Process &wkey;?84 — Service by Publication —Actual Knowledge — Effect.
    Under Rev. St. art. 2026, actual knowledge of the existence of a suit will not supply the want of service.
    [Ed. Note. — For other cases,- see Process, Cent. Dig. § 98; -Dec. Dig. <S=v84.]
    8. Husband and Wife <&wkey;19(15), 23% — Necessaries — Physician’s Services — W ife’s Liability. , '
    A wife is not personally liable for the debt due a physician for necessary services rendered to her child, unless the debt was contracted by her personally, since, if she merely calls in a physician, it is presumed that she does so as the agent of her husband.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 135, 142, 145, 146; Dec. Dig. &wkey;19(15), 23%.]
    9. Frauds, Statute of i@^14 — Promise to Answer for Debt of Another.
    A parol promise by a wife to pay a debt due a physician by her husband for necessary services rendered to her infant child would not render her separate estate liable.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 14; Dec. Dig. <&wkey;>14.]
    10. Husband and Wife <5&wkey;23% — Actions for Services — Admissibility of Evidence.
    In a physician’s action against wife for services rendered her infant child, parol testimony of a verbal promise to pay was admissible, if at all, only to show a contract for such services in the first instance.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 145, 146; Dec. Dig. <&wkey;> 23%.]
    Appeal from Grayson County Court; Dayton B. Steed, Judge.
    Action by W. C. Rutledge against Mrs. Lona Davenport. From judgment for plaintiff in the county court, declaring void a judgment for plaintiff by default in justice court, but rendering judgment for plaintiff on the merits, defendant appeals. ‘
    Reversed and remanded, with instructions.
    John T. Suggs and R. W. Stoddard, both of Denison, for appellant. James S. Kone, of Denison, for appellee.
   HUFF, C. J.

The appellee instituted suit against appellant in the justice court, precinct No. 2, Grayson county, upon an account for services rendered as a physician to the minor son of appellant, who was injured by a railroad. In this suit service was had by publication, the appellant being a nonresident of the state. A writ of garnishment was sued out, against a national bank of Denison, who had on deposit funds belonging to appellant. She was sued and cited as Laura Davenport. Her name is Lona Davenport. The bank answered it had no funds belonging to Laura Davenport. The justice court, however, rendered judgment against the bank on its plea, and also at the first term after publication rendered judgment against the appellant in the original cause by default. There are several defects in the record shown in obtaining process, which were alleged and set out. Under the judgment against the bank in the garnish-, ment the appellee collected from it the amount sued for as due him, and the costs, amounting to $199.40. In that suit, about six months after judgment, and under article 2026, R. O. S., appellant filed a bill of review and sought therein a recovery of the sum so collected by appellee. The trial court finds that the judgment was void, and proceeded to hear and determine the question whether appellant had a valid defense to the alleged cause of action of appeal, and determined that she had no defense, and rendered judgment that she was not entitled to recover anything by reason of the appropriation of the sum obtained from the bank upon the judgment and costs.

The appellee files a cross-assignment, asserting that the trial court erred in holding the judgment and proceeding void, because it is shown that the appellant had actual notice of the pendency of the suit. Whether the court was correct or not in holding the judgment void, we think he was correct in holding that appellant had the right to file her bill of review under the statute and to be heard upon the merits.

The appellant was nqt required to answer until the second term of the court after the required publication. The case should have been continued to perfect service. If this was a jurisdictional matter, the judgment would be void. Harris v. Hill, 54 Tex. Civ. App. 437, 117 S. W. 907; Insurance Co. v. Milliken, 64 Tex. 46. Whether void or voidable, a judgment so obtained would ordinarily be set aside upon appeal. Article 2330, R. C. S.; Irion v. Bexar County, 26 Tex. Civ. App. 527, 63 S. W. 550. The process giving the name of appellant erroneously would also reverse the case. Railway Co. v. Bloch Bros., 84 Tex. 21, 19 S. W. 300.

Upon service by publication, under article 2026, the defendant has two years in which to file a bill of review and obtain a new trial. The remedy given thereby is cumulative, or an additional remedy to an appeal, and peculiar to suits by publication. Kruegel v. Cobb, 58 Tex. Civ. App. 449, 124 S. W. 723.

The statutes relating to citation by publication áre not liberally interpreted, but strictly construed, and a strict compliance with the essential requirements of the statute is required. Authorities supra; Fowler v. Simpson, 79 Tex. 611, 15 S. W. 682. In the case of Oden v. Vaughn, 34 Tex. Civ. App. 115, 77 S. W. 967, a default judgment, rendered before the time defendant was commanded to appear and answer, was held absolutely void. In Lash v. Warren (Sup.) 14 S. W. 694, a judgment- was held erroneous entered the day after acceptance of service. Railway Co. v. Eastham, 54 S. W. 648.

Under the statute, the appellant had until the first day of the succeeding term to answer. The judgment was therefore improperly entered at the first term; in other words, there was no proper service had, and it has long been the rule that the defendant has the right to vacate the judgment when there was no service, even though the facts might warrant another judgment. Harrell v. Mexico Cattle Co., 73 Tex. 612, 11 S. W. 863; Fowler v. Morrill, 8 Tex. 153.

Appellee contends in this case that the appellant had actual notice of this suit and therefore a bill of review would not lie. Courts acquire jurisdiction over the person of defendant by service of process in the manner provided by law. Service may be waived by express stipulation in writing or by voluntary appearance of the party, either in person or by attorney. “But we know of no authority for holding in any case that actual knowledge of the existence of a suit or the issue of a writ will supply the want of service.” Harrell v. Mexico Cattle Co., supra. It appears from the facts in this case, after appellant removed from Texas to Tennessee, appellee instituted his suit against her by publication. The appellant, on a visit to Denison, was informed by the justice of the peace that such suit was pending in his court. There was no appearance made or entered, as required by statute, on the part of appellant.'

Appellee cites Roller v. Ried, 24 S. W. 655, as authority that notice of the pendency of the suit was sufficient, or at least deprived her of the right to file a bill of review. We think appellee misconstrues the scope of that case. There was personal service by a notice upon nonresidents had in that case, and no question is made but that judgment could properly be rendered upon such notice at the time it was rendered; the court simply holding, as we understand it, that in that character of case, where notice was had, a bill of review would not lie. Even should that case hold what appellee contends, it would not apply in this case, for the reason that here the judgment was rendered when the statute did not authorize it. The appellant is only required to answer at the term at which the law fixed, and until that term no valid judgment could be rendered. The trial court properly held appellant was entitled to file her bill of review and to have a hearing upon the merits of the claim.

By virtue of the illegal judgment, Rutledge procured and appropriated the sum of money sued for, which is alleged to be, and the court finds, was the separate property of the wife. In the court’s finding of facts, he finds only that Mrs. Davenport acquiesced and consented for Dr. Rutledge to treat her minor son, who was injured, and further finds thereafter she verbally agreed to pay the bill. The funds here sued for by her the trial court finds was her separate property. At the time of the alleged service her husband was alive, and he and appellant were living together as husband and wife. The child was their offspring and a minor, living with them, when the services were rendered. In order to make the wife personally responsible for the services, she must have entered into a contract with the appellee for services rendered necessary to her child. If there was no such contract, and she only acquiesced or consented for the doctor to treat the child, this would not bind her personally or make her separate property liable. “In order to hold the wife liable for necessaries furnished herself or children, the debt should he contracted by her personally or by some one acting under her authority. Such seems to be the intention of our statute and has been the annunciation of our courts.” Speer’s Law of Marital Rights, § 154, and authorities in note 19; Menard v. Schneider, 48 S. W. 761. It is not sufficient that she merely give an order or call in a physician, for in such ease the presumption is that she does so as the agent of her husband, whose duty it is to supply such things. Id. After tire services were rendered a mere verbal promise on her part to pay would not render her separate estate liable for the debt of the community. She would not be bound personally for the default of her husband by such verbal promise to pay his debt. Elannery v. Chidgey, 33 Tex. Civ. App. 638, 77 S. W. 1034. If the testimony of such verbal promise was admissible at all, it was only admissible as a circumstance on the question whether she contracted for such services in the first instance. A liability cannot be founded against her upon such verbal promise, made after the debt accrued, and if the court’s judgment is based on such promise it is erroneous and without legal testimony. Her mere acquiescence or consent for the doctor to treat her child will not support the judgment.

This case will be reversed, with instructions, if the facts, upon another trial, only establish such acquiescence or consent, to render judgment for appellant for the sum shown to have been appropriated.

Reversed and remanded.
      (g^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONLEY, C. J.

text:
    BLOUNT, PRICE & CO. v. PAYNE.
    (No. 103.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 22, 1916.)
    1. Chattel Mortgages <&wkey;277 — Foreclosure — Pleading — Anticipating Defenses — Necessity.
    Where the petition sufficiently alleged execution and delivery of note and mortgage, maturity of the note, existence of the mortgage lien, refusal to pay, and a mutual mistake in execution of mortgage, and that the defendant unlawfully withheld possession of the property, it was sufficient, and the pleader need not allege and anticipate any defensive matters, since it was incumbent upon the defendant to plead and prove them.
    [Ed. Note. — Eor other cases, see Chattel Mortgages, Cent. Dig. §§ 564-566; Dec. Dig. <&wkey;> 277.]
    2. Chattel Mortgages <&wkey;277 — Reformation of Instruments <&wkey;36(l) — Foreclosure — Recordation—Validity as Between Original Parties.
    In an action to reform and foreclose a chattel mortgage, it is not necessary for the petition to allege that it was registered; for as between the parties it was a valid and binding obligation without registration.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 564-566; Dec. Dig. 277; Reformation of Instruments, Cent. Dig. §§ 141, 143, 146; Dec. Dig-. &wkey;3G(l).]
    3. Reformation of Instruments <&wkey;2S — Grounds — Mutual Mistake — Rights of Third Persons.
    Equity will reform a chattel mortgage in case of mutual mistake between the parties so as to make it express the true intent, and third parties cannot complain of the reformation unless they plead and prove that they are subsequent lienholders or purchasers in good faith.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 101-111, 114-116; Dec. Dig. &wkey;28.]
    4. Chattel Mortgages <&wkey;173(3) — Possession of Property — Pleading—Sufficiency.
    A petition alleging that defendant wrongfully withhold possession of mules which were the subject of the chattel mortgage given by another defendant, which failed to express the mutual intent" of the parties, is sufficient as against general demurrer interposed by the defendant in possession.
    [Ed. Note. — For other cases, see Chattel Mortgages, Gent. Dig-. §§ 307, 309, 323; Dec. Dig. &wkey;173(3)J
    5. Appeal and Error <&wkey;742(4) — Scope of Review — Assignments of Error — Irrelevant Propositions.
    A proposition on the admission of evidence under an assignment of error to the sufficiency of the petition is in violation of the rule as not germane to the assignment.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <©^742(4).]
    6. Appeal and Error <&wkey;1170(3) — Reversal —Harmless Error.
    Under rule 62a (149 S. W. x) nonprejudicial error in overruling a demurrer is not ground for reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4066, 4075, 4098, 4101, 4542; Dec. Dig. <&wkey;>1170(3).]
    Appeal from gan Augustine County Court; T. H. Downs, Judge.
    Action by J. O. Payne against John McCoy, Blount, Price & Co., and Lamar Blount. Blount disclaimed, and the suit was dismissed as to him. Judgment for plaintiff, and Blount, Price & Co. appeals.
    Affirmed.
    W. J. Garrett, Jr., and Davis & Ramsey, all of San Augustine, for appellant. Wm. McDonald and Foster & Davis, all of San Augustine, for appellee.
   CONLEY, C. J.

This was a suit by J. O. Payne, instituted in the county court of San Augustine county on the 30th of March, 1915, to recover of Joe McCoy an amount due on a promissory note, amounting to the sum oí $605.70, and foreclosure of a chattel mort gage executed by Joe McCoy on the same date to better secure the payment of said note. The chattel mortgage covered two mules. The petition is in the usual form declaring on a promissory note, and a foreclosure of the mortgage lien, and in addition thereto, in paragraph sixth, contains the following allegation:

“Plaintiff further represents that, while said mortgage on its face shows the First National Bank of San Augustine, Texas, to be the payee in said note and the grantee in said mortgage, yet in truth and in fact said bank is not the payee of said note nor the grantee in said mortgage, nor was it in any manner a party to the transaction, nor had it any interest in the same, but whatever interest in or relationship to the transaction that said bank apparently had with said paper, in truth and in fact appear by reason of a mutual mistake, accident, oversight, and inadvertence on the part of the parties to the transaction at the time of the execution of the written evidence of said agreement in this: That at the time of the execution and delivery of said note and mortgage and the agreement to reduce the evidence of the contract then made to writing, a blank form of mortgage of said First National Bank of San Augustine was used for said purpose, with the mutual intent and agreement of the parties and the defendant Joe McCoy to erase the name of said bank from said mortgage form and to insert in lieu thereof the name of the plaintiff, J. 0. Payne, and to erase the name of said bank wherever it occurred in said blank form, and to insert in lieu thereof the name of the plaintiff herein, and that by mutual mistake, oversight, and inadvertence and accident of the parties to the transaction the name of the bank was not erased, nor was the name of the plaintiff, J. O. Payne, inserted in the body of said instrument, as per the agreement of the parties.”

Paragraph 7 contained the following allegation:

“Plaintiff further says that the defendant Lamar Blount, either for himself or as agent of the defendant Blount, Price & Co., and the defendant Blount, Price & Co., are now in the possession of the above-described property, and are unlawfully withholding the same from this plaintiff, and are setting up some character of claim thereto, and they are made parties hereto for the purpose of determining whatever rights they may have in said property, and of obtaining any relief against them that the proof should show plaintiff entitled to by reason of the premises, and said property is now situated in San Augustine county.”

The plaintiff closed with a prayer for judgment for the principal, interest, and attorneys’ fees on the debt, a foreclosure of the mortgage lien upon the property, and for any and all orders necessary to enable plaintiff: to subject said property to the payment of the debt, and for general and special relief in law and equity.

Defendant filed a general denial, and denied specifically all the allegations in plaintiff’s petition and in the supplemental petitions, denied that Joe McCoy had executed any mortgage to J. O. Payne, that, if Joe McCoy had ever executed any mortgage on the mules, the mortgage executed by him was to the First National Bank, and not to J. O. Payne, that said Joe McCoy was not indebted to the said bank, and further answered that said Joe McCoy had on the 25th of January, 1913, executed a mortgage to it covering the two mules in question to secure certain indebtedness due it by the said Joe McCoy, that the mortgage had been duly filed, and that it had no actual or constructive notice that said Joe McCoy had executed a mortgage previous to the one given it, and further answered that after its debt against Joe McCoy became due it filed suit in the justice court of San Augustine county against Joe McCoy, and thereafter secured a judgment for its debt, with a foreclosure of the mortgage lien, and at execution sale purchased the said mules, paying therefor a fair price, that the mortgage of the plaintiff is not and could not be a mortgage to the plaintiff, as it shows conclusively to be a mortgage to the First National Bank of San Augustine, and that therefore the registration of the mortgage was not notice in law of the fact that the plaintiff had a mortgage upon the property described, and that the defendant, being a bona fide creditor against said McCoy, was entitled to preference over the mortgage of the plaintiff, and that the defendant was in no way chargeable with notice of the mistake alleged to have been committed between the parties to that transaction.

Lamar Blount disclaimed, and was dismissed from the suit with his costs. The general demurrer of the defendant Blount, Price & Co. to plaintiff’s petition was overruled, and a trial of the issues presented by the pleadings resulted in a verdict and judgment for the appellee, from which the appellant has duly perfected an appeal to this court.

There is but one assignment of error urged by appellant, and that is that the court erred in overruling the general demurrer to the appellee’s petition. Under this assignment of error appellant contends that the petition is defective in that:

(a) It does not allege that the appellant had actual or constructive knowledge of the existence of the mortgage of appellee.

(b) That the court erred in admitting evidence, in the absence of proper allegations supporting it, on the question of such notice, and that this is fundamental error.

(e) That the allegation in paragraph seventh of plaintiff’s petition that “Lamar Blunt, either for himself or as agent for Blount, Price & Co., and the defendant Blount, Price & Co., are now in the possession of the above described property, and are unlawfully withholding the same from this plaintiff, and are setting up some character of claim thereto,” is not sufficient to charge a cause of action against Blount, Price & Co.

(d) That equity will not correct such mistakes as shown in the petition, because it affirmatively appears that the mistake and oversight in failing to properly 'prepare the mortgage sought to be corrected was caused by the carelessness and inattention of the appellee.

An inspection of the petition in this case shows sufficient allegations charging the execution and delivery of the note and mortgage by Joe McCoy to J. O. Payne, the maturity of the note, the existence of the mortgage lien, his failure and refusal to pay the debt in accordance with the terms of the contract, the mutual mistake in the execution of the written evidence of the lien, that the appellant was in the possession of the property covered by the mortgage, unlawfully withholding the same from the plaintiff, and prayed that the appellant be made a party for the purpose of determining whatever rights it had in the property, so that appellee might obtain any relief against it that the proof would warrant. This was all the pleader was required to do. Any matters which tended to defeat, qualify, or limit the rights of appellee, as set forth in the petition, are defensive matters, and it was incumbent upon the appellant to plead and prove them. The appellant was, in substance, charged by the petition with a conversion of the property covered by the mortgage. It was not necessary for the petition, under such circumstances, to have anticipated the defenses of appellant, and to have affirmatively pleaded facts which would have avoided them.

It was not necessary for the petition to have charged the registration of the mortgage; for, as between the parties to that instrument, it was a valid and binding obligation, without registration.

Equity will reform an instrument of the character in this suit in ease of mutual mistake between the parties so as to make it express the true intent of the parties. Third parties cannot complain of the reformation, except that they show themselves to be subsequent lienholders or purchasers in good faith. This is matter of defense, and when such parties are joined in the suit to reform the original instrument, as was done in this case, and they are declared by the petition to be in possession of the property in controversy, and to be unlawfully withholding it from the plaintiff, to defeat a recovery they must plead and prove that they are in the protected class; that is, that they have a bona fide debt, which is secured by a lien on the same property, and that at the time of the execution of the lien they had no notice, actual or constructive, of the existence of the prior mortgage which it is sought to reform.

The allegations in the petition as to the possession of the two mules by Blount, Price & Oo. are sufficient as against the general demurrer. These allegations can have no other meaning than that appellant is in possession of the property and unlawfully withholding it against the superior rights of appellee, and that whatever claim it was asserting was subordinate to the claim or rights of the appellee.

On page 889 Mr. Townes, in his work on Texas Pleadings, states:

“It is also settled that it is not necessary, in a suit for personal property, to aver the fact constituting title. A general allegation that the plaintiff is the owner of the property and is entitled to the possession as against the defendant, or is entitled to damages for its injury or conversion, is all that is necessary.”

See, also, 88 Cyc. 2065.

Proposition (b) under this assignment of error, as above set out, is not germane to the assignment, and is therefore in violation of the rules. In this connection we will say there is no merit in the error complained of, and this assignment is therefore overruled.

An inspection of the record shows that appellant’s answer elaborately denied all the allegations of the petition, and specifically set forth that it had no knowledge of the existence of the mortgage of appellee. The statement of facts shows this question to have been inquired into by the court. The defendant McCoy testified that before he executed the mortgage to Blount, Price & Co., appellant, he told an officer of that company about the existence of the mortgage to appellee, J. O. Payne, and that officer, in turn, testified that he went to the county clerk’s office and found the exact mortgage herein sought to be reformed, and read it, and saw that it was indorsed on the outside as being a mortgage from Joe McCoy to J. O. Payne, although the body of the mortgage showed it to have been given to the bank.

Under rule 62a (149 S. W. x), even though there should have been error in overruling the general demurrer, still such error was in no way, under the facts of this case, prejudicial to appellant, and the judgment should therefore, in any event, be affirmed; and it is so ordered.
      <§z^For other cases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    SULZBERGER & SONS CO. OF AMERICA v. HILLE.
    (No. 129.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 27, 1916.
    Rehearing Denied July 8, 1916.)
    Justices oe the Peace <&wkey;54(l) — Jurisdiction — Amount in Controversy.
    Where a cause of action is such that damages may accrue pending the action, as in actions for property detained, if suit primarily is for an amount within the jurisdiction of a justice’s court, the court retains jurisdiction to render judgment for an amount within its original jurisdiction, although damages accrue beyond that amount.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 190, 198; Dec. Dig. &wkey;54(l).]
    Appeal from Jefferson County Court; D. P. Wheat, Judge.

      Action by the Sulzberger & Sons Company of America against O. J. Hille. From a judgment for defendant on Lis cross-action, plaintiff appeals.
    Affirmed.
    Crook, Lord, Lawbon & Ney, of Beaumont, for appellant. Roger L. Burgess and A. E. Jatbo, both of Beaumont, for appellee.
   BROOKE, J.

Tbis suit was brought in justice court, precinct No. 1, Jefferson county, Tex., by issuance of the following citation:

“You are hereby commanded to summon O. J. Hille, a resident citizen of Beaumont, Jefferson county, Tex., if to be found in your county, to be and appear before me, the undersigned H. E. Showers, justice of peace in and for said county of Jefferson, at my office in Beaumont, Tex., precinct No. 1, at the next regular term of said court, to be holden on Monday, 26th day of April, 1915, at 10 o’clock a. m., then and there to answer the suit of the Sulzberger & Sons Company of America, a corporation duly incorporated under the laws of the state of New Jersey, and doing business in Texas by permit duly issued by secretary of state, plaintiff, against O. J. Hille, defendant, filed on the 8th day of April, 1915, file No. 6374, for the sum of $72.76, due upon open account for foreclosure of chattel mortgage lien.”

Plaintiff alleges that heretofore, to wit, on the 9th day of June, 1914, and on various dates thereafter, up to and including the 17th day of December, 1914, it sold and delivered to defendant, at his special instance and request, goods, wares, and merchandise to the total value of $86.87, on which there is a balance due of $76.76; for the purposes of securing his purchases theretofore made and thereafter to be made from plaintiff defendant placed with plaintiff one certain dark bay mare between nine and ten years old, weighing between 800 and 900 pounds; that it was agreed and understood that said mare should be held and kept by plaintiff as security for the payment by defendant of his debt due plaintiff, thereby creating a valid and subsisting chattel mortgage lien on said dark bay mare, weighing between 800 and 900 pounds, and being nine or ten years old; that said mare is of the reasonable value of $100. Wherefore plaintiff prays judgment for the sum of $72.76, for foreclosure of its chattel mortgage lien on said mare above described, and general relief.

Defendant answered in said justice court by general demurrer and special exception, and general denial, and special answer, the second part of said special answer being as follows:

“Defendant denies that portion of plaintiff’s petition in which it is alleged that defendant placed with the plaintiff one certain bay mare to secure the payment of said amount, and that defendant alleges that on the 4th day of November, 1914, by and through its agent, John Reagan, plaintiff entered into a contract or agreement with the defendant by the terms of which plaintiff was to purchase the bay mare described in the plaintiff’s petition; that before plaintiff should close the deal for the said mare the defendant was to allow the plaintiff to take the said mare and use her for two or three days for the purpose of ascertaining her qualities; that at the end of said time, should the plaintiff find the mare satisfactory, that the plaintiff would purchase the said mare, and that the plaintiff would give him a bill of sale for said mare, but, in the event plaintiff did not find said mare satisfactory, then plaintiff was to deliver the said mare back to the defendant, paying the defendant $1 per day for each and every day that the plaintiff so used the said mare and kept her in liis possession; that thereafter the defendant demanded the said mare from plaintiff after finding the plaintiff did not wish to purchase, and demanded his pay for the use of said mare at the rate of $1 per day, at the same time informing plaintiff that he was so charged with $1 per day as long as plaintiff kept said mare; that plaintiff has kept the said mare in its possession since the defendant delivered her to plaintiff on the said 4th day of November, 1914, and so continued to keep her, and refused to deliver her to plaintiff, and refused to pay him said sum of $1 per day for each day the plaintiff has had the possession of said mare; that the mare is the personal property of the defendant and is of the value of $150; and that the defendant has been damaged by the wrongful acts of said plaintiff in the sum of $160, as rent up to the date of the filing of this answer. Wherefore the defendant prays judgment for the possession of his said mare, and for his damages at the rate of $1 per day from the 4th day of November until the said mare is delivered back to the defendant.”

Upon trial in the justice court the plaintiff recovered the amount prayed for, but the court was of the further opinion that the plaintiff had not established any kind of a lien upon said mare, and that the defendant was entitled to her possession, but the court refused to render judgment in any amount for the use of said animal. The case was appealed to the county court at law. When the case reached said county court, the plaintiff filed a supplemental petition, in answer to the defendant’s answer above set out, which was as follows:

“Plaintiff excepts to said answer and cross-action and says same sets out no defense to plaintiff’s cause of action, and sets out no cause of action against plaintiff on said cross-action and of this plaintiff prays the judgment of the court.

“Plaintiff denies all and singular the matters set out in said answer, and demands strict proof thereof, and of this he puts himself upon the country.”

On the 3d day of November, 1915, upon the pleadings as above set out, a judgment was had in the said county court at law that the plaintiff recover from the defendant the sum of $68.81,.being the balance due it upon open account; the judgment further reciting that the plaintiff had no valid lien on the mare, and that the defendant has a title to said mare, and is entitled to the possession thereof, and that the plaintiff is ordered to restore the mare to defendant, and, in addition, that the defendant recover from plaintiff, upon cross-action, the sum of $1 per day for the use of said mare from the 15th day of December, 1914, to the 1st day of July, 1915, making a period of 169 days, aggregating the sum of $169.

The court filed his findings of fact and conclusions of law. Plaintiff filed his motion for new trial, among other things setting out that the court erred in overruling plaintiff’s exception to the jurisdiction of the court to hear and determine defendant’s cross-action, because the recovery sought in such cross-action was beyond the jurisdiction of the justice court, in which this cause originated, thus raising the question of jurisdiction, which is the only question to be determined in this case. The court overruled plaintiff’s motion for new trial, and the case is properly before this court for adjudication.

By the first assignment of error plaintiff assails the action of the lower court in overruling plaintiff’s special exception to the jurisdiction of the court to hear and determine defendant’s cross-action, because the recovery sought in such cross-action was beyond the jurisdiction of the justice court, in which court the cause originated, and it is earnestly insisted that under the pleadings of the defendant he could have recovered, upon proper proof, $1 per day from the said 4th day of November, 1914, until the time of the trial in the county court, which was had on the 3d day of November, 1915, a period of over 300 days, and which said amount would be beyond the jurisdiction of the justice court, and the proposition is made that a justice court has no jurisdiction to try a counterclaim the items of which, taken collectively, exceed $200, and that an appeal to the county court from a judgment in such court confers no jurisdiction.

It will be seen that the defendant did not pray, in the alternative, for the value of the horse. He merely asked that possession of the horse be restored to him, and for damages at the rate of $1 per day from November 4, 1914, until the said mare was delivered back to him. Both courts found that the plaintiff had.no valid lien.

In the case of Klabunde v. Vogt Hdw. Co., 182 S. W. 715, the court, in passing on that case, said:

“Appellant sued appellee in the justice court of Bexar county for a certain gasoline engine or its value alleged to be $185, with interest in the sum of $11.25, making a total of $196.25. In the event the engine should be recovered prayer was for $15 damages. The petition was amended in the county court, where the case went on appeal, and it was alleged that the engine was worth $185, and that the interest due to October 10, 1914, made up a total sum sued for $196.25, and that the interest on said sum to the date of filing brought the total to $204.85. There is no doubt that the justice court did have jurisdiction to try the cause, and it came regularly to the county court on appeal, so that the last-named court acquired jurisdiction. Having so acquired jurisdiction of the cause of action, would it lose it when the amended petition was filed praying for principal and interest, aggregating $204.85? In a suit in tort interest is a part of the cause of action for the purposes of fixing jurisdiction, and this is such an action. This is one of those cases where damages ivill accumulate [italics ours]; for, if the property is wrongfully detained so that the claimant is entitled to recover interest, the longer the suit is pending the greater will be the damages. If the suit had remained pending in the justice court, and interest had run long enough to make the amount exceed $200, would the justice court have lost jurisdiction by reason of that fact? The amended petition in the county court does no more than ask for the same value of the converted. property, together with interest up to that date, which at that time brought the amount as prayed for to $204.85. In Ft. Worth & Denver City Ry. Co. v. Underwood [100 Tex. 284] 99 S. W. 92 [123 Am. St. Rep. 806], on certified question in a similar case from the Second District, Railway Co. v. Underwood, 98 S. W. 453, Judge Williams, speaking for the Supreme Court, said: ‘The cause of action asserted was of such a nature that damages might accumulate pending the action, which is true of many actions, as for instance, those brought for the use of property detained, and the like; but the accrual of further damages in cases of that character does not take away the power of the court to give judgment for an amount claimed, which is within its jurisdictional limits. The plaintiff in such cases, with proper pleadings, may recover the entire damage which he has suffered up to the trial; but this right may be restricted by the law limiting the jurisdiction of the court in which he has seen fit to sue. Having brought his action for an amount with-tn the jurisdiction, he is entitled to such judgment as the court has power to render.’
“In that case the suit as originally brought was for an amount within the jurisdiction of the county court, but by the third amended petition * * * was within the county court jurisdiction, but would not have been in that of the justice court. The court rendered judgment for $163.50 or $150, with 6 per cent, interest on that sum from October 1, 1913, to April 2, 1915, thus making the sum for which the judgment was_ rendered. . Having regularly acquired jurisdiction of the cause, we think, under the authority of the above case, that the county court had jurisdiction to render such judgment as it entered. And this view is sustained by the following eases: J. F. Siensheimer & Co. v. Maryland Motorcar Ins. Co., 157 S. W. 228; Adair v. Stallings, 165 S. W. 140.
“While there is more than one assignment of error, they are all predicated upon the proposition that the county court did not have jurisdiction after the amended petition was filed in that court; and, since we hold that the county court did have jurisdiction, the assignments are overruled, and the judgment is affirmed.”

In the instant case the judgment of the court was for $169, an amount within the original jurisdiction of the justice court, and within the appellate jurisdiction of the county court at law. We think, as stated in the above ease, while there is more than one assignment of error, they are all predicated upon the same proposition, and, since we hold .that the justice court and the county court had jurisdiction, it disposes of each assignment. .

Having given careful consideration to the record, and being of the opinion that no error was committed by the trial court, the cause is in all things affirmed; and it is so ordered.
      ®^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    ARDEN v. BOONE.
    (No. 8374.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    May 20, 1916.
    On Motion for Rehearing, July 1, 1916.)
    1. Reformation of Instruments <&wkey;16 — Grounds.
    Before equity will interpose to change the terms of a written instrument as not expressing the real agreement, it must appear that the terms sought to bo changed were inserted through accident, fraud, or mutual mistake, or, if the mistake is unilateral, it must be material, going to the substance of the contract, and not the result of negligence.
    LEd. Note.—For other cases, see Reformation of Instruments, Cent. Dig. § 68; Dec. Dig. <§= 16.]
    2. Reformation of Instruments &wkey;>25—De-fense—Want of Diligence.
    Equity will relieve from the terms of a contract for unilateral mistake only if it arises through no want of ordinary care or diligence on complainant’s part.
    LEd. Note.—For other cases, see Reformation of Instruments, Cent. Dig. §§ 84-90; Dec. Dig. &wkey;25.]
    3. Reformation of Instruments <&wkey;25 — Defenses—Negligence.
    Where a party executed a preliminary contract and accepted a deed providing for his keeping open a permanent roadway on land convoyed in the absence of showing of fraud or expense for failure to read the two instruments, reformation thereof could not be had on the ground of accident, fraud, or mistake.
    LEd. Note.—For other cases, see Reformation of Instruments, Cent. Dig. §§ 8íG90; Dec. Dig. <§=u>25.]
    4. Deeds &wkey;>90 — Construction — Favoring Grantee.
    Where there is doubt as to the meaning or purport of the terms used in a deed, the construction most favorable to grantee should be applied.
    [Ed. Note.—For other cases, see Deeds, Cent. Dig. §§ 234-237, 247, 248; Dec. Dig. &wkey;90.]
    5. Deeds <&wkey;139 — Construction — Repúg-nanos.
    The exception of land required to make the full acreage conveyed under general warranty deed will be rejected as repugnant to the grant.
    [Ed. Note.—For other cases, see Deeds, Cent. Dig. §§ 458, 459; Dec. Dig. &wkey;139J
    6. Easements &wkey;>14(2) — Reservation of Roadway — “Reservation” — “Exception.”
    Where a certain acreage is conveyed with stipulation that grantees should keep open a immanent roadway 15 feet wide on the side of the tract conveyed, the strip of roadway being necessary to make the full acreage conveyed, the stipulation should be construed as a reservation of an easement, and not as an exception of an open lane, since a reservation is the creation in behalf of the grantor of a new right issuing out of a thing granted, something which did not exist as an independent right before the grant, while an exception operates to withdraw some part of the thing granted which would otherwise have passed to the grantee under the general description.
    [Ed. Note.—For other cases, see Easements, Cent. Dig. § 40; Dec. Dig. <§=>14(2).
    For other definitions, see Words and Phrases, First and Second Series, Exception^ Reservation.]
    7. Deeds <&wkey;120—Construction—Favoring Grantee.
    A deed will be construed to give the lai-gest estate under the terms of the grant.
    [Ed. Note.—For other cases, see Deeds, Cent. Dig. §§ 375-393, 401, 407-412, 416-454; Dec. Dig. &wkey;?120.]
    8. Easements <&wkey;61(9)—Action to Establish—Evidence—“Keep. ’ ’
    In a suit to require grantee to remove gates on a roadway, the deed stipulating that grantee was “to keep open for a permanent roadway 15 feet wide on the extreme east of” the tract conveyed “so that the said” grantor “may have access to the public road,” evidence that gates were, for a long time prior to the sale, used at both ends of the strip as means of affording the grantor access to the public road, and that the land was in the country, warranted a decree for defendant, since under the circumstances disclosed the grantee would “keep open” such pass-way, although maintaining gates, since the word “keep” is properly defined “to maintain; to cause to continue without essential change of condition.”
    [Ed. Note.—For other cases, see Easements, Cent. Dig. § 143; Dec. Dig. &wkey;61(9).
    For other definitions, see Words and Phrases, First and Second Series, Keep.]
    Appeal from District Court, Baylor County; J. A. P. Dickson, Judge.
    Suit by J. C. Arden against O. A. Boone. From a decree for respondent, complainant appeals.
    Affirmed.
    Milam & Wheat, of Seymour, and Speer & Brown, of Ft. Worth, for appellant. Glasgow & Kenan, of Seymour, for appellee.

       Application for writ of error pending in Supreme Court.

   BUCK, J.

On January 29, 1913, by a general warranty deed, appellant conveyed to appellee 100 acres of land off the south side of a 220-aere tract, said deed containing the following provisions, to wit;

“It is understood and agreed as a part of the consideration for this land that the said O. A. Boone, his heirs and assigns, are to keep open for a permanent roadway 15 feet wide on the extreme east of said 100-acre tract hereby conveyed, so that the said J. C. Arden and his assigns may have access to the public road from the land on the north of said 100-acre tract.”

At the time of this conveyance there were gates at the northern and southern extremities of this 15-foot strip used as a passway, and appellee continued the use of these gates until June 17, 1915, when appellant filed this-suit, the purpose of which was to require ap-pellee to remove the gates, and to “keep said roadway open and unobstructed at all times in the future.”

Appellee, defendant below, in his answer pleaded:

(1) That the understanding between the “parties was that plaintiff for himself and his assigns was to have a passway over the east 15 feet off 'of said 100 acres of land for the purposes simply of ingress and egress to the land out of said tract reserved by plaintiff; that it was never in contemplation of the parties in making said deal and trade that the passway mentioned in said deed should be a passway free of obstructions and gates, but, on the contrary, it was perfectly understood by defendant, and he supposes plaintiff so understood, that plaintiff was only to have for himself and his assigns the right for convenience to pass over said 15 feet of land for the sole purpose of ingress and egress to the land reserved by plaintiff on the north of said 100-acre tract sold by him to this defendant.”

(2) That the word “open,” as used in said deed and contract between the parties with reference to the passway, “if the same is to be construed as a passway free of gates and obstruction, was never at and 'before the time of closing the trade, or at any other time, agreed and understood between the parties, but the same was error in the reduction of the agreement to the written instrument, and said term ‘open’ is contrary to the common intention and understanding of the parties.”

(3) Defendant further pleaded the presence of the gates at the beginning of the negotiations and before the preliminary written contract was made, and that plaintiff told defendant’s agent, Eddleman (who seems to have conducted practically all of the negotiations of trade with plaintiff), that he only wanted a passway, and that no statement was used or stipulation made by plaintiff in the course of such negotiations indicating any intention to reserve and require a roadway free of gates.

(4) That for more than 12 months after the execution .of the deed plaintiff acquiesced in the use of the gates and in the construction of the term “open roadway” as meaning one with gates.

Defendant further averred that the gates were maintained and would continue to be maintained in good order for the free use of plaintiff and his assigns.

The case was submitted to the jury on three special issues, and in answer to them the jury found:

(1) That neither defendant, Boone, nor his agent, Eddleman, knew of the condition in the deed that provided for an open road on the land in controversy at the time of the execution or delivery of the deed.

(2) That the deed did not express the understanding and agreement of the parties with reference to the road or passway.

(3) That it was the intention and understanding between the parties at the time of the execution of the contract of sale and at the time of the execution óf the deed that a passway with gates be reserved.

Upon this verdict of the jury the court entered judgment for defendant, and plaintiff appeals.

Appellant presents in his brief some 12 assignments, all of which we have considered with due care, but we believe there is presented only one main question for our determination, to wit: Is the above-quoted language used in the deed susceptible of the construction that the roadway reserved might be one inclosed by gates? If yea, the judgment should be affirmed. If nay, the judgment should be reversed.

AVhile the jurisdiction or power of courts of equity to relieve against mistakes' has always been recognized, and where, because of mistakes, a contract is made to appear different from that intended by the parties, equity will interpose to prevent manifest injustice, yet, where parties to a contract have reduced to -writing the terms thereof, before the power of a court of equity may be invoked to vary the terms of such written instrument, on the ground that the recitations do not express the real agreement of the parties, it must be made to appear: (1) That the recitation sought to be changed was inserted through accident, fraud, or mutual mistake; (2) or, if the mistake be unilateral, such mistake must be material, going to the substance or essence of the contract, and arising through no want of ordinary care or diligence on the part of him who seeks to avail himself thereof, and then may be ground only for rescission, not for reformation. 6 R. O. L. p. 623, § 42; 1 Elliott on Contracts, p. 195, § 112, citing Moffett, Hodgkins & Clarke Co. v. Rochester, 178 U. S. 373, 20 Sup. Ct. 957, 44 L. Ed. 1108. If a contract is plain and unequivocal, the person signing it or accepting it after it is signed by the other party, as in the case of a deed, is ordinarily bound by its terms, even though he did not, in fact, read the instrument before signing or receiving it. This is particularly true where the party complaining was able and had the opportunity to read the instrument, but neglected to do so. 6 R. O. D. p. 624, § 43; Box Co. v. Spies, 109 S. W. 432.

The evidence shows that the preliminary contract executed by the parties contained the same provisions as to keeping “open” a “permanent roadway,” as included in the deed. No reason or excuse is'shown for the defendant’s failure to read the two instruments, and to discover the use of such terms. It was shown that the original contract was signed by plaintiff and defendant’s agent and son-in-law, Eddleman, and delivered to Boone, who “delivered it to the clerk’s office”; that the deed was delivered to defendant, who had it filed for record. No pleading or proof is made as to any fraud on the part of plaintiff in having the word “open,” as applied to the roadway, inserted in the contract and deed. Therefore we are of the opinion that the judgment cannot be supported on the grounds of accident, fraud, or mistake, whether the mistake claimed be bilateral or unilateral. Hence we are reduced to the single proposition stated above.

while the defendant does not in so many words plead that the expression “to keep open for a permanent roadway” is ambiguous, so as to make parol evidence admissible to show what, in fact, was understood and meant by the parties in its use, yet we are of the opinion that defendant’s pleading may reasonably be interpreted as alleging an ambiguity in this respect, and therefore extrinsic evidence was admissible to shed light upon the sense in which the expression was used and understood by the parties. Moreover, the intention of the parties in inserting this reservation may he gathered from the instrument itself. The reason for the reservation is recited to be “so that J. C. Arden and his assigns may have access to the public road from the land on the north of the said 100-acre tract.” Certainly by the use of the roadway inclosed by gates “access to the public road” could be had. Even the word “free” or “unobstructed” was not used to limit or further determine the nature of the access to be reserved. It is a well-recognized rule of construction of deeds that, where there is doubt as to the meaning or purport of the terms used, the construction most favorable to the grantee should be applied. 8 R. C. L. p. 1088, § 145; Wofford v. McKinna, 23 Tex. 36, 76 Am. Dec. 53; McBride v. Burns, 88 S. W. 398. Likewise, since this strip of land 15 feet wide was a part of the 100 acres paid for by and conveyed to the grantee, it must be held that-some right in or title to this strip was meant to be conveyed. Wofford v. McKinna, supra. If more than an easement over and within this strip was intended, and it required this strip to make the 100 acres conveyed under the general warranty deed, then such reservation might be rejected as a repugnancy under the authority of Koeniglieim v. Miles, 67 Tex. 113, 122, 2 S. W. 81; McDaniel v. Puckett, 68 S. W. 1007; Puckett v. McDaniel, 96 Tex. 94, 70 S. W. 739. To sustain the stipulation, it should. be, under the authorities cited, construed to be only a reservation, and not an exception.

“A reservation is the creation in behalf of the grantor of a new right issuing out of a thing granted, something which did not exist as an independent right before the grant; while an exception operates to withdraw some part of the thing granted which would otherwise have passed to the grantee under the general description.” 8 R. O. L. p. 1090, § 147.

It is further a well-established rule that a deed will be construed to convey the largest estate possible under the terms of the grant. Hancock v. Butler, 21 Tex. 804, 811; Cartwright v. Trueblood, 90 Tex. 535, 537, 39 S. W. 930; Calder v. Davidson, 59 S. W. 300, 302, affirmed in 94 Tex. 689; Schaffer v. Heidenheimer, 43 Tex. Civ. App. 366, 96 S. W. 61, affirmed in 101 Tex. 658.

Looking to the evidence, Eddleman testified that:

“In negotiating this deed [deal] and trade between Mr. Arden and Mr. Boone, there was not anything said by me or Mr. Arden with reference to leaving the passway there open and unobstructed - by gatos. * *. * Mr. Arden came out to see me and wanted to close the trade with me for Mr. Boone, and said that be wanted to reserve a passway of 15 feet. I said: T object to that. Ifou let Mr. Boone go down on your grass land enough to make up

for the 15 feet; you keep the 15 feet.’ Mi'. Arden said: ‘No; I want to deed 'him the full 100 acres, just reserve a passway out.’ "

Plaintiff testified that he sold Boone the 100 acres. E. BL Stone, who was negotiating for the land just prior to the purchase by Boone, testified that in the conversations with plaintiff the latter only stipulated that he have a passway on the east of the 100 acres; that he said “he wanted a way to get through there.” Stone further testified:

“There was nothing in the negotiations between me and Blr. Arden with reference to this land, with reference to a lane, or open road on the east of this 100 acres.”

Defendant testified to the same effect as to the conversations had between him and plaintiff. Both defendant and Eddleman testified that the first notice that they had of plaintiffs claim for a roadway free of gates, or a lane, was some year and a half after the deed was delivered. This is a strong circumstance tending to support defendant’s alleged understanding of the contract and to show a concurrence by plaintiff in the construction of the contract claimed by defendant, or at least an acquiescence therein. It is true that plaintiff testified to a conversation claimed to have been had with defendant shortly after the sale was made in which the former broached the subject of establishing the division line, but he admits that he said nothing to defendant about any lane until about a year after the deed was passed, and then, he says, “he [Boone] seems to think I was talking about another fence.”

The Standard Dictionary defines “open” as:

“Easy of or affording an approach, view, passage, or access, because of the absence of something that shuts out, covers, etc.; not surrounded by barriers or prohibitive restrictions ; uninclosed; free of access and use; public, as an open common; affording free passage or flow; unobstructed; also unclosed, as an open wound, an open bottle, an open door.”

We are not prepared to say that, in view of the definitions and meanings given above one who places at either extremity of a pass-way gates without locks or difficult fastenings does not “keep open” such passway; nor, in our judgment, can it reasonably be claimed that because a roadway is inclosed by gates, it is not a “permanent” roadway. Third class roads established by and maintained under the authority of the law may be enclosed by gates.

While we are inclined to conclude that the special issues Nos. 1 and 2 were not required or proper to be submitted, yet we are of the opinion that the judgment must be sustained, and that it was authorized by the facts of the case and by the finding of the jury in answer to special issue No. 3. All assignments are overruled.

Judgment affirmed.

On Motion for Rehearing.

While we are aware that ample authority can be found to sustain the contention, urgently insisted upon in appellant’s motion

for rehearing, that the expression “open way” ordinarily means a passway without gates, and that such construction is sustained either directly or by implication in the following cases among those cited by appellant, to wit: Boyd v. Bloom, 152 Ind. 152, 52 N. E. 751; Gibbons v. Ebding, 70 Ohio St. 298, 71 N. E. 720,101 Am. St. Rep. 900 ; Mineral Springs Mfg. Co. v. McCarthy, 67 Conn. 279, 81 Atl. 1013; Goodale v. Goodale, 107 Me. 301, 78 Atl. 567; Garland v. Furber, 47 N. I-I. 301; Welch v. Wilcox, 101 Mass. 162, 100 Am. Dec. 113; Maxwell v. McAtee, 9 B. Mon. (ICy.) 20, 48 Am. Dec. 409; Methodist Protestant Church v. Daws, 4 O. C. D. 562, 48 L. R. A. (N. S.) 87, note — yet we are still of the opinion that in view of the terms of the paragraph of the deed containing the reservation, quoted in our original opinion, parol testimony was admissible to determine the construction put upon the terms used at the time by the parties to the contract and deed, and that such parol testimony was sufficient to sustain the construction reflected by the verdict and judgment.

It will be remembered that the expression “open way” is not used in the deed, but the obligation is placed on the grantor to' “ ‘keep open’ for a permanent roadway” the strip described. “To keep,” in the sense here used, may properly be defined, as in the Standard Dictionary, “to maintain; to cause to continue without essential charge of condition.” For a long period prior to the sale gates had been used at the termini of this strip as a means of affording the grantor access to the public road from his house. Is it not a reasonable and permissible construo tion to say that in the use of the expression “to keep open for a permanent road way” the grantor meant, and the grantee understood him to mean, that the passway should be maintained in the condition it was in at the time of the sale of the land? Evidently both parties traded and made that contract and acquiesced in the deed containing this reservation, with the knowledge of the conditions as they existed at the time and had existed theretofore with reference to the presence of gates. Garland v. Furber, supra. Moreover, in construing the terms of a deed and of a reservation therein, it is permissible to take into consideration the character of the premises conveyed, and the sense in which the word or words is or are used with a reference thereto. As said in the case of Collins v. Degler, 74 W. Va. 455, 82 S. E. 265, whether the grantee of a right of way is entitled to a way unobstructed by gates depends upon the terms of the grant, the purposes for which it was made, the character and situation of the property, and the manner in which the way has been opened. Jones on Easements, § 400. Quoting from the cited case:

“Persons in a city do not ordinarily think of an. alley as a way inclosed by gates. The use of

the word ‘alloy’ in connection with a city lot carries with it the idea of an open way, such as almost invariably pertains to city property. But not so as to tlio use of the words ‘right of way’ as applied to ingress and egress over farming lands. Nor even so as to the use of the words ‘free right of way’ as applied to such lands. We must give to words the meaning that they imply from their use in relation to certain subject-matter. There isi freedom in the country through gates that by no means would be called freedom in- the city. Conditions and usages necessarily make it so. When plaintiff took a deed for the parcel, the road referred to in the deed had gates' and bars across it. Yet it appears that the public freely traveled that road. * * * The use of the words ‘right of way’ indicates retention of the ownership and use of the soil except as interfered with by passage over the right of way. If the parties meant a lane, why did they not use the term? The grant of a right of way merely does not deprive the grantor of uses of the way consistent with the right he has granted. It is the grant of an easement only, not of the land itself.”

The motion for rehearing is overruled.

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author: CONNER, C. J.

text:
    CHICAGO, R. I. & G. RY. CO. v. PAVILLARD.
    (No. 8402.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 17, 1916.)
    1. Carriers <&wkey;232, 218(6) —Dive Stock-Cabe — Construction oe Contract.
    A shipping contract, providing that the shipper should take care of the stock and should unload it and should save the carrier harmless except as to damages resulting from the carrier’s negligence, did not on its face exempt the carrier from damages which might result from its negligence, contrary to statute, and, when it found that the shipper was not at destination to unload his stock, it was bound to exercise at least ordinary care to preserve it from injury until he could be notified of its arrival, and if, under all the circumstances, ordinary care would have required that it be unloaded, the carrier’s failure to do so would be negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 918, 919, 940-945, 949; Dec. Dig. <&wkey;>212, 218(6).]
    2. Carriers <&wkey;230(l) — Live Stock — Question eor Jury— Care oe Stock.
    In an action for damages to a shipment of live stock resulting from the carrier’s failure to unload it or to notify the shipper of its arrival so that he might unload it, held, that whether the shipper, in the exercise of ordinary care, should have been present to receive and unload it, was for the jury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 962; Dec. Dig. &wkey;3230(l).]
    3. Carriers &wkey;>217(l) — Live Stock — Recovery eor Injury — Contributory Negligence.
    Where a shipper of live stock was negligent in failing to unload it on arrival so that it was injured, he could not recover for such injury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 931; Dec. Dig. <©¿3217(1).]
    4. Evidence <&wkey;67(l)— Presumption —Continuance oe Custom.
    Ordinarily, a custom once shown to exist is, in the absence of testimony showing its abrogation, presumed to continue.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 87; Dec. Dig. <&wkey;67(l).]

      5. Customs and Usages <&wkey;17 — Paeol Evidence— Contract foe Cakkiage oe Live Stock.
    In an action for damages to a shipment of live stock by the carrier’s failure to unload it on arrival, evidence of a former custom to unload stock shipped to that point when unaccompanied by caretakers was incompetent to abrogate the express terms of a shipping contract requiring the shipper to unload it, if the shipper upon a sufficient consideration executed such contract.
    [Ed. Note. — For other cases, see Customs and Usages, Cent. Dig. § 34; Dec. Dig. ; Evidence, Cent. Dig. § 1951.]
    6. Caeeieks <&wkey;228(3) — Live Stock — Negligence — Evidence.
    Such testimony was also incompetent as against the defendant on the issue of its negligence in failing to unload the stock on arrival, where the issue was as to what, under all the circumstances of the shipment, was required of the carrier in the exercise of due care.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 960; Dec. Dig. i§=^228(3).]
    Appeal from District Court, Wise County; F. O. McICinsey, Judge.
    Action by Sam Pavillard against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed, and cause remanded.
    Lassiter, Harrison & Rowland, of Ft. Worth, and McMurray & Gettys, of Decatur, for appellant. M. W. Burch-and R. E. Cars-well, both of Decatur, for appellee.
   CONNER, C. J.

This suit was instituted by the appellee in the district court to recover damages in the sum of $916, on account of alleged injuries to a shipment of 50 steers from Ft. Worth to Boyd, Tex. It was alleged that, when said cattle reached Boyd, the defendant railway company failed to unload them into its stock pens, and failed to notify plaintiff of their arrival, so as to enable him to unload them; that the delay in unloading them at Boyd caused them to become restless and fight each other and injure themselves; and that a hole was broken through the floor of one of the cars, and some of the animals got their legs through this hole, and thus injured themselves. The defendant denied the allegations of negligence, and averred that it handled the shipment under the usual printed shipping contract, which bound the shipper to load and unload the cattle,; that it transported the cattle promptly and without injury; that it expected the plaintiff to unload them at Boyd, as he had contracted to do; and that therefore he (the plaintiff), and not the defendant, was responsible for the delay and consequent injuries. The defendant further alleged that the cattle were infected with disease, and that whatever injuries they suffered during the time of. the shipment, or subsequently thereto, were the result of such disease, or of the inherent vice in the cattle. The case was tried on July 5, 1915, and judgment rendered in favor of the plaintiff for the sum of $400, from which the defendant has duly appealed.

In substance, the evidence' shows that the plaintiff, assisted by one Plaxico, purchased the cattle in controversy in Ft. Worth from the Witherspoon-McMullen Commission Company ; that the commission company obtained the shipping contract and billing from the railway company, and gave them to Plaxico; that the plaintiff, himself, was not in Ft. Worth when the cattle were shipped, having left for his home at 5 o’clock in the afternoon of the day, or night rather, upon which the cattle were shipped. The plaintiff, at the time he left Ft. Worth, expected the cattle to bo shipped out upon a local freight which customarily arrived at Boyd at about 10 o’clock a. m., but instructions were given by Plaxico, or the commission company, for the cattle to be shipped out on the first train, and it so happened that an extra, or special, train started out at 2:30 a. m., which was the first train upon which the cattle could have been shipped, and that this train arrived at Boyd at 4:30 o’clock a. m.; that Boyd was a night station and customarily closed during the night until 7:30 o’clock a. m., which was the regular time for the agent to resume his duties. On the night in question, it seems that the cattle arrived at Boyd at 4:30 o’clock a. m. of the morning upon which they had been shipped out of Ft. Worth; that neither the railway agent or other person was present to unload them, and they were permitted to remain in the cars and standing on the side track until, as the agent says, 8:20 the next morning, or, as a Mr. Baker, who testified in behalf of the plaintiff, says, 9 or 10 o’clock a. m. The plaintiff’s evidence further showed that on the morning of the cattle’s arrival he phoned to said Baker to assist him in unloading the cattle, which, as already stated, he did not expect to arrive until about 10 o’clock. However, when Baker on his arrival at the station found the cattle there, he, with others, unloaded them, and the plaintiff’s testimony tends to show that they were then very restless, had trampled one another, were bruised, some with their legs skinned by stepping into a hole in the bottom of one of the cars, and that on the same day the cattle were unloaded two of them died, and later four others also died. There is no evidence, other than as is possibly to be inferred from their condition, that the cattle were improperly handled or injured during the transportation between Ft. Worth and Boyd.

Appellant assigns error to the refusal of the court to give a special instruction peremptorily charging the jury that it was the duty of the plaintiff, Pavillard, to unload his cattle upon their arrival at Boyd, and not to find anything against the defendant railway company on account of any failure on its part to so unload the cattle. This requested instruction is based upon appellant’s insistence .that a provision of the shipping contract was controlling. It appeared that this shipping or stock contract, after its execution, was delivered to Plaxico, who forwarded it to the plaintiff, but it was not received by the plaintiff until some time after the arrival and unloading of the cattle at Boyd. The contract provided, among other things not necessary to notice, that:

“In consideration of free passage for caretakers, as hereinafter stated, and other privileges herein granted, it is mutually agreed between the parties hereto * * * that said shipper (Pavillard), at his own risk and expense, is to take care of, feed, water, and attend the said stock while the same may be in the stock yards of the carrier, or elsewhere, awaiting shipment, and while the same is being loaded, transported, unloaded and reloaded, and to load, unload and reload the same at sending and transfer points, and whenever the same may be unloaded and reloaded for any purpose whatever, and hereby covenants and agrees to hold said carrier harmless on account of any loss or damage to the said stock while being so in his charge and so cared for and attended to by him, or his agents or employes, as aforesaid, except such damages as may result from the negligence of the carriel-.”

The plaintiff had pleaded, among other things, that this contract, which was set forth in the defendant’s answer, was without consideration, and void; but this issue was not submitted.to the jury, the court in his charge assuming, in effect, that the carrier would be liable for the consequences of any negligence on its part in a failure to unload the cattle, and as it seems to us this view is correct. I'n fact, neither the plaintiff nor any one for him accompanied the shipment, and the billing had indorsed upon its face that no caretaker was in charge. So that it may be gravely doubted whether the provision of the contract pleaded was in any event in contemplation of the parties as an operative provision; but, whether so or not, the provision on its face did not exempt appellant from damages that might result from its own negligence, as indeed under our statute could not be legally done, and, even though it be assumed that the appellee contracted to unload his cattle at Boyd, it was nevertheless the duty of the carrier, when it found that the plaintiff was not there to receive his cattle and to unload them, to exercise at least ordinary care to preserve them from injury until the plaintiff could be notified of their arrival, and if, under all of the circumstances, ordinary care would have required the unloading of the cattle, the failure to do so would constitute negligence for the proximate results of which appellant would be liable under the law. True, the plaintiff himself may or may not have been guilty of negligence in his failure to be present and unload the cattle, and that such negligence contributed to the damages, in part at least; but that question relates to the defendant’s plea of contributory negligence, which is an altogether different issue from the issue of appellant’s negligence.

We think the court, however, did err, as presented in appellant’s ninth assignment, in refusing to give to the jury the following specially requested instruction, viz.:

“Gentlemen of the jury, if you believe from the evidence that the plaintiff was negligent in failing to appear and unload or take his said cattle promptly away from defendant’s depot, and that the said cattle wore thereby injured or damaged, you are instructed that the plaintiff cannot recover for any such injury or damage so occasioned, and you will not assess any such damage so occasioned, if any, against the defendant.”

As it seems to us, the evidence raised this issue. Plaintiff’s agent, Plaxico, ordered the cattle to go out on the first train leaving Et. Worth, and they went out on that train at an hour, which in the ordinary course of transportation would bring them into Boyd at 4:30 o’clock of the same morning. The evidence tended to show that plaintiff lived near Boyd, and must have known that it was a night station, and that in following its usual course of business the appellant company would have no one there to receive the cattle. No evidence is pointed out that Plaxico, plaintiff’s shipping agent, or the commission company, either did or did not notify the plaintiff, or the night agent of appellant at Boyd, of the hour of shipment. So that, as stated, we think it should have been left for the jury to determine whether, under all of the circumstances, plaintiff, in the exercise of ordinary care, should have been present to receive and unload his cattle. The issue was not otherwise submitted, and because of the court’s failure in this respect we think the judgment must be reversed.

We should, perhaps, in view of the reversal, notice some other questions not sufficiently disposed of in what we have already said. The plaintiff offered the testimony of one McGonigal, to the effect that it was the custom of the defendant company, while he was acting as its agent, from about the year 1906 until and during the year 1912, to unload cattle shipped to Boyd when unaccompanied by caretakers. The court received this testimony over the objection of the defendant that it was immaterial, incompetent, and that the testimony did not cover the period in question, which was in 1915, some two years after McGonigal ceased to be the agent at Boyd. It may be doubted whether the practice indicated by the witness can properly be designated as a “custom,” in the sense in which it is ordinarily used in treating that subject. It seems more in the nature of a simple practice or regulation on appellant’s part of doing business at Boyd during the period covered by the testimony of the witness. Ordinarily, a custom once shown to exist is, in the absence of testimony showing its abrogation, presumed to continue. 1 Jones on Evidence, § 58e, p. 288 ; 9 Eneyc. of Evidence, p. 915. Appellee’s insistence, therefore, that the objection that the testimony did not cover the period in controversy, goes rather to the weight of the testimony. than to its admissibility, seems well grounded. The testimony, however, was incompetent to abrogate the express terms of a contract to otherwise do, if in fact the plaintiff, upon a sufficient consideration, executed an operative contract to unload his cattle. It was likewise incompetent as against appellant on the issue of its negligence in a failure to unload the cattle at Boyd. In this respect the issue was not what had theretofore been the practice of appellant, but what, under all of the circumstances of the present shipment was required of appellant in the exercise of ordinary care. Possibly the testimony was admissible on the issue of plaintiff’s contributory negligence, if any, though we need not determine this question, as the point has neither been presented nor argued.

The testimony of the plaintiff complained of in appellant’s second and third assignments of error relating to the extent of the damages done to his cattle seems to us to be fairly within the rulings made in the cases of Railway Co. v. Eastin & Knox, 39 Tex. Civ. App. 579, 88 S. W. 530; C. R. I. & G. Ry. Co. v. Halsell, 35 Tex. Civ. App. 126, 80 S. W. 140; M., K. & T. Ry. Co. v. Cauble, 174 S. W. 880; M., K. & T. Ry. Co. v. Word, 51 Tex. Civ. App. 206, 111 S. W. 753. At least under the circumstances shown and under the court’s charge, no reversible error in this respect is shown.

No other question is presented that we deem it necessary to notice; but the judgment will be reversed, and the cause remanded, for the error noted.
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