author: PLEASANTS, C. J.

text:
    BETKA v. HOUSTON & T. C. R. CO. et al.

    (No. 7241.)
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 19, 1916.
    Rehearing Denied Nov. 16, 1916.)
    1. Commerce &wkey;>8 — Interstate Shipments— Statutes Governing.
    Where cattle are injured due to negligence of the carrier in an interstate shipment, the rights of the parties are fixed by federal statute and decisions, and state statutes as to validity of carriage contracts have no application.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. &wkey;>8.]
    2. Carriers <&wkey;230(5) — Interstate Shipments — Statutes Governing.
    Where the shipper had a contract for transportation of cattle at a reduced rate, which required notice and action within 40 days of discovery of damage, and declared the rights of the parties, it was not a question for the jury whether the contract entered into was reasonable.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 962; Dec. Dig. <@=>230(5).]
    3. Carriers <@=>230(6) — Interstate Shipments — Notice op Loss — Question poe Juey.
    Where the shipper could, immediately on arrival of the cattle, have determined the extent of their injuries due to the carrier’s negligence in an interstate shipment, but failed to give notice,- there was no question for the jury whether a contract, requiring notice and suit within 40 days of delivery, was valid.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 962; Dee. Dig. <@=>230(5).]
    4. Carriers <@=>228(2) — Conteacts—Consid-eration.
    There is no merit in the contention that the consideration for special conditions of shipping contract was invalid on the ground that the lesser rates therein provided for were contrary to the schedules approved by the • Interstate Commerce Commission, in the absence of evidence that the rate provided for was not one of two rates approved by the Commission.
    [Ed. Note. — For other cases; see Carriers, Cent. Dig. § 959; Dee. Dig. <@=>228(2).]
    5. Carriers <@=>204^-Interstate Shipments —Statutes—Construction.
    Where a carriage contract was executed prior to Act Cong. March 4, 1915, c. 176, 38 Stat. 1196, amending Hepburn Act June 29, 1906, c. 3591, 34 Stat.. 584, providing that no notice of claim or filing thereof shall be required as a condition precedent to recovery for damages to interstate shipments, but suit was brought after such enactment, it did not apply; there being nothing to indicate that it was intended to have any retroactive effect.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. § 927; Dec. Dig. <@=>204.]
    Appeal from District Court, Waller County; J. D. Harvey, Judge.
    Action by L. Betka against the Houston & Texas Central Railroad Company and others. From a judgment on directed verdict for defendants, plaintiff appeals.
    Affirmed.
    Meek & Kahn, of Houston, and Hannay & Hannay, of Hempstead, for appellant. Baker, Botts, Parker & Garwood, of Houston, and Garrett & Garrett, of Austin, for appellees.

      Application ior writ of error pending in Supreme Court.

   PLEASANTS, C. J.

This suit was brought by appellant against appellees to recover the sum of ?1,826.50 as damages for injury' to cattle shipped over appellees’ railway lines from Cheneyville, in the state of Louisiana, to Hockley, a station on the line of the Houston & Texas Central Railroad in the state of Texas. The cattle were shipped un-. der a written contract executed by an agent of appellant and an agent of the initial carrier, the Louisiana & Western Railway Company. The La Fayette & Alexandria Railroad Company and the Texas & New Orleans Railroad Company, the intermediate carriers, were sued with the other roads above named. The defendants answered, and each of them, among other defenses, specially pleaded the provisions of the contract of shipment hereinafter set out and the failure of plaintiff to comply with said provisions. After hearing the evidence the trial judge instructed the jury to return a verdict for the defendants, and upon the return of such verdict judgment was rendered in accordance therewith. The contract under which the cattle were transported by defendants’ railway lines contains the following provisions:

“Said party of the second part further agrees that as a condition precedent to his right to recover any damages for any loss or injury to said stock, he will give notice in writing of his claim thereof, before said stock is removed from the place of delivery of the same herein-before mentioned, and before said stock is mingled with other stock, to R. L. Wragg, station agent of said party of the first part at said company’s office at Cheneyville station, or in case said agent be not present at said office to receive said notice, then to that employé of said party of the first part at said station who represented said company in the actual delivery of said stock.”
“It is further mutually agreed and expressly provided that no suit or action against parties of the first part for the recovery of any claim by virtue of this contract should be sustainable in anjr court of law or equity unless said suit or action be commenced within forty days next after the damages • should have occurred; and should any suit or action be commenced against said party of the first part after the expiration of said forty days, the lapse of time shall be taken as being conclusive evidence against the validity of such claim; any statute of limitation to the contrary notwithstanding.”
“It is further mutually agreed that no suit be brought on any claim which may arise under this contract, unless such suit be- commenced within forty days next after the damage shall have occurred, and any suit brought thereafter shall be deemed conclusively barred and invalid.”

The evidence shows that the cattle were shipped from Cheneyville on the 24th or 25th of April, 1913, and reached Hockley a day or two thereafter. Some of them were dead in the cars when the train reached Hockley, some died in the railroad pens into which they were unloaded at Hockley, some on the way to appellant’s pasture, and one or more after being put in the pasture. Many of the remainder of the shipment were badly injured. The evidence shows that the loss of and injury to the cattle was caused by the negligent manner in which the defendants handled the train on which they were shipped, and that the damages sustained by plaintiff amounted to the sum of $1,800. This suit was filed on February 1,1915. As shown by an order of the court overruling a motion of plaintiff to submit the cause to the jury upon special issues, the trial judge was of opinion that the provisions of the contract that no suit could be maintained on any claim thereunder unless brought within 40 days after the damages claimed occurred, was not unreasonable, and was binding upon 'the plaintiff as a matter of law, and as the undisputed evidence showed that the suit was not brought within 40 days after the damages occurred, the defendants were entitled to have the jury instructed to return a verdict in their favor. '

We do not think the trial court erred in this view of the law applicable to the case made by the pleadings and evidence. The shipment was interstate, and the rights of the parties under the interstate contract of shipment are fixed by the federal statute and decisions, and our state statute, declaring any contract or agreement unlawful in which the time to sue thereon is limited to a shorter period than two years, has no application. This was the ruling of the Supreme Court of the United States in the case of Railway Co. v. Harriman Bros., 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690, and that decision has been uniformly followed by both federal and state courts. Railway Co. v. Langbehn, 158 S. W. 244; Railway Co. v. Word, 159 S. W. 379.

Prior to the enactment of the statute above mentioned (article 5713, Revised Statutes 1911) our Supreme Court held that the only limitation on the right of railroads to limit the time in which suit could be brought on a contract of shipment was that the time fixed must not be unreasonable, and that it was not unreasonable to require that suit be brought within 40 days after the damage occurred. Railway Co. v. Trawick, 68 Tex. 314, 4 S. W., 567, 2 Am. St. Rep. 494; McCarty v. Railway Co., 79 Tex. 33, 15 S. W. 164; Railway Co. v. Gatewood, 79 Tex. 89, 14 S. W. 913, 10 L. R. A. 419.

The Supreme Court of the United States has held in a number of cases that such time limit for bringing suit was reasonable. Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Railway Co. v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690; Railway Co. v. Cramer, 232 U. S. 490, 34 Sup. Ct. 383, 58 L. Ed. 697; Railway Co. v. O’Connor, 232 U. S. 508, 34 Sup. Ct. 380, 58 L. Ed. 703; Railway Co. v. Robinson, 233 U. S. 173, 34 Sup. Ct. 556, 58 L. Ed. 901.

In the Harriman Case above cited it is held the reasonableness of a stipulation of this kind in a contract of shipment is a question of law to be determined by the court.

It would seem that whatever might be the rule in our state courts where the contract is one to be wholly performed in this state, when the contract is for an interstate shipment the ruie announced by the Supreme Court of the United States must control, and the question of the reasonableness of the contract is not one of fact to be tried by the jury. Railway Co. v. Word, 159 S. W. 379. If, however, the rule was otherwise and a plaintiff, upon showing facts which would justify the jury in finding that, he could not, by reasonable diligence, have brought his suit within the time stipulated in the contract, would be entitled to have the jury determine whether the time stipulated should be enforced, no such facts were shown in this case. The only reason offered by the plaintiff for his failure to bring the suit within the 40 days was that he could not knov) the extent to which the cattle were injured until he had given them time to recuperate, and for this reason he could not accurately determine the amount of damage within the 40 days. He testified that he saw the condition of the cattle when they arrived at Hockley, knew the number of dead, and saw the external injuries which the others had received, and reasonable minds cannot differ in the conclusion that he could have ascertained the approximate amount of his damage in ample time to have filed his suit in 40 days. He was not required, in order to bring his suit, to know with absolute accuracy the amount of his damage. Such being the state of the evidence even under the rule contended for by the appellant, there was no issue of fact to submit to the jury on the question of the enforceability of the contract.

There is no merit in appellant’s contention that the provision in the contract that no suit thereon can be maintained unless brought within 40 days after the damage claimed occurred is invalid because the consideration for such agreement was illegal, or because there was no consideration therefor. The first paragraph in the contract of shipment contains the following clause:

“That whereas, the said party of the first part transports the live stock covered by this agreement, at the reduced rates named herein, only as per the following rules and regulations.”

Following this clause are the various provisions and agreements contained in the contract, among which is the 40-day limitation agreement. Appellant insists that the clause in the contract above stated shows that the consideration.for the contract was the transporting of the cattle at a less rate than that authorized by the rates prescribed by the Interstate Commerce Commission, and therefore was an illegal consideration. The evidence does not show what rates were prescribed by the Interstate Commerce Commission, and it is not shown what the term “reduced rates,” as use.d in the contract, meant. It is fair to presume that it referred to tlíe less of two rates allowed by the Commission. The contract contains a number of provisions requiring the shipper to perform various services, and assume liabilities in connection with the shipment which are not necessarily required of shipper of live stock, and it is not improbable that the Commission prescribed a different rate for shipment under contracts of this kind from those prescribed under contracts that did not contain such provisions. The following indorsement appears across the face of the contract:

“Subject to correction as to rates, weights and classification so as to conform to the rates, rules and regulations prescribed by the Railroad Commission.”

The statement of facts shows that it was agreed by the parties upon the trial:

“That the contract of shipment was made on the published tariff rate and according to the provisions and limitations as shown by the contract.”

In the absence- of any evidence showing that the rate was unauthorized, we cannot see how it can be seriously contended that the rate charged was illegal. Neither the pleadings nor evidence raised the issue of want of consideration for the contract; and that issue is certainly not in the case. Newton v. Newton, 77 Tex. 508, 14 S. W. 157.

By an act approved March 4, 1915, Congress amended the Hepburn Act, regulating interstate commerce by inserting therein the following provision:

“That it shall be unlawful for any such common carrier to provide by rule, contract, regulation, or otherwise a shorter period for giving notice of claims than ninety days and for the filing of [such] claims for a shorter period than four months, and for the institution of suits than two years; provided, however, that if the loss, damage, or injury complained of was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery.”

This act was in effect at the time of the trial in the court below, and appellant contends that the question of the validity of the 40-day limitation clause in the contract is controlled thereby. This contention cannot be sustained. The contract sued on was executed, and the rights and liabilities of the parties therein fixed long before the passage of the act. If Congress had authority to pass a law impairing the obligation of a contract, there is nothing in the language of the act to indicate that it intended it to have any retroactive effect.

The rule that an executory contract for the performance of an act, made illegal after the contract was entered into will not be enforced, has no application to an executed contract. The Supreme Court of Alabama in the ease of Railway Co. v. Bynum, 69 South. 820, holds the act above mentioned does not affect rights of actions which accrued prior to the passage of the act. This holding seems to us to be obviously sound.

We have considered and discussed all of the material questions presented by the record, and from the conclusions above expressed it follows that the judgment of the court below should be affirmed; and it has been so ordered.

Affirmed.
      (SxxoFor other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes

      ©=>Bor other cáses see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    PECOS & N. T. RY. CO. v. HALL.

    (No. 1032.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 18, 1916.
    On Motion for Rehearing, Nov. 22, 1916.)
    1.Commerce ®=>10 — Concurrent Powers oe State.
    Where the federal and state governments have concurrent power, and the federal government is inactive, the state’s power may be executed.
    [Ed. N<fte. — For other cases, see Commerce, Cent. Dig. § 8; Dec. Dig. <®=^>10.]
    2. Commerce <§==>8 — Interstate Shipment-Live Stock.
    The federal government’s power as to interstate shipments is paramount, and, when the interstate transportation of live stock is taken under direct federal supervision and a system devised by which diseased stock may be excluded from interstate commerce, any state regulations in respect thereto cease to have any force, and the acts of Congress and the regulations thereunder will alone control.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. <©=>8.]
    3. Carriers «^=206 — Interstate Shipment oe Live Stock — Statute—Damages.
    Under Act Cong. March 3, 1905, c. 1496, §§ 1, S, 4, 33 Stat. 1264 (U. S. Comp. St. 1913, §§ 870Í, 8703, 8704), and the express provision of a federal quarantine regulation adopted thereunder, cattle which had been exposed to disease, might, without inspection, be shipped as un-inspected exposed cattle for immediate slaughter from quarantined territory to slaughtering centers in another state, where separate pens are provided for yarding exposed cattle, so that a carrier, refusing to accept them for shipment unless they were dipped, was liable in damages for the consequent shrinkage and injury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 916, 917; Dec. Dig. <©=5206.]
    4. Appeal and Error ¡©=5725(1) — Assignments of Error — Exclusion of Evidence.
    Where there was no assignment as to the sustaining of the demurrers to an answer, assignments as to the exclusion of the paragraphs of a contract set up in the answer were wholly abstract and inapplicable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3002, 3003, 3005; Dec. Dig. (©=5725(1).]
    Appeal from District Court, Potter County ; Hugh L. Umphres, Judge.
    Action by J. F. Hall against the Pecos & Northern Texas Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Terry, Cavin & Mills, of Galveston, and Madden, Trulove, Ryburn & Pipkin, of Amarillo, for appellant. R. R. Hazlewood and J. Marvin Jones, both of Amarillo, for appel-lee.

      Application for writ ci error pending in Supreme Court.

   HENDRICKS, J.

The appellee, Hall, in the fall of 1913, contracted for 498 head of cattle from Warren & Son, to be delivered to him on or before November 1st, at Bovina, Tex.; said station being on the line of the appellant railway, and said cattle to be delivered for the purpose of shipment to the open market. On the 14th day of October he ordered from the chief dispatcher of the appellant in Amarillo, Tex., cars for the purpose of shipping said cattle, who agreed to furnish the cars at Bovina on the 24th of' October. Appellee’s trade with Warren & Son, with reference to the purchase and delivery of said cattle, was that the same were to be cut in the pens at their pasture, five miles from Bovina, on the morning of the 24th. The agent (Lucas) of the Pecos & Northern Texas Railway Company at Bovina refused to furnish1 the cars for the* transportation of the cattle until said cattle were dipped and a permit issued. The cattle were exposed to a disease known as “scabies”; but the appellee testified that under his contract he was not to receive any cattle infected with such disease, and did not receive any cattle so infected.

On account of the action of the railway company, in refusing to furnish the cars, and its insistence that the cars would not be furnished or the cattle shipped unless the same were dipped, the cattle were not brought in or tendered for shipment on the 24th of October, but were held on the ranch of Warren & Son, and there dipped in compliance with the railway’s demand. The particular cattle were specifically purchased by Hall, for the purpose of shipment to the open markets of Kansas City and St. Joseph, Mo., and were fat cattle, eligible for that purpose. The cattle were dipped twice, with' tobacco dip, and on account of the handling and dipping of the same a resultant shrinkage and injury to said cattle produced damage which the jury assessed at $4,460.69.

It was impracticable for the appellee, after having been informed that this particular railroad would not ship his cattle, except under the conditions as stated, to take the cattle to any other railroad for the purpose of shipment, it being 100 miles to another road over which they could have been shipped to market, which' would have required a week to have driven said cattle to that point. Bailey and Parmer counties, in the state of Texas, in which said cattle were located, were at the time in a quarantined territory, on account of the disease known as “scabies,” the quarantine having been effectuated by a regulation and promulgation of the state authorities, as well as the federal Bureau of Animal Industry. The particular shipment was interstate, and hence, as applied to the immediate “transportation,” the regulations, .hereafter shown, promulgated by the Bureau of Animal Industry of the Department of Agriculture, if applicable, will control.

It is assigned and argued that neither under the regulations of the Bureau of Animal Industry, nor the state law and the regulations of the Live Stock Sanitary Commission, was the plaintiff entitled to recover. The last act affecting this subject passed by Congress on March 3, 1905, is entitled:

“An act to enable the Secretary of Agriculture to establish and maintain quarantine districts, to permit and regulate the movement of cattle and other live stock therefrom, and for other purposes.” 33 Statutes at Large, Í264, United States Compiled Statutes, 1913, § 8701.

Section 1 of this act provides:

“That the .Secretary of Agriculture is authorized and directed to quarantine any state,” or portion thereof, “when he shall determine the fact that cattle or other live stock” therein “are affected by any contagious, infectious, or communicable disease,” etc.

A railroad company is prohibited from receiving for transportation any live stock from any quarantined state, or quarantined portion of any state, except as provided in the act. Section 3 of the act provides for the promulgation of rules and regulations by the Secretary of Agriculture, permitting a method and manner of inspection, delivery, and shipment of cattle from such quarantined territory, “when the public safety will permit.” Section 4 of said act provides:

“That cattle or other live stock may be removed from a quarantined state * * * under and in compliance with the rules and regulations of the Secretary of Agriculture, made and promulgated in pursuance of the provisions of section 3 of this act; but it shall be unlawful to move * * * any cattle or other livestock from an quarantined state * * * or quarantined portion of any state * * * into any other state, * * * in manner or method or under conditions other than those prescribed by the Secretary of Agriculture.”

A part of regulation 21 of the federal quarantine regulations is as follows:

“Cattle not visibly diseased, but which may be a part of a diseased herd, may, without inspection, be shipped interstate as ‘uninspected exposed cattle’ for immediate slaughter from points in the quarantined area to any recognized slaughtering center where separate pens are provided for yarding exposed cattle,” etc.

As stated, these cattle were to be shipped to St. Joe and Kansas City, where, according to the testimony, the facilities mentioned were provided for the reception of the character of cattle purchased. We do not think it is necessary to prolong this opinion with a reproduction, and an analysis, of the state-law and the Live Stock Sanitary Commission’s regulations urged by appellant as defense to appellee’s cause of action.

There is some controversy, in the condition of the testimony, whether any of the particular cattle were actually infected with the disease designated as “scabies.” Hall’s trade, however, with Warren & Son, was that he was not to accept any diseased cattle. He-had a “10 per cent, cut” on all spayed heifers purchased by him, and if we read the record correctly, on October 23d, there were 695-head of “Mule Shoe” cattle dipped (owned by Warren & Son), and only 6 head of that number, as testified to by appellant’s own witness Keeliehor, were affected with the particular disease. Appellee, who saw the cattle prior-to the time of the dipping, and thereafter at the pens preparatory to shipment, testified" that none of his cattle were affected with scabies, though it is uncontradicted that the-same had been exposed to the disease.

It is, of course, the general rule that,, where the federal and state government have-concurrent power, if the federal government is inactive, the state’s power may be executed; the corollary to this, however, is that the-government’s power is paramount, and it is-the rule that, when the subject of the transportation of live stock from one state to another is taken under direct national supervision, and a system devised by which diseased stock may he excluded from interstate commerce, any state regulations in respect of such matters will cease to have any force. The acts of Congress and the regulations thereunder will alone control. Reid v. Colorado, 187 U. S. 137, 146, 23 Sup. Ct. 92, 47 L. Ed. 108. The veterinary inspector, Jones, testified:

“When I told the agent (meaning Lucas, the local agent at Hereford) that Hall had a right to ship these cattle as exposed cattle, he contended all the time that he would not accept them without a certificate or a permit.”

We are clear that the shipper had the right to pen and ship these cattle under the regulations of the Bureau of Animal Industry from Bovina to the open market for immediate slaughter, without the demand and the exaction by the railway company for the dipping (and certificate to that effect) of said cattle; and as applied to shipment for immediate slaughter, regarding the cattle as uninspected exposed cattle, the railroad company had no legal justification to make such a demand and refuse to furnish the cars for transportation, invoking any rule or regulation under the so-called authority of the state government.

Rule 20 of the Live Stock Sanitary Commission of Texas prescribes that cattle held in certain counties (including the two counties where these cattle were situated) shall not he moved from the pastures where cattle were located for any purpose whatsoever without a permit issued by a duly authorized inspector; and said rule further prescribes that:

No cattle shall be tendered for inspection for “interstate” movement situated in the quarantined area, “unless the owner of said cattle is in possession of a certificate, signed by an inspector, * * * stating that the owner of the cattle so tendered has complied with the state laws, rules, and regulations of this commission, and that his range and cattle are free of infection.”

We will not attempt to solve the question whether or not, after the Bureau of Animal Industry and the state had interdicted the same territory — the former, however, permitting nondiseased cattle, though exposed, to be shipped — the person moving said cattle (excluding the act of penning and shipping) would be guilty of a violation of the state law. We, however, think that, so far as any preliminary movement of the particular cattle is concerned, even if the state has a right to prohibit the same as between the state and the owner, the railroad, under the national act and the rules and regulations of the Bureau of Animal Industry, would have the right to ship said cattle after same had been penned for transportation; and as an agent of interstate commerce and as a common carrier it would be its duty to do so, because the national act, and the regulations under its authority, authorized it. To that extent, at least, the state law is superseded, and the question of its enforcement in other respects, as to the actual transportation of the cattle, is between the state and the citizen.

We are unable to infer from the' record that Jones advised the agents of the railway company that they had a right to demand that the cattle should be dipped as a prerequisite to an interstate shipment. He said:

“I told him [the agent] that according to the state regulation they could not come from the ranch without dipping, but according to the federal regulations they were entitled to go as uninspected exposed cattle for immediate slaughter. I do not remember just exactly what he said when I told him he had a right to ship these cattle as exposed cattle.”

Neither do we infer from the record that the inspector demanded of the purchaser or the vendor of the particular cattle that said cattle had to be dipped as a prerequisite to any movement. The only testimony is that the inspector sent word by certain parties who were going to the ranch where the cattle were situated:

“That the agent would not receive the cattle unless they had a permit. I also stated [to them] that I would not issue a permit unless the cattle were dipped.”

All assignments and propositions affecting the question of the sanitary regulations, interposed as a justification for the refusal to furnish the cars, and the consequent dipping of said cattle, are overruled.

The seventh and eighth assignments of error, in the condition of the record, present only abstract questions, and are unnecessary to discuss on the merits. Portions of the live stock contract were pleaded by the defendant railway company, asserting that the written agreement merged all prior understandings concerning the furnishing of cars, facilities for shipment, and the transportation of the stock. It is also pleaded that the contract provided that notice of a claim for damages for injury to the stock occurring during the transportation thereof, or previous to loading the same for shipment, would be given in writing to either of certain designated officers before the stock should be removed from the place of destination. The court sustained exceptions to these pleadings, and at the trial the defendant railway company offered such contracts in evidence, to which it was objected that there were no pleadings to sustain the same, and that they were immaterial and irrelevant.

There is no assignment challenging the action of the court in sustaining the demurrers to the answer, however erroneous that action may be; hence the assignments questioning the court’s action in excluding the paragraphs of the contract as evidence are wholly abstract, and inapplicable to the merits of the case. After the court had sustained exceptions to the answer, unless he revoked his action in that respect, lie could not have done otherwise than exclude the testimony.

The judgment is affirmed.

On Motion for Rehearing.

Aside, from the assignments based upon the court’s rejection of certain provisions in the live stoat contract, appellant’s assignments are as follows:

(1) The court erred in refusing a peremptory instruction.
(2) “The mam charge of the court is erroneous in submitting any issues of fact to the jury, since a peremptory instruction for defendant should have been given, because,” etc.
(3) “The verdict of the jury is contrary to the law and the evidence, in that under the law the facts of this ease show no liability upon the part of the defendant, because,” etc.
(4) “Paragraph 1 of the court’s charge is erroneous, in submitting to the jury the issue as to whether or not plaintiff was the owner of the cattle alleged in his petition,” etc.
(5) “The court erred in paragraph 1 of its charge, in submitting to the jury the issue as to whether or not the defendant, through its agent, announced that it would not transport plaintiffs cattle from Bovina, to Kansas City and St. Joseph, Mo., nor permit them to be placed in the pens at Bovina, nor loaded on the cars at said point, without their first being dipped, without a certificate or permit, because the same is upon the weight of the evidence, * * * and because a mere announcement by defendant’s agent would not authorize the plaintiff to act thereon,” etc.
(G) “The court erred in excluding as evidence, and instructing the jury not to consider, the rules and regulations of the Live Stock Sanitary Commission of Texas, and in withdrawing them from the jury.”

The trial court charged the jury in part as follows:

“If you find and believe from the evidence that plaintiff was the owner of the cattle alleged in his petition, and that same were unin-spected exposed cattle,1 and that they were not infected with scabies or other communicable disease, and that from defendant plaintiff ordered cars in which, on October 24, 1913, to transport such cattle from Bovina, Tex., to Kansas City and St. Joseph, Mo., for immediate slaughter, and that defendant, though its agent, before the time for such transportation, announced that it would not receive and so transport such cattle, and would not permit them to be placed in the pens or loaded on the cars without they were first dipped, or without a certificate or permit, and that such announcement, if any, of defendant was made known or in any way communicated to plaintiff, and that the only lawful way by which such permit or certificate could be obtained was for such cattle to be dipped, and that in compliance with such announcement, if any, plaintiff caused such cattle to be dipped, and that the same sustained the injuries, or any of them, alleged in plaintiff’s petition, and that the proximate cause of such injuries, if any. was the dipping of such cattle, then you will find for plaintiff and assess his damage, unless you find for defendant under other instructions given you.”

He also instructed the jury that if they believed the defendant’s agent Lucas did not announce that he would not permit plaintiff’s cattle to enter defendant’s pens, or to be loaded on defendant’s cars, or that said cattle would not be transported by defendant, unless they were accompanied by a permit, but that such statements were voluntarily made to R. V. Moorhead by the inspector, L. L. Jones, either in person or by sending such information by some other person, without having been so directed or advised by defendant’s agent, John Lucas, to find for the defendant. He also directed the jury, if they believed that the cattle in question were visibly diseased with scabies, to likewise find for the defendant.

With the exception of the peremptory instruction, there were none presented to the trial court by the defendant, at least none brought forward into the brief, upon any theory or phase of the evidence exonerating the railway company. Additional to the testimony of Jones, shown in the original opinion, who was both state and federal inspector, as to his communication to appellant’s agent in regard to Hall’s right to ship these particular cattle, the statement of facts contains the following by Jones:

“When I told the agent that Hall had a right to ship these cattle as exposed cattle, he contended all the time that he would not accept them without a certificate or a permit”

Moorhead had charge of the ranch of Warren & Son, who were to deliver the cattle purchased by Hall at Bovina, with a “10 per cent, cut.” Moorhead says that,, in addition to a message from Jones, he telephoned to Lucas, the agent at Bovina, who positively informed him that he would not receive these cattle for shipment, nor even let him pen the same until they were dipped, and that he then telephoned to Hall, the purchaser of the cattle.

We necessarily infer that the jury believed that Jones, as federal inspector, informed Lucas, the agent, that under the federal regulations these particular cattle, purchased by Hall, had the right to go to Kansas City, Mo., for immediate slaughter. If under the federal regulations a permit for that purpose was necessary to be issued by Jones, it inferentially follows that Jones, as federal inspector, would have issued such a document. It also follows, we think, logically, that the agent had no right to refuse to receive unin-spected, clean cattle in the pens at Bovina for shipment for immediate slaughter at Kansas City and St. Joseph, Mo., unless the same were dipped. We infer that Jones, as state inspector, would not have issued a permit for the movement of these cattle from Warren & Son’s ranch to the stock pens, but also conclude that, if a permit were necessary, he would have issued one as federal inspector, permitting the movement of the cattle to Kansas City and St. Joe, Mo., for the open market for immediate slaughter. To the extent of the movement of the particular cattle from the ranch to the stock pens, we think that Lucas, as the agent of the railway company, had no legal concern. If uninspected clean cattle, though exposed to the disease of scabies, had been in the pens preparatory to shipment to Kansas City for immediate slaughter, and the federal inspector passed tlie shipment, it is clear to us that the railroad company, under the federal regulations, should have transported the cattle. The trial court’s charge is a simple presentation of the issues without any substantial technical objection to the same.

It is denied in the motion for rehearing that facilities existed in St. Joe and Kansas City, Mo., for the purpose of taking care of the class of cattle mentioned in this record. Dr. Pearson, employed by the United States Department of Agriculture as a veterinary inspector, in testifying in regard to the interstate shipment of uninspected exposed cattle, and the rules regulating the transportation of same, said:

“They have such pens as required by the above rule at both St. Joe and Kansas City, and did have in 1913.”

The motion for rehearing is overruled.
      <B=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    CONVERSE et al. v. GALVESTON CITY CO. et al.
    (No. 7135.)

    (Court of Civil Appeals of Texas. Galveston.
    Oct. 19, 1916.
    Rehearing Denied Nov. 16, 1916.)
    1. Corporations <@=>109 — Lost Certificate— Action to Establish Ownership — Question for Jury.
    In a suit against a corporation and the purchaser of its assets and stock to establish plaintiffs’ ownership of a certificate in the corporation and for a new certificate in lieu of an alleged lost trustee’s certificate for a share, and a right to share ratably with the other certificate holders in the accumulations of property and distribution on shares, evidence held to make plaintiffs’ ownership of the certificate a question for the jury, and to support a verdict for the defendants.
    [Ed. Note.- — For other cases, see Corporations, Cent. Dig. § 462; Dec. Dig. <@==>109.]
    2. Limitation of Actions <@=>103(3) — Lost Certificate — Action to Establish — Limitations.
    Where plaintiffs’ predecessor in 1881 petitioned a corporation for recognition as to the owner of a certificate and for the issuance of a renewal certificate showing such ownership, and such petition was refused by the company, plaintiffs’ suit, subsequent to 1909, to compel recognition of their ownership of the same certificate, was barred by the four-year limitations prescribed by Rev. St. 1911, art. 5690.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 508; Dec. Dig. <@=> 103(3).J
    3. Corporations <@=>109 — Lost Certificate —Suit to Establish Ownership — Identity of Certificate — Evidence.
    In a suit against a corporation and the individual claiming to have purchased all its assets and stock to establish plaintiffs’ ownership of a certain numbered certificate, and for a new certificate in lieu of an alleged lost trustee’s certificate, and for a share in accumulations and distributions, evidence held to show that a petition signed by plaintiffs’ predecessors to have a certificate issued to them placed on the company's books, in their name in lieu of the lost certificate, related to the same certificate.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 462; Dec. Dig. <@=>109.]
    4. Corporations <@=>109 — Lost Certificate —Petition to Establish Ownership — Resolution.
    In such suit, evidence held to show that a resolution on the minutes of the company denying the petition was a response to the petition.
    [Ed. Note. — For other eases, see Corporations, Cent. Dig. § 462; Dec. Dig. <@=>109.]
    5. Corporations <@=109 — Lost Certificate —Petition to Establish Ownership — Knowledge -of Resolution — Evidence.
    Evidence held to show that the parties to such petition by plaintiffs’ predecessor, or their attorney, had knowledge or notice of the resolution denying the petition at or about the date of its adoption.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 462; Dee. Dig. <@=>109.]
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Suit by Thomas Pierce Converse and the Second Presbyterian Church of the City of Houston against the Galveston City Company and Maco Stewart. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    Geo. E. Mann, of Galveston, and Ramsey, Black & Ramsey, of Austin, for appellants. Maco Stewart, Edw. F. Harris, and Barret Gibson, all of Galveston, and Clarence Mil-heiser, of Houston, for appellees.

      Writ of error pending in Supreme Court.

   LANE, J.

For the purpose of a comprehensive understanding of the nature of this cause and of our opinion to follow, we at the outset make the following statement, which we deem sufficient:

In 1836, the republic of Texas granted to M. B. Menard the league and labor of land, the present site of the city of Galveston. Menard had nine associates, including A. C. Allen, J. K. Allen, Samuel M. Williams, Wm. Hardin, and Thos. F. McKinney. Title was issued direct to Menard. Menard authorized one David White to issue certificates, each for an undivided i/iooo interest in the land. One of the White certificates was issued to one Jenkins, styled certificate numbered 2 out of Book B. Subsequently on June 20, 1837, Menard and Robert Triplett (the latter claiming an interest in a part of the league and labor adverse to the Menard Title) conveyed the league and labor to Levi Jones, Thomas Green, and William R. Johnson, as trustees, authorizing them (ot any two of them) to issue 1,000 certificates against the property, and reciting that 400 thereof should be used to take up the 400 certificates that had theretofore been issued by Levi Jones, and directing that the said trustees sell the remaining 600 certificates at not less than $1,500 per share, which 600 certificates should be represented % by Me-nard and those claiming under him, and Vs by Triplett and those claiming under him. The recital in said deed of trust that Levi Jones had issued 400 shares was a fiction, as Jones had never issued any certificates, and was intended to cover the certificates that had been theretofore issued by David White.

In April, 1888, M. B. Menard and other persons, whose identity is unknown, met at Galveston and organized an unincorporated partnership styled the “City of Galveston.” The meeting elected Menard president, and J. K. Allen, Mosely Baker, William Hardin, and Thos. P. McKinney directors, authorized the preparation of by-laws, directed that a deed to the league and labor of land be secured from the trustees, Jones, Green, and Johnson, created the office of agent (same as secretary and treasurer), and instructed that a charter be procured.

On December 31, 1838, the company adopted a by-law, reciting that:

“It shall be the duty of the holders of certificates (meaning certificates that had been issued by Jones, Green, and Johnson) to file and register them, receiving in lieu thereof a certificate under the seal of the company, stating the number of shares to which the party is entitled, which last certificate shall not be transferable except on the books of transfer of the company.”

In 1839, the trustees conveyed the land to the president and four directors of. said city of Galveston, unincorporated. On July 29, 1840, the company directed that the agent, in opening a new stock ledger, shall express therein only shares issued by the company in conformity with said order of December 31, 1838.

The 1,000 certificates to be issued by the trustees were printed and bound in five books lettered “A,” “B,” “C,” “D,” and “E.” Those in Books A and B were intended to be used in exchange for the certificates that had been previously issued by White. Those in Books C and D were “for the 400 shares to Menard.” All of said certificates out of Books A, B, C, and D were signed in blank by Thos. Green and delivered to Devi Jones. The certificates bound in Book E were by Green retained and “kept for the parties in interest under Triplett.”

Menard and Jones undertook, during the summer and fall of 1837, to sell the trustee certificates, “only intending to deliver the stock in case all could be sold.” They failed to sell any stock, and thereupoii “determined to come home and survey out the city, put up lots for sale, divide the stock among the parties entitled to it, and let them sell for themselves, or use the stock in buying property.”

White had issued a certificate styled No. 2, Book B, to one Jenkins. The form of trustees’ certificates in Book B recites that same is issued “in consideration of the return of the certificate of corresponding book and number as formerly issued by said Levi Jones (one of the first 400 shares).” This recital meant the return of White certificate of like book and number. White certificate B — 2, that had been issued to Jenkins, was exchanged to the company, and when so exchanged was indorsed as follows: “Forfeited and exchanged to D. White by M. B. Me-nard, L. Jones. Deposited by G. W. Grant.” The trustees’ certificates bound in said Books A, B, O, D, and E 'were each provided with a stub in the form of a receipt, to be signed for the certificate. The stub receipt for certificate B — 2 is dated October 2, 1837, and is signed by John K. Allen, and is indorsed on the back “exchanged for old one.”

The receipt given by John K. Allen for said certificate B — 2 is as follows:

“Book B. No. 2. Received, this second day of October, 1837, a certificate of one share in the city of Galveston, No. 2, and a copy of the deed of the 15th June, 1837, appointing Levi Jones, William Johnson and Thomas Green, Trustees, and also a copy of the terms offered by them to the purchasers of shares, which I do hereby adopt, and take said share subject thereto. Witness my hand and seal.
“[Signed] Jno. K. Allen. [L. S,]
“Signed and sealed in presence of
“[Signed] Samuel M. Williams.”

J. K. Allen and A. O. Allen were universal partners prior to and up to June 16, 1838, and all properties in the name of either of them were owned one-half by each.

J. K. Allen died on the 15th day of August, 1838, unmarried and intestate, leaving surviving him a father and mother, Roland and Sally Allen, and his brothers A. O. Allen, his partner, H. R. Allen, S. L. Allen, George Allen, and Harvey Allen. Shortly after his death, A. O. Allen administered his estate. He closed the estate by sale of the property belonging thereto, as well as his own property, to his brothers, H. R. and S. L. Allen. Subsequently H. R, and S. L. Allen transferred the entire assets of the copart-nership of A. G. and J. K. Allen to J. S. Holman for the benefit of their creditors under the direction of the said A. C. Allen, thus apparently passing the interest, if any, that J. K. Allen owned in certificate B — 2 to J. S. Holman.

On the 18th day of March, 1840,-H. R. Allen, George Allen, S. L. Allen, and Harvey Allen conveyed all interest which they owned in the property of J. K. Allen, deceased, to A. O. Allen, thereby transferring all interest they inherited in said certificate B — 2 from J. K. Allen, if any, to said A. O. Allen.

A. C. Allen died in the year 1862 and left surviving him his wife, Charlotte M. Allen, and a daughter, Martha E., who married James Converse, and they inherited all the. estate of said A. C. Allen.

James Converse and wife, Martha E., both died and left one child, T. P. Converse, plaintiff herein, who inherited their estate and their interest in said certificate B — 2, if any such they had. All interest of Charlotte M. Allen in said certificate, if any, passed to the appellant Second Presbyterian Church of Houston, by her will.

On the 5th day of February, 1841 (Laws 1840-41, p. 122), Congress of the republic of Texas passed an act incorporating the stockholders of the Galveston City Company without naming the stockholders or fixing the number of shares or capital of the company. This act provided that each stockholder should have one vote for each share that he owned.

In 1909, intending to dissolve the corporation, those claiming to he the owners of all the stock of said corporation sold to appellee Maco Stewart all the assets of said company and 24 shares of stock, which they claimed to be the entire stock of the company, and Stewart has ever since said sale asserted ownership thereto.

This suit was instituted by plaintiffs T. P. Converse and Second Presbyterian Church of the City of Houston, a corporation, hereinafter called appellants, against the Galveston City Company and Maco Stewart, appel-lees herein, in July, 1910, to require them to recognize the ownership of appellants in and to said certificate B — 2, and for a new certificate in lieu of said alleged lost trustees’ certificate for said share, and that they have a decree entitling them to share ratably and as fully as the other certificate stockholders have done, in all rents and accumulations of property of whatever nature by said company distributed to any share or shares since the date of issuance of said certificate to said J. K. Allen, deceased, and that appellants be decreed any division or distribution of assets in which their portion was set aside for the benefit of said one share, any accumulation of property of whatever nature to which said one share was entitled as their portion of dividends, etc.

Defendants answered and specially excepted to plaintiffs’ petition: First, because it appears therefrom that the alleged cause of action is a stale demand, and because of •laches and long delay in asserting their rights and the impossibility of obtaining proof of the matters in controversy, and hearing should not now be had. Second, they excepted to said demand because it showed upon its face that it was barred by the statute of limitation, and by many other exceptions, all of which were overruled by the court.

Appellees denied generally each and all of the material allegations of appellants’ petition by which they sought to acquire recognition of their ownership in said certificate B — 2. They denied that said certificate B — 2 was ever issued to said J. K. Allen, deceased, and say that if it was so issued said J. K. Allen, or his partner, A. C. Allen, disposed of the same before the death of either of them, and that said certificate had been returned to said company, transferred to it, and canceled, and that if said Allens, or either of them, were ever the owners of said certificate, neither they nor any one claiming under them had any interest or ownership therein at the time of filing of this suit, or at any time after the death of either J. K. or A. 0. Allen. They also pleaded the statute of limitation in bar of appellants’ right to recover.

The cause was submitted to a jury selected by the parties under the instructions of the court as follows:

“(1) This is a suit by Thomas P. Converse, and the Second Presbyterian Church of Houston, a corporation, to establish their right to one share of stock in the Galveston City Company, and for relief against Maco Stewart individually on account of bis alleged conversion of the assets of the company.
“(2) They claim that their right to the said share of stock is derived through their ownership of lost trustees’ certificate B — 2, issued to John K. Allen by Thomas Green and Levi Jones, trustees under the conveyance made to them by the proprietors of the land on which the city of Galveston is situated, dated June 15, 1837, said certificate being dated October 2, 1837. They deraign their claim of title to said certificate from John K. Allen, through his brother A. C. Allen and Charlotte M. Allen, wife of the said A. C. Allen, and Martha E. Converse, their daughter, and her husband, James Converse.
“(3) The defendants deny that plaintiffs are the owners of said certificate, and say that it was long since assigned or sold by John K. Allen or A. C. Allen, or by them or one of them sunk in and absorbed by the company. They also plead the statute of limitations of four years.
“(4) The burden of proof is on the plaintiffs to establish their present ownership of the lost certificate by a preponderance of the evidence, and if they have done so they are entitled to recover, unless defeated by the statute of limitations as hereinafter instructed. But if they have not done so, then the law is for the defendants. In determining this question of ownership, as in determining every fact in the case, you will look to all the facts and circumstances relating thereto in evidence, applying thereto your best judgment and your experience in the affairs of common life.
“(5) If you believe from the evidence that the petition signed by Charlotte M. Allen and James Converse, and purporting to be signed also by Martha E. Converse, admitted to be in the handwriting of F. Barnard, an attorney at law, since dead, referred or related to the certificate in controversy, and that the resolution on the minutes of the company of the 22d of March, 1881, was adopted in response to said petition, and further believe that the parties signing the same or their attorney had knowledge or actual notice of the same at or about the time of its adoption, then the law is for the defendants on the issue of limitation. But if you do not believe that said petition related or referred to said certificate, or do not believe that said resolution related or referred thereto, or if you do not believe that the parties thereto had knowledge or notice thereof, then the law on this issue is for the plaintiffs.
“(6) Applying these instructions, you are required to answer the following questions: (1) Does it appear from the evidence that the plaintiffs are the present owners of the lost certificate B — 2? Answer, ‘Yes,’ or ‘No.’ (2) Did the instrument referred to in the fifth paragraph of this charge relate to said certificate? Answer, ‘Yes,’ or ‘No.’ (3) Was the resolution on the minutes of the company of the 22d of March, 1881, a response to said petition? Answer, ‘Yes,’ or ‘No.’ (4) Did the parties to said petition, or their attorney, have knowledge or notice of said resolution at or about the date of its adoption? Answer, ‘Yes,’ or ‘No.’ ”
At the request of defendants the following special charge was also given:
“The jury will inquire whether they will or not indulge the presumption of a transfer by J. K. Allen or A. C. Allen of said certificate, oi‘ a settlement made therefor by the Galveston City Company. The law on this point is that a transfer or settlement may he shown by circumstances, like any other fact; the presumption being a question for the determination of the jury. If then the jury believe upon a fair consideration of all circumstances in the case (those which the jury may believe to repel as well as those which the jury may believe favor such presumption) that the circumstances are consistent with the inference or presumption that such transfer or settlement was made as claimed by defendants, and that in view of all the circumstances it is more reasonably probable that such transfer or settlement was made, than it was not, then the jury are at liberty to presume and find that it was ; and, if the jury deciding the issue in favor of the weight of the evidence on the point to be determined by them do so presume and find, you will answer question No. 1 with the word, ‘No,’ but if the jury do not so presume and find you will answer question No. 1 with the word, ‘Yes.’ ”

The jury answered the questions submitted as follows:

“We, the jury, in answer to the questions propounded by the court, respond as follows: (1) Does it appear from the evidence that the plaintiffs are the present owners of the lost certificate B — 2? Ño. (2) Did the instrument referred to in the first paragraph of this charge relate to said certificate? Yes. (3) Was the resolution on the minutes of the company of the 22d of March, 1881, a response to said petition? Yes. (4) Did the parties to said petition, or their attorney, have knowledge or notice of said resolution at or about the date of its adoption? Yes.”

Upon the verdict and answer of the jury the court rendered judgment for defendants, Maco Stewart and Galveston City Company. Prom this judgment both the plaintiffs have appealed.

The substance of appellants’ first assignment of error is that the court erred in submitting the question of the ownership of said certificate to the jury and in not peremptorily instructing them to return a verdict for plaintiffs as requested. Under this assignment appellants present the following propositions:

Pirst. “The evidence was undisputed that the share of stock in question was issued to John K. Allen, and that the appellants claiming through and under him were entitled to the same.”
Second. “The defense of limitation was not raised by the evidence and was not available to the defendants for the reason that the resolution of March 22, 1881, relied upon by the defendants as a repudiation of the claim and interest of the appellants’ ancestors and predecessors in title, was not a repudiation thereof, but was, in substance and effect, an admission of such interest.”
Third. “The defendant company, being a trustee for its stockholders, could not defeat the title of plaintiffs by relying on the statute of limitation without showing a distinct and unequivocal termination of the trust by repudiating the title of plaintiffs or their predecessors in title, and by assertion of title in itself; and appearing that this resolution was not such a repudiation, the issue of limitation was not raised by the evidence.”
. Pourth. “There was no evidence that trustees’ certificate B — 2 had ever been transferred to any other person by J. K. or A. 0. Allen, and no evidence upon which to base a presumption of transfer.”
Fifth. “There is no evidence of any character in the record showing that this share has ever been surrendered to, canceled by. or settled with the defendant company, and no evidence upon which to presume such surrender, settlement, or cancellation. On the other hand, the evidence is undisputed and affirmative that the share is outstanding.”
Sixth. “The evidence introduced on the issue of limitation shows no defense for the reason that it appears that the Galveston Gity Company was a trustee for its shareholders, and that, before it could rely on the plea of limitation to defeat the right and title of a shareholder, it must appear that it surrendered its trusteeship and renounced its holding as such, and it cannot, while holding the property of the corporation, assert title in and for itself to certificates of shares of stock in the corporation.”
Seventh. “Plaintiffs having proven a prima facie case by_ undisputed evidence, and the defendants having failed to sustain with any evidence aiiy of the defenses alleged, there was no issue for the jury, and the court should have given a peremptory instruction for plaintiffs.”

We think the undisputed evidence shows that the certificate in question was issued to John K. Allen, and upon examination of the court’s charge we find that the trial court so assumed. There were practically but two questions submitted to the jury by the court, which were:

Pirst. Are the plaintiffs the present owners of said certificate?

Second. Was the cause of action alleged by plaintiffs barred under the statute of limitation?

We think the action of the court in submitting the first question was authorized and the verdict of the jury supported by the following evidence relied upon by the defendants, to wit:

J. IC and A. O. Allen were two of the original directors of the unincorporated company. The company in 1838 adopted a by-law requiring that trustees’ certificates be surrendered and that the partners of the company take out a renewal certificate stating the number of shares to which the party was entitled. In 1840, the unincorporated company directed that the agent open a stock ledger and show therein only those who held certificates issued in the name of the company. A. 0. Allen, the surviving partner of the partnership of J. K. & A. O. Allen, in accordance with said order of 1838, took out a certificate showing that the interest then held by the Allens in the company amounted to 43 shares. There was testimony to the effect that the stock account of Allen was opened and closed and that the entire interest of the Allens was represented by said renewal certificate. Trustees’ certificates out of Book B were issued in consideration of the return of the certificates of like book and number formerly issued by White. The record of certificate B — 53, as it appears upon the stock register, has a diagonal line drawn in the column and at the place left for the insertion of the name of the person to whom it was originally issued. Plaintiffs concede that said certificate B — 53 has been taken up and canceled by the company. B — 2, the certificate ■ in question, appears upon tlie agent’s report and stock register in exactly tlie same manner as said certificate B — 53; tliat is, tliere was a diagonal line drawn opposite to tlie number of said certificate in tlie column left for tbe name of the party to whom it was issued. The testimony of Cole in the Scott Case in 1869, admitted in evidence, was to the effect that the two Allens were among the original proprietors and that none of the original proprietors were among the stockholders at that time.

An examination of the agent’s report and stock ledger shows that J. K. Allen owned two certificates, to wit, B — 1 and B — 2. There was testimony to the effect, which we think undisputed, that Allen sold B — 1 to James Hamilton and that he sold one certificate to J. J. Henderson. If in fact he owned only two certificates, the one sold to Henderson must have been B — 2, or at least the jury were justified in so concluding.

. A. C. Allen, surviving partner of the partnership of J. K. & A. C. Allen, transferred the estate of J. K. Allen which was the property of the firm to H. R. and S. L. Allen, and subsequently they, by the direction of A. C. Allen, transferred the entire estate of the firm of J. K. & A. C. Allen to J. S. Holman. It would thus appear that such rights as the firm of Allens had in said certificate B — 2, if any, was passed to Holman. At least, the jury was justified in so concluding from the testimony.

In October, 1840, A. C. Allen, surviving partner, appointed Menard attorney and agent to close all business the said Allens had with the company. The evidence introduced by the defendants tends to show that, while these transactions were being had, the Allens were notoriously insolvent, and owed the company over $100,000, which they were unable to pay. It might be sáid that, as Menard was at that time president of the company and was an intimate friend of both the Allens, had the Allens owned a share of stock of the company he would have known it and in settling the indebtedness of the Allens would have acquired for the company said certificate B — 2. Menard was authorized by Allen to close all business with the company. Menard, as before said, was president of the company. The jury had the right to find from the evidence that the marking of this certificate B — 2 in the same manner as B — 53 was marked on the agent’s report and register was intended to show that said certificate B, — 2 had been canceled, and especially so when it was shown that Menard was authorized by the Allens to cancel all business with the company.

Prom among the papers of Allen introduced in evidence there were produced five notes executed by Allen to the company, aggregating the sum of $84,300, payable to Galveston City Company, and across the face of each was written, “Paid by stock surrendered and canceled,” and signed, “Borden, Agent.”

In 1847, Allen addressed a petition to the company reciting his financial distress, that he “was once one of the largest stockholders,” that he had used his wife’s means, which he was unable to return, and that, feeling a desire to make reparation for the same, asked in her name that privilege be granted to construct a wharf as he contemplated making it available, by the use of his wife’s means.

In 1853, Charlotte M. Allen petitioned the company reciting the former petition, and the fact that the company had granted the same, and stated that she had been pecunia-rily embarrassed, and asked further time in which to construct the wharf.

A. C. Allen, the surviving partner, died in 1862. An inventory of his estate was filed and does not show that he had any stock in the Galveston City Company.

We think the evidence already stated was sufficient to authorize the court to submit the questions complained of and was amply sufficient to authorize the jury to find that the plaintiffs did not own the certificate B — 2 in question at the time of the trial of this case. We therefore overrule the first, fourth, fifth, and seventh propositions under the first assignment.

By propositions 2, 3, and 6 under the first assignment, it is insisted, in substance, that the undisputed evidence shows that appellants’ demand was not barred by the statute of limitation, and that the court erred in not so instructing the jury, first, because even if those under whom appellants claim certificate B — 2 had petitioned the directors of the company in 1881 to recognize them as owners of said certificate B — ■2 and to issue to them a renewal certificate therefor and that they had notice of the resolution passed by said directors refusing to issue' said renewal certificate for the reasons given in the resolution passed by them on the 22d day of March, 1881, such resolution was not a repudiation by the company of the ownership of the petitioners to said certificate, but, on the contrary, was an admission that said certificate was still outstanding and was valid in the hands of some one; that as the company was a trustee, holding the stock evidenced by said outstanding certificate, it could not defeat the title of plaintiffs by relying on the statute of limitation without showing a distinct and unequivocal termination of the trust by repudiating the title of plaintiffs or their predecessors in title, and by asserting title in itself; and, as the resolution was not such a repudiation, the issue of limitation was not raised by the evidence.

Those under whom appellants claim title to said certificate in the year 1881 petitioned the president and directors of the company to recognize them as the owners of said certificate and to issue to them a renewal certificate, and that tie same he placed upon the books of the company in their names. Thereupon the board of directors passed the following resolution: '

Office Galveston City Co.,
Tuesday, March 22, 1881.
The hoard of directors met at 11 o’clock a. m. on the call of the president.
Present: J. L. Darragh, Pres’t, W. H. Goddard, J. H. Hutchings, and C. B. Adams.
*********
Duplicate ap- The petition of James Converse plied for lost, and others for the issuance of a certificate No. certificate of stock in lieu of one 2 Book B re- heretofore issued by the trustees fused. J. P. to John K. Allen, alleged to have Cole, Secre- been lost or mislaid, was read, and tary. after due consideration was respectfully declined, because said certificate of trustees’ stock, being from its nature assignable by simple indorsement and delivery might now be in the hands of an innocent purchaser for a valuable consideration.
*********

Unquestionably the resolution was a refusal of the directors to recognize the petitioners as the owners of said certificate, and to issue a renewal certificate in their names as prayed for by them. We think such resolution was a substantial declaration to the petitioners that the company refused to acknowledge that it held said property in trust for them.

By article 5690, Revised Civil Statutes of this state, it is provided:

“Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued, and not afterward.”

It appears that the matters and things prayed for in the petition of those under and through whom appellants claim was for recognition of them, by the company, as the ■owners of certificate B — 2 in question in this suit, and for the issuance of a renewal certificate showing such ownership. It further appears from the evidence that said petition and prayer was by the company refused. It also appears from plaintiffs’ petition in this cause that they are now by this suit seeking through the medium of the courts to compel the Galveston City Company and Maco Stewart, appellees herein, to recognize them as owners of said certificate B — 2. It is thus seen that the demand in the petition of 1881 and the relief prayed for in this suit are in effect one and the same. We think that when the company refused the demand and prayer in said petition of 1881, if the petitioners or their attorney had notice of such refusal, then the cause of action which the plaintiffs in this cause are now trying to enforce by suit accrued, and that as no suit was brought upon said accrued cause of action within four years after such accrual, the same is barred by the statute of limitation above quoted. Such being our view, for this additional reason we conclude that the trial court did not err in refusing to peremptorily instruct the jury to find for the appellants. We therefore overrule propositions 2, 3, and 6 under the . first assignment.

By appellants’ second assignment it is insisted that the court erred in submitting to the jury the question as to whether or not appellants are the present owners of said certificate B — 2.

We have already, under the first assignment, held that the circumstantial evidence offered by appellees to show that J. K. Allen or A. 0. Allen or their agent had disposed of certificate B — 2, and that the same had been surrendered to the Galveston City Company and by it canceled, was sufficient to support the finding of the jury on that issue. We therefore overrule the second assignment.

What has just been said also disposes ot appellants’ third assignment.

The trial court charged the jury as follows:

“If you believe from the evidence that the petition signed by Charlotte M. Allen and James Converse and purporting to be signed also by Martha E. Converse, admitted to be in the handwriting of F. Barnard, an attorney at law, since dead, referred or related to the certificate in controversy, and that the resolution on the minutes of the company on the 22d day of March, 1881, was adopted in response to said petition, and further believe that the parties signing the same or their attorney had knowledge of actual notice of the same at or about the time of its adoption, then the law is for the defendants on the issue of limitation. But if you do not believe that said petition related or referred to said certificate, or do not believe that said resolution related or referred thereto, or if you do not believe that the parties thereto had knowledge or notice thereof, then the law on this issue is for the plaintiffs.
“Applying these instructions, you are required to answer the following questions: * * * Did the instrument referred to in the fifth paragraph of this charge relate to said certificate? Answer, ‘Tes,’ or, ‘No.’ ”

Appellants make the action of the court in submitting such charge the ground of their fourth assignment.

The petition referred to is as follows:

“The State of Texas, Harris County. To the President and Directors of the Galveston City Company: The petition of James Converse and his wife, Martha E. Converse, and Mrs. C. M. Allen, residents of Harris county, State of Texas, that the said C. M. Allen is the surviving widow of A. C. Allen, deceased, and the said Martha E. Converse is the only child of the said A. 0. Allen; that the said C. M. Allen and Martha E. Converse are the only heirs of A. O. and J. K. Allen, deceased, and are entitled to all the estate of the said A. C. and John K. Allen; that the said C. M. Allen and Martha E. Converse are the owners and are entitled to one share of stock of the Galveston City Company which was the property of A. C. Allen or John K. Allen at their decease as appears by the books of the Galveston City Company; that the original certificate for said share of stock has either been lost or mislaid and cannot be found after diligent search.
“Tour petitioners pray that they may have the proper certificate of stock issued to them and placed upon the books of the company in their names. James Converse.
“M. E. Converse.
“C. M. Allen.”

The contention of appellants is that by its terms the petition does not relate or refer to said certificate B — 2. We think such contention untenable. The agent’s report and stock register show only two certificates issued to J. K. Allen, B — 1 and B — 2. It is conceded that he sold.B — 1 to James Hamilton. The lists alleged by plaintiffs to have been made out by J. P. Cole, once the secretary of the company, which they allege shows that according to the books of the company there was one, and only one, certificate outstanding in the name of J. K. Allen and that certificate was said certificate B — 2. This list was the basis for appellants’ suit. There was no claim by pleadings nor testimony offered with reference to any other certificate than B — 2. We think all the evidence tends to show that the signers of the petition of 1881 were contending that they owned said certificate B — 2, and none other, when said petition was presented to the president and directors of the company. The assignment is overruled.

What has been said with reference to the fourth assignment will also apply to the fifth assignment.

The substance of the contention made ay the sixth, seventh, and eighth assignment of error is that the court erred in submitting to the jury the two questions, as follows:

“(2) Was the resolution on the minutes of the company of the 22d of March, 1881, a response to said petition?
“(3) Did the parties to said petition or their attorneys have knowledge or notice of said resolution at or about the date of its adoption?”

The contention of appellants is that there is no evidence that Frederick Barnard, who it is conceded wrote the petition, was the attorney of the petitioners; that there was no evidence that Frederick Barnard or either of the petitioners had any notice' of the passage of the resolution by the board of directors of the defendant company; and that, in the absence of proof that Barnard was the attorney of the petitioners in writing, and presenting said petition, notice to him, if any, would not be notice to the petitioners, and therefore the resolution was erroneously admitted in evidence against plaintiffs, and the questions complained of erroneously submitted to the jury.

It is conceded that the petition set out herein and discussed under the fourth assignment was in the handwriting of Frederick Barnard, an attorney at law; that said petition was signed in person by James E. Converse and Mrs. C. M. Allen; and that the name of Mrs. Martha E. Converse was also signed to the same.

It is shown by the evidence that Mrs. Martha E. Converse died in 1886; that Mrs. C. M. Allen died in 1895; and that James E. Converse died in 1900, 5, 14, and 19 years, respectively, after the presentation of said petition and the passage of said resolution refusing the same. It is also shown that Mrs. C. M. Allen, one of the signers of the petition, was a business woman, owning a separate estate to which she gave her personal attention while her husband, A. C. Allen, was alive. We also think the jury would have been justified, from the fact that Mrs. Martha E. Converse and James E. Converse was the daughter and son-in-law, respectively, of A. C. Allen and Mrs. C. M. Allen, shown to have been people of intelligence, and engaged in large business ventures, in concluding that they were people of intelligence. This being true, it is inconceivable that, after writing a petition praying the board of directors to recognize them as the owners of said certificate B — 2 to be presented to said board, the petitioners failed to inform themselves as to the action of said board with reference thereto. We therefore conclude that the court did not err in submitting the questions complained of, and that the evidence was sufficient to support the findings of the jury thereon. The sixth, seventh, and eighth assignments are overruled.

The contention made by the ninth assignment is fully answered and disposed of by what has been said under the foregoing assignments, and will not be further discussed.

By the tenth assignment, it is urged that the court erred in giving to the jury appel-lee’s requested charge No. 14.

We have examined the charge and have reached the conclusion that no probable injury could have resulted to appellants by reason of the giving of said charge. The tenth assignment is therefore overruled.

By assignments 11 and 12 appellants complain of the court’s main charge: We have carefully examined the court’s charge, in. view of the complaints made, and have reached the conclusion that the complaints made t&ereto are without merit. We overrule said assignments 11 and 12. We have examined and considered complaints made by assignments 13, 14, and 15, and overrule them.

After having carefully considered all the assignments of error presented in appellants’ brief, we have reached the conclusion that the trial court committed no error which should cause a reversal of the judgment rendered by said court. The judgment of the trial court is affirmed.

Affirmed.
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