author: HARPER, J.

text:
    HARE v. STATE.
    (No. 4013.)
    (Court of Criminal Appeals of Texas.
    March 29, 1916.
    Rehearing Denied April 19, 1916.)
    1. Criminal Law <§=884 —Punishment— Fraction of Year — Murder—Sentence-Validity.
    Under Pen. Code 1911, art. 1026, providing for punishment of not less than 2 years nor more than 15, it is within the province of the jury to fix the term at any intermediate length of time, and it need not be in even years, but may be for a fractional part of a year.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2107, 2526; Dec. Dig. <§=>• 884.]
    2. Criminal Law §=>829(1) — Appeal and Ebboe — Instructions.
    It is not error to refuse a special requested charge already fully covered by the main charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. §=829(1).]
    Appeal from District Court, Liberty County; J. Llewellyn, Judge.
    Mella Hare was convicted of assault to murder, and she appeals.
    Affirmed.
    H. E. Marshall, of Liberty, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of assault to murder, and her punishment assessed at 2 years and 6 months’ confinement in the state penitentiary.

The only bill of exceptions in the record complains that the jury was unauthorized to assess the punishment at 2 ½ years, and that a verdict must fix the punishment in years, and not a fractional part of a year. Article 1026 of the Penal Code provides the punishment to be assessed shall not be less than 2 years nor more than 15. Within these limits the jury has authority to fix the term of imprisonment at any length of time deemed advisable.

The special charge requested was fully covered by the court’s main charge, and under such circumstances there was no errorin refusing it.

The only other, question presented is, it is insisted that the evidence is insufficient to sustain the conviction. If the evidence for the state was believed by the jury, it makes a plain case 'of assault to murder.

The judgment is affirmed.


source: Caselaw Access Project

author: ELY, C. J.

license: Public Domain

text:
    BONOUGLI v. BROWN.
    (No. 5618.)

    (Court of Civil Appeals of Texas. San Antonio.
    March 29, 1916.
    Rehearing Denied April 19, 1916.)
    1.Appeal and Ebboe <§=907(3) — Statement op Pacts — Necessity.
    Where the record contains no statement of facts, the findings of the trial court must be taken as true.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 3673; Dec.‘Dig. §=907(3).]
    2. Sheriffs and Constables <S=>48 — Taxation <§==>691 — 'Tax Sales — Fees—Statute.
    Under Rev. St. 1911, art. 7691, prescribing to what fees the sheriff and district clerk shall be entitled for making sales of property in tax suits, no fee bills can be lawfully made in tax cases except as provided, the law being perfect and complete in itself.
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. § 75; Dec. Dig. <§=>48; Taxation, Cent. Dig. § 1368; Dec. Dig. <§=> 691.]
    3. Taxation <§=840 — Recovery of Penalty, Interest and Costs of Delinquency Suit —Statute.
    Rev. St. 1911, art. 7699, gives incorporated cities and towns the power to institute suits for delinquent taxes “for the recovery of the taxes due on said property, together with penalty, interest, and costs of suit,” such penalty, interest, and costs being those provided by Acts 1897, of which article 7699 is section 16.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1656; Dec. Dig. <§=>840.]
    4. Taxation <§=302 — Excessive Levy — Invalidity. .
    An excessive levy for taxes is absolutely void, whether the excess is caused by including unlawful expenses, such as officers’ fees, with lawful taxes, or otherwise.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 496; Dec. Dig. §=>302.]
    5. Judgment <§=>486(1) — Collateral Attack.
    A void judgment may be attacked ih any proceeding by any one.
    [Ed. Note. — For other cases, see Judgment, Cent.Dig. §§ 919-921, 923; Dec.Dig. <§=486(1).]
    6. Execution <§=>258 — Collateral Attack.
    Like a void judgment, a void execution sale can be collaterally attacked.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 736-739, 789; Dec. Dig. <§=> 258.]
    7. Taxation <§=>734(1) — Excessive Levy — Provision foe Return of Subplus — Statute.
    Under Rev. St. 1911, art. 7689, providing that after foreclosure of a tax lien an order of sale shall issue and the land be sold, and that, if any sum remains after payment of taxes, interest, penalties, and costs, it shall be paid by the sheriff to the clerk of the court out of which the execution or order of sale was issued, to be retained by him for two years, subject to the order of the court, and then paid to the state treasurer, who shall hold the sum in trust for the owner, the fact that a levy for taxes is excessive, through the sheriff and district clerk retaining unlawful fees out of the proceeds of the sale of the land, does not render the sale null and void.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1408, 1470, 1471; Dec. Dig. <§=> 734(1).]
    8. Taxation <§=734(10) — Sale—Attack fob Exaction of Illegal Fees — Statutes.
    Under Rev. St. 1911, art. 7689, providing for the return to the owner of an excess amount obtained from a tax sale, and article 7690, authorizing the sheriff after sale for taxes to make deeds to purchasers, which shall be held in any court of law and equity to vest good title in the purchaser, subject to impeachment only for actual fraud, where land was sold for delinquent taxes, and the sheriff and district clerk retained excessive fees from the amount received, the sheriff’s deed to the property could not be attacked for such excess in costs in trespass to try title by a third party claiming under the owner, since article 7689 renders any excess in the costs, of. sale illegally charged the owner a mere irregularity, while a sale under order issued under a valid judgment foreclosing a lien for taxes cannot be attacked for any irregularities under article 7690.
    [Ed. Note. — Eor other cases, see Taxation, Cent. Dig. §§ 1470, 1471; Dec. Dig. <§=> 734(10).]
    Appeal from District Court, Webb County; J. P. Mullally, Judge.
    Action by Walter Brown against A. Bon-ougli. From a judgment for plaintiff, defendant appeals.
    Judgment rendered for defendant.
    Hicks, Hicks, Teagarden & Dickson, of San Antonio, for appellant. T. C. Mann, of Laredo, for appellee.

      Application for writ of error pending in Supreme Court.

   ELY, C. J.

This is an action of trespass to try title to certain blocks of land in the city of Laredo, Tex., instituted by appellee against appellant, the plaintiff pleading that Stephen E. Rice was the common source. The cause was tried without a jury, and judgment was rendered in favor of appellee for title and possession to blocks Nos. 248, 249, 250, 252, 550, 594, 636, 689, 696, and 725, Eastern Division of the City of Laredo.

In April, 1905, the city of Laredo sued Stephen E. Rice in the district court of Webb county, Tex., to foreclose its lien for taxes on the property herein described, with other property, and on June 29, 1905, obtained judgment for the taxes and a foreclosure of the lien and all costs of suit. On August 8, 1905, an order of sale, authorized by the judgment, was issued to the sheriff of Webb county, and levied on eleven blocks of land, one more than claimed by appellant, and the same were duly sold; the ten herein claimed to appellant and the other to George R. Page, the ten lots bringing $47.50, and the single One $5, the aggregate being $50.36. The findings of the judge show that the sheriff kept out of the amount $1.25 for his commissions, and the district clerk received more than $1.50 for his costs. On May 18, 1912, for a consideration of one dollar, Stephen E. Rice executed a quitclaim deed to John M. Daniel to 16 blocks, among the number being those in controversy. Daniel, by special warranty deed, conveyed the property to appellee on February 1, 1913. This suit was instituted on March 26, 1913.

There is really but one point in this suit, although it is claimed that questions of limitation and laches arise, and that is, Does the collection of fees by officers, neither authorized nor permitted by law, render a sale of property for taxes null and void? There is no statement of facts in the record, and it must be taken as true that the sheriff and district clerk received out of the money for which the lands were sold fees not permitted by article 7691, Rev. St. In addition to one dollar allowed the sheriff in that article, he collected $1.25 commissions as under execution or orders of sales other than in tax suits, and the district clerk collected more than the $1.50 allowed him in that article. In that article it is provided:

“The sheriff shall be entitled to a fee of one dollar for selling and making deed thereto to each purchaser of land that he sells under judgment for taxes, which shall be taxed as costs of suit; and the district clerk shall be .entitled to a fee of one dollar and fifty cents in each ease, to be taxed as costs of suit.”

Evidently a different schedule of fees is intended to be provided in tax suits, for, in addition to fixing the fees of the officers mentioned, the law in question fixes the fees of .the county attorney, the collector, and the county clerk. The law was intended to be and is perfect in itself, and no other fee bills can be lawfully made in tax cases as provided therein. If commissions were to be allowed the sheriff as in other cases, or the district clerk were to be allowed the same fees as in other cases, we must presume the statute would have so provided; but such was not done, and the officers are entitled to no fees except as therein provided. We must therefore conclude that the officers charged more than the law authorized or permitted.

By article 7699, incorporated cities and towns are clothed with the power to institute suits for delinquent taxes “for the recovery of the taxes due on said property, together with penalty, interest and costs of suit.” What “penalty,” what “interest,” what “costs”? Those prescribed in some other law? Any that the city might choose to select? They must necessarily be the “penalty,” the “interest,” and the “costs” provided for in the act of which the particular article was a part. No other reasonable construction can be placed upon the language. It will not suffice to say that the suit was to be instituted by the city attorney and no fees were provided for him, or that the collector and county clerk would have nothing to do with the suit. The sheriff and the district clerk would have the same duties to perform in connection with a city suit as with a state 'and county suit, and their fees are fixed by the act of which the article as to cities is a part. Although cities may not be exempted from payment of costs as are state and county, still the fees are fixed for the sheriff and district clerk. Neither is there any merit in the proposition that the law does not apply to cities and towns because the city council orders the suits brought, and they and the city attorney get no fees, and therefore the sheriff and district clerk can charge under another and higher fee bill.

An excessive levy for taxes is void, whether it is made excessive by including unlawful expenses with lawful taxes or otherwise. The statutory power to seize and sell the property of the citizen for taxes, the amount of which is beyond his control, is a power to sell for lawful taxes and lawful expenses, and, if an unlawful item is included under either head, the sale is absolutely void. It does not matter how small the unlawful amount may be, it renders tbe sale void, for tire maxim de minimis non curat lex has no-application to such cases in the absence of a statute so providing. 'Cooley on Taxation, pp. 955-958, and footnotes. It has been held in this state that, if excessive interest or costs are collected from the sale of property for taxes, it invalidates the sale. Lufkin v. Galveston, 73 Tex. 340, 11 S. W. 340; Eustis v. Henrietta, 91 Tex. 325, 43 S. W. 259. This seems to be the rule in every American state not- having a statute to the contrary.

In discussing this subject in the cited case of Lufkin v. Galveston, the court, after citing a California case, held:

“It is said in the case cited that ‘the rule as established by the authorities is that if the excess be as much as the smallest coin authorized by law the sale is void.’ * * * There is reason for the rule. It is to the interest of the public that illegal taxes should be so declared, and a trivial sum exacted of each taxpayer becomes a matter of importance as applied to the body of the taxpayers at large, and may become important in amount to each individual owner of property by reason of the continued exac-tions of successive years.”

This was said in. a case of excessive interest in the sum of 70, cents.

In the cited ease of Eustis v. Henrietta, the language quoted was fully approved, and it was held that excessive costs would render a tax sale null and void.

The Supreme Court justified its action in holding a sale void which included any amount, no matter how small, not permitted by statute, on the grounds if collected from many taxpayers it would amount to a large sum, or if collected from the individual for a number of years it might amount to a considerable sum. However, the better reason for holding such sales void is that the state has no power or authority to sell the property of the citizen for any amount without express statutory authority, and any attempt to do so is despotic, invalid, and illegal. That such small illegal sum should render the entire sale a nullity must result from the fact that some part of the property was taken to satisfy the illegal sum, and that such part would not have been sold at all if only what was lawful had been called for.

It may be, as contended by appellant, that the same rules as to attack upon an ordinary judgment apply to judgments for taxes, and one of those rules is that a void judgment may be attacked in any proceeding by any one. A tax sale made under like circumstances with those in this case has been declared void by the Supreme Court, and, if this case could come within its purview, it is open to attack collaterally or otherwise. As said in the Lufkin-Galveston Case:

“The principle is well established that if a portion of the tax for which the property is sold is illegal the sale will be a nullity.”

If a void- judgment can be attacked collaterally, so can a void execution sale be collaterally attacked. As said in the case of Moody’s Heirs v. Moeller, 72 Tex. 635, 10 S. W. 727, 13 Am. St. Rep. 839:

“A voidable sale passes the legal title subject to be avoided by a direct proceeding for that purpose, and it is not subject to a collateral attack. It may be ratified. But a void sale conveys no title, is incapable of ratification, and may be shown to be a nullity even in a collateral proceeding.”

The amount of costs is rarely, if ever, recited in a judgment, but the bill of costs usually accompanies an execution or order of sale, and, when it is held that illegal costs will invalidate a sale, it is meant usually the costs shown by the bill of costs attached to and made a part of the execution or order of sale.

In article 7689 it is provided that, after foreclosure of a tax lien, an order of sale shall issue and the land be sold thereunder as in other eases of foreclosure; and, further, if any sum remains after the payment of taxes, interest, penalties, and costs, it should be paid by the sheriff to the clerk of the court out of which the execution or order of sale was issued, to be retained by him for two years subject to the order of the court, and then paid to the state treasurer, who shall hold the same in trust for the owner thereof. That law was enacted in 1895, and re-enacted in 1897, and since its enactment, provision having been made for the return of any surplus, such additional amount obtained at a tax sale would not, standing alone, be sufficient ground to justify declaring the sale null and void. A similar law was so construed in North Dakota in a case wherein a sheriff had collected illegal fees in the sum of $5.60, and it was held that the collection of such fees did not invalidate the sale for taxes. Darling v. Purcell, 13 N. D. 288, 100 N. W. 726.

The Supreme Court of Texas, after the passage of the Acts of 1895 and 1897, held in the ease of Moore v. Rogers, 100 Tex. 361, 99 S. W. 1023, in regard to the collection of illegal costs by the sheriff, as follows:

“The purchasers, Moore and Luckett, had no control over the money after it was paid to the sheriff and were in no way responsible for his misappropriation of the $1 by applying it to the payment of an excessive charge for making the deed. If there was an excess in the bid over the amount which the sheriff could lawfully collect, it was the proceeds of the sale of Rogers’ land and belonged to him in the hands of the sheriff. He had the right to make the sheriff account to him for the dollar improperly applied to the payment of the unlawful fee. Moore and Luckett had no claim upon the money after it was paid to the sheriff, and were in no way responsible for his application of it to the satisfaction of the writ in his hands.”

The statute in question was not called to the attention of this court on the original consideration of this case, and consequently decisions hereinbefore cited and reviewed were taken as controlling. No effort was made by the Supreme Court in the Moore-Rogers Case to distinguish it from cases occurring before the enactment of article 7689, but they completely ignored that article, and tlie cited case is in apparent conflict with the older decisions, and is obiter dictum, and it would not be considered by this court were it not for tbe statute. Being obiter dictum, of course it is not binding on this court, but in the light of the statute ,we deem it a proper enunciation of the law. It is persuasive as tending to show the trend of opinion of the Supreme Oourt, at least as composed at that time.

Under the terms of article 7689, provision having been made for the return of an excess amount obtained from a tax sale to the owner, it was evidently contemplated that the collection of illegal items should not vitiate a sale.

In article 7690 the sheriff is authorized, after sale of the property for taxes, to make deeds to purchasers, “and such deed shall be held in any court of law or equity in this state to vest a good and perfect title in the purchaser thereof, subject to be impeached only for actual fraud.” Under that law it has been held that a sale made by virtue of an order of sale, issued under a valid judgment foreclosing a lien for taxes, cannot be attacked for any irregularities. Houssels v. Taylor, 24 Tex. Civ. App. 72, 58 S. W. 190. Under provision for return of any excess in the sale over the taxes, interest, penalties, and costs, charging illegal costs would be a mere irregularity.

We have had our attention called to the case of Bean v. Brownwood, 43 S. W. 1036, in which it was held, without any seeming reference to article 7689, that illegal costs would not vitiate a sale for taxes, as was done after-wards by the Supreme Court, when without that statute the decisions cannot be justified and would be in direct conflict with, not only the Texas decisions, but those of most of the other states. The decision in the Bean Case was afterwards reversed by the Supreme Court (91 Tex. 684, 45 S. W. 897), but not on the holding as to illegal costs, and the views of the Court of Civil Appeals on that point, as herein shown, were afterward adopted by the Supreme Court in Moore v. Rogers.

The Supreme Court of Arkansas, in the. case of Kelley v. Laconia Levoe Hist., 74 Ark. 202, 85 S. W. 249, 87 S. W. 638, hold that illegal costs would not vitiate a tax sale, and places its ruling on the ground that if an error was committed in this respect it could have been corrected on an appeal; and, further, it was held:

“A sale under an order of a court of competent jurisdiction is different from that made for nonpayment of taxes without such an order. The latter for illegal fees would be void, and the former would not be.”

If that be the correct rule, the seeming conflict between decisions made before the enactment of the tax laws of 1895 and 1897 and the decisions in Moore v. Rogers and Bean v. Brownwood disappears, and both can be sustained.

In the absence of the provisions in articles 7689 and 7690, the opinions in Lufkin v. Galveston and Eustis v. Henrietta, herein cited, are correct and state the law, but under the requirements of those two articles the later decisions can be justified. Those provisions contemplate cases in which there may be more money obtained at a tax sale than is required to settle legal demands, and also provides that a tax deed cannot be attacked on any ground but that of fraud. Of course it is meant a deed based on a sale made according to the requirements of law. In the Moore-Rogers Case the land was advertised as the property of “J. A. Bowers” instead of “J. A. Rogers,” and the Supreme Court held:

“This did not have the effect to make the sale void, but voidable only ; there being no evidence of any participation of the purchasers, the plaintiffs in error, in the error committed, nor any fraudulent act on their part in connection with the sale and purchase, the honorable Court of Civil Appeals correctly held that it devolved upon Rogers to restore the purchasers to their former position; that is, to return to them the full amount of their bid.”

In that case the attack on the sale was direct and the sale was set aside as being voidable. In this case the attack is made in a collateral proceeding, and if the sale was voidable, as we do not hold, the suit cannot be sustained.

As held in Lufkin v. Galveston, the provisions of article 7690 as to attacks on tax deeds must be held to mean a tax deed which is based upon the requisites of the law having been complied with in getting the judgment and the issuance of the necessary order of sale at least. When the legal requirements are complied with, the act of an officer in collecting illegal costs cannot invalidate the tax deed. Under similar statutes, which contemplate that a surplus may be obtained at tax sales and returned to the owner, it has been uniformly held that an excess in costs or otherwise will not annul the sale. Parker v. Sexton, 29 Iowa, 421 ; Lynde v. Malden, 166 Mass. 244, 44 N. E. 227.

It will be noted in this case that the judgment was in all points legal and valid; a legal and valid order of sale was issued to obtain the taxes and legal costs assessed, and the sale was made as required by law for those taxes and costs, and after the purchaser had paid his money for the land the sheriff and. clerk appropriated a .portion of the purchase money to which they were not entitled under the law. There is nothing to indicate that the court had ordered or that the sale was made for any sum not upheld by the statute. If the illegal costs wore embodied in the bill of costs accompanying the order of sale, the record does not disclose it, and in the very nature of things the commissions of the sheriff could not have been sot out in the bill of costs because they depended on the amount for which the land was sold. All the record discloses is a valid judgment, a valid order of sale, and nothing Illegal until after the sale, when the illegal costs were appropriated by the officers. The illegality of the costs did not enter into nor become any part of the sale, so far as the record discloses. The sale should not be set aside for that irregularity.

In the recent case of Hill v. Lofton, 165 S. W. 67, the Court of Civil Appeals of the Seventh District held that the inclusion of illegal fees in the hill of costs appended to the order of sale under a judgment for taxes would render the sale void; but the ruling was not essential to the decision of the case, and was evidently made without due consideration for the statute and the later decisions, and they are not referred to, and only decisions rendered under the old law when property was seized for taxes without the support of a judgment are cited. As we have endeavored to show, those decisions have no pertinency under the law of 1897. Had the case of Moore v. Rogers, herein cited, been called to the attention of the Court of Civil Appeals, doubtless the unnecessary ruling would not have been made.

Our former opinion is withdrawn; the judgment thereunder set aside; and judgment now rendered that appellee, Walter Brown, take nothing by his suit; that appellant be quieted ⅛ ⅛⅛ title, and that he recover of appellee all costs in this behalf expended.
      §=For other oases see same topic and KEY-NUMlJjSK in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    ST. LOUIS, B. & M. RY. CO. et al. v. MARCOFICH.
    (No. 1543.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 24, 1916.
    Rehearing Denied April 13, 1916.)
    1. Carriers @=228(5) — Live Stock Shipment — Negligent Delay — Evidence.
    Evidence of delays in transportation of live stock, one of two hours, one of seven hours, two of twelve hours each, and one sixteen hours, with no reasons given therefor except the first, is sufficient to support a finding of negligent delay, even assuming that parts of some of them were to enable compliance with Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5714, as to feeding and watering.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 960; Dec. Dig. @=228(5).]
    2. Carriers @=227(3) — Live Stock Shipment-Action for Injury — Complaint.
    The petition for injury to a live stock shipment, alleging that defendants were negligent and careless and were guilty of delays caused by said negligence, and on account of their negligence two of the animals were cut, bruised, and injured, and the others were greatly damaged, gaunted, and impaired in their market value, is not limited to a claim for negligent delay.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 956; Dec. Dig. @=227(3).]
    3. Pleading @=228 — General Allegation-Special Exception.
    A general allegation of negligence in a petition is sufficient in the absence of a special exception.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. @=228.]
    4. Carriers @=>154 — Injury to Freight — Stipulation for Notice —Consideration.
    Independent consideration is not necessary to validity of stipulation of contract of shipment for notice of claim of damages within a certain time as a condition of right of recovery.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 641-645, 667; Dec. Dig. @=>154.]
    5. Carriers @=162, 163 — Injury to Freight —Notice—Reasonableness of Time Stipulated — Burden of Proof.
    The carrier has, under Vemon’s Sayles’ Ann. Civ. St. 1914, art. 5714, the burden of pleading and proving reasonableness of the time stipulated in the contract of shipment for notice of claim of loss or injury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 720-725; Dec. Dig. @=162, 163.]
    6. Carriers @=230(5) — Injury to Freight— Notice — Reasonableness of Time Stipulated.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5714, requiring stipulation in a contract for notice of claim for damages as a condition to right to sue to be reasonable, and declaring void one fixing the time for notice at less than 90 days, whether one fixing it at 91 days is reasonable depends on the circumstances of the particular case, and presents a question for the jury, unless no other inference than that it is reasonable can be drawn from the testimony.
    [Ed. Note. — For other cases, see Carriers. Cent. Dig. § 962; Dec. Dig. @=230(5).]
    Appeal from District Court, Bowie County ; H. F. O’Neal, Judge.
    Action by Frank Marcofich against the- St. Louis, Brownsville & Mexico Railway Company and others. From a judgment for plaintiff, certain defendants appeal.
    Affirmed.
    January 23, 1914, appellee delivered 103-head of mules to appellant St. Louis, Brownsville & Mexico Railway Company to be transported by it and connecting lines from Brownsville to Texarkana. The nmles left Brownsville between 2 and 4:30 o’clock p. m. of that day, reached Houston about 4 o’clock p. m. of January 25th, and reached Long-view about 2 o’clock a. m., and Texarkana 4 o’clock p. m., of January 28th. They were carried by said appellant over its line of railway from Brownsville to Houston, a distance of 372 miles, by appellant International & Great Northern Railway Company over its line from Houston to Longview, a distance of 232 miles, and by appellee Texas- & Pacific Railway Company from Longview to Texarkana, a distance of 90 miles. Ap-pellee’s suit, commenced May 2, 1914, was against each and all of said railway companies. In his petition he alleged that they—
    “were negligent and careless and were guilty of delays, which were caused and brought about by the said negligence of them, and each of them, so that a greatly unreasonable period of time-was consumed in the transportation of said, mules from Brownsville to Texarkana, and on account of the negligence of the defendants, and' each of them, two of said mules were cut, bruised and injured in such manner as to render them practically worthless ; that one of such-two mules was damaged in its value and market value to the extent of $60 and the other to the extent of $40, and the remaining 101 head were greatly damaged, gaunted and impaired in their market value, so that when they reached Tex-arkana each and all of said mules was, and were, worth $15 per head less than they would have been had they been carried without the negligence of the defendants as aforesaid.”
    In its answer appellant St. Louis, Brownsville & Mexico Railway Company alleged that its contract with appellee covered the transportation of the mules to Houston only; that it did that “without negligence,” and there delivered the mules to its connecting carrier, appellant International & Great Northern Railway Company; and further alleged, as a bar to appellee’s suit, a failure on his part to comply with a stipulation in the contract alleged to be as follows:
    “That as a condition precedent to his right to recover any damages for any loss or injury to said live stock or delay to said stock or damages by reason of depreciation in the market or for any other cause whatsoever connected with the shipment of the said stock, he (plaintiff) shall within 91 days after the happening of the injuries or damages complained of, file with the general freight agent of the party of the first part (this defendant), or some freight or station agent of the party of the first part (this defendant), Ms (plaintiff’s) claim therefor, giving the full amount thereof in detail.”
    The answer of appellant International & Great Northern Railway Company was substantially the same as that of its coappellant St. Louis, Brownsville & Mexico Railway ■Company, except that the stipulation as to notice in its contract with appellee was alleged to be as follows:
    “That said second party (plaintiff herein) further especially agrees as a condition precedent •to his right to recover for any damages or for .any loss or injury to said stock during; the transportation thereof ⅜ ⅞ * that he will give definite written notice of his claim to some gen- ■ eral officer or agent of the first party (defendant) as soon after the occurrence of such loss, ■ damage or injury as the circumstances will permit, and that should he fail from any cause to give the party of the first part the said written notice within 91 days from the date of the loss, damage or injury to said stock, his failure to ■ do so shall be a complete bar to any recovery ■ on any and all such claims.”
    In its answer each of said appellants prayed that, in the event it should be determined that appellee was entitled to damages, same should be apportioned between them according to their respective responsibility therefor.
    In a supplemental petition appellee alleged •that the stipulations in the contracts set up by appellants requiring him, as a condition precedent to his right to recover damages 'he suffered, to give written notice thereof •within 91 days after the happening of the injury to the mules, were void because unreasonable and without a consideration to support them. Appellee Texas & Pacific Railway Company also answered, but, as judgment was rendered in its favor and is not complained of, it is unnecessary to specify the grounds of its defense to the suit.
    One S. P. Threadgill intervened in the suit, claiming to be the owner of an interest in the cause of action asserted by appellee. As he failed to recover anything and has not appealed, his intervention will not be mentioned further.
    The verdict of the jury was in appellee’s favor against appellants for $850, which they apportioned as follows: $600 against appellant St. Louis, Brownsville & Mexico Railway Company, and $250 against appellant International & Great Northern Railway Company.
    Glass, Estes, King & Burford, of Texar-kana, and J. M. Burford, of Mt. Pleasant, for appellants. Mahaffey <& Keeney, of Tex-arkana, for appellee.
   WILLSON, C. J.

(after stating the facts as above). Appellants requested the court to instruct the jury to find in their favor, and complain of his refusal to do so. The grounds upon which they based their requests were (1) that the testimony was not sufficient to support a finding of negligence as charged in appellee’s petition; and (2), if it was sufficient, appellee was not entitled to recover, because, it appeared that he did not comply with the stipulations in the contracts covering the shipment requiring him as a condition precedent to a recovery to give notice in writing to their respective agents of damages he claimed within 91 days after the injury t'b the mules occurred.

With reference to the first of the two grounds, it seems the contentions were (1) that there was no evidence on which to base a finding of negligent delay in the transportation of the mules, and (2) that appellee by his pleadings sought a recovery of only such damages as he suffered because of such delay.

We do not agree that there was no evidence of negligent delay on the part of appellants. The evidence on behalf of ap-pellee was that the shipment, while being transported by appellant St. Louis, Brownsville & Mexico Railway Company from Brownsville to Houston, was delayed two or three hours by a wreck due to its bad track near San Beneto, and about twelve hours at Kingsville, and was delayed about sixteen hours at Houston; and that same, while being, transported by appellant International & Great Northern Railway Company from Houston to Longview, was delayed about seven hours on a side track between Houston and Palestine, and about twelve hours at Palestine. No reason for any of the delays specified, except the one due to the wreck near San Beneto, appeared in the testimony heard. Assuming that parts of some of them were for the purpose of enabling appellants to comply with the law requiring them to feed and water the mules (article 714, Vernon’s St.), we think it nevertheless cannot be said that there was no evidence I to support a finding of negligent delay.

Nor do we agree that appellee’s suit was only for such damages' as he sustained because of negligent delay in the transportation of the mules. It was also, as we think is shown by the part of his petition set out in the statement above, for damages because ■of injuries to the mules due to negligence of any kind on the part of appellants. The allegation of negligence, it will be noted, is general, and the allegation as to injury'is general, except as to two of the mules. In the absence, as was the case, of special exceptions to the petition, we think the allegations were sufficient as a basis for the proof made and the judgment rendered. 1 Abbott’s Trial Brief, p. 612; Railway Co. v. Anson, 82 S. W. 785. The evidence on the part of appellant was amply sufficient to show that two of the mules were very seriously, and others of them in a less degree, injured as the result of rough handling.

As to the other of the two grounds urged as reasons why the jury should have been peremptorily instructed to find for appellants, it was conceded by appellee that notice in writing of his claim for damages was not given as required in the stipulations in the contracts set out in the statement above, before his suit was commenced May 2, 1914, which was four or five days after the expiration of 91 days from the time the mules suffered the injuries complained of. Appellants contend that it therefore appeared, as a matter of law, that appellee was not entitled to recover as sought by him. Appellee, on the other hand, contends that it appeared that each of the stipulations was without consideration, and for that reason was not binding upon him; and, further, that the stipulations were not valid and enforceable against him unless reasonable, and that the question as to whether they were reasonable or not was for the jury, and not for the court to determine. There is no ■doubt that the stipulations were valid and binding on appellee if reasonable, and that a violation of same was available to appellants as a defense, if pleaded as required' •by the statute. Article 5714, Vernon’s St.; Railway Co. v. Mayes, 44 Tex. Civ. App. 31, 97 S. W. 318; Railway Co. v. Hughey, 182 S. W. 361. That there was no consideration therefor, independent of the one on which the contract as a whole was based, would not invalidate the stipulations. Stevens & Russell v. Railway Co., 178 S. W. 810. Whether appellants’ contention as to their •effect should be sustained or not depends, therefore, upon whether it should be said that it appeared as a matter of law that the ■stipulations were reasonable. We think it should not. Railway Co. v. Childers, 1 Tex. Civ. App. 302, 21 S. W. 76; Railway Co. v Adams, 78 Tex. 374, 14 S. W. 666, 22 Am. St. Rep. 56; Railway Co. v. Barber, 30 S. W. 500; Railway Co. v. Curtis, 44 Tex. Civ. App. 477, 99 S. W. 566. The burden was on appellants to allege and prove that the time stipulated for was reasonable. Railway Co. v. Greathouse, 82 Tex. 111, 17 S. W. 834. They did not so allege. If it should be conceded that the allegation by appellee, that the time stipulated for was unreasonable, entitled appellants to contend that it was reasonable, we think the contention was one which the jury, and not the court, should have determined. If, as is true (article 5714, Vernon’s St.), it must be said as a matter of law that a stipulation requiring such notice to be given within a time less than 91 days from the time the cause of action accrues is unreasonable, we do not think it should be said as a matter of law that a stipulation requiring the notice to be given in 91 days is reasonable. Whether the latter stipulation would be reasonable in a given case or not would depend upon the particular circumstances of that case, and would, we think, present a question of fact for the jury, unless it should be said — and we think it should not in this case — that no other inference than that the stipulation was reasonable could be drawn from the testimony.

It is insisted that the verditt and judgment are excessive. But we think it cannot be so held without ignoring the testimony of appellee and the witness Threadgill. As the jury had a right to believe them, the contention cannot be sustained.

Assignments not in effect disposed of by what has been said are overruled because it is believed they do not present error authorizing a reversal of the judgment. .

The judgment is affirmed.
      @=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    RUDOLPH S. BLOME CO. et al. v. HERD.

    (No. 8414.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 19, 1916.
    Rehearing Denied March 25, 1916.)
    1. Municipal Corporations <®=»568(3) — Paving — Special Assessments — Evidence — Fraud.
    In an action against a property holder to collect a special assessment for paving, evidence as to the defective character of the paving, and its failure to conform to the specifications, held sufficient to warrant an inference of fraud in the acceptance of the work.
    [Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. § 1282; Dee. Dig. <S&wkey; 568(3).]
    2. Municipal Corporations &wkey;>446 — Paving — Acceptance—Conclusiveness.
    An acceptance by the city of paving, where the character of the work and the departures fiom the specifications were such as to warrant an inference of fraud, or to show it to be substantially a different work from that contracted for, is not conclusive against the property owner.
    [Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. §§ 1066, .067; Dec. Dig. <&wkey;446.]

      3. Municipal Corporations <&wkey;500 — Special Assessments — Pleading — Defects— Cube by Evidence.
    A petition alleging that special assessments for paving were void as to a property owner, because it was not laid in conformity with the specifications and was accepted by the city commission without due regard to the rights of the property owner, will be construed to aver fraud in the acceptance of the work, where evidence from which fraud could be inferred was admitted without objection on the ground that it was not authorized by the pleadings.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1172; Dec. Dig. <&wkey;> 500.]
    4. Municipal Corporations <&wkey;513(l), 562 (1) — Steeet Paving — Necessity—Right to Question.
    Where a property owner appeared before the city commission as authorized by Loc. & Sp. Acts 31st Leg. c. 31, sube. 12, § 8, and objected to a proposed street paving on the ground that it was unnecessary and would not specially benefit his property, and thereafter commenced, within the time limited by section 10' of that act, a suit to contest such assessment, the city cannot, by proceeding with the work and accepting it and then bringing an action to collect the special assessment, which by agreement was consolidated with the pending suit, deprive the property owner of his right to question the necessity and benefit of the paving.
    [Ed. Note. — For other cases, see Municipal ⅞orations, Cent. Dig. §§ 1188, 1189, 1196, , 1269; Dec. Dig. &wkey;513(l), 562(1).]
    5. Municipal Corporations <&wkey;568(2) — Special Assessments — Actions—Admissibility op Evidence.
    Where, in an action to collect special assessments against a property owner who had objected to the paving and brought suit to contest the necessity and benefits thereof, the city offered evidence that the improvement as completed was in accordance with the specifications, and that thereby ‘defendant’s property was benefited, the defendant in answer thereto could show not only that the improvement as contemplated did not benefit his property, but also that the paving as actually laid was not a benefit.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1282; Dec. Dig. <&wkey;> 568(2).]
    6. Municipal Corporations <&wkey;321(2) — Paving— Necessity — Determination—Collu-siveness.
    Loc. & Sp. Acts 31st Leg. c. 31, sube. 12, § 5, provides that the commissioners shall have power to order the making of public improvements by resolution _ which shall be conclusive of the public necessity and benefit. Section 8 provides for a hearing of objections by the property owner, who shall be entitled to a full and fair hearing as to all matters affecting the assessment of personal liability or the benefits of said improvement to the property, and any objection to the assessment or the making of such improvement, or any invalidity or irregularity in the proceedings. Section 10 provides for a suit in the district court by a property owner whose objections were overruled, in which the contest shall be upon any ground affecting the validity of the assessment of personal liability or affecting any proceeding had with reference thereto. Reid that, even if the determination by the commission that the work is necessary is conclusive as to the public necessity of the improvement in proceedings to prevent the payment therefor by general tax, it is not conclusive that it is necessary or would especially benefit the property of a particular owner, who is objecting to it on those grounds under the provisions of the act.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 838; Dec. Dig. 321(2).]
    7. Constitutional Law &wkey;>290(l) — Eminent Domain <&wkey;2(l) — Municipal Corporations <&wkey;408(l) — Special Assessment — Due Process op Law — “Taking Property Without Compensation.”
    Loc. & Sp. Acts 31st Leg. c. 31, sube. 12, § 7, providing that no part of the costs of street improvement shall be assessed against any property owner in excess of the proposed benefits thereto in enhanced value arising from the improvement, is but the declaration of existing law, since to require a property owner to pay special assessments for public improvements in excess of the special benefits to his property is taking his property without due process of law, contrary to Const. § 19, and Const. U. S. Amend. 14, § 1, and a taking for public use without just compensation, contrary to Const. § 17.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 871, 874, 875; Dec. Dig. <&wkey;>290(l); Eminent Domain, Cent. Dig. §§ 3-8; Dec. Dig. <&wkey;>2(l); Municipal Corporations, Cent. Dig. §§ 1005, 11S3; Dec. Dig. &wkey;408(l).
    For other definitions, see Words and Phrases, First and Second Series, Taking.]
    8. Municipal Corporations <&wkey;568(3) — Paving — Special Assessments — Evidence — Benefits — Necessity.
    A finding by the trial court that no special benefit resulted to the property of an owner against whom assessments for paving were levied, and that the paving was unnecessary, held to be supported by substantial evidence so as not to be reviewable on appeal.
    [Ed. Note. — For other ■ cases, see Municipal Corporations, Cent. Dig. § 1282; Dec. Dig. <&wkey;> 568(3).]
    9. Appeal and Error &wkey;>931(l) — .Review-Findings by Trial Court — Evidence Considered.
    In testing the sufficiency of the evidence to sustain the trial court’s findings, the evidence most favorable to appellee is to be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3762; Dec. Dig. <5&wkey;931(l).J
    10. Appeal and Error <&wkey;1011(l) — Review-Findings — Sufficiency of Evidence.
    Conflicts of evidence are to be determined by the court below, and, if the finding is supported by any credible evidence of legal sufficiency, the appellate court must approve.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3988; Dec. Dig. &wkey;> 1011(1).]
    Appeal from District Court, Tarrant County.
    Actions by H. B. Herd against Rudolph S. Blome Company and another to review an assessment of benefits for street paving, and by Rudolph S. Blome Company and another against II. B. Herd to recover special assessments levied for the paving, were consolidated for trial. Judgment rendered for H. B. Herd, and the other parties appeal.
    Affirmed.
    Bradley & Burns and Spoonts, Ratcliff & ’Christian, all of Ft. Worth, for appellants. Wade & Smith and Robt. G. Johnson, all of Ft. Worth, for appellee.

      Application for writ of error pending in Supreme Court.

   CONNER, C. J.

We think we can perhaps [ best present this case in a historical manner and in, a chronological order. So endeavoring to do, it appears that the city of Ft. Worth is a municipal corporation acting under a special charter granted to it by the Legislature of the state of Texas by act approved March 10,1909. See Loe. & Sp. Laws, 1909, p. 227 et seq. In chapter 12 of that act, relating to pavement of streets and thoroughfares it is provided, among other things (section 3), that the board of commissioners of the city “shall have power to order the improvement of any highway or highways, or part thereof, in the city and to prescribe the nature and extent of the improvements.”

In the next section (section 4) it is provided that:

“Subject to the terms hereof, the cost of such improvements may be paid wholly by the city or partly by the city and partly by owners of property abutting on such improvements and benefited thereby. * * * ”

In the next section (section 5) it is declared that:

“The board of commissioners shall have power by resolution to order the making of such public improvements, or any of them, by majority vote, without notice, and the passage of such resolution shall be conclusive of the public necessity and benefits thereof. The resolution shall generally set out the nature and extent of the improvements to be made, the section or sections of the highway or highways to be improved, and the material or materials to be used, and the method or methods of paying the cost. The resolution may specify different or alternative materials, and different or alternative methods for the construction of the improvement, and the payment of its cost. Upon passage of such resolution, the city engineer shall forthwith prepare specifications subject to approval of the board of commissioners, for the improvement, embracing the different or alternative materials or methods which may' be prescribed by said resolution, for the construction of said improvement or payment of its costs; and the character of bond or bonds, if any, required of the successful bidder. Such specifications shall be submitted to the board of commissioners and after being corrected, in event correction is necessary and same is satisfactory to said board, same shall be approved! by said board. Said board shall have power to require of the contractor to whom the work may be let, a bond or bonds for the faithful performance of the contract, and for the repair or reconstruction, in whole or in part, of the improvement. * * * When the specifications have been adopted by said board, the city secretary or other officer designated by the board shall advertise for sealed bids for the construction of said improvements in accordance with the specifications. * * * Bids shall be filed with the board of commissioners and opened and read in open meeting thereof. Said board may accept such bid or bids as it may deem most beneficial to the city and the owners of the property abutting the proposed improvement, or may reject any and all bids and may accept different bids for parts of the improvement and accept such bid or bids on different plans or methods, or for different materials, as it may deem best. No bid shall be amended, revised or changed after being filed.”

Section 6 of the chapter provides that:

“The bids having been accepted by the board of commissioners, the city shall enter into contract with the contractor to whom the work is let, for its performance,” etc.

Section 7 then declares that:

“Exclusive of the cost of such improvement to be paid by railroads and street railroads as herein provided, the city, acting by said board of commissioners, shall' have the power to assess the whole cost of constructing and reconstructing sidewalks and curbs and other improvements against the owners of property abutting on the highway or highways, or sections thereof, to be improved, who are specially benefited thereby. But no part of such cost shall be assessed against any owner, or his property, in excess of the special benefits thereto in enhanced value thereof arising from the improvement, nor until after the notice and hearing hereinafter provided for,” etc.

Section 8 then declares that:

“When the contract or contracts for improvements have been executed and approved, if any part of the costs is to be assessed against property or its owner or owners, the city engineer shall at once prepare a statement containing the names of persons, firms or corporations or estates owning property abutting on the highway, or section thereof to be improved, and the number of front feet owned by each with such description by lot or block number or otherwise, sufficiently to identify the same, and also containing an estimate of the total cost of the proposed improvement, the cost per front foot of abutting property, and the total cost proposed to be assessed against such owner and his property. Said statement shall be examined by the board of commissioners and any errors therein corrected, hut no error or omission shall invalidate any assessment made thereunder. When said statement has been approved by said board, it shall then determine and declare the necessity of assessing any part of the cost of proposed improvements against such owners and their property, by resolution directing notice to be given to such owners and fixing the time and place of a hearing to be given them. Such notice shall be signed by the city secretary or other officer designated by the board, and shall state the time and place of hearing, the general nature of improvement proposed, the highway or section thereof to be improved, and the total amount and amount per foot proposed to be assessed against each owner and his property.”

The section then provides the method of serving the notice specified and further declares that:

“On the day fixed for said hearing or any time thereafter before any assessment is made, any person, firm, corporation or estate owning or having any interest in any property proposed to be assessed for any part of the cost of such improvement, or against whom any person(al) charge is proposed shall have the right to appear before said board of commissioners, in person or by attorney or agent, and shall be entitled to a full and fair hearing as to all matters affecting said assessment or personal liability, or the benefits of said improvement, if any, to property proposed to be assessed and any objection to such assessment or to the making of such improvement, or any invalidity or irregularity in the proceedings with- reference thereto, or any other objection. All objections shall be filed' in writing, and thereafter the board of commissioners shall hear and determine the same, and opportunity shall be given to persons filing objections to subprena witnesses and produce testimony. Said hearing may be adjourned from time to time till completed without further notice. The said board shall have the power to inquire into and determine all facts necessary to the adjudication of objections and the ascertainment of special benefits to such owners by means of such improvements, and shall render such judgment in each case as shall be just and proper.”

It is further provided (section 9):

“When said hearing has been concluded the board of commissioners shall, by ordinance, which shall take effect from its passage, without publication or other prerequisites, assess against the several owners of property, and their property abutting on the highway or section thereof ordered to be improved, such part of the cost of improvement as said board may have adjudged against them. Said ordinance shall fix a lion upon said property and declare the respective owners thereof to be personally liable for the amounts assessed against them, and shall state the time and terms of payment of such amounts. ⅜ * * The cost of such improvement assessed against any property or its owner, together with the interest and costs of collection and reasonable attorney’s fees, when incurred shall constitute a personal claim against such property owner, and be secured by lien on such property, superior to all other liens, claims or titles, except lawful taxes and such liability and lien may be enforced in any court having jurisdiction, or by sale of such property by. the officer, and in any manner as far as applicable, as sales are authorized to be made for nonpayment of city taxes,” etc.

It is then provided (section 10):

“Any person interested in any property assessed for such improvements, or against whom any charge of personal liability may have been fixed, may within ten days from the conclusion of the hearing above referred to, but not thereafter, institute his suit in any court having jurisdiction for the purpose on any ground, the validity of said assessment or personal liability, and the validity of any proceeding had with reference thereto; but if said action be not brought within said period of ten days, then said persons, their heirs, successors, assigns, or personal representatives, shall be forever barred from asserting any defect in such proceedings, or any invalidity in said assessment or charge of personal liability, in any action in which the same may thereafter be brought into question.
“The said city and the contractor to whom the work of improvement may have been let shall be made party defendant to any suit brought under this section. When any suit has been brought under the terms of this section, the performance of any work may be suspended at the election of the city or the contractor, until said suit is finally determined, provided, that any suit of error or appeal from the judgment of the court in which said suit was brought shall be perfected within thirty days from the adjournment of the term of the court of original jurisdiction at which final judgment shall thereafter be taken or sued out,” etc.

The chapter referred to further provides that improvements, such as provided for in the sections from which ,we have quoted, may also be ordered upon, the petition of the owners of 60 per cent, of the front feet abutting upon the street proposed to be paved; and, further, that the board of commissioners may authorize the issuance by the city of assignable certificates against abutting property owners, or against persons, firms, or corporations using or occupying the highways, such certificates to be made payable to the contractors, etc.

Under the foregoing provisions of the city charter, the record discloses that on April 9, 1912, a petition of the required number of property owners on East Third street in the city of Et. Worth (not including appellee Herd’s name, however) was presented to the city commission to have that street paved. The petition was granted, the street ordered paved, and a contract entered into, upon specifications to be hereinafter referred to, with the appellant Rudolph S. Blome Company. Appellee, H. B. Herd, owned 100 feet fronting upon the section of the street so ordered to be improved, and the commission assessed against him a personal liability of $456.29, as his proper proportion under the ordinances of the costs of the improvement, and declared a lien upon his property to secure the payment.

Prior to the assessment, however, the commission had given notice of the proposed improvement, as provided for in section 8, c. 31, sube. 12, which we have above quoted in part, and H. B. I-Ierd in answer thereto had appeared before the commission, objecting to the improvement among other things insisting that the improvement was .wholly unnecessary, and that thereby his property would in no wise receive special benefit. The objections, however, were overruled and the assessment made as stated. Whereupon, within the time specified in the ordinances, appel-lee, Herd, filed his suit, making the Rudolph S. Blome Company and the city of Et. Worth parties defendant, in the district court, again urging the objections made by him. before the city commission. Notwithstanding the institution of this suit, however, the contractors proceeded and improved the street in purported compliance with the specifications provided for in the contract of the city, and the work when completed received the approval of the city engineer. Whereupon, H. B. Herd having refused to pay the assessment against him, the city, for the benefit of the Rudolph S. Blome Company, which also joined in the suit, instituted suit in the district court of Tarrant county against H. B. Herd to recover the amount declared to be due from him by reason of the improvement of the street, and to enforce the lien declared in the ordinances of improvement. It further appears that later the two suits, to wit, the one instituted by H. B. Herd as above stated and the one last referred to, were consolidated. In the consolidated suit a trial .was had upon amended pleadings by all parties, and resulted in a judgment for H. B. Herd, and Rudolph S. Blome Company and the city of Et. Worth have appealed.

The trial court filed his conclusions of fact and law, and therefrom it appears, in addition to facts hereinbefore recited, that the improvement contract between the city and Rudolph S. Blome Company required that the street to be improved should “be thoroughly graded, filled, and rolled, in accordance with the lines given by the city engineer, and paved with concrete base of 5½ inches, and of granitoid cap or wearing surface of 1 ½ inches, all to be put down in good and workmanlike manner.” In this respect the court found “that the paving as put down on said street by Rudolph S. Blome Company was not in accordance with the plans and specifications and contract therefor; that said concrete base is in many places not over 3½ inches thick, and nowhere is shown to be over 5 inches thick; that the cap or wearing surface of said paving is about ⅛ inch thick; that there is not sufficient bond tying said cap or wearing surface to the concrete base; that the concrete base is composed of material that is exceedingly brittle and friable, and samples thereof presented in court taken from various places can be readily crumbled in the hand; that paving of said street was not constructed by said Rudolph S. Blome Company in a good and .workmanlike manner.” The court further found from the evidence “that no special benefit to the said H. B. Herd from said paving in enhanced value of his property accrued to him by reason of said paving, and that his said property was not enhanced in value by said paving; that before said paving was made that said street was a good street in all weather, and that repaving of the same under the circumstances was unnecessary.”

Error is first assigned to the action of the court in overruling a demurrer to subsection “h” of the eleventh paragraph of appellee’s amended petition, which was worded as follows:

“Plaintiff further says that said orders and ordinances are void as to him and his property because such paving, as actually done, is not in accordance with the specifications in said contract in this, to wit, the specifications called for paving to the depth of seven inches, and in no place does the said pavement exceed seven inches, while in many places it is less than seven inches, making the general average much less than seven inches; that said paving consists of bituminous blocks on a concrete base, and said blocks are not properly tied or bound together, and said concrete base is of an extremely poor quality. Said paving as actually put down is not worth over 50% of what it would have been worth had the specifications been complied with. Plaintiff has reason to believe and does believe that the said city accepted such job as completed, and, if so, said city commission acted injudiciously and without due regard to the rights of the property owners on said street, including this plaintiff, against whom the cost of said paving was to be charged.”

It is insisted that inasmuch as, from the allegations made, it appears that the city accepted the work done by Rudolph S. Blome Company through its authorized officers, that such acceptance is conclusive, in the absence of an allegation of fraud or collusion in the acceptance. In now passing upon the ruling of the trial court presented in the assignment, we wish first to note that appellants’ contention is made contingent on the assumption that the plea fails to embody a charge of fraud; and that under the circumstances now to be stated that we will give to the plea a wider reach or scope than is, perhaps, to be plainly defined by the terms of the plea, for later evidence in support of the plea was admitted and heard by the court and evidently considered by him, and, while the evidence was objected to on the ground that the approval of the work by the city engineer was conclusive, no objection was urged because of an insufficiency of the plea to authorize its admission, and this evidence, in our judgment, goes beyond a good-faith approval of the work by the city engineer. Reading some of the evidence, which, as appears from the court’s findings, was evidently credited by the trial court, we fail to see how the work could have been approved without marked incompetency, inexcusable negligence, or downright fraud on the part of the city authorities whose duty it was, under the contract with Rudolph S. Blome Company, to supervise and approve the work. It certainly met the measure of the allegation that it was “without due regard to the rights of the property owners on said street, including the plaintiff.”

Mr. Hawes testified on the subject:

“I saw the street and am acquainted with it for the whole length. I saw cuttings in the street at different places. There was a man there repairing it. I took down the gentleman who is building the county roads here. We measured the thickness of the pavement at several places. Measurements we took were about 3¼ to 3½ inches. The thickest place we found was 3½ inches. When I say 3⅝, that means the concrete and the cap together. We took samples from practically every block down there. I have some of those samples that I took with me. (Witness here exhibits samples to the court.) The material that I have here is part of the paving, both top and inside. I could take my fipger and dig out the stuff. The reason is that it was not properly put down. I dug most of that out with my fingers. I did not find any more that was much harder than this. ⅜ * * tried to get average samples of the pavement; there is some that is worse than these samples and some of them so fine that we had no way to bring it up. We had to have something to hold it; it was nothing but sand packed down 2½ inches, and you could pick it up with your hand. The granitoid cap was one-half inch deep. This that I have here is one-quarter inch thick. I have not put any chemicals or anything of the kind on this. I can find worse samples than this down there. At not a single place did we find any concrete under this cap 5⅜ inches thick. This sample is soft. Before the pavement was laid, East Third street opposite Mr. Herd’s property was a very good graveled street.”

On examination by the court:

“I have brought into court a quantity of this stuff collected at different points on that street. In the presence of the court I have taken up pieces of the paving and broken and crumbled it to pieces with my hand. It is an exceedingly soft material. In my opinion, the average paving on that street is really worse than these samples. By picking these pieces up in your hands and pressing upon them with your hands you can break them apart and crush them. That would not be sufficient in strength to stand pressure, automobiles or wagons and vehicles.”

There was other testimony of like tendency which, if credited by the court, as was evidently done, as we have already stated would authorize an inference of fraud, and we know of no decision that goes so far as to hold that a citizen against whom a personal obligation has been imposed for paving, and to secure which a lien has been declared upon Ms property, is helpless under circumstances of the kind stated.

For the purpose of the present discussion, it may be conceded that á city engineer’s act in approving an improvement of the character under consideration, when done in good faith and with due regard to the rights of the abutting owners, will be conclusive as against all attacks dependent upon matters of judgment and honest differences of opinion as to the character of the work; but it ought not to be so held, we think, where the departures from specifications are so gréat as to amount to an inference of fraud, or to constitute the work done substantially a different work from that contracted for.

Inasmuch, therefore, as there was no objection to the evidence on the ground that the allegations of the plea were not broad enough to authorize its admission, we will now construe the plea as sufficiently broad in its terms io include the proof, offered, and, so construed, it is broad enough to amount to an averment of a fraudulent approval of the work. Such construction is not out of harmony with well-considered authority on the subject.

Mr. Townes, in speaking of the construction of a pleading after verdict, says:

“It is difficult to state accurately the result of these decisions. It is clear that the rules applied in testing the sufficiency of the pleading when the point is raised for the first time' after verdict are more liberal even than in considering a general demurrer, for in the last case it is said that the demurrer if seasonably interposed should have been sustained. So all such intendments as can be invoked in such cases apply here. The difficulty arises when we undertake to determine how much more liberality shall be extended. Clearly the objection of argumentativeness is cured by the verdict, as the process by which the petition in the last-cited case was sustained is just the one prohibited by the ruling on that subject. Perhaps it may be correct to say that a verdict will cure all objections to a pleading which are based on matters of form, and all those based on matters of substance which do not involve the entire absence of some essential allegation; that any indirect method of allegation, or any statement, however general, which by any reasonable though liberal construction can be made to include the alleged omission, will be held to do so, and cure the defect, unless it has been called to the attention of the court by an unwaived exception' to the pleading or by objection to the testimony.” Townes’ Tex. PI., 2d Ed. page 404.

If right, therefore, in the indicated construction of the plea, it must be held sufficient as against the objection urged, even though there is no distinct allegation of fraud; for if the facts proved can, by any reasonable liberality of construction, be brought within the general terms of the plea, and if such facts amount to a fraud, the plea will be sufficient without the distinct imputation. State v. Wichita land & Cattle Co., 73 Tex. 450, 11 S. W. 488; Mussina v. Goldthwaite, 34 Tex. 126, 7 Am. Rep. 281; Carter v. Carter, 5 Tex. 93; Storer v. Lane, 1 Tex. Civ. App. 250, 20 S. W. 852. Appellants’ first assignment will be accordingly overruled.

Appellants present a number of other assignments urging objections to the testimony of Hawes and others, to which we have already adverted. The principal objection presented in these assignments, to wit, that the action of the city engineer in approving the work is conclusive, we think is sufficiently disposed of by what we have already said and by what follows in discussing the rights of contest conferred upon appellee by the city charter.

There are, however, the further objections that this testimony was irrelevent and immaterial. It is to be remembered that this controversy does not assume the form of a mere resistance on the part of a property owner in a suit upon an assessment made against him for an improvement of the street. This is a case where the owner of property abutting upon the street sought to be improved, under ordinances authorizing him so to do, appears before the city commission protesting and urging that the contemplated improvement is wholly unnecessary and will be without special benefit to his property, and where, after a denial of these objections on the part of the city commission, and by virtue of ordinances specifically giving him that right, he continues the contest in a district court with full right given to him to there urge the objections adversely determined by the city commission, and we do not think that under such circumstances the city and the contractor can deprive the property owner of Ms right to have his objections and rights determined in the judicial tribunal by proceeding with the improvement, notwithstanding the property owner’s objections, cause the work done to be approved by the city engineer, and thereafter prosecute an action against him, as here done, to recover the amount of the improvement assessment.

It is also to be remembered, in answering the objections of irrelevancy and immateriality, that the all-important question of whether appellee’s property was benefited by the improvement under consideration was also distinctly presented. Before the city commission it assumed the form of a protest that the improvement as contemplated would not benefit his properts^. Hater, in the district court, after the consolidation of the suit and in the amended petition, it was again specifically charged that the “attempted assessment and charge of personal liability against him is void because no special benefit from said paving in enhanced value of Ms property will arise to him from said proposed improvement.” Appellants offered evidence tending to support their contentions that the improvement as completed was in accordance with the specifications, and that thereby ap-pellee’s property was benefited, and we see no reason to doubt the view the trial court evidently entertained that, in answer to these contentions, appellee • might show, not only that as originally contemplated the appellee’s property would not be specially benefited, but that as actually completed it was not so.

In McQuillin’s Municipal Corporations, vol. 5, § 2046, it is said, with citation of cases, that:

“Should property be not in fact benefited by an improvement from which the property derives all of the benefit of the kind necessary to its use and enjoyment, usually it is not subject to assessment for the later improvement. For example, where a comer lot receives adequate water supply from pipes laid in one adjoining street, it cannot be assessed for the laying of pipes in the other adjoining streets, from which it would receive no benefits. So, under a charter providing that those whose premises connect with a common sewer, or who receive benefit thereby for draining their premises, shall each be assessed his just share towards the expense of laying or constructing such sewer, a landowner who has been assessed for the construction of such a sewer cannot be assessed for the expensa of changes therein made necessary by the fact that a new sewer is to be connected with it.”

It may be true, as under another assignment appellants contend, that the board of commissioners, as specified in section 5 of the ordinance from which we have quoted, “shall have power by resolution to order the making of such public improvements, or any of them, * * * and the passage of such resolution shall be conclusive of the public necessity and benefit thereof”; but the right of the city under its charter to determine “the public necessity” of a public improvement, and to pay therefor out of its general revenues, is one question, and the power of the city to invade the rights of an abutting landowner by assessing against him a personal liability and fixing upon his property a lien to secure its payment is altogether a different question. It might well be held that in a suit by a taxpayer to resist the levy of a general tax for the payment of public improvements to be paid for by the city out of its general revenues, or out of some special fund appropriated for the purpose, that the taxpayer could not question the public necessity of the work, but a consideration of the charter as a whole, as it seems to us, very clearly shows the purpose of the legislature, that when the city shall undertake to make personal assessments and create liens, the citizen against whom such liabilities are asserted has the right to question the proceedings in whole or in part. The language of the charter is (section 8) that he “shall be entitled to a full and fair hearing as to all matters affecting said assessment of personal liability, or the benefits of said improvement, if any, to property proposed to be assessed, and any objection to such assessment, or to the making of such improvement, or any invalidity or irregularity in the proceedings, with reference thereto, or any other objection.” These objections may be urged in the first instance before the commission, and his right to later urge the same objection in a trial before the district court is given by language equally as broad. The language having specific reference to the trial in the district court (section 10) provides, in effect, that the contest there shall be upon “any ground” aifecting the validity of the assessment of personal liability or affecting “any proceeding had with reference thereto.”

A further ground of support for the judgment below which, as it seems to us, is conclusive is the court’s finding that the improvement was unnecessary and that appel-lee’s property received no special benefit from the improvement under consideration. The city charter itself specifically provides (section 7) that “no part of such costs (the costs of improvement) shall be assessed against any owner of property in excess of the proposed benefits thereto in enhanced value thereof arising from the improvement” etc. This is but a specific declaration of a doctrine firmly established by our Supreme Court in Hutchenson v. Storrie, 92 Tex. 685, 51 S. W. 848, 45 L. R. A. 289, 71 Am. St. Rep. 884, following a decision of the United States Supreme Court in the case of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443. In the Storrie Case our Supreme Court quoted sections 17 and 19 of the Constitution of this state and section 1 of the Fourteenth Amendment to the Constitution of the United States.

Section 17 of the state Constitution reads:

“No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person. ⅜ ⅜ * ”

Section 19:

“No citizen of this state shall be deprived of life, liberty, property, privileges, or immunities, or in any manner disfranchised, except by the due course of the law of the land.”

Section 1 of the Fourteenth Amendment of the Constitution of the United States reads:

“Nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

After making these quotations and referring to the case of Norwood v. Baker, above mentioned, the court says:

“Norwood v. Baker established the following propositions which are applicable to the case at bar:
“1. The Legislature of a state cannot authorize a municipal corporation to assess upon abutting property the cost of a public improvement in a sum materially exceeding the special benefits which that property may derive from the work. The court said: ‘In our judgment, the exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to Mm is, to the extent of such excess, a taking under the guise of taxation of private property for public use without compensation.’ It has been uniformly held that such assessments rest upon the grounds that the benefits conferred are equal to the demands made upon the property, but the courts, in applying the law to the particular cases, have heretofore ignored the principle upon which the authority rests, and have held that the exercise of the power will be upheld, although the facts out of which it arises do not exist, and that benefits will be presumed to equal the assessment.
“2. The Legislature of a state cannot confer upon a municipal corporation the authority to make such assessment conclusive upon the owner without giving an opportunity to contest the question of benefits. Upon that point the court said: ‘As already indicated, the principle underlying special assessments to meet the cost of public improvements is that the property upon which they are imposed is peculiarly benefited, and therefore the owners do not, in fact, pay anything in excess of what they receive by reason of such improvement. But the guaranties for the protection of private property would be seriously impaired if it were established as a rule of constitutional law that the imposition by the Legislature upon particular private property of the entire cost of public improvement, irrespective of any peculiar benefit accruing to the owner from such improvement, could not be questioned by him in the courts of the country. It is one thing for the Legislature to prescribe it as a general rule that property abutting on a street opened by the public shall be deemed to have been specially benefited by such improvement, and therefore should specially contribute to the cost incurred by the public. It is quite a different thing to lay down as an absolute rule that such property, whether it is in fact benefited or not by the opening of the street, may be assessed by the front foot for a fixed sum representing the whole cost of the improvement, and without any right in the property owner to show, when an assessment of that kind is made or is about to be made, that the sum so fixed is in excess of the benefits received.’ If the law under which the assessment in controversy in this suit was made did not afford to the property owner a fair opportunity to contest the correctness of the assessment made upon her property, she was not estopped to deny its validity.”

We think, then, that it must be held that appellee had the undoubted right to raise, as he did, both before the commissioners and in the district court, the issues of a want of a necessity for the repaving and of any special benefit to his property by the improvement under consideration. This he did, and, as already stated, the issues were determined in his favor by a specific finding of the court, which in the interest of clearness and to preserve the continuity of our thought will be here again quoted, viz.:

“The court finds from the evidence that no special benefit to the said H. B. Herd from said paving in enhanced value of bis property accrued to him by reason of said paving, and that his said property was not enhanced in value by said paving; that before said paving was made that said street was a good street in all weather and that repaving of the same under the circumstances was unnecessary.”

It cannot be said that appellants’ attack upon this finding must be sustained. Indeed, the finding that the repaving was “unnecessary” is not questioned. The assignment is that the court’s finding “is not supported by the evidence and is contrary to the great weight and preponderance of the evidence, in that the great weight and preponderance of the evidence in this cause was to the effect that the value of plaintiff’s said property was enhanced by said paving at least to the amount of said assessment.”

The evidence adduced by appellants in their statement under this assignment is as follows:

“L. D. Hawes testified that he had lived in Ft. Worth about twenty years. His business was that of a lumber dealer. He had bought and sold quite a good deal of real estate in Ft. Worth in the last five or six years. He thought that he was acquainted with the market value-of the property on East Third street at the corner of Commerce belonging to H. B. Herd, in 1912. 1-Ie would think that the market value of that property in 1912 prior to the paving was-in the neighborhood of twenty or twenty-five thousand dollars. . He did not think that it was-worth any more immediately following the putting down of the pavement.
“T. B. Gilliland, witness for appellee, testified that he had been in the real estate business-in Ft. Worth about fourteen years. That Mr. Herd’s property on East Third street in 1912, immediately before the paving was put down,, had a market value of $20,000 or more, possibly as high as $25,000. Immediately after the paving was put down the market value of the property was not enhanced at all. On cross-examination Mr. Gilliland said that he did not mean to say that financial conditions have not had a good deal to do with making the property stand still; that ordinarily he would say the financial situation we have confronted for some time has had a great deal to do with it. When asked whether in normal times he thought that paving would enhance the value of said property, he replied that he would answer that question by expressing his views about that pavement.
“Appellants introduced witnesses N. M. Press-ley, W. H. Greenwood,_ W. C. Blackman, C. T. Vivion, and. J. W. Hemngton, all of whom testified to having had experience of several years in. the real estate business in Ft. Worth and being acquainted with real estate values in said city. All of them testified that the value of said property had been enhanced by said paving in amounts variously estimated from the value of the paving to $5,000.”

The well-established rule on this subject in this state is that, in testing the sufficiency of the evidence to sustain the trial court’s findings, the evidence most favorable to the appellee is to be considered.

Mere conflicts of evidence are to be determined under the statutes by the court or jury below, and if on appeal the verdict or finding is supported by any credible evidence of legal sufficiency to sustain the finding, the appellate court must approve.

A specific statement of the rule is that:

“We must reject all evidence favorable to the plaintiffs in error, and consider only the facts and circumstances which tend to sustain the verdict; and if the jury, in an honest and impartial effort to arrive at the truth, might have reached the conclusion embodied in this verdict, this court cannot set it aside.” Cartwright v. Canode (Sup.) 171 S. W. 696; F. & M. Gin Co. v. Simmons, 178 S. W. 622.

In the light of the rule, as it seems to us, appellants’ own presentation of the question demonstrates that it is our duty to support the court’s finding, which in our opinion requires an affirmance of the judgment below.

Other questions are presented, but they are-thought to be immaterial, or sufficiently answered by what we have already said. All assignments are accordingly overruled and the judgment is affirmed.

Affirmed.

DUNKLIN, J., disqualified and not sitting-
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author: LEVY, J.

text:
    WELLS FARGO & CO. EXPRESS v. PUGH.
    (No. 1544.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 17, 1916.
    Rehearing Denied April 6, 1916.)
    1. Carriers <⅜^83 — Delivery to Consignee —Violating Directions — Liability.
    An express company is liable where it delivers goods to the consignee without production of its receipts therefor, contrary to shipper’s directions to the company’s agent, to whom they were delivered and who was told that they belonged to the shipper, and that drafts with the receipts attached would be drawn on the consignee for their price.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 308-315; Dec. Dig. <⅝^83.]
    2. Assignments <©=126 — Action by As-signee.
    The assignee of a shipper’s claim for wrongful delivery may sue the carrier; the assignment protecting it from any future action by the assignor.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 195-197;. Dec. Dig. <8=>126.]
    Appeal from Bowie County Court; Lee Tidwell, Judge.
    Action by J. R. Pugh against the Wells Fargo & Company Express. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Appellee and J. R. Shipp each brought to appellant’s agent at Nash, Tex., certain coops of chickens and turkeys, and cases of eggs and butter, to he shipped to Ft. Worth, Tex. A nonnegotiable receipt in the usual form was given by the agent to each of the shippers. The several shipments were consigned to C. H. Woodard, Ft. Worth, Tex. At the time of the delivery to the appellant’s agent each of the shippers informed said agent that the property shipped was theirs, and that C. H. Woodard did not own the same, but that C. H. Woodard had ordered the poultry and produce from them and had directed that a draft for the money be drawn on him through the bank .with the bill of lading or receipt attached thereto; that Woodard was not to get the shipments unless he paid the drafts, and that they were making the shipments that way, and directed that the shipments be not delivered to Woodard by the express company until said C. H. Woodard exhibited the express receipts so attached to the drafts. The shippers attached the express receipts given to them by the appellant’s agents to drafts on Woodard, and forwarded them at once through the bank to Ft. Worth by appellant before the drafts were paid by Woodard, and without the production by Woodard of the express receipts. J. R. Shipp assigned his claim to appellee, who brought the suit against appellant for damages. Judgment was rendered, on the verdict of the jury, in favor of appellee.
    Glass, Estes, King & Burford, of Texarka-na, for appellant. Mahaffey & Keeney, of Texarkana, for appellee.
   LEVY, J.

(after stating the facts as above).

The petition may properly be treated as a suit for damages as of conversion by misde-livery of the shipment. And it is believed that under the proof in the case the appellee may maintain this suit. It is the rule that where the carrier has notice that the consignee is not the owner of the goods, nor entitled to unconditionally receive them, a delivery to the consignee in violation of the rights of the shipping owner will make the carrier liable for the damages sustained. Express Co. v. Dickson, 94 U. S. 549, 24 L. Ed. 285; 6 Cyc. 469. See rule in Railway Co. v. Bank, 100 Tex. at page 22, 93 S. W. 431. And in accordance with this rule the ap-pellee was authorized to make proof of notice, as was given, to appellant’s agents of the ownership. Assignments of error raising these points above are therefore overruled.

J. R. Shipp having assigned his claim to appellee, the appellee may sue thereon; and appellant would b.e protected against any further judgment on the part of J. R. Shipp. Thompson v. Cartwright, 1 Tex. 87, 46 Am. Dec. 95; Railway Co. v. Jenkins, 89 S. W. 1107.

The judgment is affirmed.
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