author: KEY, O. J.

text:
    AUSTIN, Commissioner of Insurance and Banking, et al. v. FIRST NAT. BANK OF TEAGUE.
    (No. 6030.)
    (Court of Civil Appeals of Texas. Austin.
    June 26, 1918.
    Rehearing Denied Oct. 16, 1918.)
    Banks and Banking @=>15 — Depositor’s Guaranty Fund — Statute — “Deposits Otherwise Secured.”
    Under Rev. St. art. 486, one bank’s deposit with another, evidenced by a certificate of deposit and secured by bond of depositary bank, with sureties, was a secured deposit, unprotected by the Depositors’ Guaranty Fund, “deposits otherwise secured” excepted by statute, meaning secured otherwise than by Depositors’ Guaranty Fund Act, including article 486.
    Appeal from District Court, Travis County; Geo. Calhoun, Judge.
    Suit by the First National Bank of Teague against Charles O. Austin, Commissioner of Insurance and Banking, the Farmers’ & 'Merchants’ State Bank of Teague, and J. D. Moore, its receiver. From the judgment the commissioner appeals.
    Reversed and rendered against the First National Bank of Teague aud-in favor of the commissioner in one particular ; otherwise affirmed.
    B. F. Looney, Atty. Gen., and O. M. Cure-ton, Asst. Atty. Gen., for appellant. C. S. Bradley, of Groesbeek, for appellees.
   KEY, O. J.

It is conceded that the following statement contained in appellant’s brief is correct:

“This case was instituted by the appellee the First National Bank of Teague, filing its original petition in the district court of Travis county, Fifty-Third judicial district, on August 16, 1917. The Farmers’ & Merchants’ State Bank of Teague, an insolvent state banking corporation, J. D. Moore, its receiver, and Charles O. Austin, the Commissioner of Insurance and Banking, were made defendants. The purpose of the suit was the establishment of a claim of the appellee against the insolvent bank, and for its classification by the Commissioner of Banking as a noninterest-bearing and unsecured deposit, payable out of 'the Depositors’ Guaranty Fund. The case was tried before the court on an agreed case or statement of facts, and judgment rendered on the 1st day of March, 1918. The judgment established the claim against the insolvent bank and its receiver, and directed the Commissioner of Banking to classify and allow the claim as a noninterest-bearing and unsecured claim, payable out of the Depositors’ Guaranty Fund of the state. The Commissioner of Banking, on the overruling of his motion for a new trial, excepted, and gave notice of appeal. The court directed that the original agreed statement of facts be sent up as a part of the record in this case, which has accordingly been done.
“For the purpose of trial and final disposition of this case, the matter in controversy was submitted to the court and decided as an agreed case under the statutes. The facts necessary to be considered by the court are shown in the agreed statement of facts, substantially as follows:
“ ‘The First National Bank of Teague, Tex., a banking association, duly organized and existing under the laws of the Congress of the, ' United States relating to national banks, with its place of business in Teague, Freestone county, Tex., and J. D. Moore, of Travis county (now in Freestone county), Tex., who is the duly appointed, qualified, and acting receiver of the Farmers’ & Merchants’ State Bank of Teague, Tex., thereunto duly appointed, qualified, and acting under and by virtue of orders and decrees of this honorable court, and the Hon. C. O. Austin, the duly appointed, qualified, and acting Commissioner of Insurance and Banking of Texas, 1;he parties to this suit and proceeding, whose names are signed hereto, and being all of the parties to this suit and controversy, hereby agree that the following is a true and correct statement of the facts in this suit and controversy:
“ ‘(1) That on August 28, 1916, the Farmers’ & Merchants’ State Bank of Teague, Tex., was and for several years had been a banking corporation, duly incorporated and existing under and by virtue of the laws of the state of Texas, with its place of business in Teague, Freestone county, Tex., and up to that date was doing a general banking business there; that prior thereto said state bank had complied with all of the provisions of the statute in relation to, and was then in all respects subject to and operating under, the provisions of the Deposit Guaranty Fund plan of such state bank, as provided by law, and was then operating as such state bank under said general fund plan.
“ ‘ (2) That on said last-named date said bank had become and was insolvent, and the Commissioner of Insurance and Banking of the state took possession of said Farmers’ & Merchants’ State Bank of Teague, Tex., as provided by law, and now has charge of said bank as such, except to the extent superseded by the receivership for the purpose of liquidating same, as provided by law and as hereinafter stated.
“ ‘(3) That on the 29th day of August, 1916, J. D. Moore was duly appointed, and thereafter qualified, and is now and ever since has been the duly appointed, qualified, and acting, receiver of said Farmers’ & Merchants’ State Bank, under proper qualification .and orders of this honorable court.
“ ‘(4) That on the day that the Commissioner of Insurance and Banking took possession of said Farmers’ & Merchants’ State Bank of Teague, Tex., and prior thereto, the First National Bank of Teague, Tex., who files and prosecutes this its plea and suit, had on deposit with the Farmers’ & Merchants’ State Bank of Teague, Tex., the sum of five thousand ($5',000) dollars to its credit, as evidenced by certificate of deposit, upon which deposit no interest was being paid, directly or indirectly, by said bank, its officers or stockholders, and no interest has been or was ever paid on said deposit.
“ ‘(5) That all just and lawful offsets, payments, and credits in favor of said Farmers’ & Merchants’ State Bank of Teague, Tex., have been allowed and deducted from said deposit, and there still remains due and unpaid on same the sum of five thousand ($5,000) dollars.
“ ‘(6) That when said deposit was made the Farmers’ & Merchants’ State Bank of Teague, Tex., executed and delivered to the First National Bank of Teague, Tex., its certificate of deposit, which is in words and figures as shown in Exhibit A attached and made a part of this agreement.
“ ‘(7) That said deposit never was and is now in no manner secured either by collateral, bonds, liens, or otherwise, unless the facts stated in No. 8 as following, as a matter of law, amounted to such security.
“ ‘(8) That at the time of making said deposit, and as a part of that transaction, the First National Bank of Teague, Tex., accepted from the makers thereof and now has an instrument executed by the parties whose names appear to same, which is as shown in Exhibit B attached and made part of - this agreement.
“ ‘(0) That said deposit was made with the Farmers’ & Merchants’ State Bank of Teague, Tex., by the First National Bank of Teague, Tex., with the express understanding and agreement between all parties that no interest should be paid on said deposit, and' no interest has been paid or claimed on same.
“ ‘(10) That the First National Bank of Teague, Tex., presented its* claim for said deposit to the said receiver on the 11th day of October, 1916, which was duly and properly proved, as required by the statute, disclosing the facts set out in No. 8 above, and was in substance as shown in Exhibit O hereto attached and made part hereof, and had said certificate of deposit and bond or obligation attached to it, which was presented as an unsecured, noninterest-bearing deposit for allowance, classification, and payment, and said claim has been rejected as such daim, and has been disallowed by the Oommissioner of Insurance and Banking, but was recognized and allowed only as a common creditor’s claim.’
“The exhibit made a part of the agreed statement of facts was merely proof of claim presented by appellant, the Oommissioner of Insurance and Banking, and is shown in the agreed statement of facts, as well as on pages 20 and 21 of the transcript.
“The bond referred to in the agreed statement of facts, quoted above, and which accompanied tho certificate, and which was given at-the time the deposit was made and the certificate of deposit issued, and which is a part of the agreed statement of facts in this case, was as follows, to wit:
“ ‘State of Texas, County of Freestone. Whereas, the First National Bank of Teague, Tex., has deposited in the Farmers’ & Merchants’ State Bank of Teague, Tex., the sum of five thousand ($5,000) dollars, which is evidenced by certificate of deposit this day issued to the said First National Bank of Teague, Tex.; and
“ ‘Whereas, the Farmers’ & Merchants’ State Bank of- Teague, Tex., has agreed to pay the said First National Bank of Teague, Tex., the said sum of five thousand ($.5,000-) dollars, according to the terms and conditions of said certificate of deposit, without interest:
“ ‘Therefore we, the Farmers’ & Merchants’ State Bank of Teague, Tex., as principal, and T. R. Watson, J. E. Watson, W. R. Watson, N. A. Lucas, and S. E. Tucker, as sureties, acknowledge ourselves jointly and severally bound unto the First National Bank of Teague, Tex., in the penal sum of five thousand ($5,000) dollars in lawful money of the United States of America, for the payment of which we bind ourselves, our heirs, assigns, executors,, and administrators.
“ ‘The condition of the above obligation is such that if the above-bounden Farmers’ & Merchants’ State Bank of Teague, Tex., shall well and truly pay or cause to be paid unto the First National Bank of Teague, Tex., the said sum of five thousand ($5,000) dollars, according to the tenor of said certificate of deposit, then the above obligation to be null and void; otherwise to remain in full force and effect.
“ ‘Witness our hands, together with the seal of said bank, this the 27th day of July, 1916. “ ‘[Signed] Farmers’ & Merchants’ State Bank, Teague, Texas, Principal Surety.
“ ‘By J. E. Watson, V. Pt., Surety.
“ ‘T. R. Watson, Surety.
“ ‘J. E. Watson, Surety.
“ ‘S. E. Tucker, Surety.
“ ‘N. A. Lucas, Surety.
“ ‘W. R. Watson, Surety.’
“The certificate of deposit, issued at the time the deposit was made, and the bond, just copied, was made, read as follows, to wit;
“ ‘No. 2755.
“ ‘Farmers’ & Merchants’ State Bank,
“ ‘Teague, Texas, July 27, 1916. $5,000.
“ ‘First National Bank, Teague, Texas, has deposited in this bank five thousand & no/100 dollars, payable six months after date to the order of themselves on the return of this certificate, properly indorsed.
“ ‘J. E. Watson, V. Pt.
“ ‘Not subject to check.- No. 59.’
“Petition and answer were filed in this case, but the issue presented in these documents was the same as that presented in the agreed case and statement of facts, to wit, the appellant insisting that the deposit was payable out of the (Depositors’ Guaranty Fund of the state, and the Commissioner of Insurance and Banking, ap-pellee herein, insisting that such deposit was a ‘secured’ deposit, and not protected by,nor payable out of, the Depositors’ Guaranty Fund.
“On the state of facts shown in the agreed case, the court entered a judgment in favor of appellant. That portion of the judgment necessary to be considered by the court was, in substance, as follows:
“ ‘It is therefore ordered, adjudged, and decreed by the court that the plaintiff, the First National Bank of Teague, do have its judgment, establishing its claim against the defendant, the Farmers’ & Merchants’ State Bank of Teague, and against J. D. Moore, its receiver as such only, for the amount of five thousand ($5,000) dollars, with interest thereon at- the rate of six (6) per cent, per annum from August 28, A. D. 1916, under the limitations herein.set forth, and for all costs of suit; provided, however, that no interest shall be paid until all debts of the said Farmers’ & Merchants’ State Bank of Teague have been paid as they existed on August 28, 1916, when said bank was taken possession of by the Commissioner of Insurance and Banking, .and then such interest shall only be paid pro rata out of the residue of assets available for the payment of interest; that this judgment establishing said cjaim is rendered against the receiver of said bank only as receiver, and not against him personally, and shall not involve him personally, and the amount thereof shall be payable only out of such assets of said insolvent bank as may come into his hands, and then only pro rata with other creditors of the bank as other approved claims are paid; and the receiver will allow this judgment as an established claim against said bank the same as other claims of its class.
“ ‘It is further ordered, adjudged, and decreed that the plaintiff’s claim of five thousand ($5,000) dollars be, and the same is hereby, classified and established as a noninterest-bear-ing and unsecured claim against the Farmers’ & Merchants’ State Bank of Teague, Tex., and as payable out of the Depositors’ ’Guaranty Fund of the state; and Charles O. Austin, Commissioner of Insurance and Banking, is directed to so classify and allow the same; and, when so classified, it is directed that the Farmers’ & Merchants’ State Bank of Teague, Tex., and J. Di Moore, its receiver, will treat and regard the same in all respects as a noninterest-bearing and unsecured claim against the Farmers’ & Merchants’ State Bank of Teague; provided, however, that only the principal amount of said claim, to wit, five thousand ($5,000) dollars, is allowed and classified as a noninter-est-bearing and unsecured claim, payable out of the guaranty fund.’ ”

Opinion.

While appellant’s brief contains more than one assignment of error, but one question is presented for decision, which is embodied in the following proposition asserted by appellant:

“Inasmuch as the uncontradicted evidence in this case showed that the deposit which formed the basis of appellee’s claim was a ‘secured’ deposit, having been ‘secured’ by a bond executed by the Farmers’ & Merchants’. State Bank of Tefigue to the appellee, and signed by sureties, such deposit was not protected by the Depositors’ Guaranty Fund of this state, and it was error on the part of the court to classify appellee’s claim as a noninterest-hearing and unsecured claim, payable out of the Guaranty Fund, and directing the appellant, Charles O. Austin, Commissioner of Insurance and Banking, to so classify and allow said claim against or as payable out of the Depositors’ Guaranty Fund of this state; all for the reason that, under the laws of this state, deposits which are ‘secured’ in any other manner than by the Depositors’ Guaranty Fund are not protected by, nor payable out of, that fund.”

We sustain that contention.

Article 486 of the Revised Civil Statutes defines those claims which are payable out of the Depositors’ Fund, and reads as follows:

“Art. 486. In the event the Commissioner of Insurance and Banking shall take possession of any bank or trust company, subject to the Depositors’ Guaranty Fund plan of this chapter, as herein provided, the depositors of said bank or trust company, as specified in article 448, shall be paid in full out of the cash in said bank or trust company that can be made immediately available from such bank; and the remainder shall be paid out of the Depositors’ Guaranty Fund through the said board, in the event the cash available in said institution shall be insufficient; provided, that deposits upon which interest is being paid, or contracted to be paid, directly or indirectly by said bank, its officers or stockholders, to the depositor and deposits otherwise secured, shall not be insured under this chapter, hut shall only receive the pro rata amount which may be realized from the assets, resources and collections of and from such banks and trust companies, its stockholders or directors.”

In that article the proviso excepts from the language which precedes it three classes of deposits, which, but for the proviso, would be included within the preceding language. Generally speaking, the office of a proviso is to restrict what otherwise would be the effect of the statute; and the proviso in this instance was manifestly inserted for that purpose. It shows clearly the legislative intent to except from the benefits of article 486 three classes of deposits: (1) Deposits upon which interest is being paid; (2) deposits upon which interest had been contracted to be paid; and (3) deposits otherwise secured.

The controversy in this case — if, indeed, room for controversy exists — is predicated upon the meaning of the words “otherwise secured.” Counsel for appellee the First National Bank of Teague make the contention, which seems to have prevailed in the court below, to .the effect that the language re^ ferred to means otherwise secured by the statute just being enacted; while counsel for appellant, the Commissioner of Insurance and Banking, contend that the words “otherwise secured,” as used in the proviso, signify and mean deposits secured otherwise than by the Depositors’ Guaranty Fund Act (Rev. St. arts. 445-517), of which article 486 is a portion.

The deposit protected by the Guaranty Fund is not protected by the bank, but by the statute providing for the Guaranty Fund. The property of the bank does not protect any depositor, because the statute expressly provides that creditors shall share equally in the assets of an insolvent state bank. R. S. arts. 470, 486, 487, and 551. Therefore it seems quite obvious that, when the Legislature used the words “otherwise secured,” they were used for the purpose of describing deposits secured otherwise ' than by the law then being enacted.

In Fuller v. Aylesworth, 75 Fed. 604, 21 C. C. A. 505, the court was required to construe rule 29 (3 Sup. Ct. xvi), promulgated by the Supreme Court of the United States, which reads as follows:

“Supersedeas bonds .in the circuit court must be taken with good and sufficient security that the plaintiff in error, or appellant, shall prosecute his writ of appeal to effect, and answer all damages and costs if he fail to make his plea good. Such indemnity wherein the judgment or decree is for the recovery of money ‘not otherwise secured,’ must be for the whole amount of the judgment or decree, including just damages for delay and costs and interest on the appeal.”

In that case the court held that the phrase “otherwise secured” meant otherwise than by the terms of the judgment.

As before intimated, we see but little, if any, room for controversy about the construction of the statute now under consideration. In our opinion, the agreed facts bring the case clearly within the scope of the proviso in article 486; and for that reason we hold that the trial court erred in that portion of its judgment which holds that the judgment in favor of the First National Bank of Teague against the other defendants was payable out of the Depositors’ Guaranty Fhnd of the state, and therefore in that respect the judgment is reversed and here rendered against the First National Bank of Teague, and in favor of Chas. O. Austin, as Commissioner of Insurance and Banking. In all other respects the judgment is affirmed.

Reversed and rendered in part, and in part affirmed.
      <gjs>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PLEASANTS, 0. J.

license: Public Domain

text:
    LEFEVRE v. LEFEVRE.
    (No. 7608.)
    (Court of Civil Appeals of Texas. Galveston.
    June 26, 1918.
    Rehearing Denied Oet. ' 10, ' 1918.)
    1. Continuance <©=>37 — Motion—Discretion oe Court.
    Although defendant, in divorce suit, filed his amended answer and cross-bill only three days before trial, ihold there was no abuse of discretion in denying continuance to enable plaintiff to prepare for trial, where she failed to state in her motion that by a continuance she could probably obtain testimony to contradict alleged new issues presented.
    2. Appeal and Error <@=>1043(7) — Denying Continuance — Harmless Error.
    Assignment that court erred in not granting plaintiff’s motion for a continuance will not be sustained, where it is apparent from the record that no injury resulted to plaintiff.
    3. Pleading <©=>356(4) — Motion to Strike Pleadings oe Unnecessary Length.
    Although defendant’s amended answer and cross-bill in suit for divorce was unnecessarily long, where there was nothing difficult of understanding in any of its allegations, the court did not err in refusing motion to strike on the ground that it was filed only three days before trial, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1824, 1825.
    4. Divorce <g=>27(7) — Grounds—Vexations and Insults.
    “Studied vexations and deliberate insults,” heaped upon defendant husband by plaintiff wife, leaving no room to doubt that her treatment of him was of such cruel nature as to render his living with her insupportable, warranted decree for defendant.
    5. Husband and Wipe <@=>264--Community Property — Evidence.
    Evidence 'held to establish that funds and securities held by a third person in trust for plaintiff and defendant was all community property.
    6. Husband and Wipe <@=>162 — Property Rights — Voluntary Payment — Separate Estate.
    Plaintiff and defendant being sole heirs at law of a son, and defendant father having, out of his separate estate, paid debts of son and expenses of last sickness and burial, plaintiff wife was liable for one-half of amount so paid by defendant; the payment not being voluntary, but necessary for protection of estate.
    Appeal from District Court, Harris County; J. D. Hdrvey, Judge.
    Divorce suit by Adela B. Lefevre against Arthur Lefevre, in which defendant filed a cross-bill. Judgment against plaintiff on her claim for divorce, and in favor of defendant on his cross-action for divorce, and plaintiff appeals.
    Affirmed.
    Ward & Ward, of Houston, for appellant. Wm. H. Wilson, of Houston, for appellee.
   PLEASANTS, 0. J.

This suit was brought by appellant against the appellee for divorce from the bonds of matrimony and for adjustment of property rights between plaintiff and defendant. The grounds for divorce alleged in the petition are cruel treatment and outrages by defendant of such a nature as to render plaintiff’s living with him insupportable. The petition alleges an indebted- • ness by defendant to plaintiff’s separate estate in the sum of $9,699.96 and asks judgment against defendant for said sum.

Defendant’s answer denies the allegations of cruel treatment and outrages contained in plaintiff’s petition, admits that defendant has received various sums of money from plaintiff’s separate estate, the amounts so received being set out in’ the answer, and sets up various amounts paid to plaintiff by the defendant, and amounts paid for the benefit of plaintiff’s separate estate, for which amounts defendant asks to be credited on the sum found to be due by him to plaintiff. By cross-bill defendant sought a judgment for divorce from plaintiff on the ground of such cruel treatment and outrages by the plaintiff as to render his living with her insupportable.

The trial in the court below without a jury resulted in a judgment against plaintiff on her claim for divorce, and in favor of defendant on his cross-action for divorce. The defendant was adjudged indebted to plaintiff’s separate estate in the sum of $1,-427.09, and in addition to said sum the plaintiff was awarded the securities and funds in the hands of J. K. Hexter, amounting to the sum of $1,970, which the said Hexter had received and is holding in trust for plaintiff and defendant as their respective interests therein should be established. Certain lots in the city of Wichita, Kan., described in defendant’s answer, were adjudged to be his separate property. Six sections of land in Pecos county, Tex., were adjudged to belong one-half to plaintiff and one-half to the defendant. The remaining property involved in the suit, consisting of household and kitchen furniture, was adjudged to be community property. Commissioners were appointed to make partition of the community property and the six sections of land above mentioned. From this judgment plaintiff prosecutes this appeal.

The first assignment of error complains of the ruling of the court refusing to grant plaintiff’s motion for a continuance. The ground upon which the continuance was asked was that three days before the trial defendant had filed an amended answer and cross-bill, setting up many matters which plaintiff was not aware would be put in issue on the trial, and concerning which plaintiff had not had ample opportunity to collect evidence or to investigate; “that the period elapsing between the filing of said answer and cross-action and the time for trial was wholly insufficient to afford her an opportunity to prepare for trial with regard to the new matters set out, or even thoroughly to digest the contents of said amended answer and cross-action; that defendant has had several weeks in which said amended answer and cross-action" might have been filed, and by the filing of which sufficient time, should have been afforded plaintiff in which to prepare for trial, but failed, as aforesaid, to file the same until last Saturday, and that to force her to go' to trial at the present time without mating sufficient preparation with regard to the matters set out in said answer, would be an imposition on her, and would result in a miscarriage of justice, all as will appear by reference to plaintiff’s bill of exceptions No. 1, paragraphs Nos. 2 and 3; that defendant’s first amended original answer and cross-action merely denied plaintiff’s allegations, and alleged his cross-action for divorce, without any mention of property rights, which will appear by reference to said amended answer; but the second amended original answer and cross-action contains many new matters theretofore not brought in issue by the pleadings, and, as apparent therefrom, covering transactions involving the separate and community property of plaintiff, extending over 30 years of their married life, in different states and in many different places, and alleged grounds for divorce not set out in the prior pleading, among the new matters alleging physical violence on the part of plaintiff toward defendant.”

This assignment is without merit. The motion is not statutory, and it cannot he said that the trial judge abused his discretion in refusing to continue the case. It is not even stated in the motion that by a continuance of the cause plaintiff could probably obtain testimony to contradict the alleged new issues presented by the pleading. In respect to the cross-action for divorce, the only new facts alleged in the amended cross-hill were that plaintiff had been guilty of physical violence towards defendant. The only adts of physical violence testified to upon the trial occurred when no one was present, other than plaintiff and defendant and their son, Arthur, all three of whom testified upon the trial. It is therefore manifest that a continuance of the case would not have enabled plaintiff to have procured any additional testimony upon this issue. Besides this, the physical violence was but a small part of defendant’s complaint of cruel treatment, and his testimony as to the alleged acts of physical violence expressly acquits plaintiff of any intention of causing him serious bodily injury. The only complaint made by plaintiff in regard to findings of the court as to her property rights was as to the failure of the court to find that $1,000 of the funds and securities held by J. K. I-Iexter belonged to her separate estate, and the finding of the court that she should be charged with one-half of the debts due by the estate of Guy Lefevre, the deceased son of plaintiff and defendant, which were paid by the defendant, the property belonging to. said estate having been inherited equally by plaintiff and defendant. The finding as to the $1,000 was supported by plaintiff’s testimony, and the holding of the court in regard to plaintiff’s liability for one-half of the debts due by her deceased son is a conclusion of law based upon undisputed facts. It is thus shown that, in addition to the insufficiency of the motion to require the court to grant the continuance, it clearly appears from the record that no injury resulted to plaintiff because of the refusal of the court to grant the motion.

After the motion for continuance was overruled, plaintiff moved to strike out the amended answer and cross-bill of defendant, on the ground that it was filed so short a time before the trial and contained so many and complicated allegations “that it had not been possible thoroughly to digest the contents of the same and prepare for trial on the matters therein set out.” While the answer is lengthy, probably unnecessarily long in its enumeration of the many aggravating acts and words of plaintiff towards defendant, there is nothing difficult of understanding in any of its allegations. It was filed three days before the trial of the case, and the court would not have been authorized to strike it out on the ground that it was not filed in time. Vernon’s Sayles’ Civil Statutes, arts. 1824, 1825; Boren v. Billington, 82 Tex. 137, 18 S. W. 101; Railway Co. v. Butler, 34 S. W. 756.

It would serve no useful purpose to set out the evidence upon which the court held that defendant was entitled to a divorce upon the ground of cruel treatment and outrages on the part of plaintiff of such nature as to render his living with her insupportable. It is sufficient to say that in our opinion this holding is amply sustained by the evidence. It may be conceded that the acts of physical violence shown by the evidence were not such as in themselves would authorize a decree granting a divorce; but, as observed by Judge Willie, speaking for our Supreme Court in the case of Jones v. Jones, 60 Tex. 460:

“Our statute differs from those of a majority of the states in respect to the. cruel treatment which will authorize a divorce. It does not confine such treatment to bodily harm, or threats of the same, and properly includes within the meaning of ‘excesses, cruel treatment and outrages,’ insults or injuries to the mind or the heart. * * * Arid why should it not be so held? What are wounds to the person as compared to those that affect the mind? The former may be healed; the latter endure for a lifetime.”

In Sheffield v. Sheffield, 3 Tex. 87, it is said:

“It cannot be doubted that a series of studied vexations and deliberate insults and provocations would, under our statute, be sufficient cause for divorce, without apprehension of personal violence or bodily hurt. This would constitute the intolerable treatment contemplated by the statute.”

A similar interpretation is given our statute in the case of Dawson v. Dawson, 63 Tex. Civ. App. 168, 132 S. W. 379.

The testimony of the defendant and the two children of plaintiff and defendant shows that for many years he has suffered from “studied vexations and deliberate insults” heaped upon him by plaintiff, and leaves no room to doubt that her treatment of him has been of such cruel nature as to render his living with her insupportable, and to entitle him to a divorce.

Turning, now, to appellant’s complaints in regard to the adjudication by the court of the property rights of herself and defendant, we find that the evidence sustains the conclusion of the trial court that the $1,970 funds and securities in the hands of Mr. J. K. Hexter was community property, and appellant’s contention that the undisputed testimony and the admissions of appellee’s answer show that $1,000 of said amount was owned by her as separate property is not borne out by the record. The pleadings of defendant do not admit that any $1,000 of the money in Mr. Hexter’s hands was plaintiff’s separate estate, but state that plaintiff has in her possession a considerable amount in cash and debentures, about $2,000 in the hands of J. K. Hexter, and $2,000 located in other places, of w'hich plaintiff would give no information, and that of this $4,000 from $1,000 to $1,200 was her separate estate. The defendant testified that the sum of $1,970 in the hands of Mr. Hexter was community property. Plaintiff testified upon this question as follows: '

“All of the money that Mr. Hexter has invested for me is the result of my savings during marriage; all of it is my savings; I have just saved up all these years, 30 years. It is all from my savings. I do not think that any of that money that Mr. Hexter has invested for me came from my separate estate. If it did, precious little came from it. * * * I am asked how much of the amount of money that Mr. Hexter has invested for me, now amounting to $1,924.16, was saved by me during my marriage, and how much of it was money that I received from my father’s estate; and I answer that I have just said that I saved every penny that I scraped together, and I'do not remember that I had any money from my father’s estate.”

Upon this evidence the court could not have found otherwise than that the money was community property.

Appellant also complains of the ruling of the court charging her separate estate with one-half of the debts due by the estate of her deceased son, Guy Lefevre, which was paid by defendant out of funds of his separate estate. The facts in regard to this matter are undisputed. Guy Lefevre, the son of plaintiff and defendant, a few years before this suit was brought, died unmarried and leaving plaintiff and defendant as his sole heirs at law. He left an estate consisting of six sections of land in Pecos county, Tex. He also left debts amounting to several hundred dollars. Defendant has paid these debts, and also paid the expenses of the last sickness and burial of his son, out of money derived from his separate estate. In adjudicating the property rights, the trial court held that plaintiff was chargeable with one-half of the amounts so paid by defendant. We think this holding was correct. Upon the death of Guy Lefevre, the title to the land vested in plaintiff and defendant, charged with the debts of the deceased and the expenses of his last sickness and burial, and the payment of these charges by defendant was, as to one-half of the amount so paid, a payment for the benefit of plaintiff’s separate estate. It cannot be held a mere voluntary payment, but was necessary for the protection of the estate, and plaintiff’s separate estate is properly chargeable therewith.

What we have said disposes of all the material questions presented in appellant’s brief. We find no error in the record which would authorize a reversal of the judgment, and it is in all things affirmed.

        c — -Enr other cases see same topic and KEY-NUMBER in^ all Key-Numbered Digests and Indexes


author: GRAVES, J.

text:
    FARRAND v. HOUSTON & T. C. R. CO.
    (No. 7609.)
    (Court of Civil Appeals of Texas. Galveston.
    June 24, 1918.
    Rehearing Denied Oct. 10, 1918.)
    1. Negligence <S=3l35 — Contributory Negligence oe Child — Sufficiency oe Evidence.
    In a personal injury action, evidence 1held sufficient to sustain jury’s special finding that the injured boy had sufficient intelligence to appreciate, and sufficient discretion to avoid, the danger from which the injury resulted.
    2. Witnesses <s=>269(12) — Gross-Examination of Child — Mental Capacity.
    Upon a question of contributory negligence of a boy injured by purposely exploding a dynamite cap while playing on defendant’s property, evidence, on his cross-examination, as to what he knew and had been told in the matter of taking or meddling with others’ property was. relevant on the question of intelligence and discretion, particularly where plaintiff offered evidence of the • boy’s brightness and average record in school.
    3. Evidence <®==»272 — Declaration Against Interest.
    Evidence that plaintiff, suing for personal injury, stated soon after injury that it was his fault, and he blamed no one therefor, was admissible as a declaration against interest.
    4. New Trial <3=5143(2) — Grounds — Impeachment of Verdict — Answers to Interrogatories — “Misconduct of Jury.”
    Rev. St. 1911, art. 2021, permitting testimony of jurors in open court to impeach their verdict for “.misconduct of jury,” would not include reception of testimony to show that jurors did not understand the legal effect of their answers to special interrogatories.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Misconduct.]
    Error from District Court, Harris County; Henry J. Dannenbaum, Judge.
    Suit by Wallace Farrand, by next friend, W. W. Farrand, against the Houston & Texas Central Railroad Company. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    Presley K. Ewing, of Houston, Ewing Wer-lein, of New Orleans, Da., and L. E. Blank-enbecker, of New York City, for plaintiff in error. Baker, Botts, Parker & Garwood and MicMeans, Garrison & Pollard, all of Houston, for defendant in error.
   GRAVES, J.

This admittedly correct statement of the nature and result of the suit, very slightly changed, is taken from plaintiff in error’s brief:

“Wallace Farrand, a minor, by his father, W. W. Farrand, as his next friend, sued the Houston & Texas Central Railroad Company to recover damages for personal injuries sustained by him, including the loss of his eye, when he lacked one and a half months of being 13 years of age, from the explosion of a dynamite cap that the defendant, it was alleged, had negligently left exposed in an unlocked locker on its premises, which had been made unusually attractive to children of the age and intelligence of plaintiff by the presence there of’ a steam shovel and appurtenances, whereby plaintiff, following a childish instinct, had been caused to go upon the premises and explode the dynamite cap, when he was, on account of immaturity of age and discretion, without sufficient intelligence and discretion to appreciate and avoid the danger of his act in doing so. The defendant answered, so far as material to state, by general denial, and by plea of contributory negligence. Final judgment was-rendered that the plaintiff take nothing, and that the defendant go hence without day with its costs, upon the special verdict of the jury, which found, so far as necessary to state: (1) That the steam shovel in question was unusually attractive to persons of plaintiff’s age and intelligence at the time of the injury; (2) that plaintiff was induced by such peculiar attraction to go to and onto the steam shovel on the occasion in question; (3) that the defendant, Houston & Texas Central Railroad Company, was negligent in leaving the locker containing the explosive caps unlocked on. such occasion; (4) that such negligence was a proximate cause of the injuries then received by plaintiff; (5) that plaintiff on the occasion in question did have sufficient intelligence to appreciate, and sufficient discretion to avoid, the danger of his act in exploding the cap in the manner he did; (6) that the plaintiff’s act in so exploding the cap, considering his age and discretion at the time, was not such as a similar person of ordinary prudence would have done; (7) that the sum of money paid at the time of' the trial which would fairly and adequately compensate plaintiff for the alleged injuries suffered by him on the occasion in question, taking into consideration exclusively as elements of damage mental anguish, physical suffering, the reasonable value of necessary medical attention and treatment, and the reasonable value of his diminished capacity to labor and earn money after arriving at 21 years of age, was $4,000.”

The case is regularly here upon appeal by the injured boy through writ of error.

It will be noted that the jury found all issues in the boy’s favor, except as to the sufficiency of his intelligence to appreciate, and of his discretion to avoid, the danger, and as to the exercise of proper care, both of. which were .found against him, causing the adverse judgment.

After conceding, with characteristic candor, that opposing counsel had successfuly answered their second assignment by showing the testimony there excluded to have been in substance elsewhere admitted, counsel for plaintiff in error then very ably contend, through a number of other assignments, that reversible error was committed below in three particulars:

(1) In admitting, over objection of irrelevancy, testimony of both Wallace and his father that the boy had gone to Sunday school and church, and prior to his injury had been taught there and at home that it was wrong to interfere, meddle with, or take other people’s property, and of the boy alone that at the time of the' injury he knew it was wrong to do these things.

• (2) In ruling as relevant to the jury on the issues, over objection that the same was incompetent as a conclusion or opinion, testimony that the boy Wallace, in talking the matter over after he was injured, stated that lie did not blame anybody, that it was his own fault.

(3) In the refusal of the trial court to then reassemble and in open court examine the jury as requested by plaintiff in error in his motion there for a new trial, in response to his allegations therein made that—

“the verdict was the result of misconduct and mistake on the part of the jury, in that a considerable number of them, probably half or more, in fact believed from the evidence that plaintiff did not have intelligence and discretion, at the time he exploded the cap and was injured, to appreciate and avoid the danger of his act, and that his act in exploding the cap was such, considering his age and discretion, as a similar person of ordinary prudence would have done under like circumstances, and agreed to a contrary finding on each and both of the issues submitting these questions, namely, special issues Nos. 7 and 8, as returned, because they believed and Were under the mistake that the plaintiff, regardless of the answers as returned to such issues, would recover and get the damages found by them, to wit, $4,000, and they would not otherwise have agreed to such findings, or either of them, as returned in answer to the special issues Nos. 7 and 8, as shown by the accompanying affidavit of the jurors hereto attached, marked Exhibit A, and prayed to be taken as a part hereof.”

Since the three questions thus presented comprehend all the issues raised, in disposing of them in like order it is not thought essential that further reference eo nomine be made to the assignments.

In the main and as a basis for consideration of each of the three questions presented, what are deemed the salient facts surrounding the injury to the boy may be thus epitomized :

The scene of the accident, and the location of the steam shovel which furnished the alleged attraction to. him and his boy associates on this occasion, Sam Tait, Charles Henderson, and Will Hobbs, was out in the country on the “Eureka Cut-O'ff” Railway line, then under construction by defendant in error, in which work it was using the steam shovel at a point thereon about six miles from Houston and about two miles from Sam Tait’s house. Wallace Farrand, who lived in Houston, was spending the week-end at young Tait’s house, and on Sunday, March 15, 1914, he and the other three boys named, the first two being about his age, and Hobbs some years older, after taking dinner together at the home of Charles Henderson’s parents, which was likewise about two miles from the steam shovel, went to where it was to investigate and look it over. The shovel was on the railroad right of way out in the woods, the nearest house to it, from three-fourths of a mile to a mile away, being that of the watchman whom the railroad company had left in charge of it for that day, but who had gone home and was not at the shovel when the boys visited it. On arriving there, after playing around the shovel awhile, and greasing up the chains, handholds, seats, etc., the boys then went to the cabinet or locker on the engine of the steam shovel, the doors to which were shut but not locked, opened these doors, and found on the inside a Prince Albert tobacco can, which they likewise opened, and found to contain some dynamite or detonating caps. With none of the boys undertaking to say which particular one first did so, they took these caps ou.t, each one having some, and tried to explode them, first by throwing them against the boiler on the steam shovel, but, failing in that, then took them down the track from 100 to 300 yards to a flat car, where they continued trying to explode them in various ways, by throwing them at the iron wheels of the car, at telephone poles, and by laying them on the rails of the track and throwing rocks down on them from the flat car. Will I-Iobbs, the oldest of the boys, who was 15, even put one of the caps on a brake band and pulled the lever, still without success. There was no one present during all this except the four boys. Finally, Wallace Farrand took one of the caps, and, saying that he would explode it, got up on the flat car and laid it upon a piece of iron, took a monkey wrench he found there, and hit it two or three times, when it "exploded, causing the injuries complained of. „

So far there are no material differences in the versions of the four boys, all of‘whom testified upon the trial, but in fjirther details their statements diverge to this extent: The injured boy, while admitting that the other boys told him when he first got them they were dynamite caps, denied that they further told him the caps were dangerous, or that he knew- that fact, saying that Will Hobbs merely told him his brother had exploded a cap and it did not hurt him. In these statements he was corroborated by Sam Tait, who, however, admitted that something just told him to get out of the way, and he got behind something for safety first; while, upon the other hand, the oldest boy, Will Hobbs, testified:

“Wallaee finally exploded one with the wrench. He got up on the car there, and he just hit it with the wrench. He was attempting to explode it when he hit it, and we boys got out of the way; we got up around the machinery there. We got out of the way and behind the machinery because we were scared of it; we didn’t want to get hurt with it. When he was doing that I just said, not only to him, but to all of them, that they would hurt him if it exploded. I didn’t say anything to Wallace about these dynamite caps not hurting them if they exploded; that wasn’t dynamite caps I was talking about then; it was caps for a short gun shell. I told them I had seen my brother explode dynamite caps with a fuse.”

Charles Henderson, after stating that while Wallace was hitting the cap the rest of the boys were trying their best to get out of its way, then corroborated Hobb’s testimony as follows:

“Hobbs told us all about it, and what it would do if it exploded; he told us that at the steam shovel when we got them there. Wallace Far-rand was there when he told that. * * * When we first got the caps Hobbs told us about his brother-in-law discharging them on different days, like the Fourth of July, and he told us that he generally put them in a tin can and attached a fuse to it, and in that way they used them instead of firecrackers. He told us that it was liable to hurt us very much if we was to discharge one and be close to it. He told us that before Wallace discharged this one.”

In his own behalf Wallace had testified that just before his injury he was in the fifth grade in school, was making good grades, and was not a dull, ignorant boy for his age, but was an average boy. His father amplified upon his son’s habits, qualities, and degree of mental and physical development as follows:

“As to Wallace’s habits as to industry, steadiness, and obedience, he was a boy who had never given us any trouble. He was just an average boy. He never had given us any trouble to speak of. His health was fine. Physically, he was fine.”

With the general body and substance of the proof in the condition thus given, upon cross-examination of the boy and his father, their further testimony that the boy knew and had been taught that it was wrong to interfere with other people’s property, etc., first above complained of as error, was then elicited; likewise, and under the same general state of the evidence, as is next in order assigned as constituting reversible error, Charles Henderson, on direct examination, was permitted to testify that Wallace Farrand, after 'being hurt, told the other hoys “it was all his fault”; and, solely for the purpose of impeachment of Wallace’s prior testimony that he had not made that statement to Will Hobbs, the court permitted Hobbs to he put back on the stand, after the plaintiff in error had closed his testimony in rebuttal, and to testify that after the explosion he heard Wallace say he didn’t blame anybody, that it was his own fault.

The facts concerning the court’s refusal to reassemble the jury upon motion for new trial, which action is alleged to have constituted the third error as above enumerated, have been sufficiently set out in our statement of the contention made thereon, and need not be repeated.

We are unable to hold that reversible error was committed in any of the respects insisted upon. There was, we think, ample support in the evidence for the jury’s finding that this boy did have sufficient intelligence to appreciate, and sufficient discretion to avoid the danger of exploding the cap, under the circumstances shown, and that he was guilty of negligence in so doing. Under our authorities, the real question, as the court in this instance properly charged, was one as to the capacity of the boy to understand and appreciate the danger of his act. Ry. Co. v. Lawrence, 197 S. W. 1020, and authorities cited on page 1022. That being true, the facts brought out on cross-examination as to what he knew and had been taught with reference to taking, meddling, or interfering with property belonging to other people had equally as relevant bearing, it seems to us, upon the question of his intelligence, discretion, and general capacity to understand and appreciate the danger of a given situation, as did those other facts he himself voluntarily offered, such as his being nearly 13 years old, and not being ignorant and dull, but an industrious, obedient, and steady boy of average brightness for that age, in fine health and physical condition, and making a good average record in the fifth grade at school. Indeed, we are not prepared to say it was not admissible on the question to which the state of the boy’s progress toward maturity in intelligence and discretion had relation; that is, the negligence of the railroad company. Its negligence depended upon whether or not, in the detailed circumstances here recounted, it could reasonably be held to have anticipated that such consequences as were in this instance alleged would probably result from its leaving the steam shovel without a watchman, and the locker thereon, containing the can with the explosive caps inside, unlocked on the occasion in question. That action could hardly be said to have constituted negligence toward an adult, when the steam shovel itself was on the railroad right of way out in the woods, well-nigh a mile from any house, on Sunday, the caps being stowed away in the bottom of a covered tobacco can, placed inside a closed locker upon one of the company’s cars. In fact, the plaintiff in error impliedly so recognizes in predicating his right of action solely upon his claimed immaturity; and, if it would not have been negligence toward one of mature age and discretion, how far toward that state of development must one have progressed before it would have been such as to him? That very question was what the jury here were necessarily called upon to determine, and can it be properly said that this boy’s knowledge and training as to the wrongfulness of the very things he had so done in bringing this injury upon himself would have furnished them no aid whatever in gauging his capacity and intelligence, and, upon that as a basis, in further* saying whether the railroad company should have anticipated that one such as he would probably do and suffer the very things he did? We think not, especially when the boy himself had seen fit, upon direct examination, in tendering the issue that he was without the requisite degree of intelligence and discretion, to make profert of his mental and physical development in the manner already recited, and the matter now complained of was only brought out on cross-examination, the very means afforded for thoroughly testing the reaches of his mind and the limits of his ability and capacity to both understand and appreciate the hazard of what he was doing.

If, however, it could be rightly said that this testimony went beyond tbe legitimate scope of cross-examination, and neither tended to throw any light whatever upon the question of the hoy’s capacity, nor upon the duty owing to him hy the railroad company, nor was for any other purpose admissible, then we do not think: it was of such a nature that this court could say it probably caused the jury to find that he did have the requisite degree of intelligence and discretion.

The relevancy of the other testimony complained of, that to the same eifect of both Charles Henderson and Will Hobbs as to Wallace’s statement about not blaming anybody, that it was his own fault, under the recited conditions of its admission, does not seem to us a matter of serious doubt. The main objection below, and the only one insisted upon here, is that it amounted to a mere conclusion and not the statement of any fact. With this deduction, however, we are not inclined to agree, but rather think, in the light of all the facts and circumstances present here, the same thing might be said of -this boy as was said of the engineer in Hovey, Receiver, v. See, 191 S. W. 607:

“The declarant stated that he did not blame anybody for the accident, thereby, in effect, saying that he absolved any other party from blame; and it was not a matter of opinion, because he knew whether or not anybody was to blame for the accident.”

Under that view, the statement was admissible as a declaration against interest. Authorities cited under paragraph 1, Hovey v. See, supra. Moreover, we think it was clearly competent when offered in rebuttal for impeachment purposes through the witness Will Hobbs.

Finally, in assailing the court’s refusal to reassemble and examine the jury, it is urged that the matter presented as ground therefor was sufficient for a new trial, if proved, under our present statute (R. S. art. 2021). As the bill of exception shows, the trial court declined the request,

“on the ground that the matters set out in said affidavit, if true, were contradictory to and impeached the answers of the jury, including said affiants, to the special issues submitted to them, which answers in writing were returned into open court by said jurors as their verdict in said cause; the members of the jury, including said affiants, at the time when, said verdict was received and read in'open court, in answer to a question by the court, stated to the court that said answers were their verdict in said cause.”

In -other words, while the strictly proper practice was doubtless followed in seeking convocation of the jury in order to get their oral testimony, and in then assigning error upon the court’s refusal to accord that rather than, upon its denial of a new trial because of misconduct, since a new trial could not be granted on that ground upon mere affidavits of the jurors, still the practical effect of the court’s conclusion and action was the same as if it had in open court heard their oral testimony to the matter contained in the affidavits, and in the exercise of its discretion, had refused the new trial on .account of it. We think no abuse of the discretion vested under the article invoked is shown, for such is at last the real question in this court concerning the course pursued below. Ry. Co. v. Geary, 194 S. W. 458; Ry. Co. v. Gray, 143 S. W. 606, 105 Tex. 42. As expressive of our own view upon the issue raised, conscious of inability to improve upon it, we take the liberty of quoting this clear-cut comment from the brief of defendant in error:

“Counsel for appellant concede that prior to the adoption of article 2021 (in 1905) neither the affidavits nor testimony of jurors as to their conduct would be received to impeach the verdict, but insist that since the adoption of the article their testimony as to misconduct will be received. We have no quarrel with either of these positions. That the rule of the common law was changed against allowing jurymen to come into court, either by affidavit or oral testimony, and to show that they were guilty of such misconduct during their deliberations as that their verdict in justice to the losing litigant should be set aside,- cannot now be questioned. But our position is that the statute in question, although changing the rule as it exists at common law, as above indicated, does not permit a juryman, either by affidavit or by testimony in open court in support of a motion for a new trial, to say that the verdict returned by him on special issues, under his oath, and received by the court as his verdict, did not in fact reflect his convictions, but was rendered by him in the way it was because he did not know the meaning of an unambiguous charge, or did not know the legal effect of the answers he made. The fact that one juryman— or six, for that matter — did not understand the legal effect of their answers to special issues Nos. 5 and 6, wherein the jury answered that plaintiff had sufficient intelligence to appreciate, and sufficient discretion to avoid, the danger of his act in exploding the cap in the manner he did, and that such act, considering his age and discretion at the time, was not such as a similar person of ordinary prudence would have done, and made their answers contrary to their convictions on that issue, was not ‘misconduct of the jury,’ as that phrase is ordinarily understood, nor as meant by the lawmakers in the adoption of the article.”

In fact, we think this court has heretofore gone on record in the same construction of this new statute in Hermann v. Schroeder, 175 S. W. 789. True, the facts there were not just such as appear here, but the court went far enough to indicate its view that the statute should be so construed, and we are not inclined to now state a different one.

These conclusions require the overruling of all assignments and an affirmance of the judgment, which order has been entered.

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


text:
    ROUSER v. WRIGHT et al.
    (No. 7587.)
    (Court of Civil Appeals of Texas. Galveston.
    May 31, 1918.
    Rehearing Denied Oct. 10, 19Í8.)
    1. Judgment &wkey;>307 — Failure to Dispose of Issue — Amendment at Dater Term.
    Where a judgment, through mistake of court and counsel, did not dispose of an abandoned issue, the court may at a later term amend the judgment and make'it final.
    2. Trial <&wkey;143 — Province of Jury — Peremptory Instruction — Conflicting Evidence.
    Where there was a decided conflict in the testimony, the court properly refused to direct a verdict because of preponderance of evidence.
    3. Appeal and Error <&wkey;10O2 — Review — Conflicting Evidence.
    Where there is a decided conflict in the testimony, the Court of Civil Appeals will not attempt to resolve the conflict.
    4. Contracts <&wkey;232(2) — Implied Promise— ' Extra Work — Buildings.
    Where extra work is done on building, and extra material furnished under agreed direction and supervision of owner’s architect, and pursuant to changes in plans and specifications made at demand of, and by authority of, owner, and where owner, upon completion of the work, approved, accepted, and appropriated building to her own use, the law will imply a promise to compensate builder for the extra work and material.
    Appeal ’ from District Court, Anderson County.
    Action by George A. Wright and another against Mrs. Mattie Rouser, Crawford & Hogue, and A. O. Watson, in which defendants Crawford & Hogue filed cross-bills against defendant Mrs. Mattie Rouser and against defendant A. O. Watson, and defendant Mrs. Mattie Rouser filed a cross-bill against plaintiffs and defendants Orawford & Hogue. Judgment for plaintiffs and for defendants Crawford & Hogue against defendant Mrs. Mattie Rouser, and for defendant Mrs. Mattie Rouser against defendant A. O. Watson, and defendant Mrs. Mattie Rouser appeals.
    Affirmed.
    Wilcox & Graves and Sansom & Metcalfe, all of Georgetown, for appellant. B. H. Gardner, of Palestine, P. W. Brown, of Et. Worth, and Campbell & Sewell, of Palestine, for ap-pellees.
   GRAVES, J.

Appellees Wright & Hearne, who had been bondsmen for tbe contractors Crawford & Hogue, on a contract tbe latter made with appellant, Mrs. Rouser, for the erection of a brick building under tbe supervision of ber architect, Watson, at George^ town, Tex., sued all the others named to recover amounts claimed to be due for labor and material put into the’ building both by Crawford & Hogue and themselves. They charged there was a balance due Crawford & Hogue upon the original contract price and for extras the latter had furnished before quitting the work; that Orawford & Hogue had ceased work upon the building before its entire completion, and, by mutual agreement of all parties, they as their bondsmen had taken in hand its completion, including the tearing down of the roof the contractors had put on and the building of a new one; that they thus became subrogated to the rights of the contractors as to all sums due them, and also themselves directly furnished such1 additional work and material necessary for the completion of the building. The main recovery sought was against the owner of the building, Mrs. Rouser; that against her architect and the contractors, whose sureties they had become, being contingent or incidental.

Orawford & Hogue replied by answer and a cross-bill each against Mrs. Rouser and her architect, Watson; that against her being for extra work and material alleged to have been furnished by them before ceasing work upon the building, while their claim against Watson was for one-half the expense of putting certain truss rods into th'e original roof built by .themselves. On the trial no proof was offered upon this latter claim against Watson, and it was so abandoned and lost sight of by both counsel and court that in entering the original judgment no disposition was made of it. Dikewise Mrs. Rouser, after otherwise answering, filed a cross-action against the contractors and th'e bondsmen for defective work and material claimed to have gone into the building, and in the alternative against Watson for such damages as might b.e shown to have resulted from any defects in plans and specifications furnished her by him.

The cause having been submitted to, and findings returned by, a jury, judgment was rendered tbereon in favor of Wright & Hearne for $1,665.71, and in favor of Oraw-ford & Hogue for $294.26, respectively, against Mrs. Rouser, and in her favor against the architect, A. O. Watson, for $1,561.98; but, as already stated, by oversight and mutual mistake of all parties, including the court, no disposition was made in the judgment of the cross-action pleaded by Crawford & Hogue against Watson, upon which they had offered no proof.

Mrs. Rouser alone appealed from the judgment originally entered, but th'e Court of Civil Appeals at El Paso dismissed her appeal, on the ground that no final judgment below had been rendered because of tbe trial court’s failure to dispose of this cross-action of the contractors against the architects. Subsequently, and at a different term, upon a hearing - had on the motion of appellees Wright & Hearne, at which all the parties in interest, including Mrs. Rouser, appeared for trial, she having specially answered the motion upon the facts, the trial court entered a corrected and final judgment in the cause, disposing of the cross-action of Orawford & Hogue against Watson, but in no other respect changing or amending it, thus leaving the original recoveries against Mrs. Rouser unaffected. Of that judgment, as so finally-entered, she alone complains through her appeal now before this court, having named all the other parties to the suit as appellees.

Considering, first, the.question raised as to the right of the trial court to so amend and thereby make final its judgment at a later term, we are not prepared to hold that authority wanting, under the conditions here shown. It is not contended that the correction or amendment made failed to reflect the true state of the record, or that it determined any issue not litigated at the original trial, but simply that the court was without power to enter it at a subsequent term.

In Young v. Pfeiffer, 30 S. W. 94, it is said:

“The judgment originally entered failed to dispose of the case as to one of the defendants, and therefore no appeal could be taken from it. The court clearly had power at a later term to enter a judgment that disposed of all the parties, which was done, and from the judgment so rendered the appeal was properly taken. Johnson v. Smith, 14 Tex. 412.”

We can see no difference in principle between that case and this. There the failure was to dispose of one of the parties, here one of the issues. Moreover, this record shows without dispute that such issue had in fact been eliminated by its abandonment, and, through mutual mistake of court and counsel for both sides, the mere recitation of that established fact had been omitted from the entry of the judgment as originally made. Under that view of what was actually done in this instance, the assignments attacking the court’s action are overruled. See, also, Thompson v. Field, 164 S. W, 1115; Coleman v. Zapp, 105 Tex. 491, 151 S. W. 1040.

Through appellant’s first assignment complaint is made of the overruling of her general demurrer to the trial petition of appel-lees Wright & Hearne; but, after an examination of the pleadings, we conclude there were at least two respects in which they alleged a cause of action: First, that there was a balance properly due them under their relation to the original contract upon the agreed cost therein fixed for the building; second, that after they, Wright & Hearne, came into the matter, a new agreement entirely had been finally made by all parties interested, under which they were to tear down the old roof, construct another one, and complete the building in other details, upon such arrangement as to the extra cost over the original contract price as might be arranged between them and appellant’s architect, Watson; that accordingly they did in fact take down the first roof, build a new one, and otherwise do further work upon the building, at the extra cost and of the reasonable value of $1,566.98 over the sum named in the original contract, which was all done under the architect’s direction, not . only at the instance and with the full knowledge and approval of Mrs. Rouser and her named architect, Watson, but, after being so done, was received and accepted by both. These allegations having stated a cause of action, it was not error to overrule the general demurrer.

Under the third assignment the action of the court in refusing to peremptorily instruct the jury to return a verdict for appellant is assailed upon the claim that the great preponderance of the evidence showed not only no obligation nor promise on her part to pay anything above the contract price, except a small excess in the foundation, but that she was entitled to $500 damages over against both the contractors and their bondsmen. It has been uniformly held that an assignment of this character presents nothing for review and cannot be considered. Speights v. Speights, 176 S. W. 641; Alexander v. Lumber Co., 154 S. W. 236; M., K. & T. Ry. Co. v. W. R. Patterson, 204 S. W. 1026, recently decided by this court, but not yet officially reported. If the assignment were considered, however, we should be compelled to find' that there was sufficient evidence in the record to support a verdict against appellant, which conclusion would necessitate the overruling of the assignment.

A decided conflict occurred in the testimony as to whether appellant agreed to pay anything above the contract price for what Wright & Hearne did. She emphatically denied so obligating herself, while they positively asserted that she directed them to do as her architect said, and that they did so, putting into the building under his direction extra work and materials over the original contract price of the reasonable value of $1,566.98, which the architect received and accepted for her. In these circumstances, it was not improper for the trial court to refuse the requested peremptory instruction, nor would it be proper for this court to attempt to resolve the conflict.

The fourth assignment is not in effect different from the first and third considered together, its specification being that the court erred in refusing appellant’s request for a peremptory instruction, on the alleged ground that there was, because of the contractual relation existing between her and the appel-lees, neither pleading nor evidence upon which a verdict or judgment against her could be based. Our preceding findings that, independent of the original contract between all the parties, which is the relation referred to in this assignment, a cause of action was alleged in appellees Wright & Hearne, and supported by their testimony that Mrs. Rouser authorized them to do as her architect, Watson, directed, thereby putting him in her place, meet the question here raised also, and require the overruling of the assignment.

The fifth and sixth assignments charge error in the court’s refusal of appellant’s motion to enter judgment for her, because it is said, there was no evidence that she knew additional pay over the original contract price for rebuilding the roof was expected by appellees Wright & Hearne, nor any to support the jury’s finding that she had such knowledge, and none that she ever promised to pay them anything extra for such work. In further development of the idea thus presented it is then, in the seventh assignment, insisted the motion should have been granted, because no express agreement upon appellant’s part to pay extra for the reconstructed roof was either pleaded or proved, and on account of the contract then existing •between her and Wright & Hearne as bondsmen for the original contractors, Crawford & Hogue, obligating the bondsmen to place a good and sufficient roof on the building anyway, no implied contract to pay anything additional for the new roof could arise.

We are unable to agree to this contention, and overrule the .assignment urging it. In the state of case presented by this record we think there was nothing to forbid an implied promise upon Mrs. Rouser’s part to -pay for extras or for new work done upon changed plans and specifications. To what has been before recited, it may be added the jury found, upon what we deem sufficient evidence, the following facts:

(1) The roof put on the building by Crawford & Hogue under the original contract, after being braced with some iron truss rods, was in accord with the plans and specifications of appellant’s architect, Watson, and was accepted by him before they quit work upon the building.

(2) Although Mrs. Rouser herself refused to accept the roof as originally built by Crawford & Hogue, and objected to a change being made in it, afterwards appellees Wright & Hearne, under the direction of her architect, Watson, and with her own knowledge, consent, and approval, built to the satisfaction of herself and the architect, both in advance knowing that extra pay was expected for it, a comb or ridge roof upon the building, different from that called for in the original plans and specifications, and of the reasonable value of $1,566.98, which was duly accepted.

(3) Aside from so changing the roof, Wright & Hearne put further necessary work and material of the reasonable value of $988.50 into the completion of the building, substantially in accord with the plans and specifications and to the satisfaction of Mrs. Rouser and the architect, the latter knowing that pay outside of the original contract amount with Crawford & Hogue was expected therefor.

(4) The work done, by Crawford & Hogue prior to quitting the contract, including the roof they put on the building, was done in substantial accord with the plans and specifications furnished them by the architect, and there was left unpaid a difference of $279.14 between what had been paid to and assumed for them'by Mrs. Rouser and the contract price, as well as $294.26 more for extra work and material furnished by them. While this balance of $279.14 due Crawford & Hogue upon -their original contract might have been substantially reduced by further payments by Mrs. Rouser in completing the building of items which should properly be chargeable against them, still it was not entirely extinguished, unless the $500 damages found by the jury in Mrs. Rouser’s favor for defective plans and specifications could also be construed as applying against them. Upon considerations hereinafter stated, however, we do not think it could. So that, leaving that item out of consideration for the present, under the results thus otherwise disclosed, there was at least some balance due by Mrs. Rouser within the terms of the original contract, and independent of extras, no matter by whom furnished. That being true, even though no recovery could be had outside the terms of the contract here for extra work, except upon express promise to pay for it, as appellant so ably contends, her motion to have judgment generally entered for her could not prevail.

Recurring to the situation actually shown as to extra work and material, however, we think it plain that all essential facts for charging Mrs. Rouser with liability to pay for it were thus not only found by the jury, but upon sufficient evidence; there was testimony that the plans and specifications were changed at her demand and by her authority, with advance knowledge upon her part not only that increased cost would thereby necessarily be added, but that those incurring it would expect her to reimburse them; and that, after tire extra work was done under these antecedent conditions, its progress throughout having been under the agreed direction and supervision of her own architect, she finally approved, accepted, and appropriated it to her own use and benefit. In such circumstances the law will imply a promise to compensate the builder. Corpus Juris, vol. 9, p. 840, footnote 27, and authorities there cited; Henderson Bridge Co. v. McGrath, 134 U. S. 260, 10 Sup. Ct. 730, 33 L. Ed. 934; A. & E. Ency. Law (2d Ed.) vol. 30,f pp. 1281, 1283; Childress v. Smith, 37 S. W. at page 1080, 2d column.

What has been already said disposes of the issues raised under the seventh and eighth assignments, and separate detailed discussion becomes unnecessary. In answer, however, to the insistence made in the eighth assignment that the measure of damages could not exceed the difference between the cost of reconstructing a safe and substantial roof -under the plans and specifications and that of the roof as actually constructed, in addition to the findings and conclusions previously stated, it may be added that the proof showed that no such roof could be built. . .

Under the, ninth and thirteenth assign-merits it is claimed Mrs. Rouser was entitled to have the $500 the jury awarded her because of defects in the plans and specifications charged against the contractors, Crawford & Hogue, and their bondsmen, Wright & Hearne, and when that is done the balance of accounts would he in her favor. We do not so interpret the jury’s meaning. They had already repeatedly acquitted Crawford & Hogue of any failure to substantially comply with the plans and specifications furnished them by the architect, and, when the finding as to this $500 is compared with the others made, its manifest effect is, we think, that while Mrs. Rouser was damaged to the extent of the sum named it was because of the architect’s dereliction in furnishing defective plans and specifications, and not because of the failure of Crawford & Hogue to erect and complete the building in accordance therewith.

There are other assignments, but, after carefully considering them all, we conclude that none of them are well taken, and that those specifically discussed present the controlling questions in the case. Finding no reversible error, it has been ordered that the judgment be affirmed.

Affirmed.
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