author: RAINEY, C. J.

text:
    LINGO LUMBER CO. v. GARVIN et al.

    (No. 7424.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 20, 1915.
    On Rehearing, Jan. 8, 1916.)
    1. Appeal and Error <&wkey;548 — Review — Statement op Facts.
    Assignments of error, relating to the action of the court, the correctness of which depended upon the evidence, cannot be reviewed without a statement of facts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. <&wkey; 548.]
    2. Appeal and Errori &wkey;s573 — Statement op Facts— Sufficiency.
    Notwithstanding Rev. St. 1911, art. 1949, providing for the use of an agreed statement in the trial after being signed by the parties and certified to by the court as correct, such agreed statement cannot be considered as a statement of facts on appeal, where not approved by the trial judge; article 2068 requiring such approval.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2560, 2562-2564, 2566; Dec. Dig. <S=>573.]
    On Rehearing.
    3. Appeal and Error &wkey;>553 — Review — Statement op Facts.
    Under Rev. St. 1911, art. 2068, requiring that the facts shall be copied in one statement and that written instruments introduced in evidence by agreement shall not be stated or copied in detail into the statement of facts, but the facts thus established shall be stated as facts proven in the case, an agreed statement used by the parties below cannot be considered on appeal as a statement of facts, though approved by the trial judge; the various exhibits and instruments introduced being presented to the appellate court separately.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2461, 2462, 2465-2471; Dec. Dig. &wkey;553.]
    4. Courts &wkey;>78 — Rules op Court — Validity.
    Rule 46 for the Court of Civil Appeals (142 5. W. xv), relating to statement of facts where the case was tried on agreed facts, is invalid in so far as it may conflict with the statutes.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 274, 276-281; Dec. Dig. &wkey;78.]
    Appeal from District Court, Dallas County; T. F. Lewis, Special Judge.
    Action by the Lingo Lumber Company against Fred C. Garvin and Royal Smith. From a judgment in favor of the last-named defendant, plaintiff appeals.
    Affirmed.
    Flippen, Gresham & Freeman and R. M. Frezevant, all of Dallas, for appellant. Read, Lowrance & Bates, of Dallas, for appellee.

      Application for writ of error pending in .Supreme Court.

   RAINEY, C. J.

Appellant brought this suit against appellees to recover $582 and also to foreclose a lien on the homestead of Royal Smith and wife, alleging that said amount was for lumber and material furnished for the erection of a residence. Fred Garvin-made default, and appellee Royal Smith answered and contested the allegations of appellant’s petition as to the personal liability of Royal Smith, and the foreclosure of the lien. A trial resulted in a judgment for appellant against Fred C. Garvin, contractor, to whom the materials were furnished, and in favor of Smith personally, and against the enforcement of a lien on the building. From this judgment this appeal is prosecuted.

The assignments presented by appellant all relate to the action of the court, the correctness of which depends upon the evidence adduced upon the trial of the cause. As there is no proper statement of facts found in the record from which we can determine the matters involved, the assignments cannot be intelligibly considered. With the record we find what purports to be an agreed statement of facts, with exhibits attached, used by the attorneys in the trial of the case, but the same shows no approval or certificate oí tile trial judge that it is correct; therefore the same in that condition cannot be looked to or considered by us.

Article 1949, R. S. 1911, provides for the use of an agreed statement in the trial after being signed by the parties and certified to by the court as correct, and article 2068 requires statements of facts on appeal to also show the approval of the trial judge. As the statement of facts here presented does not show the approval of the trial judge, the same will not be entertained by this court.

The judgment is affirmed.

On Rehearing.

The appellant contends we erred in not considering the facts as presented. The facts are not presented in a way, we think, as required by law for the preparation of a statement of facts on an appeal. We find in the record an agreement, approved by the trial judge, which counsel intended should serve the purpose of a statement of facts, as follows:

“Whereas, the matter in controversy between the parties to the cause styled, numbered, and pending as above was submitted to Hon. T. E. Lewis, special judge duly selected and qualified to try the same, upon an agreed statement of facts, with exhibits, made out and signed by their respective attorneys of record, and filed with.the clerk before the trial; and whereas, no other evidence was introduced but said agreed statement of facts, with the Exhibits A, B, O, I>, E, F, G, II, and I, which said exhibits were intended to be the same exhibits as the same letter exhibits mentioned in the pleadings of the parties, and which constitute all the facts in the case, and together with the pleadings and exhibits mentioned therein, form the basis for the judgment from which the plaintiff has taken an appeal to the Court of Civil Appeals: Now, therefore, it is agreed that the said statement of facts with exhibits, and pleadings of the parties and exhibits thereto, shall constitute the record in this cause, and the original papers may be filed with the transcript in the Court of Civil Appeals without the necessity of making a copy of the same.
“Witness the hands of the attorneys of record this the 25th day of January, A. D. 1915. Flip-pen, Gresham & Freeman, R. M. Frezevant, Attorneys for plaintiff Lingo Lumber Company. Read, Lowranee & Bates, Attorneys for defendant Royal Smith. Alex E. Weisberg, Thompeon, Knight, Baker & Harris, Attorneys for defendant United States Fidelity & Guaranty Co.
“I, T. F. Lewis, special judge, hereby certify ‘that the above cause was tried before me upon the agreed statement of facts, with exhibits, mentioned in the above and foregoing stipulation, and that no evidence was introduced upon the trial of the said cause other than the said agreed statement of facts, with exhibits, and the same form the basis for the judgment appealed from.’ T. F. Lewis, Special Judge.”

There is also a paper accompanying the record marked “agreed statement of facts” which refers to said exhibits. This does not contain a copy of said exhibits, nor the substance thereof, but merely a reference to said exhibits. This “agreed statement of facts” is not signed or approved by the judge, but is only referred to as exhibits in the agreed statement signed by the parties as above set out. Revised Statutes, art. 2068 et seq., relating to statements of facts contemplates that the facts proved shall be copied in one statement, and in case of written instruments introduced in evidence the parties by agreement—

“shall not be stated or copied in detail into a statement of facts, but the facts thus established shall be stated as facts proved in the case.”

This statement should be signed by the parties and approved and signed by the judge. The evidence introduced below is not contained in one instrument and approved and signed by the judge, but comes up in separate and detached portions, in a way that was never intended by the law.

Rule 46 (142 S. W. xv) for the Court of Civil Appeals is cited in justification of this practice. We are of the opinion that this rule does not apply, but if it does, it is contrary to the statute, which governs in this case.

The motion is overruled.
      <§=>For other cases see same topic and KEY-NUMBER in all Kev-Numbered Digests and Indexes


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    CLOPTON v. JOLLY & TERRY.
    (No. 5518.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 17, 1915.
    Rehearing Denied Dec. 22, 1915.)
    1. Attachment <&wkey;312 — Claim Suit — Findings— SUFFICIENCY TO SUPPORT JUDGMENT.
    On the trial of a claim to attached property it appeared that the claimant had acquired a valid mortgage on the property, and that the attachment debtor had also executed and delivered to him an instrument in the form of a bill of sale, and that plaintiff had notice of the mortgage and bill of sale before suing out the writ of attachment. The evidence showed without dispute that the attachment debtor was in the physical possession of the property when the attachment was sued out and levied, but made an issue as to whether he was holding possession in his own right or as agent for the claimant. The trial court made no finding on this issue but found that at the time the attachment was sued out and levied the attachment debtor was in the actual possession of the property, and the claimant was not in possession nor entitled to possession. Held that these findings did not support a judgment against the claimant, as the finding that the claimant was not entitled to possession was not a finding of fact but a conclusion of law, and the other findings, even if true, did not show that the attachment debtor’s possession was not as agent for the claimant, in which event the claimant was entitled to judgment.
    [Ed. Note. — For other cases, see Attachment, Gent. Dig. §§ 1117-1119; Dec. Dig. &wkey;>812.]
    2. Fraudulent Conveyances &wkey;>208 — Rights of Creditors — Delivering Possession to Mortgagee to Defraud Creditors.
    When a prior mortgagee of chattels is placed in possession of the mortgaged property by the mortgagor subsequent creditors have no right to interfere with such possession until the prior mortgage is satisfied, even though the property was delivered to the mortgagee for»the purpose of putting it beyond the reach of other creditors;
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 631, 633; Dec. Dig. <&wkey;208.]

      Appeal from District Court, Caldwell County ; Frank S. Roberts, Judge.
    Action by Jolly & Terry against J. K. Miller, in which A. M. Clopton made claim to certain attached property. From a judgment against the claimant, he appeals.
    Reversed and remanded.
    Page & Jones, of Bastrop, and Ellis & Graves, of Lockhart, for appellant. E. B. Coopwood and J. B. Hatchitt, both of Lock-hart, for appellee.
   KEY, C. J.

Jolly & Terry brought suit in the county court upon open account against one J. K. Miller, and caused an attachment to be issued and levied upon two mules; whereupon A. M. Clopton filed with the officer who executed the writ of attachment a claimant’s oath and bond, and thereby obtained possession of the animals referred to. The sheriff, as required by law, returned the oath and bond to the district court where, in a trial of the rights of property, judgment was rendered against Clopton and the sureties upon his replevy bond, and he has appealed.

In their pleading making up the issues, appellees alleged that at the time of filing his claimant’s oath and bond appellant had no right, title, or interest to the property nor any right to the possession thereof. In his answer appellant denied those allegations and alleged that at the time referred to he had title to the property and had possession and the right of possession thereof. His answer also contained other averments specifically pleading some, if not all, of the facts hereinafter referred to. Upon that issue it was shown that prior to the bringing of appellees’ suit against J. K. Miller appellant had acquired from the Merchants’ & Farmers’ State Bank of Elgin a valid mortgage executed by J. K. Miller upon the property here in controversy, and that Miller had also executed and delivered to appellant an instrument of writing in the form of a bill of sale, conveying the property to appellant, and that appellees had notice of the existence of such mortgage and bill of sale before they sued out their writ of attachment. The trial court filed findings of fact, and, among other things, found that J. K. Miller was in actual possession of the property at the time the attachment was sued out and levied and that appellant was not in possession of it, nor entitled to such possession. The latter finding is not a finding of fact but a conclusion of law, and, as to the former finding, while it is true that the undisputed proof showed that at the time referred to Miller was in physical possession of the property, the testimony raised the issue as to whether he was holding possession in his own right or as agent for Clopton, and the trial court made no finding upon that issue. As developed by the testimony, that was the controlling question of fact, a decision of which was necessary to the rendition of a proper judgment. In other words, if it be conceded that the bill of sale under which appellant claims the property was intended by the parties to operate as a mortgage only, or was executed for the purpose of defrauding creditors, still, as the undisputed proof shows that appellee was a mortgagee, holding under the mortgage assigned to him by the bank, and as the undisputed proof shows that appellees had notice of the existence of that mortgage, then if, by agreement between appellant and Miller, the latter was holding possession of the property as agent for the former, such holding was, in law, the possession of appellant, and the property was not subject to seizure •under the writ of .attachment against Miller. In other words, when a prior mortgagee is placed by the mortgagor in possession of the mortgaged property, subsequent creditors have no right to interfere with such possession until the prior mortgage has been satisfied, although the property may have been so placed for the purpose of putting it beyond the reach of other creditors.

In the case at bar all the facts (but not all the legal conclusions) found by the trial court may be true, and yet Miller’s possession of the property may have been held as agent for appellant, in which event judgment should have been rendered for the latter. Hence we hold that the trial court erred in rendering judgment for appellees upon the facts found by that court, and reverse and remand the case in order that the controlling question heretofore referred to may be passed upon.

Reversed and remanded.
      <gr=oFor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    HAWKINS v. JOHNSON.
    (No. 5498.)

    (Court of Civil Appeals of Texas. Austin.
    Nov. 3, 1915.
    Rehearing Denied Dec. 22, 1915.)
    1. Evidence <&wkey;420 — PAlton Evidence Affecting Weiting — Evidence Showing Conditional Chaeactee oe Note.
    In a suit on a note by the payee, evidence was admissible bn behalf of the maker that the note was given for bank stock sold, that it was agreed that if within 30 days the payee should elect not to sell his stock, then he might retain the cash payment as a bonus, and the maker should be released from his obligation to pay, and that the payee so elected to retain his stock.
    fEd. Note. — For other cases, see Evidence, Cent. Dig. §§ 1728, 1795, 1800, 1804, 1815,1821, 1929-1944; Dec. Dig. <&wkey;420.]
    2. Evidence <&wkey;419 — Notes—Consideeation.
    In a suit on a note, given for bank stock, by the payee, parol evidence that the note was conditional upon the payee’s not electing to retain his stock within 30 days, and that he so retained it, was admissible to show that the note was without consideration.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dec. Dig. &wkey;419.]
    Appeal from District Court, Runnels County ; Jno. W. Goodwin, Judge.

      Action by W. P. Hawkins against J. M. Johnson. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    W. P. Hawkins, as plaintiff, sued J. M. Johnson, as defendant; the cause of action being founded upon a promissory note, executed by Johnson and made payable to Hawkins. The defendant presented an answer which, among other things, raised the issues of fact which were submitted by the court to" the jury. The court instructed the jury to return a verdict for the plaintiff for the amount sued for, unless they found for the defendant under the second paragraph of the charge, which paragraph read as follows:
    “Second. If, from the evidence in this case, you believe that on or about the 2d day of April, 1912, plaintiff W. P. Hawkins and J. M. Johnson and F. W. Merrick made and entered into a contract, by the terms of which it was mutually agreed by and between them that W. P. Hawkins would sell and Johnson and Merrick would buy the 10 shares of bank stock owned by plaintiff, that by the terms of said contract the price to be paid for said stock was $1,160, $150 or $152.50 cash, and the balance to be paid 30 days after date of said contract, and if, from the evidence, you further believe that by the terms of said contract, if any, it was further mutually agreed by and between said parties that if at or prior to the expiration of 30 days from the making of said contract, if any, plaintiff Hawkins should elect not to sell his said bank stock or to retain it, that plaintiff should retain the cash payment as a bonus or reward for remaining in said bank, and that defendant and Merrick should be released from their obligation to pay the balance for said stock, and if from the evidence you believe that the note sued upon was given for the balance of the purchase price for said stock, and if from the evidence you further believe that at or before the expiration of 30 days from the time said contract, if any, was made, plaintiff elected to retain his stock in the bank and so notified defendant or Merrick, then and in that event you will find for defendant.”
    The jury returned a verdict for the defendant, judgment was rendered accordingly, and the plaintiff has appealed. Though the plaintiff testified to the contrary, the evidence submitted 'by the defendant supports the finding of the jury.
    Tom Patterson, of Winters, and G. N. Harrison, of Brownwood, for appellant. Wade & Doss, of Ballinger, for appellee.

      Application tor writ of error pending in Supreme Court.

   KEY, C. J.

(after stating the facts as above). The trial court ruled that appel-lee had the right to prove by parol evidence the matters alleged in his answer and submitted to the jury by the charge quoted; and that the matters so alleged constituted a defense and relieved him from liability upon the note sued on. Appellant has assigned error upon the rulings referred to upon the ground that they violated that well-established rule of law which, in the absence of fraud, accident, or mistake, denies to either party to a written contract the right to vary its terms ■by parol testimony. That question has been given careful consideration by this court, and the conclusion has been reached that this case does not fall within the scope of the rule referred to, but belongs within a class of cases that are held not to impinge upon that rule. While there may be some decisions to the contrary, the weight of authority seems to be in line with the decision of the Supreme Court of the United States in Burke v. Dulaney, 153 U. S. 228, 14 Sup. Ct. 816, 38 L. Ed. 698, from which we quote as follows:

“This action was brought by the testator of the appellees, upon a writing purporting to be the promissory note of the appellant for $4,308.-80, dated Salt Lake City, Utah, August 19, 1883, and payable one year after date, for value received, at the bank of Wells Fargo & Co. in that city, with interest at the rate of 6 per cent, per annum from date until paid.
“The defendant, Burke, denied his liability upon the note, and at the trial below was sworn as a witness on his own behalf. In support of his defense, as Set- forth in the answer filed by him, he stated the circumstances under which the note was given. He said: ‘Mr. Dulaney bought this group of mines — the Live Yankee and the Mary Ellen. He came to the Walker House in Salt Lake, and wanted me to run1 them for him. I said I would not do it unless I got a show to get some interest in the property. He says, I will carry an interest for you, and you can take it if you want it, and if not, you can give it back to me after you see the property.’ To this testimony the plaintiff objected, and, the defendant admitting that the agreement referred to by him was oral, the objection was sustained. To this ruling he excepted.
“Being asked what he did after giving the note in suit, he answered: T gave the note. I worked on the property which was done some time in September; worked the property until March; settled up all of its debts, paid them, notified Dulaney I wanted nothing more to do with the property; that I was going to Idaho territory, to Coeur d’Alene mines, and as I was ready to give him a deed at any time he would send me my note. That is all.’ Objection being made by the plaintiffs to this testimony, the defendant offered to prove ‘that at the time of the giving of the note and prior thereto, Du-laney, the payee of the note, agreed with Mr. Burke, the maker of the note, that the note should be given to represent the price of the interest that Mr. Burke was to have, conditioned upon his demanding it after an inspection of the mining property mentioned.’ He offered also to prove that after inspecting the property and testing it, the defendant notified testator that he did not want the interest; that he was prepared to make a deed for the interest to the latter, and demanded the delivery of his note. All this evidence was excluded by the court upon motion of the plaintiffs, to which ruling the defendant excepted.
“The defendant having stated that the conversation with the testator above referred to, and which was excluded by the court, took place prior to the execution of the note, he offered to prove that at the time the note was made, the same agreement was made orally between him and the testator. This testimony was also excluded, and he excepted.
“The following question was propounded to him at the trial: ‘State whether or not prior to your making the note the plaintiff agreed with you that you could explore, work, and develop the mining claims mentioned in the answer, and if at any time before the maturity of the said note you should desire so to do that he would relinquish said option of purchase — that you could relinquish your said option of purchase, and that he, plaintiff, would cancel the note and accept the deed in full discharge of the note and the cancellation thereof.’ The defendant having admitted that the agreement referred to in the question was oral, the court excluded the evi-deuce and he excepted. The conrt also refused to allow him 'to state whether he examined, worked, and developed the mining claims mentioned in his answer, and whether he had refused to take such claim under the agreement with the plaintiff.
“At the trial the defendant offered in evidence a deed executed by him to the plaintiff, conveying to the latter, in consideration of the surrender of the note in question, all his right, title, and interest in the above property — the same deed that had been filed by the defendant with his answer. The court held this evidence to be inadmissible unless the defendant proposed to show that the plaintiff accepted the deed. To this ruling the defendant excepted. The defendant was not present when Dulaney took a deed from the owner of the mining property nor was it ever delivered to him. * * *
“The general rule that a written contract cannot be contradicted or varied by evidence of an oral agreement between the parties before or at the time of such contract, has been often recognized and applied by this court, especially in cases in which it was sought to deprive bona fide holders of or parties to negotiable securities of the rights to which they wore entitled according to the legal import of the terms of such instruments. Renner v. Bank of Columbia, 22 U. S. (9 Wheat.) 587 [6 L. Ed. 166]; Brown v. Wiley, 61 U. S. (20 How.) 442 [15 L. Ed. 965]; Specht v. Howard, 83 U. S. (16 Wall.) 564 [21 L. Ed. 348]; Forsythe v. Kimball, 91 U. S. 291 [23 L. Ed. 352]; Brown v. Spofford, 95 U. S. 474 [24 L. Ed. 508]; Martin v. Cole, 104 U. S. 30 [26 L. Ed. 647]; Burnes v. Scott, 117 U. S. 582 [6 Sup. Ct. 865, 29 L. Ed. 991]; Falk v. Moebs, 127 U. S. 597 [8 Sup. Ct. 1319, 32 L. Ed. 266].
“Several of these cases were cited- in the opinion of the court below, and have been cited here, as supporting the exclusion of the evidence which the appellant offered to introduce. [Dulaney v. Burke] 2 Idaho, 719, 23 Pac. 915. It is supposed that Burnes v. Scott is particularly in point for the appellees. That was an action by the indorsee of a negotiable note against the maker. The defendant in that case offered to prove that the note was not intended by him or by the payee as a promissory note, but was given to and was received by the payee as a mere memorandum of the estimated value of the payee’s interest in certain railroad bonds placed in the hands of the maker, and which were to be accounted for in the settlement of certain partnership affairs in which the maker and payee were interested; and that upon such settlement it would appear that, the payee had received, prior to the giving of the note, more than his proper share of the partnership assets, and, therefore, was not entitled to claim anything in virtue of such memorandum. This court held the evidence inadmissible upon the ground that, by an alleged contemporaneous verbal agreement, it varied and contradicted the written contract of the parties. If that action had been brought by the original payee against the maker, and if the evidence above referred to had been excluded, a different question would have been presented. But, as we have seen, the issue in Burnes v. Scott was between the indorsee of a negotiable note and the maker. The rule is settled that a negotiable instrument, in the hands of an innocent holder for value, cannot be contradicted, to his prejudice, by evidence of an oral agreement or understanding between the original parties variant from the terms of their written contract.
“The authorities cited do not determine the present ease. The issue here is between the original parties to the note. And the evidence offered by the appellant, and excluded by the court, did not in any true sense contradict the terms of the writing in - suit, nor vary their legal import, but tended to show that the written instrument was never, in fact, delivered as a present contract, unconditionally binding upon the obligor according to its terms from the time of such delivery, but was left in the hands of Dulaney, to become an absolute obligation of the maker in the evept of his electing, upon examination or investigation, to take the stipulated interest in the property in question. In other words, according to the evidence offered and excluded, the written instrument, upon which this suit is based, was not, except in a named contingency, to become a contract, or a promissory note which the payee could at any time rightfully transfer. Evidence of such an oral agreement would show that the contingency never happened, and would not be in contradiction of the writing. It would prove that there never was any concluded, binding contract entitling the party, who claimed the benefit of it to enforce its stipulations. The exclusion of parol evidence of such an agreement could be justified only upon the ground that the mere possession of a written instrument, in form a promissory note, by the person named in it as payee, is conclusive of his right to hold it as the absolute obligation1 of the maker. While such possession is, undoubtedly — prima facie, indeed, should be deemed strong — evidence that the instrument came to the hands’of the payee as an obligation of the maker, enforceable according to its legal import, it is open to the latter to prove the circumstances under which possession was acquired, and to show that there never was any complete, final delivery of the writing as the promissory note of the maker, payable at all events and according to its terms. The rule that excludes parol-evidence in contradiction of a written agreement presupposes the existence in fact of such agreement at the time suit is brought. But the rule has no application if the writing was not delivered as a present contract. The authorities supporting these views are numerous, and to some of them it will be well to refer.
“In Ware v. Allen, 128 U. S. 591 [9 Sup. Ct. 174, 32 L. Ed. 563], w’hich was an action upon a written instrument, the defense was that it was understood between the parties at the time the instrument was signed that it should not be of any effect unless in certain named contingencies, which, it was shown, never occurred. Mr. Justice Miller, speaking for this court, said: ‘We are of opinion that this evidence shows that the contract upon which this suit is brought never went into effect; that the condition upon which it was to become operative never occurred, and that it is not a question of contradicting or varying a written instrument by parol testimony, but that it is one of that class oí cases, well recognized in the law, by which an instrument, whether delivered to a third person as an escrow or to the obligee in it, is made to depend, as to its going into operation, upon-events to occur or to be ascertained thereafter’ —citing Pym v. Campbell, 6 El. & Bl. 370-373; Davies v. Jones, 16 C. B. 625; Wallis v. Littell, 11 C. B. N. S. 369; Wiilson v. Powers, 131 Mass. 539; and Pawling v. United States, 8 U. S. (4 Cranch) 219 [2 L. Ed. 601].
“Pym v. Campbell, above cited, was an action upon an alleged agreement by the defendants to purchase from the plaintiff an interest in an invention of the- latter. The defendants gave in evidence that, in the course of negotiations with the plaintiff, they got so far as to agree upon the price at which the invention should bo purchased, if bought at all, and had appointed a meeting at which the plaintiff was to explain his invention to two engineers, when, if they approvedj the machine would be purchased. At the appointed time the defendants and the two engineers attended, but the plaintiff did not come, and the engineers went away. Shortly after they were gone the plaintiff arrived. One of the engineers was found and expressed a favorable opinion. The other could not then be found. It was then proposed that, as the parties were together and might find it troublesome to meet again, a writing should be then drawn up and signed, which, if the absent engineer approved the invention, should be the agreement; but if he did not approve it, should not be one. The absent engineer did not approve of the invention when he saw it, and the defendants contended that there was no bargain. The jury were directed that if it was agreed among the parties before the paper was signed that it should not operate as an agreement until the absent engineer approved of the invention, they should find for the defendants. A verdict was accordingly returned for the defendants. Upon a rule nisi for a new trial on the ground of misdirection, the cause was heard before the Court of Queen’s Bench. Erie, J., said that, while the production of a paper purporting to be an agreement of a party, with his signature attached, affords a strong presumption that it is his written agreement, and- if, in fact, he did sign the paper animo contrahendi, the terms contained in it were conclusive, and could not be varied by parol, evidence; yet, if it were proved that in fact the paper was signed with the express intention that it should not be an agreement, the other party could not fix it as an agreement upon those so signing. ‘The distinction in point of law,’ he said, ‘is that evidence to vary the terms of an agreement in writing is not admissible, but evidence to show that there is not an agreement at all is admissible.’ Compton, J., said that he knew of no rule of law estopping parties from showing that a papei-, purporting to be a signed agreement, was in1 fact signed on the terms that it should not be an agreement till money was paid or something else done. ‘The parties,’ he observed, ‘may not vary a written agreement, but they may show that thev never came to an agreement at all, and that the signed paper was never intended to be the record of the terms of the agreement; for they never had agreeing minds. Evidence to show that does not vary an agreement, and is admissible.’ Lord Campbell, Ch. J.: T agree. No addition to or variation from the terms of a written contract can be made by parol; but in this case the defense was that there never was any agreement entered into. Evidence to that effect was admissible; and the evidence given in this case was overwhelming. It was proved in the most satisfactory manner that before the paper was signed it was explained to the plaintiff that the defendants did not intend the paper to be an agreement till Abernethie had been consulted, and found to approve of the invention; and that the paper was signed before he was seen only because it was not convenient to the defendants to remain. The plaintiff assented to this. and received the writing on those terms. That being proved, there was no agreement.’ See, also, Lindley v. Lacey, 17 C. B. N. S. 585; Clever v. Kirkman, 33 L. T. N. S. 672; Gudgeon v. Besset, 6 El. & Bl. 986; 2 Taylor, Ev. (8th Ed.) § 1135.
“The case of Wilson v. Powers, above cited, was an action brought by the payee against the sureties in a promissory note. The defense was that the sureties had been discharged from liability by a written1 agreement between the payee and the principal, which was delivered to the principal, whereby the time of payment was extended. To this the plaintiff replied, and sustained his position by proof, that the writing signed by him, and which was relied upon as discharging the sureties, was delivered as a proposition merely, and upon the agreement that it should become binding only upon the assent of the sureties. The Supreme Judicial Court of Massachusetts said: ‘The manual delivery of an instrument may always be proved to have been on a condition which has not been fulfilled, in order to avoid its effect. This is not to show any modification or alteration of the written agreement, but that it never became operative, and that its obligation never commenced.’
' “In Benton v. Martin, 52 N. Y. 570, 574, the principle is thus stated: ‘Instruments not under seal may be delivered to the one to whom upon their face they are made payable, or who by their terms is entitled to some interest or benefit under them, upon conditions, the observance of which is essential to their validity. And the annexing of such conditions to the delivery is not an oral contradiction of the written obligation, though negotiable, as between the parties to it, or others having notice. It needs a delivery to make the obligation operative at all, and the effect of the delivery and the extent of the operation of the instrument may be limited by the conditions with which delivery is made. And so, also, as between the original parties and others having notice, the want of consideration may be shown.’ To the same effect are Juilliard v. Chaffee, 92 N. Y. 529, 535, and Reynolds v. Robinson, 110 N. Y. 654 [18 N. E. 127], in the latter of which it was said that the rule was now well established that ‘parol evidence is admissible to show that a written paper which, in form, is a complete contract, of which there had been a manual tradition, was, nevertheless, not to become a binding contract until the performance of some condition precedent resting in parol.’
“The same doctrine was announced in McFarland v. Sikes, 54 Conn. 250 [7 Atl. 408, 1 Am. St. Rep. 111]. That was an action upon a note, which, the defendant alleged, had been executed and delivered to the plaintiff upon an agreement that it should be canceled under certain named circumstances, and in the event he demanded, by a named day, that it be returned to him. The trial court having ruled that the facts relied upon by the defendant did not constitute a defense, the Supreme Court of Errors of Connecticut, reversing the judgment, said: ‘The error was in applying to the case the familiar and well-established rule that parol evidence is inadmissible to contradict or vary a written contract. A written contract must be in force as a binding obligation to make it subject to this rule. Such a contract cannot become a binding obligation until it has been delivered. Its delivery may be absolute or conditional. If the latter, then it does not become a binding obligation until the condition upon which its delivery depends has been fulfilled. If the payee of a note has it in his possession, that fact would be prima facie evidence that it had been delivered; but it would be only prima facie evidence. The fact could be shown to be otherwise and by parol evidence. Such parol evidence does not contradict the note or seek to vary its terms. It merely goes to the point of its nondelivery. The note in its terms is precisely what both the maker and the payee intended it to be. No one desires to vary its terms or to contradict them.’
“For the reasons stated, and without considering the case in other aspects, we are of opinion that it was error to exclude the evidence offered' by the defendant tending to show that the writing sued on was not delivered to or received by Dulaney as the promissory note of the defendant, binding upon him as a present obligation, enforceable according to its terms, but was delivered to become an obligation of that character when, and not before, the defendant examined and, by working them, tested the mining properties purchased by the plaintiff, and elected to take the stipulated interest in them.”

The only difference between the case at bar and the case decided by the Supreme Court of the United States, and from which we have (Rioted, is that, by thei parol agreement in that case, the right was reserved to the-defendant to elect as to whether he would accept what would have been the sole consideration for the note and thereby render it effective as a legal obligation; while in. this case the right of election was, by the-parol agreement, left witli tlie plaintiff to determine whether or not lie would deliver to the defendant that which would have been the sole and only consideration for the note. This difference is immaterial, and does not in any wise affect the principle announced and applied in that case. Furthermore, in this ease as well as the one referred to, the parol evidence objected to was admissible for the purpose of showing that the alleged contract sued upon was without consideration. In this case the appellant claims that the note sued upon was given for the purpose of paying for certain bank stock sold by him to the appellee, while the appellee claims that the property referred to was never in fact sold to him, because the appellant, in the exercise of a right reserved to him by the parol agreement, had elected not to sell the property. It would seem that if the appellant, after the note was executed and delivered to him, retained possession of the property which constituted the sole consideration for the note, and thereafter asserted his right to decline to sell it to the appellee, and the latter acquiesced and permitted the former to retain it, there was, in law, a complete failure of consideration, regardless of whether the alleged right of election was based upon a previous agreement or not.

But, aside from the question of consideration, the weight of authority seems to support the proposition that parol evidence is admissible for the purpose of showing that a promissory note, though absolute in form, and delivered to the manual possession of the payee, was not intended to take effect as a binding obligation until the happening of a stipulated contingency. Tucker v. Tucker, 113 Ind. 272, 13 N. E. 710; Zimmerman v. Adee, 126 Ind. 15, 25 N. E. 828; Walters v. Walters, 34 N. C. 28, 55 Am. Dec. 401; Sutton v. Griebel, 118 Iowa, 106, 91 N. W. 895; Howard v. Stratton, 64 Cal. 487, 2 Pac. 263; Lyons v. Stills, 97 Tenn. 514, 37 S. W. 280; Watson v. Rice, 166 S. W. 106; Nelson v. Boggs, 177 S. W. 1005. The last two cases were decided by other Courts of Civil Appeals of this state. We also refer to Hughes v. Crooker, 148 N. C. 318, 62 S. E. 429, 128 Am. St. Rep. 606, and the valuable note which follows that case. After stating the general rule, the author of the note says:

“While the rule above stated is so universally upheld as to be no longer a moot question, there are many exceptions to it, some of which are quite as important as the rule itself and seem to be quite as well settled! One of these exceptions or qualifications is, that conditions relating to the delivery of a note or bill may be shown by parol evidence. This exceptional rule has been very clearly stated by the Supreme Courts of Massachusetts and New York, thus: ‘The manual delivery of an instrument may always be proved to have been on a condition which has not been fulfilled, in order to avoid its effect.’ Wilson v. Powers, 131 Mass. 529; and ‘Parol evidence is admissible to show that a written paper which in form is a complete contract, of which there has been a manual tradition, was nevertheless not to become a binding contract until the performance of some condition resting in parol.’ Reynolds v. Robinson, 110 N. Y. 654, 18 N. E. 127. The principle upon which this exception to the general rule rests, as appears from the principal case, Hughes v. Crooker, 148 N. C. 318, ante, p. 606, 62 S. E. 429, 128 Am. St. Rep. 606, that parol evidence showing contemporaneous oral agreements relating to the delivery of a note does not contradict or vary the terms of the note, but only goes to show that the note never had any vitality as a contract, and this principle has been several times sanctioned by the Supreme Court of the United States.”

We have considered all the questions presented in appellant’s brief, and have reached the conclusion that no error has been shown, and the judgment is affirmed.

Affirmed.
      <g=»I?or other eases see same topic and KEY-NUMBKR in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    AMERICAN SURETY CO. OF NEW YORK v. STEBBINS, LAWSON & SPRAGGINS CO.
    (No. 6604.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 8, 1916.)
    Appearance <§=»8 — What Constitutes — Re-plevy Bond.
    The execution and filing of a replevy bond with a surety is no such an appearance by the defendant whose property was attached as will authorize judgment by default against defendant and its surety on the replevy bond.
    [Ed. Note. — For other cases, see Appearance, Cent. Dig. §§ 23-41; Dec. Dig. <S=>8.]
    Error from Dallas County Court; W. M. Holland, Judge.
    Action by the Stebbins, Lawson & Sprag-gins Company against the Bray Company begun by attachment. Defendant filed a replevy bond with the American Surety Company of New York as surety! There was judgment by default against defendant and the surety, and the surety brings error. Question certified to the Supreme Court in 180 S. W. 101.
    Reversed and remanded.
    Lively, Nelms & Adams, of Dallas, for plaintiff in error. Saner & Saner, of Dallas, and J. Robert O’Connor, of Los Angeles, Cal., for defendant in error.
   TALBOT, J.

The Stebbins, Lawson & Spraggins Company brought this suit against the Bray Company to recover $730.86, alleged to be due on account. A writ of attachment was sued out and levied upon certain personal property of the defendant. On August 5, 1910, the defendant, the Bray Company, replevied the property attached by giving bond with the plaintiff in error herein as surety. Citation to the Bray Company was issued but not served, the sheriff’s return reciting that said company had gone to Kansas City to reside and could not be found. On November 1, 1910, judgment was rendered against the said defendant for the amount sued for, and against the plaintiff in error, American Surety Company, as surety on the replevy bond. From this judgment the American Surety Company sued out a writ of error to this court.

The controlling question presented for de: termination is whether or not the execution and filing of the replevy bond by the Bray Company, with the plaintiff in error as surety, was such an appearance on the part of the Bray Company as authorized judgment by default against said company and its surety on the replevy bond.

This question was certified by this court to our Supreme Court for decision and the same answered in the negative. In passing upon the question the Supreme Court handed down an exhaustive opinion, to which we feel we can add nothing useful. The opinion of the Supreme Court, together with a full statement of the case, will be found in 180 S. W. 101. The decision of the Supreme Court, in which we concur, requires a reversal of the ease, and in order that the defendant in error, the Stebbins, Lawson & Spraggins Company, may have an opportunity to secure service of citation on the Bray Company in some mode provided by statute the case will be remanded.

Reversed and remanded.
      <gE5>For other cases see same topic and KEY-NTJMBER in all Kiev-Numbered Digests and Indexes


author: HALL, J.

text:
    AJAX-GRIEB RUBBER CO. v. HUBBARD.
    (No. 873.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 4, 1915.
    Rehearing Denied Jan. 12, 1916.)
    1. Pleawhs <§=205 — Plea of Counterclaim —Defects—General Demurrer.
    That the set-off and counterclaim pleaded by defendant did not distinctly state the nature of the counterclaim and the several items thereof as required by Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1326, 1907, cannot be reached by general demurrer, but must be reached by special exception.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. f§ 491-493, 495, 496,'498-570: Dec. Dig. <§=205.]
    2.. Appeal and Error <§=707 — Review — 'Questions Pleaded.
    Without a statement of facts or finding of facts in the record, the appellate court cannot determine that a judgment on contested issues is erroneous.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2942; Dec. Dig. <@=707. ]
    3. Appeal and Error <@=680 — Record — Questions Pleaded.
    Without a statement of facts or finding of facts in the record, the appellate court cannot review alleged errors in overruling special exceptions to the pleadings.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2880-2882; Dec. Dig. <§=680.1
    Appeal from Hale County Court; W. B. Lewis, Judge.
    Action by the Ajax-Grieb Rubber Company against B. A. Hubbard, who filed a cross-action. From a judgment for Hess than the amount claimed, plaintiff appeals.
    Affirmed.
    Culton & Taylor, of Tulia, for appellant. Fred O. Pearce, of Plainview, for appellee.
   HALL, J.

Appellant sued appellee upon a verified account in the sum of $486.04. Ap-pellee’s answer pleads certain matters in set-off, in the sum of $267.50, being the value of certain goods alleged to have been returned by him to the plaintiff; and by cross-action sought to recover other amounts, aggregating $740. He agreed that $376.12 of the plaintiff’s claim was just, and ashed for judgment in the sum of $364.48, over and above the amount due by him to plaintiff. The case was tried by the court, without a jury, and judgment entered for plaintiff in the sum of $115.54. There is no statement of facts in the record, nor did the trial court file findings of fact. The only questions presented here by appellant’s brief arise from the action of the trial court in overruling special exceptions urged by plaintiff to the cross-complaint and plea of set-off and counterclaim filed by defendant.

It is insisted that because the counterclaim and set-off; pleaded by defendant, does not state distinctly the nature of the counterclaim and the several items thereof, and does not comply with the requirements of articles 1907 and 1326 of Vernon’s Sayles’ Civil Statutes, appellant’s general demurrer should have been sustained. These requirements of the statutes are for the benefit of the defendant in such plea, and may be waived by him. It is not a defect which can be reached by general demurrer, but must be raised by special exception. Eule v. Doran, 41 Tex. Civ. App. 520, 92 S. W. 828; Gorham v. Dallas, C. & S. W. Ry. Co., 41 Tex. Civ. App. 615, 95 S. W. 551.

Without a statement of facts or findings of fact in the record, we are unable to say that the court’s judgment is erroneous, because we cannot know upon what testimony it was rendered. We must presume, in support of the judgment, that he did not consider improper testimony. The rule is settled that without a statement of facts or findings of fact in the record, the appellate tribunal cannot review alleged errors on the part of the trial court, in overruling or sustaining the special exceptions to pleadings. Smyer v. Ft. Worth & Denver City Ry. Co., 154 S. W. 336; Connally v. Saunders, 142 S. W. 975; C., R. I. & G. Ry. Co. v. Barrett, 45 Tex. Civ. App. 73, 100 S. W. 800, and authorities there cited.

The judgment must be affirmed.


author: RASBURY, J.

text:
    STEPHENSON et al. v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS et al.

    (No. 7308.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 4, 1915.
    Rehearing Denied Jan. 8, 1916.)
    1. Railroads <@=73 — Rights of Wat — Leases of.
    A railroad company which owns the fee of its right of way may lease it to others for any legitimate purposes not connected with its use for railroad purposes; Rev. St. 1911, art. 6532, providing that the right of way secured by any railroad company in the manner provided by law shall not be construed to include the fee of the land, and section 6542, that railways shall not have the power to construct any buildings to be occupied by employés or others along the right of way, except at their respective depot stations and station houses, not applying to where the railroad company has obtained the fee.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 179-182; Dec. Dig. <@=78.]
    2.Raileoads <@=>73 — Rights or Way — Right to — “Grant, Sell, and Convey.”
    The owner of a parcel of land granted to a railroad company the right to construct and forever operate its railroad over and across the land, which right should be forfeited in the event of the railroad company’s failure to construct and operate its road. After the grant of the right of way the owner sold the fee of her lands to a third person, who in turn conveyed them to another. The second grantee, who held the fee, platted a town on the property and conveyed to the railroad company an enlarged right of way and a parcel of land for a station. Held, that by such grant, which used the words “grant, sell, and convey,” the railroad company acquired the fee to its right of way, and could use portions of the right of way for any purpose desired, regardless of the limitations in the first .grant.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 179-182; Dee. Dig. <@=>73.]
    3.Easements <@=>1 — What Are — “Easement” — “Servitude.”
    An “easement” is a right which one proprietor has to some profit, benefit, or lawful use out of or over the estate of another proprietor; while a “servitude” is the burden imposed on one tract of land for the benefit of another.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 1, 2, 5-7; Dec. Dig. <@=>1.
    For other definitions, see Words and Phrases, First and Second Series, Easement; Servitude.]
    4.Easements <@=>1 — Creation—Grant.
    Easements or servitudes may arise by deed or express grant, by prescription, by oral covenants, and by implication.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 1, 2, 5-7; Dec. Úig. <@=>1.]
    6.Railroads <@=>73 — Right oe Way — Use-Easement.
    An attorney who, with the sanction of a railroad company, had undertaken to buy lands adjacent to the proposed line of railway suitable for town or village sites, acquired a parcel of land over which the railroad company already had a right of way. He thereupon conveyed in fee to the railroad company an enlarged right of way, together with land for a depot. Simultaneously with the execution and delivery of the deed, the-consideration for which was the location of a station at that point, the attorney granted to the railroad company the right to dam a water course forming a pond. The railroad company and the inhabitants of the town were granted the right to use the waters of the pond; the railroad company being given priority. A town site was platted on the remaining land, the map showing the dedication of the pond to the railroad company and the public, and the arrangement of the streets, blocks, and lots with reference to the railroad company’s right of way. Held that, though lots were sold pursuant to the plat, the attorney could not after his grant create any easement in or servitude upon the right of way; consequently purchasers from the attorney had no right to demand that the railroad company use its right of way only for railroad purposes, and not to lease same for other purposes.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 179-182; Dec. Dig. <@=>73.]
    6. Appeal and Error <@=>742 — Presentation oe Grounds oe Review in Court Below— Exceptions — Necessity.
    Where appellant did not reserve appropriate exceptions, assignments complaining of the refusal of the charges cannot be considered as propositions of law under other assignments of error; for that would be a mere evasion of the practice acts requiring exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <@=>742.]
    7. Appeal and Error <@=>742 — Assignments oe Error — Propositions.
    Assignments which do not present error cannot be considered as propositions of law under other assignments; for they would not be germane to the assignments to which they were sought to be subjoined.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. <@=>742.]
    8. Appeal and Error <$=>248 — Presentation oe Grounds oe Review in Court Below— Necessity.
    An assignment that a contract whereby a railroad company leased part of its right of way to a lumber company was invalid as tending to create restrictions in the free pursuit of the transportation of lumber and to stifle competition presents a fundamental error which may be considered, although the matter was not presented by appropriate exceptions to refusal of a special charge declaring the lease to be void.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1432, 1435-1439, 1443, 1447-1452, 1454-1459, 1462, 1464r-1468; Dec. Dig. <@=>248.]
    9. Appeal and Error <@=>173 — Determination-Questions to be Considered.
    It is the policy of appellate courts to consider whether contracts between carriers and others are void as tending to stifle competition and work undue discrimination, whether presented in the trial or appellate courts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1079-1089, 1091-1093, 1095-1098, 1101-1120; Dec. Dig. <@=>173.]
    10. Monopolies <@=>16 — “Trust” — What Constitute.
    Rev. St. 1911, art. 7796, defines a “trust” as a combination of capital, skill, or acts by two or more persons to create or carry out restrictions in trade or commerce or aids to commerce or in the free pursuit of business, or to prevent or lessen competition in the manufacture, making, transportation, sale, or purchase of merchandise, or in the preparation of any produce for market or transportation. A railroad company leased part of its right of way to a lumber, company under a contract providing that the company should deliver to the railroad company for transportation all freight consigned to the lumber company which might be transported by rail, provided that the rates over the railroad company’s routes should equal those of its competitors; the purpose being that the railroad company should have the longest available haul of freight over its own lines. The agreement further required the lumber company to consign to the railroad all freight which it might have at any time to be transported or shipped, and that failure to comply with those stipulations should give the railroad company the right to terminate the agreement. Held that, as the lumber company was not bound to ship its freight over the line of the railroad company unless its rates should equal the rates of competing carriers, and as the railroad company might not be able to meet competition, the agreement was not invalid within the statute, as intended to stifle competition.
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 12; Dec. Dig. t®=?16.
    For other definitions, see Words and Phrases, First and Second Series, Trust.]
    Appeal from District Court, Navarro County ; H. D. Stone, Special Judge.
    Action by C. C. 'Stephenson and others against the St. Louis Southwestern Railway Company of Texas and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    Richard Maya, of Corsicana, for appellants. E. B. Perkins and D. Upthegrove, both of Dallas, and R. S. Neblett and Callicutt & Johnson, all of Corsicana, for appellees.

      Application for writ of error pending in Supreme Court.

   RASBURY, J.

The appellants in the court below, consisting of a number of citizens of the town of Frost, in their own behalf and that of the citizenship of Frost, sued the St. Louis Southwestern Railway Company of Texas, the Frost Lumber Company, and L. A. Morgan, seeking, pending trial, a temporary injunction, and upon trial a perpetual injunction restraining the St. Louis Southwestern Railway Company of Texas from leasing to Frost Lumber Company a portion of its right of way in the town of Frost and restraining the Frost Lumber Company from erecting thereon buildings, sheds, fences, etc., wherein and whereon to conduct a lumber business. The right of injunction was based upon the claim by appellants that the right of way of the railroad could in no respect 'be used for purposes other than railroad purposes and upon the claim that the predecessors in title of appellee St. Louis 'Southwestern Railway Company of Texas had acquired their right of way in such manner as gave appellants and the citizens of Frost an easement or servitude thereon, which would be interfered with by constructing the proposed lumber sheds thereon.

Upon presentation of the petition, on August 26, 1913, to the district judge, Hon. H. B. Daviss, in vacation, the temporary writ of injunction was directed to and did issue at that time. The matter remained in the attitude just related until December 9, 1913, at which time Hon. H. L. Stone, selected as special district judge to try the case, Judge Daviss having recused himself because related within the prescribed degree of consanguinity to one of the appellants, upon full hearing dissolved the temporary injunction authorized by Judge Daviss, 'but, as such special judge, directed the issue of a similar writ, which remained in force until final trial of the case.

The pleadings of the parties in the court below sufficiently raised all issues presented in their respective briefs, and for that reason we deem it unnecessary to detail same, save to say that appellee St. Louis Southwestern Railway Company of Texas alleged that it was the owner in fee of the lands constituting its right of way through the town of Frost and privileged to make any lawful use thereof, and that the 'building thereon of lumber sheds and leasing same was such lawful use, and save also that before final trial ap-pellee Frost Lumber Company, by proper plea, alleged that it was damaged by the issuance of the temporary writ of injunction, and sought to recover in that behalf certain specified items of damage.

There was jury trial, and upon conclusion of the evidence and upon motion of appellees the trial judge peremptorily instructed the jury to return verdict for appellees on the issue of perpetual injunction. The issue of damages against appellants was submitted to the jury, who returned a verdict for appellees Frost Lumber Company and against appellants in the sum of $562.50. Judgment was accordingly entered dissolving the temporary injunction and refusing a permanent one against appellees, and also in favor of Frost Lumber Company for its damages found 'by the jury, and from which judgment appellants have appealed to this court.

There are in the record certain undisputed facts which, in our opinion, control the disposition of the assignments of error challenging the action of the court in peremptorily instructing the jury to find against appellants’ prayer for permanent injunction, and which are, in substance, as follows: In the year 1887 the St. Louis, Arkansas & Texas Railway Company proposed and undertook to build, construct, and operate a line of railway between the towns of Corsicana and Hillsboro, and for that purpose sought to and did secure from those over whose lands the proposed railway passed the right of way therefor. Bryant T. Barry, then residing in Corsicana, was local attorney there for the railway company. Barry, with the consent and sanction of the railway company, undertook to buy lands along and adjacent to the proposed line of railway suitable for town or village sites, and which lands were ultimately to be platted and sold to those who might desire to purchase same. The railway company was not interested in a financial way in the enterprise, neither contributing money with which to purchase the proposed town sites nor entitled to any profits derived therefrom or liable for any losses which might result. It was, however, agreed between the railway company and Barry that before the railway company would consent to or sanction the location of such town sites on its right of way such town sites should be platted or arranged according to a standardized plan or drawing prepared by its engineer; further, that in acquiring lands for town sites Barry would acquire sufficient to meet the requirements of the railway company, and would, in addition, donate to the company free a right of way over such lands sufficient for its line of railway, switches, depot, etc. For the sake of brevity we anticipate events at this point in our statement to say that the evidence discloses that the railroad was constructed and put in operation, being now operated as the St. Louis Southwestern Railway Company of Texas, one of the appellees, and that the town of Frost, in Navarro county, was located on said line of railway, and that it is upon the railroad right of way through said town of Frost that it was proposed to build the lumber sheds in which to conduct a lumber business, and which appellants sought to prevent by perpetual injunction. The town of Frost and the right of way of the railway company, the right to the use of which is in dispute, is situated in the southwest corner of the Noah Kizziah survey, in Navarro county, on lands owned in the year 1887 by Mrs. M. E. Goodloe. By conveyance dated July 20, 1887, but acknowledged August 27th following, Mrs. Goodloe granted the railway company the right of way upon a strip of land 100 feet wide across and over her lands in the said survey. The consideration of the grant was recited to 'be $350 and the construction and operation of a railroad over the land. On August 27, 1887, Mrs. Goodloe, in consideration of $2,844, conveyed to R. J. Sanders the fee, without restriction or limitation, to all her lands in the Noah Kizziah survey, amounting to 190 acres, which included the 100-foot strip granted the railway company by her, and which included the land upon which the town of Frost and the present right of way of the railway company is now situated. On August 31, 1887, Sanders, in consideration of $2,250, conveyed to Bryant T. Barry the fee of 150 acres of the land acquired from Mrs. Goodloe, also without restriction or limitation. The 150 acres so conveyed to Barry by Sanders included within its bounds the strip or right of way granted by Mrs. Goodloe to the railway company, as well as the land upon which the town of Frost and the right of way of the railway company is now situated. After acquiring the 150 acres from Sanders, Barry furnished the field notes therefor to the railway company’s engineer, who, in accordance with the arrangement between Barry and the company, platted the town, showing the arrangement of its streets, blocks, and lots, as well as the company’s right of way through the proposed town. On March 17, 1888, out of the 150 acres of land acquired by Barry in the manner just related he conveyed to the railway company the fee to a strip of land 300 feet wide and approximately 3,200 feet long. The consideration for the execution of the deed was the location and maintenance of a depot 'by the railway company upon the land so conveyed. Simultaneously with the execution and delivery of the deed conveying the right of way Barry executed another conveyance to the railway company, by the terms of which he granted the railway company, upon damming a water course, the right to overflow certain of the lands he had acquired from Sanders and adjacent to the company’s right of way by which a pond or lake would be created, the first use of the waters ot which was conferred upon the railway company, and then upon the citizens of Frost, etc. See Gillean v. City of Frost, 25 Tex. Civ. App. 371, 61 S. W. 345. Prior to the time Barry made either of the foregoing deeds to the railway company he had, in pursuance with his arrangement with the company, furnished its engineer with the field notes of the land acquired by him, and the engineer had made the map referred to above, which Barry had reproduced and distributed over the country as showing the town of Frost and the manner in which the railway company’s right of way was located, the map showing also the public pond dedicated to the railway and the town by Barry. It is also true that before Barry executed the two foregoing deeds the railroad had been built and was in operation, and that Barry had sold as many as three of the lots delineated on said map, but not to any of the appellants or their predecessors in title. It is also true that the property of appellants in this suit does not abut upon the railway company’s right of way, but facés upon a street which is 60 feet wide and parallels the right of way under discussion. At the time of filing the instant suit and at the time the temporary injunction was issued at the request of appellants appellee railway company had leased a portion of its right of way to appellee Frost Lumber Company, who was preparing to erect thereon certain lumber sheds to 'be used by Frost Lumber Company in storing its lumber, and from which place said lumber company intended to conduct a private retail lumber business.

Appellants’ first and second assignments of error challenge the action of the trial court in peremptorily directing verdict for appel-lees on the issue of perpetual injunction, and the first proposition thereunder is that the several deeds set out in our statement of the facts vested in appellee railway company a right of way over the lands therein described, and hence did not authorize the use of the right of way for the purpose of conducting thereon a private commercial enterprise.

Confining ourselves to the exact issue raised by the proposition just stated, it is safe to assert that all authorities agree that, whenever a railway company is thfe owner of the fee in lands constituting its right of way, it may in reference thereto clearly exercise the rights and powers “usually incident to such ownership * * * in any manner not hurtful to others, and the right to lease it to others and therefrom derive profit is an incident of such ownership.” Calcasieu Lumber Co. v. Harris, 77 Tex. 18, 13 S. W. 453. The rule quoted is not affected by article 6532, R. S. 1911, which, in substance, provides that the right of way secured by any railway in this state “in the manner provided by law shall not be construed to include the fee in lands,” nor by article 6542, R. S. 1911, which provides, among other things, that:

Railways shall not have power “to construct any buildings along the line of their railroad to ■be occupied by their employés or others, except at their respective depot stations and section houses, and at such places only such buildings as may be necessary for the transaction of their legitimate business operations, and for shelter of their employés.”

Statutes of substantially similar import were in existence at the time the opinion was written in Calcasieu Lumber Co. v. Harris, supra, and are quoted in full in the opinion. The court bases its holding in that ease on the ground that, railways being authorized by statute to acquire the fee in lands by voluntary grant to aid in the construction of their roads, as they are also now authorized to do (articles 6538, 6539, R. S. 1911), the provision of the statute necessarily has reference only to lands or rights of way upon which they only have an easement, and not that they may not in any event acquire a greater estate therein.

Such being the rule, our duty narrows to an examination of the chain of title by which appellee railway company holds the right of way and its rights thereunder. As shown in our statement of the essential and undisputed facts, Mrs. Goodloe was originally the owner of the fee in the right of way lands in controversy in this suit, a conveyance of which she made to the St. Louis, Arkansas & Texas Railway Company. This conveyance, as shown by our statement, was clearly but an easement or right of way over the lands, since the most the deed granted was “the right to construct and forever operate its l’ailroad over and across said land,” and which was to be forfeited in the event the railroad failed to so construct and operate its road. After the grant of the easement or right of way by Mrs. Goodloe to the railway company she sold and conveyed to Sanders the fee in all her lands in the Kizzialu survey, which included the land over which she had granted the easement to the railway company, following which was the deed from Sanders to Barry and from Barry to the railway company, by which the fee to the lands constituting the right of way of the railway company was passed first to Barry, and in turn by Barry to the railway company. , That such was the effect of the conveyances by Mrs. Goodloe to Sanders and by Sanders to Barry cannot, we believe, be intelligently disputed. The deeds upon their face disclose an outright purchase and sale for a money consideration, followed by grant of the fee in the land, without restriction or limitation, save a reservation of the vendor’s lien to secure a portion of the unpaid purchase price. Thus all interest in the land of whatever nature passed to Barry, subject only to the prior easement of the railway for the purpose of constructing and operating its road over the strip designated by Mrs. Goodloe in her grant. Then it was that Barry, having acquired the absolute title to the 150 acres of land for town-site purposes, which included the right of way of the railway company across same, in compliance with his arrangement with the railway company to donate them a sufficient right of way through the proposed town, conveyed the strip already referred to. The consideration for the conveyance was that the railway company would locate and maintain upon the lands so conveyed its depot, and the estate granted was the fee therein. The granting clause of the deed is:

“Do by those presents grant, sell, and convey unto the St. Louis, Arkansas & Texas Railway Company * * * all that certain lot, piece, or parcel of land situated in said county of Navarro, at Frost, a station * * * upon said railway and on the Noah Kizziah survey of land, to wit [describing the enlarged right of way].”

Argument is not necessary to demonstrate the effect of such a grant. Thus by the several conveyances enumerated it is clear that from a perpetual right of way or easement upon the land the railway company succeeded to the fee or proprietary right therein, with the right to use the property for all lawful purposes, one of which was to lease a portion thereof for the purpose of a lumber yard, and subject to any rights that may have arisen from facts aliunde the deeds prior to the acquisition of the fee by the railway company which will be hereafter discussed.

The next proposition urged under first and second assignments of error is that the court erred in peremptorily directing verdict for appellee because there was testimony adduced tending to show that the land in controversy was donated 'by Barry to the railway company for use for railway purposes only, and hence the issue should have been referred to the jury. Under the foregoing it is argued that the rule announced in Harrison v. Boring, 44 Tex. 257, applies. In that case it appears from the evidence that the Texas & Pacific Railway Company upon land which it owned laid out and platted the town of Long-view, and through and by its agent appointed for that purpose sold town lots to various persons, to whom the agent represented that a certain lot or space within the limits of the proposed town had been reserved and permanently set apart for and upon which would be built its depot. Subsequently the lot so reserved was sold, and the purchasers were preparing to use it for private commercial purposes. Injunction was sought to prevent the proposed use of the depot lot, in connection with which it was further shown that the use of the depot for private business purposes would affect the use and utility of the other houses built upon faith of the representations that it would only be used for depot purposes. It was ruled under the facts related that a servitude was created upon the lot so reserved for the benefit of those who purchased lots in the proposed town in faith of the representations of the railway company which could not be destroyed by subjecting it to another and different use if, in fact, the representations were made. What similar state of facts can ‘be found in the record in the instant case which will authorize the application of the rule stated? Clearly the rule is not supported by the deed from Barry to the railway company, since that deed passed the fee of the lands to the railway company, by which, standing alone, the company could use the land for all lawful purposes, one of which is the renting and leasing of same for use in private business pursuits. Then, do the facts related in our statement, the platting of the land by Barry when he was owner of all of it, including the fee to the right of way, the distributing of maps, showing the arrangement of the town and the railway right of way in relation thereto, the fact that the company was actually operating its trains over the right of way before it acquired the right of way from Barry, and that Barry had sold as many as three lots under such conditions, create a servitude for the 'benefit of appellants upon the right of way by which its use must be restricted to the use contended for?

We forego any extended discussion of the law of easement or servitude; nor will we attempt to draw nice distinctions between the two. It is proper, however, to say in a general way that an easement is defined to be “a right which one proprietor has to some profit, benefit, or lawful use, out of or over the estate of another proprietor” (Henslee v. Boyd, 48 Tex. Civ. App. 494, 107 S. W. 128), and that a servitude is defined to be “the 'burden imposed on one tract of land for the benefit of another tract, to be enjoyed thereon as an advantage, liberty, or privilege to the owner of the latter tract” (Harrison v. Boring, 44 Tex. 255). Also in a general sense the rights conferred by easement or servitude may arise by deed or express grant, by prescription, by oral covenant, and by implication. 'See chapter on Easements, 14 Cyc. 1184. Accordingly, in view of the construction we have placed upon the deed from Barry to the railway company, and which is supported by the holding in Calcasieu Lumber Co. v. Harris, supra, and the absence of any claim of prescriptive use, any easement or servitude that appellants may have upon the right of way of the railway company obviously arises by implication, depending for its support upon the recited acts of Barry, and necessarily upon acts arising prior to the time the railway company acquired the fee to its right of way; for, of course Barry could not, after conveying the fee in the lands to the railway company, create any easement in or servitude upon the right of way, since unity of ownership is necessary to create such right., in land. Do the facts recited then create an implied grant of easement or servitude upon the railway company’s right of way? We conclude they do not. It was said in the case of Sellers v. H. & T. C. Ry. Co. et al., 81 Tex. 458, 17 S. W. 32, 13 L. R. A. 657:

“The questions of grant of easements by implication and of implied reservations of easements have given rise to much conflict of opinion. * * n

It is conceded to be the settled law in England:

“That, when the owner of two adjoining lots sells one, he does not reserve implied for the benefit of the other any easement except those of a strict necessity, * * * but that he does impliedly grant to the grantee all continuous and apparent easements which are necessary for the reasonable use of the property granted and which have been or are at the time of the grant used by the owner of the entirety for the benefit of the part granted. Washburn, Easements (4th Ed.) 105.”

Under the facts in the instant case it cannot reasonably be said that, under Barry’s arrangement of the proposed town of Erost as delineated upon his map, the same actually or upon the map raised any implication that the right of way would be used exclusively for railway purposes. Any such implication, as Justice Gaines said in the case just cited, must arise from some continuous or apparent easement “necessary for the reasonable use of the property granted and which have been or are at the time of the grant used by the owner of the entirety for the benefit of the part granted,” or, as he says at another place, uses of “strict necessity.” As we have said, the map of the town portrayed the right of way as a strip of land 300 feet wide and 3,200 feet long extending through the center of the town. Intervening between and parallelling the right of way and the blocks and lots of the town on each side for the full length thereof, and further on the north side, was a public street 60 feet wide, 'by which the public who might acquire lots in the town could reach intersecting streets and thereby cross the right of way. Clearly it seems to us this arrangement afforded all that was “necessary” and “reasonable” to the use of such town lots and was the only “apparent” easement to be implied therefrom. It must be borne in mind that no claim is, or perhaps could 'be, made by appellants of any right to go upon the right of way to transact any business conducted by those who have purchased lots in the town. The contention is that they may by reason of the claimed easement control the use to which the railway company may put the same. It must also be borne in mind that on the map of the town no words of express reservation as to the use to which the space so reserved would be put are written. It merely shows the space reserved, in the center of which are lines indicating railway tracks over which is written St. Louis, Arkansas & Texas Railroad. To say that an inspection of either the map or the ground itself would raise the implication of either an apparent or necessary easement or servitude upon the right of way for the use of possible purchasers of lots is not warranted by such facts alone. Accordingly we conclude that the evidence waá insufficient to require the submission of the issue to the jury.

What we have just said, meets the issue presented by appellants under their third proposition under the first and second assignments of error.

What we have just said also meets the issues presented by appellants under their fourth proposition under the first and second assignments of error, to the effect that the building of said lumber sheds increased the fire hazard and obstructed their light and view, since such results are insufficient to prevent the construction and erection of a building in all respects lawful.

The third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth assignments of error challenge the action of the trial court in refusing to give as many special charges to the jury. Consideration of the assignments is objected to by the appellee because the refused charges are not presented in compliance with the recent amendments of the practice acts. For the reason that counsel for appellants frankly concedes the sufficiency of the objections we will not recite the particulars of the grounds upon which the objection is 'based. However, appellants ask us to consider the assignments presenting the action of the court in refusing the charges not as such, but as propositions of law under his first and second assignments of error. This may not, in our opinion, be done, since the effect would be: First, but to evade the amended practice acta; and, second, to present a proposition of law in a manner not authorized by the rules, and one not germane to the assignment of error under which it is sought to be presented. Accordingly the assignments will not be considered under the rule announced in St. Louis S. W. Ry. Co. v. Wadsack, 166 S. W. 42, and followed by this court in W. R. Case & Sons Cutlery Co. v. Folsom, 170 S. W. 1066; Texas Midland R. R. v. Fogleman, 172 S. W. 558; Horton v. Texas Midland R. R., 171 S. W. 1023, and cases cited.

As will appear from our statement of the case, appellees recovered of appellants $562.50 damages resulting from the issuance of the temporary injunction. On this branch of the case, at conclusion of the evidence, appellants requested the court to give their special charge No. 31, the effect of which was to inform the jury that the damages sought could not be recovered, for the reason that the lease contract entered into between the appellee St. Louis Southwestern Railway Company of Texas and appellee Frost Lumber Company—

“creates and tends to create and carry out restrictions in trade and commerce, and aids to commerce, in the preparation of lumber for market, and in the transportation thereof, and that it also creates and carries out restrictions in the free pursuit of the transportation of lumber authorized by the laws of this state, and also prevents and lessens competition in the transportation of such lumber from the mills to the place of sale, and also prevents and lessens competition in aids to commerce and in the transportation of lumber upon the railways in this state.”

The charge was refused, to which refusal appellees failed to except in the manner provided by law, and appellees in limine object to any consideration of the action of the court in refusing the charge .for that reason. This assignment, as argued by appellants, in our opinion, presents fundamental error, if any at all, since- the fact pointed out by the assignment itself, the claimed illegal contract, is enough “to make the error of law which pervades the case obviously apparent” without the necessity of further investigation in the record by the court, and for that reason is entitled to consideration. Texarkana & Ft. Smith Ry. Co. v. Brass, 175 S. W. 778.

Furthermore, it seems to be the policy of the appellate courts to consider issues like the one here raised and those against public policy, whether presented in the trial or appellate courts. Pasteur Vaccine Co. v. Burkey, 22 Tex. Civ. App. 232, 54 S. W. 804, and cases cited. Hence we will consider the assignment.

In support of the issue raised by the charge appellants present in their brief the twelfth clause of the lease contract between St. Louis Southwestern Railway Company of Texas and the Frost Lumber Company, which is, in part, as follows:

“Said party of the second part further agrees to, and shall, deliver, or cause to be delivered, to the railway company for transportation, all freight consigned to the i>arty of the second part at said station which is transported to said point by rail, or may or can be transported to said points over the rails of the railway company: Provided, however, that the rates over said route are equal to those of its competitors; the purpose being that the railway company shall have the longest available haul of such-freight over its own lines. Said party of the second part shall deliver to the railway company at said place all freight which it may have at any time to be transported or shipped from said place, and the railway company shall have the right to route all of said freight: Provided, the rate to destination is over the cheapest practicable route. Failure on the part of the second party to comply with these stipulations shall give the railway company the right, at its option, to terminate this agreement.”

A careful consideration and analysis of that portion of the lease contract which is attacked as being illegal discloses that the Frost Lumber Company agreed: First to divert to the railway company’s line all freight that could be transported to Frost over its line in order to give it the longest available haul on condition that its rates were equal to its competitors; and, second, to divert to it all freight originating, from Frost on condition that it was routed over the cheapest practicable route. Article 7796, R. S. 1911, declares that:

“A ‘trust’ is a combination of capital, skill or acts by two or more persons, firms, corporations or associations of persons, or’eithér two or more of them for either, any or all” of certain defined purposes.

The acts forbidden are numerous, but a careful examination of each specification convinces us that only the first and third subdivisions of the article may be said to have any application to the clause of the lease contract under consideration. Said subdivisions are as follows:

(1) “To create, or which may tend to create, or carry out restrictions in trade or commerce or aids to commerce or in the preparation of any product for market or transportation, or to create or carry out restrictions in the free pursuit of any business authorized or permitted by the laws of this state.”
(3) “To prevent or lessen competition in the manufacture, making, transportation, sale or purchase of merchandise, produce or commodities, or the business of insurance, or to prevent or lessen competition in aids to commerce, or in the preparation of any product for market or transportation.”

By the first subdivision it is made unlawful in the manner denounced by the statute, among other things, to restrict commerce or aids to commerce or transportation or the free pursuit of any business authorized or permitted by law. By the third subdivision it is made unlawful, among other things, to do any act which will lessen competition in transportation. The question then arises: As applied to the lease contract in question, does it in any manner restrict or lessen competition in the transportation of freight or the free pursuit of any business? The case of Ft. Worth & D. C. Ry. Co. v. State, 99 Tex. 34, 87 S. W. 341, 70 L. R. A. 950, involved a contract between a railway company and the Pullman Oar Company by the terms of which the former company granted the latter company the exclusive right to furnish sleeping cars for the use of the railway company’s passengers on condition that the Pullman Company should not charge or collect from its passengers for the use of berths and seats therein more than was collected by competing lines of railway for equal accommodations. The case was before the Supreme Court upon certified questions, one of which was:

“Is the contract in question, as set out in the findings of fact, executed between the railway company and the Pullman Company, in view of the facts as stated, in violation of any provision of the first section of the anti-trust statute of March 31, 1903, of the Session Laws of the Twenty-Eighth Legislature?”

In answering the question the Supreme Court said:

“Do the facts and the contract set out in the statement * * * show that the law has been violated by the corporations through any interference with transportation of passengers?”

In the instant case with freight. Proceeding, the court say:

“The only reference in the contract to any charges to be made by either company is the stipulation that the Pullman Company should not charge passengers in its cars on the line of the Ft. Worth & Denver City Railroad Company more than it charged on the lines of competing railroads. The contract did not require that the charges should be maintained as they were then fixed, nor did it fix any standard of charges by which either company should be governed. No pooling or combining of rates between the said companies was provided for, but each was at liberty to prescribe its own charges and to change them at its pleasure. * * * In fact, there was no semblance of a pooling or combination of rates; nor is there anything in the contract by which it would be possible to hold that the making, maintaining, or charging of rates by either company, or by any other company, corporation, or person, would be in the least affected. * * * It is manifest that the contract did not in any way affect or tend to affect transportation or charges therefor.”

We think as much can be said concerning the contract under discussion. It does not fix the charges for transportation of freight or any standard therefor by which Frost Lumber Company or the railway company shall be governed. The railway company is free to make its own transportation charges so far as it can under the laws of this state, and the Frost Lumber Company is only bound to comply with its obligations under the contract when the rate fixed by the railway company or the rate-making authority of the state, is equal to the rate over the cheapest practicable route. The railway company is at liberty to increase its rate if it may, and is bound to do so if the rate-making authority directs it to do so. Hence it occurs to us that there is in no sense a combination of the capital, skill, or acts of the parties to the contract by which the unlawful act is or could be accomplished, so far as pertains to a restriction or lessening of charges for transportation is involved, and as a consequence does not tend to lessen or restrict competition in that respect. Then does the obligation of the Frost Lumber Company, when rates are equal and the route is practicable, to divert its freight exclusively to the railway company, “create or carry out restrictions in the free pursuit of a business authorized or permitted by the laws of this state”? In the case we have cited and quoted from it is said that the anti-trust statute does not “create a new business for any person, nor does it give a new right in the property of others.” That declaration, applied to the facts in the instant case, clearly means that the act conferred upon the railway companies of the state no right to transport the freight of the Frost Lumber Company not possessed by them prior to the enactment of the law. Having so declared, the Supreme Court proceeds with the further declaration that:

“The object of the law was to prevent interference with business authorized and carried on in accordance with the laws of the state.”

The court then asserts that, in order to determine whether there has been such "interference,” it is pertinent to inquire:

“What business interest was in any way affected by this contract?”

The inquiry is equally pertinent in reference to the contract involved in this ease. The Supreme Court, proceeding with its inquiry, declares that the inquiry by it propounded will find its answer in the answer to the further inquiry:

“Did all sleeping car companies have a right to demand of the railroad company to haul their coaches on its railroad? If yea, the contract restricted the free pursuit of a lawful business and constitutes a trust; * * * otherwise the law has not been violated by the agreement.”

The court held that, since the sleeping car company could not demand of the railway that it haul its cars, there was no interference with any lawful business. A similar inquiry, it occurs to us, is pertinent here. Accordingly what right did the other competing railways of the state have to transport the freight of the Frost Dumber Company in or out of Frost which the contract has in any manner interfered with? As said by the Supreme Court, the act conferred no right on any person or corporation not possessed at the time the law was enacted. Hence we can conceive of no interest that the railways of the state possessed in the transportation of the freight of the Frost Lumber Company prior or subsequent to the law, other than that based and arising upon contract involving of course the mutual agreement of those affected. The shipper has always possessed the privilege of selecting the route or carrier over which he desires to transport his freight, and, according to the Supreme Court, the anti-trust act does not qualify that right, since it does not confer upon any person or corporation “a new right in the property of others,” and to construe the contract under discussion to be within the provisions of the act would be to hold that the carriers of the state have a “property” right in the privilege of the shipper to make his choice of route or carrier in the transportation of his freight. When freight rates are made either by the carriers or the rate-making authorities, the shipper still has the choice of route and carrier, and may, if he desires, select the longest route or the poorest equipped carrier, and base the selection so made upon friendly relations with the carrier or upon any other ground that may appeal to him. By the terms of the contract under discussion no more can be said, it occurs to us, than that the Frost Lumber Company, in consideration of the railway company agreeing to permit the use of its right of way for a nominal sum, in turn agreed that,- rates being equal, it would give the railway company preference. Agreeing to prefer a particular line of railway in matters of freight does not of itself “create or carry out restrictions in the free pursuit of a business authorized or permitted by the laws of this state,” when unaccompanied by any act which actually does interfere with the pursuit of such business. The “free pursuit” of the business of the carrier in the light of the contract in question is not that the Frost Lumber Company may not select its route, for that is the free pursuit of its business, but that the railway company shall not by contract require any shipper or agree with any shipper that it shall have the transportation of freight upon more favorable terms than shall its competing lines. There being no agreement that the Frost Lumber Company shall ship exclusively over the line of the appellee railway company, but, on the contrary, an express reservation that it may decline to do so, we are unable to see how the agreement can have the effect urged. Conceivably and probably appellee railway company may be unable to meet the rates of competing lines on both outbound and inbound freights. Therefore it cannot be said that the capital, skill, and acts of the contracting parties are so directed as to effect the unlawful purpose. In order to effect such purpose under the contract under discussion it must be construed to establish an agreement to exclusively ship freight over the line of appellee railway company. As we have said, such is not the effect of the contract we are discussing, since that is the identical thing which is expressly excluded, in that the lumber company has reserved the right to ship over competing lines when rates are not equal, or the route not practicable.

The remaining assignments of error challenge the sufficiency of the evidence to sustain the finding of the jury that the Frost Lumber Company owned the lumber alleged to be injured and damaged, as well as the sufficiency of the evidence to sustain the finding of the jury that the right of way had been, in fact, leased to the Frost Lumber Company. In respect to these matters we have reached the conclusion that the un-denied pleading and the evidence are sufficient to sustain the finding in the respect complained of. We do not set out at length the pleading and the evidence which, in our opinion, support our conclusion, since to do so would subserve no purpose or be of benefit to counsel. Issues involving the sufficiency of the evidence to support a given issue cast upon this court the duty of examining the evidence. This we have done, and have reached the conclusion stated. To do more, as we have said, would be without puipose, and serve to lengthen an opinion already too extended.

Finding no reversible error in the judgment of the court below, it is affirmed,.
      <@=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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