author: HUEE, C. J.

text:
    AMARILLO NAT. BANK v. HARRELL et al.
    (Court of Civil Appeals of Texas. Amarillo.
    June 28, 1913.
    Rehearing Denied Oct. 11, 1913.)
    1. Banks and Banking (§, 116) — Notice to Officers — Notice Received in Private Capacity.
    The fact that one of the partners was president of the bank in which the firm accounts were kept does not impart to the bank knowledge of an agreement between the partners as to the manner in which the funds were to be deposited and checked out, where the agreement was not communicated to any other officer of the bank, since the knowledge was acquired by the president in his capacity as partner, and not as an officer of the bank.
    [Ed. Note. — For other cases, see Banks and Banking, Cent.Dig. §§ 282-287; Dec.Dig. § 116.]
    2. Principal and Agent (§ 160%) — Duties of Agent — Adverse Interests.
    An agent cannot act so as to bind his principal in matters touching the agency when he has an adverse interest in such matters.
    [Ed. Note. — For other eases, see Principal and Agent, Cent.Dig. § 588; Dec. Dig. § 160%.]
    3. Partnership (§ 138) — Rights of Partners — Deposit of Funds.
    A partner has the right, ordinarily, to direct how the account of a partnership shall be kept in a bank, and it is the duty of the bank to obey such directions when it has no notice to the contrary.
    [Ed. Note. — For other cases, see Partnership, Dee. Dig. § 138.]
    4. Banks and Banking (§ 117) — Payment of Checks — Partnership Account.
    Where the funds of a partnership were deposited with one of the partners in a bank of which he was president, in his own name, contrary to an agreement between the partners, but the other partner drew checks upon that account, and it was later transferred to his name, in accordance with the agreement, the bank was not liable to the partnership for the acts of its president in making the deposit as he did, where there is no evidence that the firm lost anything on that account.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 288; Dec. Dig. § 117.]
    5. Banks and Banking (§ 117) — Representation by Officers — Wrongful Acts in Private Capacity.
    Nor was the bank liable for funds which its president had received, but had never deposited in the bank.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 288; Dec. Dig. § 117.]
    6. Banks and Banking (§ 117) — Payment of Checks — Partnership Checks.
    Where the account of a firm, in which the president of a bank was one partner, was carried in the name of the other partner, but the bank had knowledge that it was a partnership account, and there were no restrictions on the right of the other partner to draw out funds, the bank would not be liable to the firm or the other partner for moneys drawn out by the president from the partnership account, since each partner has a right to check upon the partnership account.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 288; Dec. Dig. § 117.]
    7. Banks and Banking (§ 154) — Payment of Checks — Extent of Liability — Partnership Funds.
    Where one partner is entitled to recover from a bank, which has been acting in collusion with" another partner, for the wrongful conversion of partnership property, he can recover only his individual damages, not the entire value of the property, unless particular facts are shown which entitled him to all the damage.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 502-512, 515, 516, 518-533; Dec. Dig. § 154.]
    8. Partnership (§ 245) — Set-Off and Counterclaim (§ 44) — Rights of Surviving Partner — Collection of Assets.
    A surviving- partner is entitled to sue and recover the entire value of the property, and at common law he might set off a debt due the partnership against an individual debt owing by him.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 514-518; Dec. Dig. § 245 ; Set-Off and Counterclaim, Cent. Dig. §| 82-96, 98, 99; Dec. Dig. § 44.]
    9. Partnership (§ 245) — Rights of Surviving Partner — Collection and Disposition of Assets.
    A surviving partner is entitled to all the assets of the firm as trustee to pay the debts of the partnership, and to account to the estate of the deceased partner for his share.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 514-r518; Dec. Dig. § 245.]

      10. Banks and Banking (§ 154) — Rights of SURVIVING Partner — Collection of Assets — Checks Paid to Deceased Person.
    A surviving partner cannot, on behalf of •the partnership, recover from a bank which Las paid out partnership funds, contrary to an agreement between the partners, on the check of the other partner, who was president of the bank, the entire amount of such payments, but only the amount by which he has been damaged, since otherwise the bank would be required to demand an accounting between the partners in an action against the estate of its president, in order to determine whether the amounts he drew out were more than he was entitled to.
    [Ed. Note. — Eor other cases, see Banks and Banking, Cent. Dig. §§ 502-512, 515, 516, 518-533; Dee. Dig. §,154.]
    Appeal from District Court, Potter County; J. N. Browning, Judge.
    Action by the Amarillo National Bank against William Harrell and another. Judgment for the plaintiff for the amount claimed, less the amount of a set-off claimed by the defendants, and plaintiff appeals.
    Reversed, and judgment rendered for the plaintiff for the full amount claimed.
    Sam R. Merrill, of Houston, and A. A. Lumpkin, of Amarillo, for appellant R. E. Underwood and H. H. Cooper, both of Amarillo, for appellees.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HUEE, C. J.

The Amarillo National Bank brought suit against appellee William Harrell on one note for $4,053.30, dated February 1, 1909, with 10 per cent, interest from date and the usual clause for 10 per cent attorney’s fees, upon which a credit was made March 29, 1909, for the sum' of •$2,000, and also sued on a note for $300, dated the 22d day of March, 1909, due July 22, 1909, with interest at the rate of 10 per cent, per annum from maturity and 10 per cent, attorney’s fees. .The appellee answered the petition by cross-petition, and thereafter he filed an original suit against the bank; and, upon a plea in abatement being presented, the court consolidated the two cases. After consolidation, appellee re-plead his case, first, by general denial, and specially, that on January 1, 1907, he and one R. L. Stringfellow engaged in buying and selling cattle under an agreement “that R. L. Stringfellow should furnish his credit and the means of obtaining the. money for the conduct of said business, without the payment of any interest for moneys entering into said business, and necessary to carry on the same on the part of said William Harrell; that the said Harrell should contribute his skill, labor and judgment in the conduct of said business, and that after deducting the actual cost of the cattle purchased and the expenses of handling the same, the net profits were then to be divided equally; that it was understood that, in connection with said joint enterprise between said parties, said Harrell was to have exclusive management of said business in purchasing, handling, grazing, and selling said cattle, and that he should pay all moneys derived to the bank in his own name and receive the credit in said account carried in his own name, and the only contribution to said joint enterprise by said R. L. Stringfellow was obtaining the capital for carrying on said business without the payment of interest by the said Harrell.” It is alleged that early in the year 1907 the business was begun by buying and contracting for cattle, and at that time Harrell had an account in his own name, where all moneys of the business were deposited, except as thereinafter noted. At the time of the agreement and up to the early part of 1909, Stringfellow was president and director in appellant bank.

There are quite a number of counts in the cross-petition setting up various items. We will set out the first, showing the nature of the claim made by appellee in his cross-petition: “The defendant further says that, in carrying on the business heretofore mentioned for. the benefit of the said joint enterprise, he sold to the Western Stock Yards Company, on about May 23, 1907, 62 yearling steers, previously purchased by him from other parties, for the sum of $1,053.31; that the selling price of said steers was represented by a check given to the said William Harrell for the said sum of money by the Western Stock Yards Company on the First National Bank of Amarillo, and this defendant immediately delivered said check to the said plaintiff, the Amarillo National Bank, and that the said check was collected and the Western Stock Yards Company and the bank upon which it was drawn paid the full amount of said check, but the defendant says that he did not receive credit therefor in his said account carried with this plaintiff, and the proceeds of the same and the amount represented by said check were wholly lost to him to his damage, and the damage of said partnership and joint enterprise in the amount of $1,055.31, with 6 per cent, interest thereon from the date of said check, for which amount defendant here now sues, and this defendant says he did not authorize the said plaintiff to collect the said check, or to receive the same without giving his account proper credit therefor, and that no authority to collect or otherwise apply the proceeds of such check was given to any agent or representative of such bank, or to any other person, but that said check was received and collected under agreement that the same should be applied to the account of defendant, and that his account should receive credit therefor on the books of plaintiff.”

The other counts in the cross-petition set up the following items: Second. Cashier’s cheek for $954.78, deposited June 25, 1907, for sale of the partnership cattle, for which he alleges no credit was given his account. Third. Cashier’s check, dated November 5, 1907, for $1,155.72, sale of cattle for which he did not get credit. Fourth. Cashier’s check, June 6, 1907, for $160. Fifth. $100, June 15, 1907, for two bulls. Sixth. Check from Rock Island & Gulf Railway Co. for $70, December 1, 1907, for damages to cattle. Seventh. Voucher for damages in the sum of $1,850, December 5, 1908. Eighth. The sum of $500, which is alleged was not credited to appellee’s account. This arose out of a sale of cattle to Wilson-Popham Cattle Company for $3,000, March 29, 1909. He alleges he directed that $2,500 of that sum be paid on his note, and that only $2,000 was credited on his note, and only $500 placed to his credit in the bank, and that appellant has not accounted for the remaining $500. Ninth. It is alleged that on or about the 27th day of January, 1908, appellant took from appellee’s account $1,600 on a check payable to R. L. String-fellow, signed “Charge William Harrell,” which he alleges was without his authority or consent. Tenth. And also on August 8, 1908, that a check for $66.50 was drawn in favor of E. S. Burgess, signed William Harrell, by R. L. Stringfellow. Eleventh. On November 9, 1908, a check for $214.30, payable on interest loan 505, Ft Worth, was checked from the account. It is alleged that the partnership was dissolved by the death of R. L. Stringfellow, May 14, 1909; that he had been refused access to the books, and had been unable to get a statement of the account, though he had repeatedly requested such statement, and he did not therefore know the condition of his account. He further alleges that he had the exclusive control of the account in the bank in his name, and the sole authority of checking upon the same, and no other person or persons or representative of said bank was authorized to check upon said account, or use the money for any other purpose than those of giving credit in his behalf upon the books of the bank, and that the bank had full knowledge of the lack of authority of any other person to use said account or control the same in any manner. He further alleges that when the notes sued on were executed Stringfellow was sick, and he had been unable to get a statement of his account, and that pending the making of the statement, and at the instance of Stringfel-low, the note should be executed, and that so soon as it could be done the bank would make a full statement of his account, and deduct therefrom the amount of the notes sued on, giving appellee credit for the amount then due him; that at such time and at all times since he was not indebted to the bank, but that it was largely indebted to him. He prays for judgment in his individual capacity or in the alternative, as survivor of the partnership.

The .appellant, by supplemental petition, replied by general denial, and specially setting out that the partnership accounts were first kept in the name of Stringfellow, and afterwards changed to the name of William Harrell, and that Stringfellow instructed the officers' to pay no check on the account unless drawn by him or by William Harrell, and not to pay.Harrell’s checks unless he (Stringfellow) approved the same and directed the payment. The appellant brought in Mrs. Stringfellow, the executrix of the estate of R. L. Stringfellow, and prayed that if any judgment was found against it, it have judgment over against the estate of Stringfellow. Mrs. Stringfellow answered by exception and general denial and alleged Harrell was indebted to the estate, as would be shown by an accounting. The appellee excepted to the supplemental petition bringing in the executrix, and the court sustained both exceptions and dismissed Mrs. Stringfellow from the suit.

At the time the partnership was entered into between Stringfellow and Harrell, Stringfellow was president of the appellant bank, and was such up to the time of his death. Harrell testified the partnership agreement was that Stringfellow “was to furnish the money without interest to me, against my skill and labor. I was to have absolute control of buying, selling, and handling the cattle.” The contract was entered into early in the year 1907. “The accounts for the business of Mr. Stringfellow and myself were to be kept in my name in the Amarillo National Bank, and nobody was to check on the account but myself.” It appears that Harrell began buying cattle, and continued to do so for some months, only paying out money for expenses to secure the contracts. The delivery of these cattle was to be made later, and, to provide necessary fund, he executed to the hank a note for the sum of $11,285. This note Stringfellow admitted was his, and that he was liable thereon, and so informed the directors, and which we take from the evidence was an undisputed fact. And money obtained from the bank thereon was deposited therein in the name of R. E. Stringfellow. The amount was so carried in the name of R. L. Stringfellow until August 9, 1907, when it was changed to the name of William Harrell. There appears to be no controversy that the accounts, whether in the name of Stringfellow or Harrell, was known and understood by the employés and officials of the bank as partnership account of String-fellow & Harrell, in the cattle business.

The following items for which appellee alleges he did not receive credit, were deposited in the bank, and Stringfellow’s account given credit therefor, and which was then known by all parties, unless it was Harrell, as tlie partnership account: An item for $1,055.35, May 24, 1907; $954.78, dated June 27, 1907; $160, June 16, 1907; check from C. L. Berry $100, May 21, 1907. These items were so deposited before the William Harrell account was opened. The item for $70 shows to have gone into the account of R. L. Stringfellow, October 5, 1907, and after the Harrell account was opened. The item for $1,850, paid by the Santa Fé Railroad Company on account of damages to cattle, was turned over to Stringfellow by Harrell. This item was never deposited in appellant bank by either Harrell or Stringfellow, but appears to have been used by Stringfellow in obtaining a credit on a note of his due for the sum of $8,000, to the First National Bank of Amarillo. We are not able to find whether or not this note was given for money used in the partnership. The item for $1,600, January 27, 1908, appears to have been drawn out upon a check payable to R. L. Stringfellow for $1,600, signed “Charge Harrell account,” $1,000 of which sum then appears to have been deposited in the name of R. L. Stringfellow, in his individual account, and, $600 to his wife, Mrs. Stringfellow. The $3,000 item, March 1909, $2,000 of that amount was credited on the $4,000 note sued on in this case; $500 was deposited in the name of Stringfellow, and $500 in the name of Harrell. Harrell admitted that he had credit for $1,155.72 October 8, 1907. Harrell testified that all these sums were turned over to R. L. String-fellow as proceeds of the enterprise, and that he turned them over to Stringfellow in the bank and in his office therein. The evidence from the deposit slips shows that the certificates of deposit were given and entered on the books of the bank by other officers of the bank other than Stringfellow. The $66.50 item shows to have been paid out of the partnership account for a purpose for which the partnership was not liable, on a check signed “William Harrell, by R. L. Stringfellow.” The item for $214.13, November 9, 1908, was a payment of interest on a $5,000 note due in Ft. Worth, made by Stringfellow. The cheek for that sum was by Stringfellow on Harrell’s account, which was then a partnership account. Harrell, under the partnership agreement, as testified to by himself, is not liable for the interest on the note.

Harrell testified: “The account of the business of Mr. Stringfellow and myself was to be kept in my name in the Amarillo National Bank, and nobody was to check on the account but myself. Aside from Mr. String-fellow’s agreement to furnish the money with which to purchase the cattle and conduct the business, I was to have absolute control of everything.” He further testified that Stringfellow was president of the bank at the time, and that as to the cheeks in question, he did not authorize Stringfellow to draw them, and did not draw them himself, and that he never gave the bank permission to pay them, and also: “My recollection is that I notified every man in the bank with reference to cheeks being drawn against my account. I notified them not to pay checks except over my signature.” And on cross-examination: “There was no agreement between us with reference to Mr. Stringfellow drawing on the account. I do not know what Mr. Stringfellow told the Amarillo National Bank and its officers and agents with reference to that.” And again, “No, sir; I do not know anything about how the account was opened to take care of the draft, and I do not know what instructions were given by Mr. Stringfellow to the officers of the bank with reference to that matter.” “As I have testified before, he was to furnish the money and I was to work and buy the cattle and handle them and sell them out, and I checked on the Amarillo National Bank as per Mr. Stringfellow’s instructions. The drafts might have been drawn in the name of R. L. Stringfellow by me. As I remember, I signed my own name. I may have signed R. L. Stringfellow & Oo. to some of them.” He stated his reason for notifying the bank force not to pay any checks unless signed by him was that one of his boys had checked on his account. It appears at this time he was the owner of another account with the bank in the name of Nelson & Co. The testimony does not disclose which account it was the boy checked on. The evidence is undisputed that Stringfellow notified all of the officers and employés not to pay any check on either of the accounts, the one in the name of String-fellow and the other in the name of William Harrell, without he first saw the checks and approved their payment. There is no evidence that the bank or its officers, except Stringfellow, knew of the agreement between Harrell and Stringfellow that no one but Harrell should check on the account of the partnership. The evidence is also uncon-troverted that the officers in the bank knew that the account, whether in the name of Stringfellow or Harrell, was a partnership account. The case was tried before a jury. The trial court instructed the jury that appellant bank was entitled to a verdict on the note sued on in the sum of $3,438.68, unless defeated by appellee’s cross-action. The jury returned a verdict for appellant for the sum of $569.43 upon which judgment was rendered, and from: which the bank brings this appeal.

Appellant’s first assignment complains at the action of the court in refusing a peremptory charge to find for appellant the full amount sued for, and requested peremptory charges as to each item declared on by appellee in its cross-petition. It is urged by appellant as a proposition that the existence of the agreement between the partners, limiting the right of one of the firm to draw cheeks on the firm account, would not render the bank liable unless the existence of such an agreement was made known to the bank, and, further, the president had no authority to bind the bank in transactions with a firm of which he is a member, in the absence of special authority granted him by the board of directors.

It is to be noted in this case that String-fellow was president of the bank, and that while acting in that capacity he entered into a copartnership with Harrell. The facts show that the checks, drafts, and moneys received by Harrell were turned over to Stringfellow, his partner, for the purpose of deposit. It is insisted that in receiving this money Stringfellow was the agent of the bank, and knowledge on his part of the agreement was knowledge to the bank. Ordinarily, this is the rule, but-“this principle only applies where the agent acquires his knowledge in the transaction of his principal’s business, and we, therefore, think the doctrine of implied notice should be limited to cases of that character.” Irvin v. Grady, 85 Tex. 120, 19 S. W. 1028; Teagarden v. Godley Lumber Co., 154 S. W. 973; Kauffman v. Robey, 60 Tex. 308, 48 Am. Rep. 264. In this case Stringfellow acquired the knowledge of the manner in which the account should be kept when he entered into an agreement with Harrell forming the partnership. This knowledge was not obtained in the business of the bank, but in his private, independent enterprise. This knowledge he did not impart to the directors,' or to any other officer of the bank. On the contrary, the evidence shows that Harrell had overdrawn Stringfellow’s account in the partnership enterprise, and when Stringfel-low was informed this overdraft must be covered, Harrell executed a note, and the money was then advanced by the bank and placed to the credit of Stringfellow in the bank. Harrell does not remember how he drew his checks, but thinks some of them were drawn “Stringfellow & Co.” String-fellow instructed the employés and officers of the bank that no checks should be paid out of the partnership funds without his approval. The knowledge as to how the partnership account should be kept was not learned by Stringfellow while within the apparent scope of his duties as president of the bank.

In matters touching the agency, an agent cannot act so as. to bind his principal when he has an adverse interest in himself. Story on Agency, 210. In making the deposit, Stringfellow represented both sides of the transaction, and in such matters the principal should not be charged with the terms of his partnership agreement with I-Iarrell. In the case of La Brie v. Cartwright, 55 Tex. Civ. App. 144, 118 S. W. 785, it is said, “The doctrine that, a principal'is chargeable with notice known .to his agent is based, not only upon the fiction of identity, but also upon the fact that it is the-duty of the agent to communicate his knowledge to his principal, and the presumption-that he has performed his duty. No such presumption can arise, however, where the-agent is dealing with the principal in his-own interest, or where for any other reason his interest is adverse to his principal, so that it is to his own interest not to communicate the knowledge to the principal. In such a case the general rule, that notice to an agent is notice to his principal does not apply.” Bank v. American Dock & Trust Co., 143 N. Y. 559, 38 N. E. 713; Langlois v. Gragnon, 123 La. 453, 49 South. 18, 22 L. R. A. (N. S.) 414.

It would, we think, be carrying too far the rule that an agent’s knowledge should be imputed to the principal where, as in this ease, the money is shown to have been turned over to Stringfellow, the partner, by Harrell, and who in ordering its deposit did so to further his own ends and purposes. To impute to the bank his knowledge under such circumstances, when if he was violating his agreement, he was acting for himself or in the interest of the partnership, we think would trench upon the law of principal and agent. He was not in that transaction the agent of the bank. In the handling and the keeping of this money he was the agent of the partnership.

The partner has the right, ordinarily, to direct how the accounts shall be kept in a bank, and when the bank has no notice to the contrary, it is its duty to enter it as directed. The cashier received this money from String-fellow and entered it as directed by him. The deposit slips show that Stringfellow himself did not issue them or make the entry, but they were issued by the cashier or some assistant. The testimony of the appellee is that these checks were delivered to Stringfellow by appellee in person, and Stringfellow, after receiving them from Harrell, directed the entry to his credit, notifying the employés that it was partnership funds. These items of entry made before August/9, 1907, were entered in the name of Stringfellow, who was so holding the same for the partnership. Harrell admits he was issuing checks against this fund all during that time; not only the items set out in his petition were so deposited, but over $11,000 borrowed money from the bank was so deposited, as well as all others. He could assert with as much reason that he could sue for the $11,000 and all others as the particular items named. He checked against this account and used in the partnership enterprise all alike. It is an undisputed fact that on the 9th day of August, 1907, the partnership account was changed from the name of Stringfellow to Harrell. There is no evidence to show that these amounts were not carried forward to the Harrell account. In other words, there is no evidence that Har-. rell or the partnership lost anything by the money being deposited in the name of String-fellow instead of Harrell.

The item of $1,850 paid by the Santa Fé voucher for damages Harrell testified he gave to Stringfellow. This voucher was never deposited in appellant bank, but Stringfellow owed a note to the First National Bank, to which he applied the voucher. Clearly appellant was not responsible for the acts of Stringfellow in so applying the money. The relation of debtor and creditor in no sense of the word was established between appellant bank and Harrell. The item for $1,155.72 Harrell admitted, while on the witness stand, that he had received credit on his account, and that he did not claim this amount, and asked that his claim therefor be disregarded. The $70 item, dated October 4, 1907, was delivered to String-fellow by Harrell. Stringfellow directed that this item be placed to his credit. This was after the account was opened in the name of William Harrell. The deposit slip is marked “William Harrell.”

Stringfellow directed a check for $1,-600 made payable to himself, signed “Charge William Harrell,” and then directed a deposit of $1,000 to himself and $600 to his wife. He also issued a $66.50 check, payable to one Burgess and signed the same “William Harrell, by R. L. Stringfellow.” At Stringfellow’s direction, a check was drawn on the partnership account for $214.-30, payable to interest account. This appears to have been drawn to pay interest on a $5,000 note due at Ft. Worth, which was for money Stringfellow had borrowed and used in the partnership business. Harrell says he nor the partnership were liable for the interest under the partnership agreement. In March, 1909, Harrell turned over to Stringfellow a $3,000 draft from the sale of cattle, and directed Stringfellow to credit the note sued upon with the sum of $2,500 out of said draft, and to place the other $500 to his Credit. Instead of doing so, Stringfellow directed that $2,000 be credited on the note, and to credit Stringfellow’s account with $500 and Harrell’s account with $500. The facts, as before stated, are undisputed that the account of William Harrell was a partnership account, and with which Stringfellow was equally interested with Harrell. Harrell testified: “There was no agreement between us with reference to Mr. Stringfellow drawing on the account.” He does state he notified all the bank force that no check was to be paid on his account without his signature. All the force denied this statement. The facts are uncontroverted that the account in the bank in the name of Nelson & Co. was in effect Harrell’s individual account. The Harrell account being a partnership account, each partner would, without any agreement to the contrary, have a .right to cheek thereon. Harrell says there was no agreement with reference to Stringfellow drawing on this account. We interpret this statement as meaning that there was no restriction on String-fellow doing so. The bank officers knew Stringfellow himself had made the deposit. They knew it was a partnership account, and one in which they had specific instructions from Stringfellow that no check was to be paid without his approval. In so far as the bank was concerned, these were specific instructions, and which it must have held itself bound to observe. The payments made for which appellee sues were at the specific direction of Stringfellow, and upon his check, either signed “Harrell, by IR. .L. Stringfel-low,” or “Charge to account of Harrell.” Bruni v. Garza, 26 S. W. 108.

One partner is the agent of the partnership, and may bind the partnership. Harrell now sues in the name of the partnership for partnership funds, which his partner drew out of the bank, and for aught that the bank knew, the same may have been due him on an accounting. It was held in Interstate National Bank v. Claxton, 97 Tex. 569, 80 S. W. 604, 65 L. R. A. 820, 104 Am. St. Rep. 885, the mere payment of the money to or upon the checks of the depositor, does not constitute a participation in an actual or intended misapplication of the fiduciary, although his conduct or course of dealing may bring to the notice of the bank circumstances which would enable it to know that he is violating his trust. Such circumstances do not impose upon the bank the duty, or give it the right, to institute an inquiry into the conduct of its customers, nor to protect those for whom it may hold funds. Coleman v. Bank, 94 Tex. 605, 63 S. W. 867, 86 Am. St. Rep. 871. It will be noted that appellee, as survivor, sues for money deposited in the bank by the partnership, and hence there was an implied contract to pay the partnership upon demand.

It appears one partner may sue his co-partner and another acting in collusion with such other, for the wrongful conversion of the partnership property. If the bank and Stringfellow were acting in collusion for the purpose of converting the property of the partnership, Harrell perhaps could sue for damages, but he could recover only his individual damages, unless he could show affirmatively a case entitling him to all the damages. Barker v. Abbott, 2 Tex. Civ. App. 147, 21 S. W. 72; Houghton v. Puryear, 10 Tex. Civ. App. 383, 30 S. W. 583; Reed v. Gould, 105 Mich. 368, 63 N. W. 415, 55 Am. St. Rep. 453. A partner we do not think can recover the entire value of the property regardless of his interest therein. He should allege and show his damage and interest.

But it is doubtless the theory of appellee in this case that Harrell as survivor is entitled to sue and recover the entire value of the property. As survivor, he may do so, and it appears at common law 'the surviving partner bad tbe right to offset the partnership debt against an individual debt owing by him. Masterson v. Goodlett, 46 Tex. 407; Waln v. Hewes, 6 Serg. & R. (Pa.) 467; Miller v. Receiver, 1 Paige’s Ch. (N. Y.) 444; Holbrook v. Lackey, 13 Metc. (Mass.) 132, 46 Am. Dec. 726; Bates on Partnership, vol. 2, § 723.

The rule in this state is, whatever it may be in others, that the surviving partner is entitled to the assets as trustee, to pay debts o£ the partnership and to account to the personal representatives or heirs of the deceased partner, for their share in what is remaining. Altgelt v. Alamo National Bank, 98 Tex. 252, 83 S. W. 6; Rogers v. Flournoy, 21 Tex. Civ. App. 556, 54 S. W. 386; Akin v. Jefferson, 65 Tex. 137; Gresham v. Harcourt, 93 Tex. 149, 53 S. W. 1019.

Appellee suing as survivor is entitled, if the partnership had a cause of action, to the whole sum of money sued for, and when he recovers he holds it as trustee, and he must account to the representatives of his deceased partner for their share. As illustrative, by the. verdict of the jury in this case, they substantially find that Stringfellow used of the partnership funds the sum of $2,869.25, and therefore credit Harrell’s note 'for that sum. Harrell, as trustee, must account to the Stringfellow estate for that sum. The bank is thereby forced to pay this sum twice to the same party — the partnership of Stringfellow and Harrell. Even if appellee instructed the bank that the money should be paid out only upon his check, yet if his partner checked the money out, that does not show a loss to the partnership, or to him. An accounting would give to him his share. The evidence in this case shows Stringfellow’s estate to be solvent. It would be to our mind grossly inequitable to compel the bank to pay this money in this case. If it should try to recoup from the Stringfellow estate, it would be met doubtless with the plea that Stringfellow had not .received more than his just share of the partnership. In other words, it would be to force the bank to demand an accounting of the partnership without any of the rights or privileges of a partner. The language quoted in the case of Reed v. Gould, 105 Mich. 368, 63 N. W. 415, 55 Am. St. Rep. 453, we think applicable: “We are not aware of any instance in which a person has been allowed, as plaintiff in a court of law, to rescind his own act, on the ground that such act was a fraud on some other person, whether the party seeking to do this has sued in his own name only, or jointly with some other person. * * * The defrauded partner may perhaps have a remedy in equity, by a suit in his own name, against his partner, and the person with whom the fraud was committed. Such a suit is free from the inconsistency of a party suing on the grounds of his own misconduct.” Appellee in this case represents the partnership, and sues the bank for money that went into the partnership account and was drawn out by a member of the partnership, who placed it there. The eases in which a partner can sue his copartner and another are usually cases where the property of the partnership has been converted by some outside parties in collusion with the derelict partner; but here the partner himself deposited the money in the partnership account, and secured the fund of the partnership for his own or the partnership’s interest, and the bank is sought to be made liable for that act of the partnership. We do not believe the appellee has established a cause of action against the bank, or the right to have his note set off by the item set up in his cross-petition. The note appears to have been executed by appellee for money used by him in purchasing a piece of real estate for himself. We think the trial court was in error in refusing to instruct a verdict for the appellant, as requested, for the amount sued for and against appellee on his cross-petition.

There are quite a number of assignments, which, under our view of the case, it is unnecessary to consider further.

The cause will be reversed and rendered for the Amarillo National Bank against the appellee, William Harrell, for the sum of $3,438.68, to bear interest thereon from the 6th day of September, 1912, and that appellee take nothing by his cross-petition.

HENDRICKS, J., not sitting.


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    HOUSSELS et al. v. COE & HAMPTON.
    (Court of Civil Appeals of Texas. Amarillo.
    June 21, 1913.
    Rehearing Denied Oct. 11, 1913.)
    1. PARTNERSHIP (§ 220) — ACTION—DESIGNATION— Suit in Firm Name.
    Where a firm sued as the “Houssels Cotton Company,” without naming the individuals composing the firm, answered as a firm doing business under the name specified, a judgment against the firm described by such name was sustainable as against it and sufficient to support an execution against the firm property.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 446-465, 467-469; Dec. Dig. § 220.]
    2. Partnership (§ 204) — Actions—Service op Process — Presumption.
    Where a firm answered in its firm name, in which it was sued, it would be presumed, in the absence of anything to the contrary, that service was properly made on some member of the firm.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 376-381; Dec. Dig. § 204.]
    3. Chattel Mortgages (§ 48) — Crop—Cotton — First, etc., “Bale.”
    A chattel mortgage on cotton described it as located in W. county, Texas, two miles southeast of V., to wit: “My first, second, third, seventh, and eighth bales of my crop of cotton, being produced this present crop, on the lands owned' by J. T. Dunson.” The cotton was in fact grown on the land of J. T. J. -Dunson, which was located in W. county two miles southeast of Eayland instead of Vernon. No such person as J. T. Dunson owned land in the county, and the cotton was in the mortgagor’s possession. Held, that the word “bale” meant a distinct parcel or quantity of cotton packed together in a particular form; and, parol evidence being admissible to sustain the description otherwise, it was sufficient and conferred a lien on-the first, second, third, seventh, and eighth lots of cotton baled for the mortgagor, regardless whether such lots, matured, were picked or ginned first or last.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 93-95; Dec. Dig. § 48.*]
    4. CnATTEL MORTGAGES (§ 177) — PURCHASE os- Mortgaged Property — Evidence.
    In an action for conversion of mortgaged cotton, evidence held to warrant a finding that the cotton purchased by defendants included that mortgaged.
    [Ed, Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 336, 340-357, 477; Dec. Dig. § 177.]
    5. Pleading (§ 433) — Jurisdiction—Amount in Controversy — Presumption.
    Where, in a suit in the county court for conversion of mortgaged cotton, there was no demurrer or special exception filed to the petition for failure to allege the value of the cotton, it would be presumed, after judgment, that the value was an amount within the jurisdiction of the court.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1451-1477; Dec. Dig. § 433.]
    6. New Trial (§ 26) — Objections—Time to Haise.
    An objection that the petition in an action for conversion of mortgaged cotton did not allege the value thereof could not be raised for the first time on a motion for a new trial.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 37-39; Dec. Dig. § 26.]
    7. Chattel Mortgages (§ 177) — Damages— Market Value.
    In an action for conversion of mortgaged cotton, the measure of damages is the fair market value of the property at the time of the conversion, provided such value does not exceed the amount sued for.
    [Ed. Note. — For other' cases, see Chattel Mortgages, Cent. Dig. §§ 336, 340-357, 477; Dec. Dig. § 177.]
    Appeal from Wilbarger County Court; J. B. Copeland, Judge.
    Action by Coe & Hampton against Bismark Houssels and others. Judgment for plaintiffs against defendant Houssels Cotton Company, and it appeals.
    Affirmed.
    J. Shirley Cook and R. S. Houssels, both of Vernon, for appellant. Storey & Warlick, of Vernon, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HALL, J.

Appellees instituted this suit in the county court of Wilbarger county against J. D. Sparks, Bismark Houssels, and the Houssels Cotton Company. Plaintiffs alleged that defendant Sparks executed and delivered to them the note sued upon in the sum of $250 and at the same time executed a chattel mortgage upon certain cotton described therein, as follows: “Located in Wil-barger county, Texas, two miles southeast of Vernon, to wit: ‘My first, second, third, seventh, and eighth bales of my crop of cotton, being produced this present crop, on the lands owned by J. T. Dunson.’ ” It is further alleged that the appellees Bismark Houssels and the Houssels Cotton Company purchased the five bales covered by the mortgage with notice and converted the same to their own use and benefit. There was a prayer for judgment against Sparks for the amount of the note and for foreclosure of the mortgage lien and for judgment against appellants Houssels and the Houssels Cotton Company for the wrongful conversion of the mortgaged cotton.

The appellants answered by general denial and specially that if they purchased the cotton in suit, which was 3iot admitted but denied, it was purchased upon the open market in the city of Vernon, without notice of ap-pellees’ claim, and that they paid full value therefor. The defendant Sparks not having been served with citation, plaintiff dismissed as to him. There was a trial before the court without a jury, and judgment was rendered in favor of defendant Sparks and Bismark Houssels that plaintiff take nothing as to them and in favor of plaintiffs against the Houssels Cotton Company for the sum of $155.79.

The first error assigned by the appellant is that the court erred in rendering judgment against the Houssels' Cotton Company, not naming any person or persons composing the firm, and that the judgment is therefore void for the want of .a designated defendant. The pleadings do not show whether the Houssels Cotton Company is a partnership or a corporation,' but it seems to be admitted in the briefs of the-parties that it was a partnership. There is no allegation showing the names of the individuals composing the partnership, and the judgment is against “the Houssells Cotton Company.”

The Houssels Cotton Company having filed an answer as such, the judgment is sufficient to support an execution against the firm property; and, in the absence of anything in the record to the contrary, we must presume that service of process was properly had upon some member of the firm. Easterwood v. Burnitt, 126 S. W. 934, and authorities cited.

Appellant’s second, fifth, eleventh, twelfth, and thirteenth assignments of error raise the question of the sufficiency of the description of the property in the mortgage as notice to' appellants. It is admitted by appellant that the property was situated two miles southeast of Rayland, in Wilbarger county, rather than two miles southeast of Vernon, and was produced upon lands owned by J. T. J. Dunson instead of J. T. Dunson. Appellants insist that the description is insufficient in the first place in that the mortgage does not state whether the first, second, third, seventh, and eighth bales of cotton were the “first,” etc., bales matured, picked, ginned, and baled, and that the language furnishes no basis for the identity of the particular cotton covered by the lien. It is said in Penrice v. Cocks, 2 Miss. (1 How.) 227: “Cotton is the staple article of our commerce, and the term ‘bale’ conveys to the mind a distinct idea of a parcel or quantity packed together in a particular form.” Under the laws of this state a mortgage given upon an unplanted crop of cotton is valid and is a lien thereon in all subsequent stages, and, if the property mortgaged is described as “bales of cotton,” there is a lien upon the mortgagor’s potential interest which becomes a lien upon the “bales” when the lint or bulk cotton, after being gathered and ginned, is formed into bales. Our construction of the language of this instrument is that the first, second, third, sevepth, and eighth lots of cotton, baled for the defendant Sparks, were subject to the mortgage, whether such lots, matured, were picked or ginned first or last. By appropriate pleadings, the error in the exact location of the cotton as set out in the mortgage was explained and this allegation was followed by the evidence. There was in fact no misdescription of the property mortgaged. Omitting Dunson’s third initial was immaterial. Kane v. Sholars, 41 Tex. Civ. App. 154, 90 S. W. 937; McDonald v. Morgan, 27 Tex. 503. The exact location in the county was misstated in naming Vernon instead of Rayland and in describing it to have been upon the land of J. T. Dunson instead of J. T. J. Dunson. It was shown that J. T. Dunson owned no land and that the crop was in the possession of Sparks. We think the trial court did not err in finding that the property was sufficiently described to put a man of ordinary prudence upon inquiry, which if properly prosecuted would lead to a full knowledge of the material facts.

As was said by Garrett, P. J., in the case of Ft. Worth National Bank v. Red River National Bank, 84 Tex. 369, 19 S. W. 517: “Written descriptions are to be interpreted in the light of the facts known to and in the minds of the parties at the time. They are not prepared for strangers but for those they are to affect, the parties and their privies. Defendant was bound to know that 95 head of 3, 4, and 5 year old steers on the home place of John H. Stone had been mortgaged. Parol evidence was admissible to show that the mortgagor had just that many steers on his home place, and that the steers remained thereon, and that those levied on were a part of the 95 head embraced in the mortgage. The language of the description that ‘about 75 head are branded TEX and about twenty head are in various brands’ does not render the more general description of 95 head located on the home place of John H. Stone void for uncertainty. Parol evidence may be resorted to to show that a particular article is included within the general words of the description.”

In Harless v. Jester et al., 97 S. W. 138, it is said: “Any description which will enable third persons to identify the property, aided by inquiries which the mortgage itself indicates or directs, is sufficient. The property was described as diamond rings, mounted in Tiffany settings of 14 k. If rings answering this description were offered for sale or pledged, the mortgage so describing them being duly recorded, identity would be suggested, or at least inquiry would be suggested as to identity, which could readily have been verified or negatived by any reasonable effort in connection with information given by the instrument itself. Johnson v. Brown, 65 S. W. 485; Kaase v. Johnston, 5 Ind. T. 76, 82 S. W. 680; Sparks v. Bank, 115 Ky. 461, 74 S. W. 185, 78 S. W. 171; Blythe v. Crump, 28 Tex. Civ. App. 327, 66 S. W. 885.”

The record in this case shows that defendant Sparks raised only ten bales of cotton that year upon the Dunson place; that he had six bales ginned at the plaintiffs’ gin and two bales ginned by the Farmers’ Union Gin at' Rayland. The remaining two bales were gathered after he abandoned the premises and left the country. It is further shown that he sold the property to appellants and in person received the proceeds of the sales.

It was the duty of the court to presume ownership of the entire eight bales from the fact that they were in possession of Sparks when sold. There was no proof that he cultivated any other land and obtained cotton from other premises or marketed more than eight bales, and in our opinion the evidence was sufficient to warrant the court in holding that the cotton purchased by appellants included the mortgaged property. Barker et al. v. Merchants’ National Bank, 40 S. W. 171.

The third assignment of error attacks the judgment because it is contrary to and not supported by the pleadings in that there is no allegation of the value of the cotton or any part thereof. In Forbes v. Moore, 32 Tex. 197, it is held that, in a suit for conversion of personal property, the petition must describe the property and give the value of each article, but this is a defect which must be brought to the attention of the court by special exception, and appellants filed only a general demurrer in the instant case.

The question is not fundamental because it does not affirmatively appear that the county court had no jurisdiction of the amount in controversy, and we must presume that the value of the cotton upon which foreclosure was sought was an amount within the jurisdiction of the county court. It was too late to raise this question in a motion for new trial.

Under the second proposition following the third assignment of error, and by the fourth assignment, the appellants challenge the propriety of a Judgment in the sum of 1155.79. As stated, the suit was upon a note in the sum of $250, providing for 10 per cent interest from date and 10 per cent, attorney’s fees if sued upon. No payment has been shown, and no credit is stated in the pleadings of either party. The evidence is uneontroverted that, if appellants purchased the identical cotton upon which foreclosure was sought, they paid $296.91 therefor. By the testimony of Bismark Houssels this is shown to have been the amount paid Sparks for the entire eight bales, and his testimony is that he paid “really more than the market value in cash for the cotton at the time it was purchased.” The record shows that the appellee’s mortgage was postponed to the landlord’s lien, and that Houssels had paid Dunson one-fourth of the value of the cotton purchased by him as rents. There was no prayer in the petition for interest.

While according to our calculation the amount of the judgment is not exactly what it should have been, the discrepancy is so slight that we do not feel justified in reversing the judgment for that reason. As said in Lincoln v. Packard, 25 Tex. Civ. App. 22, 60 S. W. 682, the measure of damages for conversion was the fair market value of the property, provided, of course, such market value did not exceed the amount sued for. No bill of exception was taken to the admissibility of this evidence for the purpose of proving value; and this point, not having been presented directly by any assignment of error, will not be considered further.

The sixth, seventh, eighth, ninth, and tenth assignments of error challenge the sufficiency of the evidence to identify the cotton. We have already discussed this question in disposing of former assignments, and in our opinion these assignments are without merit.

Finding no reversible error in the record, the judgment is affirmed.


text:
    POPE v. BEAUCHAMP et al.
    (Court of Civil Appeals of Texas. Amarillo.
    June 28, 1913.
    Rehearing Denied Oct. 11, 1913.)
    1. Bills and Notes (§ 497) — Bona Fide Holders — Burden of Peooe.
    Where fraud is shown in the execution of a negotiable note, the burden rests upon one claiming to be a good-faith holder for value to prove his good faith; and hence, in an action on such a note, where plaintiff’s indorsers neither answered nor testified, there was a presumption that they had notice of the fraud.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1448, 1675-1681, 1683-1687; Dec. Dig. § 497.]
    2. Bills and Notes (§ 337) — Bona Fide Purchaser — Lis Pendens.
    The rule of lis pendens does not apply to negotiable instruments purchased in good faith for value before maturity.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 818, 856-863; Dec. Dig. § 337.]
    3. Bills and Notes (§ 337) — Bona Fide Holders — Notice. . '
    . A party having knowledge of facts or circumstances involved in the negotiation of a note, the legal effect of which would avoid the transfer to him, cannot claim as a bona fide holder, no matter how honestly he may have believed that the law would sustain the transfer, but no suspicion of defect of title, knowledge, or circumstances which would excite such suspicion in the mind of a prudent man or put him on inquiry, nor even gross negligence, will affect his rights, unless the circumstances or suspicions are so cogent and obvious that to remain passive would amount to bad faith.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 818, 856-863; Dee. Dig. § 337.]
    4. Bills and Notes (§ 357) — Bona Fide Purchasers — Taking as Collateral Security.
    A person who took, as collateral, security for a loan, a note tainted with fraud in its inception, without notice of the fraud, was entitled to protection as a bona fide purchaser to the extent of the loan, with interest.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 909-912, 961; Dec. Dig. §• 357.]
    5. Bills and Notes (§ 525) — Actions—Suf-eiciency of Evidence — Good Faith.
    In an action to enforce a vendor’s lien note against land, the conveyance of which to the vendor had, subsequent to the execution of the note, been set aside for fraud, evidence held sufficient to show that plaintiff, who took the note as collateral security for a loan, did so in good faith without notice.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1832-1839; Dec. Dig. § 525.]
    Appeal from District Court, Denton County; Clem B. Potter, Judge.
    Action by J. B. Pope against D. M. Beau-champ and others. From a judgment for plaintiff granting insufficient relief, he appeals.
    Affirmed in part and reversed and rendered in part.
    Y. K. Wedgeworth, of Ft. Worth, for appellant. Owsley & Owsley and Wilkerson & Wilkerson, all of Denton, for appellees.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Serieg & Rep’r Indexes

   HALL, J.

On the 17th day of January, 1910, C. T. Wright procured from appellee J. L. Rutherford a deed to the N. V. Delgado survey in Titus county, and in payment therefor delivered to Rutherford two vendor’s lien notes for $5,980 each, executed January 5, 1910, by G. P. Holford to C. C. Hutcherson. These notes purport to have been given in part payment for certain land in El Paso county, known as a part of the La Prieta grant. The record shows that in purchasing Rutherford’s land Wright was guilty of the grossest fraud, to which Holford and Hutcherson were doubtless parties. No sale had been made from Hutcherson to Hol-ford, and the records of El Paso county fail to show any such deed, and there was no such land as the La Prieta grant in El Paso county. On the 20th day of January, 1910, C. T. Wright made a deed to the land in Titus county, which he had obtained from Rutherford to D. M. Beauchamp, reciting the consideration tó be $14,000, of which $7,000 was stated to have been paid in cash, and for the remainder Beauchamp executed three notes, one for $3,000, due January 20, 1911, and two for $2,000 each, due January 20, 1912 and 1913, respectively. The record discloses that Beauchamp did not pay the $7,000 cash, but at Wright’s suggestion signed the notes and gave them to him. Wright then executed a transfer to J. W. Maxwell of the three notes executed by Beauchamp, which transfer is dated January 20, 1910, 'and was filed for record on the 24th day of September, 1910. March 31, 1910, J. W. Maxwell, by written transfer, conveyed the $3,000 note and one of the $2,000 notes, which had been given by Beauchamp to Wright to Mrs. Dora Stephens, and this instrument was filed for record July 11,1910. On October 1, 1910, Stephens and wife, by written transfer, conveyed an undivided one-fifth interest in and to said note to V. K. Wedgeworth, an attorney. This transfer was filed for record October 31, 1910. Wedgeworth, as attorney for Stephens and wife, went to Titus county about the 2d day of October, 1910, and district court convened that afternoon. He asked the clerk of the court to show him plaintiff’s petition in the case of Rutherford v. Wright. On December 15, 1910, Wedgeworth borrowed $1,-500 from appellant, Pope, who was also his client, executed to him a note for the amount due one year after date. Pope did not know Maxwell or Stephens. He loaned Wedge-worth $1,500, and considered it a personal transaction. On the 22d day of January, 1910, Rutherford had instituted his suit in the district court of Titus county against Holford, Hutcherson, and Wright, to cancel the conveyance of his land to Wright, and on the 24th day of the same month filed an amended petition, making Will O. Geers and D. M. Beauchamp parties to the suit, and at the same time procured to be issued in said cause a writ of injunction restraining Wright and Geers from disposing of the notes executed by Beauchamp, and on the 24th day of January, 1910, filed in the oflice of the district clerk of Titus county a notice of lis pendens, prpperly showing the pendency of said suit. On the 11th day of October, 1910, judgment was entered in said cause in favor of Rutherford, canceling the deed which he had executed to Wright, and the deed from Wright to Beauchamp, and re-vesting in him the title and possession of the land. This suit is instituted by appellant, Pope, as the assignee of the $3,000 note described above, executed by Beau-champ, to Wright, which note was secured by a vendor’s lien, and also by deed of trust on the Titus county land. Judgment is asked against D. M. Beauchamp, as maker, J. W. Maxwell and C. T. Wright as indorsers, and the prayer is for foreclosure against J. L. Rutherford, who it is alleged is asserting- some right to the premises adverse to- the plaintiff. Service of process was had on all parties except Wright, and plaintiff entered' a nonsuit as to him. Upon the trial' before a jury the plaintiff obtained judgment against Beauchamp and Maxwell, but the jury found’ against plaintiff as to foreclosure upon the premises, and judgment was- rendered’ accordingly and from the judgment denying a foreclosure against Rutherford! plaintiff alone appeals.

In addition to the- fact» above recited, the record discloses that the- transfer from Maxwell to- Stephens of the- three- motes was in consideration of the contents of a certain billiard and pool' hall, consisting of billiard tables, pool tables, chairs, and other fixtures and furniture appurtenant thereto-. On- December 16, 1910, Stephens and wife-, at the instance of Wedgeworth, for a recited consideration paid by him of $350 and 29 acres of land, at a net value of $1,700, conveyed the note for $3,000 sued upon- to- appellant. In both the transfers off this note from Maxwell to Mrs. Stephens- and from Mrs, Stephens and her husband to- Pope;. it is provided that this particular note should constitute a superior lien upon the- land! to- the other note held by Mrs. Stephens.

Stephens and wife filed mo- answer in the case, and did not testify either in person or by deposition. There- is nothing in this record which tends to- sho-w Stephens and wife to have- been- cognizant of or parties to the fraud, which taints the note in its inception, and the- rule seems to be established that where fraud is shown in the execution of a negotiable note, the burden rests upon one claiming to be a good-faith holder for value to- prove his good faith. As expressed in 8 Cyc. 236: “(B) Evidence of illegality or fraud in the origin or transfer of the paper throws on the holder the burden of proving his good faith.” Hart v. West, 91 Tex. 184, 42 S. W. 544; Blum v. Hoggins, 53 Tex. 121; Hillebrant v. Asheworth, 18 Tex. 307; People’s National Bank v. Mulkey, 61 S. W. 528. This rule raises the presumption against Stephens and wife, in the absence of any testimony upon their part that they had no notice of the infirmity in the notes.

It appears that in June or July, 1910, Wedgeworth became acquainted to some extent with the transaction, in that his testimony shows he saw an opinion upon Rutherford’s abstract, written by a Gleburne attorney, in the month of March, 1910. Stephens and wife, having failed to collect the note, employed Wedgeworth, as hereinbefore stated, giving him a one-fifth undivided interest as the fee for his services in enforcing collection. At this time Rutherford’s suit had been filed in Titus county, setting np the fraud perpetrated upon him by Wright and. praying for a cancellation. Notice of lis pendens had also been filed. The rule of Us pendens does not apply to negotiable instruments purchased in good faith for value before maturity. Gannon v. National Bank, 83 Tex. 274, 18 S. W. 573; Austin v. Lauderdale, 83 S. W. 413; Letcher y. Reese et al., 24 Tex. Civ. App. 537, 60 S. W. 256.

It appears from the record that Wedge-worth believed upon good grounds that Stephens and wife were bona fide purchasers of the notes, and so informed appellant, Pope, and he showed his faith by his works, in purchasing from Stephens and wife the note in question and paying therefor property admitted to have been worth $2,050. In the purchase from Stephens and wife he conveyed to them this property, and had them transfer the note to appellant, Pope, as security for the loan of $1,500 made by Pope to him. If the record disclosed the fact that Stephens and wife were bona fide purchasers of the notes, Wedgeworth would be protected; but the presumption, in the absence of an affirmative showing on the part of Stephens and wife that they were the purchasers in good faith, being against them, Wedgeworth cannot claim any advantage through them. His rights must be determined from the facts as they relate particularly to him. The rule as laid down in 7 Gyc. 943, is: “If a party has knowledge of facts or circumstances involved in the negotiation of a note, the legal effect of which would avoid the transfer to him, he cannot claim as a bona fide holder, no matter how honestly he may have believed that the law would sustain the transfer.” The rule is further announced that “neither a suspicion of defect of title, knowledge of circumstances which would excite such suspicion in the mind of a prudent man, or put him on inquiry, nor even gross negligence on the part of the taker, will affect his right, unless the circumstances or suspicions are so cogent and obvious that to remain passive would amount to bad faith. In other words, the question is now one of good or bad faith, and not of diligence or negligence.” Wilson v. Denton, 82 Tex. 531, 18 S. W. 620, 27 Am. St. Rep. 908; Rotan v. Maedgen, 24 Tex. Civ. App. 558, 59 S. W. 585.

Since Wedgeworth is not a party to the suit, the question of his good faith in the purchase is a matter of no consideration, except in so far as it might affect the rights of the appellant, Pope, and it is therefore not necessary for us to determine that issue. The statement of facts affirmatively shows that Pope is a holder of the note as collateral security for the loan of $1,500 to Wedgeworth, without notice of any fraud in its inception or transfers, and as such is entitled to protection as a bona fide purchaser to the extent of the $1,500 loaned, with interest thereon, at 6 per cent, from December 17, 1910. People’s National Bank v. Mulkey, 61 S. W. 528.

Pope’s testimony, in substance, is that he did not know Beauchamp, Wright, Maxwell, or Stephens and wife; that he had known Wedgeworth for several years, and took the notes from Stephens and wife on Wedgeworth’s recommendation; that he had had several transactions with Wedgeworth before this loan of $1,500; that he took the note in return for the check for that amount given to Wedgeworth, made no investigation of the matter, but took Wedgeworth’s word that the note was good; that Wedgeworth told him that he thought the title was good, and he believed him and relied on his statement in making the loan; that the note was transferred to him before he delivered the cheek; that he did not know of any defects in the title; that no one told him anything about the suit pending over the land; that he knew nothing of any suit or judgment ; that Wedgeworth did not tell him he had been trying to collect the note, and this evidence is corroborated by the testimony of Wedgeworth himself, and a careful inspection of the record fails to disclose a circumstance or syllable of testimony contradicting it.

We think the court erred in overruling the motion for new trial; and, without considering the assignments of error in detail, the judgment against appellant is reversed and here rendered, foreclosing the vendor’s lien and deed of trust upon the land in question to the extent of $1,500, with interest thereon from December 17, 1910, at the rate of 6 per cent, per annum, and the judgment in all things else is affirmed.


text:
    MORGAN v. LOMAS.
    (Court of Civil Appeals of Texas. Amarillo.
    June 7, 1913.
    Rehearing Denied Oct. 11, 1913.)
    1. Appeal and Error (§ 736) — Assignments of Error — Sufficiency.
    An assignment of error must not be multifarious.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3028, 3029; Dec. Dig. § 736.]
    2. Appeal and Error (§ 757) — Briefs—Sufficiency.
    The practice of setting out a synopsis of the pleadings and evidence under the statement of the nature and result of the suit, and thereafter referring the court thereto in a general manner in support of a proposition, is bad.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.]
    3. Appeal and Error (§ 757) — Assignments of Error — Sufficiency.
    Notwithstanding such gross violation of the rules for briefs, fundamental errors will be considered, although not properly assigned.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. | 757.]
    4. Husband and Wife (§ 273) — Community Property — Power of Husband to Convey.
    A surviving husband may convey the community estate in payment of the community debts, this right extending even to the homestead and authorizing a conveyance, although the proceeds realized from the sale are greatly in excess of the debts, and the purchaser not being bound to see to their application.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1008-1024; Dec. Dig. § 273.]
    5. Husband and Wine (§ 273) — Community Estate — Conveyance by Surviving Husband.
    Where most of the purchase money due the state upon land, which constituted the community estate of a couple, was still unpaid, and the husband after the death of his wife conveyed his undivided one-half to the woman he afterwards married, he may thereafter, in connection with her, convey the whole of the land to one who would assume the payment of the unpaid purchase money, as there was no assumption of payment upon the first conveyance, and the second relieved the husband of the payment of a community debt; this being true even though the value of the property was greatly in excess of the community debt and notwithstanding the fact that a child of the first marriage had inherited his mother’s undivided one-half interest in the property.
    [Ed. Note. — For other cases, see Husband and Wife, Cenfe Dig. §§ 1008-1024; Dec. Dig. ' 273.]
    Appeal from District Court, Donley County ; J. N. Browning, Judge.
    Suit to quiet title by W. C. Morgan, as executor, against Frederick Lomas. From a judgment for defendant, plaintiff appeals.
    Reversed and rendered.
    A. T. Cole, of Clarendon, for appellant. Madden, Trulove & Kimbrough, of Amarillo, for appellee.

      For other eases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HALL, J.

Appellant, as executor of the will of his wife, filed this suit against ap-pellee to quiet the title to section 30, block C — 6, state school lands in Donley county. William Allen, as an actual settler, became the purchaser of this land from the state at $2 per acre October 15, 1885. By deed dated January 23, 1886, Allen and wife conveyed the land to William Lomas for a recited consideration of $40 paid and the assumption by William Lomas of Allen’s obligation to the state. November 12, 1887, William Lom-as and wife conveyed the section to their son, Joseph W. Lomas, in consideration of his assumption of the obligation to the state. At the date of this conveyance, Ida Lomas was the wife of Jos. W. Lomas. She died in January, 1889, leaving as her only child the appellee, Frederick Lomas, who was born in 1888. Mrs. Ida Lomas died intestate. Thereafter, and while Jos. Lomas was a widower, on the 17th day of December, 1891, he conveyed to Miss Minnie Mortson an undivided half interest in said land by an instrument, the material recitals of which are as follows : “In consideration of the sum of $1 to me in hand paid by Miss Minnie Mortson, of the county of York and province of Ontario, the receipt of which is hereby acknowledged, do by these presents bargain, sell, release and forever quitclaim unto the said Miss Minnie M. Mortson, her heirs and assigns. all my right, title and interest in and to that certain tract or parcel of land lying in the county of Donley, state of Texas, described as follows, to wit: All my undivided one-half interest in and to survey No. 30, block C—6, in Donley county, Texas, etc. To have and to hold the said premises, together with all and singular the rights, privileges and appurtenances to the same in any manner belonging unto the said Miss Minnie M. Mort-son, her heirs and assigns forever, so that neither I, the said Joseph W. Lomas, nor my heirs nor any person or persons claiming under me, shall at any time hereafter have, claim or demand any right or title to the aforesaid premises or appurtenances, or any part thereof.” This deed was forthwith filed and recorded in the deed records of Don-ley county prior to the purchase by W. O. Morgan for his wife, Mrs. Callie Morgan. On the 17th day of August, 1897, Joseph Lomas and Minnie Mortson, who in the meantime had intermarried, joining as husband and wife, in consideration of $1,920 paid to the wife, conveyed the entire section of land and all their rights thereunder to Mrs. Oallie Morgan, wife of appellant This deed did not recite the assumption by Mrs. Morgan of the payment of the 3 9/40 of the purchase price due the state, but the statement of facts shows that part of the consideration was the assumption of the obligation held by the state of Texas. These are the material facts necessary to be stated at this time.

Appellant’s brief is attacked by appellee upon the ground that the single assignment is multifarious and defectively briefed. The objections made to it are well taken. The assignment is multifarious, and there are no references to the record except this one found in the argument, following the propositions, “See statement of facts, 1 to 14,” which is too general to invoke our consideration. The practice of setting out a synopsis of the pleadings and evidence under the statement of the nature and result of the suit and thereafter referring this court thereto in a general way, in support of the propositions in the brief, has often been condemned. Peach River Lumber Co. v. Ayers, 41 Tex. Civ. App. 334, 91 S. W. 387; Gammon v. Sigel, 43 Tex. Civ. App. 199, 95 S. W. 730. However, fundamental error is suggested, and, notwithstanding the gross violation of the rules by appellant’s brief, we have reviewed the record.

By an able brief appellee insists that appellant was not an innocent purchaser for value, in good faith, for the reason that the recitals in the deed from Jos. W. Lomas to Miss Minnie Mortson were sufficient notice to appellant of the rights of axipellee and for the further reason that this deed was only a quitclaim and would not support the plea of innocent purchaser. Since the Supreme Court lias granted a writ of error in tile case of Schmittou v. Dunham, 142 S. W. 941, this writer confesses his inability to determine what is a quitclaim deed, and, until that case has been finally passed upon by the Supreme Court, he declines to construe all instruments of that nature unless absolutely necessary to a disposition of the case under consideration, and in our opinion the matter is not of vital importance in the decision of this appeal. Nor do we think the question of bona fide purchaser is conclusive of the issues submitted for our consideration. We admit that the recitals in the deed from Joseph W. Lomas to Minnie Mortson were sufficient to give notice to appellant that she bought only an undivided half interest in the entire section, that it put appellant upon notice that the remaining undivided half interest was in some one claiming under Joseph W. Lomas, in whom the legal title to the entire section had been vested by the deed from his mother and father ; and in our opinion we may further admit that the effect of this deed was to notify appellant that the remaining undivided half interest not conveyed by Joseph W. Lomas had descended to appellee as the heir of his mother, Mrs. Ida Lomas; and we can further admit that inquiry might easily have revealed the fact to appellant that Frederick Lomas was an infant at the time of his mother’s death, that the probate records showed his half interest to be listed in the guardianship proceedings, and that his father had made no effort to convey that interest to any one; yet we cannot subscribe to the contention of appellant that the trial judge was correct in directing a verdict for appellee.

The power of the surviving husband to convey community estate in payment of community debts is too well settled to require the citation of many authorities, and this right exists even where a guardianship is pending or with administration, and the right has been extended by the decisions of our Supreme Court to include the homestead of the family as it existed at the death of the wife (Dawson v. Holt, 44 Tex. 174; Ashe v. Yungst, 65 Tex. 631; Watts v. Miller, 76 Tex. 13, 13 S. W. 16); and it is further held in a number of eases that, although the proceeds realized from a sale are greatly in excess of the debt which the sale was made to satisfy or pay, yet the sale is valid (Watkins v. Hall, 57 Tex. 3; Jones v. Harris, 139 S. W. 69). The case last cited is authority for the doctrine that the surviving husband may sell the homestead to pay community debts and deprive minor children of their rights, even though the estate is insolvent, and that the purchaser need not see that the purchase money is appropriated to the payment of such debts. The case last cited seems to be upon all fours with the instant case in that the land which was sold therein was purchased from the state and part of the indebtedness existing against the community was due the state as unpaid purchase money. The fact that there are two opinions by Judge Fly, speaking for the majority, and two dissenting opinions by Judge Neil, in that case, and the further fact that a writ of error was denied by the Supreme Court, encourages us to rest the decision of this case almost entirely upon it. The contentions of appellee herein are ably and earnestly championed by Judge Neil in the two dissenting opinions filed by him. As bearing directly upon the instant case, we quote from the majority opinion by Judge Fly as follows: “Under the terms of the contract of W. J. Jones, he was to pay the state $780, with 5 per cent, interest thereon and V40 of the principal to be paid annually. It was like any other debt, except that it was made the duty of the Commissioner, in case of a failure to meet a payment, to forfeit the land to the state without the necessity of re-entry or judicial ascertainment, and, even in a case where there was a failure to pay the interest and part of the principal at the. appointed time, if there was no forfeiture there was a penalty of 20 per cent. We cannot conceive of any more onerous debt. W. J. Jones and appellants forfeited all their rights year after year, and the only reason that their contract was not in terms forfeited by the Land Commissioner was because he recognized Braswell and Brown as being the assignees of W. J. Jones of all the right, title, and interest in the land granted by reason of the application of W. J. Jones to purchase and the execution of his obligation. The in-cumbrance, as contemplated in Carter v. Conner, 60 Tex. 52, rested upon the land which Jones, by his conveyance of his right, title, and interest of all the community interest, sought to remove and did remove. If the deed of W. J. Jones was a mere quitclaim ‘conveyance, it was a quitclaim to all the interest the community had in the land. We are of the opinion that the conveyance was intended to convey all the title that the vendor had by reason of his contract with the state, which was all the title any one had. While the case of Creamer v. Briscoe, 101 Tex. 490, 109 S. W. 911, 17 L. R. A. (N. S.) 154, 130 Am. St. Rep. 869, seems to establish the peonage of the surviving husband in favor of his children and places a very onerous burden on him, still that decision cannot be invoked to deny the right of the survivor to sell land bought from the state to relieve himself of the incumbrance resting thereon. The decision does not compel the father to spend his life to obtain land for his children by a deceased wife but gives one-half of it to them if the father is willing to so enslave himself. The decision fully recognized the right of the husband to sell land bought from the state without the assent of the wife,' and it follows that, if he could sell for debts before her death, he could afterwards.”

Erom the statement of facts above, it will be seen that in the' deed from Joseph W. Lomas to Miss Minnie Mortson, whom he aft-erwards married, he conveys only his undivided half interest, and she nowhere assumes any part of the community debt existing against the land and which had been assumed by Joseph W. Lomas. Before, as well as after, the execution of that deed, Joseph W. Lomas still owed the state Ao of the purchase price and was liable for the annual interest thereon, and we think with Judge Ely that he was not compelled to enslave himself for the purpose of liquidating the state’s debt But he had the right to sell the entire section for the purpose of paying this one debt (Cockburn v. Cherry, 153 S. W. 161), although the debt was not due at the time of the sale (Rippy v. Harlow, 46 Tex. Civ. App. 52, 101 S. W. 851). In both of the cases last cited, writs of error were denied by the Supreme Court. According to our view of the case, the deed from Joseph W. Lomas to Miss Minnie Mortson is a fact of small moment in the decision of the issues. While it is true that the conveyance of his half interest to her enabled her thereafter to realize $1,920 therefor in the subsequent sale to appellants and enabled him to dispose of the half interest which would otherwise have descended to appellee, that is a matter with which we are not concerned and which is not presented by this appeal and must be settled between ap-pellee and his father, either as an individual or as a guardian.

It is our opinion that the judgment should be reversed and here rendered for appellant, vesting in him, as executor, the title to the land involved, and it is so ordered.


author: HIGGINS, J.

text:
    McCALL CO. v. ELLIOTT.
    (Court of Civil Appeals of Texas. El Paso.
    June 12, 1913.
    Rehearing Denied Oct. 9, 1913.)
    1.Apread and Error (§ 742) — Assignments or Ebrob — Peorositions.
    Under an assignment that the court’s finding that plaintiff authorized defendant to sell his rights under the contract sued on to a third person and in all things ratified such sale, accepted the third person in lieu of defendant, and released defendant from further liability was contrary to the evidence, propositions were urged that novation must have a consideration to support it which in such case would be an absolute discharge of the old contract or original debt, and otherwise it was not a novation or substitution, and that, unless the intention to make it a substitute for the old contract or debt was apparent in the new, it was not a novation. Held, that the assignment related to an issue of fact while the propositions related to questions wholly legal and were therefore not germane to the assignment and would not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    2.Arread and Ebrob (§ 742) — Assignments or Ebrob — Peorositions.
    In considering assignments of error, the court is confined to the propositions urged in support thereof, and propositions not germane thereto cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    3.Arread and Error (§ 731) — Assignments or Ebrob — Sufficiency op Evidence.
    Assignments that the court’s findings were contrary to the evidence, which did not point out in what respect they were contrary to the evidence, were insufficient and would not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021; Dec. Dig. § 731.

    4.Arpead and Ebrob (§ 731) — Assignments of Error — Sufficiency of Evidence.
    An assignment that the court erred in its-conclusion of law because it was without evidence to support it, which did not point out in what respect the conclusion was unsupported by the evidence, was insufficient and would not be considered.
    [Ed. Note. — For other cases, see Appeal and-Error, Cent. Dig. §§ 3017-3021; Dec. Dig. § 731.]
    5.Arread and Error (§ 742) — Assignments or Error — Kudings on Evidence.
    Assignments complaining of rulings on evidence are not entitled to consideration where the brief fails to disclose the ground of objection urged.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    Appeal from Midland County Court; J. H. Knowles, Judge.
    Action by the McCall Company against George D. Elliott. From a judgment in its favor for an insufficient amount, plaintiff appeals.
    Affirmed.
    J. M. Caldwell, of Midland, and Dedmon & Potter, of Ft. Worth, for appellant. Charles Gibbs, of Midland, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am Dig. Key-No. Series & Rep’r Indexes

   HIGGINS, J.

Appellee was engaged in the mercantile business in the town of Midland' and. on March 24, 1910, entered into a contract with appellant for the purchase and sale of certain supplies. On March 1, 1911, appellee disposed of his business to the Midland Mercantile Company. This suit was by appellant to’ recover a balance due upon account for supplies delivered to the Midland Mercantile Company after the date last mentioned. The case was tried before the court, and findings of fact and conclusions of law filed. On February 1, 1911, the unpaid balance for supplies sold and delivered to Elliott was 31 cents. A judgment for this amount was rendered in favor of appellant, and the question here involved is whether or not ap-pellee is liable for a balance of $246.15 account supplies received by the Midland Mercantile Company after the last-mentioned date.

The eighth finding of fact is as follows: “That plaintiff authorized defendant to sell his said rights under said contract to Midland Mercantile Company and in all things ratified said sale and accepted said Midland Mercantile Company in lieu of defendant under said contract and thereby released defendant from further liability under said contract, except for the payment to plaintiff of the goods sold by plaintiff to defendant prior to February 1, 1911, the unpaid balance of which amounted on February 1, 1911, to the sum of 31 cents.”

The first assignment of error is as follows : “The court erred in that the findings of the court in paragraph No. 8 of the findings of facts herein was contrary to the evidence produced upon the trial of said cause, wherein it finds that plaintiff authorized the defendant to sell his rights under said contract to the Midland Mercantile Company and in all things ratified said sale and accepted said Midland Mercantile Company in lieu of defendant and released the defendant from further liability, except the 31 cents found herein, which said error was called to the attention of the court in the sixth paragraph of- the plaintiff’s motion of new trial herein.” The propositions urged in support of this assignment read: First: “Novation, like any other valid contract, must have a consideration to support it, which in such case would be absolute discharge of the old contract or original debt, otherwise it is not a novation or substitution.” Second: “Unless the intention to make it a substitute for the old contract or debt is apparent in the new, it is not a novation.”

In the consideration of assignments of error we are confined to the propositions urged in support of the assignment, and propositions which, are not germane to the assignment cannot be considered. The assignment of error under consideration questions the sufficiency of the evidence to support the court’s finding of fact that appellant authorized appellee to dispose of his rights under the contract and ratified such sale and accepted the Midland Mercantile Company in the place of Elliott and released Elliott from further liability. This relates to an issue of fact pure and simple, whereas the propositions relate to a question wholly legal, and the two are in no wise germane. The assignment will therefore not be considered. Pullman Co. v. Vanderhoeven, 48 Tex. Civ. App. 414, 107 S. W. 147; Savage v. Umphries, 118 S. W. 893; Sullivan v. Solis, 52 Tex. Civ. App. 464, 114 S. W. 456; Weil v. Martinez, 124 S. W. 116.

The assignment itself is further defective and insufficient in that it does not point out in what respect the finding of fact is contrary to the evidence. See cases cited in 2 Michie, Enc. Dig. p. 247 et seq.

The second assignment of error reads: “The court erred in that the finding of the court in paragraph 9 of the findings of fact is contrary to the evidence introduced upon the trial of this cause, wherein it finds that at the time of the sale of the defendant to-the Midland Mercantile Company, with the knowledge and consent of the plaintiff, the-plaintiff agreed to carry said stock supply with said Midland Mercantile Company as a standing credit to the Midland Mercantile-Company in lieu of the defendant, and that the defendant was released from further liability to the plaintiff, which error was called, to the attention of the court in paragraph No. 7 of the motion of new. trial filed by plaintiff herein.” Since the assignment does-not point out in what -respect the finding is-contrary to the evidence, it is insufficient and will not be considered. Michie, Enc. Dig., supra.

The third assignment cannot be considered for two reasons: First, because the-proposition is not germane to the assignment; second, the assignment is to the effect that, the court erred in his conclusion of law because the same was without evidence to support the same, and it is not pointed out in what respect the conclusion is unsupported by the evidence.

In view of the findings of fact of the trial court, the fourth assignment is overruled.

Assignments complaining of rulings of the court on evidence are not .entitled to consideration when the brief fails to disclose the ground of objection urged. Lee v. Simmons, 151 S. W. 868; Railway Co. v. Miller, 88 S. W. 499; Railway Co. v. Matlock, 99 S. W. 1052. For this reason the sixth assignment is not entitled to consideration. Nevertheless we have referred to the bill of exception in the record and are of opinion that the-letter referred to was properly excluded' iipon the objections made.

The seventh, eighth, ninth, and tenth assignments complain of various findings of fact upon the ground that they are contrary to the evidence. The assignments do not point out in what respect the findings are-contrary to the evidence and are therefore insufficient and will not be considered. 2' Michie, Enc. Dig. supra.

Affirmed.


author: MOURSUND, J.

text:
    ZARATE et al. v. VILLAREAL et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 15, 1913.)
    1., Costs (§ 264) — Appellate Costs — Motion to Retax — Time fob Filing.
    Where appellees, in a motion for rehearing, after the costs had been taxed against them, did not object to the correctness of the-items, a motion to retax the costs made after the adjournment of the term at which the case was decided and the rehearing denied will not be considered, especially when no excuse appears for the failure to file such a motion at. the proper time.
    [Ed. Note. — For other cases, see Costs, Cent. I Dig. §§ 1004-1008; Dec. Dig. § 264.]

      2. Teespass to Try Title (§ 48) — Enforcement oe Judgment — Writ op Possession.
    Where plaintiffs in trespass to try title recovered a judgment for an undivided right of possession in certain premises, the writ of possession issued upon such judgment could only be one placing them in possession jointly with the defendants, not a writ for the possession of a certain portion of the land.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 72; Dec. Dig. § 48.]
    On motion by appellees to retax the costs, and for restraining orders and interpretation of judgment.
    Motion denied.
    For former opinion, see 155 S. W. 328.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes-

   MOURSUND, J.

This case was passed upon by us during the last term of court, and the judgment reformed, taxing all costs against appellees, Motions for rehearing were filed by both parties, and were overruled. A writ of error was applied for to the Supreme Court by appellants, and denied. During vacation appellees filed a motion to retax costs, alleging that various matters were improperly embodied in the transcript, and that the same does not comply with the law in that it is stated in the bill of costs that plaintiffs’ cost from Hidalgo county is $329.08, and defendants’ cost from said county is $24.40; but there are no items showing that said sums constitute proper and legal costs. The charge for the transcript is $150. All of these items appear in the bill of costs embraced in the transcript filed in this case. While appellees in their motion for rehearing complained because the costs were taxed against them, yet they made no complaint concerning the correctness of the items of costs. These matters should be settled while the case is being considered, in order that when it has been finally determined the parties may have execution for costs, and the litigation be brought to an end, and we do not think this court should open up a matter of. taxing costs upon a motion filed after the case had been finally disposed of and the court adjourned, especially when no excuse appears why such motion was not filed at the proper time. Yeager v. Scott, 138 S. W. 1088.

It is also alleged in the motion that although appellants and appellees are in joint possession of the land sued for, yet appellants have induced the clerk of the district court of Brooks county to believe it his duty to issue a writ of possession in favor of appellants for one-third of the land, and' a restraining order is requested. Appellants deny that any such proceeding has been requested or is contemplated as long as they are not deprived of their right of joint possession. The recovery awarded plaintiffs being undivided, it necessarily follows that the writ of possession mentioned in the judgment could be no other than one placing them in joint possession of the premises with ap-pellees, and, they having such possession as admitted in their reply to the motion, there is no reason for the issuance of any writ of possession.

We do not think the judgment requires interpretation.

Appellees’ motion is overruled.