author: HARPER, C. J.

text:
    KING et ux. v. COLLINS.
    (No. 472.)

    (Court of Civil Appeals of Texas. El Paso.
    Oct. 28, 1915.
    Rehearing Denied Nov. 18,. 1915.)
    1. Contracts <&wkey;332 — Actions—Petition-Sufficiency to Support Yerdict.
    A petition alleged that plaintiff contracted with defendant to install the plumbing and heating in a building, that the contract provided for payment upon architects’ estimates as the work progressed; that payment of an estimate was refused, whereupon plaintiff abandoned the contract, but that he afterwards finished the work by special agreement with defendant, that there was due and owing him for work performed and material furnished $1,200, after deducting’ $1,300 theretofore paid, and after deducting from the contract price of $2,700, the reasonable cost and expense of installing the heating and plumbing, which sum of $1,200 was the fair and reasonable value over and above the amount paid for the work and material of which defendant had availed himself, and .which he had used, kept, and retained. Held that, in the absence of an exception, the petition was sufficient to authorize a charge and a verdict either upon quantum meruit or for the balance of the contract price, as the amount due could be definitely ascertained in view of the allegation that the work was to be paid for upon estimates as the work progressed.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1615-1639; Dec. Dig. &wkey;332.]
    2. Appeal and Error <&wkey;1066 — Harmless-Error — Errors Not Affecting Result.
    A judgment would not be reversed on the ground that the petition stated a cause of action on a quantum meruit,-and the charge authorized a recovery of the balance due under a contract, where there was no question as to the reasonable valué of the work done and material furnished, and there could therefore have been no other verdict rendered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. <&wkey;>1066.j
    3. Mechanics’ Liens <&wkey;93 — Persons- Entitled — Statutory Provisions.
    Under Rev. St. 1911, art. 5621, providing that any person or firm, etc;, who may labor or furnish material, etc., to erect any house or improvement, shall have a lien on such house, building, etc., and all its properties, and on the lots of land necessarily connected therewith, where a contract for the installation of the heating and plumbing in a building provided for payments from time to time as the work progressed upon the architects’ estimates, and the owner refused to make a payment on an es-tímate, for which reason the contractor abandoned the contract, he was entitled to a lien.
    [Ed. Note. — Por other cases, see Mechanics’ Liens, Cent. Dig. § 124; Dec. Dig. <&wkey;93.]
    4. Appeal and Error <&wkey;934^-PRESUMPTi0NS m Support op Judgment.
    Where, in an action by a contractor who installed the plumbing and heating in a building to recover the amount due him and for the foreclosure of a lien, the court did not submit any issue as to plaintiff’s right to a lien, and defendant did not request the submission of such an issue, an assignment that the court erred in decreeing the foreclosure of a mechanic’s lien for the reason the jury made no finding on that issue would be overruled under Rev. St. 1911, art. 1985, providing that upon appeal or writ of error an issue not submitted and not requested by a party to the cause shall be deemed as found by the court in such manner as to support the judgment, provided there be evidence to sustain such a finding.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781, 3782; Dec! Dig. &wkey;3934.]
    5; Appeal and Error <&wkey;1062 — Harmless
    Error — Special Issues — Issues Submitted.
    In an action on a contract, an assignment that the court erred in submitting an issue as to whether certain parties were defendant’s agents because the controverted issue was not whether they were his agents, but whether they were authorized to enter into the contract, would be overruled, where the court submitted another issue as to the authority of such agents to enter into the contract.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. <&wkey;> 1062.]
    Appeal from District Court, Harris County; A. R. Hamblen, Special Judge.
    Action by J. B. Collins against F. B. King and wife. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    L. A. Carlton and John Broughton, both of Houston, for appellants. Howard & Kendall, of Houston, for appellee.

      Application for writ of error pending in Supreme Court.

   HARPER, C. J.

Appellee, Collins, sued appellant for certain money, alleging: That he entered into a contract with F. B. King, who in the execution of the . contract acted personally and through his agents and architects, to install, according to plans and specifications agreed upon, the plumbing and heating of a building to be constructed by said King. That it was provided in said contract that the payments should be made upon estimates of the architects from time to time as the work progressed. That after certain estimates had been paid an estimate of $700 was given, upon which payment was refused, whereupon he abandoned his contract. Aft-erwards finished the work by special agreement with King. Appellants entered general denial; denied that the architects had authority to make contract; specially pleaded that they made no contract with appellee, but that the contract for the construction of the whole of the building was made with Russell & Co., as per conract attached. The case was .Submitted upon special issues, which, with the answers, are as follows:

“Special Issue No. 1. Do you or not find from the evidence that Dunderdale & Eastburn were the agents and representatives of defendant F. B. King? Answer: We find they were.
“Special Issue No. 2. Do you or not find from the evidence that defendant F. B. King authorized Dunderdale & Eastburn to enter into a contract with plaintiff, J. B. Collins, to install the heating and plumbing fixtures in defendant’s building, and to bind defendant in-"the cost thereof? Answer: We find he did.
“Special Issue No. 2%. Did George Dunder-dale, as the agent of the defendant F. B. King, in fact enter into a contract with the plaintiff, J. B. Collins, in which he purported to act as the agent of F. B. King? Answer: Yes.
“Special Issue No. 3. If you have answered issue No. 2% in the affirmative, then, and only in that event, you will answer: What amount do you find from the evidence is the balance due plaintiff on said contract? Answer: SI,* 342.05.
“Special Issue No. 4. Did or did not plaintiff, J. B. Collins, furnish on defendant’s building any extra labor and material? Answer: He did.
“Special Issue No. 5. If you have answered issue No. 4 in the affirmative, then and only in that event you will answer: Did or did not defendant King authorize any person to contract for and bind defendant King to pay therefor? Answer: We find he did.
“Special Issue No. 6. If you have answered issue No. 5 in the affirmative, then, and only in that event, you will answer: What person or persons do you find defendant King authorized to make contract with plaintiff, and what amount do you find from the evidence was agreed to be paid? Answer: We find Dunder-dale & Eastburn. The original contract $2,700.-00, and extras amounting to $360.25.”

Upon which a judgment was rendered for appellee for the sum of $1,342.05, with foreclosure of lien.

Assignments 1 to 5 urge that (a) the charge of the court, (b) the findings of the jury, and (c) the judgment rendered are not supported by the pleadings and the evidence, because appellee’s aetion is to recover upon quantum meruit for work done, labor performed, and material furnished, and the charge permits the jury to find what was the balance due plaintiff on the contract pleaded.

The only paragraph of the plaintiff’s petition which reveals whether he sued upon the contract or upon quantum meruit for that portion of the claim which arose before the contract was abandoned reads:

“That there is now due and owing this plaintiff, for work performed and material furnished in the installation of said heating and plumbing in said building under the said contract, the sum of $1,200, after deducting the sum of $1,-300 heretofore paid to this plaintiff, and after deducting from the said contract price of $2,700 the reasonable cost and expense of installing the heating and plumbing provided for by the terms of said contract, which said sum of $1,200 is the fair and reasonable value over and above the amount paid for said work and material, of which the said King has availed himself, and which he has used, kept, and retained.”

Of course, the allegata and probata must correspond, and, if the above-quoted pleading is not sufficient to form the basis of the charge and the verdict, then the cause must be reversed. In the absence of an exception to the petition, we think it sufficient to authorize the charge, either upon quantum meruit or for the balance of contract price. Gonzales College v. McHugh, 21 Tex. 257. The amount due could be definitely ascertained by reason of the fact pleaded, that the work was to be and was paid for upon estimates made by the architects as the work progressed, and, there being evidence to support the finding, it will not be disturbed. Besides, there seems to be no question of the reasonable value of the work done and material furnished by any evidence adduced by appellant, so there could have been no other verdict rendered, and in that case the cause should not be reversed upon the assignments, so they are overruled.

The sixth is that the court erred in establishing and decreeing foreclosure of a mechanic’s lien on the defendant’s property for the reason that the jury made no finding upon that issue; therefore the court could not look to the evidence for the purpose of ascertaining whether plaintiff was entitled to a lien.

The first proposition is that:

“If a case is submitted on special issues,_ answers made by the jury to questions submitted must form the basis of the judgment. If all of the issues necessary to support the judgment were not passed upon by the jury, it will be presumed on appeal that they were found by the court in such manner as to support the judgment. The application of this rule, however, will be confined to those issues which were necessary to support the judgment authorized by the findings. If there is an independent issue made by the pleadings upon which there is no request for a finding, and such issue is not essential to support the judgment entered on the findings made by the jury, the court is not authorized to determine such issue and enter judgment awarding other and further relief to that authorized by the finding.”

The second proposition is:

“A contractor who abandons his contract because payments are not made by the owner at the time required by the contract is not entitled to a mechanic’s lien, unless the payments are • made conditions precedent to the performance of the work by the terms of the contract.”

Appellee pleaded the contract between the parties, in which it is provided that the payments for the work shall be made from time to time, as it progressed, upon the estimates of the architects. He further pleaded that the appellant refused to make a $700 payment on an estimate of the architects as he had agreed to do, and for that reason he abandoned the contract, and there is evidence in the record to sustain the allegations, and article 1985, Revised Civil Statutes, provides that upon appeal or writ of error an issue not submitted and not requested by a party to the cause shall be deemed as found by the court in such manner as to support the judgment, provided there be evidence to sustain such a finding. The record does not reveal that appellant requested a special issue to be submitted. Appellee is entitled to his lien and its foreclosure under the pleading and evidence. Article 5621, Rev. Stat. 1911. The assignment is therefore overruled.

The seventh assigns as error the refusal of the court to give a requested special charge upon agency. The issue was sufficiently covered by the general charge given.

The eighth charges that the court erred in giving special issue-No. 1 for the reason that the controverted issue in the case was not whether the parties were the agents of defendants, but whether they were authorized to enter into the contract; second, because undue prominence was given the question of agency by the court’s charge. It will be noted in the answer to the first contention that the second special issue submits the question of. whether King authorized the agents to enter, into the contract. We fail to see how any undue prominence was given the issue by the court’s charge, and the appellant by statements has failed to point it out to us.

The assignments are overruled, and the cause affirmed.
      <2&wkey;For other oases see same topic anfl KET-NUMBSR in all Key-Numbered Digests arid Indexes

      ©csFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    FT. WORTH & D. C. RY. CO. v. MORGAN.
    (No. 8233.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 26, 1915.)
    1. Carriers «&wkey;230 — Shipment of Live Stock — Actions fob Damages — Instructions.
    Though in an action for damages to a shipment of cattle, the original petition alleged that the damages were proximately caused by defendant’s breach of a contract to ship- the cattle on a particular day, so as to reach a particular market, the court did not err in defining negligence in its charge, where the answer alleged that the delay was not caused by defendant’s negligence, but by the burning of a railway bridge, and a supplemental petition alleged, in addition to what had been originally charged, that defendant was negligent in failing to properly bed the car in which the shipment was made.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. <&wkey;>230.]
    2. Carrier's &wkey;>213 — Shipments — Liability fob Damages.
    To the extent that delay in transporting a shipment of cattle was caused by the inability of the carrier’s train to cross a burned bridge, which burned without fault on the carrier’s part, it was not liable, and it was error to charge that, if there was an agreement to ship the cattle on a particular day, the burning of the bridge, though unavoidable, would be no defense for any damage resulting from the failure to comply with the contract.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 920-922; Dec. Dig. &wkey;213.]
    3. Carriers <&wkey;>230 — Live Stock — Delay — Instructions.
    Where, in an action for delay in the transportation of a shipment of cattle, the evidence seemed to show that statements by the carrier’s dispatcher were rather in the nature of information as to when a train to take the cattle might be expected than a specific contract to ship them on any particular day, and it appeared that plaintiff expected to, and subsequently did, sign a contract for the transportation of the cattle which expressly provided that the cattle were not to be transported within any specified tíme, nor delivered at destination at any particular hour, nor in season for any particular market, an instruction submitting the issue of a special contract to ship the cattle on July 21st, in time for the market of July 22d, was at least misleading.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. &wkey;230.]
    4. Caeuier's <&wkey;230 — Actions eor Delay in Transportation — Instructions — Measure op Damages.
    In an action for delay in the transportation of a shipment of cattle, the court charged that the measure of damages would be the difference in the reasonable market value of the cattle at their destination in the condition that they would have been, had they arrived there in the ordinary condition and usual_ time, and without any negligent delay, and. their condition at the time when they did arrive there, and that, if the market was lower on the day the cattle were sold than on the day they should have arrived, plaintiff would be entitled to recover such difference. Meld, that this was erroneous, as the measure of damages was the difference m the market value of the cattle at their destination in the condition in which they were delivered, and in the condition in which they should have been delivered, had the shipment been without negligence, and this difference includes, not only depreciation in weight and stale appearance caused by the delays charged, hut also any decline in the market, and the charge authorized a double recovery for the decline m the market.’
    [Ed. Note — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. &wkey;230.]
    Appeal from Wichita County Court; Harvey Harris, Judge.
    Action by J. R. Morgan against the Ft. Worth & Denver City Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Carrigan, Montgomery & Britain, of Wichita Falls, Thompson & Barwise, of Ft. Worth, and F. S. Jones, of Wichita Falls, for appellant. Fitzgerald & Cox, of Wichita Falls, for appellee.
   CONNER, C. J.

The appellee recovered a judgment for damages alleged to have resulted to a ear load of his cattle shipped from Burk Station, in Wichita county, to Ft. Worth. As alleged in his original petition, the damages were proximately caused by a breach of a contract on appellant’s part to ship the cattle from Burk Station on the 21st day of July, so as to reach Ft. Worth in time for the market of July 22d. The defendant answered, among other things, that the delay, which was at Burk Station before the transportation began, was not caused by its negligence, but by the burning of a bridge on a line of railway between the shipping points named.

The objection to the court’s definition of negligence, on the ground that the plaintiff’s cause of action was based alone on a breach of the contract and not upon a tort, is not maintainable, for the reason that the issue of negligence was not only raised by the defendant’s answer, but also expressly' presented in the plaintiff’s supplemental petition, which, in addition to what had been originally charged, alleged that appellant had been guilty of negligence in failing to properly bed the ear in which the shipment was made.

There was error, however, on the part of the court in the following instruction to the jury:

“If you find that there was an agreement to ship plaintiff’s cattle on the 21st day of July, 1914, then you are charged that, even if the burning of the Pease River bridge was unavoidable, it would be no defense in this case for any damage that resulted by reason of a failure to comply with said contract; that is, if there was any damage.”

There was evidence tending to show that on the morning of July 20, 1914, without fault on appellant’s part, the bridge specified in the defendant’s answer had burned, and that the repairs on the same had not been completed so that trains could cross it until about 6 o’clock p. m. on the night of July 21, 1914. There was also evidence subject to the construction that the delay in the shipment from Burk Station was caused, in part at least, by the inability of appellant’s trains to cross the burned bridge, and to the extent that the delay was so caused appellant should not be charged. See Railway Co. v. Noelke, 125 S. W. 969; Weesen v. Missouri Pac. Ry. Co., 175 Mo. App. 374, 102 S. W. 304; Simkins on Contracts and Sales (3d Ed.) pp. 572, 573 ; 4 R. C. D. 742, par. 210, and authorities cited. Moreover, we very much doubt whether the evidence authorized in any form a submission of the issue of a special contract to ship the cattle from Burk Station on July 21st in time for their arrival in Ft. Worth for the market of July 22d. It appears that Burk Station had cattle pens, but was without an agent, or shipping or watering facilities, and the substance of the evidence tending to show the special contract alleged substantially appears in the following testimony by the appellee:

“I was here in Wichita Falls on the morning of J illy 21, 1914, and called up the Denver for a car to be placed at Burk Station for cattle to be shipped to Ft. Worth, and they advised me to call the dispatcher’s office, which I did, and the dispatcher said that he did not know for certain whether he would be able to have a train by there that day or not, on account of burn-out on Pease River bridge, but would Iidow later on in the day. In order for me to get my cattle together, I had to leave Wichita Falls on the Electra Bocal, and went to Fowlkes Station, and a man met me there with a horse, and we got the cattle and started to the Burk pens with them. We got as far as Burnett’s ranch, and I left my man with the cattle, and went there and phoned, and called the dispatcher, and he said they had already placed the car there and would be able to move my cattle that evening; that there would be a train along there that evening about 2 or 3 o’clock, and I put the cattle in the pens and waited there for the train. I penned my cattle between 10 and 11 o’clock that morning. My object in calling up the dispatcher after I had gathered my cattle was I did not want to pen my cattle until I found out for certain whether he could move them that day and he had told me that he would know later in the day, and there was nothing else to do but to call him up and find out whether there would be a train. * * * My cattle remained in the pens there at Burk station until about 2 o’clock that night before a train came along that could have moved them. This train that came along did not take my cattle. The train slowed up, and one of the train crow dropped off of the engine as the engine came to the pens, and ran over to the pens and shone his lantern over to top of the pen, and jumped off and ran back and caught the caboose by the time it came by, and they pulled out. I was near the pens, but I was not at the pens, where my cattle were.”

These statements by appellant’s dispatcher seem to be, in the nature of mere information, in answer to appellee’s inquiries as to when a train to take the cattle might be expected at Burk, rather than as amounting to a specific contract to ship them at any particular day. In addition to this, appel-lee further testified that he accompanied the shipment; that he got away from Burk Station with his cattle about 6 o’clock p. m. on July 22d; that he had a fairly good run to Ft. Worth, and that his cattle were not damaged in transit. He further testified that:

“At the time when I called up the dispatcher to see about getting a car to ship my cattle, I knew that I would be expected to sign a contract, and I expected to sign one; and the contract I signed was what I had been accustomed to doing under the same conditions. * * * Wichita Falls is a terminal, and I signed this contract at the terminal. I made no objection to signing the contract here.”

Shipping contracts executed under similar circumstances have often been held to supersede previous verbal agreements relating to the same subject. See H. & T. C. Ry. Co. v. Smith, 44 Tex. Civ. App. 299, 97 S. W. 836; S. A. & A. P. Ry. Co. v. Barnett, 27 Tex. Civ. App. 498, 66 S. W. 474; Chicago, R. I. & T. Ry. Co. v. Halsell, 36 Tex. Civ. App. 522, 81 S. W. 1243. The contract referred to by the witness as the one signed by him at Wichita 1 alls was pleaded by the defendant and read in evidence, and contained an express provision that the live stock covered by it “is not to be transported within any specified time, nor delivered at destination at any particular hour, nor in season for any particular market.” So that, on the whole, as it seems to us, it was misleading, to say the least of it, to undertake to submit the issue of a special contract as alleged by the plaintiff in his original petition.

We are of opinion the court also erred, as assigned, in his charge on the measure of damages, which reads as follows:

“If you find for the plaintiff in this case, the measure of damages (if any) would be the difference in the reasonable market value of his cattle at Ft. Worth, Tex., in the condition that said cattle would have been had they arrived there in the ordinary condition and usual time, and without any negligent delay, and their condition at the time when they did arrive there. And if the market was lower on the day his cattle were sold on said market than the same cattle were on the market of July 22d, he would be entitled to recover said difference.”

There was evidence tending to show that, in addition to the stale and injured condition of the cattle caused by the delay at Burk Station, there was a decline in the market between the 22d and 23d days of July, on account of which the plaintiff claimed damages. Plaintiff’s measure of damages was the difference in the market value of his cattle at destination in the condition in which they were delivered and in the condition in which they should have been delivered had the shipment been made without negligence. This difference includes, not only depreciation in weight and stale appearance caused by the delays charged, but also any decline in the market, and the charge quoted is subject to the objection that it authorizes a double recovery, in that, to full damages authorized by the first sentence of the charge, the second sentence again authorizes the imposition of damages because of a decline in the market. T. & P. Ry. Co. v. Tomlinson, 157 S. W. 279; Railway Co. v. Lane, 49 Tex. Civ. App. 541, 110 S. W. 530.

We think it unlikely that other questions presented will arise on another trial. It is accordingly ordered that, for the errors noted, the judgment be reversed, and the cause remanded.
      <£^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. A. E. WANT & CO.
    (No. 8234.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 26, 1915.
    Rehearing Denied Oct. 15, 1915.)
    1. CARRIERS <6^32 — Charges—Rebates.
    An agreement of the agent of a railway company transporting goods for the plaintiff, upon discovery that the goods are in a defective condition on delivery, to reimburse the plaintiff for damages suffered by reason of deterioration of goods, is not an agreement for a rebate, sufficient to make it discriminatory within the interstate commerce law, nor does the fact that proof of the amount of damage is to be determined by plaintiff’s agents alter the situation in that respect.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 83-85; Dee. Dig. &wkey;32J
    2. Evidence t&wkey;130— Admissibility — Letters.
    It is not error to exclude from the evidence a letter written to defendant by defendant’s agent in regard to plaintiff’s claim for damages, for the letter is res inter alios acta, particularly where the letter itself does not rebut the evidence to which it is directed.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 403; Dec. Dig. &wkey;>130.]
    3. Carriers <&wkey;69 — Injury to Goods — Agents — Implied Authority.
    Evidence, in an action for damages for deterioration of goods shipped, held to warrant submission of the issue as to whether defendant’s agent, who assumed to compromise a claim, had been held out to shippers and consignees as having authority to do so.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 217-219, 222, 228, 230, 232-239; Dee. Dig. &wkey;69.]
    Appeal froin Tarrant County Court; Leon B. Fant, Judge.

      Action by A. E. Want & Oo. against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for the plaintiff, the defendant appeals.
    Affirmed.
    Thompson & Barwise and George Thompson, Jr., all of Ft. Worth, for appellant. Baskin, Dodge & Eastus, of Ft. Worth, for appellee.
   BUCK, J.

From a judgment in the sum of $155.87 in favor of plaintiff, A. E. Want & Co., the defendant railway company appeals.

Plaintiff sued defendant, alleging: That during the month of January, 1912, there was consigned to plaintiff at Ft. Worth, Tex., by D. E. Ryan Company of Minneapolis, Minn., a certain car of potatoes. That upon its arrival plaintiff became aware that the potatoes therein, or a portion thereof, were frozen and unmarketable, and refused to accept the shipment. That, in order to save the defendant the trouble and expense of handling said damaged potatoes, the defendant and its agents agreed with plaintiff that, if it would receive said shipment, the defendant company would pay all loss and damage on account of the condition of the potatoes, and directed the plaintiff to unload and assort the same, and promised when this was done, and the extent of the loss ascertained, the defendant company would pay to plaintiff the amount thereof. That said shipment was made with bill of lading attached, all of which was known to defendant and its agents, and that the contract contemplated that plaintiff should pay the attached draft and receive the potatoes, and that it was induced to so accept and pay for said shipment by the promises made by defendant. It was alleged that the loss amounted to. $155.87.

Defendant denied: (1) That any such promise was made by it as claimed by plaintiff ; (2) that if it was made, the agent who made it had authority to bind the defendant, or (3) that the defendant had held out such agent as having such authority; (4) that though the promise was made, and though the agent had the authority to make it, or had been held out by defendant as having such authority, yet the promise and agreement was in violation of the federal statutes of February 19, 1903, and amended in 1906, prohibiting concessions, rebates, and discrim-inations as to freight rates and charges on interstate shipments, and therefore was not enforceable.

The evidence showed: That, upon the arrival of the shipment at Ft. Worth, the car was placed on plaintiff’s house track, and that F. A. Jackson, agent and receiving clerk and warehouse foreman for plaintiff, looked at the potatoes and discovered their frosted and damaged condition, and called up the defendant’s local freight office, and, asking for the claim clerk, reported the matter to him, and requested that some one from defendant’s office come down and examine the- potatoes, and advise plaintiff what should be done. That W. N. Baker, defendant’s claim clerk or investigator under G. D. Rowe, local agent, in response to Mr. Jackson’s request came to where the car was and saw the potatoes, and instructed Jackson “to go ahead and run this car of potatoes and let him know what the damage was, and he would protect us (plaintiff) on it.” It was shown that Baker told Jackson “to handle the potatoes for the account of the M. K. & T. of Texas.” Baker testified that he instructed Jackson to go ahead and handle the potatoes on account of the defendant, but that he did not promise that the railway company would pay for any loss sustained, but merely that “we would give it prompt handling and it would be handled and settled on its merits.”

The evidence showed that both Rowe and Baker had many times prior thereto made settlements for damages claimed to shipments, without referring the claims to headquarters at Dallas; but both Messrs. Rowe and Baker testified that such a course was permitted under the rules of the defendant company only when the amount of the claim was less than $100; that larger claims had to be referred to the Dallas office. In this instance, the evidence shows that the claim was referred to the Dallas office by Baker, but for some unexplained reason was not paid, though nearly three years had elapsed between the origin of the claim and the judgment in the trial court.

The first assignment is directed to the failure of the trial court to give defendant’s special requested peremptory instruction, which appellant urges was error, for the following reasons set forth in its statement under said assignment:

“The uncontradieted evidence, and the weight of the evidence in the case, showing that contracts such as the one alleged by the plaintiff were not made by the various railroads in the city of Ft. Worth at that time, and further showing that there was no general custom or practice on the part of the railway companies in Ft. Worth, in existence at the time, whereby they would make such contracts or extend such privileges to shippers in Ft. Worth, or to parties to he notified of the arrival of shipments in the city of Ft. Worth, as was alleged by the plaintiff in its petition, and these facts being true, the alleged contract upon which plaintiff bases its suit was and is wholly discriminatory and conferred a privilege upon the said A. E. Want & Co. which was not conferred upon other shippers and parties to be notified of the arrival of shipments in the city of Ft. Worth, and was therefore unlawful, invalid, and not binding upon this defendant.
“The plaintiff having sued upon a breach of the alleged contract, and nowhere in its petition alleging that the said railway company was guilty of negligence in the handling of said shipment, but wholly relied upon the breach of said contract as alleged, the defendant, under the evidence and the facts adduced during the trial of the case, is clearly entitled to a peremptory instruction and the submission to the jury of its said special charge, No. 1.”

We do not think the agreement by' Baker, acting for defendant company, to pay for the damaged potatoes, can reasonably be construed as being in the nature of a contract discriminating in favor of the plaintiff with reference to freight rates or charges. It was an acknowledgment of liability, the extent of which was to be determined by an examination of the potatoes, and sorting the damaged ones from the uninjured. The fact that this proof of the amount- of the damages was to be made by plaintiff’s agents and employés would not alter the character of said agreement or transaction. The separation of the good from the bad, and the ascertainment of the extent of the loss, was to be made “on the account of” defendant company, as testified to by Baker himself, and through the medium of his own selection. There is no pleading or proof to support the conclusion that the loss really suffered by plaintiff was not in the amount of the claim, or that the confidence Baker showed in the fairness and carefulness of plaintiff’s employés was misplaced. The plaintiff pleaded an agreement of compromise and settlement, and we think the evidence amply sustains such plea. We do not think the arguments urged to the effect, or the cited authorities holding, that where a contract between shipper and carrier contains a provision that grants to the shipper a special privilege or advantage, are in point. Therefore, we overrule the first assignment, and likewise the second, which complains of the failure of the trial court to enter judgment for defendant company.

We do not think the court erred in refusing to admit the letter written by Baker, for Rowe, March 7, 1912, to the Dallas office, with reference to this claim, and we hold that the objection of plaintiff to its introduction that it was res inter alios acta, irrelevant, and immaterial, was properly sustained. Moreover, if said letter could be held under any construction to be admissible, we cannot see how its exclusion could have injured appellant. The only reason assigned in support of its admissibility is that it tends to show that Baker had not recommended therein the payment of the claim and it was therefore in rebuttal of the testimony of Wardlaw, plaintiff’s credit man, wherein he stated:

“I talked with Mr. Baker about this particular claim after some little time had elapsed, and he stated to me that he had made the agreement to pay this amount of money to protect us on this claim.”

And later, having been recalled:

“I had a conversation with Mr. Baker subsequent to the occasion of Want & Oo. receiving this shipment regarding the damage, claimed on the shipment, which conversation was over the phone. I had a second conversation with Mr. Baker, but I am not positive about it; I think I spoke to him about this claim, in connection with Mr. Williams, when he was in our office one day talking about it. I possibly had a third conversation with him, and it was one of the ones oyer the phone. In the phone conversation, I recognized Mr. Baker as the party to whom I was talking. Mr. Williams had called my attention to the length of time the claim had been out, and that it had not been paid, and I remember the circumstances so clearly that I called Mr. Baker up and asked why it had not been paid, and he expressed surprise that it had not been paid, and went on and stated that he had put the claim up in the proper way, and would take it up again with the Dallas office and see that we did get paid, and that he thought the claim was a just one, and he expressed surprise that it had not been paid, and first he stated that it had been paid, and when I showed him that it had not, he said he would take it up right away. I cannot remember the second conversation, but this was the first time I talked to him, and the second time, I don’t know whether I talked over the phone, but I rather think I did, and he came over there to see Mr. Williams —our desks are right near each other, and he was in the office talking about this claim, probably over there investigating some other claim at the time. He did not say anything to me with reference to his having agreed that they would protect Want & Oo. on the claim. In substance, he stated that he had put the claim up in the proper way, and that he expected it to be paid, and was surprised that it had not been paid.”

There is nothing in this letter which would render it even improbable that Baker did make the statements attributed to him by Wardlaw. The third assignment is overruled.

We think the evidence justified the submission of issue No. 4, which reads as follows:

“Had the defendant railway company held out its agent, Baker, to the shippers and consignees as having authority to enter into such agreement as alleged by plaintiff?”

F. A. Jackson testified:

“From my experience up to that time, Mr. Baker, whenever anything was wrong there and I showed it to him, and he said, ‘You go ahead and find out the damage and we will pay for it,’ and in a few days later he would send a check to cover it.”

Mr. Wardlaw, upon this point, testified in part as follows:

“It is customary with Mr. Baker and with any' of the railroad companies who make any notations of shortage on examining the shipment, we go ahead and file the claim, and nothing more is heard from it; the claim is paid in a short while. All the agreements heretofore made with Mr. Baker about those claims on the occasion when Baker would come over and make notations on the expense bills were carried out; every one except this one.”

Mr. Baker testified:

“I told Mr. Jackson to go ahead and handle the potatoes for the account of the M. K. & T. Ry. Oo. of Texas as a matter of adjustment between the railroad and the consignees. That was my customary way of dealing with matters like that when I was called to inspect a shipment. By that I meant that Jackson, on behalf of his company, should handle these potatoes just like the railroad company would handle them if Want & Oo. had not received them. I had done that previously in several shipments with Want & Oo. which they had called me over to inspect. * * * It was my customary way of handling business in that position.”

O. D. Rowe testified:

“I knew prior to this time that he (Baker) had been calling at A. B. Want & Co.’s establishment to inspect damaged shipments, and had requested them to handle the shipments for the railroad company. * * * When they are handling a shipment for our account, I would not expect that they would lose by the transaction- — not be out any money.”

Therefore, the fourth assignment is overruled, and also the fifth, which objects to the submission of issue No. 3, to wit:

“Had the witness Baker, prior to the transaction involved in this cause, made similar agreements to the one alleged by plaintiff to have been made, and which agreements were carried out by the defendant railway company?”

The sixth and last assignment directed to the action of the trial court in overruling defendant’s motion to set aside the findings of the jury is overruled.

Judgment affirmed.
      <g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DANIEL v. LANE.
    (No. 8228.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 19, 1915.
    Rehearing Dismissed by Agreement, Oct. 16, 1915.)
    1. Partnership <&wkey;296 — Dissolution—Pending MATTERS — SUFFICIENCY Of EVIDENCE.
    In an action by a former member of a real estate partnership for a share in the commission on a sale completed after the dissolution of the partnership, evidence held to support the jury’s findings that the partnership contract was not terminated until March 1, 1914; that there was an agreement at the time of the dissolution that plaintiff should receive one-third of the commission on pending deals; that the deal in question was pending at the time of the dissolution; and that plaintiff did not become a member of another firm until March 1, 1914.
    [Ed. Note. — Eor other cases, see Partnership, Cent. Dig. §§ 662, 663, 666-678; Dec. Dig. <&wkey; 296.]
    2. Partnership <g=w296 — Dissolution — Ac- ' tions — Instructions—‘ ‘Pending. ’ ’
    In such action the court did not err in connection with the issue as to whether the deal in question was pending at the time of the dissolution in defining the word “pending” as meaning remaining undecided, in suspense, not terminated.
    [Ed. Note. — Eor other cases, see Partnership, Cent. Dig. §§ 662, 663, 666-678; Dec. Dig. &wkey; 296.
    For other definitions, see Words and Phrases, First and Second Series, Pending.]
    3. Trial <&wkey;251, 350 — Dissolution oe Partnership — Instructions — Conformity to Pleadings.
    In such action, where the petition alleged that, on or about January 20, 1914, while plaintiff and defendant were partners, negotiations were begun for a sale of land, through which negotiations the property was finally sold; that plaintiff and defendant dissolved partnership on March 1, 1914; that it was agreed between them at the time that all sales pending and which had been begun .should continue to completion; and that upon completion defendant should have two-thirds of the commission and plaintiff one-third — a special issue as to whether the sale in question was a pending deal at the time of the dissolution, and an instruction in connection therewith that “pending” meant' remaining undecided in suspense, not terminated, were sustained by the pleading.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 587-595, 828-833; Dec. Dig. &wkey;251, 350.]
    4. Partnership &wkey;>296 — Actions—Evidence.
    That a former member of a real estate partnership, claiming to be entitled to a share of a commission on a deal pending at the time of the dissolution, participated in a fee earned by another firm prior to March 1, 1914, did not conclusively show that the jury’s finding that he became a member of such firm on March 1, 1914, was not sustained by the evidence.
    [Ed. Note. — Eor other cases, see Partnership, Cent. Dig. §§ 662, 663, 666-678; Dec. Dig. &wkey; 296.]
    5. Trial &wkey;>350 — Special Issues — Issues to be Submitted.
    Special issues which were not put in controversy by the evidence, or were included in and controlled by issues which were submitted, were properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. <®=o350.]
    Error from District Court, Tarrant County ; Marvin H. Brown, Judge.
    Action by R. L. Lane against J. B. Daniel. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    J. C. Terrell and Thompson & Barwise, all of Ft. Worth, for plaintiff in error. Roy Rowland & Young, and Lattimore, Cummings, Doyle & Bouldin, all of Ft. Worth, for defendant in error.
   BUCK, J.

This suit was filed by R. L. Lane against J. B. Daniel. Plaintiff alleged that he and defendant were partners in the real estate business in the city of Ft. Worth. Tarrant county, Tex., under the firm name of J. B. Daniel Realty Company; that on or about the 1st day of January, 1912, the J. B. Daniel Realty Company listed a certain tract of land for sale, known as the Mitchell tract, consisting of 80S acres and lying some miles north of Ft. Worth; that on or about January 20, 1914, while plaintiff and defendant were partners and composing said • firm, negotiations were begun for the sale of said land to one L. CM. Lockridge, and that through said negotiations said property was finally sold by said firm to said Lock-ridge for the sum of $60,000; and that the report of sale was approved by the county judge of Tarrant county, sitting in probate on July 14, 1914. Plaintiff further alleged that he and defendant dissolved partnership on March 1, 1914, and that it was agreed by and between them at the time of said dissolution that all sales pending, and which had been begun during the term of said partnership, should continue to completion, and that upon completion of said sales said Daniel should have two-thirds of the commission and said Lane one-third. He alleged that $1,000 of the $3,000 commission had been retained by C. K. Lee, administrator of the Mitchell estate, and was held by said Lee to await legal adjudication. Lee was therefore made a party defendant. In so far as the issues involved, which are necessary to he discussed, are concerned, the defendant denied that-the dissolution of the partnership took place on March 1st, but alleged that said dissolution took place on January 1, 1914, and, while thereafter there was a semblance of partnership between him and plaintiff, yet on February 24th final dissolution of the partnership occurred, that the Mitchell deal was not then pending, nor was any agreement had between defendant and plaintiff as to the division of the commission on the sale of said property, and that in so far as the negotiations which finally resulted in the sale were concerned, they began subsequent to the dissolution of the partnership between him and plaintiff. The case was submitted to the jury on the following special issues:

“No. 1. When did the partnership contract between Lane, plaintiff herein, and defendant terminate? Ans. March 1, 1914.
“No. 2. What was the agreement between Lane and Daniel at the time of the dissolution of the partnership as to the division of commission on the pending deals? Ans. Daniel was to get two-thirds and Lane one-third.
“No. 3. At the time of the dissolution of the partnership between Lane and Daniel, was the sale of the Mitchell land a pending deal? By the word ‘pending’ is meant remaining, undecided, in suspense, not terminated. Ans. At the time of the dissolution of the partnership the sale of the Mitchell land was a pending deal.
“No. 4. At what time did Lane become a partner in the firm of Blanton, Freeman & Lane? Ans. March 1, 1914.”

Upon the answers of the jury, the court rendered a judgment for plaintiff for the amount sued for; the defendant prosecuted this writ of error.

The uncontroverted evidence shows that the property sold to Lockridge was shown to him by Daniel about January 20, 1914, and that an attempt was made by Daniel and Lockridge to negotiate a trade .for -the land at $S0 per acre, Lockridge to put into the trade some business property in the city of Ft. Worth at a valuation of $10,000, but that O. K. Lee, as administrator, declined to consider any trade, and as testified to by Judge Daniel, defendant:

“I did not try to handle that part any further than we did, because Lee told me they would not accept it, and I dropped that feature of it. I took it up again after that; that was on the 24th of February.”

It seems that some time prior to January 1st the defendant told plaintiff that he was not satisfied with the division of the profits, to wit, two-thirds to him and one-tliird to plaintiff, the expenses in the same ratio, and that he would suggest for the following years another basis of division, to wit, that he, defendant, should have all the profits derived from the out of county business, one-half of the city business, and one-third of the business in the county, but outside of Ft. Worth. Plaintiff-replied that he would see about it and talk to defendant later, and so the matter- rested apparently without any' further discussion or other agreement, they continuing to. divide their profits and expenses as during the previous year.

It is practically admitted by plaintiff in error, both in his oral argument and in his brief, that if the answer to special issue No. 1 is supported by the evidence, the judgment should be sustained. The jury found that the partnership contract between plaintiff and defendant terminated March 1st. Upon this point, while the evidence is conflicting, we are of the opinion that it is sufficient to sustain the finding of the jury. Mr. Lane testified, in part, as follows:

“At the time the firm was dissolved there was an agreement between Daniel and myself in regard to any deals that were pending at that time. He mentioned it himself; he says, ‘Now, all deals we have pending, we will still go ahead and divide the commissions as usual.’ In fact, I was going to leave there a little before that; he asked me to stay until the 1st of March. * * * It was along about the 15th or 17th I told him that I would leave on the 1st of March. I do not know exactly the date, but just right about that time I told him I was going to leave, going to change places, and he says: ‘You stay until the 1st of March, the bills will be coming in then, and it won’t be any trouble in settling up, and we will just settle up the bills until the 1st of March. * * * I paid all the bills, my part of the bills, up to the 1st of March. * * * The way that talk of the 22d of February came up, I (old him that I had made arrangements to leave there as soon as we could adjust things, that I was going in to another firm, and he says, ‘Well, you better stay here until the first of the month,’ which was the 1st of March. * * * My agreement with Blanton & Freeman as to when I was to start in was the 1st of March. That agreement was made with both of them. We made that agx-eement along about, I think, the middle of February, or maybe a little later. * * * I settled up in full with Judge Daniel by memorandum on the 1st of March for the expenses of the office for the month of January, but we did not pass any money; that was for all the back expenses that had fallen behind that we did not have the money to pay at the time. On the first of the month there was bills run over, and it had been a custom for bills to run over. Some bills had run over for several months, and I settled my whole part of it by memorandum; that is, by agreement on the 1st of March. I did not pay the money, though; he got the money and paid me the difference. That was about 30 days, I guess, after I left there. That settlement included the expenses of the firm for January and February.”

Mr. Daniel as to this feature testified, in part, as follows:

“While he [plaintiff] was a member of the firm I took the party out who finally did purchase it to see it. He looked at it twice; I took him out to see it twice. Lane was at that time a partner in the firm ; that is, he had been —I don’t know when he left the firm — he had been up until the 1st of January. Lockridge and I first went out to the farm on the 20th of January. I do not know when Lane left the firm. I do not know when he formed the new partnership. I know when he left the office ; that was on the 24th of February. I thought he was a member of the firm until the time he left, but I do not know that he was. * * -1= When he told me after I found his name on the door [meaning the door of the firm of Blanton, Freeman & Lane], and he told .me he had gone down to that place and formed a partnership. Then we dissolved, and that was on the 24th. That is when he ceased to be a member of the firm; that is, when all of our relationships ceased. * * * Q. Then when you showed Loekridge this farm, on the 20th of January, Lane was a member of the firm, wasn’t he? A. Well, I don’t know whether he was or not. Q. Didn’t you tell the jury a minute ago that he ceased to be a member of the firm on the 24th of February? A. Well, I don’t know whether he was or not. He ceased his relationships up there on the 24th. Q. Are you in the habit of making a fellow pay part of the expenses of the firm when he is not a member? A. That was his suggestion, just figure the expense up on to the 1st. I sent him an expense bill for January of that year. He paid it. Q. Why was you making him pay an expense bill if he was not a member of the firm? A. It was the basis of our agreement that we would settle up; that he would settle up until the first of the month. Q. If you thought he ceased to be a member of the firm on the 1st of January, what did you send him the expense bill for January for? A. Well, he was sitting around there and enjoying the benefits of the firm and the office. Unfortunately we did not have any profits in January for him to share in. * * * Q. Was Lane a member of the firm after the 1st day of January? A. We treated each other as partners up to that time, up to the time he notified me that he had gone down there, until the time I found out, and then he told me on the day following that he had formed a partnership with the other people, but did not tell me when. That was in February. * * :|! Lane was a partner up until the 24th of February. We worked together and divided all the profits.”

Upon issue No. 2 as to the agreement between plaintiff and defendant at the time of the dissolution of the partnership as to the division of commissions on the pending deals, Lane testified, in part, as follows:

“At the time the firm was dissolved there was an agreement between Daniel and myself in regard to any deals that were pending at that time; he mentioned it himself. * * * In fact, I was going to leave there a little before that; he asked me to stay until the 1st of March, lie says, ‘All the deals we have pending, we will go ahead and divide the commissions as usual.’ * * * When I left the office, on February 25th, I did not agree with Mr. Daniel that whatever sales he made he would have the commission and whatever sales I made I would have the commission, except the Durrett-Vincent deal; I did not have any such agreement as that with Judge Daniel. Just before I left there, when I'had the Durrett-Vincent deal up and lie had the Mitchell farm deal up, that made him a deal and me a deal, that is when I told him I would leave, as I was going to leave, and he said, ‘Well, whatever deals we have on, we will divide the commission as we have been doing, as usual,’ and I said it was all right.”

Upon this matter Judge Daniel testified in part as follows:

“As to any agreement between us that all pending matters should be — we should go ahead and carry them out on the same basis, he mentioned the Webb trade [meaning the Durrett-Vincent trade]; that we would go ahead and complete that, and I says: ‘Now, Bób, I don’t want us to have any disagreement in the future, now all business that we transact from now on, if you sell it, it will be your, commission, and if I sell it, it will be my commission, and you •can handle any of the customers that we have had in the office from now on and sell them what you can and take the commission, and if I sell them I will take the commission.’ ”

Without unduly enlarging this opinion by further quoting from the testimony, it is sufficient to say that, in our judgment, the verdict of the jury upon all of the issues presented is sustained by the evidence, and in so finding we dispose of most of plaintiff in error’s assignments.

We do not think there was any error in the court’s giving, in connection with the third special issue submitted, a definition of the word “pending,” nor do we find that said special issue, or the explanatory charge given in connection therewith, is not sustained by the pleadings of plaintiff, as complained of in the fifth assignment, section “A.” Nor does the fact that the plaintiff participated in a fee earned by the firm of Blanton, Freeman & Lane prior to March 1st conclusively show, as claimed by plaintiff in error in his fifth assignment, section “B,” that the answer of the jury to special issue No. 4 was not sustained by the evidence. While it may be unusual, yet we are not prepared to say that there is any rule of public policy which would preclude a man from being a member at the same time of two firms engaged in a similar business, and participating in the profits arising from each.

Finding no errors shown in the failure of the court to submit special issues Nos. 5, 6, and 7, requested by plaintiff in error, as shown in the fifteenth, twelfth, and thirteenth assignments, because we believe that either said issues were not put in controversy by the evidence, or were included in and controlled by issues which were submitted, said assignments are overruled.

The judgment is affirmed.
      <&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    AMERICAN EXPRESS CO. v. NORTH FT. WORTH UNDERTAKING CO.

    (No. 3141.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    July 3, 1915.
    Rehearing Denied Oct. 30, 1915.)
    1. Action <&wkey;4 — Gp.ouNDS—Illegal oe Im-moeal Acts.
    If plaintiffs, a firm of undertakers and embalmers, under circumstances of duress wrongfully extorted from B. unreasonable and unjust charges for the preparation and shipment of his father’s dead body, they had no lawful claim to so much of the amount exacted as was unjust and unreasonable; and, where B. subsequently garnished the amount exacted while in the possession of an express company, with which it had been • deposited for transmission to plaintiffs, plaintiffs could not complain that, but for the company’s negligence in not transmitting the money promptly, it would have obtained possession of and enjoyed its ill-gotten gains.
    [Ed. Note. — For other cases, see Action, Cent. Dig. §§ 17-24; Dec. Dig. <&wkey;>4.]
    2. Judgment <&wkey;944 — Evidence — Weight AND SUEEICIENOT.
    In an action against an express company to recover money deposited with it by B. for transmission to plaintiffs and subsequently garnished by B., in which statutes of Wisconsin and the testimony of a practicing attorney as to the laws of Wisconsin were introduced, evidence held, to show that the judgment against plaintiffs on service by publication in the action in which the writ of garnishment was issued was a valid judgment under the laws of Wisconsin, though plaintiffs were sued in their firm name.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1783; Dec. Dig. <&wkey;944.]
    3. Judgment <&wkey;822 — Foreign Judgments— Constitutional Provisions.
    If a Wisconsin court which rendered a judgment had jurisdiction under the Laws of Wisconsin over the subject-matter and obtained jurisdiction over the defendants, such judgment must, in the courts of Texas, be given all the force and effect that it has in Wisconsin, under Const. U. S. art. 4, § 1, providing that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1523-1525; Dec. Dig. &wkey;822.]
    4. Courts <&wkey;511 — Comity—Construction of Foreign Statutes.
    In construing the laws of another state, they will be given that construction and effect which is given them by the courts of final resort in the state where they were enacted.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 1432; Dee. Dig. &wkey;>511.]
    5. Partnership <@=3200 — Actions ®y or against Firm — Use of Firm Name.
    To authorize a judgment in this state against a partnership, or its property, all the members of the partnership must be made parties, since suits can only be maintained by and against persons, natural or artificial, and a partnership is not considered as a person or a legal entity, but the lawmaking power may otherwise provide.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 369-371; Dec. Dig. &wkey;200.]
    Appeal from Tarrant County Court; Charles T. Prewitt, Judge.
    Action by the North Ft. Worth Undertaking Company against the American Express Company. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Thompson & Barwise, A. C. Wood, George Thompson, Jr., and G. W. Wharton, all of Ft. Worth, for appellant. Slay & Simon and Theodore Mack, all of Ft. Worth, for ap-pellee.

      Application for writ of error pending in Supreme Court.

   CONNER, C. J.

This suit was instituted in the county court of Tarrant county on the 13th day of August, 1909, by the North Ft. Worth Undertaking Company against the American Express Company, to recover the sum of $327.50, which it was alleged had been deposited with the express company for the use and benefit of the plaintiff, but which the express company had refused to deliver. It was alleged that the plaintiff company was a partnership composed of George L. Gause and S. D. Shannon and engaged in the business of undertakers and embalmers, and that as such, pursuant to instructions, had, on July 17, 1909, received, embalmed, and prepared for shipment the dead body of one Theodore Bokoski; that the shipment was to be made to Frank Bokoski, a son of the deceased, at New London in the state of Wisconsin; that the money to cover the cost of the casket, preparation of the body, etc., amounting to $327.50, plus $47.50 for the express charges, had been deposited by said Frank Bokoski with the defendant’s agent at New London for the plaintiff’s use, after which the dead body was delivered to the defendant at Ft. Worth, Tex., and shipped, but that defendant had failed to deliver to plaintiff the money so deposited.

On September 6, 1909, the defendant ex-préss company answered to the effect that it had received the body of Theodore Bokoski and had transported. and delivered it to Frank Bokoski at New -London, Wis., who made deposit of the charges as plaintiff had alleged, but that within 24 hours after such delivery the said Frank Bokoski had instituted suit against the plaintiff company in the proper circuit court in Wisconsin, alleging that the charges made by the plaintiff company were excessive to the extent of $200, for which excess Frank Bokoski prayed judgment, at the same time duly causing the issuance and service of a writ of garnishment upon the defendant and its agent at New London, who was still in possession of the fund, theretofore deposited to plaintiff’s use as stated. It was further alleged that the circuit court of Wisconsin had thus acquired jurisdiction over the defendant, and that the money claimed by plaintiff, in obedience to the laws of Wisconsin so requiring, had been deposited with the clerk of said circuit court to abide the result of the suit of Frank Bokoski. It was further alleged in defense that the plaintiff had been duly and regularly served with process in the cause pending in the Wisconsin court; that said cause would come' up for trial in November following, and the prayer was that the present suit be held in abeyance until the Wisconsin case be determined, to the end that defendant should not be required to suffer a dQuble recovery.

The record fails to show any further action of note until the 10th day of February, 1914, when the plaintiff herein filed its substitute or amended petition alleging substantially as in its original petition, with added averments to the effect that its delivery of the body of Theodore Bokoski at Ft. Worth was refused until the defendant gave its assurance that the deposit before mentioned had been made, and that said money would forthwith be transmitted from Wisconsin to plaintiff, and that the defendant company had negligently failed to so transmit said money, having on the contrary, through its agent, conspired with said Frank Bokoski to detain the fund until it could be seized under the process of the Wisconsin court.

On the same day, to wit, on February 10, 1914, the defendant filed its first amended answer in substance as before, with, further allegations to the effect that the Wisconsin suits .had proceeded to judgment in favor of Frank Bokoski both against the plaintiff and against defendant as garnishee for the aggregate sum, including court costs, of $231.85, which, by virtue of said judgments, defendant had been compelled to pay into the registry of the Wisconsin court for the benefit of Frank Bokoski. This answer abounded in ¿negations of due notice to and service upon the plaintiff of the judicial proceedings in Wiscpnsin, and pleaded the judgments therein rendered in bar, pro tanto, of the plaintiff’s demand. The balance of the fund, $137,50, the defendant tendered in open court, as it was alleged had been theretofore done, for plaintiff’s use.

The case was submitted to the jury upon three special issues, in answer to .wbdah the jury found:

“First, that the defendant express company, receiving the money from Frank Bokoski, did not exercise reasonable diligence to transmit and deliver the same to the plaintiff company; second, that the money would not have been garnished if the defendant had exercised reasonable diligence to transmit and deliver same to plaintiffand, third, that defendant’s agent and agents were guilty of conspiracy and collusion with Frank Bokoski in holding or retaining the money in the possession of the express company, in order that the same might be garnished by Frank Bokoski.” .

The court on said findings of the jury entered judgment in favor of the plaintiff for $327.50, together with interest thereon from July 17, 1909, and the defendant has appealed.

After a statement of the pleadings and essential facts of the case the first 90 pages of the appellant’s brief relate, in one form or another, to the issues upon which the case was submitted, it being contended, among dther things, that the evidence fails to sustain the finding that appellant was guilty of the negligence and conspiracy charged. While we find but' little evidence, if any, to support these charges, the entire subject and all questions relating thereto are wholly immaterial in the view of the case that we have taken.- It is true that there are cases holding, and correctly so, that a garnishee will not be protected by a judgment against him which is fraudulent in character, and which he has collusively aided a plaintiff to obtain. But this principle can have no just application here. The only fraud on the part of the appellant that is alleged, or of which there is a pretense of proof, is founded alone on the alleged fraud of appellant’s agent at New London, Wis., in negligently failing or refusing to forthwith send the deposited fund to Texas, whereby Frank Bokoski was enabled to garnish and detain it subject to his claim, if judicially established. There was no effort to show that appellant, or any one or more of its agents, joined, or sought to join, in- establishing a fictitious or fraudulent claim. If, as Frank Bokoski alleged in the Wisconsin suit against the ap-.pellee undertaking company, the latter party had, under circumstances of duress, wrongfully extorted from him unreasonable and unjust charges for the preparation and shipment of his father’s dead body, then as to such part of the exaction as was so unjust and unreasonable the undertaking company had no lawful claim. If such were the facts the undertaking company was in the situation of an extortioner, and cannot be indulged in a complaint that, but for the negligence of appellant, it could and would have been able to get' possession of and enjoy the fruits of its ill-gotten gains. So that, as we think, the controlling questions for our determination go to the validity and binding effect of the Wisconsin judgments, the one establishing, or purporting to establish, Frank Bokoski’s charge of extortion, and the other directing the appellant to pay part of the fund here claimed into the registry of the Wisconsin court.

Appellant thus presents the vital questions:

“Fourteenth Assignment of Error.

“The court erred in failing- and refusing to-give defendant’s special charge No. 1, instructing a verdict in favor of the defendant, for the following reasons: (f) Because the testimony in this case further shows that the money deposited by the said Frank Bokoski with the agent of the defendant express company at New London, Wis., was garnished in a suit filed by the said hrank Bokoski against said defendant express company, and that said express company, under and by virtue of said writ of garnishment, did thereafter, within the reasonable time prescribed by law, deposit in the registry of the court, out of which said writ was sued, ■the sum of, to wit, $327.50, the amount deposited with it to cover the undertaker’s charges, and that the testimony further shows that after-wards and in due time after the undertaking company was notified, in accordance with the laws of the state of Wisconsin, of the pendency of the said suit, styled Frank Bokoski v. North Ft. Worth Undertaking Company, and for the time required by law, the said suit was called for trial, and the said North Ft.- Worth Undertaking Company failed to appear, and after the evidence was introduced a judgment was rendered in favor of the plaintiff, Frank Bokoski, against the said North Ft. Worth Undertaking Company, which together with the costs incurred in connection with the .original suit and garnishment suit and the amount tendered into court here, represented the total amount deposited with this company by said Frank Bokos-ki to cover the undertaking charges; that in pursuance to the judgment rendered as aforesaid, in case of Frank Bokoski v. North Ft. Worth Undertaking Company, the said sum of money and all of the money except the $137.15 tendered into court, was taken by the court to satisfy the judgment of the said Frank Bokoski, rendered, as aforesaid, against the undertaking company; and the testimony further showing without dispute that this defendant had deposited in the registry of this court, and that the same has been tendered to the plaintiff herein, the said sum of $137.15, that being the balance in its hands after satisfying the said judgment of Frank Bokoski; and, it further showing that under the laws of the state of Wisconsin the express company did not have to appear and defend the cause of action or suit of the North Ft. Worth Undertaking Company, but that it was the duty of the undertaking company so to do, this judgment and all proceedings taken now having been presented into this court, it became the duty of this court, absolutely, under such situation, and in accordance with the laws of the state of Wisconsin and of the state of Texas and of the United States, to instruct a verdict in favor of the defendant herein.”

The undisputed evidence shows that the court in Wisconsin in which Frank Bokoski instituted his suit against the North Ft. Worth Undertaking Company had jurisdiction of the subject-matter of that suit, and had full power to cause the issuance and service of a writ of garnishment upon appellant and its agent at New London, Wis. It is further undisputed that a writ of garnishment was issued and served upon appellant, which under the laws of Wisconsin made it the duty of appellant to deposit the fund in its possession, and claimed by appellee herein, into the registry of the court out of which the writ issued to abide the result of the suit of Frank Bokoski against appellee. This was done, and thereafter, as further shown by the undisputed evidence, the Wisconsin court formally found that Frank Bokoski’s allegations of unreasonable and unjust charges on the part of the undertaking company were true, and adjudged that said charges, be annulled and abated to the extent of $172.50, which, together with the further sum of $59.-35, costs of suit, the appellant was, by judgment against it in the garnishee proceedings, directed to pay into court for the use of Frank Bokoski. Appellant so paid the money, and the regularity of all of these proceedings is not questioned except in the particular hereinafter stated. Indeed, the validity and binding effect of the judgment against appellant as garnishee is in no wise questioned save, as will more fully hereinafter appear, it is contended that the judgment in favor of Frank Bokoski is invalid, and that the judgment in garnishment must therefore fall with it.

What then must be said of the judgment of the Wisconsin court against the appellee company in favor of Frank Bokoski? If the court which rendered that judgment had jurisdiction, under the laws of Wisconsin, over the subject-matter, ■ which is not disputed and which is undeniably established, and obtained jurisdiction over the appellee company, which alone is denied, then nothing is more firmly established in our law than that such judgment must, in the courts of this state, be given all the force and effect that it has and had in the state of Wisconsin. The Constitution of the United States, which with us is all-pervading and all-controlling, in section 1, art. 4, declares:

“Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts', records and proceedings shall be proved, and the effect thereof.”

It is to be observed that the “full faith and credit” enjoined by this section of the Constitution takes in not only the records and judicial proceedings, but also the public acts of another state, such as laws enacted by legislative bodies, and it is very uniformly held that in construing laws of another state they will be given that construction and effect that is given them by the courts of final resort in the state where enacted. These principles are too well known to require the citation of authority, and they are to be applied in the determination now to be made.

It was shown without question or objection that, upon service of the writ of garnishment upon appellant’s agent in Wisconsin, its attorney promptly notified the appellee company of the suit of Frank Bokoski and of the service of the writ, accompanying such notice with a copy of the complaint and of the summons issued by the clerk of the court commanding the appearance of the North Ft. Worth Undertaking Company to appear at a time and place named to answer the complaint of Frank Bokoski. In this connection the undertaking company was informed that under the statutes of Wisconsin, which is verified by the proof, a garnishee was not required to appear and contest the claim of the plaintiff against the original defendant; that in this instance the express company would make no such contest, and the undertaking company was requested to do so. Of these proceedings, as we have already seen, the undertaking company was also given notice by the original answer filed in this suit by the express company months before the trials and judgments in the Wisconsin court, so that it is undeniably true that the undertaking company had actual notice of the proceedings in the Wisconsin court in ample time to make any defense to the suit of Frank Bokoski that the facts in its possession would have warranted. Under such circumstances it was proved by an expert, without objection to either the qualifications of the expert or to the competency of his testimony, that a judgment against a garnishee as in this case, preceded as hereby a judgment in favor of the plaintiff in garnishment against the original defendant, operated, under the laws of Wisconsin, as a discharge of the garnishee as to the claim of the original defendant. In illustration of this conclusion the following statute of Wisconsin, among others, and its construction by the Supreme Court of that state, was read in evidence, viz., section 2766 :

“The proceeding against a garnishee shall be deemed an action by the plaintiff against the garnishee___and defendant as parties defendant. * * * The judgment against a garnishee shall acquit and discharge him from all demands by the defendant or his representatives for all money, goods, effects or credits paid, delivered or accounted for by the garnishee, by force of such judgment.”

In relation to which the Supreme Court of Wisconsin, in the case of Winner v. Hoyt Imp. Co., 6S Wis. 278, 32 N. W. 128, said:

“The argument at the bar was devoted largely to the question whether this section [Rev. St. § 2756] makes such service upon the defendant. in the principal- action jurisdictional.' ‘Prior to the enactment requiring such service to be made upon the defendant in the principal action, embraced in the above statute, there would seem to have been no doubt but what the payment of money or delivery of property in good faith by a garnishee, in pursuance of a valid judgment of garnishment obtained without such service, was a complete protection against any subsequent claim or suit by the defendant in the principal action. Adam v. Filer, 7 Wis. 306 [73 Am. Dec. 410]. As said in this last case, such proceeding was inter partes to the record, and binding upon all the property of the defendant found within the jurisdiction of the court but, to secure such protection, it was incumbent upon the garnishee to disclose every known defense, and, if necessary, notify the defendant in the principal action of the proceeding, and in good faith afford him an opportunity to defend his title. * ® * In other words, there was to be no abuse of process. The difficulties arising out of such a state of the law, as illustrated by numerous cases which might be cited, undoubtedly lead to the enactment mentioned. The manifest purpose of such enactment was not only to protect the garnishee, but to conclude the defendant in the principal action by a final determination of the rights of all parties to the property or indebtedness sought to be reached by the garnishment. Accordingly, it is provided that the defendant in the principal action may, in all cases defend against the garnishment proceedings upon any of the grounds authorized, and so the garnishee may, at his option, defend the principal action. Section 2765, R. S’.”

Moreover, it was proven that in accordance with sections 2639 and 2640 of chapter 120 of the Statutes of Wisconsin, a formal summons in the suit of Frank Bokoski v. North Ft. Worth Undertaking Company was issued and published for the required time commanding the “North Ft. Worth Undertaking Company” to appear and defend. The sufficiency of this “summons” and of its due service is not questioned, except as hereinafter stated, and its effect is thus stated in decisions of the Supreme ^Court of Wisconsin read in evidence, viz.:

In Bragg v. Gaynor, 85 Wis. 468, 55 N. W. 919, 21 L. R. A. 161, the court said:

“It has been the law in this state from a very early period that debts due to a nonresident debtor from citizens of this state are subject to garnishee process at the suit of his creditor in the courts of this state, and that such debtor can be brought into such courts by publication of summons; and, where the debt is claimed by another, he need not be summoned at all, but, in order to conclude him, it would be necessary to give him timely notice of the proceeding and to tender him the defense of it. * * * By force of statute law, as well as public policy declared thereby, and in the decisions of the courts, the situs or place where these debts are considered to be with reference to jurisdiction of our courts over them for the purpose of subjecting them to the satisfaction of debts due to a resident of this state from a nonresident, in order to protect, do justice to, and satisfy creditors resident here, is that of such resident debtor owing the same. The right to so reach and appropriate such debts for such purposes has been affirmed by numerous adjudications from the earliest period, and it is too late now to attempt to maintain the proposition that for all purposes the situs of debts so sought to be reached and applied is at the domicile of such nonresident. They are to be regarded, for the purposes of such proceedings, as property abiding or being in the domicil of the party,owing them, and are as much subject to the jurisdiction and con-1 trol of our courts as tangible property of a nonresident found within our jurisdiction. It cannot be disputed that tangible property so situated could be seized and applied to the satisfaction of the debts of a nonresident; and it is equally clear, as it seems to us, that debts, things in action as distinguished from things in possession, may be subjected to the equitable jurisdiction of our courts for the same purpose. The process of garnishment operates as an attachment, and fastens on such debts a lien by which they are brought under the dominion and jurisdiction of the court. * * * The property may be bound without actual service, within the jurisdiction, of process upon the owner, where the only object of the proceeding is to enforce a claim against the property specifically of a nature to bind the title. Notice of the proceedin'* may be given by publication, etc., as prescribed in the statute * * * and the property will be effectually bound by the judgment that may follow. * * * Garnishee process under our statute is only the equivalent of an equitable attachment, and creates a lien in like manner as by filing a bill, and is in every essential element, so far as it extends, a creditor’s bill.”

. In Morawetz v. Sun Ins. Office, 96 Wis. 175, 71 N. W. 109, 65 Am. St. Rep. 43, the court said:

“Practically, garnishment is a seizure in the hands of the garnishee by notice to him, creating an effectual lien upon the garnished property to satisfy whatever judgment the plaintiff may recover in the suit in which it is issued. * * * So the service of garnishee papers upon the garnishee operates as an equitable levy upon such of the debtor’s property and credits as were, at the time of such service, in the hands of the garnishee. * * * Jurisdiction in such cases of garnishment, where the defendant in the principal action is a nonresident, has been upheld mainly upon the ground that such proceeding is substantially in rem to subject specific property or credits to the payment of a specific debt.”

As against the foregoing array of the undisputed facts, and of the laws of Wisconsin relating thereto, the only objection worthy of notice that appellee urges is that, as was alleged and shown by the undisputed testimony, the North Ft. Worth Undertaking Company was a partnership composed of Geo. D. Gause and S. D: Shannon, and that the suit of Frank Bokoski and the “summons” issued therein did not give the Wisconsin court jurisdiction, or authorize the judgments in Bokoski’s favor, for the reason that the individual partners, Gause and Shannon, were neither sued nor served with any character of process. The rule of decision in this state is as appellee states it; that is, that in order to authorize a judgment against a partnership or its property, all of the members ol the partnership must be made parties. Frank v. Tatum, 87 Tex. 204, 25 S. W. 409; Glasscock v. Price, 92 Tex. 273, 47 S. W. 965, and numerous other cases cited in appellee’s brief. In arriving at this conclusion our courts adopt the general rule announced by many authorities that suits in courts can only be maintained by and against persons, natural or artificial, that is, by or against individuals or corporations, and that unless otherwise provided by statute, a partnership is not considered a person — a legal entity — and hence must sue. and be sued by its members. An essential factor of all the Texas cases is a finding that our statutes give to a partnership, as such, no separate legal status or entity. All, however, either expressly or impliedly, recognize the fact that it may be otherwise provided by the lawmaking power. To illustrate, our court, in Frank v. Tatum, supra, said:

“California, Iowa, Ohio, Nebraska, and Alabama, and perhaps other states, have statutes which authorize suits to be brought by or against copartnerships in their firm names. The effect of such statutes is to give to the partnership recognition as ‘an entity or distinct legal person distinct from its members.’ Bates on Law of Part., § 1059; Newlon v. Heaton, 42 Iowa, 593; Fitzgerald v. Grimmell, 64 Iowa, 261 [20 N. W. 179]; Leach v. Milburn Wagon Co., 14 Neb. 106 [15 N. W. 232]; Whitman v. Keith, 18 Ohio St. 134; Moore & McGee v. Burns & Co., 60 Ala. 270. Proceedings under such statutes are in the nature of proceedings in rem, and judgment can be entered only against the partnership, not against the individual members of the firm. Bates on Law of Part. § 1064; Wyman v. Stewart, 42 Ala. 163.’’

The only questions on this feature of the case, therefore, are: Was it proven on the trial below that under the laws of Wisconsin the suit and summons against the appellee partnership were maintainable, and, under such laws, does the judgment against such partnership bind it and its property? To the extent of the garnished fund we think both questions must be answered in the affirmative. In addition to what already appears, R. L. Van Doren testified that he had been a practicing lawyer- at various places in the state of Wisconsin since July, 1898; that the judgment in favor of Frank Bokoski against the North Ft. Worth Undertaking Company was rendered by the circuit court of Waupaca county, on the 16th day of November, 1909, and duly entered of record in that court; that thereafter an order was obtained by Frank Boskoski, commanding the clerk of said court, to pay—

“to the plaintiff, from the moneys deposited with him by said garnishee American Express Company, the amount of said judgment, to wit: $231.85, and that pursuant to said order, the clerk of said court paid to the plaintiff, the said Frank Bokoski, the said sum of $231.85.”

The witness further testified that:

“The judgment against the defendant North Ft. Worth Undertaking Company and the judgment against the garnishee American Express Company above referred to are final judgments. Said judgments have been fully paid off as stated above, and the amount paid upon said judgment was in satisfaction of the amount of the judgment obtained by Frank Bokoski against the North Ft. Worth Undertaking Company, for $172.50 damages and $59.35 costs. * * * Under the laws of the state of Wisconsin, the judgments hereinbefore referred to are not subject to any defenses of any kind. The circuit court for Waupaca county, in which said proceedings were had and judgments entered, has the general jurisdiction prescribed by the Constitution, and in the exercise thereof it has nower to issue all writs, processes, and commissions, provided therein and by statutes, which may be necessary to the due execution of the power with which it is vested. It has power to hear and determine all civil actions and proceedings and all cases of crimes and misdemeanors of every kind not • exclusively cognizable by a justice of the peace or some other inferior court, and it has all the powers according to the usages of courts of law and equity necessary to the full and complete jurisdiction of the causes and parties and the full and complete administration of justice and to carrying into effect its judgment, orders, and other determinations, subject to re-examination by the Supreme Court as provided by law. Said court is a court of record, and is a court of general jurisdiction. The claim upon which the garnishment in this case was issued was such a claim as would support a garnishment under the laws of the state of Wisconsin. * * * The claim of Frank Bokoski against the North Ft. Worth Undertaking Company was a claim founded upon contract, and was to recover damages for the breach of the contract of said North Ft. Worth Undertaking Company to properly embalm and ship the body of his father from Ft. Worth, Tex., to New London, Wis. The circuit court of Wau-paca county, in which this proceeding was pending, had jurisdiction over the North Ft. Worth Undertaking Company at the time it rendered the judgments hereinbefore referred to, to the extent of the amount of the fund in the possession of the garnishee, American Express Company, but had no jurisdiction to render any personal judgment against said North Ft. Worth Undertaking Company which could be enforced upon any property of said undertaking company outside of this state. Said court had full and complete jurisdiction over the fund involved in controversy here, to wit, the fund held by the garnishee, American Express Company, as before stated. Under the laws of Wisconsin, the American Express Company, as garnishee, was not required, nor was it its duty, to plead or prove any defense the undertaking company had to the suit of Frank Bokoski. * * * Under the laws of Wisconsin, the garnishee is protected when the statutes applicable to garnishment actions are complied with. * * * The American Express Company, garnishee in this proceeding, complied with the provisions of such statutes. * * * Under the laws of the state of AVisconsin, the North Ft. Worth Undertaking Company was a party to the garnishment proceeding. * * * Service was obtained on the North Ft. Worth Undertaking Company in this garnishment case by a publication of the summons pursuant to the laws of the state of Wisconsin. * ® ® The plaintiff, in the case above inquired about, proceeded under said chapter 125 of the Wisconsin Statutes of 1898, and also under the provisions of section 2639 and 2640 of the Wisconsin Statutes of 1898, which said last two sections relate to the service of a summons by publication.”

The testimony of this witness, which was by depositions taken in September and December, 1909, was accompanied by copies of letters, of the summons to the appellee company, of various statutes and decisions of Wisconsin (some of which we have quoted) and other things, which, as a whole, seem to amply support the regularity and validity of the court proceedings in Wisconsin. Nor does it appear that any objection whatever was urged to the qualification of the witness as a legal expert or to the competency of his evidence. Nor does it appear that appellee offered any testimony that conflicts in any material particular with that of the witness Van Doren, notwithstanding the fact, already shown, that his deposition had been taken in this case several years before the trial. On the whole, therefore, we find no sufficient reason to doubt the binding effect of the Wisconsin judgments to the extent claimed, and conclude that appellant clearly established its defense and discharge as pleaded. See American Express Co. v. Mullins, 212 U. S. 811, 29 Sup. Ct. 381, 53 L. Ed. 525, 15 Ann. Cas. 536; Harris v. Balt, 198 U. S. 215, 25 Sup. Ct. 625, 49 L. Ed. 1023, 3 Ann. Cas. 1084. The peremptory instruction should have been given, and the judgment below will accordingly, be reversed and here rendered for appellant, granting to appellee, however, the right to avail itself of appellant’s tender.

Reversed and rendered.
      (S=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes