author: PLEASANTS, C. J.

text:
    YEAMAN et al. v. GALVESTON CITY CO. et al.
    (No. 7204.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 17, 1916.
    Rehearing Denied Dec. 14, 1916.)
    1. Corporations &wkey;>109 — Stock-Lost Certificates — Duplicates.
    Where an owner of certificates of stock in a company which have been destroyed procures the issuance of an equal number of duplicate certificates and sells them and they are redeemed by the company, the fact that some of the duplicates are erroneously numbered gives him no further right against the company for shares under the original certificates.
    [Ed. Note. — For other cases, see Corporations, ■Cent. Dig. § 462; Dec. Dig. <&wkey;>109.]
    2. Trial <&wkey;139(l) — Case, for Jury.
    Though plaintiff makes out a prima facie case on undisputed evidence, some rebutting evidence alone carries the case to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341; Dec. Dig. &wkey; 1S9(1)J
    Appeal from District Court, Galveston County; Robt. G. Street, judge.
    Suit by Robert Triplett Yeaman and others against the Galveston City Company and others. From an adverse judgment, plaintiffs appeal.
    Affirmed.
    Geo. E. Mann, of Galveston, and Ramsey, Black & Ramsey, of Austin, for appellants. Maco Stewart, Barret Gibson, and James B. & Charles J. Stubbs, all of Galveston, and Clarence Milheiser, of Houston, for appellees.
   PLEASANTS, C. J.

This suit was brought by appellants as heirs and devisees of Robert Triplett, deceased, to establish their ownership of five shares of stock in the appellee company, a corporation chartered by an act of the Congress of the republic of Texas passed on February 5, 1841, and to recover the accrued and unpaid dividends on said stock and their interest as such shareholders in the property of the corporation in event of its dissolution,- which had been voted for by the remaining stockholders.

The pleadings of plaintiffs and defendants are very lengthy, and will not be set out in this opinion. This is the second appeal of the case. Upon the trial from which the former appeal was prosecuted the trial judge sustained numerous exceptions to plaintiffs’ petition, and in the opinion of this court rendered on that appeal, which is reported in 173 S. W. 489, there is a full statement of the pleadings. On motion for rehearing this court certified the main questions raised on the former appeal to the Supreme Court, and the opinion of that court in answer to the certified questions (167 S. W. 710) affirmed the judgment of this court reversing and remanding the cause.

The opinions referred to held that the owners of stock certificates issued by trustees appointed by the joint owners of the property, which constituted the capital of the company, before a charter was granted and the corporation organized, became by virtue of such stock ownership stockholders in the corporation, and, being such stockholders, the defenses of laches and stale demand were not available against the assertion of their rights, and that limitation was not available as a defense to a suit by the owners of such stock to establish their rights as stockholders in the corporation in the absence of proof of repudiation by the corporation of the trust relation existing between it and the holders of said trustees’ certificates. These questions, having been settled on the former appeal, will not be discussed in this opinion. The five shares of stock to which plaintiffs seek to establish ownership are numbered 184 to 188, inclusive, out of Book E of the so-called trustees’ stock of the Galveston City Company.

In addition to a general denial and pleas of limitation, the defendants specially pleaded that all of the stock ever owned by Robert Triplett in the Galveston City Company was sold and transferred by him in his lifetime and was redeemed from his assignees by the company in accordance with its by-laws. They further pleaded a compromise and settlement with the executors of the will of Robert Triplett of all claims of his estate to the ownership of stock in defendant corporation.

The cause was tried in the court below without a jury, and resulted in a judgment in favor of defendants. The findings of fact and law filed by the learned trial judge sustain each and all of the defendants’ pleas stated above. The appellants, under an appropriate assignment of error, assail each and all of these findings.

Tile evidence establishes the following facts:

“In 1836 the Congress of the republic of Texas authorized the sale to M. B. Menard and associates of the league and labor of land on the east end of Galveston Island, upon the payment by Menard of $50,000. The associates of Menard were nine persons, and did not include Robert Triplett, Neblett, Gray, or Green. On June 15, 1837, Menard, joined by Triplett, Neblett, and Gray, conveyed said land to Johnson, Jones, and Green as trustees, authorizing said trustees to issue 1,000 shares to be evidenced by certificates, and to sell 600 of same at not less than $1,500 per share, and directing that 400 certificates that had previously been issued by Jones should be regarded as 400 of said 1,000 shares. Any two of the _ trustees were authorized to act. It is provided the land shall be held subject to the orders of the shareholders; any party in interest had the right to purchase shares to be charged up to such interest.
“The trustees had printed and hound in five hooks, lettered A, B, O, D, and E, a large number of blank certificates, there being in each of the books A, B, C, and D 200 certificates signed in blank by Green and Jones, trustees. Book E contained 210 blank certificates signed in blank by Johnson and Green, trustees. The trustees sold only 17 certificates (and these 17 were out of Book E and sold to one Coleman); they failed to sell any others. Failing to sell the certificates, Jones and Menard left Book E at Richmond, Va., in the hands of the_ trustees Johnson and Green, for the Virginia interests, and returned to Galveston, and there divided the other certificates among Menard and his associates.
“On April 13, 1838, there was organized at Galveston an unincorporated association styled the Galveston City Company ; it not now being known or ascertainable who participated in said organization, beyond the fact that M. B. Menard was elected president, and McKinney, Williams, Baker, and Hardin elected directors, and Levi Jones appointed secretary. Minutes of the meeting effecting this organization are preserved and held among the archives of defendant Galveston City Company. The trustees of 1839 conveyed said land to the officers of said unincorporated association styled Galveston City Company. The company laid out said land into town lots, the site of the city of Galveston, and adopted the policy of selling lots for credit, and accepted in payment for lots and for debts the trustee certificates that had been issued by said trustees. The company issued certificates in the name of said company from time to time, accepting trustees’ certificates (issued by the trustees, Jones, Green, and Johnson), in exchange for certificates of stock in the Galveston City Company.
“In December, 1838, the Galveston City Company passed a by-law declaring it the duty of the holders of trustees’ certificates issued by the trustees, Green, Jones, and Johnson, to surrender same and take out in lieu thereof a certificate in the name of the company, stating the number of shares to which the party was entitled.
“On February 5, 1841, the Congress of Texas, incorporated ‘the stockholders of the Galveston City Company’ ‘under the same name and style.’ The corporation thus created continued to operate with the same officers and on the same plan and method that existed prior to incorporation. In 1838, Menard having paid the $50,000, received a grant of land from the republic of Texas, and in 1842 Menard conveyed said land to the corporation.
“Triplett is not shown to have participated in any of the proceedings of the Galveston City Company, unincorporated or incorporated. He lived at Yellowbanks (afterwards Owens-boro), Ky. Green delivered to him 37 trustees’ certificates out of Book E, including certificates Nos. 184. 185, 186, 187, and 188, now in suit. These 37 were an the certificates ever owned by Robert Triplett, except Nos. 189 and 190, hereinafter mentioned. Of these 37 certificates, 12 were transferred by Triplett and by his transferees returned to the company at an early date. Of the remaining 25 certificates Robert Triplett transferred one to William S. Triplett and 24 to John R. Triplett. In 1842 the 24 certificates held by John R. Triplett were destroyed by fire in Richmond, Va., and application was made by said John R. Triplett to the trustees Green and Johnson at Richmond for the issuance of 24 duplicate certificates in lieu of those destroyed. Robert Triplett’s order to the trustees for the issuance of certificates to John R. Triplett is as follows:
“ ‘Owensboro, Jan. 28, 1843.
“ ‘Messrs. W. R. Johnson & Thomas Green:
“ ‘Whereas, I heretofore transferred to John R. Triplett twenty shares of Galveston stock, being shares No. 830 to 850, inclusive, and also one share to William Triplett, No. 851, and three other shares in my own name, held by him, you will please issue in the name of same Jno. R. Triplett twenty-four shares from 830 onward. Robert Triplett.’
“There is a patent ambiguity in this order. Certificates Nos. 830 to 850 would be 21 and the 3 others held by John R. Triplett in the name of Robert Triplett would make the 24 for the issuance of which the order was given; the certificate owned by William Triplett not being included in the order. This was the construction placed upon it by the parties, as only 24 certificates were issued.”

John R. Triplett died before these duplicate certificates were issued, and his executor and his devisee requested said trustee to issue such 24 certificates' to Robert Trip-lett, which was done, a mistake being made in the numbering of the duplicates. But the full number of 24 duplicate certificates being then issued to Robert Triplett. These 24 then represented the entire interest of Robert Triplett. He transferred 21 of said duplicates to A. T. Burnley and transferred 3 of them, being Nos. 50, 51, and 53, to. James Hewitt. The 21 so transferred to Burnley were by the latter presented to and taken up by the company.

In the settlement by the company with Burnley, as assignee of the 21 duplicate certificates issued to Robert Triplett, it was discovered that original certificates 45 and 52, for which duplicates of like numbers had been issued, were not destroyed by fire as claimed by John R. and Robert Triplett, but had been transferred by Robert Triplett and redeemed by the company from his assignees. The duplicates were, however, redeemed by the company, and, it appears from an entry on the books of the company, were charged against unissued certificates Nos. 199 and 200 in said Book. E. When duplicates Nos. 51 and 53 were presented to the company for redemption by the assignee of Robert Trip-lett, it was also found that the originals for which- these duplicates had been issued had not been lost in the fire as claimed by the Tripletts, but had been theretofore transferred by Robert Triplett and redeemed by the company. Upon the refusal of the company to recognize these duplicates Triplett settled with his assignee therefor, and the company issued to Triplett in lieu of said duplicates certificates Nos. 189 and 190. This occurred in 1845. The settlement with Burnley above mentioned occurred on December 25, 1847. In 1846 the Galveston City Company gave notice that the originals of the 24 trustees’ certificates which were lost in the Triplett fire and for which duplicates had been issued would not be recognized by the company after January 1, 1847. But after said date said:

‘‘Duplicate certificates of stock will be received and new certificates [of the corporation] issued to the legal holders thereof and the original [trustees’] certificates barred from any claim upon the company unless in the meantime they shall be presented at the office of the Galveston City Company in Galveston.”

Robert Triplett knew in 1846 that this order and notice of the company had been made and issued. Triplett died a widower in 1853, by will leaving his estate to 'his three children (who were also his heirs at law), and appointing three executors, Wing, Weir, and Pegram, who duly qualified in Kentucky. Wing and Weir in 1860 executed a power of attorney to Pegram, authorizing the latter to make demand and claim on the Galveston City Company of all right, interest, and claim of every character of Robert Triplett in, toj and against said company, and especially any rights under said certificates Nos. 51, 53,' 189, and 190, authorizing Pegram to compromise and settle with said company. Pegram came to Galveston in 1860 and made a settlement and compromise with said company.

The direct evidence as to what was included in this settlement, as might be expected after this lapse of time, in the absence of a written memorandum of the terms of the settlement,- is not definite and certain. Wm. P. Ballinger, James P. Cole, secretary of the company, and C. B. Adams represented the company in effecting the settlement. All of those who made the settlement are long since dead. The only written evidence of the settlement are the indorsements on certificates 189 and 190 and an indorsement on the envelope in which those certificates were found, with other papers, in the files of the company. On the back of each of the certificates there is the following indorsement:

“For three thousand dollars to us paid by O. B. Adams, we hereby assign the within share of stock to the Galveston City Company to the credit of said C. B. Adams.
“Witness our hands and scrawls for seals this 27th of January, 1860. W. B. Pegram, James Weir, S-. M. Wing, Executors of Robert Trip-lett, by W. B. Pegram, Attorney in Fact of Said Weir and Wing. Witnesses: Sydney T. Fontaine. George H. Treat.
“Done in my presence this 27th January, 1860. J. P. Cole, Chief Justice C. C.”

There is written on the back of the envelope the words “Triplett Compromise.” This indorsement on the envelope is in the handwriting of Blr. Ballinger.

Sydney T. Fontaine testified in the case:

That he was present when the settlement was made, and signed as a witness the transfers and indorsements on the certificates above set out, and that to the best of his recollection the settlement “purported to be a settlement of any interest held by Robert Triplett in the Galveston City Company, which papers signed by me as a witness will show for themselves. It was a settlement between the estate of Robert Trip-lett, deceased, and C. B. Adams for the interest of the estate in the Galveston City Company and a considerable sum of money passed. I saw it, but did not count it. The money was paid by Adams or for him to W. B. Pegram, and the settlement seemed complete and satisfactory to all parties present.”

The executor of the estate of Robert Trip-lett, James Weir, presented a final account in the settlement of said estate which was approved by the county court of Daviess county, Ky., in which the administration of the estate was pending, on June 18, 1878. After the settlement in 1860, above mentioned, no claim was made by the executors of Robert Triplett’s will, nor by any of his heirs or dev-isees themselves, to any interest in the Galveston City Company, until shortly before this suit was filed.

It is agreed by the parties in this case that the five identical original trustees’ certificates E-184 to E-188, inclusive, claimed to be owned by appellants, have never been surrendered to or taken up by the company. It is further agreed that James P. Cole, secretary, reported ‡0 the company from time to time the number of outstanding certificates, including original trustees’ certificates and renewal certificates issued by the corporation, and that in all of these reports the trustees’ certificates in controversy are shown to be outstanding. The last report made by him showing these certificates to be outstanding was in 1884. Wm. S. Triplett was the executor of John R. Triplett, and as such signed the request for the issuance to Robert Trip-lett of the 24 duplicate certificates in lieu of the 24 lost in the fire.

There was introduced in evidence a book belonging to the defendant company and known as “Agent’s Report and Stock Register,” in which is entered an account of the 1,000 shares of trustees stock, and on this book the 5 shares in controversy in this suit appear to have been issued to Robert Trip-lett, and do not appear thereon to have been surrendered to the company.

There is evidence showing that at least one trustees’ certificate other than those in controversy has been redeemed, and no record of such redemption is disclosed by the books or the papers now in possession of the company. The books further show that one trustees’ certificate was redeemed twice. The evidence further shows that during the war between the states the books and papers of the company were several times taken to Houston and returned to Galveston.

It would serve no useful purpose and would greatly lengthen this opinion to discuss in detail the various assignments of error presented in appellants’ brief and we shall not so discuss them.'

The trial'court held that duplicate certificates Nos. 45, 51, 52, and 53 were not void because of the fact that the original certificates bearing said numbers and which were supposed to have been destroyed in the Rieh•mond fire were not in fact destroyed, and had been redeemed by the company before the duplicates - were offered for redemption, but that said duplicates were valid and proper evidence of the right of the holder to four shares of the 24 of the stock of the company represented by the 24 certificates which were destroyed, and in lieu of which the 24 duplicates were issued, and that, all of the other 24 certificates lost in said fire having been accounted for, these four erroneously numbered certificates should be held to have been issued in lieu of 4 of the certificates in controversy. The court further held that the certificate sold to William Triplett was the remaining one of the 5 certificates. The evidence shows that of the 37 certificates of stock originally issued to Robert Triplett 12 were redeemed by the company before the fire occurred in which 24 of the original 37 certificates were destroyed. The affidavit and statement of John R. and Robert Triplett that 24 of said 37 certificates were lost in the fire are uncontradicted, and so is the statement of Robert Triplett that he had sold the remaining one of said 37 certificates to Wm. Triplett. The evidence further shows that none of the five certificates in controversy were included in the 12 that were redeemed by the company prior to the fire, nor was the certificate which had been transferred to Wm. Triplett among said number. We think this evidence fully justifies, if it does not compel, the finding that 4 of the 5 certificates were destroyed by the fire, and that the other one was the certificate that had been transferred to Wm. Triplett. There being no evidence to show any ownership or right of appellants to the certificate that was sold by Robert Triplett to Wm. Triplett, the above finding that said certificate was one of the 5 in controversy disposes of appellants’ claim to one of the shares involved in this suit. Appellants very earnestly contend that the trial court erred in holding that the duplicate certificates 45, 51, 52, and 53 were not void and could be held to represent other lost certificates than the originals having the same numbers as said duplicates. This contention is thus stated in their bjdef:

“We contend in the first place, substantially, that a duplicate certificate, like a duplicate check, or any other duplicate for that matter, represents in law and in fact only the original certificate or check or other paper which it purports to represent. We further contend that, when a duplicate certificate or duplicate check is issued as such, marked on its face as a duplicate, and it develops that the original certificate or cheek had been surrendered before the duplicate, that the duplicate becomes and is void, being issued only as a mere substitute for the original supposed to be lost, and when the original turns up the duplicate becomes both in law and in fact and in accordance with the intention of the parties, a nullity. We further contend in the same connection that such a duplicate stock certificate or check cannot then be regarded as valid and as representing an entirely different share or original certificate from the one which the parties designated in issuing it. Whatever may he the general rule as to the rejection of numbers as applied to original certificates of stock, it can have no application to duplicate certificates. If duplicate certificates of stock do not represent the original certificates which they purport to represent, then they represent nothing. They are issued merely as substitutes for the original certificates of the same book and number supposed to be lost or destroyed, and when it develops that the original certificate was not lost or destroyed, but in existence and had been honored, the duplicate certificate containing on its face evidence of its own weakness, becomes a nullity. We acknowledge that there is some force in the reasoning of the trial court as applied to original certificates, though we do not concede it to be correct as thus applied, but it has no application to duplicate certificates. There is no principle of law or rule of business practice that would authorize duplicate certificates definitely numbered and marked and issued as duplicates to be held to represent any other or different shares of stock than the shares evidenced by the original certificates of the same numbers.”

We do not think the general rule as to the essential character and validity of duplicate instruments, invoked by appellants in support-of their contention, can be applied in this case. It goes without saying that a bank, having paid an original check supposed to be lost, cannot thereafter pay a duplicate issued by the drawer and hold the drawer responsible for such payment. But there is no analogy between the payment by a bank of a duplicate check after it had paid the original and the redemption by appellee in this case of the duplicate certificates of stock which had been erroneously numbered. In the case of the duplicate check the drawer cannot be required to make a double payment, and for a like reason the appellee should not be required to redeem original lost certificates after it had redeemed duplicates thereof merely because said duplicates were erroneously numbered. We think this can be illustrated by comparing the certificates of stock to certificates of deposit issued by a bank. Suppose a bank issues two certificates of deposit, Nos. 45 and 52, for $500 each. The original depositor sells No. 45, which the purchaser collects from the bank, and the other, No. 52, is lost in a fire. Upon representation of the depositor that certificate No. 45 was the one destroyed the bank issued a duplicate certificate No. 45 for $500, which the depositor also sells, and upon presentation by the purchaser is paid by the bank. We do not think it would be contended in the case stated that the depositor could recover from the bank the $500 originally represented by the lost certificate No. 52. He through his assignees has received from the bank all that it owed him, and there is no rule of law nor principle of equity that would permit him to recover more because the duplicate was erroneously numbered. So it is in this case. Robert Triplett procured the issuance of 24 duplicate certificates in lieu of the 24 which were destroyed. He sold all of these duplicates, and all of them have been redeemed by the company, and he could not, nor can his heirs, require the company to account for more than 24 shares on the ground that 4 of said duplicate certificates were erroneously numbered. As between the holders of original certificates Nos. 45, 51, 52, and 53 and the holder of the duplicates, of course the duplicates would have been invalid, and if the 5 certificates had not been destroyed and had been sold by Triplett, the duplicates would not affect the rights of the holders of the originals. This is all that is decided in the cases of Keller v. Eureka Brick Co., 43 Mo. App. 84, 11 L. R. A. 472, Benton v. Martin, 40 N. Y. 345, and other cases cited and relied on by appellants to sustain their contention.

The evidence shows that when duplicate certificates Nos. 45 and 52 were redeemed by the company they were charged against unissued certificates E-199 and E-200, which it appears from the evidence Robert Triplett was entitled to have issued to him. This transaction occurred in 1847, six years before the death of Robert Triplett, and we agree with appellants’ counsel that it must be presumed that Robert Triplett knew of this ■ transaction and knew that the company had canceled unissued certificates Nos. 199 and 200. After this lapse of time we think the evidence before set out is sufficient to sustain the finding that there was a settlement between the company and Triplett for qny claim he may have had against it for said unissued certificates. We think it may well be doubted whether in this suit, which is to establish the rights of his heirs in the company by virtue of his ownership of certificates Nos. 184 to 188, inclusive, they could recover the interest that they might have by virtue of his ownership of certificates Nos. 199 and 200, but we do not deem it necessary to decide this question.

In so far as duplicate certificates Nos. 51 and 53 are concerned, the undisputed evidence shows that, when their redemption was refused by the company and they were presumably redeemed or repurchased by Trip-lett from his assignee, Burnley, the company issued to Triplett in lieu of'said duplicates certificates Nos. 189 and 190, which were aft-erwards redeemed by the company from Triplett’s estate, and there can be no question of his having received from the company his interest in these two of the five shares now claimed in the company by plaintiffs. What we have before said in regard to the certificate sold to Wm. Triplett disposes of the remaining interest claimed in this suit.

We think all of the facts and circumstances, considered together, justify the conclusion that Robert Triplett, his assigns and estate, have long since received from the ap-pellee company all interest in said company which Triplett ever owned by virtue of his original ownership of the five shares of stock in controversy, except the one share sold-by him to Wm. Triplett, and the plaintiffs in this suit show no right to recover the interest in the company represented by said share.

We do not regard the various reports made by the secretary of the company prior to 1884 showing nine outstanding trustees’ certificates, including the five involved in this suit, as at all conclusive of the fact that said certificates had not been settled for. We agree with the trial judge that in view of all the evidence this report meant nothing more than that the identical nine certificates had never been returned to the office of the company, and it was not known what had become of them or in whose hands they might be.

In the conclusions of law filed by the trial judge he says:

“It has been urged by plaintiffs’ counsél that the true rule of law, where the plaintiff has made out a prima facie case on indisputable evidence, is that in the absence of the establishment of an affirmative defense a peremptory legal presumption arises in favor of plaintiff. I do not so understand the law. The accepted view, I understand it, in this state and everywhere else, is that, if the defendant offers some rebutting evidence (as in the case at bar of the transfer by plaintiffs’ ancestor of the stock sued for), such evidence alone carries the whole case to the jury. It is thus, for instance, that this court, in the exercise of its exclusive province as a jury, in dealing with the facts of the case, determines the insufficiency of the evidence to establish as a fact the plaintiffs’ ownership of the stock in question.”

We think this is a correct statement of the law, and that the evidence justified the trial court in finding that plaintiffs had failed to establish their ownership of the stock in the company claimed by them, and in rendering judgment for the defendants.

We have considered all of the assignments of error presented in appellants’ brief, and, in our opinion, none of them should be affirmed.

It follows that the judgment of the court below should be affirmed; and it has been so ordered.

Affirmed.
      other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    COLLIN COUNTY SCHOOL TRUSTEES et al. v. STIFF et al.
    (No. 7773.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 11, 1916.
    Rehearing Denied Dec. 16, 1916.)
    1. Action <&wkey;68 — -Dismissal and Nonsuit &wkey;>56 — PARTIES &wkey;>29 — Necessary Parties.
    All parties, plaintiffs and defendants, necessary to the final disposition of the main issue in a suit should be joined therein, and when it appears that such parties have been, omitted, it will require either a dismissal of the suit or a stay of proceedings until such parties can he brought in.
    [Ed. Note — For other eases, see Action, Cent. Dig. §§ 739-743; Dec. Dig. <&wkey;68; Dismissal and Nonsuit, Cent. Dig. §§ 95, 124-128; Dec. Dig. <&wkey;56; Parties, Cent. Dig. §§ 41, 47-49, 51; Dec. Dig. &wkey;29.]
    2. Injunction &wkey;>114(l) — Parties—Part Suing on Behalf of All.
    In a suit to enjoin the redistricting of a county brought by 48 out of 137 districts, being an action to prevent the destruction of the districts which instituted the suit, and incidentally to maintain the status quo of those which are not parties, the remaining districts were not necessary parties, whether they proposed to oppose or support the action.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §, 202; Dec. Dig. <&wkey;>114(l).]
    3. Quo Warranto <&wkey;5 — Schools and School Districts <&wkey;32 — Kedistricting— Restraining.
    A suit by school districts and taxpayers against the county school trustees to enjoin a redistricting of the county could be maintained as an ordinary suit between the parties, and need not be by a proceeding by quo warranto under the statute to review the acts of the county school trustees.
    [Ed. Note. — For other cases, see Quo Warran-to, Cent. Dig. § 6; Dec. Dig. &wkey;>5; Schools and School Districts, Cent. Dig. §§ 52-54; uec. Dig. <&wkey;32J
    4. Schools and School Districts <&wkey;32— Redistricting— Complaint — Sufficiency.
    In a suit to enjoin the redistricting of a county, a petition, alleging that a county containing 137 districts, each with a sufficient and accessible school, will be divided by defendants into 78 districts without notice to trustee of existing districts, causing children to walk from 2y2 to in many eases between 5 and 7 miles to school across impassable country, resulting in a practical denial of school privileges, and that such proposed acts are a gross abuse of authority and a fraud upon rights of plaintiffs, was sufficient basis upon which to grant the relief sought.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 52-54; Dec. Dig. &wkey;32.}
    6. Schools and School Districts <&wkey;39— Redistricting — Appeal to District Court.
    Acts 34th Leg. c. 36, section 4a giving the district court general supervisory control over the action of the county board of school trustees in creating, changing, and modifying school districts, is not controlled by section 10 of the act (Yernon’s Sayles’ Ann. Civ. St. 1914, arts. 4509-4510), providing for appeals from the actions of the trustees, etc., to the state superintendent and thence to the state board of education, but appeals from the action of the school trustees may be made to the district court, since the appeal provided by section 10 has reference to purely administrative and ministerial acts.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 68, 69; D.ee. Dig. <&wkey;39.]
    6. Schools and School Districts &wkey;32— Redistrictinq — Temporary Injunction.
    In a suit to enjoin the redistricting of a county by county school trustees, evidence held to sustain a judgment granting an injunction pendente lite. '
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 52-54; Dec. Dig. <&wkey;>32.]
    7. Appeal and Error <&wkey;1010(l) — Review-Judgment.
    Where the evidence is sufficient to support a judgment of the trial court, the appellate court is without authority to disturb the judgment, as it would in like manner be without authority to disturb the verdict of a jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3981; Dec. Dig. &wkey;> 1010(1).]
    8. Appeal and Error <&wkey;253 — Verification of Complaint — Sufficiency.
    The fact that petition for injunction was not properly verified as required by Yernon’s Sayles’ Ann. Civ. St. 1914, art. 4649, should be raised in the trial court by exception, and failure to except is waiver of the sufficiency of the affidavit.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1485, 1488, 1491-1493; Dec. Dig. <S=o253.]
    9. Injunction <&wkey;122 — Verification of Complaint — Statute.
    Under Yernon’s Sayles’ Ann. Civ. St. 1914, art. 4649, providing that an injunction shall not be granted unless the applicant shall verify his petition by affidavit in an action by school districts of a county to enjoin redistricting, it being necessary that verifications in injunction proceedings be definite and positive enough to support an indictment for perjury if untrue, the affidavit may be made by any one of the joint applicants cognizant of the facts.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 262-268; Dec. Dig. <&wkey;>122.]
    Appeal from District Court, Collin County; M. H. Garnett, Judge.
    Information by J. H. Stiff and others against the Collin County School Trustees and others, to enjoin a redistricting of school districts in Collin county. From judgment enjoining action by respondents pendente lite, they appeal.
    Affirmed.
    G. R. Smith, of McKinney, for appellants. R. C. Merritt and W. R. Abernathy, both of McKinney, for appellees.
   RASBURY, J.

This is a proceeding by the county attorney of Collin county in behalf of the state on information by and at the instigation of the trustees of 48 common school districts in Collin county and of certain taxpayers and patrons of the schools in said districts, to enjoin the county school trustees from concluding a proposed and threatened redistricting of such school districts by disestablishing, consolidating, and rearranging the existing districts. Upon hearing in chambers the trial judge enjoined the respondents as prayed pendente lite. From such action this appeal is perfected.

Any necessary statement of the pleadings or of the facts dedueible from the evidence will be appended to our discussion of the several assignments of error.

Appellants’ first assignment is that the court erred in not sustaining their general demurrer to appellees’ petition. The first proposition thereunder is that the petition omits necessary parties. This proposition is bottomed upon the fact, appearing from the petition, that only 48 of the 137 districts joined in the suit. The contention is that all were necessary parties. It is, as contended, the well-settled rule that all parties, plaintiffs or defendants, necessary to the final disposition of the njain issue in a suit should be joined therein. When it appears that such parties have been omitted, it “will require either a dismissal of the suit or a stay of proceedings until such party can be brought in.” Townes’ Texas Pleading, 288. The inquiry then is, Were the other common school districts necessary parties to this proceeding? Appellants maintain they were under authority of Minear et al. v. McVea et al., 185 S. W. 1048. We are persuaded, however, that that case is without application in this proceeding. The purpose sought in the case cited was to enjoin the collection of certain taxes. Those taxes were levied in order to create a sinking and interest fund, as well as to supplement the state school fund to defray the expense of a school for a common school district created prior to the levy of the tax and the commencement of the suit. The ground upon which the collection of the tax was sought to be enjoined was that the common school district had not been created and established in the manner provided by law. The suit was against the county judge and the county commissioners, who at that time were clothed with authority to create common school districts, while now that authority rests with the county school trustees. General Laws, 34 Leg. c. 36. It was held that since the purpose was the destruction of the common school district and since it was a body corporate, the trustees were necessary parties. The .purpose of the present case is not to destroy the common school districts not parties to the suit, but to prevent the destruction of those districts which instituted the suit, and incidentally to maintain the status quo of those which-were not parties. Had the other districts been parties they could only have done that which appellees sought to do. In that case they are protected fully by the action of the district judge. If, on the other hand, they desired to support the proposed action of the county school trustees, they “were not necessary parties, since those districts which opposed the proposed change would nevertheless be entitled to maintain the suit under the allegations of their petition.

It is next urged that the general demurrer should have been sustained for the reason that the legality of the acts of the county school trustees as such could only be reviewed in a proceeding by quo warranto by the state of some one by its authority upon information, which, it is claimed, was not done in this suit. In support of the foregoing it is asserted that petition for leave to file information in the nature of quo warranto was not filed by the county attorney, and hence such permission has not been granted, nor the information ordered filed. The record supports the claim. The suit as we have stated purports to be by the county attorney on the relation of the district trustees, taxpayers, and patrons of the schools complaining, and is an ordinary proceeding by petition to restrain certain proposed and threatened acts, and is signed by counsel, but not by the county attorney, and filed by the clerk as in ordinary cases. Hence it cannot be said that the necessary steps to constitute the proceeding one technically by quo war-ranto have been observed. Without determining the issue here raised, but proceeding on the assumption that the proceeding is not technically in compliance with the statute, we nevertheless conclude that it will not result in an abatement of the suit, but that the same can be maintained as an ordinary suit between the interested parties. It has been held that an office may be recovered from a usúrper by the party entitled to it in an ordinary suit and without proceeding by an information in the nature of a quo warranto. McAllen v. Rhodes, 65 Tex. 348. In that case it was said that quo warranto was a proper proceeding to recover office, but that it had never—

“been held that this is the only remedy that may be pursued, nor does the statute contemplate that it should be. The sixth section declares that the remedy and mode of procedure therein prescribed shall be cumulative .of any then existing. If, therefore, there was, previous to the passage of the act, any method of recovering an office withheld from the true owner by an intruder, that method may be still pursued, notwithstanding the act provides the remedy by quo warranto.”

Incidentally our present quo warranto statute is the one the court was then construing. The court then proceeds obviously to hold that there were remedies prior to the act, one of which was an ordinary suit between the parties. From such holding it is clear, and we hold, that even though the present proceeding was in neither form nor substance a proceeding by quo warranto under the statute, it is nevertheless sufficient as an ordinary suit between the parties, and may be maintained as such. For if a suit to determine the right to an office may be determined between the parties by an ordinary suit, there is as much or more reason why this one may be, when it is considered that the interest of the state in the instant proceeding is certainly no greater than in one to recover an office, and that the state is as much a nominal party here as it is in the former, and is but little interested in either.

It is next urged, in substance, that the general demurrer should have been sustained because the facts alleged in the petition were .insufficient upon which to base the relief sought. Omitting formalities, the petition alleges, in substance, that Collin is a large county, approximately 30 miles square, and divided into 137 school districts, each with a school sufficient to accommodate all its patrons, and easily accessible to all; that the defendants are preparing to, and will, unless enjoined, disestablish, the existing districts, and by annexation and consolidation include them into 78 districts, appropriating the money of 'the existing districts for tbe benefit of the proposed new districts, all of which is being done without calling a meeting of the trustees of the existing districts, and without tbeir knowledge or consent; that the result of the proposed action will, in most eases, cause the children to travel more than 2y2 miles to reach the schools in the proposed new districts, and in many cases 5 to 7 miles, and to cross impassable swamps, streams, and bad roads, resulting in a practical denial' of school privileges to the children in the appellees’ districts; that such proposed acts are a gross abuse of the authority of the county school trustees and a fraud upon the rights of appellees, the patrons of the schools, and the taxpayers in the existing districts. Do the foregoing allegations of fact, if true, furnish a sufficient basis upon which to grant the relief sought? We conclude they do. In Minear’s Case, supra, it was said:

“When the commissioners’ court flagrantly abuses its discretion, with the result that districts which are not convenient to the scholastic population are created,” a redistricting may be compelled.

If redistricting may be compelled on such facts, it may, of course, be in like manner prevented as is sought to be done in this case. In Jennings v. Carson, 184 S. W. 562, it was by analogy held that the relief here sought should have been granted upon a showing that the school children had to travel a distance of 7 miles, and when the streams were swollen were unable to attend at all. Under the foregoing authorities, we conclude that the allegations of the petition were sufficient.

It is further urged that the general demurrer should have been sustained for the reason that the allegations of the petition fail to disclose that appellees had pursued the remedy provided by law in such cases. The issue thus presented is bottomed upon the provision of article 4510, Vernon’s Sayles’ Stats., conferring upon the superintendent of public instruction authority to hear and determine all appeals from rulings of subordinate school officers, and upon article 4509, Vernon’s Sayles’ Stats., permitting an appeal from the ruling of the superintendent of public instruction to the state board of education. This proposition has been recently decided adversely to the appellants in two cases. Jennings v. Carson, 184 S. W. 563; Clark v. Hallam, 187 S. W. 964. Those cases construe the recent act of the Legislature, cited supra, which amended, to some extent, the existing law, and hold in reference to the issue we are discussing, that the amended act (section 4a), which confers general supervisory control upon the district court over the acts of the county school trustees in “creating, changing and modifying school districts,” is not controlled by section 10 of the same act, which provides for appeals from the actions of the trustees, etc., to the state superintendent, and thence to state board of education, but that appeals from the action of the county school trustees may be made to the district court, the appeal provided by section 10 having reference purely to administrative and ministerial acts sought to be reviewed. We can add nothing to what has been said in those cases, and adopt the ruling there announced as our conclusions in this case.

By the second assignment of error it is contended that appellees’ sworn petition, when considered in connection with appellants’ sworn answer, fails to show sufficient basis for granting the relief the judge did grant, which is but to say that the evidence is insufficient to support the judgment. At another place in this opinion we have stated the substance of the facts alleged by appellees. The evidence adduced at trial fairly supports such allegations, and as a consequence sustains the judgment. In such cases we are without authority to disturb the judgment of the court, as we would in like manner be without authority to disturb the verdict of a jury.

By the fourth assignment it is urged that the petition was not properly sworn to. In such connection, article 4649, Vernon’s Sayles’ Stats., provides, in substance, that injunction shall not be granted unless the applicant shall verify his petition by affidavit taken before some officer authorized to administer oaths. The contention is that in compliance with the statute each of the joint applicants should have verified the application by his individual affidavit. The record does disclose that only one of the applicants did so. While we think that the issue here presented should have been raised in the trial court by exception (Thouvenin v. Helzle, 3 Tex. 57), which was not done, and that the failure to except is a waiver of the sufficiency of the affidavit, we also conclude, assuming the issue to be properly presented, that the contention is without merit. The construction sought to be placed upon the statute is too literal. By the current of opinion it is said of verifications in injunction proceedings that they should be so definite and positive as to support an indictment for perjury if untrue. The purpose of the affidavit is revealed by the rule stated, which is, that under the penalties of such an affidavit the court may assume that the facts alleged, and upon which the extraordinary writ is sought, are probably true. It is the character of the affidavit to be made rather than the number who shall subscribe to it, that is contemplated by the statute. We think any one cognizant of the facts could make the affidavit. So do we think that any one of several joint applicants could, on behalf of the others, make the affidavit Such a conclusion is, in our opinion, more in consonance with the purpose of the affidavit and the practical and convenient presentation of such applications.

In view of what we have said, and because the action of the district judge is supported by the pleading and evidence, it becomes our duty to affirm the judgment.

Affirmed.
      <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered'Digests and Indexes

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


author: WILLSON, C. J.

text:
    WINFIELD STATE BANK v. FIRST NAT. BANK OF WINFIELD.
    (No. 1671.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 24, 1916.
    Rehearing Denied Dec. 7, 1916.)
    GARNISHMENT <&wkey;56 — DEPOSITS IN BANK.
    Defendant, a mule buyer, having only a small balance in bank, arranged to buy mules for his principal, giving his own checks in payment. Such checks were to be taken up by his principal, and the latter drew a check in defendant’s favor sufficient to cover all checks drawn by him. Such check was deposited, but before all of the checks drawn by defendant had been paid his account was garnisheed, whereupon the bank demanded and received a note, signed by the buyer and his father, before honoring defendant’s checks. HelH, that the proceeds of the principal’s check deposited to the account of defendant were subject to garnishment; the bank not having paid defendants’ checks out of such proceeds, but out of proceeds of the loan made to him, and the transaction creating the relation of creditor and debtor between defendant and his principal.
    [Ed. Note.- — For other cases, see Garnishment, Cent. Dig. §§ 110, 111; Dee. Dig. &wkey;56.]
    Appeal from District Court, Titus County; J. A. Ward, Judge.
    Action by the Winfield State Bank against J. R. Fuquay, in which the First National Bank of Winfield was summoned as garnishee. From a judgment principally in favor of the garnishee, plaintiff appeals.
    Reformed.
    Having a judgment against J. R. Fuquay, on which there was a balance of $990.52 unpaid, appellant, on November 19, 1915, sued out a writ of garnishment against appellee. The latter answered that it was not indebted to Fuquay, and did not have in its possession effects belonging to him. The answer having been controverted by appellant, facts as follows were shown by testimony heard at the trial: One Cook had employed Fuquay to buy mules on his (Cook’s) account, and had agreed to pay Fuquay $5 for each mule he purchased. Fuquay bought a number of mules, paying for same with checks drawn by him on appellee, with whom he had a checking account. At the times the mules were purchased Cook and Fuquay were together, it seems, and the animals were paid for with checks drawn by the latter, instead of by the former, because the latter was known to the sellers, and the former was not, and checks drawn by him, therefore, would not have been as readily accepted by them in payment for the mules. The balance ($1.88) in Fuquay’s favor on his account with appellee at the time he drew the checks was not sufficient to cover same, but it was understood between Fuquay and Cook that the latter would give the former a check drawn by the latter on a Ft. Worth bank in favor of the former for a sum equal to the amount of the checks given by him in payment for the mules, and that Fuquay would have the check to be given to him by Cook cashed and the proceeds credited on his (Fu-quay’s) account with appellee, and in that way provide a fund with which to pay the cheeks he had given to persons of whom he had purchased mules. In conformity to this understanding Cook, on November 16, 1915, gave Fuquay a check for $1,615, and the latter had appellee to cash it and credit his account with the proceeds. Fuquay, at the time he had appellee to cash the check, advised it that he had drawn checks against it for the amount thereof. At the time the writ was served on appellee, checks drawn by Fuquay to pay for mules, amounting to $665, had not been presented to appellee by the holders thereof, and therefore had not been paid. Hence there waa then a balance amounting to $665 of the proceeds of the Cook check to Fuquay’s credit with appel-lee, which, with $1.88 he had with it when it cashed the check, made a total of $666.88 then to Fuquay’s credit with appellee. After the writ was served on it, appellee had Fu-quay and his father to make a note in its favor for $665, the amount of the checks drawn by Fuquay and unpaid when the writ was served. Thereupon appellee gave Fu-quay credit on its books, but not upon the account it then had with him, for the amount of the note, and as it paid said checks charged same against the credit in Fuquay’s favor so created. With reference to this note, appellee’s cashier, Barrett, testified that the balance with it to Fuquay’s credit when the writ was served on it was $666.88, and that “since we have been garnished herein J. R. Fuquay has not used any of said money.” He further testified:
    “Before I would pay those checks I had Fuquay and his father to make a note, which I used in the same sense as a replevy bond. It was to protect the bank’s interest in the matter. I don’t remember the date of that note. I don’t think it was dated prior to the time I paid those checks. I am not sure about that. I could not give the date of the note; I don’t remember. I should think the note was dated prior to the payment of the checks. A. J. and J. R. Fu-quay signed that note. A. J. Fuquay is the father of J. R. Fuquay. I am not sure which is the principal. The note was made to cover the amount of those checks. I think it is a demand note. * * * He made a note for $665 and his father went on it — a regular banking note — and placed it in the bank as an asset, and it now goes in as a loan and discount as offset to the deposit. We count it as an asset; it is included in the loans and discounts, like other notes. I gave him credit for it, but did not discount it. I gave him credit for the face of the note. Immediately after that I paid those checks. * * * At the time of the garnishment J. R. Fuquay came in the bank and found he had this many checks unpaid. Instead of making a regular replevy bond, he and his father made a note, which created a credit or balance which took care of those outstanding checks. * * * I am of the opinion there is an A. J. Fuquay account, and the note and these checks may be charged to his account. I am not sure about that.”
    J. R. Fuquay testified that he made the note “to keep the checks from being turned down that were out when the account was garnished. The note was put up as collateral to secure the bank.”
    Cook intervened in the suit claiming the proceeds still with appellee of the check given by him to J. R. Fuquay to be his property, on the theory that he had advanced same to said Fuquay to use in paying for the mules. But, testifying as a witness, he said:
    “I have no money that I know of in the First National Bank of Winfield now.” '
    The trial was before the court without a jury. He was of the opinion that only $1.88 of the $666.88 held by appellee on J. R. Fu-quay’s account was subject to the writ, and rendered judgment accordingly, and in favor of appellee for $15 as an attorney’s fee for preparing its answer to the writ. The judgment was, further, that Cook take nothing by his intervention. The appeal was prosecuted by appellant.
    J. M. Burford, of Mt. Pleasant, for appellant. T. C. Hutchings, of Mt. Pleasant, for appellee.
   WILLSON, C. J.

(after stating the facts as above). We are of opinion it appeared as a matter of law that appellee was indebted to Fuquay in the sum of $666.88, and that the trial court erred when, instead of rendering judgment in appellant’s favor for that amount, he rendered judgment in its favor for the sum of only $1.88. It is not necessary to inquire whether under the circumstances of the case appellant might, after the service of the writ on it, lawfully have paid the checks Fuquay had drawn on it out of the proceeds of’ the Cook check, then to his credit with it, or not (House v. Kountze, 17 Tex. Civ. App. 402, 43 S. W. 561; Neely v. Bank, 25 Tex. Civ. App. 513, 61 S. W. 559; Bank v. Moline Plow Co., 168 S. W. 420; Bank v. Davis, 149 S. W. 290; McBride v. American Ry. & Lighting Co., 60 Tex. Civ. App. 226, 127 S. W. 229; Elliott v. Bank, 135 S. W. 159); for, as is shown by testimony referred to in the statement above, it conclusively appeared it did not pay same out of those proceeds, but, instead, paid them with money it loaned to Fuquay on the note made by him and his father to it. Appellee’s contention that $665 of the $666.88 to Fuquay’s credit with it at the time the writ was served belonged to Cook, and not to Fuquay, is believed to be unsound. When Fuquay, at Cook’s request, gave his own checks in payment for the mules, he became liable to the respective holders thereof, and Cook became liable to him for the amounts thereof. When Cook gave Fuquay the check on Ft. Worth for $1,615, he paid a debt he owed to Fuquay, and the proceeds of the check belonged to him, and not to Cook.

Appellee’s eounterassignment, attacking the sufficiency of the writ of garnishment to require it to answer, is believed to be without merit, and therefore is overruled.

The judgment will be so reformed as to adjudge a recovery by appellant against ap-pellee of $666.88, instead of $1.88, and, as so reformed, will be affirmed.
      <S=»Ko'r other oases see same topic and KHY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    STEWART v. BRIGGS.
    (No. 1692.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 7, 1916.)
    1. Usury <&wkey;20 — Payment—Property. Usury may be paid in property.
    [Ed. Note. — For other cases, see Usury, Cent. Dig. § 39; Dec. Dig. &wkey;>20.]
    2. Usury <&wkey;>20 — Payment — Usurious Interest.
    Rev. St. art. 4982, provides that if usurious interest shall be received, the person paying the same may recover double the amount from the person receiving the same. Plaintiff executed two interest notes, which called for interest in an amount that was usurious, and after paying the first in money defendant accepted a bale of cotton in payment of the second. Held that, while property may be received in the payment of usury, the momentary value of the property will determine whether usury was received, and despite presumptions as to its value no usury was collected where the value of the bale of cotton was less than" the amount of the note and did not exceed the lawful amount of interest that could have been charged.
    TEd. Note. — For other cases, see Usury, Cent. Dig. § 39; Dec. Dig. <&wkey;>20.]
    3. Appeal and Error <&wkey;1149 — Review — Reformation of Judgment.
    Where an erroneous, judgment was rendered, and the error plainly appears from the record, the appellate court may reform the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4483-4496; Dec. Dig. <&wkey; 1149.] '
    Error from Bowie County Court; Lee - Tidwell, Judge.
    Action by G. G. Briggs against J. G. Stewart. Judgment for plaintiff, and defendant brings error.
    Reformed.
    J. B. Manning, of New Boston, for plaintiff in error. Geo. W. Johnson, of New Boston, for defendant in error.
   HODGES, J.

Defendant in error sued the plaintiff in error to recover the sum of $220 alleged to be double the amount of usurious interest which had been theretofore paid by him to the plaintiff in error. The evidence shows that in February, 1913, plaintiff in error held two notes for $250 each, executed by the defendant in error, payable on December 1, 1913, and 1914, respectively. These notes were to bear interest at the rate of 11 per cent, per annum. To better secure tbe interest payments, two other notes for $55 each were executed by the defendant in error and delivered to the plaintiff in error. The first of these interest notes was1 paid in full at or near maturity; the other was satisfied in the fall of 1914 by the delivery of a bale of cotton to the plaintiff in error. At the time this cotton was delivered its market value did not exceed 8 cents per pound, and the cash market value of the entire bale was less than $50. The plaintiff in error testified, in substance,. that on account of poor crops and the scarcity of money he agreed with the defendant in error to accept a bale of cotton in settlement of that debt. He further testified that some time later a bale of cotton weighing 501 pounds was delivered to him by the defendant in error in pursuance of that agreement. At that time that grade of cotton was worth only 7% cents per pound in the market, and this was well understood by all parties. Defendant in error admitted that the market value of the cotton did not exceed 8 cents per pound at the time the bale was1 delivered, but claimed that it weighed 555 pounds. He further testified, however, that he could have obtained a credit of 10 cents per pound from his creditors with whom he had traded during the current year, and could also have obtained 10 cents per pound in cash from people who were then buying a bale of cotton each for the purpose of stimulating the market. This testimony regarding what the defendant in error might have received from his creditors and from some persons buying cotton for the purpose of boosting the market was admitted over the objection of the plaintiff in error. During the course of the argument the attorney for defendant in error used the following language in his address to the jury:

“Gentlemen of the jury, you need not take into consideration the cash market price of this bale of cotton at the time it was turned over to the defendant at Hooks, Tex., December 1, 1914. But you can consider, and ought to consider, what plaintiff could have got for his cotton on the debt he owed to Rachel Bros., or on any other debt he owed; and you can and ought to consider, furthermore, that cotton was not bringing what it was worth at that time; and you can consider the intrinsic value of cotton then and there at that time.”

Counsel for plaintiff in error objected to these remarks, and asked that the jury be instructed to disregard them. The court overruled the objection, and stated in the presence and hearing of the jury:

“That he did not by his charge intend to confine the jury to the cash market value of the bale of cotton turned over to the defendant by the plaintiff, but the jury could consider anything else on that line — that they could consider what plaintiff could have got for his cotton on his debts.”

All of this was excepted to. Upon the merits of the case the court submitted to the jury only two issues of fact — one as to the payment of the first interest note, and the other as to the payment of the second interest note. The jury found that in each instance the defendant in error paid the amount of $55. A judgment was thereupon rendered in favor of the defendant in error for the sum of $220, which was double the amount of the two interest notes.

It is conceded that both of these interest notes were usurious. It must also be treated as conclusively shown that the first of these was paid in full. The only question presented on this appeal is, Was usurious interest collected on the second note in the settlement shown by the evidence? Counsel for defendant in error insist that usury may be paid in property. It may be admitted as a proposition of law that that contention is correct; in fact, that has been so held by one of the Courts of Civil Appeals in this state. Taylor v. Sturgis, 29 Tex. Civ. App. 270, 68 S. W. 538. They also insist that when the debt represents usury and property is accepted in payment the acceptance carries with it the presumption, that the property is the equivalent of the debt. Article 4982 of the Revised Civil Statxites provides:

“If usurious interest, as defined by the preceding articles, shall hereafter be received or collected upon any contract, either written or verbal, the person or persons paying same, or their legal representatives, may, by action of debt, institute in any court of this state having jurisdiction thereof, in the county of the defendant’s residence, or in the county where such usurious interest shall have been received or collected, or where said contract has been entered into, or where parties paying same reside when such contract was made, within two years after such payment, recover from the person, firm or corporation receiving the same double the amount of such usurious interest so received and collected.”

It will be observed that this statute authorizes the recovery of double the amount of the usurious interest “received” or “collected” by the creditor. Where interest is paid in a medium other than money, the only way to ascertain whether or not the payment exceeds the conventional rate allowed by law is to reduce the medium of payment to its equivalent in dollars and cents. If the value of the medium when tested in that manner is more than 10 per cent, per annum on the debt upon which the interest is paid, it amounts to the collection of unlawful interest. The evidence in this case conclusively shows that the market value of the cotton accepted in payment of the last installment of interest was less than $50, and that if only its equivalent in money had been paid no usurious interest would then have been collected. It is immaterial what special value the bale of cotton may have been to the defendant in error. The lawfulness of the transaction is to be tested, not by what the debtor parts with, but by what the creditor “collects” or “receives.” In this instance the creditor received just what the commodity delivered was worth in the market. No other criterion of value can be safely adopted. This statute was enacted to prevent oppression in the way of exorbitant interest charges, and should be limited to those transactions it was designed to reach. There certainly can be no oppression in an instance like this, where a creditor compromises with his debt- or and accepts as payment a sum less than he had a right to demand. If this note had been paid in a sum of money less than what the note called for and which did not exceed the lawful date of interest on the original debt, that fact might have been shown as a partial defense to this suit. We can see no good reason why the same defense is not available when payment is made in cotton.

W;e think the errors complained of led to the rendition of an improper judgment; and inasmuch as there was substantial conflict in the testimony, we think the judgment may be modified and affirmed in this court. Judgment will therefore be here entered reforming the judgment of the trial court so as to limit the recovery to $110, double the amount of the first interest note. The costs of this appeal will be taxed against the defendant in error.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    CAFFARELLI BROS. v. BELL.
    (No. 5721.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 22, 1916.
    Rehearing Denied Dec. 20, 1916.)
    1. Pleading &wkey;>236(6) — Amendment-Petition — Discbetion of Coubt.
    Permission to plaintiff to interline in the petition the words “fifty” and “ten” in the blank space left for the amount of special damages for medical attention and drugs was within the discretion of the trial court.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §'601; Dec. Dig. &wkey;236(6).]
    2. Pleading &wkey;?176 — Supplemental Petition — Subject-Matteb.
    Under Rev. Civ. St. art. 1829, as amended by Acts 33d Leg. c. 127 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1829), providing that any defensive fact pleaded by a defendant shall be taken as confessed by the plaintiff if not denied, where the answer alleged contributory negligence, a supplemental petition, denying such allegation, was a proper pleading, though it contained a substantial repetition of the allegations as to the nature of the injuries, as to which no special exception was taken.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 343, 345-353; Dec. Dig. <&wkey;>176.]
    3. Teial <&wkey;41(3) — Reception of Evidence-Exclusion of Witnesses — Discbetion of Coubt.
    Where, after a minor for whose benefit suit was prosecuted by his next friend had finished his direct and cross-examination and was undergoing redirect examination, defendants invoked the rule for the exclusion of witnesses, the refusal to exclude the next friend was not an abuse of the discretion, in the absence of anything tending to show that the defendants were prejudiced.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 103; Dec. Dig. &wkey;41(3).]
    4. Teial <&wkey;85— Reception of Evidence — Objections.
    Admission of testimony of physician that plaintiff was very nervous, restless, and could not sleep at nights, over the objection that it was hearsay, was not error, the only portion that was hearsay being the reference to sleeping at nights.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222, 223-225; Dec. Dig. &wkey;85.]
    5. Appeal and Ebbob <&wkey;6’92(l) — Record— Question Pleaded fob Review — Admissibility of Evidence.
    Where a bill of exception does not show what answer was expected to a question, complaint as to the exclusion of the testimony cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 2905, 2906; Dec. Dig. <&wkey; 692 (l).]
    6. Teial c&wkey;62(2) — Reception of Evidence— Obdeb of Peoof.
    Where plaintiff introduced the testimony of physicians as to the nature and extent of his injuries, and defendants attempted to refute this testimony by the testimony of another physician, the introduction by plaintiff of further testimony by physicians on rebuttal as to the nature and evidence of his injuries was proper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 149; Dec. Dig. &wkey;62(2).]
    7. Appeal and Ebbob &wkey;>213 — Objections— Submission of Issue.
    Where the court, without objection from defendants either in the form of exception to the charge on a request for a peremptory instruction, submitted the issue of contributory negligence, this was an admission by defendants that the evidence justified such submission, and they cannot complain on appeal that there was no evidence to sustain the finding of the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1149, 1165, 1304-1308: Dec. Dig. &wkey;2l3.]
    8. Appeal and Ebbob <&wkey;301 — Review—Es-toppel to Allege Ebbob.
    Under rule 25, Rules for the Courts of Civil Appeals (142 S. W. xii) requiring the specification of error to refer to that portion of the motion for a new trial in which the error is complained of, an assignment cannot be considered which is not found in the motion for a new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. <i&wkey;301.]
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by Arthur Bell, a minor, by his next friend, Jose Penaloza, against Caffarelli Bros. From a judgment for plaintiff', defendant appeals.
    Affirmed.
    C. A. Keller and W. S. Anthony, both of San Antonio, for appellant. R. G. Cater, of San Antonio, for appellee.
   SWEARINGEN, J.

Appellee, Arthur Bell, a minor, having neither parent living and no guardian, by his next friend, Jose Penaloza, sued R. C. and F. P. Caffarelli, doing business as a partnership under the name 'of Caffarelli Bros., to recover damages on account of personal injuries alleged to have been sustained by the minor. The cause was tried with a jury upon the verdict of which the court rendered judgment for the appel-lee against appellants for $1,000. Appellants’ amended motion for new trial was overruled by the court.

Appellee made substantially the following allegations:

“That plaintiff was riding upon a bicycle on the right side of West Commerce street, that is on the north side of said street going west, and that defendants’ said servant was driving said wagon along and upon the same side of said street, and going in the same direction as plaintiff was going; that defendants’ said servant was driving said wagon in pursuance of instructions of his said employers, R. O. Caf-farelli and E. P. Caffarelli, and in the usual course of his employment; that said defendants’ said servant was driving said wagon in a negligent and careless manner and at a negligent and high rate of speed, and that defendants’ said servant saw this plaintiff, or by the exercise of ordinary care should and would have seen him; and that defendants’ said servant drove said team and wagon upon and over plaintiff without warning, and with a reckless disregard of the safety and the life of this plaintiff.”
“Plaintiff alleges that by reason of the negligence of defendants and their said servants, as above set forth, he was severely and permanently injured, internally, and in the left side and lower region of the abdomen, and in his back and spine, and in his heart and nervous system; that as a result of his said injuries he has suffered mental anguish and severe physical pain, and that he will continue to suffer mental anguish and physical pain the ■balance of his life.
“Plaintiff says that his said injuries are the result of the negligence and carelessness of defendants and their said servant, as above stated, and that his said injuries are not due to any fault or negligence of this plaintiff.”

Appellants answered substantially as follows:

“Appellants by their first amended original answer filed February 9, 1915, excepted generally to the sufficiency of the petition, and by special exceptions denied the sufficiency of the same, and denied categorically the allegations contained in paragraphs 1, 2, 4, 5, 6, 7, 9, 10, admit that plaintiff is a boy, but deny that his injuries, if any, were permanent, or that plaintiff’s earning capacity had been seriously impaired, but alleged that plaintiff was in as good physical condition at the time of filing said first amended original answer as he was at the time of said alleged injury, and that he was at said time capable of earning as much money as at any time in his life; and defendants, further answering, say that if plaintiff was injured by any act or acts of any servant employed by them that said servant was acting beyond the reasonable scope of his authority and employment for which they were not liable. Defendants, further answering, denied that plaintiff had been damaged in any sum or amount for loss of wages as alleged in paragraph 9 of said first amended original petition; and defendants, further answering, denied that plaintiff had been damaged in any sum or amount as alleged in paragraph 10 thereof. Defendants, further answering, pleaded that plaintiff was guilty of contributory negligence at and before his injury, which was the direct and proximate cause of plaintiff’s injury.”.

to the answer of appellants, appellee filed “Plaintiff’s First Supplemental Petition,” in which was alleged, substantially, the following:

“That by reason of the negligence and carelessness of defendants and their said servant, as set out in plaintiff’s first amended original petition, he was severely and permanently injured, internally, in his heart, in his kidneys and bowels, and in the left side and lower region of the abdomen, and in his back and spine; that his back was twisted, wrenched, and sprained, injuring his spinal cord and nervous system; that his heart and nerves, his kidneys and bowels, do not perform their functions properly as a result of said injuries, and that his said injuries incapacitate plaintiff from doing any kind of hard work or manual labor; that as a result of his said injuries plaintiff has suffered severe physical pain and mental anguish; and that he will, as a result of his said injuries, continue to suffer mental anguish and physical pain the balance of his life; and, further replying to paragraph 8 of defendants’ first amended original answer, alleged that plaintiff was injured by the negligence and carelessness of defendants’ said servant, and denied that he was guilty of negligence which caused his injuries, and again prayed for judgment for his damages, and for relief, special and general, as prayed for in his first amended original petition.”

Appellants, by their first assignment, complain that the court erred in permitting appellee to interline in appellee’s original petition the words' “fifty” and “ten” in the blank space left for the amount of special damages "for medical attention and drugs, respectively. This permission was within the discretion of the trial court and was, of course, the proper thing to do. “It was, we think, of the class of mere clerical error which we have heretofore, held as amendable at any time.” Austin & Clapp v. Jordan, 5 Tex. 130; Burdett v. Marshall, 3 Tex. 24; Gardner v. Alexander (Ky.) 181 S. W. 180; The first assignment is overruled.

The second assignment says that it was error to permit appellee’s supplemental petition to be read to the jury, and the reason given as to why such was error is that the supplemental petition contained allegations that should have been embraced in an amended pleading, and was not pertinent to a supplemental petition. This supplemental petition was filed March 19, 1915, at which time Rev. Civ. St. art. 1829, as amended in 1913, was in force. By that article any defensive fact pleaded by a defendant was taken as admitted by the plaintiff if not denied. The defendants, in answering the plaintiff’s original petition, by paragraph 7 of the answer averred that plaintiff was "guilty of negligence which was the proximate cause of plaintiff’s injury. To this allegation the appellee replied by the supplemental petition, the second paragraph of which specifically denied the allegation in the seventh paragraph of defendants’ amended answer. The supplemental petition was therefore a proper pleading, made necessary by the statute in force at that time and until repealed by General Laws 1915, c. 101, § 3. It is true the supplemental petition contained a substantial repetition of the allegations showing the nature of the injuries, but no special exception was made to this particular portion of the supplemental petition. The second assignment is overruled.

The third assignment is that after the minor, for whose benefit this suit was prosecuted by his next friend, Jose Penaloza, had finished his direct and cross-examination and was undergoing a redirect examination, the minor being the first witness examined, appellants invoked the rule for the exclusion of witnesses. All witnesses were excluded except Jose Penaloza, the party who brought the suit as next friend, whom the court refused to exclude. This refusal of the court was excepted to and assigned as error requiring a reversal. As stated by Mr. Justice Neill in Railway v. West, 36 S. W. 102:

“The right of parties litigant to have witnesses placed under the rule is ‘subject to such judicious regulations, confided to the judge’s discretion, as right and justice exact.’ ” Watts v. Holland, 56 Tex. 60.

We cannot say that the refusal of the trial court to exclude the party to the suit, as next friend, after the minor had given his testimony, in the absence of anything in the record tending to show that appellants were prejudiced thereby, was an abuse of the discretion confided to the trial judge, requiring a reversal of the judgment. Railway v. West, 36 S. W. 102; Rotan Grocery Co. v. Martin, 57 S. W. 706. The third assignment is overruled.

The fourth assignment is that the court erred in permitting the witness, Dr. Parker, to testify that the plaintiff “was very nervous, restless, and could not sleep at nights” after defendants’ attorney had asked the witness, “You don’t know that only from what he tells you?” and the witness answered, “That’s all.” The witness, Dr. Parker, afterwards testified without objection that he knew that the plaintiff minor was very nervous and restless, and that he had fever. The only hearsay was that the boy could not sleep at nights, and this the witness after-wards explained he did not know of his own knowledge. The court might have excluded the portion of the testimony that the boy “could not sleep at nights,” had the objection been to that portion of the testimony only; but the objection went to the portion of the testimony that was not hearsay as well, and should have been overruled. However, the admission of the hearsay testimony, in the face of a proper objection, would have been harmless error in view of the other testimony in evidence, and in view of the very slight importance of that particular symptom introduced in the testimony. Rule 62a (149 S. W. x); Railway v. Renfro, 83 S. W. 21; Railway v. Moore, 188 S. W. 24. The fourth assignment is overruled.

Error is charged against the trial court in the fifth assignment because appellant was not allowed to ask his witness “whether or not it was possible for him to have avoided the collision as it occurred.” The bill of exception does not show what the answer would have been. “Without being informed of what the answer of the witness would have been, we cannot tell that the appellant has suffered any injury by its exclusion.” Fox v. Houston & T. G. Ry. Co., 186 S. W. 856. The fifth assignment is overruled, and for the same reason the sixth assignment is overruled. The sixth assignment is without merit for the further reason that a question, not leading, was asked and answered on redirect examination.

The eighth assignment complains that the court erred in permitting the plaintiff to introduce the testimony of a physician as to the injuries suffered by the injured plaintiff, over defendants’ objection. Appellee had introduced~the testimony of physicians to prove the nature and extent of appellee’s injuries in opening the case. Defendants attempted to refute this testimony by the testimony of Dr. Withers in developing the defense. Then appellee introduced the testimony complained of as rebuttal of the attack on the issue of the nature and extent of the injuries. This seems to be proper practice. We quote from the opinion in Markham v. Carothers, 47 Tex. 27:

“This additional testimony was rendered proper by the effort of the plaintiff to discredit the statements of the witnesses originally introduced. Such additional testimony was a ’direct answer’ to that produced on the part of the plaintiff; and the rule is said to be ‘that anything may be given in evidence in reply, which is a direct answer to that produced on the part of the defendant.’ Scott v. Woodward, 2 McOord, 161; Bouvier’s Law Die. Title Rebuttal. Tested by this rule, the evidence offered was evidence in rebuttal.”

Moreover, it does not appear that the trial court, in the matter, complained of, abused the discretion vested as to the order of the introduction of the testimony. Railway v. Williams, 136 S. W. 527. The seventh assignment is overruled.

The eighth assignment is that the verdict is not sustained by the evidence in this: That the testimony shows that the plaintiff was guilty of contributory negligence which-proximately ca'used the’ injuries, 5f any. Without objection from appellants, either in form of exception to the charge or a request for a peremptory instruction, the court submitted to the jury the issue of contributory negligence. This was an admission by appellants that there was evidence that justified the submission of the issue of contributory negligence, and appellants cannot complain, after the jury determined that issue, that there was no evidence to sustain the finding of the jury. Furthermore, there was evidence to support the verdict of the jury that the proximate cause of the injuries suffered by the plaintiff minor was the negligence for which appellants were liable, and the verdict is conclusive. The eighth assignment is overruled.

The ninth assignment cannot be considered, because the assignment is not to be found in the amended motion for a new trial. Rule 25 (142 S. W. xii) Rules for the Courts of Civil Appeals; Freeman v. Railway, 182 S. W. 1158; Dawson v. Falfurrias State Bank, 181 S. W. 553.

The judgment is affirmed.

      r^>Eor other cases see same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes