author: RICE, J.

text:
    WITT et al. v. WILSON.
    (Court of Civil Appeals of Texas. Austin.
    Oct. 22, 1913.)
    1. Bills and Notes (§ 92*) — Consideration —Necessity of Consideration.
    A promise to pay the debt of another is nudum pactum and void for want of consideration, unless there be some benefit to the obligor, or detriment to the obligee, as a promise of forbearance; hence a note given by shareholders who were not responsible for a corporation’s debts to reimburse another for moneys advanced the corporation is void for want of consideration.
    [Bd. Note. — Bor other cases, see Bills and Notes. Cent. Dig. §§ 166-173, 175-205, 208-212; Dec. Dig. § 92.*]
    2. Bills and Notes (§ 94*) — “Past Consid-ekation.”
    A “past consideration” is some act or forbearance in time past by_ which the obligor has benefited without incurring any legal liability, and it is insufficient to support a promise; hence the past consideration of the advancement of money to a corporation of which defendant was a shareholder will not support a promissory note.
    [Ed. Note. — Bor other cases, see Bills and Notes, Cent. Dig. §§ 166-173, 175-181, 185-189, 192, 193, 196-198, 200, 202-207, 212; Dec. Dig. § 94.

    Bor other definitions, see Words and Phrases, vol. 6, p. 5228.]
    Appeal from District Court, Bell County; John D. Bobinson, Judge.
    Action by E. hi Wilson against E. E. Witt and J. M. Witt and another. Brom a judgment for plaintiff, defendants Witt appeal.
    Beversed- and rendered.
    Marshall Surratt, of Waco, J. B. Durrett, of Belton, and Witt & Saunders, of Waco, for appellants. Stanton Allen, of Bartlett, for appellee. '

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

   RICE, J.

The same being virtually concurred in by appellee, we copy the statement of the nature and result of the suit from appellants’ brief, which shows that it was brought by appellee against appellants E. E. and J. M. Witt and W. J. Harlan, on a promissory note executed by them to appellee May 1, 1910, payable on or before January 1, 1911, for the sum of $1,016.40. Harlan made no defense, and judgment went against him by default, but the Witts, who alone appealed, answered by general demurrer, general denial, and by special plea, alleging under oath that said note was executed by them without consideration; that it was given to appellee for money claimed by him to have been advanced to the Mexico Wax Company, a corporation in which the plaintiff and defendants in said suit were stockholders; that no part of said money was received by appellants or either of them; but that the same was paid, if at all, to said company and its creditors by appellee of his own accord prior to the execution of said note, and without any request on the part of appellants or either of them, and without promise by them or either of them to reimburse him, and that appellants thereafter, and without any consideration passing to them, at the request of appel-lee executed said note. Appellants further specifically answered that, if said note is not wholly without consideration, it is partially so, in that if it should be held that the advancement of said money by appellee to said corporation, in which both appellants and ap-pellee were stockholders, would constitute any consideration for the subsequent execution of said note by appellants to appellee to reimburse him for such advancement, then their liability was in proportion to the respective amounts of stock held by them in said company. Appellants further pleaded an express agreement that they should be held on said note only in proportion to their respective stock holdings, the amount of which was stated in said plea. Appellee in his second supplemental petition, among other things, alleged that the note sued on was given for money advanced by the plaintiff to the corporation and used for its benefit; that said money was so advanced by him before the execution of said note; that there was never at any time any agreement or contract, either verbal or in writing, between himself and appellants, in which it was agreed that the signers of said note should only be liable thereon in proportion to their holdings of stock in said company, but made no claim that appellants at any time made any request that he advance said money, or any agreement to repay said money, other than the mere execution of the note sued on; and specially alleged that said note actually expressed the only agreement had between plaintiff and defendants with regard to the debt thereby evidenced. The only issue submitted by the court to the jury was as to whether or not there was any express agreement between appellee and appellants to the effect that they should only be liable for their proportional part of the note, and declined to sustain their plea of want of consideration, or to submit such issue to the jury. There was a verdict for appellee for the amount of said note, upon which judgment was duly entered, and appellants prosecute this appeal, contending that the court erred in failing to peremptorily charge the jury to return a verdict in their behalf, and in refusing to give their special instruction to this effect.

The Mexico Wax Company was a corporation, chartered in 1909, with a capital stock of 2,000 shares of the par value of $20,000. This company was an organized and officered corporation, and was managed by its duly elected officers, principally by E. M. Wilson, appellee. He was treasurer or acting treasurer all the while, and owned 674 shares of stock therein, J. M. Witt owning 74½ shares and E. E. Witt 42 shares, while Harlan, the cosigner on said note, owned 307 shares. Ap-pellee in his second supplemental petition admitted that the note sued on was given for money advanced by him to the company and its creditors for the benefit of said company, and that the money was advanced before the execution of the note, and that it expressed the only agreement between the parties in relation thereto. He testified on the trial that the consideration in the note was money paid by him to said company and its creditors for its benefit; that such payments were made in settlement of drafts and bills, sent, in most instances, to the Bartlett Bank for collection, but perhaps some of the money was sent direct to the company’s offices in Mexico; that the money was paid to the company for its sole use, and that at the time the amounts were furnished he was either treasurer, or acting as such; and that there were no funds in the treasury belonging to the company, and when these bills and amounts were needed he furnished it out of his own personal funds, and that the note sued on was for the amount he had furnished up to the time of its execution, -stating that he had balanced his account with the company on said date, and found that they owed him $1,016.40, the amount of said note.

The uncontradieted evidence by appellants showed that there was no promise made by either of them to repay the money for which the note was given before it was advanced by the payee to the company, and that there was no release of said company, but it was still looked to for payment, and there was nothing moving to them or either of them for the execution of the note, either prior to or at the time of its execution. The court should have instructed a verdict for appellants if there was no consideration for the note sued on. We again quote from appellants’ most excellent brief a list of authorities collated by them as follows:

It is said in 9 Oye. 313, that: “A promise to pay the debt of another is nudum pactum and void for want of consideration, unless there be some benefit to the obligor or detriment to the obligee, as a promise of forbearance, or the like.” And on page 318 the same author says: “A promise to pay money, where there is no legal obligation to pay (and no other obligation), is not enforceable.”

In 7 Oyc. 701, this language is found: “The debt of another is not a valid consideration for a promise to pay, unless the debt was incurred upon the promise of obligor, or unless the debt of the other is discharged, or there is some new consideration moving to the obligor.”

Again it is said in 9 Cyc. 356, 357, that: “A promise made in the sense of moral obligation is not made upon a sufficient consideration, and is not legally binding. Thus a son is under the strongest moral obligation to support his infirm and indigent parents, but he is under no legal obligation to do so. The 'law will not enforce a promise on his part to pay another who has done so without his request.” Again, in the- same volume, at pages 358, 359, it is said that: “By the great weight of authority, any past consideration, if it imposed no legal obligation at the time it was furnished, will support no promise whatever. A past consideration is some act or forbearance in tvme past by which he has benefited, without thereby incurring any legal liability; if afterwards, from good feeling or interested motives, he malees a promise to the person by whose act and forbea/rance he has benefited, and that promise is made upon no other consideration than_ the past benefit, it is gratuitous, and cannot be enforced — and thus services rendered or money expended in the past, but not at the express or implied request of the person benefited by them, will not support a promise by him to pay for them.” See, also, 6 Am. & Eng. Ency. 690.

In Golden City Banking Go. v. Greisel et al., 161 Mo. App. 477, 144 S. W. 166, the subject of the controversy was a promissory note for $353.40, executed by Greisel and others to the banking company. The banking company had paid a check for the same amount drawn on it by the Oklahoma & Golden City Railroad Company, although said road had no funds on deposit in the bank at the time, and the amount of the check thus became an overdraft against the railroad company. This overdraft was later objected to, and the defendants in the suit, being officers of the railroad company, gave their personal note, due on demand, for the amount of the overdraft, and the bank brought suit against the signers of said note. In holding that the note was without consideration the coprt says: “The substance of the foregoing is that the railroad company owed the plaintiff bank on an account for an overdraft, and that defendants gave the note in suit, promising to pay a sum they did not owe. No benefit accrued to defendants; on the other hand, no detriment was occasioned to plaintiff. If one takes a note for an account, the original debt is not extinguished unless that be the agreement (citing cases). In this instance defendants gained nothing, nor had plaintiff lost anything, for it still has a right in law to hold the railroad company for the overdraft.”

In Simmang v. Farnsworth, 24 S. W. 541, Simmang signed a note as surety after its delivery, and after certain machinery for which it was given by the principal had been delivered to him, there being no agreement that Simmang would sign, and no new consideration moving to the principal. It was lield that there was no consideration, and that Simmang was not liable.

In McDonald v. Young, 41 S. W. 885, where a nóte was given for court costs which did not release the bond theretofore given therefor, it was held that the note was unenforceable for want of consideration.

In First State Bank of Nortonville v. Morton et al., 146 Ky. 287, 142 S. W. 694, which was a suit on a promissory note, claimed by the defendants to have been executed by them without consideration, it was held that the note was without consideration, and therefore not collectible; the court saying: “A consideration sufficient to uphold a contract must be either a benefit to the promisor or a detriment to the promisee. It is also a well-settled proposition of law, that as between the original parties, the consideration of a promissory note may .be impeached and a total failure of consideration will bar a recovery. In the ease at bar Morton received no benefit whatever, and the bank incurred no disadvantage whatever by the transaction. On the contrary, at the end of the transaction, each party stood exactly as he did at the beginning of it.” The court delivering the opinion in that case quotes approvingly as follows from Dowagiac Manuf. Co. v. Van Valkenburg, 111 Minn. 1, 126 N. W. 119: “The note was originally executed by the respondent’s son, and the respondent was in no manner connected with the note, or the consideration for which it was given. After the note was past due, an agent of the plaintiff called upon the respondent, and told him that he had the note against his son, that it was due, and that he was going to sue his son, but he had not time to go and see him. The agent then requested the respondent to put his name on the note, so that he could show his company that he had not been idle, but had been doing something. The respondent then signed the note at the agent’s request, without any consideration whatever. The son never requested the respondent to sign the note, and had no knowledge that he had done so until long afterwards. Other than as stated, there was no evidence that there was any agreement to extend the time of the payment of the note, or that the time of payment of the note was ever extended, in reliance on the fact that respondent had signed it. It is clear from the evidence that the respondent signed the note without any circumstances of advantage to his son or disadvantage to the plaintiff, and without any consideration.”

For additional cases in point, see West Coast Co. v. Bradley, 111 Minn. 343, 127 N. W. 6; Gilbert v. Wilbur, 105 Me. 74, 72 Atl. 868; Saul v. South Seam & Cabinet Co., 6 Ga. App. 843, 65 S. E. 1065; Randall v. Simmons (Sup.) 134 N. Y. Supp. 523; Bulkley v. Landon, 2 Conn. 404; Allnutt v. Allnutt (Ky.) 127 S. W. 986; Marlow et al. v. King, 17 Tex. 177; Ward v. Barrows, 86 Me. 147, 29 Atl. 922; Shugart v. Shugart, 111 Tenn. 179, 76 S. W. 821, 102 Am, St. Rep. 777; Jones v. Ritter, 32 Tex. 717.

We do not think there is any merit in the insistence of appellee that the money was expended in furtherance of a joint enterprise or undertaking on the part of the promisors and promisee, and therefore furnishes a valuable consideration for a promise of repayment on their part, because such contention is not supported by the evidence, but conclude that the doctrine announced in the foregoing authorities supports appellants’ contention that there was no legal consideration for the execution of the note sued on, and hold that it was duty of *the court to have given a peremptory charge in favor of appellants.

So believing, it becomes our duty to reverse the judgment of the court below,' and here render judgment for appellants, and it is so ordered.

Reversed and rendered.


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    FIRST NAT. BANK OF SAN MARCOS v. SMITH et al.
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 18, 1913.
    Rehearing Denied Nov. 8, 1913.)
    1. Damages (§ 80)- — Liquidated Damages or Penalty — Proportion of Sum Stipulated to Actual Damage.
    A provision in a building contract that the contractor would pay to the owner $20 for each day that the completion of the building was delayed beyond a date specified was properly treated as a penalty and only actual damages for the delay allowed where the actual damages were easy of ascertainment and amounted to only $1,491 for a delay for which, under the contract the owner claimed $3,468.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 170-175; Dec. Dig. § 80.]
    2. Set-Off and Counterclaim (§1 49)— Building Contracts — Priority of Offsets Due Owner on Claim of Assignor.
    Where the owner of a building in course of construction has legal offsets against the claim of the contractor, such offset is superior to the claim of the contractor’s assignee, but he has no claim to the money in his hands beyond the amount of the offset.
    [Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 107-112, 114-117; Dec. Dig. § 49.]
    3. Mechanics’ Liens (§ 291) — Construction —Double Recovery.
    In an action to enforce a mechanic’s lien for $1,410, a judgment against the owner for $593.-50, and against the contractors for $1,410, was not a double recovery; it being clear that the $593.50 was a part of the $1,410, and that payment of either amount would wholly or partly extinguish the other.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 599-605, 607, 610; Dec. Dig. § 291.]
    4. Appeal and Error (§ 499) — Record-Grounds of Objection.
    The rejection of evidence will not be considered on appeal when the bill of exceptions fails to show what objections were made and sustained by the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    Appeal from District Court, Dallas County; ICenneth Eoree, Judge.
    Action by Sidney Smith, Jr., against the First National Bank of San Marcos and others. From the judgment, the defendant named appeals.
    Affirmed.
    W. P. Donalson, of Dallas, for appellant. M. M. Plowman, Spence, Knight, Baker & Harris, and A. F. Weisberg, all of Dallas, for appellees.

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

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

   RAINEY, C. J.

We adopt the statement of the case found in appellant’s brief, as follows:

“This suit was brought by Sidney Smith, Jr., as plaintiff, against the following defendants, viz.: Birkner & Beasley, a firm composed of Otto Birkner and D. K. Beasley; C. F. Gary, alleged to be a member of the partnership of Birkner & Beasley, who denied under oath that he was a member of such partnership; P. G. Silber, alleged to have been a member of Dallas Cement Stone Works, a partnership composed of plaintiff and said Silber, which partnership, it was alleged, had dissolved, said Silber transferring to and guaranteeing the payment of the claim in question to plaintiff; the First National Bank of San Marcos, a banking corporation, which had contracted with Birkner & Beasley for the erection and construction of the building in question; C. F. Gary, W. E. Gary, J. E. Mauldin, and John A. Mtott, sureties on the bond executed by the contractors, Birkner & Beasley, to the said bank to insure the faithful performance of said building contract. Plaintiff also alleged that since the filing of this suit he had transferred and assigned the claim in question to J. B. Adoue, for whose benefit this suit is prosecuted, and defendants Goslin & Wright, a firm composed of J. W. T. Goslin and R. M. Wright, were made defendants in this cause for the purpose of having their alleged lien adjudicated. Plaintiff claimed a balance of $1,410, and Goslin & Wright a balance of $643.50, alleged to be due for labor performed and material furnished on said bank building under contracts with said Birkner & Beasley, and sought to establish liens on such building, and the ground on which it is located, to secure the payment of their claims. In addition to the lien, plaintiff claimed to have an assignment executed by the contractors, directed to said bank, for the payment of said $1,410. Defendant bank pleaded á general denial, assignment of the fund claimed by plaintiff, and that it had a contract with Birkner & Beasley requiring them to construct and complete the building in question on or before November 15, 1909, and that in the event of their failure to do so, defendant bank was entitled to the sum of $20 per day, as accrued and liquidated damages, for each day thereafter that such building was not completed, and that same was not completed until August 27, 1910; that it had paid said contractors various sums of money, both on the estimates of the architect and in addition thereto, all of which were made as payments on the contract price of the building, and that it was not indebted to said contractors in any sum. Said cause was tried before a jury on November 14, 1912, and the court, after submitting to the jury one special issue, as to the rental value of the building in question, on motion rendered judgment as follows: For plaintiff, against defendant bank, for the sum of $583.50; for plaintiff, against defendants Birkner & Beasley and D. K. Beasley and P. G. Silber, for $1,410; for defendants Goslin & Wright, against defendants Birkner & Beasley and D. K. Beasley, for $643.50; for plaintiff and defendants Gos-lin & Wright, establishing and foreclosing mechanics’ and materialmen’s liens upon and against defendant bank’s property, in the sum of $1,977.06. The court also rendered judgment for defendants O. F. Gary, W. E. Gary, J. E. Mauldin, and John A. Mott, and against defendant Silber on his cross-action.”

Conclusions of Fact.

We conclude that the First National Bank of San Marcos was the owner of a certain lot in the town of San Marcos, upon which it contracted to have erected a business building and for the erection of which it became liable to plaintiff in the sum of $593.50, and created a lien on said building in favor of plaintiff assignor for the sum of $1,410. Also-said Goslin & Wright were entitled to a mechanic’s lien on said building for $643.50. The appellant was damaged, by reason of delay in erecting the building, in the sum of $1,491. The said sum of $593.50, for which personal judgment was rendered, is part of the identical indebtedness which was secured by the plaintiff’s materialman’s lien.

Conclusions of Law.

1. Appellant contends that under its building contract it was entitled to $3,468 for delay in constructing the building, which was ignored by the court in charging . the jury, and construed the contract as providing for a penalty in case of delay, instead of providing for a sum certain as liquidated damages. The agreement stipulated that: “It is hereby stipulated and mutually agreed by and between said contractors and said owner that if said building, basement story and all, be not completed and finished within the period of time hereinabove specified, that is, on or before the 15th day of November next, 1909, then, and in that event, said contractors shall forfeit to and shall and will pay to said owner the sum of twenty dollars per day ($20.00) for each and every day thereafter, until said building, basement story and all, shall be completed and finished in conformity with said plans and specifications so referred to in said general contract, and in this supplemental agreement, the money so forfeited to be due and payable at the end of each of the days on which such forfeiture shall, if at all, accrue.” The court properly construed the contract, and allowed the defendant as damages such a sum as compensated it for the delay in completing the building. Whether contracts of this nature are to be construed as providing for a liquidated sum, or to be construed as a penalty, is not always easy to determine.

Mr. Chief Justice Gaines, in Collier v. Betterton, 87 Tex. 440, 29 S. W. 467, in discussing this question, says: “It is to be conceded, that although the parties to a contract have named a specified sum of money as liquidated damages for its breach, the courts may in certain cases treat the provision as a penalty, and restrict the recovery to the actual damages which have accrued. But it seems to us that the authorities lay down no satisfactory rule by which in every case it is to be determined when a provision of that character is to be construed as fixing the damages, and when as merely naming a penal sum. If the damages be in their very nature uncertain or their amount indeterminate, the sum specified will be treated as fixing by stipulation the amount of the recovery. But the difficulty arises in cases in which the damages are reasonably susceptible of ascertainment. There, as we think, the authorities leave us at sea, without any accurate chart to direct our course. It would seem that If the expressed intention of the parties to a contract should govern, in every case where they say that a certain sum shall be paid as liquidated damages in case of its breach, it should be construed as fixing the amount of a recovery, and yet, as we have said, notwithstanding such a provision, in certain eases the damages may be limited to a just compensation for the loss which has been suffered. Therefore the principle would appear to be that, although a sum be named as ‘liquidated damages,’ the courts will not so treat it unless it bear such proportion to the actual damages that it may reasonably be presumed to have been arrived at upon a fair estimation by the parties of the compensation to be paid for the prospective loss. If the supposed stipulation greatly exceed the actual loss — if there be no approximation between them, and this be made to appear by the evidence — then it seems to us, and then only, should the actual damages be the measure of the recovery.”

The evidence shows that the loss sustained by appellant in being deprived of the use of the building was easy of ascertainment, and that the rate of $20 per day fixed by the court was absolutely disproportionate to the loss sustained.

2. Where the owner of a building in course of construction has legal offsets against the claim of the contractor for work and material, such offset is superior to the claim of the contractor’s assignee; still the owner has no superior claim to money held by it out of money due to the contractor and to which it is not entitled. The court submitted to the jury the proper measure of damages sustained by appellant, which was found by the jury, and which finding fixes the amount which appellant had the right to hold; therefore the balance of said sum was subject to plaintiff’s demand.

3. The ninth assignment, wherein appellant complains of the judgment in favor of plaintiff for $593.50 as a double recovery to that extent, we do not think is well taken. We think the judgment clearly shows that the $593.50 is a part of the $1,410, and. the payment of the latter sum extinguishes the former sum, and likewise the payment of the $593.50 cancels a like amount of the $1,410.

4. The rejection of evidence will not be considered when the bill of exceptions fails to show what objections were made to the testimony and sustained by the court. Appellant’s exceptions 2 and 3 are defective in the particular named; therefore the assignments based thereon will not be considered. Railway Co. v. Jarrell, 86 S. W. 632; Railway Co. v. Wishert, 89 S. W. 460; Railway Co. v. Jones, 60 S. W. 978.

The foregoing seems to be the rule followed by the courts of this state.

The case of Waller v. Leonard, 89 Tex. 510, 35 S. W. 1045, is cited by appellant in support of the correctness of said bill. In the case of Grinnan v. Rousseaux, 20 Tex. Civ. App. 20, 48 S. W. 58, 781, the Waller-Leonard Case is distinguished, and it is held not to be in point. We think the instant case is like the Grinnan Case and differs from the Waller Case; therefore we follow the rule as laid down in the Grinnan Case, and hold the bill of exceptions defective in the particular named.

5. We conclude that the evidence supports the judgment; that the record shows no reversible error, and the judgment is therefore affirmed.


text:
    HILL et ux. v. NEESE.
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 25, 1913.)
    1. Arbitration and Award (§ 8) — Agreement to Arbitrate — Jurisdiction of Courts.
    An agreement to submit a controversy to arbitration which had not been reduced to writing did not deprive the courts of jurisdiction of such controversy; no steps having been taken to perfect the agreement or to carry it into effect.
    [Ed. Note. — For other cases, see Arbitration and Award, Cent. Dig. § 29; Dec. Dig. § 8.*]
    2. Appeal and Error (§ 1040*) — Error-Cure.
    Defendant was not prejudiced by the sustaining of a demurrer to his special answer, where evidence as to the matters embraced'therein was admitted under the general issue and submitted to the jury, which found the facts against him.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.*]
    3. Appeal and Error (§ 1056*) — Harmless Error — Rejection of Evidence.
    The rejection of evidence, the admission of which would not have affected the verdict, was not reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. § 1056.*]
    4. Appeal and Error (§ 1058*) — Exclusion of Evidence — Cure by Subsequent Admission.
    The exclusion of part of a deposition was not prejudicial, where all of the excluded testimony which was relevant was subsequently testified to by the witness whose deposition was involved.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dec. Dig. § 1058.*]
    5. Appeal and Error (fj 760*) — Briefs—Reference to Record.
    Where the court was referred by appellant to “bill of exceptions No. -,” the page of the record not being given, the court would not search the record to find such bill.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3095; Dec. Dig. § 760.*]
    Appeal from District Court, Hill County; C. M. Smithdeal, Judge.
    Action by Chester W. Neese against L. S. Hill and wife. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Morrow. & Morrow, of Hillsboro,’ for appellants. H. C. Bishop, of Hubbard, and R. M. Vaughan, of Hillsboro, for appellee.

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

   RAINEY, C. J.

This suit was brought by appellee against appellants to rescind a contract of exchange of property, wherein ap-pellee sold to appellants an automobile, for which appellants transferred to appellee certain vendor’s lien notes. The grounds for a rescission were false representations made to appellee by T. B. Wharton, agent of appellants, in effect that said notes were executed as a part of the purchase money for 58¾. acres of land; that said land was all good, smooth, black land; that 30 acres were in cultivation, and same had thereon one three room house, a good barn, two wells of water, one at barn and the other at the house, and that two acres of land were in orchard; that said representations as to the quality of and improvements on the land were false, but believed to be true by appel-lee, etc. Appellants answered by general demurrer, general denial, and specially that he purchased the land from one Creswell, without having seen it, and it was represented as good, smooth, black land, and improved as represented by Wharton; that he knew nothing about the land, and Wharton was instructed to ’ so inform purchasers, and that at the time the exchange was made appellee knew that appellant had never seen the land, and that said representations were made upon what appellants had been told. The case was submitted upon special issues, and upon return of the jury’s answers the court rendered judgment for appellee to the effect of canceling said contract of exchange, and that he have judgment for the value of the automobile and $480 for the use and hire thereof, and appellee was directed to deliver the notes involved to appellant. From this judgment Hill and wife appeal.

The first assignment presented by appellants is: “The court erred in sustaining a general demurrer to the defendant’s plea setting up the fact that he and plaintiff had made an agreement to arbitrate the controversy between them, which error was called to the court’s attention in subdivision No. 1, in defendant’s motion for new trial.” The plea that “this cause should abate because the parties have agreed to submit the controversy to arbitration under the common law” does not state a good cause for the abatement of the suit. The plea does not show that such agreement had been reduced to writing, nor does it show any steps had been taken to perfect the agreement. No effort is shown to have been made to carry the agreement into effect, therefore the court was not deprived of jurisdiction to hear and determine the controversy. Cox v. Giddings, 9 Tex. 44; Johnson v. Cheney, 17 Tex. 336; Athletic Club v. Lumber Co., 18 Tex. Civ. App. 169, 44 S. W. 10.

No injury resulted to appellant from the action of the court in sustaining a demurrer to the third division of his answer, which was to the effect that appellant had purchased the land from one Creswell without having ever seen it, and upon the representations that its condition as to quality and improvements, etc., was as heretofore stated; that appellee had notice of the true condition as to appellant’s knowledge, etc., and was not thereby deceived. Appellant was allowed to introduce evidence under the general issue in reference to the matters embraced in said special answer. The court submitted such an issue to the jury, and the appellant received the benefit of all of said answer as though a demurrer thereto had not been sustained. The jury evidently did not believe appellant’s testimony, for it found against him on every material issue involved in the controversy, and the appellant was in no way harmed by the action of the court.

The foregoing .applies to the question raised by the fourth assignment, and said assignment is overruled.

Assignments 5 and 6 relate to the rejection of evidence by the court, the admission of which in no way affected the verdict of the jury, and the said assignments are overruled.

The seventh assignment is: “The court erred in refusing to permit the defendant .to introduce in evidence the part of the ex parte depositions of L. S. Hill which were taken by the plaintiff, and which part was not introduced by plaintiff, the plaintiff having introduced a part of said deposition, dated September 10, 1912, namely, the first, second, third, fourth, fifth, sixth, and eighth questions and answers which error was called to the court’s attention in subdivision No. 7, in defendant’s motion for new trial.” All the testimony of Hill that was excluded and which was relevant to any issue was subsequently testified to by Hill while on the witness stand, and the exclusion of the testimony complained of worked no injury to appellant.

The court did not err in excluding the depositions of Hill in reference to who turned the notes over to Wharton and Sullivan. We think the evidence clearly shows that Wharton and Sullivan were the agents of Hill, and that Mrs. Hill consented to the disposition of the notes. The materiality of said testimony does not appear. The court is referred to “bill of exceptions No.-.” The page of the record is not given, and the court will not search the record to find it.

The evidence supports the verdict and judgment.

No reversible error appears in the record, and the judgment is affirmed.


author: LEVY, J.

text:
    SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. DOMINY et ux.
    (Court of Civil Appeals of Texas. Texarkana.
    Oct. 23, 1913.)
    Telegeaphs and Telephones (§ 73) — -Actions foe Damages — Questions foe Juey— ' CONTEIBUTOBY NEGLIGENCE.
    In an action against a telephone company for failure to deliver a telephone call to persons who would have notified plaintiff of her brother’s death, where the evidence showed that the sender of the call was told that such persons were out of town and that a messenger could be hired for $3, it was a question for the jury whether the failure to employ the messenger was contributory negligence, defeating a recovery.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 76; Dec. Dig. § 73.*]
    Appeal from District Court, Houston County; B. H. Gardner, Judge.
    Action by Robert Dominy and wife against the Southwestern Telegraph & Telephone Company. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    Morris & Fowler, of Palestine, S. P. English, of Dallas, and W. I. Sims, of Palestine, for appellant. Earle Adams, Jr., and J. W. Madden, both of Crockett, for appellees.

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

   LEVY, J.

The suit is for damages for alleged negligent failure to deliver a telephone call. Mrs. Beulah Dominy and Hubert Rains were sister and brother. Hubert Rains died at Palestine, at his father’s home, between 5 and 6 o’clock a. m. August 28, 1911. On that date Mrs. Dominy was visiting her father-in-law, John Dominy, at his residence about ten miles in the country from New Willard in Polk county. At about 7 o’clock a. m. of August 28th, Mrs. Dominy’s father went to the residence of a neighbor, Mr. Cooper, and had Mr. Cooper put in a call for John Dominy at New Willard. At 8:10 the operator reported on the call for John Dom-iny that he was ten miles in the country and that it would take a messenger fee of $3. The father, R. S. Rains, upon receiving the report through Mr. Cooper, at once directed that the call be canceled and declined to pay a messenger. R. S. Rains then testifies that he at once put in a call with appellant’s operator according to his idea, for either Beulah, Barney, or Robert Dominy at New Willard. There is much evidence to the contrary of the testimony of R. S. Rains as to the second call and understanding of its being a call. At 9:03 Oscar Rains, a brother of Mrs. Dominy, then put in a call for Barney or Robert Dominy at New Willard, and the report from there was that Barney was out of town until late in the afternoon. Oscar then told the operator he would return at 6 o’clock p. m. to continue the call. About 6 p. m. Oscar Rains returned, and the call for Barney Dominy was renewed, and at 7 p. m. the report from New Willard was that Barney was not expected to be in town until next morning. The call for Barney Dominy was for the purpose of having him go out to Mrs. Dominy and tell her of the death of her brother and that his funeral would occur the next afternoon at 4 o’clock. She failed to see her brother buried. In order for Mrs. Dominy to have gotten a train to Palestine in time for the funeral, the call for Barney Dominy must have reached him by 11 o’clock a. m., and any message received by Mrs. Dominy later than 7 o’clock p. m. would have been too late for her to have been at the funeral. There was no way to communicate with Mrs. Dominy in the country except for some one to carry the message. It is not deemed necessary to set out other parts of the evidence.

After careful consideration of the facts of the case, we conclude that the seventeenth assignment of error, complaining of the refusal to grant a new trial on the insufficiency of the evidence in the case, should be sustained. Without commenting on the testimony, the ruling is rested on the conclusion that a finding that a call by R. S. Rains was put in for Barney or Robert Dominy to appellant’s operators is against the weight of the evidence. The charge authorized a verdict for appellees upon the finding that R. S. Rains put in a call for Barney Dominy.

The eleventh assignment predicates error upon the refusal to give a special charge on contributory negligence upon the part of R. S. Rains in failing to pay the $3 messenger fee on his call for John Dominy. The sole purpose of communicating with John or Barney Dominy was to have them deliver to Mrs. Dominy information of the death of her brother. She was known to be in the country, inaccessible to a telephone. There was information that John Dominy was in the country, and Barney not at New Willard, and another messenger could be gotten for $3. Whether or not the circumstances were such as to require R. S. Rains (or Oscar Rains), as a person of ordinary prudence, to employ the messenger for communication, was a question for the jury. We think the issue of contributory negligence, which was pleaded, was presented by the evidence in the case. Telephone Co. v. Gotcher, 93 Tex. 114, 53 S. W. 686.

The judgment is reversed, and the cause remanded for another trial.


author: LEVT, J.

text:
    ATKINSON et al. v. SHELTON et al.
    (Court of Civil Appeals of Texas. Texarkana.
    July 9, 1913.
    Rehearing Denied Oct. 9, 1913.)
    1. Quieting Title (§ 43) — Proof oe Title.
    When plaintiff’s title is controverted by a plea of not guilty, in an action to quiet title, plaintiff must show that the title was in him at the commencement of the suit, either by deraignment from the sovereignty of the soil or from a common source of title.
    [Ed. Note. — For other cases, see Quieting Title, Cent. Dig. §§ 84-87; Dec. Dig. § 43.]
    2. Judgment (§ 126) — Default Judgment-Proof of Title — Necessity.
    Where the original petition upon which an interlocutory judgment of default was taken was not in the statutory form of trespass to try title, but rather a petition to quiet title, Rev. Civ. St. 1911, art. 7750, providing that, where defendant in trespass to try title does not appear and answer, judgment by default may be entered for plaintiff without proof of title by plaintiff, would not apply to relieve plaintiff from proving title since the effect of a default judgment must be measured by plaintiff’s pleadings.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 223, 224, 228-230; Dec. Dig. § 126.*]
    3.Judgment (§ 126) — Proof of Title — Effect of Default of Part of Defendants.
    Under Rev. Civ. St. 1911, art. 1937, providing that an interlocutory judgment by default may be entered against a part of the defendants not answering, and the cause proceed against the others, but only one final judgment shall be rendered, that one of defendants defaulted in an action to quiet title would not relieve plaintiffs from proving title as against the answering defendants, who pleaded not guilty, so that the default judgment was not admissible against such answering defendants to prove title; the-title of the defaulting defendant not vesting in plaintiffs upon default until final judgment was-entered.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 223, 224, 228-230; Dec. Dig. §■ 126.*]
    Appeal from District Court, Collin County; J. M. Pearson, Judge.
    Action by R. T. Shelton and another against G. W. Atkinson and others in which defendants filed a cross-action. ' From a judg'ment for plaintiffs, defendants appeal.
    Reversed and remanded.
    J. D. Cottrell, of Plano, for appellants. G. R. Smith and J. M. Muse, both of McKinney, for appellees.

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

   LEVT, J.

The suit is by appellees Shelton and Muse against J. T. Atkinson, G. W. Atkinson, and G. C., Mark, and Edna Atkinson. The original petition was in the form of an, action to remove cloud from title. On the original petition, and after service, an interlocutory judgment by default was entered against J. T. Atkinson. After the order of default against J. T. Atkinson was entered, an amended original petition was filed, which was in the ordinary form of trespass, to try title, and with the additional allegation of the adverse claim of all the defendants being a cloud upon the title of the plaintiffs. G. W. Atkinson made answer; but before trial his death was suggested, and the suit was abated as to him. The three remaining defendants answered, among other things, by plea of not guilty, and by cross-action claimed title to the land. After the evidence was heard, the court peremptorily instructed a verdict in favor of plaintiffs against the three named defendants for the land, and the said defendants appeal and assign error, besides others, upon giving a peremptory instruction against them.

Appellees relied upon G. W. Atkinson being the common source of title under which they and these appellants claim. A deed from Dudley & Sheppard to G. W. Atkinson, and from G. W. Atkinson and wife to J. T. Atkinson, to the land in suit was offered in evidence. Appellees then offered in evidence the interlocutory judgment by default against J. T. Atkinson, and, except as thus stated, appellees did not offer any conveyance or proof of title in themselves to the land or that would connect themselves in any way with J. T. Atkinson, or under G. W. Atkinson, the third person relied on as-common source. The testimony of appellees admits that they never were in possession of the land. It is the well-settled rule that, when the title of the plaintiff is controverted by the plea of not guilty, the plaintiff must prove, in order to entitle him to recover, that the title to the premises was in him at the time of the commencement of the suit, either by deraignment from the sovereignty of the soil or under a common source with the defendant. Admittedly in the record the appellees did not discharge the burden of proof as against these appellants, unless the legal consequences of the interlocutory judgment by default against J. T. Atkinson operated to make the appellees’ proof of the cause of action sufficient. The original petition on which the interlocutory default judgment in evidence was taken should properly be construed, we think, as pleading only an action to remove cloud from title, and not an action in the form of trespass to try title with title specially pleaded, as urged by ap-pellees. As the original petition under which the interlocutory judgment of default was taken was not in the statutory form of trespass to try title, article 7750, R. S., would not either control or have exclusive application to the question being considered, for it is generally understood that the effect of a judgment by default must be measured by the particular pleadings of the plaintiff.

It is expressly provided by article 1987, Revised Statutes, that, where there are •several defendants, some of whom have answered, and others have made default, an interlocutory judgment by default may be entered against those who have not answered, and the cause may proceed against the others; but only one final judgment shall be given in the suit. In Boles v. Linthicum, 48 Tex. 220, the effect of an interlocutory judgment by default is thus given: “An interlocutory judgment by default establishes, as against the party in default, the facts properly alleged by the plaintiff, and, when the ease is ready for final disposition, authorizes the entry against him of such judgment as the facts alleged warrant. But, until this stage of the case is reached, the only legal effect of the interlocutory judgment is to deprive the party in default of the privilege of filing an answer, which otherwise he might do at any time prior to the call of the case for trial or final disposition.” So by giving the interlocutory judgment by default the legal effect of depriving the defendant J. T. Atkinson of the privilege of filing an answer, and considering that the statute exempted J. T. Atkinson from final judgment by reason of his default until the ease is disposed of as to his codefendants, it would seem to follow that the title of J. T. Atkinson would not pass and vest in appellees by operation of. law resulting through •default, until the final judgment, in which the interlocutory default judgment is embraced, is entered. The article of the statutes does not in terms relieve the plaintiffs of any proof of the facts alleged. And, unless the interlocutory judgment by default against J. T. Atkinson could be said to have had the legal effect, which it did not, of passing or merging the rights of J. T. Atkinson into appellees at the time of the default and before final disposition of the whole case, it would follow that proof of title in appellees to the land was not made during the trial as against these appellants. So it is believed that the fact that J. T. Atkinson suffered default on the original petition to remove cloud from title does not legally operate to dispense with the necessity of proof as to these answering defendants, on both the original and the amended petition, who controverted by their plea of not guilty the material allegations of the plaintiffs’ petition. Hence, as the interlocutory judgment by default against J. T. Atkinson was not competent evidence in the suit against these appellants, the appellees have failed to make legal proof of any title in themselves as against these appellants, which they were bound to do to recover, and it was error to instruct a verdict for them.

As appellees failed to show title in themselves against these appellants, they were entitled, in support of their cross-action, to offer the deed to G. W. Atkinson from J-. T. Atkinson, and it was error, as the record appears, to refuse it in evidence. The eleventh assignment is therefore sustained so far as this appeal is concerned.

The judgment is reversed, and the cause remanded.


author: RATNEY, C. J.

text:
    ST. LOUIS, S. F. & T. RY. CO. v. SEALE et al.
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 18, 1913.)
    Appeal and Error (§ 1178) — Reversal — Granting- New Trial.
    In an action by the widow and heirs of an employe for damages for his death, the judgment of the Court of Civil Appeals affirming a judgment for plaintiff was reversed by the Supreme Court of the United States, on the ground that the trial court erred in overruling exceptions to the petition, calling attention to plaintiff’s failure to allege the facts showing whether the state or federal statutes applied, and the cause was remanded to the Court of Civil Appeals for further proceedings not inconsistent with the Supreme Court’s opinion, but without prejudice to the rights of the employe’s personal representatives. Held, that judgment would not be rendered for defendant, but that the case would be remanded for a new trial, in order that plaintiffs, by amending their petition, might have an opportunity to present the case under the ruling of the Supreme Court.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 4604-4620; Dec. Dig. § 1178.]
    Action by Maude Seale and others against the St. Louis, San Francisco & Texas Railway Company. A judgment for plaintiffs, affirmed by this court (148 S. W. 1099), was reversed by the Supreme Court of the United States (229 U. S. 156, 83 Sup. Ct. 651, 57 L. Ed. 1129), and defendant moves for judgment in accord with the judgment of the Supreme Court.
    Judgment of the district court reversed, and cause remanded for a new trial.
    Andrews, Ball & Streetman, of Ft. Worth, and Head, Smith, Hare & Head, of Sherman, for the motion. Wolfe, Maxey, Wood & Haven, of Sherman, opposed.

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

   RATNEY, C. J.

This is a motion by appellant to render judgment in its favor in accord with the judgment of the United States Supreme Court (229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129) rendered in this cause. At a former term of this court we rendered a judgment (148 S. W. 1099) affirming the judgment of the district court, and a writ of error was denied by our Supreme Court. In due time the Supreme Court of the United States granted a writ of error to this court, and upon a hearing a judgment was rendered, reversing the judgment of this court, and remanding the case “for further proceedings not inconsistent with the opinion of this court, but without prejudice to such rights as a personal representative of the deceased may have.”

Plaintiffs in this action are the surviving widow and parents of the deceased, and, in bringing the suit for the killing of the husband and son, the petition was framed under the state statutes, which gave them a cause of action. The railway company contended that deceased’s injuries were received while engaged in interstate commerce, and that its liability was exclusively regulated and controlled by the Employers’ Liability Act of Congress of April 22, 1908 (35 Stat. 65, c. 149 [U. S. Comp. St. Supp. 1911, p. 1322]), and, if liable, it was liable only to his personal representative. The United States Supreme Court held that: “The plaintiffs’ petition was altogether silent upon that subject, and the defendant by appropriate special exceptions called attention to the two statutes, insisting that whether one or the other applied depended upon the facts not stated, and asked that the. plaintiffs be required so to state the facts as to enable it to perceive which statute was relied on.” The exceptions were overruled. This was held to be error by the United States Supreme Court, and the case reversed and remanded.

Had the lower court sustained defendant’s exceptions, the plaintiffs could have amended their petition to conform to the ruling of the court, and thereby avoided the results that followed. The plaintiffs have never had an opportunity to present their case under the ruling of the United States Supreme Court. We think it but just that they be permitted to so present it, and decline to here enter judgment reversing and rendering, but reverse and remand the case for a new trial.


author: SPEER, J.

text:
    WESTERN UNION TELEGRAPH CO. v. MOONEY.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 22, 1913.)
    1. Telegraphs and Telephones (§ 68)— Failure to Deliver Message — Recovery for Mental Anguish.
    Plaintiff may maintain an action for damages for mental anguish caused by a telegraph company’s negligent failure to deliver a telegram to plaintiff’s sister, which prevented plaintiff from having the comfort and assistance of her sister immediately following the death of plaintiff’s husband.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cént. Dig. §§ 69, 70; Dec. Dig. § 68.*]
    2. Telegraphs and Telephones (§ 66) — Messages — Failure to Deliver — Actions eor Damages — Admission op Evidence.
    In an action for damages for mental anguish caused by the negligent failure to deliver a telegram to plaintiff’s sister, which prevented the sister from being present with plaintiff immediately after her husband’s death, evidence by plaintiff of her mental condition when the message was sent was admissible on the question of the necessity of her sister’s presence.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.]
    Appeal from Tarrant County Court; Charles T. Prewett, Judge.
    Action by Mrs. James Mooney against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Spoonts, Thompson & Barwise, of Ft Worth, for appellant. Smith & Lattimore, of Ft. Worth, for appellee.

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

   Conclusions.

SPEER, J.

The principal question presented by this appeal is whether or nof ap-pellee’s petition states a cause of action. It is in substance an action to recover damages for mental anguish occasioned by the appellant’s negligent failure to deliver a telegram to appellee’s sister, where appellee was denied the comfort, solace, and assistance of her sister in her hours of grief immediately following the death of her husband. The authorities cited by appellant, from which, it is argued, no liability exists, are, we think, distinguishable from this case in an important particular, and that is, that in those cases where a recovery was denied it was not shown affirmatively that the company had notice of the precise consequences for which it was sought to be held. W. U. Tel. Co. v. Luck, 91 Tex. 178, 41 S. W. 469, 66 Am. St. Rep. 869. In the present case both the pleadings and the facts are replete with allegations of such notice, and we see no reason to hold, as many authorities undoubtedly do, that damages may be recovered for loss of the presence of a near relative at the funeral, and to deny that a wrongful deprivation of such presence after the funeral would give rise to a cause of action. In truth, we think it is matter of common knowledge that one’s grief and sorrow would be as poignant after the interment of a near relative as before, and there can be no reason for holding, as we are asked to hold in this case, that a petition setting up the latter state of facts presents no cause of action whatever.

The testimony of appellee describing her condition and state of mind at the time the message was sent was admissible because relevant to the issue of the necessity for the presence, comfort, and aid of her sister, the addressee in the message.

Nor do we think the verdict and judgment excessive. If the allegations of appellee’s petition are true, and the verdict affirms that they are, then a recovery of $225 for the loss of the comfort and assistance which she would have received from the presence of her sister in the hour of her sadness following the death and burial of her husband clearly is not excessive.

Judgment affirmed.