text:
    CASWELL v. LENSING & BENNETT.
    (No. 5538.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 8, 1915.
    Rehearing Denied Feb. 9, 1916.)
    1. Landlord and Tenant @=>244, 252 — Landlord’s Lien — Innocent Purchasers.
    A landlord’s lien upon crops grown, being by statute and existing without any instrument in writing, need not be recorded; and a purchaser of crops from one who secured them from the tenant is charged with notice that they may be subject to a landlord’s lien.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 984, 1002, 1022-1026, 1029; Dec. Dig. <©=>244, 252.]
    2. Sales <©=>1 — Wiiat Constitutes.
    • Where a landlord authorized his tenant to sell cotton grown on the demised premises to one who had made advances to the tenant on condition that his landlord’s lien was discharged, and the tenant, an ignorant negro, delivered the cotton to the purchaser stating such agreement, and objecting that the purchaser took the cotton and refused to satisfy the landlord’s lien, there was no sale, but rather an unlawful appropriation.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1, 3-5; Dec. Dig. <©=>1J
    3. Landlord and Tenant <©=>254 — Liens — Waiver.
    A landlord allowed his tenant, an ignorant negro, to dispose of cotton raised on the demised premises to one who had made advances to the tenant under an agreement that the landlord’s lien should be satisfied out of the proceeds. The purchaser took the cotton, but refused to satisfy the entire landlord’s lien, giving the negro a check for the rent only. Held, that the landlord, by cashing such check, did not waive his lien; the landlord having, objected to the whole transaction, and shortly seizing the cotton under judicial process.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 986,1034 — 1044; Dec. Dig. <©=3254.]
    4. Landlord and Tenant <©=>252 — Landlord’s Lien — Waiver.
    While a landlord, by allowing his tenant to manage and sell the crops, may waive his landlord’s lien for advances as against a purchaser from the tenant, a purchaser from a bankrupt company, which purchased the cotton from the tenant, was not entitled to priority over the landlord’s lien, the landlord having consented to his tenant’s sale to such company, which had made advances to the tenant, only on condition that his landlord’s lien be first satisfied out of the proceeds, and there being nothing to indicate that the landlord allowed the bankrupt company to do anything showing authority to sell farm products in which he was interested.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1002, 1022-1026, 1029; Dec. Dig. <©=>252.]
    Appeal from Milam County Court; John Watson, Judge.
    Action by A. Lensing and T. J. Bennett, co-partners against W. T. Caswell and another. From a decree for plaintiffs, the named defendant appeals.
    Affirmed.
    Henderson, Kidd & Gillis, of Cameron, for appellant. E. A. Camp, of Rockdale, for ap-pellee.
   KEY, C. J.

The nature of this suit is disclosed by the trial judge’s full and correct findings of fact, which are as follows:

“Findings of Fact.
“(1) The court finds that the plaintiffs, Lensing & Bennett, are a firm composed of A. Lensing and T. J. Bennett, and that said firm owned a farm in Milam county during the year 1912 and-1913, and that they rented a part of said farm to Tex Slater for the year 1913, and that said Slater took and worked said land as their tenant during the year 1913, and raised a crop thereon, including the 5 bales of cotton in controversy; that to enable the said Slater to make a crop on said land during the year 1913 the plaintiffs,, as landlords, furnished money, advancements, and supplies to the said Slater during the year 1913, amounting to the sum of 8206.10, and that none of said amount had ever been paid to plaintiff, and that the said Slater was during that time, and now is, wholly insolvent.
“(2) That the German Mercantile Company was a corporation doing a retail business during the year 1913 at Thorndale, .Tex., Milam county, and that M. B. Loach was its duly authorized agent and general manager. That about December 20, 1913, application was filed in the United States court to have said company adjudged a bankrupt, which application was granted, and a receiver was appointed, and that all of the property and assets of said company werq disposed of through said bankrupt proceedings, and by said bankrupt court, and said German Mercantile Company is now wholly insolvent, and is a defunct corporation.
“(3) That W. T. Caswell was a cotton buyer and resided at Austin, Tex., and 'during the year 1913, was engaged in the business of buying cotton from various parties, including the dormán Mercantile Company, and that one 'Schultz was Caswell’s agent, and resided at Taylor, Tex.
“(4) That said Slater traded on account with German Mercantile Company during the year 1913, and said company had a mortgage on said ¡Slater’s 1913 crops, and that in the fall of the year Slater gathered his crops and sold a goodly portion thereof to the said German Mer'cantile Company, with the knowledge and con.sent of plaintiffs, the proceeds of which were applied on Slater’s account to said company. That early in November, 1913, the plaintiffs notified Slater they would have to he paid before any more of the cotton would be permitted to be sold, and thereupon Slater gathered the 6 bales of cotton in controversy, and it was .agreed between Slater and plaintiffs that Slater should carry said 5 bales of cotton to Thorn-dale and sell them to the German Mercantile Company, and plaintiffs would be paid their $206.10 out of said cotton. On November 6, 1913, ¡Slater carried the five bales of cotton .to Thorndale, had them weighed, and took samples and tickets to the German Mercantile Company, and gave them the written statement of plaintiffs of the amounts due plaintiffs by Slater, and asked said company to buy said cotton, rand give Slater the money due Lensing and Bennett; Slater telling said company the instructions which had been given Slater by plaintiffs and their agreement. M. B. Leach, acting for said company, took the Cotton tickets and samples, figured up the amount, and gave to Slater a check for the rents out of the 5 bales of cotton, being one-fourth of the proceeds, and told Slater that he would fix the rest of it with plaintiffs. To this Slater protested, and insisted that this was not satisfactory, and that he wanted to carry the money back to plaintiffs. Slater was a negro, and did all he reasonably could do to get the company to pay the money without a disturbance of the peace, telling Leach that if he (Slater) did not carry the money back that Lensing would whip him. Leach finally told him that the company would keep the cotton, and that they would give •Slater credit on his account for the proceeds, .and that he would later settle with Lensing and Bennett. Slater returned to plaintiffs’ farm, .and gave to plaintiffs the check for the rents •out of said cotton which had been given by the •company, and reported to the plaintiffs what had been done and said by Leach. The next morning plaintiffs called Leach by phone from its farm, which is about 15 miles from Thorn-dale, and Leach at this time promised to pay plaintiffs the .¶>206.10 if plaintiffs would send for it; and plaintiffs told Leach that they would send the negro for the money that day, and that •same day plaintiffs sent the said Tex Slater back to Thorndale for the money, and Leach .■again refused to pay it, and on the following day, Saturday, November 8, 1913, Lensing went to Rockdale and again phoned Leach, but could get no satisfaction from Leach, and Lensing then took the train and went to Thorndale and personally saw Leach regarding the matter, and at this time Leach told Lensing that the cotton had been sold and was then in Liverpool, and that the money could not then be paid, but if Lensing would get Slater and bring him back to Thorndale, with itemized statement of plaintiffs’ account, that the company would pay it. Lensing would not agree to this suggestion, and went out and located the 5 bales of cotton at the cotton compress in Thorndale. Lensing then went to the bank and tried to cash the check which had been sent him for rents, but the bank declined payment of the check on account of no funds. Lensing then returned to Leach and threatened to have him arrested for giving checks on the bank without funds, and thereupon Leach paid to Lensing in cash the amount called for in said check and the check was destroyed. Lensing then returned to Rockdale on the night train, and the next morning engaged his attorney to bring suit, and on the next Monday, November. 10, 1914, the plaintiffs brought their suit against said Slater and the German Mercantile Company for the amount of the debt, and for. conversion and foreclosure of the landlord’s liens, at the same time getting out writ of sequestration, and having the 5 bales of cotton in controversy sequestered, and the 5 bales of cotton were taken possession of by the sheriff of Milam county on November 10, 1913; the sheriff taking the cotton from the possession of the Compress Company, not knowing who it belonged to, but the Compress Company was holding the cotton for Caswell.
“That suit was filed in the county court, and at the December term, 1913, plaintiffs secured judgment against Slater and the German Mercantile Company for $206.10 and cost of suit, together with a foreclosure on landlord’s lien on said crops, and order of sale was directed, but before the sale was issued the said German Mercantile Company was adjudged a bankrupt, and trustees in bankruptcy took charge of the cotton in controversy. Later the trustees released any claim on the cotton, turning the same back to the sheriff of Milam county, and thereupon the defendant filed his oath and claimant’s bond, with Howard Bland and C. H. Burnes as sureties, and took possession of the cotton, and has appropriated the same to his own use; the cotton at that time being in possession of the sheriff, under the said writ of sequestration.
“(5) Slater sold the said cotton to the said German Mercantile Company for the sum of $283.50, and plaintiffs have received no part thereof, except one-fourth thereof, which was paid to them by said company for the rents out of said cotton, and which was paid after the cotton had been purchased by Caswell, and the cotton, at the time of the filing and approval of the claimant’s oath and bond, was worth on the market of Thorndale, the sum of $275.
“(6) Plaintiffs did not consent for Slater to sell said cotton without Slater paying the rents and advancements, and plaintiffs did not consent for the German Mercantile Company to buy said cotton without paying the rents and advancements, and plaintiffs did not in any manner give its consent for the handling of said cotton, except as hereby above stated.
“(7) A. Lensing was the resident member and agent of the firm of Lensing & Bennett, plaintiffs, and was duly authorized to act as such. M. B. Leach was the agent of the German Mercantile Company, and was duly authorized to act as such, and Schultz was the agent of Mr. Caswell, and was duly authorized to act as such, and all of the transactions herein mentioned were conducted through said agents. The plaintiffs, defendant, and Slater all acted in good faith in all of the transactions.
“(8) On November 7, 1913, the defendant purchased from the German Mercantile Company 26 bales of cotton, which included the 5 bales of cotton in controversy, and said cotton was delivered to the defendant, and the full value thereof was paid by the defendant to the German Mercantile Company. At the time of this sale Caswell had no actual knowledge as to where the cotton had been grown, nor as to who had raised it, and knew nothing about any mortgages or liens on the cotton, and nothing was said regarding it, and no inquiry was made regarding the title to the cotton, or regarding any lien upon it; Caswell merely purchasing the cotton, thinking it was cotton belonging to the company, and paying for it, without having any actual knowledge of anybody’s claim upon the cotton, and without making any inquiry regarding same, Caswell purchasing the cotton in the usual course of trade, and there, was nothing relating to the cotton in question or in connection with the transaction of this purchase to suggest to a person of ordinary prudence, acting as Schultz was acting, the necessity of inquiry as to title of said cotton, or as to whether the cotton was encumbered with liens. The cotton was purchased by Caswell, and was paid for by him, and was in his possession before suit was filed by plaintiffs, and before it was levied upon by writ of sequestration.
“Plaintiffs also had landlord’s lien .upon a cow and calf belonging to Slater, which Slater delivered to plaintiffs, and the parties to. this suit have agreed that plaintiffs may keep said cow, and that said original debt should be credited with $40, the value of the cow.
“The original debt was $203.10, and after allowing this credit of $40, leaves $166.10 now owing by Slater to plaintiffs for advancements, money, and supplies furnished as aforesaid. That Caswell has disposed of said cotton, and that three-fourths of the value of said cotton is in excess of the amount due plaintiffs.”

Opinion.

On the foregoing facts the trial court held that the plaintiffs had not waived their landlord’s lien by which their debt for advances was secured, and that the defendant Caswell was liable for the amount of such debt, and judgment was rendered accordingly, from which judgment the defendant has prosecuted this appeal.

It is earnestly insisted by counsel for appellant that the facts referred to show that appellees had waived their lien upon the 5 bales of cotton, at least in so far as appellant is concerned; he having bought and paid for the same in due course of business and without any notice of appellees’ rights. In reference to the latter point, it should be kept in mind that the landlord’s lien upon the crops grown upon the rented premises is given by statute, and exists without any instrument of writing, and therefore it is not required to be placed upon record. Hence it follows that, as against such lien, no one can claim protection as an innocent purchaser, and therefore those who purchase farm products acquire no better title than is held by the person who sells the same. This is a sufficient answer to so much of appellant’s argument as is based upon the fact that Caswell bought the cotton from the German Mercantile Company in due course of business and paid full value therefor, without notice of ap-pellees’ rights. He was charged with a knowledge of the law by which some one may have had a landlord’s lien upon the property, and that he could not acquire title to it free from such lien, if it existed. In other words, with some exceptions not necessary to be referred to, the doctrine of caveat emptor applies to all sales of personal property, and therefore the purchaser of such property acquires no better title than his vendor had.

So it becomes necessary to determine whether or not, as against appellees, the German Mercantile Company had acquired perfect title to the cotton before they undertook to sell it to Caswell, and we think that question must be answered in the negative. If it be conceded that appellees conferred authority upon their tenant to sell the cotton, and that payment of sufficient amount of the purchase price to cover their debt was not a condition precedent to passing title to the property, still we are of opinion that what occurred between the Mercantile Company and the tenant was not a voluntary act of sale on the part of the tenant, but was rather an unlawful taking of the property by the Mercantile Company, without the consent and over the protest of the tenant, and therefore the transaction did not constitute a sale. Nor would it be proper to hold that what occurred after-wards between appellee Lensing and the manager of the Mercantile Company constituted a ratification of the unlawful appropriation of the property by that company. • It is true that Lensing accepted from the company a certain sum of money in payment of the amount owing by the tenant as rent, but we are satisfied that by so doing he did not intend to waive the landlord’s lien or any other right appellees had in reference to the tenant’s indebtedness for advancements.

If it be conceded that legal titl'e to the cotton was vested in the tenant, and that the Mercantile Company acquired that title, the fact remains that the tenant’s title was charged with the lien in favor of the landlord, and that the Mercantile Company acquired it subject to that lien, and when they sold the cotton to appellant he acquired no better title than they had and took it subject to appellee’s lien. Gilliam v. Smither, 33 S. W. 984, Planters’ Compress Co. v. Howard, 46 Tex. Civ. App. 291, 92 S. W. 46, Bank v. Bank, 114 S. W. 180, and Melasky v. Jarrell, 131 S. W. 857, cited and relied upon by counsel for appellant, are distinguishable from this case. Those cases hold, and the doctrine is sound, that a landlord may permit a tenant to so manage, control, and sell the crops raised by him as that he, the landlord, will be held to have waived his lien as against the rights of a purchaser from the tenant who has paid to the tenant the purchase price for the property, although the tenant may disregard the instructions given by the landlord as to the application of the purchase money after the property has been sold. - In the case at bar appellant did not purchase the property from the tenant, but from the German Mercantile Company, and there was nothing to indicate that appellees had ever authorized that' company to do anything tending to show that the company had authority to sell any farm products in which appellees were interested.

So our conclusion is that appellees were entitled to recover, and the judgment rendered in their favor is affirmed.

Affirmed.
      ®=3Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    RATLIFF v. WESTERN UNION TELEGRAPH CO.
    (No. 5555.)

    (Court of Civil Appeals of Texas. Austin.
    Dec. 23, 1915.
    Rehearing Denied Feb. 23, 1916.)
    1. Telegraphs and Telephones <s=»65 — Action fob Delay — Sufficiency of Petition —Damage.
    A petition alleging that the president of a bank delivered to defendant telegraph company a prepaid message addressed to plaintiff, stating that, if plaintiff would see the sender in a few days, a loan might be arranged, that defendant failed to deliver the message to plaintiff or inform him of its receipt at its office for about a month, although knowing that he resided there and might be reached by telephone, mail, or in person, that the contents notified defendant of probable loss from delay in delivery, that plaintiff had applied for a loan to purchase cattle, and then knew where he could buy them at a great bargain, that, if he had obtained the loan, he would have purchased about 1,000 head of cattle for less than their market value, that he could not elsewhere obtain the loan, that cattle he would have purchased increased in value after the message was sent, and that plaintiff had been damaged in the sum of $2,900, was insufficient as against a general demurrer, because not showing that plaintiff sustained any injury, in that it did not allege that he would have bought the cattle, the amount of profit which he would have made, where he would have purchased the cattle or to what place the market value referred, or that they would have sold for more than the cost price and the expense of feeding, transportation, etc., and did not allege the amount of the loss; the allegation of damage in the sum of $2,900 being a mere conclusion.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent.'Dig. §§ 54-60; Dec. Dig. <§=>65.]
    2. Pleading <§=>34 — Demubkee — Intend-ments.
    In considering the sufficiency of a petition as against a general demurrer, all reasonable in-tendments and implications are to be indulged in its favor.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 5y2, 66-74; Dec. Dig. <§=»34.]
    Appeal from District Court, Brown County; John W. Goodwin, Judge.
    Action by H. G. Ratliff against the Western Union Telegraph Company. Judgment for defendant sustaining general demurrer and special exception to the petition, and plaintiff appeals.
    Affirmed.
    Scott & Foster, of Brownwood, for appellant. Arch Grinnan, of Brownwood, for ap-pellee.

      Application lor writ o£ error pending in Supreme Court.

   KEY, C. J.

In this case the court below sustained a general demurrer and a special exception to the plaintiff’s iietition, and the correctness of that ruling is the only question involved in this appeal. So much of the petition as is material to this appeal reads as follows:

“(3) That on or about said date John N. Sparks, president of the Stockyards National Bank of said Ft. Worth, Tex., delivered to defendant, at Ft. Worth, Tex., a certain message, to be by it transferred and delivered to plaintiff, at Brownwood, Tex., paying therefor the toll demanded by defendant, to wit, about 50 cents; that said message was as follows, to wit: ‘Fort Worth, Texas, Feb. 9th, 1914. H. G. Ratliff, Brownwood, Texas. If you can come to Fort Worth in the next few days think we can arrange for loan you wish. John N. Sparks, President’ — which said message defendant then and there accepted and agreed and bound itself to transmit and deliver with reasonable diligence and dispatch to plaintiff at Brownwood, Tex.
“ (4) That defendant negligently failed and refused to deliver said message to plaintiff, or to in any way apprise and inform him of its receipt at defendant’s said office in Brownwood, Tex., until the expiration of about one month from the date same was so received by defendant, and not then until plaintiff learned from the sender of said message that same had been sent, and thereupon called upon defendant’s agents and servants at Brownwood, Tex., when they, for the first time, informed him (plaintiff) that such message had been received by them for him, notwithstanding they well knew that he lived and resided in Brownwood, Tex., where he could be easily reached and communicated with by telephone and by mail or in person.
“(5) Plaintiff says that the contents of said message were such that any ordinarily prudent and reasonable person could understand them, and were full and ample notice to said defendant and its agents of the importance thereof, and that loss was likely to occur to plaintiff if said messago was not promptly transmitted and delivered.
“(6) That at the time aforesaid plaintiff was a ranchman and stock dealer, and was an extensive buyer and seller of cattle, and a general dealer therein, as defendant well knew; that at and before the time aforesaid plaintiff had applied to said Stockyards National Bank, of which the said John N. Sparks was president, for a large loan, with which to purchase certain cattle; that said bank was doing a large business of this kind, as defendant well knew; that at the time aforesaid plaintiff knew where hé could buy such cattle at a great bargain, and. if he had received said message promptly and within a reasonable time, he would have gone to Ft. Worth, Tex., and arranged for the loan referred to in said message, and would with said money thereby obtained have purchased about 1,000 head of cattle, which he would have purchased for much less than the real market value thereof.
“(7) That, notwithstanding plaintiff made diligent effort, he was unable to and wholly failed to secure or obtain said money from any other source, and therefore he could not purchase said cattle at said time and price, to his great damage.
“(8) That the cattle plaintiff would have purchased began to increase in market value shortly after the said 9th day of February, 1914, and by the time plaintiff heard and learned of the sending of said message, and that he could secure said loan, said cattle were worth on the market from $3 to $5 more than they were at the time plaintiff would -have purchased them had he received said message in due time, to his great damage.
“ (9) Plaintiff says that by reason of the premises he has been damaged in the sum of $2,900, and the costs of sending said message, to wit, 50 cents.”

Opinion.

Tile special exception asserted that the petition was insufficient, because it failed to show that the defendant had notice or knowledge of the damages sued for at the time it received the message; but, as we affirm the judgment for another reason and because the general demurrer was properly sustained, we deem it unnecessary to pass upon the question raised by the special exception.

We think the general demurrer was properly sustained, because the facts alleged in the petition do not show that the plaintiff sustained any injury. It does not allege that the plaintiff would have bought the cattle and held them for breeding or any other purpose. On the contrary, it alleges that the plaintiff was extensively engaged in the business of buying and selling cattle, and the fair inference is that he intended to buy the cattle in question and sell them again in some live stock market in the due course of his business of buying and selling live stock. But, whatever may have been his purpose, the petition does not allege facts which show that he sustained a loss, either of profits that he would have made upon a resale of the cattle or' by holding them for breeding purposes. So, if it be true, which we do not decide, that a merchant or banker or dealer in live stock can recover from any one who prevents him from borrowing money to add to his capital the amount of profit which he would have niade by reason of such addition to his capital stock, the petition in this case falls short of disclosing a cause of action, even upon that theory. It does not allege the amount of profit which the plaintiff would have made if he had obtained the loan, and therefore it does not show that he has sustained any injury in the business in which he alleges he was engaged. The petition merely alleges that he -knew where he could purchase cattle at a great bargain, and that, if the defendant had complied with its contract and promptly delivered the message, he would have procured the loan and purchased about 1,000 head of cattle for much less than their real market value. But those allegations fall short of showing that he would have made a profit upon the cattle so purchased. The petition shows that the plaintiff resides in Brown county, Tex., but it does not allege at what place he could have purchased the cattle, nor whether the market value referred to in the petition was such value at the place where he would have purchased them or at the place where he expected to sell him. But, even if those facts had been alleged, unless the petition had shown that after paying the expense of feeding and transporting the cattle to market they would have sold for more than the cost price and such additional expense, it would not have shown that the plaintiff would have made a profit. If the plaintiff had bought the cattle for less than their market value at either or both the place of purchase and the place of sale, still it may be that the additional cost of placing them upon the market would have absorbed the difference between the cost price and the amount for which they would have sold, and left no margin for profit. However, we do not mean to hold that, if the plaintiff had alleged in his petition that, if he had procured the loan referred to, he would have bought the cattle, and thereafter sold them for a specified amount of profit, it would not have been sufficient in that respect as against a general demurrer; but it contains no such averment, and therefore it fails to show that the plaintiff has sustained any loss by reason of the failure to promptly deliver the telegram. It is true that the petition alleges that, as a result of the facts stated, the plaintiff was damaged $2,900, but that allegation is a mere conclusion of the pleader. In order to state a cause of action the petition should have stated facts from which it would appear, as a matter of law, that damage had been sustained; and the mere allegation that, on account of the facts stated, damage had resulted in the sum of $2,900, cannot be considered as supplying the facts necessary to show that such damage had resulted; Hence we conclude that the plaintiff’s petition is not only vague and indefinite, but wholly fails to allege certain facts necessary to constitute a cause of action. Furthermore, if it could be held that the petition, by fair inference, alleges a loss, it does not allege the amount of such loss, and therefore does not state a cause of action within the jurisdiction of the district court, unless the general averment that the plaintiff had been damaged $2,900 should be regarded as equivalent to an allegation that he would have made that much profit if appellee had complied with its contract, which we do not think is permissible.

It is proper to say that, in considering the sufficiency of the petition as against the general demurrer, we have not overlooked the well-established and just rule that all reasonable intendments and implications are to be indulged in its favor; but, notwithstanding that rule, our conclusion is that the petition is so radically defective that it must be held that’ it does not state a cause of action; and, for that reason, we hold that the general demurrer was properly sustained, and that the judgment complained of should be affirmed; and it is so ordered.

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


author: BROOKE, J.

text:
    KIRBY LUMBER CO. v. HARDY.
    (No. 18.)
    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 6, 1916.)
    Trial <§⅛>234 — Instructions — Requiring Jury to Eind as to Specified Facts.
    Where there was testimony in a negligence case which, if believed by the jury, would have entitled them to find for the defendant on account of contributory negligence, it was error for the court to refuse to give a special instruction requested by the defendant affirmatively requiring the jury to find whether the evidence established the existence of a specified group of facts which, if true, would in law establish his- plea.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 53A-538, 566; Dec. Dig. <S=>234.]
    Appeal from District Court, Jasper County; A. E. Davis, Judge.
    Action by W. A. Hardy against the Kirby Lumber Company. From a verdict for the plaintiff, the defendant appeals.
    Reversed and remanded for a new trial.
    Andrews, Streetman, Burns & Logue, of Houston, for appellant. Powell & Huffman, of Jasper, for appellee.
   BROOKE, J.

This suit was brought in the district court of Jasper county, Tex., by W. A. Hardy, as plaintiff, against the Kirby Lumber Company, as defendant, to recover damages for personal injuries alleged to have been sustained by him on or about the 13th day of November, 1912, while in the employ of the Kirby Lumber Company in the logging branch Of its business. The jury before whom the case was tried returned their verdict for plaintiff in the sum of $4,000, and judgment was accordingly rendered thereon in plaintiff’s favor.

The Kirby Lumber Company duly filed its original motion for new trial, and thereafter its first amended original motion for new trial, which was by the court overruled. To the ruling of the court last mentioned the Kirby Lumber Company in open court duly excepted and gave notice of appeal to the Court of Civil Appeals at Galveston, and thereafter filed its supersedeas bond, and perfected its appeal to that court, and the cause was transferred to this court, and is now before us for adjudication.

The plaintiff was employed by the Kirby Lumber Company as a grabsetter. His place of work was in the woods, where the logs which ha<j. been cut were being carried or dragged by means of log carts, to the tram-road for loading on the cars and transportation to the mill. These log carts are of skeleton construction, consisting mainly of two wheels, an axle, a slip tongue, a lever, and a set of grabs or hooks. The wheels are about eight feet in diameter, while the distance between the wheel, or the length of the axle, is about six feet. The grabs, or hooks, hang midway between the wheels. The slip tongue controls the grabs. When the tongue is slipped back in the groove in which it works, the grabs are let down to the log, and when the tongue is pulled forward, the grabs are raised. In order to move a log, the log is straddled by the wheels, and the grabs are then let down and hooked by the grabsetter near the center, but slightly towards the front, or team end, of the log. The team is then started forward, and while the cart wheels remain stationary, the log, by means of the slip tongue, is raised from the ground and suspended under the axle, nearly balanced, with the back end touching the ground and the front or team end clear of the ground.

On the occasion of the accident, which occurred about 5 o’clock in the afternoon, the cart team, consisting of four mules, was pulling a log cart and a log about 24 inches in diameter up an incline, when it became stalled. The woods foreman, Mr. Sheffield, coming up and finding the team stalled, proceeded to assist in, or direct, the work of getting the log up the hill. He, himself, put a chock or skotch under the right-hand wheel, and he directed the plaintiff to put one under the left-hand wheel. The cart team was caused to pull alternately to the right and left, and when it would move the right wheel, Mr. Sheffield would move his chock up, and when it would move the left wheel, the plaintiff would move his chock. The process resulted in a considerable hole being worked in the ground by the alternate movement from right to left of the wheels, and the cart team was unable to get the- log up the hill. The team was then backed, slipping the tongue backwards and letting the log to the ground, and with the log on the ground and released from the cart, the cart was moved, or jumped, forward out of the hole. The cart team then pulled the cart forward and again raised the front end of the log from the ground, suspending the log under the axle and between .the wheels. Mr. Sheffield, in the meantime, directed the driver of a bunching team, consisting of two mules, to hitch his team onto the front end of the log. The bunching team was equipped with single trees, a double tree, a chain attached to the double tree, and a pair of tongs or grabs attached to the chain; the team being used to bunch the logs together in the woods. The bunching team was brought up to the right-hand side of the cart mules and hitched onto the log by fastening the tongs to the front end of the log; the front end of the log being at an angle to the left of the bunching team. When this was done and 'the teams pulled forward, the back end of the log was caused to swing around towards the left-hand cart wheel. The plaintiff’s claim was that just as the cart moved, some one, whom he took to be Mr. Sheffield, halloaed to him to take up his chock, and that as he stooped to do this he was injured by the aforesaid movement of the log.

The grounds of negligence charged in plaintiff’s petition and relied upon for a recovery are as follows: (1) That the defendant negligently and carelessly hitched the bunching team to the front end of the log instead of to the cart in front of the cart team. (2) That the defendant negligently and carelessly failed to place a check line on the bunching team to prevent it from pulling crosswise. (3) That the place where plaintiff was required to work was dangerous and unsafe when teams were hitched both to the cart and the front end of the log, and that defendant was negligent in requiring plaintiff to work in such dangerous and unsafe place, in that the defendant failed to use reasonable or ordinary care to provide a safe place or a reasonably safe iJlace for plaintiff to work in. (4) That plaintiff was inexperienced in the work he was doing and did not know of the danger of the log being pulled over against him, and that the defendant in no manner or way notified him, or caused him to be notified, of such danger.

The defendant’s pleading was: (1) That the fact that the bunching team was hitched to the front end of the log and that there was no check line on said team were known to plaintiff, or must necessarily have been known to him by the exercise on his part of ordinary care, and that the risks and dangers arising therefrom were fully known to and appreciated by him; he being a man of mature years, and being present where the work was being performed and able to see with his own eyes and hear with his own ears what was then and there taking place; and that said facts were open, apparent, and visible to him, and the risks and dangers thereof assumed by him. (2) That the manner in which the bunching team was hitched to the log and the manner in which the log was moved was in all respects a proper, usual, and customary method of doing said work; that in the operation of moving the logs from place to place, whether pulled by a cart team alone or by a cart team and bunching team, the logs would, as a usual, customary, and frequent thing, move from side to side so that any one near the same might be caught or injured thereby, unless a sufficient distance therefrom to be out of the way of such movements ; that the risk and danger from movements of the log were incident to the work and fully known to and appreciated by the plaintiff, and that such risk and danger were by plaintiff assumed. (3) That if the plaintiff’s place of work was unsafe by reason of the manner in which the teams were hitched to the cart and log, nevertheless it was apparent to plaintiff that the team was hitched to the log and he could see that such was true, and the risks and dangers arising therefrom were open, apparent, and visible to him, and were in all things assumed by him. (4) That plaintiff was guilty of contributory negligence for the reason that, instead of getting out of the way of the log as he could and should have done, he carelessly permitted the log to strike him, when before it was moved he could have stepped to a place of safety and gotten entirely out of the way of danger. (5) That if, as alleged by plaintiff, the log in question was turned to the side or crosswise and such was the result of any negligence upon the part of the driver of the bunching team or the driver of the cart team, such negligence was that of plaintiff’s fellow servant.

We shall not discuss the various assignments of error that are relied upon by the appellant for a reversal of this cause, save and except the thirteenth assignment, a consideration of which will dispose of- the case.

By said assignment appellant claims that the court erred to the prejudice of the defendant in failing and refusing to give, in charging the jury, defendant’s special charge No. 3, requested by it, and reading as follows, to wit:

“Gentlemen of the Jury: You are charged in this ease, that if you believe from the evidence that the plaintiff, W. A. Hardy, upon the occasion in question, saw the bunching team being hitched to the log in question, and knew that said bunching team was hitched thereto, and you further believe from the evidence that the said W. A. Hardy then and there knew that when said bunching- team pulled on said log, the said log would be turned or caused to swing towards the left-hand wheel of the cart, or if you believe that said W. A. Hardy, in the exercise of ordinary care on his part, must necessarily have known that when said bunching team pulled on said log the said log-would thereby be caused to turn or swing towards said left-hand cart wheel, then and in such event you are charged that the said Hardy then and there assumed the risk of being injured by said log, and your verdict must in such event be in favor of the defendant, Kirby Lumber Company.”

Appellant claims that it was entitled to demand the giving of a charge affirmatively requiring the jury to find whether the evidence establishes the existence of a specified group of facts, which, if true, would in law establish his plea, and instructing them that if they find such group of facts proven, to find in its favor.

The charge of the court in many particulars might justly be said to be open to much of the criticism directed against it. That portion of the charge complained of is as follows:

“(1) And you further believe from the evidence that in hitching the said team to the said log in the manner and way it was hitched was negligence on the part- of the defendant in so hitching and pulling said log.
“(2) And you further believe from the evidence that in hitching the bunching team to the log which was suspended between the wheels increased the danger, if any, and made the place in which the said Hardy had to work in order to scotch the wheel ⅜ ⅜ ⅜ more dangerous and hazardous.
“(3) And you further believe from the evidence that by reason of hitching the team to the front end of the log to assist the main team to pull the same, in the way and manner it was hitched to said log, and causing said teams to pull the said log, was negligence on the part of the defendant.
“(4) And in so hitching to and pulling said log as aforesaid was the proximate cause of the injury.
“(5) And you further believe from the evidence that at the time the team was ordered to pull the said log the said Tom Sheffield knew, or by the use of ordinary eai-e and diligence ought to have known, that the plaintiff was scotching the said wheel * * * and in a dangerous position ⅜ * * and he failed to warn him of the danger.
“(6) And if you believe that said defendant in moving said log from said position * * * under all the evidence before you was guilty of negligence.
“(7) Then you will find for plaintiff, provided you further find from the evidence that the negligence of the defendant, if any, was the proximate cause of the injuries to plaintiff.”

It will Jbe noted that the charge of the court nowhere undertakes to apply affirmatively the law to the evidence adduced in support of the plea of the defendant (appellant). It is said by Judge Denman, in the case of M., K. & T. Ry. Co. v. McGlamory, reported in 89 Tex. 639, 35 S. W. 1059, that:

“Defendants had the right to prepare and demand the giving of a charge requiring the jury to find whether the evidence established the existence of any specified group of facts which if true would in law establish such plea, and instructing them- that if they found such group of facts to be established by the evidence, to find for defendants. And this would be true if proper charges had been asked as to each of the several special pleas of contributory negligence presented by the record. Any other rule would deprive litigants of their right to have the court explain to the jury the principles of law applicable to the very facts constituting a cause of action or defense so that they may intelligently pass upon the various complicated issues frequently presented for their determination in one case under our practice. Railway Co. v. Shieder, 88 Tex. 166 [30 S. W. 902, 28 L. R. A. 538],
“This rule does not permit a litigant to annoy the court or confuse the jury by special charges upon the weight of or giving prominence to each circumstance introduced tending to support his cause of action or defense, but requires him at his peril to present in such special charge for the consideration of the jury a fact or group of facts which, if found by them from the evidence to be true, establishes, in law some material issue presented by the pleading.”

Judge Williams, in the case of St. L. S. W. Ry. Co. of Texas v. Hall, 98 Tex. 488, 85 S. W. 790, used the following language:

“As we have stated, there was no instruction given affirmatively calling to the attention of the jury any view of the facts which would acquit the defendant of liability, except that upon the subject of contributory negligence. That a party is entitled, when he requested by correct instructions, to have the facts establishing his cause of action or gu-ound of defense, with the law applicable to them, affirmatively stated by the court to the jury, is the settled rule of practice established by many decisions of this court. Texas T. Ry. Co. v. Ayres, 83 Tex. 269 [18 S. W. 684]; M., K. & T. Ry. Co. v. McGlamory, 89 Tex. 639 [35 S. W. 1058]. It is no answer to a complaint that this was not done that the jury might negatively have inferred the proposition expressed in the request from the instructions stating the case of the opposite party. The right is, upon proper request, to have the law plainly and affirmatively stated in its application to facts supported by evidence under which the party would be entitled to a verdict. The instruction in question was applicable to a view of the evidence which the jury might have taken, and the rule on the subject required that it be given, if it truly stated the law. We are unable to see wherein it is incorrect. It refers, it is true, to particular facts, but submits to the jury whether or not those facts existed, and constituted negligence on the part of the defendant. It has no reference to the question of negligence on the part of plaintiff, and lays down no rule on that subject, but mer'ely seeks an appropriate instruction on the question of defendant’s negligence.”

From the facts in the instant case, we are of opinion that it was error in the court to refuse to give the special instruction asked by the defendant, as there was testimony, which, if believed by the jury would have entitled them to find for the defendant. We sustain this assignment.

The ease will have to be tried again, and we have therefore refrained from any comment upon the testimony. The case is therefore reversed and remanded for a new trial.
      <g^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TEXAS & N. O. R. CO. v. McALLISTER.
    (No. 58.)
    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 27, 1916.
    Rehearing Denied Feb. 23, 1916.)
    1. Carriers <§=>381 — Ejecting Passenger-Provocation — Mitigatino Damages.
    In plaintiff passenger’s suit against defendant railroad to recover for excessive force used by defendant’s conductor in ejecting him from a train, whefe plaintiff’s indecent offensive language incensed the conductor so that he was provoked into using such extra force, defendant was entitled to have such provocation considered by the jury in mitigation of damages.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1473-1476, 1479-1482; Dec. Dig. <§=>381.]
    2. Trial <§=>260 — Passenger — Provoking Conductor — Right to Special Instructions.
    In such action defendant was entitled to its requested instruction grouping the facts upon which it relied as entitling it to such mitigation, notwithstanding that the court’s general charge might in a general way lay down the rule of law applicable thereto.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <§=>260.]
    Appeal from Tyler County Court; Tom F. Coleman, Judge.
    Action by D. L. McAllister against the Texas & New Orleans Railroad Company. Judgment for plaintiff, and defendant appeals.
    Reversed.
    Hightower, Orgain & Butler, of Beaumont, Thomas & Wheat, of Woodville, and Baker, Botts, Parker & Garwood, of Houston, for appellant. Mooney & Shivers, of Woodville, for appellee.
   BROOKE, J.

This was a suit brought by D. L. McAllister, plaintiff below, against the Texas & New Orleans Railroad Company, defendant below, in which the plaintiff sought to recover damages, both actual and exemplary, claimed to have been sustained by him in consequence of his being wrongfully and forcibly ejected from one of defendant’s passenger trains while a passenger thereon, about the 7th day of June, 1913.

Plaintiff’s second amended original petition, on. which he went to trial, alleged, in substance, that he hoarded defendant’s passenger train at Kountze, in Hardin county, Tex., intending to be carried and transported as a passenger thereon to Woodville, in Tyler county, Tex., and that he paid the usual and proper fare for a passenger, and was entitled to he carried as such passenger to his said place of destination, hut that just after passing the station of Village Mills, on defendant’s line of railway, defendant’s conductor, one Carl G-uynes, came to plaintiff, and in a violent, angry, threatening, abusive, and oppressive manner, ordered plaintiff from said train, and wrongfully, unlawfully, forcibly, and maliciously ejected plaintiff from said train.

Plaintiff further alleged that while a passenger on said train, and prior to such ejection by defendant’s conductor, he (plaintiff) behaved and conducted himself in a quiet, peaceable, orderly, and gentlemanly manner. Plaintiff also alleged that defendant’s said conductor, when he came to eject plaintiff, grabbed hold of plaintiff’s arm with great violence, which caused plaintiff physical pain and suffering; that plaintiff was jerked from his seat and led down the aisle of the car in the presence of passengers, and that when the door of the car was reached, defendant’s said conductor, over the protest of plaintiff, pushed and shoved plaintiff from said car with great and unnecessary violence.

Plaintiff further alleged that he was greatly humiliated and embarrassed, and suffered mental pain and anguish in consequence of such ejection. Plaintiff further alleged that defendant, after being informed in the premises, and well knowing of plaintiff’s being ejected from the train, and the manner thereof, and a breach of its said contract with plaintiff, and being apprised of the willful, malicious and unlawful conduct of said conductor, Guynes, continued said conductor in its employ, and ratified, approved, and confirmed the acts and conduct of the said conductor in ejecting plaintiff from said train and the manner thereof.

Defendant, by its first amended original answer, on which it went to trial, denied generally all the allegations of plaintiff’s petition, to the effect that plaintiff was wrongfully ejected from defendant’s said train on the occasion in question, and alleged, in substance, that plaintiff was ejected from its train by its conductor after said train had reached Village Mills, for the reason that plaintiff was guilty of misconduct, and used abusive, vulgar, and indecent language in the presence and hearing oí other passengers upon defendant’s said train at said time, and was cursing and drinking, and was engaged in general bad conduct, and that plaintiff used insulting and abusive remarks to and applied to defendant’s conductor and trainmen indecent and vulgar language and opprobrious epithets, and that in consequence and on account of such language and conduct, defendant’s conductor ejected plaintiff from said train.

The case was submitted to a jury on a general charge by the court, and resulted in a verdict in favor of plaintiff in the sum of ?362.50.

Defendant filed its original motion, and its amended motion for new trial. The same was overruled by the court, to which defendant objected, and gave notice of appeal, and this cause is before this court upon assignments of error filed by the defendant.

We shall not consider anything except the appellant’s second assignment of error, as upon that rests the decision of this case.

The said assignment is as follows:

“The court erred to the prejudice of defendant in failing and refusing to give to the jury special charge No. 7, requested by defendant, which was as follows: ‘If the jury shall believe from a preponderance of the evidence that defendant’s conductor, in ejecting plaintiff from said train, used more force than was necessary to accomplish said ejection, yet if the jury further believe that the plaintiff, at the time of such ejection, or immediately before, used vile and indecent language to defendant’s conductor, calling, if he did, defendant’s conductor a “son of a bitch,” or words to that effect, and that defendant’s conductor, in using such extra force, if he did, did so because he was provoked and incensed by such language used by plaintiff to him, if any, then in assessing the actual damages in plaintiff’s favor, you may take in consideration such language on the part of plaintiff towards defendant’s conductor, if the same was used, and reduce such actual damages sustained by plaintiff by reason of such extra force, if any, to such sum as you may believe proper in consequence of such provocation offered to the defendant’s conductor.’ ”

The said charge embodies a correct proposition of law, and should have been given. There is testimony in this record calling for such a charge. The identical question was passed on by Judge Fly in the case of II. & T. C. Ry. Co. v. Batchler, 32 Tex. Civ. App. 14, 73 S. W. 981. Prior to that time, it seems,, the question was never, directly passed on by the courts of Texas. The court says:

“It is argued by the courts holding' that mitigation of damages cannot be allowed for words of provocation that, if they may mitigate, they may reduce the damages to a mere nominal sum, or even fully justify. We can readily conceive of cases of such outrageous provocation that should justify the reduction of damages for an assault to a nominal sum. and, were it not for the unbroken precedents, we would be inclined to go further and hold that it should preclude the assaulted party from recovery. An injured person is not permitted to .recover damages when his negligence has contributed to his injury, no matter how negligent the party who inflicted the injury may have been; and when a man has, by his willful and inexcusable conduct, brought upon himself an assault, the jury should at least be permitted to consider such conduct in arriving at the amount of damages that should be awarded him.
“The criminal law recognizes human frailty under the influence of sudden passion arising from an adequate cause, and the punishment for assaults and batteries may be mitigated by proof of insulting words, and tl\e crime of murder reduced to a lower degree of homicide, and we can see no reason why damages brought about by the misconduct of a person should not be mitigated by proof of such misconduct.
“Railroads should be held to a strict accountability in the protection of passengers from the violence of their employés, and should be made to respond in damages for injury inflicted by such violence; but the passenger should not be licensed to trample upon the feelings and disregard the rights of the employés.”

In the second place, the defendant was entitled td said instruction, and the grouping of the facts upon which he relied as a defense, notwithstanding the general charge of the court might, in a general way, give the rule of law applicable to such defense. This is well settled in the courts of this state. Ft. Worth & Denver Ry. Co. v. Alcorn, 178 S. W. 833; Yellow Pine Oil Company v. Noble, 101 Tex. 125, 105 S. W. 318; Railway Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058; Railway Co. v. Hall, 98 Tex. 480, 85 S. W. 786; Kirby Lumber Company v. W. A. Hardy, 183 S. W. 80, recently decided by this court.

For the error complained of, this cause is reversed and remanded for a new trial.
      cgs^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    BRITAIN v. RICE.
    (No. 5553.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 12, 1916.)
    1. Witnesses <§=>240 — Examination—Leading Question.
    Unless some exception exists, leading questions as to a material fact are not allowable; therefore, in an action for commissions for effecting a sale of land, it is improper to allow leading questions to the plaintiff broker as to whether defendant did not promise under stated circumstances to pay the commission.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 837-839, 841-845; Dec. Dig. <§=>240.]
    2. Evidence <§=>213 — Admissions — Oompro-mise.
    In an action for commission for securing a purchaser for land, the broker is not entitled to show that he offered to arbitrate the controversy, but defendant refused; such testimony tending to prejudice defendant before the jury.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 745-751, 753; Dec. Dig. <§=>213.]
    3. Appeal and Error <§=>1170 — Review — Harmless Error.
    In an action for commission for effecting a sale of land, where the evidence as to plaintiff’s right to commission was conflicting, the impropriety of allowing leading questions to plaintiff as to defendant’s promise cannot be held harmless under rule 62a (149 S. W. x) and the judgment affirmed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dee. Dig. <§=>1170.]
    Appeal from Coryell County Court; H. E. Bell, Judge.
    Action by W. E. Rice against J. M. Britain. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    McClellan & McClellan, of Gatesville, for appellant. Hears & Watkins, of Gatesville, for appellee.
   JENKINS, J.

Appellee recovered judgment against appellant for the sum of $300, as commission on the sale of land. Appellant listed his land with appellee for sale at $6,000, stating that he preferred to sell for cash, but would take $3,000 or $4,000 in cash and the balance on terms to suit the purchaser. The appellee found a purchaser who was willing to take the land at the price, provided the appellant would ta£e an automobile as a cash payment for $650, and vendor’s lien notes for the remainder. Appellant informed appellee of the offer, and stated that he could not take the automobile as a cash payment, unless appellee would take the same and pay him $350 difference between the price of the automobile and his commission. This appellee declined to do. Appellant then informed appellee that he would make the trade and take the automobile if appellee would accept $50 as,his commission. The evidence raises the issue as to whether or not the terms as thus proposed' were accepted. The trade was finally closed; appellant taking the automobile as a payment on the land.

Appellant’s first assignment of error is as follows:

“The court erred upon the trial hereof and during the introduction of testimony and while plaintiff was testifying as a witness in his own behalf in permitting counsel for plaintiff over the objection of defendant to ask plaintiff the following question to wit: ‘He [meaning defendant] told you, did he not, that if he traded with the party or parties named by you [meaning old man Stanfield or any of his sons] that he would pay you a commission of .5 per cent?’ — and in permitting said witness to answer such question in the affirmative, for the reason that counsel for plaintiff had theretofore been repeatedly admonished by the court not to lead his witness, and because said question is in its nature highly leading and suggestive of the answer expected, and because said question related to a highly material matter, an affirmative answer to same being absolutely essential to plaintiff’s cause of action herein, and because the witness was counsel’s own witness, and was a willing, and not a reluctant, witness, and was and is an astute and capable man, whose memory was fresh upon the matter about which he was being interrogated, and because the witness without suggestion had previously testified to a conflicting agreement with defendant, and the admission of the suggested answer to such leading question was highly prejudicial to this defendant, as more fully appears by defendant’s bill of exception No. 4.”

This assignment is practically a copy of appellant’s bill of exceptions, and formed the fourth paragraph of appellant’s motion for a new trial. Just previous to the question objected to appellee testified as follows:

“I then told the defendant that I believed old man Stanfield or some of his boys would buy the place. In this conversation the defendant told me that if he sold the place he would want all cash, but might take $3,000 or $4,000 in cash and the balance on time. That was what he told me when I asked him how he would sell the place.”

Whereupon appellee’s attorney propounded the following question:

“He told you, did lie not, that if he traded with the party or parties named by you that he would pay you a commission of 5 per cent.?”

Which question appellee answered in the affirmative.

In Railway Co. v. Hammon, 92 Tex. 515, 50 S. W. 123, Chief Justice Gaines, speaking for the court, -said:

“In a very few jurisdictions it is held that the admission of leading questions is discretionary with the trial court, and that therefore its action upon the matter is final. In others, it seems to be held that, in order to reverse for the admission of an answer to a leading question, the burden is upon the appealing party to show by his bill of exceptions that the court did not admit it in the exercise of a sound discretion as coming under some one of the exceptions to the rule. \Ve think, however, that since the general rule is that leading questions as to a material fact are not allowable, in order to sustain the action of a court in admitting answers thereto, the record should show that for some sound reason the judge saw proper to exercise his discretion and to relax the rule. Such we understand to be the rule of decision in this court. In no case in our reports in which this question has been discussed, from Able v. Sparks, 6 Tex. 349, to Railway v. Duelin, 86 Tex. 450 [25 S. W. 406], have we found any intimation that, in the absence of a showing in the bill of exceptions to the contrary, the appellate court will presume that an answer to a leading question was admitted, not because the trial judge was of opinion that it was not leading, but for the reason that he considered that the circumstances demanded that he should exercise his discretion and admit it.”

In this case, as in the case above referred to, “we do not see from the face of the record a single circumstance to justify the court in departing from the general rule.” The witness was not only not unwilling, but was the plaintiff in the case. The question was very material, and certainly suggested the answer desired. The court committed reversible error in overruling appellant’s objection. Gordon v. McCall, 20 Tex. Civ. App. 283, 48 S. W. 1111; Cleveland v. Taylor, 49 Tex. Civ. App. 496, 108 S. W. 1037.

We also sustain appellant’s second assignment of error, which relates to the action of the court in permitting appellee to testify that, in a conversation with appellant wherein he claimed that appellant owed him $300, and appellant claimed that he owed him only $50, appellee offered to arbitrate the matter by the parties’ selecting three disinterested men and making their statements to them and abiding by their decision. It is not permissible upon the trial of a cause for a party to prove that he offered a settlement or to compromise the matter in dispute, and such evidence is calculated to prejudice the opposite party by impressing the jury with the good faith of the party making the offer. The right of a party to recover in a suit depends upon the law and the facts, and not upon his good faith in reference to the same. Railway Co. v. Green, 35 S. W. 819; Wall v. Melton, 94 S. W. 358; Railway Co. v. Ragsdale, 67 Tex. 24, 2 S. W. 515.

If the evidence in this case was such as to clearly indicate that appellee should have recovered upon the merits, we would be disposed to affirm the case under rule 62a (149 S. W. x); but in this case the evidence is not only sharply conflicting, but, as we see it, preponderates somewhat in favor of appellant.

For the reasons stated, the judgment of the trial court is reversed, and the cause is remanded for a new trial.

Reversed and remanded.
      ¡gcwFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    DAY et al. v. VAN HORN TRADING CO.
    (No. 5557.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 12, 1916.)
    1. Pleading ⅞=318 — Petition—Allegations —Sufficiency.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1827, providing that the petition shall set forth a full statement of the cause of action, a petition, alleging that defendants, as owners and promoters of a land company, contracted with plaintiff’s assignor for the erection of seven buildings in a town named, and to do “certain other work” in and about the town site, as a mechanic, was insufficient, because not definite enough to enable defendants to prepare their defense, or to put them on notice of the matters expected to be proved.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 39, 64; Dec. Dig. <S=»18.]
    2. Pleading <©=3330 — Issues, Peooe, and Variance.
    Where a verified account attached to the petition contained items other than those set forth in the petition, the account was inadmissible, as tending to establish a different contract from the one sued on.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 996-1002; Dec. Dig. <©=3330.]
    3. Assignments <©=3138 — Actions by As-signee — Evidence—Instructions.
    Where, in an action by an assignee of a claim, plaintiff alleged in the petition that the claim sued on was transferred to it for a valuable consideration, and the assignor testified that he .sold the claim to plaintiff for a specified sum, and the written transfer was introduced in evidence, refusal to submit to the jury the question whether plaintiff was the owner of the claim sued on was not erroneous.
    [Ed. Note. — Por other cases, see Assignments, Cent. Dig. §§ 235-238; Dec. Dig. <©=j138.]
    4. Judgment <©=>683 — Actions by Assignee —Conclusiveness.
    A judgment for an assignee, suing an assignor and the debtor on the account assigned, is conclusive as to the ownership of the claim, and is binding on the assignor.
    [Ed. Note. — Por other cases, see Judgment, Cent. Dig. § 1206; Dec. Dig. <©=3683.]
    5. Limitation "ox Actions <©=>127 — Amendments — New Cause ox Action.
    Where the original petition filed before the running of limitations alleged that defendants contracted with plaintiff’s assignor for the erection of houses in a town and for other work in and about the town site, as a mechanic, that defendants agreed with plaintiff’s assignor to pay him for the work the amounts mentioned in an itemized account attached, and the account, attached as an exhibit, contained the item, “meals provided at opening, $300.00,” the petition and the exhibit showed that the suit was brought to recover for meals furnished, and an amended petition, alleging that defendants agreed to pay plaintiff’s assignor 50 cents per meal for persons coming to. the town-site opening conducted by defendants, and that in pursuance thereof plaintiff’s assignor prepared 600 meals for which defendants became liable to pay, did not set forth a new cause of action barred by limitations.
    [Ed. Note. — For other eases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. @=> 127.]
    6. Limitation of Actions @=>123 — Running of Limitations — Pleadings.
    ⅛ An original petition, though insufficient on general demurrer, prevents the running of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 539; Dec. Dig. @=> 123.]
    7. Contbacts @=>346 — Issues, Pboof, and Variance — Quantum Meruit.
    One suing on an express contract may not recover on a quantum meruit.
    [Ed. Note.' — For other cases, see Contracts, Cent. Dig. §§ 1714, 1718-1751; Dec. Dig. @=> 346.]
    Appeal from District Court, Tom Green County; J. W. Timmins, Judge.
    Action by the Van Horn Trading Company against J. R. Day and another. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    Hill, Lee & Hill and Thomas & McCarty, all of San Angelo, for appellants. Joe Irby, of Van Horn, and Blanks, Collins & Jackson, of San Angelo, for appellee.
   RICE, J.

It appears from the evidence that in 1910 J. R. Day and Levi Anderson, as owners of the Plateau Valley Land Company, employed Geo. E. Darsey, a mechanic, to erect certain houses upon said town site, and to do other work in connection therewith. In pursuance of said employment Darsey erected the houses, as well as performed other services. Subsequent thereto he transferred his claim, therefor to the Van Horn Trading Company, and it brought this suit against Day and Anderson, as well as Geo. E. Darsey, to enforce the payment of such claim. Appellants Day and Anderson answered by general demurrer-and special exceptions, which were overruled, and admitted that they had employed Darsey to build the houses, agreeing to pay him therefor at the rate of $3.50 per day, but denied that they agreed to pay him the amounts as alleged in paragraph 3 of the petition, and specifically denied several of the items set out in the account attached to the petition, but admitted owing him the sum of $219.65. There were other pleadings filed by both parties, which will be hereafter noticed. There was a jury trial on special issues, which resulted in a verdict and judgment in behalf of appellee, from which appellants Day and Anderson alone have appealed.

The petition, among other things, in paragraph 3, alleges that appellants, as owners and promoters of the Plateau Valley Land Company, contracted with defendant Darsey for the erection of seven houses in the town of Plateau, Tex., and to do certain other work in, on, and about the town site of Plateau, Tex., as a mechanic. A special exception was addressed to that part of said paragraph wherein it undertakes to allege an agreement on the part of appellants to pay Darsey for certain work in, on, and about the town site of Plateau, Tex., for the reason that said allegation was not definite enough to enable defendants to prepare their defense, or to put them upon notice of the things and matters expected to be proved as constituting “certain other work.” This demurrer was overruled, to which appellants excepted. In this the court erred. The facts constituting plaintiff’s cause of action should be set forth with such precision, clearness, and certainty as to apprise the opposite party of what he will be called upon to answer. This the petition fails to do, and was subject to the demurrer. See Vernon’s Sayles’ Civ. Stats, art. 1827; Mims v. Mitchell, 1 Tex. 446; Wright v. Wright, 3 Tex. 168; Caldwell v. Haley, 3 Tex. 318; City of San Antonio v. Routledge, 46 Tex. Civ. App. 196, 102 S. W. 756; Texas Cent. Ry. Co. v. Hannay-Frerichs & Co., 130 S. W. 250, 255, 256; Mayton v. T. & P. Ry. Co., 63 Tex. 77, 51 Am. Rep. 637; Ware v. Shafer, 88 Tex. 44, 29 S. W. 756; Lewis v. Hatton, 86 Tex. 533, 26 S. W. 50; Michie’s Tex. Civ. Dig. vol. 13, pages 1085, 1086; Townes Texas Pleading (old edition) 278-280, and cases cited.

Attached to plaintiff’s petition was a verified account, which was offered in evidence, containing specific items other than those set forth in the petition, among them an item for wages for certain work claimed to have been performed by Chesley, Caswell, Cyril, and Cecil Darsey, sons of Geo. E. Dar-sey, as well as other items of expense, denominated as follows:

“Sundry expenses, over bill, meals provided at opening, lodging provided at opening and amount paid Ray Lavell.”

Appellants objected to the introduction of said account on the ground that the pleading contained no alleg'ation authorizing recovery therefor, and that such items were too indefinite and uncertain, and this forms the basis of the second and third assignments of error. We think the court erred in failing to exclude this evidence on appellants’ objection. It tended to establish a different contract from the one sued upon, and was therefore inadmissible. See Loudon v. Robertson, 54 S. W. 783; Bagley v. Brack, 154 S. W. 247; Stuart v. Calahan, 142 S. W. 60; Kildow v. Irick, 11 Tex. Civ. App. 615, 33 S. W. 314; Jefferson Cotton Oil Co. v. Pridgen, 172 S. W. 739, point 10.

We likewise sustain the fourth assignment of error, presenting the same question in a different form.

Appellants requested, and the court refused to give, a special charge submitting to the jury the question as to whether or not the Van ilorn Trading Company was the owner of the account sued upon herein, and such failure is made the basis of the fifth assignment of error. In our opinion there was no error in the action of the court complained of. Appellee alleged in its petition that the account sued on was sold and transferred to it for a valuable consideration. Darsey testified that he sold the account to plaintiff for $900. The written transfer was likewise introduced in evidence. Darsey was made a party defendant to the suit. There was therefore no issue raised warranting the submission of such charge. Besides this, the judgment would be conclusive as to the ownership of such claim, and would effectively bind Darsey, since he was made a party defendant. See Wiekizer v. Williams, 173 S. W. 289, and authorities there cited. See, also, Bonner v. Green, 6 Tex. Civ. App. 96, 24 S. W. 835.

Appellant requested, and the court refused to give, a special charge, directing the jury to find in their favor as to the item of $300 in the account, for meals provided at- the opening, on the ground that said item was barred by the two years’ statute of limitation. This suit was filed on the 23d day of October, 1911; the meals were furnished during the fall of 1910; appellee filed its trial amendment on the 15th of January, 1915, wherein it alleged that Day and Anderson agreed and promised to pay defendant 50 cents per meal for preparing certain meals to be served to parties coming to the town-site opening conducted by defendants Day and Anderson; that in pursuance thereto said Darsey prepared 600 meals, for which appellants became liable to pay, etc., and Which account was duly transferred to appel-lee. To this pleading appellants interposed the statute of two years’ limitation. The question presented is whether or not the amendment set up a new cause of action. If it did, then the court erred in failing to give said charge. The original petition, to which was attached the exhibit, and upon which ap-pellee went to trial, contains the following allegation:

“That heretofore, to wit, on the 1st day of May, 1910, defendants Day and Anderson * * * contracted with defendant Darsey for the erection of seven houses in the town of Plateau, Tex., and to do certain other work in, on, and about the town site of Plateau, Tex., as a mechanic. * * * The said Day and Anderson * * * agreed and contracted with said Darsey to pay him for such work and services the respective amounts mentioned in the itemized account for such work and services, a copy of which account is hereto attached, marked ‘Exhibit A’ and made a part hereof.”

The account attached as an exhibit contains the item, “Meals provided at opening, $300.-00.” In our judgment the averments of the original petition, together with the exhibit, show that suit was brought to recover for meals so furnished, and therefore is necessarily the same cause of action, embraced in the amendment. See rule 19 for the government of district and county courts (142 S. W. xviii), which provides that exhibits may be attached to, and referred to in aid and explanation of the allegations of, the petition, etc.

Besides, notwithstanding the original petition was insufficient on general demurrer, nevertheless it would prevent the running of the statute of limitation (see Killebrew v. Stockdale, 51 Tex. 531; Tarkinton v. Broussard, 51 Tex. 554. See, also, Galveston, etc., Ry. Co. v. Cook, 25 S. W. 455; Texas, etc., Ry. Co. v. Johnson, 34 S. W. 188; Hill v. Clay, 26 Tex. 650; I. & G. N. R. R. Co. v. Pape, 73 Tex. 501, 11 S. W. 526; Mayer, Kahn & Freiburg v. Walker, 82 Tex. 222, 17 S. W. 505) for which reason the sixth assignment is overruled.

Where the plaintiff sues upon an express contract, he is not entitled to recover upon a quantum meruit. The petition declared upon an express contract, while the evidence relating to the services performed by Darsey’s sons shows that they were to receive what their work was reasonably worth. This being true, the court erred in giving the charge complained of in the seventh assignment, permitting a recovery for such services.

Por the errors indicated, the judgment of the trial court is reversed, and the cause remanded.

Reversed and remanded.
      <©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©r^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digest.-, and Indexes


author: PUT, O. J.

text:
    KING et al. v. DRIVER et al.
    (No. 5599.)
    (Court of Civil Appeals of Texas. San Antonio
    Feb. 2, 1916.
    On Motion for Rehearing, March 1, 1916.)
    1. 'Party Wauls <⅜=?7—Agreements—Com-pensation.
    Where plaintiff consented to defendants using the wall of his building as a party wall for a structure they erected on the other side, and plaintiff received full compensation, he cannot enforce an agreement of the feme defendant, made by her husband, that he should have the use of a stairway in defendants’ building.
    [Ed. Note.—Por other cases, see Party Walls, Cent. Dig. §§ 19-23; Dec. Dig. <®=^7.]
    2. Set-Off and Counterclaim <S=»41—Subject-Matter op Set-Ofp.
    A husband who obtained money from plaintiff on fraudulent representations cannot set off, as against an action for that sum, injuries to his wife’s property by plaintiff.
    [Ed. Note.—Por other cases, see Set-off and Counterclaim, Cent. Dig. §§ 76-79, 81; Dec. Dig. <@=»41.]
    Appeal from District Court, Cameron County; W. B. Hopkins, Judge.
    Suit by J. H. Driver and another against Nettie G. King and another. Prom the judgment, defendants appeal.
    Reversed and rendered in part and in part affirmed.
    See, also, 160 S. W. 415.

      Graham, Jones, West & George, oí Brownsville, for appellants.
   PUT, O. J.

This is a suit instituted by J. H. Driver and F. O. Van Ness, the ap-pellees herein, against Nettie G. King and W. O. King, appellants, alleging that Driver owns a certain lot or parcel of land in the town of San Benito, on which there was a two-story brick building, and that Van Ness had a two-story brick building on a parcel of land lying directly south of Driver’s lot and building; that Nettie G. King owns a certain parcel of land lying directly north of and adjoining the land of appellees; that prior to March 23, 1911, appellants' were desirous of erecting a one-story building on the premises of Nettie G. King, and sought to obtain from appellee, Driver, the right to use his north wall as a partition wall, and Nettie G. King executed a promissory note for the amount agreed upon for use of the wall, but afterwards, desiring to erect another story on the building, represented to said Driver that if he would convey to her a one-half interest in the wall, that she would so erect her building that a stairway to be constructed by her would serve as an entrance to the second story of Driver’s building; that the building and stairway was erected by Nettie G. King as contracted by her, and she, together with her husband, signed a contract embodying the terms of the agreement between the parties. It was alleged that after the erection of the stairway the said Nettie G. King began to deny free use of the same to said Driver and his tenants, and afterwards completely deprived said persons of the right to use said stairway. It was alleged that Nettie G. King had not executed the contract so as to bind her as a, married woman, but that she was estopped to deny her obligations under the agreement. Damages were prayed for against W. O. King for falsely representing that he owned the land and house. An injunction was prayed for against Nettie G. King to restrain her from preventing the use of the stairway and hall. Judgment was not prayed for in any sum of money against Nettie G. King. The cause was tried by the court, and judgment rendered against W. O. King alone for $50, with legal interest from March 11, 1911, in favor of Van Ness, and against W. 0. King and Nettie G. King in favor of Driver for $123, with legal interest from March 23, 1911, and Nettie G. King was quieted in her title to one-half the north wall of Driver.

There was no prayer for judgment against Nettie G. King in any sum of money, and, according to the testimony of Driver, the lower wall had been paid for, and nothing was due on the upper wall. Upon what theory he can recover from appellants does not appear in pleadings or evidence. The note given for use of the upper wall was paid, and there is no allegation that Nettie G. King agreed to pay appellees any sum. The note for $123, which was given for the upper wall, was executed by W. O. King alone, and was fully paid. Driver swore that not a cent was to be paid on the upper wall. It is admitted that Mrs. King was not bound by the contract as to the upper floor, and it was so held on a former appeal of this case. 160 S. W. 415. It was also held that Mrs. King was not estopped to deny her liability by any acts alleged or proved against her, and that ruling applies to the facts on this appeal. The evidence shows that Driver knew that Mrs. King was a married woman, and knew that W. O. King, in making the contract as to the upper wall, was endeavoring to deceive his wife. There was no allegation that one-half of the upper wall had ever been conveyed by Driver to Mrs. King. Driver swore that the note for the upper wall was paid, and that no note was given for the lower wall. The suit is based on matters connected with the upper wall, for Driver swore that the contract in regard to the lower wall was annulled by the contract for the upper wall. Driver swore: “I have been paid for the upper wall.”

W. O. King managed to obtain $50 from Van Ness on fraudulent representations, and he should be compelled to repay that sum. He cannot offset that sum by any injuries arising from the way in which Van Ness may have used his wife’s property.

The judgment will be reversed, and judgment here rendered that J. H. Driver take nothing by his suit, as to both appellants; that, Nettie G. King be quieted in her title to one-half the wall; that P. O. Van Ness take nothing by his suit as to Mrs. Nettie G. King, but that he recover of W. O. King the sum of $50; and that appellants recover of appellees all costs in this behalf expended in this and the lower court.

On Motion for Rehearing.

The motion for rehearing by J. H. Driver is overruled, but as between P. C. Van Ness and W. O. King our former ruling will be so corrected as ,to affirm the judgment of the lower court. By that change it follows that Van Ness should recover from W. O. King his interest and costs as provided in the judgment of the trial court.
      <§=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes