text:
    HUDGINS PRODUCE CO. v. J. R. BEGGS & CO.
    (No. 1580.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 9, 1916.
    On Motion for Rehearing, April 13, 1916.)
    1. Principal and Agent <&wkey;145(3) — Rights Against Thibd Persons — Undisclosed Agency.
    One who purchases from an agent property intrusted to him by an undisclosed owner to sell, relying on the ownership being in the agent, can assert against the owner any defense to an action for the purchase price existing against the agent when the purchaser became chargeable with notice of the owner’s rights.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 515-517; Dec. Dig. <&wkey;> 145(3).]
    2. Principal and Agent <&wkey;195 — Actions Against Third Persons —Findings —Notice op Agency.
    In an action for the purchase price of potatoes sold by an undisclosed agent, a finding that the buyer had no notice that the potatoes were not the property of the agent is in effect a finding that the buyer in good faith believed, and had a right to believe, that the agent was the owner.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 732; Dec. Dig. <&wkey;195.]
    3. Payment <&wkey;63(l) — Pleading—Issues.
    Under Yernon’s Say les’ Ann. Civ. St. 1914, arts. 1325, 1326, authorizing the pleading of a counterclaim and prescribing its requisites, and article 1907 providing that if the defendant shall fail to plead the nature of the payment or account relied on as a set-off, he shall not be permitted to prove it, defendant who pleaded payment to plaintiff’s agent without knowledge of the agency as a set-off cannot complain- of the court’s failure to allow it to set off an existing account against the agent.
    [Ed. Note. — For other cases, see Payment, gnt. Dig. §§ 152-154, 156, 157; Dec. Dig. &wkey;
    4. Principal and Agent <&wkey;190(3) — Rights Against Third Persons — Pleading — Admission op Evidence.
    Where defendant, under a plea of payment to plaintiff’s agent under which he was entitled to prove a payment in money only, was permitted to prove without objection that he had credited the agent’s account at the latter’s request with the amount due plaintiff, the effect of proof was to show payment.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 720; Dec. Dig. &wkey;>190(3).]
    5. Principal and Agent &wkey;>190(3) — Actions Against Third Persons — Set-Ofp — Evidence.
    In an action for the purchase price of potatoes sold through a broker who did not disclose his agency, evidence held to show that the broker authorized the buyer to set off its account against the broker.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 720; Dec. Dig. &wkey;>190(3).]
    6. Principal and Agent &wkey;143 (6) — Rights Against Third Persons — Undisclosed Agency — Payment to Agent.
    One who bought potatoes from a broker who did not disclose his agency, and thereafter, with the consent of the broker, set off the latter’s account due the buyer against the purchase price, can rely on such set-off as payment in an action by the principal, though the account set off was a pre-existing indebtedness, since the buyer in such case need not show that it parted with anything of value on the faith of the broker’s ownership in the goods.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 510; Dec. Dig. <&wkey;143(6).]
    Appeal from Bowie County Court; Lee Tidwell, Judge.
    Action by J. R. Beggs & Co. against the Hudgins Produce Company. Judgment for the plaintiff, and defendant appeals.
    Reversed, and on rehearing remanded for new trial.
    In October, 1913, appellees, wholesale dealers at St. Paul, Minn., sold a carload of potatoes to Sanders Bros., through the Gaines-Ramage Company, brokers at Texarkana, Tex. The potatoes were consigned to appel-lees’ order with instructions to the carrier to notify Sanders Bros, when same reached Texarkana. The bill of lading covering the shipment, with a draft on Sanders Bros, for the purchase price of the potatoes attached thereto, was sent to a bank in Texarkana. Sanders Bros, having refused to receive any pay for th'e potatoes when same reached Tex-arkana, appellees had the bank to deliver the hill of lading, which they had indorsed in blank, to the Gaines-Ramage Company, and instructed that company to sell the potatoes on their (appellees’) account. Thereupon the Gaines-Ramage Company sold same to appellant. This suit was by appellees, on the contract of sale, to recover a balance which' they claimed was unpaid by appellant of the purchase price of the potatoes. The appeal is from a judgment in appellees’ favor for $303, .the balance, and interest thereon, found by the court to be due to appellees by appellant.
    Wheeler & Wheeler, of Texarkana, for appellant. Sam XI. Smelser and Wm. V. Brown, both of Texarkana, for appellee.
   WILLSON, C. J.

(after stating the facts as above). In its answer appellant alleged that it bought the potatoes of the Gaines-Ramage Company believing that company to be the owner of same, and that it paid the Gaines-Ramage Company for the potatoes in full at a time when it had no notice of the fact that appellees owned them. If it appeared from the proof made that appellant did that, then the judgment should not have been in appellees’ favor, for the law is that one who purchases from an agent property an undisclosed owner has intrusted to him to sell, in good faith, relying upon the ownership being in the agent, is entitled, when sued by the owner for the purchase price, to .assert against him any defense which existed in his favor against the agent at the time when he (the purchaser) became chargeable with notice of the rights of the owner. 2 •Clark & Sky les on Agency, § 884; 19 Cye. 171; Baxter v. Sherman, 73 Minn. 434, 76 N. W. 211, 72 Am. St. Rep. 631, a case in many respects like this one; Henderson v. Johnson, 22 Tex. Civ. App. 381, 55 S. W. 35; Winslow v. Staton, 150 N. C. 264, 63 S. E. 950; Gardner & Sager v. Allen, 6 Ala. 187, 41 Am. Dec. 45; Feinstein v. Ritter, 88 Misc. Rep. 559, 150 N. Y. Supp. 903. Had the suit been by the Gaines-Ramage Company as the ■owners of the potatoes, it is clear that proof by appellant that it had paid the purchase price to that company would have been a .complete defense.

The trial court found as a fact that at .the time appellant purchased the potatoes it had no notice that they were not the property of th'e Gaines-Ramage Company. This finding should be treated by us as one establishing, in its legal effect, that appellant in good faith believed, and had a right to believe, when it purchased the potatoes, that the Gaines-Ramage Company was the owner thereof.

Th'e court further found that appellant, after paying the carrier the amount of its charges against the shipment, credited an. .account it had against the Gaines-Ramage •Company with the balance remaining of the purchase price of the potatoes. Had appellant by proper pleadings asked the court to set off the account so credited against appel-lees’ demand, it would appear clear enough that th'e court, on the findings made by him and the undisputed evidence, should have allowed the set-off and have rendered judgment in appellant’s favor, and that he did not do so because of an erroneous view he entertained of the law applicable to the case; for the testimony conclusively established that the account credited covered transactions which' occurred at a time when, according to the other finding of the court specified above, appellant had no notice that the Gaines-Ramage Company did not own the potatoes, and, further, that the balance in appellant’s favor shown by the account was a sum in excess of that it owed for the potatoes. But appellant did not plead the indebtedness due it by th'e Gaines-Ramage Company as an offset against appellees’ demand, as the law required it to (articles 1325, 1326, and 1907, Vernon’s Statutes), and therefore it has no right to complain of the failure of the trial court to allow its account as an offset.

As stated above, the defense pleaded by appellant was that it had paid Gaines-Ramage Company for the potatoes at a time when it had no notice of the fact that that company did not own them. . In support of its plea, which was a general one, it was entitled to prove a payment in money only; but, instead, it proved, without objection on ap-pellees’ part, that at the time it purchased the potatoes there were mutual accounts between it and the Gaines-Ramage Company; that within about a week after the purchase it presented to the Gaines-Ramage Company for payment its account against that company for a sum greater than the balance due by it for the potatoes; and that, at the instance and request of the Gaines-Ramage Company, it then credited the account with that balance. The effect of such proof was, we think, to show that appellant paid the Gaines-Ramage Company for the potatoes. 30 Cyc. 1187. It is true that the witness Gaines, who, it seems, acted for th'e Gaines-Ramage Company in the transaction, testified that he “never had a settlement” with appellant with reference to the potatoes; but he further testified:

“It is a fact that the settlement between the Gaines-Ramage Company and the Hudgins Produce Company simply had the effect of satisfying a debt which they claim was due them by the Gaines-Ramage Company, and in payment of the car of potatoes they simply gave credit on the amount they claimed was due them.”

As we construe his testimony, Gaines did not mean to be understood as denying that his company, as the witness Offenhauser testified it did, directed appellant to credit its account with th'e balance due on the potatoes, but to deny that the credit was on account of transactions between the Gaines-Ramage Company and appellant which occurred after the latter purchased the potatoes. It is apparent from the record that the case was tried and decided by the court on the erroneous theory that if th'e credit given by appellant on its account against the Gaines-Ramage Company was against an indebtedness of that company which existed in appellant’s favor at the time it purchased the potatoes, the fact that it may have operated as a payment between appellant and that company was not a reason why appellees should not recover as they prayed for against appellant. In other words, upon the theory that appellant could defend against the suit of ap-pellees onty upon the ground that it occupied the position of an innocent purchaser of the potatoes, and must show not only that it had no notice of appellees’ rights, but also that it paid what in law was a valuable consideration for the property. An examination of the authorities cited above will show that it was not incumbent on appellant to prove that it paid such a consideration, but that it was entitled to protection against appellees’ demand if it paid for the potatoes by crediting an indebtedness which existed in its favor against Gaines-Ramage Company at the time of the purchase, or which arose in its favor before it was chargeable with notice of appellees’ rights.

We have reached the conclusion that the findings of the court referred to above should be construed, when the testimony is kept in mind, as findings that appellant purchased the potatoes at a time when it believed and had a right to believe that the Gaines-Ram-age Company owned them, and paid that company in full for them by crediting, at that company’s request, an indebtedness that company owed it, at a time when it had no notice of appellees’ rights. This conclusion requires a reversal of the judgment and a rendition here of judgment in appellant’s favor.

On Motion for Rehearing.

Further consideration of the record in connection with the motion has convinced us that we should have remanded the cause for a new trial after reversing the judgment of the court below, instead of rendering judgment here. Therefore the judgment heretofore rendered by this court will be set aside in so far as it is in favor of appellants, and the cause will be remanded to the court below for a new trial.
      <g^?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    TEXAS MOLINE PLOW CO. v. BIGGERSTAFF.
    (No. 952.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 29, 1916.)
    1. CORPORATIONS &wkey;>503(l) — ACTIONS FOR Breach of Contract — Venue.
    Under Vernon’s Say les’ Ann. Civ. St. 1914, art. 1830, § 5, providing that where a person has contracted in writing to perform an obligation in any particular county suit, may be brought either in such county or where the defendant has his domicile, and section 24, providing that suit against any private corporation may be commenced in any county in which the cause of action, or a part thereof, arose, or in which the corporation has an agency or representative, or in which its principal office is situated, a corporation cannot be sued in a county in which it had never had any agent or representative, except traveling men, for breach of a written contract of sale made in the county in which the corporation had its domicile, office, and principal place of business, and which contract provided that the goods should be delivered on board cars outside the state and all payments should be made in the county of the corporation’s residence.
    [Ed. Note. — For other cases, see Gorporations, Cent. Dig. §§ 1935, 1937-1939, 1942; Dec. Dig. &wkey;503(l).]
    2. Contracts <&wkey;127(4) — Fixing Place of Trial — Validity.
    A stipulation in a contract of sale fixing a venue o.f any suit growing out of it is valid.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 612; Dec. Dig. <S=»127(4).]
    Appeal from Childress County Court; Frank M. Freeman, Judge.
    Action by E. L. Biggerstaff against the Texas Moline Plow Company. Judgment for the plaintiff, and defendant appeals.
    Reversed and remanded, with instructions to transfer to the proper county.
    Fires & Diggs, of Childress, for appellant. Jos. H. Aynesworth, of Childress, for ap-pellee.
   HALL, J.

Appellee, Biggerstaff, instituted this suit in the county court to recover alleged damages for the breach of a contract by appellant, entered into between them on the 21st day of October, 1912. It is alleged that by the terms of the contract certain goods were sold to him, and that shipment should be made, unless otherwise ordered, on the 1st day of February, 1913; that it was afterwards agreed that shipment should be made on January 1, 1913, but that defendant negligently, carelessly, and without just excuse, failed and refused to make the shipment until about the latter part of March, 1913, resulting in plaintiff’s damage. The defendant duly filed its plea of privilege to be sued in Dallas county, alleging that it is a corporation; that its place of residence and domicile was at the time of filing the suit, of service of process upon it, and at the time of filing the plea, in the city of Dallas, in Dallas county; and that none of the exceptions to exclusive venue in the county of its residence existed.

The contract of sale provides that the goods purchased should be delivered on board the cars at Moline, Ill., that all payments should be made in Dallas, with express charges or by exchange on Dallas, St. Louis, and New York, and contains this paragraph:

“It is further covenanted and agreed that all rights,. remedies and relief and all claims, causes of action or complaints, accruing or to accrue, to or by, for or against, either of the parties or the party to this contract, from any cause or by reason of any breach or any failure of either party to comply with this, or any part of this, or any other contract, as well as all payments to be made under or in pursuance of this contract, or any other contract, shall be and are hereby made performable and recoverable in the city and county of Dallas.”

O. B. Marsh, manager of appellant company, testified that the Texas Moline Plow Company was a corporation, having its domicile, principal office, and place of business in the city of Dallas, in Dallas county, Tex., and has at all times prior to and since the filing of this suit had its domicile, principal office, and place of business in said city; that it has never had any local agent, agency, or representative, except its traveling men, in Childress county, or in any other county in Texas, except Dallas; that it did not have any agent or representative in .Childress county on April 6, 1014, and had no agency or representative in that county at any time since or prior to said date. R. S. Fields, the traveling salesman of appellant company, testified that he knew appellee and sold him the goods in question during the month of October, 1912, in Dallas, at the company’s place of business, while appellee was attending the Dallas Pair; that the written contract was executed there at that time. These facts being undisputed, we think under article 1830, Vernon’s Sayles’ Civil Statutes, §§ 5 and 24, the plea of privilege should have been sustained. Upon another ground, the plea of privilege was good: The above-quoted paragraph, by agreement, fixed the venue of any suit growing out of a breach of the eon-, tract in Dallas county. Such a stipulation has been held valid in this state (Ft. Worth Board of Trade v. Cooke, 6 Tex. Civ. App. 324, 25 S. W. 330), and they are sustained by the weight of authority in other jurisdictions (State ex rel. Schwabacher Bros. & Co. v. Superior Court, 61 Wash. 681, 112 Pac. 927, Ann. Cas. 1912G, 815 and note; Williams v. Branning, 154 N. C. 205, 70 S. E. 290, 47 L. R. A. [N. S.] 351 and note).

The judgment is therefore reversed, and the cause remanded, with instructions to transfer the same to the proper court of Dallas county.

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


author: CONNER, C. J.

text:
    CLAMPITT et al. v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS et al.
    (No. 8332.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 26, 1916.
    Rehearing Denied April 1, 1916.)
    1. CARRIERS <&wkey;209 — CARRIAGE OF ANIMALS— Cabs — ‘ ‘Clean’ ’ — ‘ ‘Disinfected’ ’ — ‘ ‘ Cleaned and Disinfected.”
    Under rule 31 of the State Live Stock Sanitary Commission, declaring that all cars for the loading of hogs shall be thoroughly cleaned and disinfected, the term “clean,” in view of the use of the word “disinfected,” does not necessarily mean that the cars shall be free from all dirt, but that they shall be free from infection; the word “clean” being susceptible of many meanings, among them, free from defilement, while the term “disinfected” means free from injurious or contagious diseases.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 925; Dec. Dig. <§=>209.
    For other definitions, see Words and Phrases, Second Series, Clean.]
    2. Evidence <&wkey;54 — Presumption on Presumption.
    Presumption cannot be based on presumption to make out a case.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 74; Dec. Dig. <&wkey;54.]
    3. Carriers <&wkey;228(l) — Carriage of Live Stock — Actions—Burden of Proof.
    In an action to recover the value of hogs which died of cholera during shipment, plaintiff, having averred that the cars furnished were not clean as required by rule 31 of the State Sanitary Stock Commission, has the burden of proving that allegation.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957, 958; Dec. Dig. &wkey;22S(l).]
    4. Carriers &wkey;>228(5) — Carriage of Live Stock — Actions—Evidence.
    In an action where it was contended that because of unclean cars furnished, contrary to rule 31 of the State Sanitary Live Stock Commission, hogs contracted cholera, evidence held insufficient to show that the cars furnished were infected.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 960; Dec. Dig. &wkey;228(5).]
    5. Appeal and Error &wkey;>688(2) — Exceptions, Bill of — Necessity.
    Assignments complaining of improper argument of counsel cannot be reviewed, where the argument was not shown by bills of exception or the record
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2896; Dec. Dig. <&wkey;>688(2).]
    Appeal from District Court, Clay County; J. W. Akin, Judge.
    Action by C. D. Clampitt and others against the St. Louis Southwestern Railway Co. of Texas and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    Templeton & Milam, of Ft. Worth, and W. T. Allen, of Henrietta, for appellants. Arnold & Taylor, of Henrietta, and Thompson & Barwise and G. W. Wharton, all of Ft. Worth, for appellees.
   CONNER, C. J.

The appellees, C. D. Clam-pitt, D. W. Clampitt, and Roy Williams, instituted this suit against the St. Louis Southwestern Railway Company of Texas, the Ft. Worth & Denver City Railway Company, and the Chicago, Rock Island & Gulf Railway Company, to recover damages in the sum of $2,647.65, which plaintiffs charged that they had sustained by reason of the wrongful and negligent action of the railway company first named in furnishing and using unclean cars for the shipment of two carloads of the plaintiffs’ hogs shipped from Mt. Pleasant and Omaha, Tex., to Shamrock, Tex. It was alleged that the two several stock cars in which the several shipments had been made, and which had been furnished for that purpose by the St. Louis Southwestern Railway Company, bad not been properly cleaned and disinfected, by reason of wbicb the bogs were exposed to and contracted tbe disease of cholera, from which most of them died. Mt. Pleasant and Omaha are located in Titus county, from which places the shipment proceeded to Ft. Worth, where they were delivered to the Ft. Worth & Denver City Railway Company, which received and transported the hogs over its line to Amarillo, at which point they were delivered to and received by the Chicago, Rock Island & Gulf Railway Company, which in turn transported them over its line to their destination at Shamrock. It was charged that one or both of the two defendants last named negligently exposed the hogs to cholera at Amarillo. The several defendants answered separately, and each for itself, among other things, denied the material allegations of the plaintiffs’ petition. There was a trial before a jury which resulted in an instructed verdict for the intermediate and terminal carriers and a judgment on the findings of the jury in favor of the initial carrier. Prom the judgment so rendered, the plaintiffs have appealed to this court.

The principal question raised on this appeal is whether the evidence sustains the verdict of the jury in appellees’ favor. The evidence is somewhat voluminous, and we will not attempt to set it all out. It has all, however, been considered, and our conclusion is that the verdict must be sustained. In order that the general character of the contest below may be understood, we will say that the proof undoubtedly was sufficient to establish the fact that the greater number of plaintiffs’ hogs in both shipments died from cholera. The real contest in the evidence was whether the hogs became infected by reason of their shipment in unclean and disinfected cars, or whether, as was specially charged by the defendants, the hogs had become infected before their shipment ever began.

The hogs were purchased at Mt. Pleasant and Omaha, and in the vicinity of these towns, by a Mr. Minton, and it was shown by the plaintiffs that at the time of the shipments the State Live Stock Sanitary Commission had adopted rule 31, relating to the transportation of hogs, which had been put in force by the proclamation of the Governor of the state. This rule, soi far as necessary here to set out, provides that:

“All swine imported into or moved within the state of Texas, when in carload lots, must be handled under the following regulations: (1) That cars assigned for the loading of stock hogs shall be thoroughly cleaned and disinfected. * * * (3) The transportation company to provide temporary loading chutes, and load hogs direct to the car through the temporary chutes or from wagons, keeping them away from the stockyards altogether. * * * ”

The first carload ;of hogs consisted: of about 146 to 148 head. This shipment was made on the 29th day of September, 1914. The second shipment consisted of about 110 head of hogs, and was made on October 2, 1914. On both occasions Mr. Minton demanded clean cars that had been disinfected, but on both occasions the cars tendered were ears in which stock of some other kind had been shipped, and in which the old bedding remained, but covered, however, somewhat by fresh sand. Neither car was cleaned out or disinfected. Nor in either case was a chute prepared through which the hogs could be unloaded from the wagons into the car. But in both instances it became necessary to unload the hogs, first, in the stock yards, drive them through the stock yards pens, and into the cars through the usual chutes. There was no proof, however, that tended to show the character of stock that theretofore had been shipped in the cars. The ap-pellee company offered no explanation on this subject. Nor did appellants offer any affirmative proof that tended to show that hogs of any character, infected or otherwise, had ever theretofore been in either car. Minton also testified, in substance, to the effect that he had not heard of any hog cholera in the section of country where he had made the purchases, and that so far as he knew the hogs were sound at the time they were shipped. The deposition also of a number of the farmers from whom purchases had been made to the same effect were also read in evidence.

Appellants urgently insist that the cars were unclean, and not disinfected, and that the undisputed failure of the appellee company to comply with the paragraphs of rule 31, which we have quoted, coupled with other proof to which we have above referred, arid that cholera in the hogs soon subsequently developed, require a verdict in appellants’ favor.

It was proved in behalf of appellee, however, by Minton himself, that one of the hogs out of the first shipment was left dead in the pens at Mt. Pleasant. Minton testified that this hog had become overheated and died therefrom, but other testimony in behalf of appellee was to the effect that the hog was thin and in such condition could not have died by reason of becoming too hot. It was further shown by a witness, whose qualification we think sufficient, although objected to, that this hog died from cholera. Yet further testimony undoubtedly tended to show that there was more or less of hog cholera in and about Omaha, where the second lot of hogs had been purchased, and that at least one of this number manifested symptoms of the disease, as given by veternarians who testified, before its purchase by Minton. There was testimony also on the part of one or more of the veternarians, to the effect that it takes a hug from eight to nine days to develop symptons enough so that it will show the disease externally. It was also shown that of the second, or Omaha, shipment, at least one of the hogs manifested symptons of cholera between the point of shipment and Pt. Worth,'and that at Et. Worth several of the hogs, which were there unloaded, almost immediately manifested symptons of the disease and died, and that after the second load arrived at Shamrock they were unloaded and mixed with the hogs of the first shipment, and the greater number thereafter soon developed hog cholera and died.

The court seems to have carefully instructed the jury, and appellants made no complaint of the charge given upon the trial. The jury were charged, in substance, that it was the duty of appellee to comply with the requirements of rule 31, as we have quoted them, and that if the rule had not been complied with, and that the hogs shipped from Mr. Pleasant on September 29th were at the time free from the disease of cholera, and that they thereafter contracted and became infected with the germs of the disease from being loaded through defendant’s pen at said station into a car which had not been thoroughly cleaned and disinfected, as provided for in the rule, that they find for the plaintiff as to this first shipment. They were further instructed that if they should find that the hogs in the second, or Omaha, shipment were at the time of their shipment free from the disease of cholera, and that by reason of the defendant’s failure to furnish clean and disinfected cars they contracted the disease, or if said' shipment was not infected until after they arrived at Shamrock, and that the hogs of the second shipment there contracted the disease from the hogs contained in the first shipment, and that the hogs in the first shipment had contracted the disease from being shipped in an unclean car at Mt. Pleasant, then, in either event, appel-lee would be liable for the resultant damage. The jury were further instructed, however, that if the first shipment was infected with the disease of cholera before they were delivered to the defendant at Mt. Pleasant, and did not contract or become infected therewith upon being loaded at the station through the defendant’s pen into an unclean car, they would find for the defendant as to that shipment. A like instruction was given that specifically related to the second shipment. The court also, among other things, gave a special charge at appellee’s request to the effect that if the hogs in question had the cholera prior to the time they were delivered to the railway company at Mt. Pleasant, and at Omaha, and said hogs died solely as a result from having the cholera, if any, prior to that time and prior to the time they were delivered to the St. Louis Southwestern Railway Company at said points of shipment, then it was the duty of the jury to return a verdict for the defendant, even though it might believe and find from the evidence that the defendant failed to comply with the provisions of rule 31. As stated, no exceptions were taken to these charges, and, in the light of the charges, it is evident that the jury concluded that the hogs in question were infected with cholera before their delivery to the appellee for shipment.

It seems evident that the weight of appellants’ contention that the evidence required a verdict and judgment in their favor-rests upon the assumption that the appellee-company violated rule 31 by furnishing unclean and nondisinfected cars for the shipment of the plaintiffs’ hogs, and that such violation of the rule as a matter of law constitutes negligence for which the appellee-company is liable. In proceeding to analyze this contention, it may be well to obtain as clear an understanding as we can of the terms-“clean” and “disinfected.” By an examination of the definition as given by Webster, it will be seen that the term “clean” is one of variable meaning, owing to the connection in which it is used. It may mean “free from dirt, filth, impurity, foreign or undesirable matter, soil, or stain; pure; as clean water.”’ Or it may mean “without defilement, morally pure; as clean literature, a clean man.” Or-it may mean “ceremonially pure as conforming to the ceremonial law; said among the Jews of persons, animals, etc.” Or “free from knot or knot holes; clear; smooth;, as clean timber.” Or “having no blemish or imperfections; complete; perfect; whole; as-olean copy.” Or “free from bungling; not awkward; dexterous; as a clean track.” Or it may mean “completely cleared or rid of something; or affecting such clearance; as-far as national institutions were concerned, the Thirty Tears War made a clean sweep of Germany.” The term “disinfected” is thus defined by Webster: “To remove from or destroy in (a substance) the poison of injurious or of contagious diseases; purified from, infection.”

Construing the two words together as used in the requirement of rule 31, “that cars assigned for the loading of stock hogs shall be thoroughly cleaned and disinfected,” the-term “clean” does not mean that the car must be entirely free from dirt, trash, or the like, but, on the contrary, that it must be free from infection. The term “disinfect” can have no application to a car not infected, and hence we do not think that we would be-authorized to declare as a matter of law that the cars furnished for the shipment of the plaintiffs’ hogs were not clean within the meaning of the rule. If they were clean-within the meaning of the rule, no disinfection would be required, nor in such event could the disease which resulted in the-death of plaintiffs’ hogs have been communicated from such cars. Force is given to these constructions of the terms by one or more of' the witnesses. For instance, Mr. Henderson, superintendent of the Ft. Worth Stockyards, testified, among other things, that:

“A car is called ‘dirty’ on account of it having been used below the quarantine. It is an-infected car, with ticks; it is termed a dirty car because the government won’t allow it to pass-the quarantine line; a ‘dirty car’ does not mean. tliat it has a lot of dirt in it, but means an in-; fected car.”

All of the expert testimony was to the effect that hog cholera was produced by infection, and Dr. Lewis Crabb, in testifying on the subject, among other things, said:

“If hogs were shipped in a car which had old 'bedding in it, and I had no proof whatever that •choleraed hogs had been shipped in it, there would be no evidence that would cause me to believe that the hogs would take cholera from it; that is, if sick hogs had not been shown to have been there. The bedding would make no difference if it had not been infected. It takes the excrement of the hog which is sick with -cholera to infect the bedding.”

How then are we to arrive at the first step in the process of determination? Must we say that, because the proof shows that the cars in which plaintiffs'’ hogs were shipped had old bedding in them and were not free from dirt, they were therefore infected? And then, having so determined, further infer that plaintiffs’ hogs were infected with hog cholera from the infected cars? To do so, as it seems to ns, is to base presumption upon presumption, which is never permitted in the law. G., C. & S. F. Ry. v. Davis, 161 S. W. 9832; M. P. Ry. Co. v. Porter, 73 Tex. 304, 11 S. W. 324. But it is insisted that, because of the defendant’s failure to explain the condition of the car, we are authorized to draw the inference that it was infected. It is true that it has been often held that a failure of :a litigant to produce evidence within its power explaining a fact or facts unfavorable to it will authorize an inference detrimental to the litigant so failing. But in the case before us we must not lose sight of the fact that there is a very considerable array of evidence which tends to show that the hogs in question were infected with cholera before they were ever delivered to the initial carrier, and we must further bear in mind, as the court without objection instructed the jury, that the burden of proof was upon the plaintiffs to establish the material allegations of their petition. So that, in the state of the proof as it is before us, it can by no means be said with certainty and as a matter of . law that unclean and nondisinfected cars was the proximate cause of the cholera that developed in the plaintiffs’ hogs. We cannot say that the cars were infected merely because the defendant failed to disprove the fact. To do so would be a mere extension of the inferences or presumptions. The averment that the car was unclean was one of the material allegations of the plaintiffs’ petition, and the burden of proof, as already stated, rested upon the plaintiffs throughout the cause. Clark v. Hills, 67 Tex. 141, 2 S. W. 356; Laing v. Sherley, 61 S. W. 532. The thought here intended to be presented, and that will hereinafter be further developed, may be illustrated by reference to the case of T. & P. Ry. Co. v. Shoemaker, 98 Tex. 451, 84 S. W. 1049. In that case, Fred and Charles Shoemaker were run over and killed by a passing train of the railway company during the night.- Their presence upon the railway track and the circumstances at the time they were killed were unexplained. It was alleged, among other things, that the engineer in charge of the locomotive that ran over the boys was defective in vision, and that the company was guilty of negligence in retaining him in its employ. It was said:

“The unfitness of the engineer only affects the question as to whether or not a proper watch was kept along the track. The presumption is that there was, and it will hardly do to say that it is overcome by mere proof of the unexplained killing and of the engineer’s defective vision. * * * The failure to keep a proper lookout, either from incapacity or other reason, could only be deemed the proximate cause of the deaths when it appeared that the keeping of it would have prevented the unfortunate occurrence, and no inference of this fact can be drawn from the evidence.”

See, also, M. P. Ry. Co. v. Porter, 73 Tex. 304, 11 S. W. 324.

So that, if it be conceded that the cars in which the plaintiffs' hogs were shipped were in fact unclean and infected ears, the evidence as a whole yet leaves it in doubt whether the infected cars were the real cause of the damage to the plaintiffs’ hogs. The jury may have found, as indeed they may well have found from the evidence as a whole, that both shipments of hogs were in fact infected with cholera before the time they were delivered to the appellant company, in which event, as the court without objection charged the jury, the plaintiffs were not entitled to recover.

Appellants present several assignments to the action of the court in overruling their motion fof a new trial, for the reason, as insisted, that the jury must have been misled by argument of defendant’s counsel. There is, however, no bill of exception, or other evidence in the record proper of what the argument was. Its mere recitation in the motion for a new trial and here in the briefs cannot be accepted as establishing the argument urged. The court overruled these grounds of the motion which will authorize this court to presume that no such argument was made, even if the argument as presented in the briefs would otherwise have the tendency imputed to it.

The trial court also overruled the objections to the testimony of several witnesses, on the ground of a want of qualification; but the testimony relating to the qualification of the witness has all been examined, and we fail to find any prejudicial error on the part of the co.urt in this respect.

All assignments of error are, accordingly, overruled, and the judgment affirmed.
      <&=>For otlier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    PARIS & G. N. R. CO. v. CAMPBELL.
    (No. 1582.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 9, 1916.)
    Carriers <®r^247(l) — Carriage op Passengers — Trespassing Passenger — Duty Not to Injure.
    A railroad’s porter, running along beside a train, after it left a station, endeavoring to board, owed the duty to a passenger thereon, who had neglected to leave the train at the stop, to use care not to injure him in getting on the train.
    [Ed. Note. — For other cases, see Carriers, Dec. Dig. <⅜^>247(1).]
    Appeal from District Court, Lamar County; A. P. Dehoney, Judge.
    Suit by J. B. Campbell against the Paris & Great Northern Railroad Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    This was a suit by appellee for damages for personal injuries which he claimed he suffered because of negligence on the part of employés of appellant. Appellee was a passenger, destined to Arthur City, Lamar county, on one of appellant’s trains. From testimony on his behalf it appeared that when the train reached that place he at once left his seat in the car he was in, and as quickly as he could went to the steps thereof to get off. When he reached the steps, the train was moving from the station. He was carrying an iron plow-coulter and chain weighing eight or ten pounds in his right hand. “When I reached the second step,” appellee testified, “the porter was running along, and holloed if I got off there, and I said ‘yes.’ He said, ‘Get off,’ and he swung on and knocked my hand loose. I had hold of the handhold with my left hand, and had a plow-coulter in my right hand. * * * The negro (porter) was running by the side of the train, and he grabbed the same handrail I had hold of and swung on the step and knocked my hand loose, and off I went; and he not only knocked my hand loose when he came on, but he crowded me out. The whole thing was done in an instant. * * » When he left the ground he was running his best.” The testimony was sufficient to support findings involved in the verdict and judgment, and therefore we find: (1) That the train did not stop at Arthur City for a length of time reasonably sufficient to enable appellee in the exercise of due care to leave same; and (2) that while he was on the steps of the car, preparatory to alighting from it, the train porter in an effort to get aboard of the car as it moved from the station, in discharge of a duty he owed to appellant, negligently pushed or jerked appellee, and so caused him to fall from the car to the ground, whereby he sustained injury to his person, to his damage in the sum of $750.
    Wright & Patrick, of Paris, for appellant. Lattimore & Hutchison, of Paris, for appel-lee.
   WILLSON, C. J.

(after stating the facts as above). The effect of the court’s charge, considered as a .whole, was to tell the jury to find for appellee only in the event they believed he was himself without fault, and that appellant’s porter negligently pushed or jerked him from the steps of the car while it was moving, and that the act of the porter was the proximate cause of the injury to ap-pellee. The jury were not authorized by the charge to predicate a finding of liability on appellant’s part on its mere failure to stop the train long enough to enable appellee to safely alight therefrom. Therefore many of the objections urged to the charge and to the action of the court in refusing special charges requested need not be noticed in disposing of the appeal.

There was evidence which would have supported a finding that the train stopped at the station reasonably long enough to enable passengers to leave it. Appellant insists if it did stop long enough appellee, failing to leave it, was in the attitude of a trespasser, and that it owed him no duty except the duty to not willfully injure him. It therefore further insists that the court erred when he told the jury, in the third paragraph of his charge, that under those circumstances it owed to appellee the duty to use ordinary care to avoid injuring him. But we are of opinion if appellee was, technically, a trespasser, under the circumstances shown by his testimony, which it is evident from their verdict the jury believed, appellant’s porter owed to him the duty to use care not to injure him in getting on the train. Railway Co. v. Harmon (Ky.) 64 S. W. 640; Railway Co. v. Ruxer (Ky.) 170 S. W. 655; Railway Co. v. Turner, 33 Tex. Civ. App. 604, 77 S. W. 255.

In the case last cited the court said:

“When a train is stopped, and does afíiórd a reasonable opportunity for passengers to alight, then the employés of the carrier have the right to presume that all passengers desiring to do so have left the ears, and the duty of the carrier to those who have reached their destination and failed to alight is the use of ordinary care not to injure them.”

And in the case first cited the court said:

“If it (the train) remained at the station long enough to permit the appellee to alight in safety, and she failed to do so, but was in the act of alighting in the presence'of the conductor, and he started the train with that knowledge, it was per se negligence.”

So far as the principle involved is concerned, we see no difference between the case last quoted from and this one. There the conductor was acting within the scope of his duty as such when he started the train. Here the porter was discharging a duty he owed to appellant to get aboard the train. If the conductor in that case, because he knew the position of the plaintiff oh the train, owed her the duty to use care for her safety, notwithstanding she was a trespasser, we see no reason why the porter in this one, knowing, as he necessarily did in view the Jury must have taken of the testimony, the position of appellee on the train, should not have been held to the use of care to avoid injury to him.

The matters presented by the refusal charges not disposed of by the conclusion reached, as indicated by what has been said, are believed to have been sufficiently covered by instructions given to the jury.

The verdict is attacked as without support in the evidence and as excessive. It is, if the testimony on the part of appellant alone should be considered. But the jury, of course, had a right to believe that on the part of appellee; and when it is looked to it cannot be said that the verdict as returned was without support as to either the finding of liability on the part of appellant or as to the amount of damages sustained by appellee.

The judgment is affirmed.
      <S=»For other cases see same topic and KEY- NUMBER in all Key-Numbered Digests and Indexes


author: WILL-SON, O. J.

text:
    ORAND v. WHITMORE.
    (No. 1600.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 6, 1916.
    Rehearing Denied April 13, 1916.)
    1. Appeal and Error <§=>263(3)- — Refusal op Instruction — Necessity op Exception.
    The trial court’s refusal of appellant’s special charge must be treated as approved by him, where he failed to except thereto as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2061, so that his assignment of error thereon would be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1518, 1525; Dec. Dig. <§= 263(3).]
    2. Vendor and Purchaser <§=>265(4) — Transfer op Property — Assumption op Debt.
    Where one conveyed two tracts of land to-defendant, each described by metes and bounds, for a consideration, including a note for $2,000, not to be a lien on the land unless the vendor should fail to collect that amount out of the collateral notes assigned to him, and the purchaser conveyed to his codefendant, who assumed payment of such note, and the original vendor thereafter, on the security of such note, borrowed money, plaintiff as the lawful holder thereof was entitled to recover, unless it was subject to defenses which the subsequent purchaser would have been entitled to urge had it remained in the hands of the original vendor.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 710; Dec. Dig. <§= 265(4).]
    3. Vendor and Purchaser <§=>281(1) — Lien Notes — Action—Burden op Proof.
    In such action, where the subsequent purchaser alleged that the original vendor, selling by the acre, had represented that the two tracts contained 168 acres, and that the agreed price per acre was $88.33, that the two tracts together contained 12.53 acres less than represented, and that he was entitled to have the value of that number of acres at the agreed price set off against the amount which plaintiff might have recovered had there been no shortage, he had the burden of proving by a preponderance of the evidence that price between the original vendor and the first purchaser was as alleged.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 792; Dec. Dig. <§=> 281(1).]
    4. Trial <§=>252(13) — Instruction—Evidence.
    In an action on a vendor’s lien note brought against the original purchaser and a purchaser from him, the subsequent purchaser’s requested instruction that part of the alleged shortage had been in the adverse possession of other parties more than 10 years held properly refused, where there was no evidence of such adverse possession.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 604; Dec. Dig. <§=252(13).]
    5. Adverse Possession <§=>114(1) — Sufficiency op Evidence.
    Evidence, in such action, held not to show that the statute of limitations had divested the original vendor of title to a tract when he conveyed it, with another tract, to the original purchaser.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 682, 683; Dec. Dig. <§=> 114(1).]
    6. Appeal and Error <§=>301 — Motion for New Trial — Objection—Rule op Court.
    An assignment of error in the overruling of defendant’s motion to enter judgment allowing him a set-off claimed by him, not complained of in the motion for a new trial, as required by rule 24 of the Court of Civil Appeals (142 S. W. xii), could not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. <§=>301.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by Cora P. Whitmore against L. J. Harrell and W. N. Orand, with cross-action by defendant Orand against his code-fendant. Judgment for plaintiff against both defendants, and judgment for defendant Orand against his codefendant, and defendant Orand appeals.
    Affirmed.
    By a deed dated August 17, 1910, Mose Novich conveyed tw’o tracts of land in Hill county to L. J. Harrell. Each of the tracts was described by its metes and bounds. One of them was further described as being a part of the Henry Ross survey of a league and labor and as containing 164% acres, more or less. The other was further described as being a part of the A. Pratt survey and as containing 3⅛ acres, more or less. The consideration recited in the deed was $14,000 paid and to be paid as follows; $6,525 in cash, $1,600 January 1, 1912, and $2,000 January 1, 1913, as evidenced by notes then executed by Harrell to Novich, and the assumption by Harrell of the payment of a note for $3,875 secured by a deed of trust on the land. While it is not so recited in the deed, it is assumed that the $3,875 note was one Novich had made a charge on the land before he sold same to Harrell. By the terms of the deed a vendor’s lien was retained on the land by Novich to secure the payment of the notes. From recitals in the instrument it appears that the $2,000 note was to be a charge against Harrell and the land conveyed to him only in the event No-vich was unable to collect that sum out of notes aggregating $3,311, assigned to him by Harrell, and secured by a lien on land in Wood county.
    By a deed dated November 14, 1910, Harrell, describing the land as it was described in the deed to him, conveyed same to appellant Orand. The consideration recited in this instrument was $16,000, paid and to be paid as follows: $8,525 in cash, and the assumption by Orand of the payment of the notes for $3,875, $1,600, and $2,000, referred to above.
    In April, 1912, Novich borrowed $2,000 of appellee, to be repaid in April, 1913, and as collateral security for the debt he thereby incurred to her delivered to her the $2,000 note given by Harrell to Novich as stated above. The note last referred to contained a stipulation binding I-Iarrell to pay interest from January 1, 1911, at the rate of 8 per cent, per annum. January 1, 1913, while ap-pellee held same as stated, Orand by his writing thereon bound himself, instead, to pay interest from that date at the rate of 10 per cent, per annum.
    There being about $1,750 of the indebtedness due by Novich to appellee unpaid, she on April 15, 1914, commenced the suit against Harrell resulting in the judgment from which this appeal is prosecuted. Her suit was on the note for $2,000 made by Harrell to Novich, as stated above, which she held as collateral security for Novich’s indebtedness to her, and she sought judgment against them for the amount thereof, including interest and attorney’s fee stipulated for, and a foreclosure of the vendor’s lien retained by Novich to secure the payment of same. Novich was alleged to be a nonresident of the state, and for that reason was not made a party to the suit. Harrell did hot answer, and judgment as prayed for was rendered against him by default. Orand in his answer admitted he had assumed the payment of the note, but claimed: (1) That the sale by Novich to Harrell and by the latter to him was of the land by the acre; (2) that there was 12.53 acres less thereof than Novich represented to Harrell and Har-l’ell represented to him there was; and (3) therefore that he was entitled to have set off against the amount due on the note a sum equal to the value of the 12.53 acres shortage, at the price per acre (which he alleged to be $83.33⅛ Harrell agreed to pay for the land). By a cross-action against his codefendant Harrell, Orand sought a recovery against him in the event the set-off he claimed against plaintiff was not allowed, of a sum representing the value of the alleged deficit in acreage of 12.53 acres at $95.25, the price per acre which, he alleged, he agreed to pay Harrell for the land. In a trial amendment, Orand alleged that the title to the 3 ⅛-acre tract had failed, and claimed that for that reason he was entitled to a credit on the note sued on, “to the amount and extent of $277.66, together with 8 per cent, interest thereon from November 10, 1910; that being the date of his purchase and the. interest he has paid thereon.”
    On special issues submitted to them, the jury found: (1) That Novich did not represent to Harrell that the tract of land contained 168 acres; (2) that the tract contained 155.47 acres; and (3) that the price per acre agreed upon between Novich and Harrell was $90. On these findings, and others made by himself, the court rendered judgment in favor of appellee against Harrell for $2,661.12 and against api>ellant for $2,721.40, foreclosed the vendor’s lien as prayed for, directed that the land be sold, and that the proceeds of the sale be applied to the payment of the costs and the sum adjudged in appellee’s favor, and further directed that the excess, if any, of such pro-' ceeds, be paid over to appellant. The judgment was, further, that appellant recover of Harrell whatever sum he (appellant) might pay on the judgment against him in favor of appellee. The appeal is by Orand alone.
    J. D. Williamson, of Waco, and Morrow & Morrow, of Hillsboro, for appellant. Wear & Frazier, of Hillsboro, for appellee.
   WILL-SON, O. J.

(after stating the. facts as above).

The action of the trial court in refusing the special charge No. 2 requested by appellant must be treated as approved of by him, because of his failure to except thereto as required by the statute. Article 2061, Vernon’s Statutes. Therefore the first assignment is overruled.

Without reference to whether the note sued upon was negotiable or hot and we think it was not, and without reference to whether, if it was, she was a bona fide holder thereof or not, and we think she was not Within the meaning of the law, appellee, as the lawful holder thereof, was entitled to recover thereon as sought by her, unless it was subject to defenses appellant would have been entitled to urge against it had it remained in the hands of Novich. It was not disputed in the evidence that the sale by Novich to Harrell was by the acre, and that the two tracts together contained only 155.-47 acres. Appellant alleged that Novich in the sale to Harrell represented that the two tracts contained 168 acres, and that the price agreed upon between Novich and Harrell was $83.33⅛ per acre. He further alleged that the two tracts together contained 12.53 acres less than 168 acres, and that he therefore was entitled to have the value of 12.53 acres at $83.33⅜ per acre set off against the sum appellee would have been entitled to recover had there been 168 acres of the land. At the request of appellee, the court instructed the jury that the burden was on appellant to prove by a preponderance of the evidence that the price agreed upon .between Novich and Harrell was $83.-33⅛ per acre, as be alleged it to be. We think it was not error to so instruct tbe jury, and therefore overrule the second assignment.

Appellant requested the court to charge the jury as follows:

“You are instructed that the undisputed evidence shows that the 3%-acre tract of land out of the A. Pratt survey was embraced in the deed from Mose Novich to Harrell and from Har-réll to defendant Orand, and further shows that the said 3}6-aere tract of land was never in possession of either the said Mose Novich or of the said Harrell or said Orand, and that it has been for more than ten years in the adverse possession of other parties, and as to the said 3⅛ acres of land there is a failure of title, and by reason thereof the said defendant Orand is entitled in any event to an abatement of the note sued on to the extent of the value of said 3^i-aere tract of land at the rate of $83.33 per aere, amounting to the total sum of $277.67, together with the further sum of $76.30, bearing 6 per cent, interest from August 17, 1910, to date, and you are instructed to find in favor of said defendant on account of said 3⅛ acres in the sum of $353.97, which is to be credited on or deducted from amount due plaintiff.”

The complaint in the third assignment is based on the refusal of the court to so instruct the jury. The assignment is overruled. It did not.appear from the evidence as a matter of law that the 3⅛ acres had been “for .more than ten years in the adverse possession of other parties” than Novich and his grantors, and that the title 'of Novich thereto had failed. The witness Preston testified, without contradiction, that the 3⅝ acres of the Pratt survey and the 155.47 acres of the Ross survey were separated by a road. The only testimony we have found in the record which can be said to have tended in the least to show that the 3⅜ acres was ever “in the adverse possession of,” or claimed by, other parties than Novich and his vendors, was the following: (1) The witness Preston testified that in 1906 the 3⅛ acres “was in Mrs. White’s inelosure.” He did not know how long it had been there. (2) The witness Henderson testified that “Mrs. White occupied that land that is across the road there and up to the creek.” What land he had reference to does not appear from his testimony. Nor did he say when Mrs. White occupied the land he referred to, nor how long. It is plain, we think, that it did not conclusively appear from this testimony that the statute of limitations had operated to divest Novich of title to the 3⅛-acre tract at the time he conveyed same to Harrell.

The fourth assignment presents substantially the same question as the one presented by the assignment last disposed of. It will not be considered, because the ruling of the court complained of, to wit, the overruling of appellant’s motion to enter judgment al'owing him the set-off he claimed on account of the failure, as he alleged, of Novich’s title to the 3%-acre tract, was not complained- of in the motion for a trial as required by rule 24 for the government of this court (142 S. W. xii).

The judgment is affirmed.
      <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    BURCHETT v. BRISTOW.
    (No. 1562.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 25, 1916.
    Rehearing Denied April 6, 1916.)
    1. Appeal and Error <§=1064(2) — Harmless Error — Instruction.
    In proceedings to probate a will, a charg'e submitting the issue of undue influence and concluding to the effect that mere arguments, persuasions, solicitations, or entreaties by a beneficiary in a will is not that character of undue influence which is contemplated by law when speaking of undue influence, was harmless, if erroneous as a charge on the weight of the evidence, where there was only the very slightest evidence of any conduct on the part of the beneficiaries to which the charge could have been applied in controlling the verdict of the jury on the issue.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4221, 4222; Dee. Dig. <§= 1064(2); Trial, Cent. Dig. §§ 525, 553.]
    2. Appeal and Erkor <§=1056(1) — Harmless Error — Exclusion of Evidence.
    In proceedings to probate a will opposed by testatrix’s illegitimate son on the ground that it has been procured by undue influence and false representations respecting the conduct of himself and 'brother toward testatrix, the exclusion of a letter written by testatrix to the other 11 years before the will was made, not indicating any special warmth of feeling, was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187, 4191, 4207; Dec. Dig. <§=1056(1).]
    Error from District Court, Fannin County; Ben H. Denton, Judge.
    Proceedings by W. S. Bristow to probate-the will of Margaret A. Bristow, deceased. To review a judgment probating the will, William Burchett brings error.
    Judgment affirmed.
    Thos. P. Steger, of Bonham, and J. G. Mc-Grady, of El Paso, for plaintiff in error. C. A. Wheeler, Cunningham & McMahon, and J. H. G. Dee, all of Bonham, for defendant in error.
   HODGES, J.

This appeal is from a judgment probating the will of Margaret A. Bris-tow, deceased. At the time of her death the testatrix was married to W. S. Bristow, one of the defendants in error, and was approximately 70 years of age. She had no children at the time of her death, except two illegitimate sons, James Booher and William Burchett, who resided in Kentucky, .tier property consisted of an interest in a farm near Ector in Fannin county, and some other real estate at other places. By the terms of her will her property was disposed of as follows: To her two sons, James Booher and William Burchett, she gave the sum of $5 each; to her husband, W. S. Bristow, she devised all of her personal property and all of her real estate, except her undivided half interest in the homestead of herself and a former husband, consisting of 100 acres of land situated in Fannin county. This portion of her estate was bequeathed to her friend O. R. Henry, subject to a life estate given to W. S. Bristow. Her husband, W. S. Bris-tow, was appointed sole executor without bond. When Bristow made application .to probate the will it was contested by the sons of the testatrix, on the ground of mental incapacity and undue influence. In the trial in the district court the case was submitted on those two special issues, both of which were determined in favor of the proponents of the .will. In submitting the issue of undue influence the court gave the following explanatory charge:

“In this connection I charge you that what is meant by undue influence is such influence as compels the testatrix to do that which is against her will, from fear, desire of peace, or some feeling which she is unable to resist. Such influence must in some measure destroy the free agency of the testatrix, and must be sufficient to prevent the exercise of that discretion _ which the law requires in the exercise of the will. Mere arguments, persuasions, solicitations or entreaties by a beneficiary in a will is not that character of undue influence which is contemplated by law when spealdng of undue influence."

To that part of the charge in italics the appellant objected, on the ground that it was on the weight of the evidence. That portion of the contest which alleged undue influence is, in substance, as follows:

The will is void on account of illegal, fraudulent, and undue influence practiced on M. A. Bristow at and before the date of the will, by the beneficiaries W. S. Bristow and O. R. Henry and others acting under their influence, whose names are unknown to the contestants. Such undue influence is more particularly described as follows :

“That at the time of the pretended execution of the said paper, called a will, said decedent, M. A. Bristow, was very weak in body and mind, was then, and had been for some time, upon her deathbed; her mind rendered feeble, impaired and visionary by the use of opiates almost constantly for years; she was 70 years old. And taking advantage of these and other like infirmities, W. S. Bristow and C. R. Henry entered into and carried out a conspiracy to_ procure said decedent to disinherit her only children and to estrange her from them; and they falsely represented to her, and by fraud and undue influence procured her to believe that her only children, the contestants, had forsaken her and cared nothing for her, and that they were neglectful of her, and that she was almost destitute of the necessities of life, and that she was in need of help from her children and that they were able to administer to her wants and needs, but that they did not do so because they cared nothing for her.”

Then follows a series of averments denying the truth of those representations, after which the contest continues:

“Said decedent was made to believe by the representations of said Henry and W. S. Bristow that said Henry had supplied her, free of charge, with wood to keep her warm, and that she was dependent upon his charity, and that he had done a great deal more for her than she had done for him in a financial way, all of which representations were untrue and such beliefs not well founded, for that the truth is said decedent had done a great deal more for said Henry than he had done for her ; ⅜ * * that W. S. Bristow, by undue and unlawful means unknown to contestants, intimidated said decedent and made her afraid of him and thereby constrained her to pretend to make the alleged will through fear of him; but same was not her act nor her free will, but was the act of said Bris-tow. And W. S. Bristow took advantage of said decedent’s morphine habit to unduly influence her actions and in making the alleged will according to his dictates by depriving her of and threatening to deprive her of such drug.”

Those averments may be summarized as follows: (1) That Bristo.w and Henry entered into a conspiracy to induce the testatrix to disinherit her two sons, and carried out that conspiracy by falsely representing to her that she was in a destitute condition and that her children were able to administer to her wants, but because of their lack of affection had failed to do so. (2) That the testatrix was to some extent dependent upon the charity of Henry; that he had supplied her with wood free of charge, and had done more for her in a financial way than she had ever done for him, thereby placing her under obligations to Henry. (3) That Bristow had taken advantage of the testatrix’ fondness for a narcotic and the weakness superinduced by its use,' and had, by intimidation and otherwise, caused or coerced her into making the will.

The evidence shows that for some time prior to her death the testatrix was addicted to the habitual use of a narcotic drug, and that she had been gradually growing physically weaker in consequence. Some of the witnesses testified that her mind had become considerably impaired; that she was easily influenced by others; that her will power was apparently very weak. Upon the issue of mental capacity the greater weight of the evidence appeared .to sustain the finding of the jury.

The first husband of the testatrix was William Statzer, to whom she was married many years before in Kentucky. Some time after their marriage the couple moved to Texas, leaving the two illegitimate sons of the testatrix in Kentucky; one of whom was raised by her father, and the other by a family not related to them. By Statzer the testatrix had two other children, both of whom died before their marriage and before the death of Statzer, which occurred some time about 1900. Statzer left some property ; how much is not definitely stated, but it appears inferentially that his widow had sufficient means to place her above want. A portion of his property he bequeathed to her, and other portions went to charitable purposes Some time after the death of Statzer the testatrix married W. S. Bristow, who was about 10 or 15 years her junior. She was very ignorant, and was never able to read or write. Her two sons continued to live back in Kentucky, and were both very illiterate, neither being able to read or write. Both of them, however, were, married and had families. One, it is shown by the evidence, had an estate valued at about §1,500; the other was merely a laboring man, dependent upon his own daily earnings for support of himself and family. It appears that neither of them saw their mother for over 20 years, and one of them never saw her after she left Kentucky. 'The other, James Booher, visited Fannin county a short time before his mother’s death, and spent only a small portion of his time with her. It appears that this visit occurred after the mother had made a will, which failed to make any provision for him and his brother. The evidence indicates that the interchange of letters between mother and her sons was very rare. One letter to James Booher, attributed to her, and which was excluded on objection, was written in 1902, more than 10 years before her death; this seems to have been the last time she wrote to either of her sons.

The only evidence which tends to support any of the charges of undue influence is the fact that the two sons were disinherited and a bequest made to Henry, a man in no way related to the testatrix, and the testimony of one of her neighbors concerning a conversation with Mrs. Bristow some time prior to her death. This testimony was, in substance, that Mrs. Bristow referred to the fact that the neighbor had an excellent husband, and his wife could do as she pleased about matters in which she had an interest; that Mrs. Bristow then expressed regret that she (Mrs. Bristow) was not allowed the same liberty; that she could not do as she pleased with everything. There was no direct evidence that any persuasion, arguments, solicitations, or entreaties had ever been used; in fact, <that character of undue influence was not alleged.

There were three witnesses to the will. One of these, G. M. Wheeler, testified that he was 80 years of age and had known the testatrix quite well for some time. The substance of his testimony is that the will offered for probate was written by his son, an attorney at law, and at the special instance of Mrs. Bristow; that in response to her request witness wrote his son to visit Mrs. Bristow for that purpose; that when he arrived she gave in a general way an outline of the provisions she desired incorporated in the will. His testimony excludes the inference that there was any persuasion, solicitation, or entreaty used at the time, or that any had been used prior to that time. Another one of the subscribing witnesses testifies substantially to the same effect.

Even if we concede that the charge complained of was erroneous, when considered in the abstract, it could have had no harmful effect, because there was no evidence of any conduct to which it could have been applied in controlling the verdict of the jury upon the issue of undue influence.' There is no evidence, other than the circumstances previously referred to, which tends to show that any compulsion or any wrongful influence was brought to bear upon the testatrix to induce her to make the will. There is, on the contrary, testimony to the effect that the testatrix had voluntarily stated, previous to the making of the will, that her children had never shown her that attention and. affection which she had a right to^ expect. There was also testimony tending to show that Mirs. Bristow was permitted by her husband to manage her interest in the property which was bequeathed to Henry.

There are two other assignments of error, one of which complains of the exclusion of a letter which purported to have the signature of the testatrix and was addressed to her son James Booher. It seems to have been conceded that Mrs. Bristow was unable to write, and there was no evidence offered to prove that the letter was written at her dictation, except its contents, the fact that it was postmarked Bonham, Texas, and was received by James Booher in the due course of mail. The date of the postmark shows that the letter was written in 1902, about 11 years before her will was made. It does not indicate any special warmth of feeling toward her son. Even if it were otherwise, 10 or 11 years of separation thereafter was sufficient to cause an estrangement resulting from real or fancied indifference or neglect. It is altogether improbable that the verdict of the jury would have been different had this letter been admitted.

. The issue and testimony in this case are somewhat similar to those in Mayes v. Mayes, 159 S. W. 919, to which appellant refers. It was there held that the evidence, which is But little, if any, weaker than that offered by contestants, was insufficient to sustain a finding that undue influence had caused the execution of the will offered for probate.

Chief Justice Pleasants, who wrote the opinion, said:

“The court finds, and the uncontradicted evidence fully sustains' the finding, that the deceased had testamentary capacity and that the will was read to him at the time he signed it and he knew his property and the objects of his bounty. The testimony of the witnesses to the will and all of those who knew of its execution shows that the deceased dictated the terms of the will without suggestion from any one, and that the disposition of his property made by the will was his voluntary act conceived in his own mind uninfluenced or aided by the advice or suggestion of any one. If this is true, the fact that the will is unreasonable, unnatural, and unjust will not authorize the court to set it aside. The right of the owner of property to dispose of it by will to whomever he may choose is a valuable right which should not 'be denied because such disposition is not in accord with that which is generally regarded as natural, reasonable, and just.”

We have carefully considered all of the assignments, and have examined the testimony, and feel warranted in saying that had all the proffered evidence been admitted, no other finding upon the issue of undue influ•ence could be sustained. For that reason we •deem it unnecessary to discuss the remaining •assignments.

The judgment is affirmed.
      <®=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TYLER BOX & LUMBER MFG. CO. v. CITY NAT. BANK OF PARIS et al.
    (No. 1587.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 16, 1916.)
    1. Sales <§=>89 — Modification of Contract —Consideration.
    Where defendant contracted to purchase ■all the cottonwood veneer cut by plaintiff for egg cases for the season of 1913 and 1914, a modification of the contract, relieving the defendant of any obligation to take more than it could use in its business in those seasons, and relieving the plaintiff of its obligation to sell all the material cut by it and to turn over orders it might receive for egg cases, rested upon -mutual consideration, and the contract might have been modified without a new consideration ; the consideration of the original contract •being sufficient.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 251, 252, 259; Dec. Dig. <§=>89.]
    '2. Trial <§=>252(12) — Instructions — Evidence.
    In an action under a contract to sell all the veneer cut by plaintiff to defendant for two seasons and to turn over orders for egg cases to defendant, testimony that plaintiff, on defendant’s request, would reduce the output of its plant so as not to overstock defendant with material did not show a modification of the contract, under which the plaintiff had the right, at any time, to reduce its output, so that the refusal of plaintiff’s charge, based thereon, that the jury should find for it, on the theory that the defendant was bound to receive and pay for the reduced output, was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 604; Dec. Dig. <§=>252(12).]
    3. Trial <§=>251(4) — Instructions — Action for Breach of Contract — Pleading and Issues.
    In such case, even if the testimony had shown a modification of the original contract, the refusal of plaintiff’s request on that theory Would have been proper, where there was no pleading by plaintiff which could have authorized the submission of such issue.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 591; Dec. Dig. <§=>251(4).]
    4. Partnership <§=3218(3) — Denial — Statute.
    In an action on a contract for the sale of veneering for the manufacture of egg cases brought against a bank and its president as partners, where neither the bank nor the president denied their partnership under oath, as required by Yernon’s Sayles’ Ann. Civ. St. 1914, art. 1906, a peremptory instruction to find in favor of the president, because it was not shown that he had any connection with the contract other than as agent of the bank, especially in view of the admission of partnership in their answer, was erroneous.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 427; Dec. Dig. <§=>218(3).]
    5. Appeal and Error <§=>1062(3) — Harmless Error — Instruction.
    Such error in the instruction was harmless, since if they were partners and the bank was not liable, as was found by the jury, the individual defendant as its partner could not have been liable, and a finding against him would have been unauthorized.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4214; Dec. Dig. <§=> 1062(3).]
    6. Appeal and Error <§=>1040 (14) — Harmless Error — Instruction—Issues.
    In an action on a contract, _ error in overruling plaintiff’s exception to a part of the de? fendant’s answer was harmless, where the matter set up in the paragraph as a defense was not submitted to the jury as constituting a defense.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4102, 4105; Dec. Dig. <§=> 1040(14); Pleading, Cent. Dig. § 567.]
    Error from District Court, Lamar County; A. P. Dolioney, Judge.
    Action by the Tyler Box & Lumber Manufacturing Company against City National Bank of Paris, Tex., and T. J. Record. Judgment for defendant bank, and the plaintiff brings error.
    Affirmed.
    Plaintiff in error, the Tyler Box & Lumber Manufacturing Company, which will be called the “Tyler Company,” was engaged in the business of manufacturing and selling egg cases, etc., at Tyler, Tex. The Paris Box & Manufacturing Company was engaged in the same business at Paris, Tex. In 1911 the last-mentioned company became bankrupt and its manufacturing plant sold by the trustee in bankruptcy to the defendant in error, the City National Bank of Paris, one of its creditors. Thereafterwards the bank, of which defendant in error Record was president, in the name “Paris Box & Lumber Company,” carried on the business of manufacturing egg eases, etc., for the purpose of recouxiing, its loss as a creditor of the bankrupt concern. July 17, 1913, the Tyler Company and the bank, in said name of Paris Box & Lumber Company, entered into a contract as follows:
    “Paris, Texas, July 17, 1913.
    “This is a contract between the Paris Box & Lumber Co. of Paris, Texas, and the Tyler Box & Lumber Co. of rByler, Texas, hereinafter referred to as the Paris Co. and the Tyler Co. respectively.
    “The Paris Company hereby purchases from the Tyler Company all the cottonwood veneer cut by it for the season of 1913 and 1914, for the price of five and one-half (5-½) cents per set of one top, one bottom and two sides, f. o. b. ears the factory of the Paris Co. and of the dimensions suitable for standard egg cases; veneers cut sufficiently long and wide to allow cutting off and ripping.
    “The Paris Co; agrees to pay for same at above price within ten days from date of receipt of invoice and bill lading less 2% after deducting freight from said price.
    “The Tyler Company hereby sells to the Paris Co. all the cottonwood veneer cut by it for the period from this date to the first day of August, 1914, for the price of five and one-half (5-½) cents per set. At least one hundred thousand sets must be delivered by November 1, 1913, and one hundred thousand sets by the 15th day of March, 1914. Said veneer to be cut from live cottonwood of such dimensions and so that by ripping one side and equalizing the ends they will make one piece sides and tops, and at least two-thirds of bottoms one piece, balance of bottoms may be two pieces.
    “The Tyler Company will turn its orders for egg cases to the Paris Company and will assist it in selling to the trade.
    “Signed by the Paris Box & Manufacturing Co., per W. J. Reed, Mgr., and T. J. Record; and by the Tyler Box & Lumber Co., per B. C. Anderson.”
    The suit was by the Tyler Company against the bank and Record for damages it claimed it suffered because of a breach by them, it alleged, of the contract, in that they refused to receive when tendered, and pay for, veneer cut by it during the life of the contract, as they had agreed to do. The bank and Record claimed that the contract sued upon was modified by an agreement made in February, 1914, and that they had complied with it as so modified. The fifth paragraph of the answer of the bank and Record, and a part of the sixth paragraph, which sets up the modification 'of the contract as claimed by them, are as follows:
    “Defendants admit the making of the contract set out by plaintiff in paragraph 15 of its petition; but they say that at the time said contract was entered into, it was contemplated and understood by the parties making same that the Paris Box Factory would not be obligated to take more cottonwood veneer than would be necessary to manufacture such egg cases that could be sold to the trade within the time specified in said contract; that the contract, as written, by its terms obligates defendants to take all the cotton veneer cut by plaintiff for the season 1913 and 1914, but, as above alleged, it was fully understood and agreed that the Tyler concern would not cut, or expect the Paris Box Factory to take, any more stuff than would be necessary, as above stated, to supply the demand for egg cases.
    “The defendants further say that up to the 28th day of February, A. D. 1914, the Tyler Box Factory had shipped to the Paris Box Factory large amounts of veneer to be used in the manufacture of egg cases which had been received by the Paris Box Factory and paid for according to the terms of the contract; that on or about said 28th day of February a representative of the Tyler Box Factory, having full authority to represent it in its business with the Paris Box Factory, came to the city of Paris, and he and the representative of the Paris Box Factory made and agreed on a settlement of its business relations up to said date, including a settlement of accounts for the period ending July IT, 1913; that the attention of the agent and representative of the Tyler Box Factory was called at the time to the contract set out by plaintiff, in which the Paris Box Factory had agreed to take all the cottonwood veneer cut by the Tyler Box Factory for the season of 1913 and 1914, and such representative and agent then stated that it was not contemplated by the parties to the contract that the Paris Box Factory should take more than sufficient for its needs, and that the Tyler Box Factory did not expect the Paris Box Factory to take more than it could find a market for. T. J. Record, representing the box factory, again called his attention to the wording of the contract, whereupon it was agreed that that part of the contract which obligated the Paris Box Factory to take all the cottonwood veneer cut by it for the season of 1913 and 1914 should be abrogated and rescinded, and that thereafter the contract should be that the Paris Box Factory should take all the veneer f-rom Tyler Box Factory that it could use in its business for the season and no more.”
    The testimony offered on behalf of the bank and Record was sufficient to support a finding that the contract was changed as alleged by them.
    Because the Tyler Company failed to prove that Record had any connection with the contract sued upon, except as agent of the bank, the trial court instructed the jury to find in his favor. With reference to the controversy, so far as it was between the Tyler Company and the bank, the court instructed the jury to find in favor of the former, unless they believed the contract sued upon was “modified by an oral agreement made subsequent to” its date, and to find for the bank if they believed—
    “that on or about February 28, 1914, John M. Wright, representing the plaintiff the Tyler Box & Lumber Manufacturing Company, made a verbal agreement with T. J. Record, representing the defendant, City National Bank of Paris, Tex., by the terms of which, the provisions of the written contract aforesaid, requiring the Paris Box & Lumber Company to take the entire output of veneer for egg cases of the plaintiff’s factory for the season of 1913 and -1914, should be abrogated and rescinded, and that thereafter the contract should be that the Paris Box Company should take all the veneer from the Tyler Box Company that it could use in its business for said season, and no more, and that thereafter said Paris Box & Lumber Company did take from the plaintiff all such veneer that it could use in its said business, for said season.”
    The jury found in favor of the bank; judgment that the Tyler Company take nothing by its suit was rendered.
    Burdett, Connor & Dailey, of. Paris, and Simpson, Lasseter & Gentry, of Tyler, for plaintiff in error.- Park, Moore & Hardison, of Paris, for defendants in error.
   WILLSON, C. J.

(after stating the facts as above). The negotiations resulting, as claimed by the bank and Record, in the modification, as alleged by them, of the contract sued upon, were between Record, representing the bank, and John M. Wright, representing the Tyler Company. Record testified that the change was agreed upon February 28, 1914, after he and Wright had adjusted accounts existing between the bank and the Tyler Company growing out of another contract between them.

He further testified:

“The egg-case business was getting late, the season was far advanced on the last day of February, and we talked about the condition, and Mr. Wright told me to have no anxiety about it, he was not going to overstock us, it was as much against his interest to overstock us as it was against our interest to be overstocked. * * * I said: ‘Mr. Wright, you say you are not going to overstock us, that is very nice, but we want to understand each other.’ I got the contract and read to him that part of which obligated the Paris Box Factory to take all the veneer the Tyler Box Company could cut during the life of the contract. Wright said, ‘the real agreement never contemplated that the Paris Box Factory should take more than it could use during the season, and we do not want you to take more veneer than you can use.’ I then said: ‘Let’s fully understand each other, do you agree that that part of the contract which (requires us to take all the cut shall be modified and rescinded, and that hereafter the contract shall be that the Paris Box Factory shall take all the veneer from the Tyler Box Factory, that it can use for the season, and no more?’ Wright replied that ‘We do so agree,’ and added that he would like for us to take a car occasionally, as he wanted to keep a small crew at the plant. I told him we would use all we could, and hoped the egg-ease business would pick up, and that we would be able to use more veneer than it now appeared, and he said: T think the business will improve, and that you will need more than you now expect you will use.’ That was on the 28th of S’feb-ruary, and early in March we wrote him and told him to hold up shipments,- and on the 25th of March, I believe, we told him we could not handle any more, and asked to discontinue. That is the agreement that was made between Mr. Wright and I on the 28th of February. From the time Mr. Wright was here until we notified them to hold up, they shipped us 10 cars. On the 3d of March they shipped a car, 10,560 sets; on March 5th a car, 11,700 sets; another on the 5th of March, 12,700 sets; two on March 10th, one 8,666 sets, and the other 8,500 sets; two on the 16th of March, one 12,-000 sets, and the other 12,290; two on the 17th of March, one 12,870, and the other for 11,535; and then they skipped until the 25th of March when they shipped us one car of 7,537 sets. That aggregated 108,352 sets. That was after Mr. Wright and I agreed on a car occasionally. We made every effort possible to use all the veneer possible in our business, and we did all we could. I think we had between 75,000 and 100,000 sets that we could not use and had to carry over. At the time we made the new contract we probably had that number of sets on hand that we bought and paid them for. After Mr. Wright was here and we had that agreement, we carried over about 65,000 sets that we could not use. We paid for all that veneer. In other words, we tried to buy enough to run on, and we had 65,000 sets more than we sold, I believe it was 65,900 sets; I don’t know exactly, so I’ll say about 65,000.”

The Tyler Company insists that the agreement shown by the testimony set out above was not;, binding upon it, because, it asserts, the modification of the contract sued upon, claimed to have been thereby accomplished, ,was without a consideration to support it. We do not. think so. While the bank was thereby relieved of any obligation to take more of the material than it could use in its business for the season covered, by the contract, the Tyler Company was relieved of its obligation to sell to the bank all the material cut by it, and to turn over orders it might receive for egg eases to the bank. It seems to us, therefore, it cannot be said that there was no consideration, or a lack of mutuality in the consideration, for the modification claimed. 1 Page on Contracts, 302, 308. It has been said that a contract like the one sued upon “may be modified without a new consideration, the consideration of the original contract being deemed sufficient.” 35 Cyc. 124; City of Ft. Madison v. Moore, 109 Iowa, 476, 80 N. W. 528; Fiber Co. v. Lumber Co., 132 Wis. 1, 111 N. W. 241; Bowman v. Wright, 65 Neb. 661, 91 N. W. 581, 92 N. W. 580; Strahl v. Grocer Co., 5 Neb. (Unof.) 482, 98 N. W. 1043; Prye v. Kalbaugh, 34 Utah, 306, 97 Pac. 333; Hertz v. Pub. Co., 9 Ala. App. 178, 62 South. 567. We do not understand the ruling made in the cases decided by the courts in this state, and cited by the Tyler Company, as being to the contrary, except the one made in Terrell v. Proctor, 172 S. W. 1000, where it was said by the Court of Civil Appeals that:

“In some states the courts have held that the consideration existing in an original executory contract is considered as imported into any new parol modification, and no new consideration need be shown, but we do not understand our courts to so hold. Whitsett v. Carney, 124 S. W. 443; Walker v. Tomlinson, 44 Tex. Civ. App. 446, 98 S. W. 906; Mayfield v. Cotton, 21 Tex. 1; Hogan v. Crawford, 31 Tex. 633; Bonzer v. Garrett, 162 S. W. 936; Consumers’ Fertilizer Co. v. Badt & Co., 157 S. W. 226; Porter v. Metcalf, 84 Tex. 468, 19 S. W. 696.”

While the cases cited in the quotation from the opinion in the Proctor Case set out above do not bold that the consideration of an executory contract will support a modification thereof agreed upon by the parties, they do not, as we understand them, when considered with reference to their respective facts, hold to the contrary, and we are of opinion that the rule recognized by courts in other jurisdictions is the true one. It follows that ,we think the assignments numbered 2, 3, 4, and 14 in the Tyler Company’s brief should be overruled.

The witness Wright testified that the agreement of February 28, 1914, between himself, representing the Tyler Company, and Record, representing the bank, was not as testified to by Record, but was that the Tyler Company, when requested by the bank to do so, would so reduce the output of its plant as to not overstock the bank with material. The court refused a special charge asked by the Tyler Company, based on this testimony and on testimony showing that thereafter-wards the Tyler Company did reduce the output of its plant, directing the jury to find for it on the theory that the bank was bound to receive and pay for the reduced output of the plant. We think the refusal of the charge was not error. Under the contract as made originally the Tyler Company had a right, without any agreement on the part of the bank, to reduce the output of its plant, for it had not bound itself not to do so. The testimony of Wright, therefore, did not show a modification of the original contract. If it had shown one, then it .would not have been error to refuse the charge, because there was no pleading on the part of the Tyler Company which would have authorized the submission of such an issue to the jury. The eleventh assignment therefore is overruled.

The suit was against the bank and Record as partners. There was no denial, under oath, by either the bank or Record of the partnership, as was required by the statute. Article 1906, Vernon’s Statutes. It is insisted that the court therefore erred when he peremptorily instructed the jury to find in favor of Record, because it was not shown that he had any connection with the transaction evidenced by tbe contract, other than as the agent of the bank. For the reason urged, and also because of the admission in the second paragraph of the bank and Record’s answer that they were partners in the business of manufacturing egg cases as charged in the ninth paragraph of the petition, the instruction, doubtless, was error; but the error was harmless, because, if they .were partners and the bank was not liable, as was determined by the jury, Record as its partner could not have been liable, and a finding against him would have been unauthorized.

It is believed the court did not err in refusing to give to the jury the special charge numbered 2, requested by the Tyler Company. Neither the original contract, nor that contract as modified, according to the testimony, required the bank to give notice to the Tyler Company before it did that it could not use more of the material than it accepted and paid for.

What has been said disposes of all the assignments except the first, in which the Tyler Company complains of the action of the court in overruling its exception to the fifth paragraph of the bank and Record’s answer. The action of the court, if erroneous—and we think it was—was harmless, for the matter set up in that paragraph as a defense to a recovery by the Tyler Company, as it sought, was not submitted to the jury as constituting a defense to the suit.

The judgment is affirmed.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes