author: RASBTJRY, J.

text:
    JACKSON v. BIGGERSTAFF & PERKINS.
    (No. 7162.)
    (Court of Civil Appeals of Texas. Dallas.
    May 30, 1914.
    Rehearing Denied June 27,1914.)
    1. Appeal and Error (§ 1001) — Review-Findings.
    Where the evidence would have sustained a finding for either plaintiff or defendant, the jury’s finding for the plaintiff will be adopted on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922,3928-3934; Dec. Dig. § 1001.]
    2. Bbokeks (§ 63) — Compensation—Failure to Complete Contract.
    Real estate brokers who secured an acceptable purchaser to whom the owner agreed to sell were entitled to their commissions, though the owner exercised a privilege agreed upon with the purchaser of withdrawing upon forfeiture of a certain sum; the transaction not being a mere option, as the purchaser was bound and ready to comply, but the owner’s fault defeated the sale, and their right to the commissions not being wholly dependent upon the contract between the owner and purchaser.
    [Ed. Note — For oth“r cases, see Brokers, Cent. Dig. §§ 79, 81, 94-96; Dec. Dig. § 63.*]
    3. BROKERS (§ 60) — COMPENSATION—SUFFICIENCY of Services.
    A broker may recover his commissions whenever he secures a purchaser ready, willing, arid able to purchase the land on the owner’s terms and conditions, unlees the sale is not consummated because of the purchaser’s fault, or, though the purchaser is unwilling to complete the deal, if there is an enforceable contract to purchase.
    [Ed. Note — For other cases, see Brokers, Cent. Dig. § 91; Dec. Dig. § 60.]
    Appeal from Collin County Court; H. L. Davis, Judge.
    Action by Biggerstaff & Perkins against Sam Jackson. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    F. E. Wilcox, and G. R. Smith, both of McKinney, for appellant. John Doyle, of McKinney, for appellees.

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

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

   RASBTJRY, J.

Appellees sued appellant in the court below, alleging they were employed by appellant to sell or exchange appellant’s lands, and that in pursuance of such employment they did find a purchaser, who agreed in writing to buy said lands on terms accepted by appellant, but which agreement appellant refused to comply with. Prayer was for the commissions or fees, agreed upon.

Appellant’s defense was that he was not liable for the commissions, because appel-lees’ customer breached the contract and refused to comply with its provisions, and because the contract between appellant and appellees’ principal was not binding upon appellant, since by its terms appellant had the right to recede from the contract upon the payment of a stipulated forfeit to appellees’ principal, and that such a forfeit was, in fact, paid.

There was a jury trial resulting in a verdict for appellees, followed by judgment, from which this appeal is prosecuted.

We deduce from the record in support of the verdict of the jury, in substance, the following essential and undisputed facts: Appellant did employ appellees to sell his lands, and, in pursuance of such employment, appellees found a purchaser therefor in the person of J B. Hewell, with whom appellant entered into a contract in writing by which,, omitting details, Hewell was to buy appellant’s lands for an agreed and stipulated price, appellant agreeing to accept as part payment thereof certain property of Hewell’s, both personal and real, conditioned upon the title of both contracting parties to their respective properties being good. While the written contract did not contain such a provision, it was nevertheless agreed between appellant and Hewell that appellant should deposit with the cashier of a local bank at Hut-to, where Hewell resided, and where the agreement was consummated, his promissory note, for $500 against Hewell’s deed for the property he was to convey to appellant, with the understanding that the note should be delivered to Hewell if appellant wrongfully refused to comply with the contract to sell his lands to Hewell. The sale was not consummated, and upon trial testimony was adduced sufficient to support a finding by the jury that it was due to the refusal of either appellant or Hewell to observe the contract, and for that reason we follow the rule in such cases and adopt the findings of the jury that it was due to the fault of appellant. When appellant failed to observe his contract to convey, Hewell sued appellant upon the note. This suit was ultimately compromised by appellant paying one-half thereof.

There are a number of assignments urged by appellant, but, since none of them disclose error upon charges submitting the case to the jury, as relates to the rights of appellant, it will not be necessary to consider them, since we conclude that upon the undisputed facts and those found by the jury the proper verdict was returned. It is argued by counsel for appellant with much earnestness that because appellant had the right to recede from the contract to sell and convey the land by paying to Hewell a forfeit or stipulated amount, appellees could not recover, because the contract at most was but an option. The contention, we believe, is unsound. Many cases can be found holding that, where the broker secures a purchaser. for his principal’s lands and the principal gives the purchaser an option upon the land, the broker cannot claim his commission until the purchaser exercises the option and actually acquires the land. Moss v. Wren, 102 Tex. 567, 113 S. W. 739, 120 S. W. 847; Wilson v. Ellis, 106 S. W. 1153; Rankin v. Grist, 129 S. W. 1147; Crum v. Slade & Bassett, 154 S. W. 353; Ramsey v. West Texas Bank & Trust Co., 155 S. W. 551. No such state of facts is presented by the record in the instant case, however. Hewell, the purchaser, by the contract entered into with appellant had no option in the matter, but was bound to accept the land on the terms and conditions named therein whenever appellant complied with the provisions imposed upon him thereby. It is true that appellant and He-well agreed that appellant, even after Hewell had complied in all respects with the contract, might recede from his obligation to convey the land by paying Hewell the 'sum of $500. There is, however, as applied to the broker, a broad and apparent distinction between a purchaser who has secured the option of purchasing lands and a seller who reserves the right upon his wrongful refusal to convey to satisfy the purchaser’s rights arising thereby by paying a stipulated sum of money. The latter right ignores the rights of the broker, and, as applied to him, such reservation in no respect affects his right to recover his fees when he has by his efforts secured acceptable purchaser. Such a rule will fall by the weight of its own inequity. If enforced, it would destroy the rule long enforced, which permits the broker to recover his fees whenever he secures a purchaser ready, willing, and able to purchase his principal’s lands on the terms and conditions agreed to by the principal; unless, of course, the sale is not consummated as the result of the fault of the purchaser. The distinction between an option by the purchaser and the right of the seller to recede upon the payment of a forfeit is very clearly stated in Hamburger & Dreyling v. Thomas, 103 Tex. 280, 126 S. W. 561. In that case the purchaser had the alternative, in case title was good, of purchasing the lands or paying a stipulated forfeit. The title of the seller, however, was bad, and for that reason the sale was not consummated. The brokers sued for their commissions, and, among other defenses, it was urged that the brokers could not recover because the purchaser they secured was only optionally bound to purchase the land, since he had the right to refuse to purchase upon payment of the forfeit, and until he had actually purchased the fees had not been earned. In discussing that question the Supreme Court said:

“There would be more force in this if the title had proved satisfactory and Baker had exercised his right to recede from the trade by forfeiting the money deposited. In such case there would have been neither a willingness to buy nor an enforceable contract to buy, one or the other tff which conditions would be essential to the broker’s right to compensation. But the latter condition is not essential where the first exists and the sale is defeated by the owner of the property. The question whether or not the plaintiff (broker) performed the service called for by the contract is not wholly dependent upon the writing executed between the owners of the property and the proposed purchaser. The fact that the latter really whs willing and able to buy, and would have bought, notwithstand.ng he was at liberty not to do so, had he not been prevented by the defendant’s failure to produce proper evidence of title, must he regarded as controlling, and as dispensing with the necessity of a binding contract to purchase which might otherwise have existed.”

Thus the rule is that before the broker can recover the purchaser must be willing to buy, or, if unwilling, there must be a contract of purchase which is enforceable. Here the purchaser was willing to buy, and could have been compelled to do so as well, but, due to the fault of the seller in exercising his right' to recede from the contract by paying the forfeit, the sale was defeated; and, while he had the right to do so, it was his action that nevertheless prevented the sale, and since, as said in the case cited, appellees’ right to receive their fees for the services performed is not wholly dependent upon1 the contract between the purchaser and seller, and since appellees did secure an acceptable purchaser, that condition must control.

The judgment is affirmed.


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    FRASER v. McCARTY.
    (No. 5311.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 3, 1914.
    Rehearing Denied June 27, 1914.)
    1. Brokers (§ 67) — Acting fob Both Parties — Knowledge.
    A written agreement whereby defendant agreed to pay to plaintiff one-half of the commission due on the exchange of his house for the property of a certain third person, to be in full settlement of his part of the commission on the exchange, was sufficient of itself to show that plaintiff was not acting for both parties without the knowledge of the defendant.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 52-54; Dec. Dig. § 67.]
    2. Brokers (§ 86) — Action fob Commission —Sufficiency of Evidence.
    In an action for a part commission for effecting an exchange of properties, defended on the ground that there were incumbrances on the property not known to the defendant, evidence held sufficient to sustain a judgment for plaintiff.
    [Ed. Note. — For other eases, see Brokers, Cent. Dig. §§ 116-120; Dec. Dig. § 86.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by E. F. McCarty against J. W. Fraser. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Williams & Hartman, of San Antonio, for appellant. O.’ M. Fitzhugh and Swearingen & Ward, all of San Antonio, for appellee.

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

   FLY, C. J.

This is an appeal from a judgment for $125 for commissions claimed by ap-pellee for negotiating an exchange of lands diy appellant and C. T. Gregory. The case originated in the justice’s court, where appel-lee obtained judgment, as he afterwards did in the county court.

It is the contention of appellant that judgment should not be rendered against him, because appellee was acting as agent for both parties to the exchange, without the knowledge of appellant. The written agreement given by appellee clearly indicates that appellant knew that Gregory was paying one-half of the commissions, because he describes the $125 which he agreed to pay to appellee as “one-half of the commission which .is due you on the exchange of my home in Los Angeles Heights for property owned by C. T. Gregory,” and because in the closing sentence of the agreement it is stated:

“This to be in full settlement of my part of the commission on the deal or trade between myself and C. T. Gregory.”

Who was to pay the other half of the commission? It could not have been any other person than Gregory; for he alone, besides appellant, was interested in the trade. It is inconceivable that appellant did not know that appellee was acting for both parties to the exchange, and he must have known that if $125 was “my part of the commission on the deal or trade, between myself and C. T. Gregory,” that Gregory was to pay the other part. No other reasonable inference can be drawn from the facts.

Appellant did not swear that he did not know that appellee was the agent for Gregory as well as for himself, and claimed in his testimony that he refused to pay the commission only because the property of Gregory was incumbered by liens in favor of Joe L. Hill.

The opinion as to the title by Joe L. Hill, which appellant agreed to accept instead of an abstract of title, was received by appellant before he and his wife executed the deed to Gregory, and that opinion disclosed the fact that Hill held a lien on the five-acre tract in the town of Papalote traded by Gregory to appellant. In addition appellant knew that the land was incumbered, because in making the trade he agreed to assume the incum-brance, and he must have known the nature of the incumbrance and by whom it was held. He knew Hill had formerly owned the land. He knew it when he signed the deed, because Hill had communicated the fact to him.

When he agreed to take the opinion of Joe L. Hill in place of an abstract of title, he had been told that Hill was the former owner, and must have known that the incum-brance on the land was a lien in favor of the former owner. He was definitely informed of that fact the day before he and his wife executed and acknowledged the deed to Gregory. He made no objection to the opinion as to the title at the time he received it, and at the time his wife signed and acknowledged the deed to Gregory. He made no objection to the opinion as to the title at the time he received it, and, as his wife signed and acknowledged the deed at least 24 hours after the opinion had been delivered to him, he had found no objections up to that time. There is nothing that indicates that the title to Gregory’s land was not a perfect one, with the exception of the incumbrance about which appellant was fully informed. He was not entitled to an abstract of title because there was no agreement to furnish it, and, on the other hand, he had made an agreement that no abstract would be required.

The testimony is ample to sustain the judgment.

■ The judgment is afiirmed.


author: RAINEY, C. J.

text:
    HUGHES et al. v. TITTERINGTON.
    (No. 7141.)
    (Court of Civil Appeals of Texas. Dallas.
    June 13, 1914.
    Rehearing Denied June 27, 1914.)
    1. Deeds (§ 124) — Construction.
    In construing deeds, the intention of the grantor as to whether the heirs of the grantee named do or do not take a remainder after the life estate of the grantee will prevail if such intention is manifest from the language of the deed, though there may be words.which, if used unrestrictedly, would bring the conveyance within the rule in Shelley’s Case.
    [Ed. Note. — Por other cases, see Deeds, Cent. Dig. §§ 345-355, 416-428, 434, 435, 439, 452; Dec. Dig. § 124.]
    2. Deeds (§ 128)- — Construction—Estates Granted.
    The first granting clause in a deed conveyed two tracts, gave land to the grantor’s daughter and the forced heirs of her body, while the second granted land to her “for life,” “to descend” to her heirs forever. The ha-bendum clause contained words giving the daughter absolute title to the land. Held that, as the testator’s real intention was not clear, the rule in Shelley’s Case must be held to operate on the second conveyance, and hence the daughter took a fee, for conveyances should be construed so as to pass the greatest estate to the first taker which the instrument is capable of carrying.
    [Ed. Note. — Por other cases, see Deeds, Cent. Dig.,_§§ 413-415, 419-421, 427; Dec. Dig. §
    3. Deeds (§ 124) — Construction—Surplus-age.
    Where the Legislature, prior to the execution of a deed, had abolished the statute providing for forced heirs, a recital in the deed of a grant to one and her forced heirs must be treated as a grant to one and her heirs; the word “forced” being disregarded as surplus-age.
    TEd. Note. — Por other cases, see Deeds, Cent. Dig. §§ 345-355, 416-428, 434, 435, 439, 452; Dec. Dig. § 124.]
    Appeal from District Court, Dallas County; J. C. Roberts, Judge.
    Action by J. B. Titterington against C. R. Hughes and others. Prom a judgment for plaintiff, defendants appeal.
    Affirmed.
    Campbell, Sonfield, Sewall & Myer, of Houston, and Edward Crane and Geo. C. Edwards, both of Dallas, for appellants. M. D. Gano and Geo. A. Titterington, both of Dallas, for appellee.

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

   RAINEY, C. J.

This is an action of trespass to try title brought by appellee against appellants to recover title and possession of 329 acres of land, a part of W. J. Walker headlight. Appellants answered by plea of not guilty and upon which issue was joined. A trial was had and resulted in a judgment in favor of appellee.

In December, 1858, William J. Walker, the patentee of the land, executed and delivered to his daughter, Martha A. Hughes, a deed to the said 320 acres, which deed is as follows;

“Know all men by these presents: That I, William »J. Walker, of the state and county aforesaid, for the consideration of one dollar to me in hand paid by my daughter, Martha A. Hughes, have this day, for and in consideration of the above-named sum of one dollar, and for the consideration of the love and affection I bear to my said daughter, Martha A. Hughes, give, grant, bargain, sell and set over to her, my said daughter, Martha A., and to the forced heirs of her body, one league of land, situated in the county of Tyler, in the state of Texas, known as the Hannah Alexander headright. Also one other tract of land, situated in Dallas county, Texas, and known as the west half of my headright as a colonist in Peter’s Colony, being 320 acres of said headright hereby' con-yeyed. I also give, grant and set over to my said daughter one yellow girl, by name Sofa, about ten years old, a slave for life. All of the above-described property I give to my said daughter, Martha A. Hughes, during her natural life, and at her death the said property is to descend to her heirs forever. Together with all and singular the rights, titles, hereditaments, and appurtenances to the same belonging. To have and to hold the same forever, hereby relinquishing all the title and interest that I heretofore possessed in said property to her, the said Martha A. Hughes, her heirs or assigns, forever.
“Witness my hand this 17th day of December, A. D. 1858. W. J. Walker.”

The rights of the parties depend upon the legal construction of said deed. The appellee, who holds under conveyance from Martha A. Hughes, claims that the rule in Shelley’s Case applies to said deed, while the appellants claim said deed only conveyed to Martha A. Hughes a life estate, with remainder in fee to her children.

In construing deeds, the rule is that the intention of the grantor will prevail, if such intention is manifest from the language of the deed, though there may he words used therein, if unrestricted, would bring it within the rule in Shelley’s Case. Simonton v. White, 93 Tex. 50, 53 S. W. 339, 77 Am. St. Rep. 824; Pearce v. Carrington, 124 S. W. 469. Just what estate the grantor intended to convey to Martha A. Hughes cannot be positively determined from the wording of the deed itself. The first granting clause, and there are two grants to her and the “forced heirs of her body,” the land. The second granting clause gives to her “during her natural life, and at her death the said property is to descend to her heirs forever.” In the habendum clause the grantor relinquishes “all the title and interest that I heretofore possessed in said property to her, the said Martha A. Plughes, her heirs or assigns forever.” By the terms of the second granting clause it would seem the grantor intended to convey to his daughter an estate for life, while in' the habendum clause the language places in Martha A. Hughes the absolute title to the property, with power to alienate it. Johnson v. Morton, 28 Tex. Civ. App. 296, 67 S. W. 790. So we think the difficulty of ascertaining the real intention of the grantor is evident from the wording of the deed.

It is held in Hancock v. Butler, 21 Tex. 804, that courts should so construe conveyances as to pass the greatest estate to the first taker which the instrument is capable of passing by fair construction. So construing the deed in this case, the rule in Shelley’s Case governs, which gives to Martha A. Hughes a fee-simple title to the exclusion of her children.

In Simonton v. White, it is held that the words “give and convey unto the said Avo Anna Simonton and her bodily heirs,” if not qualified, come under the rule in Shelley’s Case. The words were qualified in that case, and the court said that the words were conclusively shown to denote the four children named in the deed. There is nothing in the deed here to warrant us in construing the word “heirs” as meaning children of Martha A. Plughes; therefore it falls within the rule in Shelley’s Case.

When the deed was written, forced heirs were not known to our law. The statute that existed prior thereto which declared who were forced heirs was repealed in 1856, about two years before the execution of the deed. Volume 4, Gammel’s Laws, p. 423. So there was no such thing as forced heirs in this state at that time. As said by Justice Hemphill in Hamilton v. Flinn, 21 Tex. 713, in reference to the repealing act, “the intention was to cut forced heirship up by the roots.” There being no forced heirs, the use of the word “forced” immediately preceding the words “heirs of her body” added nothing to them in law but is mere surplus-age, and the term stands as though it read “heirs of the body,” and there being nothing authorizing a different meaning, when legally construed, we take it to be words of limitation and not of purchase, and therefore the rule in Shelley’s Case applies. Scott v. Brin, 48 Tex. Civ. App. 500, 107 S. W. 565.

The judgment Is affirmed.


author: HENDRICKS, J.

text:
    KELL MILLING CO. v. BANK OF MIAMI.
    (No. 655.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 6, 1914.)
    1. Injunction (§ 118) — Pleading — Sufficiency.
    The rule of pleading that the statements of a party are to be taken most strongly against himself is reinforced in injunction suits by the further requirement that the elements essential to entitle plaintiff to relief shall be sufficiently certain to negative every reasonable inference from the facts stated, that he might not, under other supposable facts, be entitled to relief.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 223-242; Dee. Dig. § 118.]
    2. Judgment (§ 588) — Conclusiveness — Matters Concluded — Payment of Judgment.
    An adverse judgment in a proceeding to enjoin an execution against plaintiff and another judgment debtor on the ground that the other judgment debtor had paid the judgment, or that it had been satisfied By the application of his deposit in the judgment creditor’s bank, was conclusive as against plaintiff in a subsequent proceeding to enjoin execution on the same ground.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1062, 1090; Dec. Dig. § 588.]
    3. Appeal and Error (§ 522) — Injunction —Statement of Facts — Necessity.
    Under Rev. Civ. St. 1911, art. 4645, providing that it shall not be necessary to brief injunction cases in the Court of Civil Appeals or the Supreme Court, and that the case may be heard therein on the bill and answer and such affidavits as have been admitted by the judge granting or refusing such injunction, affidavits properly a part of the petition and answer will come up with the transcript,' but, where evidence was introduced, it must in some appropriate way be included in the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2367-2371; Dec. Dig. § 522.]
    4. ARRE AT. AND ERROR (§ 907) — PRESUMPTION —Support op Judgment.
    Under such statute, and in the absence of evidence in the record to the contrary, everything must be presumed in favor of the judgment of the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2899, 2911-2916, 3673, 3674, 3676, 3678; Dec. Dig. § 907.]
    Appeal from Roberts County Court; J. E. Kinney, Judge.
    Action for injunction by the Kell Milling Company against the Bank of Miami. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    See, also, 155 S. W. 325.
    J. S. Cook, of Vernon, and Coffee & Dial, of Miami, for appellant. J. A. Holmes, of Miami, for appellee.

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

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

   HENDRICKS, J.

The Kell Milling Company, a corporation, and appellant herein, petitioned the county court of Roberts county, Tex., for a writ of injunction, for the purpose of restraining an execution against it upon a judgment rendered in a former proceeding in a cause entitled Bank of Miami v. Kell Milling Co. et al., in which said bank recovered a judgment against said company and against one S. M. Bird, jointly and severally, for the sum of $857.54, on the 13th day of July, A. D. 1912.

The appellant, Kell Milling Company, exhibits by its petition that about the 1st day of December, A. D. 1913, for value paid, it1 became the owner by assignment and in-dorsement of a certain promissory note for $2,051.44; the same having been executed by

5. M. Bird and J. M. Rutherford to one Mc-Ilhaney, and transferred to said milling company after maturity; and on account of its ownership of the note executed by Bird, and for grounds for restraining the execution of the judgment in favor of the bank, in which Bird and the milling company were judgment debtors, it is alleged by appellant: First, that S. M. Bird was the real owner of the cause of action upon which said judgment was rendered, and the same was in truth and in fact recovered for his own use and benefit; second, that S. M. Bird, since the rendition of said judgment, and prior to the 1st day of December, 1913, has discharged said judgment rendered in said cause; and, third, that said S. M. Bird had on deposit with said bank, or at the disposal of the same, money and securities amply sufficient to dischargev and satisfy said judgment and protect the said bank, and that said bank had the legal right to so apply the same, and in fact did apply said .funds in full payment and satisfaction thereof, or that said bank still holds or controls the same for such purpose. The appellant milling company claiming the right to offset the Bird note against the judgment.

The trial court set the case for a hearing upon the question of the issuance of the temporary writ, and after answer had been filed by appellee, the Bank of Miami, the court refused the temporary writ, upon consideration of the petition and answer, and upon the introduction of evidence, stated in the order denying the writ.

Appellant, as stated, pleaded the judgment rendered in favor of the bank against it and S. M. Bird; though alleging that the judgment debtor, Bird, was the real owner of the cause of action, upon which the judgment was rendered, and that the same was recovered for Bird’s use and benefit, there is no explanation to the trial court, or to this court, for what reason it is not concluded by the former judgment rendered against it upon the question of the bank’s ownership of the very cause of action upon which the judgment was formerly rendered against it and now alleged to be in another; .appellant does say it is reliably informed that the cause of action in that suit “was recovered for the use and benefit of Bird,” but this allegation is based upon the statement “that S. M. Bird was \ the real owner of the cause of action upon which said judgment was rendered.” Conceding, argumentatively, but not deciding, that one party may recover upon the legal title to a cause of action, the beneficial title being in another, and that if the matter of the real ownership of the cause of action was not litigated, but only presumed, it may thereafter be opened by- the injection of an issue as to the real ownership of the judgment, even between the parties to the suit; however, if such an issue had been litigated, the party thereafter asserting the same in another'proceeding would clearly be barred.

The Supreme Court said, in the case of Gillis v. Rosenheimer, 64 Tex. 246, in enunciating the general rule upon this subject:

“The rule of pleading that the statements of a party are to be taken most strongly against himself is reinforced in injunction suits by the further requirement that the material and essential elements which entitle him to relief shall be sufficiently certain to negative every reasonable inference arising upon the facts so stated, from which it might be deduced that he might not, under other supposable facts connected with the subject, thus be entitled to relief.”

Also see case of City of Paris v. Sturgeon, 50 Tex. Civ. App. 522, 110 S. W. 459, where the same rule was applied.

The former cause, in which the judgment was rendered, was appealed by the Kell Milling Company to this court and affirmed, 155 S. W. 326. In resorting to the record and the opinion of the court in that cause, we find the very question of the assignment of a cause of action to the bank by S. M. Bird to have been litigated, and the ownership of the same in the bank for a valuable consideration to have been passed upon and decided against the milling company; said record not resorted to by us for the purpose of asserting the same as a fact to conclude the appellant as to its averment upon the merits, but as an illustration why the appellant, in this character of suit, should conform to the general rule announced by the Supreme Court.

As to the second ground alleged by appellant, to the effect that S. M. Bird had paid off and discharged the judgment to the bank prior to the 1st day of December, 1918, the record discloses (if we could possibly consider the documents for any purpose) that, subsequent to the rendition of the principal judgment, upon the 15th of October, 1913, this same question between the same parties here was litigated upon the merits; the appellant here attempting in that proceeding to enjoin an execution upon the same ground, issued upon the same judgment. Appellant in this cause does not attempt to state when Bird paid the judgment, or render any excuse in the petition why, if Bird paid the judgment subsequent to the 15th of October, 1913, it failed to allege such a subsequent date; there is no proof in the record, except the general allegation of appellant above noted, that the judgment has been paid by Bird at any time, and the milling company is clearly excluded from raising the issue as to the satisfaction of said judgment by Bird to the bank, prior to the 15th day of October, 1913; and appellant is in the same condition as to that part of the third ground in its petition wherein it states that the judgment has been satisfied' by the bank applying deposits made by Bird in said bank to the judgment. Appellant knew, if we are able to regard the element of res judicata, in accordance with the documents in the transcript, that this same matter had been litigated previously between it and the bank, and, if the court had such proceedings before him, he was probably impressed by the failure of the milling company in not pleading the former proceeding and avoiding the same by specific averments showing why res judicata did not apply.

It is true that the numerous documents incorporated in this transcript are only shown to have been filed, not shown to have been introduced in evidence or presented” to the court or considered by the judge; there is no statement of facts or bills of exceptions in the record, though appellant and appellee, in their briefs, treat the documents as having been introduced in evidence upon the hearing and as having been considered by the court. As stated, the court, upon the hearing, refused the temporary writ, as indicated in the order, upon the petition, the answer, the exceptions, and upon the evidence introduced.

Act 31st Leg. (1st Ex. Sess.) c. 34, § 3 (Rev. St. 1911, art. 4645), excludes the necessity of a brief in the cause by either party, “and the case may be heard in the said courts (Civil Appeals or Supreme Court) on the bill and answer, and such affidavits * * * as may have been admitted by the judge granting, refusing or dissolving such injunction.” If affidavits are properly a part of the petition and answer, of course they could come up in the transcript and be considered by us upon the merits as a part of the injunction suit. The trial court, in this instance, set the case for a hearing and refused to grant the writ, deciding the matter upon the petition and answer, the exception, as well as upon the introduction of evidence. Upon hearing, where independent evidence is introduced, there should be some appropriate method pursued in the appeal of the case incorporating into the record and exhibited to this court, that it was the evidence considered by the trial court, for the purpose of passing upon the merits of the cause upon the same data which the lower court passed upon, either in granting or refusing a temporary writ.

Justice Jenkins said, where the appeal was based upon this statute, involving a temporary writ, in the cause of Sutherland v. Cabiness, 146 S. W. 332:

“The record shows that the court heard evidence upon the part both of plaintiff and defendant. What that evidence was we do not know, as no statement of facts has been filed; but, in the absence of evidence to the contrary, everything must be presumed in favor of the 'judgment of the court. The testimony might very well have shown that, though the allegations of the plaintiff seem 'to make a prima facie case, yet taken in connection with the answer, and as explained by the' evidence, the alleged threats made by appellee did not in fact present a good cause for injunction.”

Justice Jenkins further remarking, in the absence of a statement of facts, that they were unable to say that the trial court erred in its judgment.

The decree of the trial court, refusing the temporary writ, will have to be affirmed; and it is so ordered.


author: SPEER, J.

text:
    SPARKS v. NATIONAL BANK OF COMMERCE et al.
    (No. 7898.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 11, 1914.
    Rehearing Denied May 23, 1914.)
    Abatement and Revival (§ 4)—Another Action Pending.
    A prior suit pending between the same parties, involving the same cause of action, when properly interposed by plea, will abate a subsequent suit.
    [Ed. Note.—For other cases, see Abatement and Revival, Cent. Dig. §§ 25-38; Dec. Dig. § 4.]
    Appeal from Johnson County Court; J. B. 1-Iaynss, Judge.
    Action by the National Bank of Commerce against W. T. 'Sparks and others. Judgment for plaintiff, and defendant Sparks appeals.
    Reversed and dismissed.
    Love & Hill, of Uvalde, for appellant. Spence, Knight, Baker & Harris and Geo. S. Wright, all of Dallas, ‘and Walker Baker, of Cleburne, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-íio. Series & Rep’r Indexes

   SPEER, J.

This case was filed May 19, 1913, by the National Bank of Commerce against H. B. Cox, L. P. Hall, and W. T. Sparks in the county court of Johnson county to recover on a promissory note for the sum of $511.43, dated July 1, 1911, due January 1, 1913. The note was executed by L. F. Hall and W. T. Sparks, was payable to the order of H. B. Cox, and was one of a series of four notes of the same date, for the same amount, signed by the same party, and due, respectively, in 6, 12, 18, and 24 months after date. The note was payable at Crystal City, in Zavalla county, in which county W. T. Sparks resided. Citation was issued May 3, 1913, served June 6, and was returned and filed in the county court of Johnson county July 8, 1913. On April 25, 1913, W. T. Sparks filed suit in the district court of Za-valla county against B. P. Hall, alleging that he was a surety for said Hall on all of the said notes, that as such surety he had paid the first note of the series, and that he had theretofore given notice to the National Bank of Commerce of his suretyship, requesting it to sue, as required by statute, but that it had refused to do so, and that Hall and Cox (the payee) had refused to pay said notes, and in such suit asked for equitable relief against Hall, and that he be relieved of all liability as surety as against the National Bank of Commerce, which was made a party to that suit. Citation was issued in the Zavalla county suit and was served on the National Bank of Commerce April 28, 1913. In answer to the bank’s suit in Johnson county, Sparks pleaded in abatement the pendency of the Zavalla county suit and his privilege under the statute to be sued in that county. These pleas were heard by the court and overruled. Sparks then answered, and judgment was rendered against all of the defendants, and Sparks has appealed.

We will notice only one question, which, under the view we take of the case, is decisive of the appeal, and that is the court’s action in overruling the plea in abatement based upon the pendency of the Zavalla county suit. The facts appear to be undisputed, and the bare question of law is presented whether or not a prior suit pending between the same parties, involving the same cause of action, when properly interposed by plea, will abate a subsequent suit. There appears to be some confusion in the authorities upon this question. The cases of Garza v. Piano Co., 126 S. W. 906, and Liberty Milling Co. v. Continental Gin Co., 132 S. W. 856, appear to support the contention of appellee that the doctrine of the common law that a suit pending between parties precludes them from maintaining between themselves another suit on the same cause of action is not the law in Texas. But those authorities are disapproved in the later case of Goggan & Bros. v. Morrison, 163 S. W. 119, and to our minds a return is made to the better rule that such prior suit will abate a subsequent suit. Not only does this rule avoid the evil of a multiplicity of suits between the parties, which the law abhors, but it likewise avoids the possibility of conflicting judgments, thus producing interminable confusion and controversy. Following the latter authority upon the subject, and what we believe to be the better rule, we hold the trial court erred in overruling the plea in abatement; and, since the facts are undisputed, we reverse the judgment, and here render judgment for appellant, dismissing appellee’s cause of action.

Reversed and dismissed.


author: DUNKLIN, J. J. R. Hill,

text:
    BURCK v. WYNN.
    (No. 7975.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 16, 1914.
    Rehearing Denied June 20, 1914.)
    1. Brokers (§ 66) — Compensation—Taking Commission from Both Sides.
    An agreement between H. and B., real estate brokers representing different parties, by which B. was to pay H. a commission on an exchange of lands between their respective principals, negotiated by them, was not unenforceable as contrary to public policy, where H.’s principal was advised of the agreement and made no objection thereto, since H. was under no contract with B.’s principals to represent them and was in no sense their agent and owed them no duty.
    [ Ed. Note. — For other ' cases, see Brokers, Cent. Dig. § 51; Dec. Dig. § 66. j
    2. Principal and Agent (§ 70) — Acting for Parties Adversely Interested.
    An agent will not be allowed to represent two conflicting interests without the knowledge and consent of both parties.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 146; Dec. Dig. § 70.]
    Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.
    Action by I. N. Wynn against R. H. Burck. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Y. L. Shurtleff, of Hillsboro, for appellant. W. H. Penix, of Mineral Wells, for appellee.

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

   DUNKLIN, J. J. R. Hill,

a real estate broker residing in Mineral Wells, was employed by Sidney Webb to negotiate the sale of certain property belonging to Webb. R. H. Burck, likewise a real estate agent residing at Whitney, was employed by the Smith heirs to sell certain property belonging to them. Negotiations between these two agents resulted in an exchange of properties of their respective clients, Webb paying a difference of $125,000. After the consummation of the trade, Hill claimed that Burck owed him $1,562.50 out of the commission received by Burck from his clients. This demand was based upon an allegation of an agreement between the two agents prior to the consummation of the trade, by the terms of which agreement Burck obligated himself to pay to Hill a commission of 1% Per cent, on the $125,000 paid by Webb. J. R. Hill assigned the claim so made to I. N. Wynn, who instituted this suit against Burck, as the principal debtor, and Hill, as guarantor, to recover the amount of said claim, and, from a judgment in favor of the plaintiff against the two defendants, Burck has appealed.

The single question presented by different assignments of error is that, if the contract alleged as a basis for the demand was in fact made, then the same was contrary to public policy and is not enforceable, in that according to its terms Hill bound himself to represent both parties to the trade without disclosing to them that fact.

No evidence appears in the record tending to show that Burck’s clients were ever informed of the agreement between the two agents that Hill was to receive a part of Burck’s commissions; but Hill testified, and his evidence was not controverted, that he informed his client, Webb, before the consummation of the trade and pending negotiations therefor, that Burck had agreed to pay him 114 per cent, commission on the $125,000 which Webb was to pay as a difference in the exchange, and that Webb closed the trade without making any objections to a participation by Hill in Burck’s commissions. It is a familiar rule that an agent will not be allowed to represent two conflicting interests without the knowledge and consent of both parties. Hill was employed by Webb, and of course owed to him the duty to represent him in good faith, and could not without Webb’s consent receive any compensation from the other parties to the trade. But he was under no contract with Burck’s clients to represent them and was in no sense their agent. He had no authority to bind them by any agreement or contract whatsoever, he owed them no duty, and they owed him no commissions for negotiating the trade. Cook v. Piatt, 126 Mo. App. 553, 104 S. W. 1131; Bass v. Tolbert, 51 Tex. Oiv. App. 437, 112 S. W. 1077; Hunter v. Lyons, 144 S. W. 353. His employment to assist Burck in the negotiations for the exchange was by Burck alone, who was his principal in that employment. As his two principals, Burck and Webb, both knew of the agreement between Burck and Hill whereby Burck was to pay to Hill a commission of 1% per cent, on the $125,000, the rule invoked by appellant was not violated.

The judgment is affirmed.

SPEER, J., not sitting.


text:
    RICHARDS v. RICHARDSON et al.
    (No. 5306.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 17, 1914.)
    Schools and School Distexcts (§ 131)— Teachers — Contracts—Qualifications of Teachers
    Under Rev. St. 1911, art. 2780, providing that any teacher, before contracting to teach,. shall exhibit a teacher’s certificate valid in a city, town, or district, and that any teacher who shall teach in any public school without having a valid certificate shall not receive any compensation for such service, section 122, c. 96, Acts 32d Leg., providing that the county superintendent shall forward the examination papers of applicants for first-grade certificates to the state superintendent to be delivered to the state board of examiners, and that, if such board’s report is favorable, the state superintendent shall forward a certificate to the applicant, and Pen. Code 1911, art. 1512, making it a misdemeanor for any board of trustees to approve any contract until the teacher has presented a valid certificate, a first-grade certificate granted by the county superintendent was void, and, where a teacher had no other certificate when he entered into a contract, the contract was void and unenforceable by him, though he subsequently obtained a first-grade certificate from the state superintendent.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 287; Dec. Dig. § 131.]
    Appeal from District Court, Dimmit Court' ty; J. E. Mullally, Judge.
    Action by O. E. Richards against Asher Richardson and others, individually and as trustees of the Asherton High School. Prom a judgment dismissing the action, plaintiff appeals.
    Affirmed.
    N. A. Rector, of Austin, for appellant. Martin & Martin, of Uvalde, for appellees.

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

   FLY, C. J.

This is a suit for $880, instituted by appellant against Asher Richardson, J. D. Wadkins, and J. P. Wood, individually and as trustees of the Asherton High School, said sum alleged to be due on a contract for teaching said school for a period of nine months from September 9, 1912, which contract had been breached after permitting appellant to teach for one month and paying him for the same. It was alleged in the petition that appellant had, on or about September 7, 1912, obtained from the county judge of Dim-mit county a first-grade teacher’s certificate; that on September 9,1912, a contract was entered into by and between appellant and ap-pellees, as trustees for the Asherton district, for appellant to teach for nine months at a salary of $110 a month; that appellant taught the school for one month and received his salary of $110; that after the first month the county judge informed the trustees that he had no authority to issue the first-grade certificate to appellant, and the trustees notified appellant that he was dismissed as teacher in the school; that appellant offered to teach for nothing if it was finally determined by the state school authorities that he was not entitled to teach, or that he would employ a substitute and pay him his salary if he won in the contest, which offers were rejected by the trustees, and appellant appealed to the county judge, who sustained and reinstated him; that the district trustees appealed to the county board of trustees, who sustained the county judge; that an appeal was then taken to the state superintendent of public instruction, who sustained the district trustees; that appellant then appealed to the state board of education, which sustained the state superintendent Appellant further alleged that:

“Prior to taking the examination before mentioned, he had done work in the state University, which entitled him to a first-grade certificate, and such first-grade certificate had been held by him, and had expired on the 31st day of August, 1912, but under the law he was entitled to a renewal of said first-grade certificate from said date to run August 31, 1916. When the board of trustees stated that they would require the teacher to hold a first-grade certificate, plaintiff came to Austin and secured from the state superintendent of public instruction a first-grade certificate to date from August 31, 1912, and to run to August 31, 1916, and on or about the 1st day of November, 1912, presented said first-grade certificate to said board of trustees, and requested them to carry out their contract with him to teach said school' for the full period of nine months as aforesaid. This they refused to do, and arbitrarily stated that they would not under any circumstances permit him to carry on said school or teach in same, under his said first-grade certificate.”

The court sustained a general demurrer and five special exceptions to the petition, and the cause was dismissed.

It is provided in article 2780, Rev. Stats. 1911, that:

“Any teacher desiring to teach in any city, town or district in this state shall, before contracting with any board of trustees, or with any city school board, exhibit a teacher’s certificate, valid in the city, town or school district; and any teacher who shall teach in any public school in this state without having a valid certificate shall not receive from the free school funds any compensation for such service.”

That statute enjoins á duty upon the teacher and affixes a penalty for failure to perform the duty. That penalty is that, unless he has a valid certificate, he shall not be paid out of free school funds. There can he no question that no certificate is valid unless issued by the authority and in the manner, stipulated in the statute.

In section 122, c. 96, of the act passed by the Thirty-Second Legislature as to teacher’s certificates, it is provided that the county superintendent shall forward the examination papers of applicants for first-grade certificates to the state superintendent, to he delivered to the state board of examiners, which shall examine the papers and report .to the state superintendent, and, if the report is favorable, he shall forward a certificate to the applicant. Appellant, at the time that he entered into the contract with the trustees, had no such certificate and in fact had no valid certificate for any grade. may, as he claims, have been entitled to such certificate, but he had not obtained it The certificate granted by the county superintendent was null and void, and the contract founded upon it was null and void.

Not only does the law provide that no teacher who has not a valid certificate shall receive any of the free school fund, but it is made a misdemeanor for any board of trustees to approve any contract until the person has presented a valid certificate. Article 1512 (Pen. Code) Rev. Criminal Stats. 1911. A contract made in violation of law would be absolutely void. W. U. Telegraph Co. v. Partlow, 30 Tex. Civ. App. 599, 71 S. W. 586; Hosmer v. Sheldon School District, 4 N. D. 197, 59 N. W. 1035, 25 L. R. A. 383, 50 Am. St. Rep. 639; Ryan v. Dakota Co. Dist., 27 Minn. 433, 8 N. W. 146; Kimball v. School Dist., 23 Wash. 520, 63 Pac. 213; Schafer v. Johns, 23 N. D. 593, 137 N. W. 481, 42 L. R. A. (N. S.) 412; Planary v. Barrett, 146 Ky. 712, 143 S. W. 38, Ann. Cas. 1913C, 370.

In the cited case of Hosmer v. School District, the court said, in reviewing a Michigan case:

“The contract was made on the 22d day of the month; the school to commence on the 24th of the same month. The applicant had no certificate when the contract was made, but received his certificate on the 24th, and actually taught the entire term. It was held that he could not recover. There is no legal hardship in these eases. An unqualified person cannot enter into a contract to teach in our public schools without being a party to the violation of a mandatory statute, the terms of which he is conclusively presumed to know.”

Appellant has not performed any services for the money he seeks to collect, but, on the other hand, he has received $110 of. the free school money to which he was not entitled. Railway v. Randolph, 24 Tex. 317.

The original contract was void, because repugnant to the statute, and it could not have been ratified and certainly cannot be vitalized by obtaining a certificate and endeavoring to have it read as though of date, anterior to the execution of the contract. It would not matter how competent and well fitted he was to teach, nor that he may have been entitled to a first-class certificate; he did not have it when he entered into the contract; and that instrument, being null and void in its inception, could not be vitalized and purified by. any subsequent events, but it “is so nugatory and ineffectual that nothing can cure it.”

The statute provides for the employment of teachers who have valid certificates, and it is made a crime for a board of trustees to employ one who has not a valid certificate, and the statute does not say that the trustees can employ a person to teach who is entitled to a. certificate, nor one who may obtain a certificate at some future time. The teacher must exhibit to the trustees a valid certificate, and, as said by Justice Neill in W. U. Telegraph Co. v. Partlow, herein cited: “A contract without such a certificate * * * would unquestionably be void.” See, also, Goose River Bank v. School Township, 1 N. D. 26, 44 N. W. 1002, 26 Am. St. Rep. 605; Bryan v. School Dist., 111 Mich. 67, 69 N. W. 74; McCloskey v. School Dist., 134 Mich. 235, 96 N. W. 18.

' The judgment is affirmed.

CARL, J., did not sit in this case.


author: CARL, J.

text:
    BLACKWELL v. ST. LOUIS, B. & M. RY. CO.
    (No. 5315.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 17, 1914.)
    1. Carriers (§ 228) — Shipment ox Live Stock — Actions for Damages — Evidence.
    In an action against a carrier for damages to a shipment of live stock, evidence held insufficient to show any unreasonable delay _ in transportation, or that any of the cattle died en route as alleged.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    2. Evidence (§ 545) — Expert Testimony — Qualification of Experts.
    Witnesses testifying as experts must show their qualification to so testify or their testimony may be disregarded.
    [Ed. Note. — For other cases, see Evidence, Cerft. Dig. §§ 2360-2362; Dec. Dig. § 545.]
    3. Appeal and Error (§ 1001*) — Review— ,. Questions of Fact. »
    In an action for damages to a shipment of live stock, tried by the court sitting as a jury, where unreasonable delay in transportation is not so clearly shown that reasonable minds would not differ thereon, the trial court’s finding will not be disturbed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928 — 3934; Dec. Dig. § 1001.]
    Appeal from Cameron County Court; E. H. Goodrich, Judge.
    Action by D. A. Blackwell against the St. Louis, Brownsville & Mexico Railway Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Kinder & Williams and Ira Webster, all of Brownsville, for appellant. Graham, Jones, West & Dancy and J. C. George, all of Brownsville, for appellee.

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

   CARL, J.

Appellant, D. A. Blackwell, sued the St. Louis, Brownsville & Mexico Railway Company, appellee, and alleged that on or about February 20, 1913, he delivered 322 head of cattle, and appellee accepted same at Brownsville, Tex., to be safely carried to Houston, Tex., with ordinary care, and with reasonable diligence and speed; there to be by the railway delivered to the Houston Packing Company, “for a reasonable reward, paid or to be paid on the delivery thereof as aforesaid.” It is alleged that the railway did not deliver said cattle to the Houston Packing Company with reasonable diligence and speed, as it was in duty bound to do, but neglected and refused to do so; that the cattle were delayed 58 hours longer than the ordinary time required to make such shipment and delivered; that by reason of such delay the cattle shrunk in weight 50 pounds per head more than the shrinkage would have been if the cattle had been transported with reasonable promptness and care, and that by reason thereof appellant was damaged in the sum of $2 per head, same being four cents per pound for the alleged excessive shrinkage.

The petition further charges that two of the cattle, worth $21.60 each, died en route as a result of careless handling and delay in shipment. The total damage claimed is $682.60. It is also alleged that the cattle were in good condition when shipped and in bad condition when received, as above indicated, and that the delay in shipment and negligent and careless handling caused the damage and loss.

The railway company filed a number of special exceptions, as well as a general demurrer, and made specific denial of the allegations, and charges that, when the cattle were received, they were of an inferior grade, were weak and emaciated by reason of the fact that they had been driven from Mexico to Brownsville, and were in need of food, and were not worth $21.60 per head, and pleaded a written contract of shipment, which contains the following clauses:

“ * * * And the party of the first part covenants and agrees that the freight charge from point of shipment to final destination shall only be the sum of Fff, the same being a through rate lower than the local rates which might be lawfully charged by the party of the first part, and for and in consideration of which through rate and the guaranty thereof by the party of the first part hereby covenants and agrees as follows:
“First. That he does hereby release said party from any and all liability for delay in shipping said stock after delivery thereof to its agent, and from any delay in receiving same after being tendered to its agent.
“Second. That he does accept for transportation of said stock the cars tendered him by party of the first part, and agrees that they are in all things satisfactory to him, and he hereby assumes all risk of injury which the animals, or either of them, may receive in consequence of any of them, being wild, unruly, or weak, or of their maiming each other or themselves, or in consequence of heat or suffocation, or other ill effects of being crowded in the cars, or on account of being injured by the burning of hay, straw or other material used by the person or persons in charge of said stock for feeding or bedding said stock, or otherwise, and all risks of escape or robbery of said stock, or of loss or damage from any other cause or thing not resulting from the negligence of the agents of the first party; said negligence not to be assumed, but tp be proved by the party of the second part.
“Third. That the party of the second part will load, unload, and reload said stock at his own risk, and feed, water, and attend to the same at his own expense and risk while it is in the stockyards of the party of the first part awaiting shipment and while on cars, or at feeding or transfer points, or where it may be unloaded for any purpose.
“Fourth. The party of the second part will see that said stock are securely placed in cars furnished, and that the cars are safely and properly fastened, so as to prevent the escape of said stock therefrom.
“Fifth. That, in case the party of 'the first part shall furnish laborers to assist in loading and unloading said stock at any point, such laborers shall be subject to the_orders of the person representing the shipper in charge of said stock, and shall be deemed employes of the party of the second part while so assisting.
“Sixth. That, in case the party of the first part should for any reason undertake to water and feed said stock, it shall not be liable for insufficient supplies, nor for the imperfect discharge of said undertaking; it being expressly understood that the same is not a duty imposed upon it as a carrier of said stock.
“Seventh. And the -party of the second part further agrees that, as a condition precedent to his right to recover any damage for any loss or injury to said stock, he or his agent, the person in charge of said stock, shall give notice in writing to his claim therefor, and the full amount of such loss or damage, to the station agent of the party of the first part at the station hereinbefore named as the end of the line of the party of the first part before said stock is removed from the station, and before said stock is mingled with other stock or delivered to any connecting line or railroad.”

This contract was executed in duplicate and signed by both the railway and appellant.

In reply,' by way of supplemental petition, plaintiff below alleged that the contract showed upon its face that the matter to which it relates was an intrastate shipment, and that the regular tariff rate of freight was charged, and that the provisions of the contract relate to an interstate shipment. Therefore it is contended that the first, third, and fourth clauses are provisions undertaking to limit the railway’s common-law liability, are without consideration and are contrary to law and public policy, and are null and void.

The trial was before the court, and judgment was in favor of the railway company.

As to delay in shipment, the evidence shows that the cattle left Brownsville at 10 o’clock at night, February 20, 1913, and arrived in Houston at 5:05 p. m. February 23, 1913. There is no testimony showing that the stops were unreasonable, and the evidence fails to show what time would be necessary to properly water and feed such a shipment of cattle. Charley Butennari went with the shipment. He says they stayed an hour or two at Kingsville, proceeded to Bay City, and stayed from 3 or 4 o’clock in the morning until 3 or 4 o’clock the following morning. They were reloaded about 3 o’clock the next morning, and the evidence fails to show that the stop was unreasonable. The entire journey required about 67 hours, 24 of which was spent in feeding and watering. The trial court heard the evidence on the issue of delay and found against appellant. Even the evidence given by appellant would leave it doubtful as to whether there was an unreasonable delay and what time would ordinarily be required to transport and deliver the cattle from Brownsville to Houston. No one says that the stops made were not necessary. They were not .fat cattle; rather thin Mexican cattle. He says that in his judgment a strong, healthy steer, if properly handled, would shrink about 50 pounds in weight from Brownsville to Houston. These cattle were “cutters”; that is to say, next in grade to “eanners,” which is the lowest grade. Appellant says he could not say what the shrinkage would be if kept longer on the road than 50 to 58 hours. “We all know they would shrink more, but we can hardly say what it will be.” He gives an estimate of the weight of'the cattle at point of shipment, but says it is simply a guess. Witnesses who propose to testify as experts should show their qualification to so testify, otherwise the court may disregard same. We know of no rule of law that gives guesswork any standing as evidence. St. L., I. M. & S. Ry. Co. v. Boshear, 108 S. W. 1034; T. & N. O. Ry. Co. v. Farrington, 40 Tex. Civ. App. 205, 88 S. W. 889; G., C. & S. F. Ry. Co. v. Kimble, 49 Tex. Civ. App. 622, 109 S. W. 234. None of the witnesses attempted ■ to say that they knew what would be the time reasonably necessary to make the shipment Appellant says he has since made shipments, but he does not show similar time, conditions, etc. The case was tried by the court sitting as a jury, and, where the unreasonable delay charged is not so clearly shown that reasonable minds would not differ thereon, the court’s finding will not be disturbed. St. L., etc., Ry. Co. v. Bainey, 100 Tex. 48; 94 S. W. 321. The first and second assignments are overruled.

As to the two head that it is claimed died in transit, the evidence is insufficient. He does not sue for failure to deliver two cattle which were delivered to the railway. He says in his petition they died en route. But there were no dead cattle in the shipment-which arrived in Houston, for there were only 320 that reached the destination. Charley Butennari went with the shipment in charge, caring for the cattle, and he says nothing about any cattle dying en route. If appellant expects to recover for two head that died as a result of careless handling and delay, he should be able to show that the cattle did in fact die. It will be borne in mind he does not sue for failure to deliver the same number received, but the allegation is that they died en route. What became of the two head is not for us to say; but it might be suggested that there was a miscount at one end or the other, or they may have escaped from the feed pens. This, of course, is speculation, but no more unlikely to have happened than that the two head of cattle died en route, and neither the man in charge, sent by appellant, nor any one else knew anything about it. No one attempts to say that there were any dead ones in the shipment, not even Butennari, the agent of appellant who accompanied the shipment; and this part of the cause of ac-tíon Is for two head that died by reason of rough handling. Where iS“the evidence that they died? We look to the record in vain to find it.

The judgment is in all things affirmed.


author: CONNER, O. J.

text:
    ANDERSON et al. v. JACKSON.
    (No. 7901.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 4, 1914.
    Rehearing Denied May 2, 1914.)
    1. Appeal and Error (§ 742) — Record-Presentation of Matters fob Review.
    , No error was shown in pverruling a plea of privilege, where the statement did not refer to the part of the record containing the plea or to the judgment thereon, if there was a judgment against the plea, as required by rule 31 (142 S. W. xiii).
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    2. Venue (& 21) — Residence of Defendants — Codefendants. v
    In a suit by a broker’s assignee for commissions on an exchange of lands filed prior to the passage of the act of April 16, 1913 (Acts 33d Leg. c. 177), amending Rev. St. 1911, art. 1830, cl. 4, which, prior to' that amendment, provided that, when there were two or more defendants residing in different counties, the suit might be brought in any county where any one of the defendants resided, where the broker had guaranteed the account to the assignee, and was made a party, the suit was properly brought in the county of the broker’s residence, and the other defendant’s plea of privilege was properly overruled.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 34; Dec. Dig. § 21.]
    3. Brokers (§ 52*) — Commissions—Sufficiency of Services — Sale ob Option.
    A provision in a contract for the exchange of lands that for the performance thereof the parties thereby bound themselves to each other in the sum of $2,000 as fixed and liquidated damages by the party failing to complete the stipulations therein set forth, which sum should constitute a specific lien upon the property of the' party so failing, did not make the agreement a mere option so as to defeat a broker’s right to commissions for bringing about the exchange, since the contract contemplated its performance and fixed the sum named to secure performance, and did not contemplate either performance or payment of the sum fixed.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 73; Dec. Dig. § 52.]
    4. Trial (§ 191)— Instructions — Assuming Facts.
    An instruction assuming a fact which was not conclusively shown by the evidence was on the weight of the evidence, and properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§’ 420-431, 435; Dec. Dig. § 191.*]
    5. Trial (§ 252) — Instruction—Applioa- ■ tion to Evidence.
    In an action by a broker’s assignee for commissions on an exchange of lands, an instruction to find for defendant on the ground that the evidence showed that a third party was a partner with the broker was properly refused, where the partnership was not a party to the suit, and the broker’s authority to transfer the account to plaintiff was not questioned.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §| 505, 596-612; Dec. Dig. § 252.]
    Appeal from Taylor County Court; E. M. Overshiner, Judge.
    Action by T. G. Jackson against T. M. Anderson and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Scarborough & Hickman, of Abilene, for appellants. Holt & Jackson and Cunningham & Sewell, all of Abilene, for appellee.

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

   CONNER, O. J.

Appellee sued as the as-signee of an account by G. A. McElroy against appellant Anderson for commissions alleged to be due by securing an exchange of certain lands belonging to Anderson. The trial resulted in a judgment for appellee against Anderson as the principal debtor and against McElroy as guarantor for the principal sum of $620.75 with judgment for like sum in McElroy’s favor over against Anderson.

It is first urged that the court erred in overruling appellant’s plea of privilege to be sued in Knox county, but no error is shown. The statement fails to comply with rule 31 (142 S. W. xiii) by referring to that part of the record containing such plea, if there was any, or to the court’s judgment thereon, if there was a judgment against the plea. Moreover, if there was a sufficient plea, the suit was filed prior to the act approved April 16,1913 (Acts 33d Leg. e. 177), amending the fourth clause of article 1830, prescribing the venue of suits, and the evidence seems undisputed that McElroy, who lived in the county of the forum, assigned and guaranteed the account sued on, thus bringing the case fully within the statute as it existed prior to the amendment. Cleveland v. Campbell, 38 S. W. 219; Vaughn v. Bank, 126 S. W. 690.

Appellant’s next two assignments are predicated on the proposition that the contract of exchange between him and the other contracting party was but an option, and hence that McElroy did not earn the specified commissions. The contract for the exchange of properties was in writing, and contained the following clause, which is relied upon as giving it the character of an option, viz.:

“And for the true and faithful performance of all and every one of the covenants and agreements above mentioned the parties to these presents hereby bind themselves each to the other in the sum of two thousand ($2,000.00) dollars, as fixed, settled and liquidated damages by the party failing to complete on his part the stipulations herein set forth, and which said sum shall constitute a specific lien upon the property and premises herein above mentioned as belonging to the party so failing to complete his part of this agreement. And the stipulations aforesaid shall apply to and bind the heirs, executors, and administrators and assigns of the respective parties hereto.”

It seems clear to us, that the contract for the exchange is enforceable as such. The sum named in the paragraph quoted was evidently intended to secure performance, and not to leave It optional with the parties to complete the exchange or pay the specified penalty as they, or either, might choose. The test is, does the contract contemplate the performance of a specified act, fixing a sum named to secure its performance, or does it contemplate either performance of the act or the payment of the sum named, as the party sought to be charged may choose? If the latter, the contract is a mere option. If the former, it may be specifically enforced. See Moss & Raley v. Wren, 102 Tex. 567, 113 S. W. 739, 120 S. W. 847; Redwine v. Hudman, 104 Tex. 21, 133 S. W. 426. Construing the contract as one for conveyance of lands that may be enforced, we think there was no error in the action of the court in giving or refusing charges.

Appellant sought to have the jury charged to find for him on the ground that the evidence showed that one Sandall was a partner with McElroy at the time of the execution of the contract of exchange. But the evidence in no view can be said to be conclusive in favor of such a theory. The charge requested, therefore, is on the weight of the evidence in so assuming. Moreover, the partnership, if one, was not a party to the suit, nor was McElroy’s authority to transfer the account to plaintiff in any wise questioned.

We find no error in the proceedings, and, .the evidence being sufficient to support the material allegations of the plaintiff’s petition, it is ordered that the judgment be affirmed.


author: CONNER, C. J.

text:
    FT. WORTH STATE BANK v. LITTLE.
    (No. 7991.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 30, 1914.)
    Justices oe the Peace (§ 145) — Appeal— Decisions Reviewable — Amount Involved — “Interest.”
    Under Rev. St 1911, art 1589, cl. 3, giving the Court of Civil Appeals jurisdiction in cases of which the county court has appellate jurisdiction, when the judgment or amount in controversy or judgment rendered shall exceed $100, exclusive of interest and costs, and article 4973, defining interest as the compensation allowed by law or fixed by the parties to a contract for the use or detention of money, no appeal lay from the judgment of the county court on appeal from a justice to recover the balance of a bank deposit amounting to $100, though the petition prayed for the recovery of such $100 and damages in the sum of $25; there being no fact alleged authorizing a recovery of damages, other than the mere detention of the money, and “interest” being the only damages recoverable for such detention.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 479-489; Dec. Dig. § 145.

    For other definitions, see Words and Phrases, vol. 4, pp. 3692-3709; vol. 8, p. 7691.]
    Appeal from Tarrant County Court; Charles T. Prewitt, Judge.
    Action by F. L. Little against Ft. Worth State Bank. From a judgment for plaintiff, defendant appeals. Appeal dismissed.
    H. O. Ledgerwood and H. D. Payne, both of Ft Worth, for appellant. Lattimore, Cummings, Doyle & Bouldin, of Ft. Worth, for appellee.

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

   CONNER, C. J.

The appeal in this case must be dismissed. As instituted in the justice court it was for the recovery of $100, with interest. The plaintiff alleged a previous deposit of several hundred dollars in the defendant bank, which it was conceded had been all repaid except $100, to recover which the suit had been instituted. The bank suffering an adverse judgment appealed to the county court, where judgment was again rendered in favor of appellee, and this appeal prosecuted.

Whether the plaintiff’s pleading be construed as declaring upon a breach of an express contract of gratuitous bailment, as appellant insists, or as presenting an action of debt for money had and received and not returned, as appellee urges, is immaterial. The action in either case was essentially one for the recovery of $100 and no more. True, the petition closes with the prayer for the recovery of $100 and damages in the sum of $25; but no fact authorizing the recovery of damages other than the mere detention of the money was stated. For this interest alone is recoverable, and the prayer cannot be held to enlarge the real amount in controversy. Our jurisdiction in eases of which the county court has appellate jurisdiction is limited to cases where “the judgment or amount in controversy, or the judgment rendered, shall exceed one hundred dollars exclusive of interest and costs.” See Revised Statutes, art 1589, cl. 3. Exclusive of interest which is allowed by law for the detention of money (see R. S. art. 4973), the amount in controversy, the judgment rendered, does not exceed $100.

We therefore have no appellate jurisdiction, and, as stated, the appeal is dismissed.