author: •RAINEY, C. J.

text:
    CITY OF WAXAHACHIE v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (No. 7439.)

    (Court of Civil Appeals of Texas. Dallas.
    Jan. 8, 1916.
    On Motion for Rehearing, Feb. 19, 1916.)
    1. Railboads &wkey;»243 — Ordinances— Rail-boad Grossings — Gates and Watchmen.
    The power granted by Rev. St. art. 764, to a city incorporated under the general law to pass ordinances needed for the general welfare authorizes an ordinance requiring railroads to construct gates or keep a flagman at each crossing.
    [Ed. Note. — For other cases, see Railroads, Cent Dig. §§ 754, 757; Dee. Dig. &wkey;243.]
    On Motion for Rehearing.
    2. Evidence &wkey;>20 — Railboads &wkey;>243 — Obdinances — Railboad Crossings — Watchmen “All During the Day.”
    An ordinance requiring a railroad to keep a watchman at each crossing, who shall remain there “all during the day,” that is, the whole 24 hours, is void as unreasonable on its face; the court judicially knowing that trains do not run at all times on any railroad in the state.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 24; Dec. Dig. <&wkey;>20; Railroads, Cent. Dig. §§ 754, 757; Dee. Dig. &wkey;243.]
    Error from District Court, Ellis County; F. 1¡. Hawkins, Judge.
    Action by the City of Waxahachie against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    Neil C. Erwin, of Waxahachie, for plaintiff in error. G. C. Groce, of Waxahachie, for defendant in error.

      Application for writ of error pending in Supreme Court.

   •RAINEY, C. J.

This suit was brought by plaintiff in error against defendant in error to recover penalties for the violation of an ordinance of said city requiring all railroads operated through said city to maintain flagmen or gates at certain street crossings in said city. Defendant in error answered by general and special exceptions, and by general denial and special pleas. The exceptions were sustained, and, plaintiff in error refusing to amend, the cause was dismissed, and judgment rendered for defendant in error.

The ordinance of said city of Waxa-haehie relied on was passed on March 7⅛ 1911, and is as follows:

“Art. (1). That it shall be the duty of each corporation owning or operating any line of steam railway which now, or hereafter may run through the corporate limits of the city of Wax-ahachie, Texas, and over, on or across Washington street or College street or Rogers street to station and maintain a flagman at each point where its right of way crosses any one of aforesaid streets, or to erect and maintain at each of said points, the latest improved railway crossing gates, whereby any person or persons traveling on any one of said streets may be warned of the approach of any train or trains or car or cars or engine or engines on said line or lines of railway.
“Art. (2). Merely keeping a flagman at any one of said points while a train is in the switch yards of said corporation, or is approaching or leaving its depot, shall not be deemed a compliance with the provisions of this ordinance; but such corporation must maintain a flagman at each point where its right of way crosses any one or more of said streets, and it shall be necessary that such flagman remain at said point all during the day, and that he attend to the duty of flagman and giving timely warning to any and all persons approaching said right of way, on any one of the aforesaid streets, at said point, as to the coming of any car or cars, train or trains, or engine or engines.
“Art. (3). Any such corporation failing to comply with the provisions of this ordinance shall be liable in a penalty in the sum of ten dollars to the said city of Waxahachie; and-each day said corporation shall fail, neglect or refuse to so maintain such flagman or shall fail, neglect or refuse to provide and maintain said railway crossing gates at said points, and each of them, shall constitute a separate offense; which penalty and penalties, shall be recoverable by and in the name of the city of Waxa-hachie, Texas, by a suit in any court of competent jurisdiction.”

It appeared from the petition that the city was incorporated under the general municipal laws of Texas, and that the railway company had owned and operated its line of railway through the corporate limits of the city for 20 years prior to the institution of this suit, and that its line of railway crossed both Washington and Rogers streets, within the city.

The special exceptions sustained and relied on by the defendant in error are the first, third, and fifth, and are as follows:

(1) It does not appear from said petition that the plaintiff, under its charter of incorporation, had authority to enact the ordinance set out in its petition.
(3) The pretended ordinance upon which plaintiff’s suit is based is unreasonable upon its face, and therefore void, in that it requires the erection and maintenance oí the crossing gates therein mentioned, or the keeping of a flagman at each of the crossings mentioned, all during the day, whether any train is approaching or not, and whether there would be any danger to approaching travelers from railway trains, or not, and in this respect such ordinance is unreasonably onerous, and therefore void.
(5) The plaintiff city being incorporated under the general municipal charter laws of this state, such laws confer upon it no right to enact the pretended ordinance set out in plaintiff’s petition, and such pretended ordinance is void, and plaintiff has no right of action under it.

The city of Waxahachie being incorporated under the general municipal law of this state, the demurrer raises the question: Does said law grant to said city the power to pass and enforce the ordinance that forms the basis of this action? We think this question should be answered in the affirmative.

The powers granted to cities incorporated under said law are broad and comprehensive, and it was evidently intended by the lawmakers to embrace everything thought necessary for the proper government of the cities not inconsistent with state laws. In article 764, R. S., among the powers granted is:

.“May ordain and establish such acts, laws, regulations and ordinances, not inconsistent with the Constitution and laws of this state, as shall be needed for the government, interest, welfare and good order of said body politic,” etc.

Article 863 relates to the use of steam railroads, and provides:

“To direct and control the laying and constructing of railroad tracks, turnouts and switches, or prohibit the same in the streets, avenues and alleys, unless the same have been authorized by law, and the location of depots within the city; to require that railroad tracks, turnouts and switches shall bo so constructed as to interfere as little as possible with the ordinary travel and use of streets, avenues and alloys, and that sufficient space shall be left on either side of a track for the safe and convenient passage of teams, carriages and other vehicles, and persons; to require railroad companies to keep in repair the streets, avenues or alleys through which their track may run, and, if ordered by the city council, to construct, and keep in repair, suitable crossings at the intersection of streets, avenues and alleys, and ditches, sewers and culverts, when the city council shall deem it necessary; to direct the use and regulate the speed of locomotive engines in said city, or to prevent and prohibit the use or running of the same within the city; provided, that the provisions of this article shall apply to railroads known as steam railroads, and not to city, street or horse railroads.”

While in neither article is the erection of gates and placing of guards specifically made, yet we think the power in the city is impliedly granted for the requiring of guards and gates at the crossing of streets in the general welfare clause above quoted. Such precaution was necessary for the safety of the persons traveling the streets, and under the law the city of Waxahachie was empowered to enact such ordinance. Seibert v. Railway Co., 188 Mo. 657, 87 S. W. 995, 70 L. R. A. 72; Ry. Co. v. Young, 81 Ga. 397, 7 S. E. 912, 12 Am. St. Rep. 320.

In the Seibert Case, supra, relating to the power of the city of St. Louis to pass an ordinance similar to the one here in controversy, after citing a paragraph of the charter of said city where it was authorized to control streets, etc., to regulate and control railroads on the constructions of railways, to regulate their fares, routes, trips, and tracks, etc., the opinion proceeds:

“Paragraph 14 confers power to pass all ordinances not inconsistent with the provisions of the charter or the laws of the state as may be expedient in maintaining the peace, good government, health, and welfare of the city. These express grants of power are ample to support the ordinance requiring the erection of such safety gates where railroads cross public streets. But, without such express grants, the power to pass such police regulations is an inherent power, necessary for the protection of the lives and persons of the citizens using the public streets. It is the duty of a city to take all such steps and precautions as are reasonably necessary to render its streets reasonably safe for use by citizens. There cari be no two opinions that safety gates where railroads cross public streets are a necessary protection against accidents, and do not constitute a nuisance upon the street. ⅞ ⅜ ⅜ A safety gate at a point where a railroad crosses a public street is in no sense a private use of the street, but is clearly a police protection against injuries to persons passing along the street, in consequence of the passage of railway trains over the same, and such gates, therefore, cannot in any proper sense be said to be a nuisance on the street.”

There is a conflict of authority on the proposition that the city has the right under the general “welfare” clause of the charter to pass an ordinance requiring railways to erect gates and place guards at crossings, and supporting this proposition appellee cites Raven-na v. Railway Co., 45 Ohio St. 118, 12 N. E. 445, and other cases.

We think, however, that under the laws of this state the city of Waxahachie was empowered to enact the ordinance in question, and therefore the court erred in sustaining the demurrer to the petition on that ground.

As to the sustaining of the demurrer attacking the ordinance on the’ ground of being unreasonable, the ordinance on its face does not show that it is unreasonable. The presumption obtains that the city council acted within the powers conferred by law upon it, and that the necessity existed for its passage. This presumption may be rebutted by evidence, but the petition is not subject to demurrer (Railway Co. v. Averill, 224 Ill. 516, 79 N. E. 654), and the court erred in that respect.

The judgment is reversed, and cause remanded.

On Motion for Rehearing.

After reconsidering this case, we have reached the conclusion that we erred in holding that the ordinance of the city of Waxaha-chie did not show on its face that it was unreasonable, and therefore not subject to "demurrer. The ordinance, after requiring the railway company to maintain a flagman at each crossing, provides that:

“Merely keeping a flagman at any one of said points while a train is in the switch yards of said corporation, or is approaching or leaving its depot, shall not be deemed a compliance with the provisions of this ordinance; but such corporation must maintain a flagman at each point where its right of way crosses any one or more of said streets, and it shall be necessary that such flagman remain at said point all during the day, and that he attend to the duty of flagman and giving timely warning to any and all persons approaching said right of way, on any one of the aforesaid streets, at said point, as to the coming of any car or cars, train or trains, or engine or engines.”

This court judicially knows that trains do not run at all times during any given 24 hours on any railroad in Texas, which makes it clear that a flagman was not necessary at the crossing all during the day, as required by the ordinance. It was not enough, under the ordinance, that flagman should be present at the crossing when trains are approaching, but that he shall be present “at said point all during the day.” This term embraces the time from midnight to midnight, and to comply with it would work a hardship on the railway company and be unreasonable. Muck-enfuss v. State, 55 Tex. Cr. R. 229, 116 S. W. 51, 20 L. R. A. (N. S.) 783, 131 Am. St. Rep. 813, 16 Ann. Cas. 768; State v. Meagher, 124 Mo. App. 333, 101 S. W. 634.

Ordinarily a city ordinance is presumed to be valid, and its unreasonableness must be shown by evidence. But when, as in this case, it shows on its face to be unreasonable, it becomes a question of law and will be declared void. Such is the ordinance here under consideration.

Therefore the motion for rehearing will be granted, and the judgment will be affirmed.
      @=>Eor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    MUELLER v. SIMON.
    (No. 5517.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 3, 1915.
    Rehearing Denied Jan. 26, 1916.)
    1. Sales <&wkey;271 — Sale by Sample — 'Warranty — Inspection.
    Sales by sample imply a warranty that the goods shall be of like quality and character as the samples, and contemplate an inspection by the buyer.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 769-771; Dec. Dig. &wkey;271.]
    2. Sales <&wkey;178 — Inspection — “Acceptance.”
    The act of a buyer of goods in paying the draft covering the price in order to secure the bill of lading for the shipment from a bank so that he might inspect the goods, was not an “acceptance” thereof, which implies not only the physical áct of receiving the goods, but also the intention of retaining them.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 451 — 455; Dec. Dig. &wkey;178.
    For other definitions, see Words and Phrases, First and Second Series, Acceptance.]
    3. Sales <&wkey;390 — Rejection — Recovery op Pbice Paid.
    When goods delivered are not of the character or quality purchased, the purchaser may, upon ascertaining the fact, reject them and recover of the seller, as for money had and received, the price paid in advance, if such is the case.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1109: Dec. Dig. <&wkey;>390.]
    4. Sales <&wkey;390 — Rejection — Recovery op Price.
    Where some of the goods delivered are of the character and quality ordered from sample and others are not, the purchaser may accept those according to the sample and reject the remainder, and recover the purchase price of the remainder, paid in advance, as for money had and received.
    [Ed. Note. — For other eases, see Sales, Cent. Dig. § 1109; Dec. Dig. &wkey;390.]
    5. Sales <&wkey;442 — Remedies op Buyer — Suit por Damages.
    Where goods sold by sample are delivered in quantity and kind unlike those ordered, the seller may retain them and sue for damages, the difference in the value of the goods delivered and the value of those that should have been delivered.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1284^-1301; Dec. Dig. &wkey;442.]
    6. Pleading <&wkey;>34 — General Demurrer— Presumption.
    As against a general demurrer, • every in-tendment will be indulged in favor of a pleading.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 5½, 66-74; Dec. Dig. <§=s»34.]
    7. Sales <&wkey;396 — Remedies op Buyer — Suit to Recover Price Paid in Advance — Petition.
    In an action by the buyer of goods, who had a greater quantity delivered than he had ordered, which also did not conform to sample, to recover, as money had and received, the price which he had paid in advance to secure an opportunity to inspect, plaintiff’s petition, not alleging that he rejected the goods, refused to accept them, tendered them back to the seller, or notified him that plaintiff held them subject to his order, was insufficient against general exception.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1134, 1135; Dec. Dig. &wkey;396.]
    8. Pleading «&wkey;34— Construction Against Pleader.
    A pleading must be construed most strongly against the pleader.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 5½, 66-74; Dec. Dig. <&wkey;>34.]
    Appeal from Coleman County Court; T. J. White, Special Judge.
    Suit by M. Simon against Arthur Mueller. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    J. P. Ledbetter and Snodgrass, Dibrell & Snodgrass, all of Coleman, for appellant. Critz & Woodward, of Coleman, for appellee.'
   JENKINS, J.

Appellee, as plaintiff, sought to recover from appellant the sum of 8362.56, the same being the full purchase price paid in advance by appellee to appellant for certain goods, wares, and merchandise, less the value of the portion of said goods for which he allowed appellant credit.

The appellant answered by general exception and special denial of the facts alleged in the petition. Judgment for appellee for the amount sued for.

Appellant’s first assignment of error is as follows:

“The court erred in overruling and in not sustaining the second ground of appellant’s motion for a new trial, as follows: Because the court erred in overruling general exception of defendant to plaintiff’s amended petition herein, because said petition stated and showed no cause of action against defendants or either of them.”

Plaintiff’s petition, omitting formal parts, is.as follows:

“(2) That heretofore, to wit, on or about the 16th day of July, 1913, plaintiff made a contract of purchase with defendant Arthur Mueller defendant, acting under said firm name of Central Knitting Company by and through his authorized agent, by the terms of which contract plaintiff purchased and agreed to purchase from defendant certain goods, wares, and merchandise, and in reference to said purchase plaintiff had an agreement and understanding and contract with defendant through defendant’s said agjent, acting for defendant in the premises, by the terms of which defendant represented to. plaintiff. that said goods would be of certain qualities, mafc.es, construction, color, and sizes, and would be like certain samples then .and there shown plaintiff by defendant, as hereinafter stated and referred to.
“(3) That said goods so purchased and agreed to be purchased by plaintiff from defendant were listed and diesignated in the order given by plaintiff to defendant therefor, and in the bill and invoice rendered by defendant they refer to plaintiff by certain lot numbers and style numbers as hereinafter set out; but that in addition to said designation by said number plaintiff and defendant agreed and contracted that said goods should be of the grade, make, quality, construction, and color of certain samples then and there shown to plaintiff by defendant, and of certain sizes and description then and there stated and agr.eed upon by and between plaintiff and defendant.
“(4) A copy of said bill and invoice of said goods designating same by said numbers as aforesaid and showing the prices agreed upon for same is hereto attached, and is hereby referred to and marked Exhibit A.
“(5) That the goods shipped by defiendant under and in pursuance of said contract were shipped by defendant from the city of New York, state of New York, to plaintiff at Coleman, in Coleman county, Tex., with draft on plaintiff for the sum of $452.50, and that said draft was forwarded and sent by defendant and its agents in the premises to the First Natl. Bank of Coleman, Tex., with bill of lading attached to said draft; said bill of lading to be delivered to plaintiff only upon the payment by plaintiff of said draft in full, which said bill of lading was issued by the transportation company on said goods, and that said goods were delivered by said company and its connecting carriers to the Gulf, Colorado & Santa ITé Railway Company at Coleman, Tex., and was in the hands of said railway company and would ¡be delivered to plaintiff only upon the presentation of said bill of lading, which could only be procured by plaintiff by paying said draft as aforesaid.
“(6) That on or about the 12th day of November 1913., and before the institution of this suit, plaintiff paid the amount of said draft in full to said bank, and received said bill of lading and presented same to the said railway company, and received said goods and at once opened and inspected same.
“(7) That plaintiff had no opportunity to inspect and could not inspect or be allowed to inspect or examine said goods or any part of same without paying said draft in full and procuring said bill of lading, as aforesaid.
“(8) That upon inspection of said goods on said 12th day of November 1913, plaintiff found and discovered and now alleged that the following are the only items of said goods which were ordered or contracted for by plaintiff with or from defendant, and which he agreed to pay defendant for, to wit:

Lot or style. Dozen. Price Total Price.

per Dozen.

5043 or 504 1-3. ..1 $10.50 $ 10.50

5247 .2 15.50 31.00

505 .2 16.50 33.00

237 .1 27.50 27.50

Total. $102.00

Less 3 per cent, cash. 3.06

Balance, amount due defendant $ 98.94

“(9) That the amount paid defendant on said draft was $452.50, as aforesaid, ¡being the sum of $353.56 more than was duie by plaintiff to defendant on said' goods, according to the agreed price of same.
“(10j)' Plaintiff further says that he also paid the freight on all the said bill of goods from New York to Coleman, being the sum of $12.25, which amount he was forced to pay before he could receive any of said goods or make an examination and inspection o? the .same or any part thereof; and that said freight so paid was $9 more than the freight on the above goods actually bought and contracted for by plaintiff.
“(11) That the following items of said bill which were delivered to plaintiff as aforesaid were not ordered by him and were not of the style, qualities, makes, construction, colors, and sizes ¡ordered and contraated for by plaintiff with and from defendant, to wit, all the items shown on said attached exhibit lexcept such as are mentioned above as having been purchased by plaintiff and having been shipped and delivered as purchased; the said goods so shipped and not ordered and not being of the description as purchased as alleged herein being sweaters and sweater coats and similar goods.
“(12) That the amount of said draft as drawn and paid included $25 which was paid cash by plaintiff to defendant at the time of the contract of purchase aforesaid, and that in drawing said draft defendant did not allow for said $25, but collected same again from plaintiff, and that plaintiff did not discover said fact until after he had paid said draft.
“(13) That the said sum of $98.94 and the goods mentioned above in paragraph 8 hereof are and were the only amount ever due by plaintiff to defendant and the only goods ever delivered or shipped by defendant to plaintiff, which plaintiff had agreed to purchase or had contracted for.
“(14) Plaintiff says that by reason of the premises he has paid to plaintiff and to the said First Natl. Bank for plaintiff the said sum of $353.56 more than was due by plaintiff to defendant as aforesaid, and has also paid the said sum of $9 freight on said goods so shipped to plaintiff and not ordered or purchased or agreed to bie purchased by him, and that by reason of the premises he has been damaged in the sum of $362.56, and defendant, though often requested to pay the same to ' plaintiff, has faffed and refused and still refuses to pay the same or any part thereof, to plaintiff’s damage in said sum of $362.56.
“Wherefore, premises considered, defendant having been duly cited and answered, plaintiff prays the court that he have judgment for the said sum of $362.56, with interest thereon at 6 per cent, per annum from November 12, 1913, and all costs of suit, and for such other and further relief, general and special, as in law and equity he may be justly entitled to.”

Sales by sample imply a warranty that the goods shall be of like quality and character as the samples, and contemplate an inspection by the buyer. Receiving the goods for the purpose of inspection and inspecting the same, is not an acceptance thereof. An acceptance implies not only the physical act of receiving the goods, but also the intention of retaining them. When the goods are not of the character or quality purchased, the purchaser may, upon ascertaining said fact, reject them; and where he has paid for them in advance, he may sue the seller as for money had and received. If some of the goods are of the character and quality ordered and others are not, the purchaser may accept the goods that are according to sample and reject the remainder, and in such case, if he has paid the purchase price in advance, he may sue for such remainder as for money had and received. Mfg. Co. v. Hamilton, 18 Tex. Civ. App. 283, 44 S. W. 405; 24 Am. & Eng. Eney. Law, 1156; 27 Cyc. 856 ; 35 Cyc. 604.

It is the contention of appellee that this suit is for money had and received. He might have brought such a suit if be had rejected the goods upon inspection, or he might have retained them and sued for damages, in which case he would have been entitled to recover the difference in the value of the goods delivered and the value of the goods that should have been delivered under the contract. It is not alleged in this case that the goods delivered were worthless, nor that they were worth less than the goods ordered by appellee. If he retained the goods for his own use, this would amount to an acceptance, and his suit should he one for damages. It will he observed that appellee’s petition, as above set forth, nowhere alleges that he did not accept the goods which were delivered to him. Had he done so as against a general exception this would have been sufficient to admit evidence that he notified the seller that he rejected the goods, and that he held them subject to his order. As against a general demurrer, every intendment will be indulged in favor of the pleadings; but, after indulging such intendment, it appears from the appellee’s petition that he ordered and paid for certain goods, and that appellant sent him from New York, and that he received in Coleman goods of the general character ordered, but not of the specific kind, except as to $98.94 worth thereof. These goods were received in his store at Coleman. What did he do with them? It is not alleged that he ’rejected them, refused to accept them, or that he tendered them back to the seller or notified him that he held them subject to his order. Such being the case, we cannot infer from his pleading that he did any of these acts. Having given him the benefit of every intendment, the pleading then must be construed most strongly against the pleader; and it must be inferred from the pleading in this case that he did not allege the nonacceptance of the goods for the reason that he could not truthfully do so. Such being the case, the court erred in not sustaining the general exception to appellee’s petition, for which reason this case is reversed and remanded for a new trial.

Reversed and remanded.
      <&wkey;E\)r other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONLEY, C. J.

text:
    CLEVENGER v. COMMERCIAL GUARANTY STATE BANK et al.
    (No. 17.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 3, 1916.
    Rehearing Denied Feb. 24, 1916.)
    1. Evidence <&wkey;423 — Bills and Notes — Liability OF PARTIES — PAKOL EVIDENCE.
    One not the payee who signs Ms name on the back of a note at the time of its inception without any words explaining his undertaking is liable as an original promisor or as surety, and may show by parol or other evidence the real obligation intended to be assumed at the time of the signing.
    TEd. Note. — For other cases, see Evidence, Cent. Dig. §§ 1957-1965; Dec. Dig. &wkey;423.]
    2. Evidence <&wkey;443 — Bills and Notes — Liability of Parties — Parol Evidence.
    A contemporaneous parol agreement that a maker and an indorser of a note will relieve comakers from liability as surety and will themselves pay the note at maturity is admissible to prove a parol contract of indemnity between those jointly liable on the note.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2048-r2051; Dec. Dig. <S=j443.]
    3. Frauds, Statute oe <&wkey;21 — Pabiol Agreement oe Indemnity.
    Such parol contemporaneous agreement is not witMn the statute of frauds.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 33; Dec. Dig. <&wkey;21.]
    4. Principal and Surety &wkey;>33 — Agreement by Surety or Guarantor to Pay Note-Consideration.
    An agreement by a surety to pay a note in. case the principal refuses to do so, made as an inducement to third persons to sign it, is supported by a sufficient consideration.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 65, 66; Dec. Dig. <&wkey;> 33.]
    5. Bills and Notes <§=473 — Actions—Liability oe Parties — Pleadings.
    In an action on a note by the payee against defendants, one of whom signed as maker and another as indorser, an answer by other defendants alleging that they signed as accommodation for codefendants, who agreed to hold defendants harmless, and to pay the note at maturity and demanding a judgment against codefendants for the amount the payee might recover against defendants, was sufficient as against a demui’rer, and supported a judgment for defendants against codefendants.
    [Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. §§ 1503-1507, 1555; Dec. Dig. &wkey;473.]
    6. Bills and Notes &wkey;>540 — Persons Liable —Judgment.
    Where judgment is rendered for a payee of a note against all persons signing as maker or indorser and for- some of the makers against comakers and indorser, the court should, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6332, direct order of an execution according to the order of liability of the parties to the payee.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1918-1934; Dec. Dig. <&wkey;> 540.]

      Appeal from Nacogdoches County Court; J. F. Perritte, Judge.
    Action by the Commercial Guaranty State Bank against J. P. Clevenger and others. From a judgment for plaintiff against all the defendants, and for some of the defendants against defendant named and another, and in favor of defendant named against the other defendant, the' defendant named appeals.
    Reformed and affirmed.
    Geo. F. Ingraham, of Nacogdoches, for appellant. Ford Clevenger and S. M. Adams, both of Nacogdoches, for appellee.
   CONLEY, C. J.

On October 5, 1914, the Commercial Guaranty State Bank of Nacog-doches, Tex., instituted this suit in the county court of Nacogdoches county on a promissory note for $400, dated May 21, 1913, due seven months after date, with 10 per cent, interest and 10 per cent, attorneys’ fees; said note being signed by James W. Truitt, Lem Hill, E. S. Hicks, and H. C. Parker, in favor of said bank, and indorsed by J. P. Clevenger. Truitt and Clevenger filed no answer to the bank’s suit. E. S. Hicks, Lem Hill, and H. C. Parker duly filed an answer, the contents of which it is not necessary here to state, except in so far as it affects the appellant, J. P. Clevenger. There were three paragraphs to this answer, numbered, respectively, 1, 2, and 3, and the court sustained demurrers to paragraphs 1 and 3, leaving paragraph 2 in said answer, and upon which the cause went to trial. That paragraph reads as follows:

“Further answering herein the defendants E. S. Hicks, Lem Hill, and H.- C. Parker say that at the time they signed said note as surety for said J. W. Truitt and J. P. Clevenger, Joe P. Clevenger, and J. W. Truitt represented to them it was only a matter of accommodation to them to enable them to close up a piece of business; that they nor either of them should ever suffer any loss by reason of signing as surety the said note. And J. P. Clevenger especially represented to these defendants that he would hold these defendants absolutely harmless on said paper, and that he, himself, would pay off and settle said note when it became due, and, especially guaranteed these defendants against any loss in the premises. J. P. Clevenger at the time was and is yet wholly solvent, and these defendants pi'ay for a judgment over and against the defendants Joe P. Clevenger and J. W. Truitt, and each of them for the amount the plaintiff may recover against these defendants, if the court should hold that these defendants, under the facts, are joint signers, and primarily liable on said note.”

The appellant, J. P. Clevenger, filed the following demurrers to paragraph 2, which were overruled by the court:

“Now comes the defendant, J. P. Clevenger, and says that the matters and things alleged in paragraph 2 of the answer of said defendants are wholly insufficient in law; and especially excepts to the same because it contradicts the written contract of said defendants; and especially excepts to said answer because the promise referred to therein is not alleged to have been in writing; and especially excepts to the same because no consideration for said promise is shown.”

These demurrers were overruled by the court.

The case was tried by the court without the intervention of a jury, and judgment rendered in favor of the Commercial Guaranty State Bank against all of the parties, for the amount of the note sued on, and in favor of Hill, Hicks, and Parker for the same amount against Truitt and Clevenger, and in favor of Clevenger over against Truitt. The appellant, Joe P. Clevenger, excepted to said judgment, and has perfected his appeal to this court.

There is no statement of facts in the record. The only question presented which we can consider is that attacking the judgment of the court on the rulings to the special exception of appellant to paragraph 2 of the answer filed by Hicks, Hill, and Parker.

It is a settled law of this state that parol evidence is admissible to show the relationship of principal and surety, or principal and guarantor, between the makers of a note, notwithstanding the form of the note. Burke v. Cruger, 8 Tex. 66, 68 Am. Dec. 102; Wylie v. Hightower, 74 Tex. 306, 11 S. W. 1118; Yeary v. Smith, 45 Tex. 56; Zapalac v. Zapp, 22 Tex. Civ. App. 375, 54 S. W. 938. Where a person not the payee signs his name on the back of a promissory note at the time of its inception, without any words to explain the nature of his undertaking, he is liable as an original promisor or as surety; but it is competent for the person so signing to show by oral or other evidence the real obligation intended to be assumed at the time of the signing. Cook v. Southwick, 9 Tex. 615, 60 Am. Dec. 181; Barton v. American National Bank, 8 Tex. Civ. App. 223, 29 S. W. 210; Latham v. Houston Flour Mills, 68 Tex. 127, 3 S. W. 462; Kellogg v. Iron City National Bank, 26 S. W. 856.

The grounds upon which parol proof of intention or agreement in such cases is admitted is that the position of the name on the paper is one of ambiguity in itself; that it is not a complete contract, as is the case of an indorsement by the payee, which imports a distinct and certain liability, but rather evidence of authority to write over it the contract that was entered into; and that parol proof merely discloses and brings to light the terms of the unwritten contract that was made between the parties. Heidenheimer Bros. v. Blumenkron, 56 Tex. 308; Barton v. American National Bank, 29 S. W. 210.

And in the case of Citizens’ National Bank v. Cammer, 86 S. W. 625, it was held that a witness may testify that when he signed a note it was understood he was not to be liable on the same, and that the payee should not hold him responsible, and would indemnify him against loss.

A contemporaneous agreement of that nature would not be admissible for the purpose of contradicting or disputing the legal effect of a note, but it may be introduced for the purpose of proving a parol contract of indemnity between those jointly liable on the note. Such an agreement is not within the statute of frauds. Hall v. Taylor, 95 S. W. 755.

An agreement by one surety or guarantor to pay a note in case the principal refuses to pay the same, made as an inducement to the others to sign it, is supported by consideration. Hall v. Taylor, 95 S. W. 755.

The allegations in the paragraph of the answer excepted to specifically allege that the promises made by Clevenger and Truitt to the other makers of the note, E. S. Hicks, Lem Hill, and H. C. -Parker, were made at the time they signed the note.

We see no error to the court’s rulings on these demurrers.

In entering up the judgment, the court did not make an order directing the sheriff to levy the executions as provided for under article 6332, Vernon’s Sayles’ Texas Civil Statutes. The judgment will therefore be reformed by adding thereto the following provision:

“Execution on the judgment herein rendered in favor of the Commercial Guaranty State Bank shall first be issued directing the sheriff to levy the same upon the property of the principal, J. W. Truitt, subject to execution; and in the event the property of the principal, J. W. Truitt, in an amount sufficient to satisfy said judgment, cannot be found, then execution shall issue directing the sheriff to levy the same upon the property of the defendant, Joe P. Clevenger, and in the event property of sufficient amount cannot be found to satisfy said judgment, then the same may be levied upon the property of the defendants E. S. Hicks, Lem Hill, and H. C. Parker. The levies of the executions herein provided for to be made on so much of the property of the principal as may be found, if any, and upon so much of the property of the said Joe P. Clevenger as may be found, and as may be necessary to make the amount of the execution, and then upon so much of the property of the sureties herein named as may be found and as may be necessary to make the full amount of said judgment.”

The judgment is reformed and affirmed; and it is so ordered.

MIDDLEBROOK, J., not sitting.
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text:
    SPEER v. RUSHING et al.
    (No. 5573.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 2, 1916.)
    1. Principal and Subety @=3125 — Release of Subety — Extension of Time fob Payment.
    A mere forbearance to sue, without an agreement snot to do so, will not release a surety from liability for a debt.
    [Ed. Note. — For other cases, see Principal and Surety, Ceht. Dig. §§ 312-328; Dec. Dig. &wkey;3l25J
    2. PRINCIPAL AND SURETY <&wkey;>105 — RELEASE OF
    Surety — Extension of Time fob Payment. An agreement by the payee of a note with the principal maker, for a valuable consideration, to extend the time for payment for a definite time, made without the consent of the principal’s surety, will release the surety.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 191, 192, 196, 201-210; Dec. Dig. <&wkey;>105.]
    3. Principal and Surety <&wkey;108 — Release of Subety — Extension of Time — Consideration.
    The agreement whereby the payee of a note extends additional time to the principal maker for its payment, to release the principal’s surety, must be supported by a valid consideration.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 213-218; Dec. Dig. <&wkey;> 108.]
    4. Principal and Surety t&wkey;108 — Extension of Time fob Payment — Consideration.
    Where the payee of an interest-bearing obligation promises to forbear collection for a definite. time, and the principal debtor agrees to pay interest for such time, the mutual promises constitute valuable consideration, supporting the agreement, and incidentally ditecharging the principal’s surety, if made without his consent.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 213-218; Dec. Dig. &wkey;>
    5. Principal and Surety <&wkey;104 —Extension of Time foe Payment — Conditional Character.
    If the agreement between debtor and creditor for an extension of time for payment is conditional, it must be shown that such condition has been complied with, to effect the release of the debtor’s surety.
    LEd. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 186-190, 193-195, 197-200; Dec. Dig. &wkey;104.]
    6. Principal and Surety &wkey;>161 — Extension of Time foe Payment — Sufficiency of Evidence.
    In suit on a note, evidence as to plaintiff’s alleged agreement with the principal maker to extend the time for payment held, insufficient to sustain verdict for defendants, sureties for the principal maker.
    [Ed. Note. — For other cases, see Principal and Surety ]Oent. Dig. §§ 85, 439-441; Dec. Dig.
    Appeal from District Court, Robertson County; J. C. Scott, Judge.
    Suit by A. J. Speer against Will Rushing and another. From a judgment for defend-
    ants, plaintiff appeals.
    Reversed and remanded.
    See, also, 178 S. W. 1012.
    W. W. Wilson, of Calvert, and V. B. Hudson, of Bryan, for appellant. H. S. Morehead, of Franklin, for appellees.
   JENKINS, J.

In November, 1913, appellant loaned M. D. Sharp $4,000, upon a promissory note signed by said Sharp and R S. Glass & Go., Will Rushing, and J. W. Mc-Crary, payable January 1, 1914. Sharp was a member of the firm of R. S. Glass & C'o. While all parties appear on the face of the note as principals, in fact Sharp was the principal and the other parties were sureties, which fact was known to appellant at the time the money was loaned. Sharp and Glass & Co. became bankrupt in March, 1914. The only issue presented by this appeal is as to whether appellant agreed with Sharp to extend the time of payment of the note to January 1, 1915.

A mere forbearance to sue, without an agreement not to do so, will not release a surety from payment of a debt. Russell v. Miller, 40 Tex. 501; Houston v. Braden, 37 S. W. 468; Titterington v. Murrell, 90 S. W. 510; Bank v. Gilvin, 152 S. W. 654, 655; Hunter v. Clark, 28 Tex. 163. On the other band, an agreement by the payee with the principal, for a valuable consideration, to extend a note for a definite time, made without the consent of the surety, will release the surety. Guerguin v. Boone, 33 Tex. Civ. App. 622, 77 S. W. 631; Wybrants v. Lutch, 24 Tex. 310; Pilgrim v. Dykes, 24 Tex. 383, 384. The consideration must be valid. Payne v. Powell, 14 Tex. 601; Andrews v. Hagadon, 54 Tex. 577, 578.

Where the payee of an interest-bearing obligation promises to forbear the collection of the same for a definite time, and the principal therein agrees to pay the interest for such time, such mutual promises, giving the creditor, on the one hand, a profitable investment, and the debtor, on the other hand, the use of the money for a definité time is a valuable consideration, and will be sufficient to enforce such agreement and to discharge the surety, if made without his consent. Benson v. Phipps, 87 Tex. 580-582, 29 S. W. 1061, 47 Am. St. Rep. 128. Such agreement, to amount to a valid consideration, must be mutual. Norris v. Graham, 42 S. W. 576. It must be for a definite time, so that until the expiration of that time the hands of both parties are tied, in that the creditor could not enforce the collection of the debt, and the debtor could not tender payment and stop the interest; 'hence the agreement must be unconditional, or, if upon a condition precedent, it must be shown that such condition has been complied with. Benson v. Phipps, supra, 87 Tex. 580, 29 S. W. 1061, 47 Am. St. Rep. 128; Barlow v. Frederick Stearns Co., 44 Tex. Civ. App. 321, 98 S. W. 456; Burke v. Cruger, 8 Tex. 70, 71, 58 Am. Dec. 102.

The court submitted the case to the jury on a general charge, and their verdict necessarily includes a finding that there was such an agreement between' appellant and Sharp as would discharge the sureties. Appellant, under a proper assignment of error, contends that the verdict is unsupported by the evidence. Had Sharp testified positively to such agreement, that would have been sufficient to sustain the verdict, and his testimony would have found circumstantial corroboration in the testimony of McCreary and several other witnesses who testified as to alleged statements by appellant. But the evidence shows that, if such agreement was made, but two parties knew that fact, viz. appellant and Sharp. Appellant positively denies making such agreement. We think that Sharp’s testimony shows only a conditional agreement, to wit, that appellant would extend the note for 12 months if it was agreeable to the appellees herein. The evidence shows that the appellees never agreed to such extension. The evidence as to the alleged agreement is not, in our opinion, sufficient to sustain the verdict of the jury, for which reason the judgment of the trial court is reversed, and this cause is remanded for a new trial.

Reversed and remanded.
      @=5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    CLOPTON v. FLOWERS.
    (No. 5531.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 22, 1915.
    Rehearing Denied Feb. 2, 1916.)
    1. Evidence &wkey;>177— Secondary Evidence-Conclusion of Expert Accountant.
    When books and accounts are voluminous, containing many items and covering a considerable portion of time, an expert accountant, who has examined them, may state his conclusion as to what they show.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 557, 570-579; Dec. Dig. &wkey;177.]
    2. Appeal and Eeror &wkey;>1056 — Harmless Error — Exclusion of Evidence — Different Result.
    Where the court did not find that a sale was absolute and vested title in the previous buyer, through whom defendant claimed, and where he may have reached the conclusion that the transaction between the seller and such buyer, although at first a conditional sale, became absolute by the buyer’s payment of all the purchase money, and where the excluded testimony would have supported a finding that there had been no sale to the party under whom defendant claimed, and hence produce a different result, the exclusion was prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. &wkey;1056.]
    Appeal from Caldwell County Court; J. T. Ellis, Judge.
    Suit by A. .M. Clopton against Yan B. Flowers. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Page & Jones, of Bastrop, O. Ellis, Jr., and S. R. Graves, both of Lockhart, for appellant. E. B. Goopwood and J. B. Hatchitt, both of Lockhart, for appellee.
   KEY, C. J.

Appellant brought- this suit against appellee to recover certain horses and mules and four sets of harness. Appel-lee, defendant in the court below, denied that the plaintiff had any title to the property, and alleged that he, the defendant, was the rightful owner thereof, and averred that he purchased the same from one Lovejoy, who was the owner thereof. There was a non-jury trial, which resulted in a judgment for the defendant, and the plaintiff Clopton has appealed. We overruled all of the assignments of error except the one hereafter discussed.

The undisputed proof shows that one J. K. Miller formerly owned the property in controversy, and that on the 29th day of June, 1914, he executed to appellant Clopton an instrument of writing, in form of a bill of sale, conveying, among other property, that here involved, and appellant testified that he bought the property from Miller on the day referred to, and tliat he claimed title under the bill of sale mentioned. Appellee * introduced testimony, especially that given by W. Lovejoy, tending to show that in April, 1013, Miller sold the property to Lovejoy; and the proof shows that on the 10th day of September, 1914, Lovejoy executed a bill of sale conveying it to appellee. J. K. Miller, as a witness for appellant, testified that he never sold the property to Lovejoy, but that they entered into an agreement, which was no more than a contract of sale, by which the title to the property was not to vest in Love-joy until he had paid for it, and Miller testified that Lovejoy had never paid for the property. As said before, Lovejoy testified to an unconditional sale, by which title to the property vested in him at the time of the sale, although it was not then paid for. He also testified that he and Miller had a settlement, in which it was agreed that Miller owed him about $55, which settlement he claims was made at about the time their books had been examined by the witness Zorn. The proof shows that appellant, Clop-ton, is a contractor who does construction roadwork, and at the time involved in this transaction he seems to have had a contract for certain roadwork in Caldwell county, and J. K. Miller was a subcontractor, working under Clopton, and W. Lovejoy was working under Miller. .The undisputed proof shows that in April, 1913, Miller and Love-joy made a contract of some sort concerning the property in controversy; and if, as Lovejoy testified, it was an absolute sale, appellant was not entitled to recover, but if it was a conditional sale, and the title had not passed out of Miller, and he thereafter sold the property to appellant, then the latter was entitled to recover. As said before, Lovejoy testified that he had paid for the property, and that he and Miller had a settlement, by which it was agreed that Miller owed him about $55.

The proof shows that both Miller and Lovejoy kept books relating to supplies furnished to Lovejoy by Miller, the payment of wages, etc. The books and accounts referred to covered a period of many months, and the testimony indicates that it was no easy matter to ascertain just what they disclosed. In view of these conditions it seems that Miller and Lovejoy agreed that one W. S. Zorn, who was shown to be an expert bookkeeper and accountant, should take the books, examine the same, and ascertain the state of accounts between them, whether Miller owed Lovejoy or Lovejoy owed Miller anything. Zorn performed the service referred to, and appellant’s third assignment of error complains of the ruling of the trial court in refusing to permit Zorn as a witness to state the conclusion that he came to as a result of his examination of the books. The bill of exception shows that'if Zorn had been permitted to do so, he would have testified that, as a result of his examination of the books, he reached the conclusion that they showed that Lovejoy was indebted to Miller in the sum of $525. The objection to the testimony made by appellee and sustained by the court was that it was immaterial and irrelevant, the opinion and conclusion of the witness, and that the books which had been introduced in evidence constituted the best evidence as to their contents. We sustain the assignment complaining of that ruling, and hold that the court committed material error when it excluded that testimony. The rule upon that subject is stated in section 1230 of Prof. Wigmore’s valuable treatise on Evidence, as follows:

“Where a fact could be ascertained only by the inspection of a large number of documents made up of very numerous detailed statements —as, the net balance resulting from a year’s vouchers of a treasurer or a year’s accounts in a bank-ledger — it is obvious that it would often be practically out of the question to apply the present principle by requiring the production of the entire mass of documents and entries to be perused by the jury or read aloud to them. The convenience of trials demands that other evidence be allowed to be offered in the shape of the testimony of a competent witness who has perused the entire mass and will state summarily the net result. Such a practice is well established to be proper. Most courts require, as a condition, that the mass thus summarily testified to shall, if the occasion seems to require it, be placed at hand in court, or at least be made accessible to the opposing party, in order that the correctness of the evidence may be tested by inspection if desired, or that the material for cross-examination may be available.”

The authority cited announces a rule which seems reasonable and just that when books and accounts are voluminous, containing many items and covering a considerable period of time, it is permissible for an expert accountant, who has made an examination of them, to state his conclusion as to what they show.

The judge filed findings of fact, one of which is that in April, 1913, Miller sold the property to Lovejoy. But the judge did not find that the sale was absolute and vested title in Lovejoy immediately, and he may have reached the conclusion that the transaction between Miller and Lovejoy, though at first a conditional sale, became absolute by reason of the fact that Lovejoy paid all the purchase money for the property; and the excluded testimony which would have been given by Zorn would have supported the testimony given by Miller, to the effect that Lovejoy still owed him about $525, and if that testimony had not been excluded, it may be that the court would have found that there was no sale of the property from Miller to Lovejoy.

Hence we hold that the record does not show, as contended on behalf of appellee, that the ruling referred to was harmless; and, as the excluded testimony was material and might have produced a different result, the judgment of the court below is reversed, and the cause remanded. .

Reversed and remanded.

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author: HALL, J.

text:
    GARRISON et al. v. BOWMAN et al.
    (No. 905.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 19, 1916.
    Rehearing Denied Feb. 23, 1916.)
    1. Joint Adventures <&wkey;l — Rescission of Contract — Misrepresentations as to Price.
    Where one person represents to another with whom he is in a confidential relation that he has a contract entitling him to purchase land at a certain price, and agrees that the other may have a half interest in the land by paying one-half of such price, his misstatement of the price constitutes fraud, entitling the other to rescind their agreement.
    [Ed. Note. — For other cases, see Joint Adventures, Cent. Dig. § 1; Dec. Dig. &wkey;>l.]
    2. Action <&wkey;50 — Joinder oe Causes of Action-Parties Involved.
    In order to avoid multiplicity of suits, a suit in trespass to try title to land conveyed by two of the plaintiffs to a third under a warranty deed, and to cancel conveyances between defendants and notes given plaintiffs by one defendant, was properly brought by such plaintiffs against such defendant, who was alleged to have induced plaintiffs, by fraudulent representations as to price, to join with him in purchasing a half interest in the land, and against a person to whom this defendant had conveyed his interest.
    [Ed. Note. — For other cases, see Action, Cent. Dig. §§ 511-547; Dec. Dig. <S=350J
    3. Joint Adventures t&wkey;^ — Fraud—Waiver.
    Where purchasers with knowledge of false representations made to them as to the cost price of the land by one who thereby induced them to join with him in buying same, the entire tract being deeded to them pursuant to their contract with him, paid off the purchase-money notes and sold the land to a third person, they affirmed the contract in toto and waived their right to a rescission and cancellation of the contract so as to deprive their joint purchaser of his rights under it; their remedy in such case being by a suit for damages.
    [Ed. Note. — For other cases, see Joint Adventures, Cent. Dig. §§ 3-6; Dec. Dig'. <&wkey;>4.]
    4. Joint Adventures <&wkey;5 — Purchase of Land — Misrepresentations as to Price-Measure op Damages.
    Where purchasers of a half interest in land are induced to buy, through misrepresentations of the purchaser of the other half interest as to the purchase price, the measure of damages recoverable by them from such other purchaser is the difference between the actual purchase price of the half interest and the amount which they have actually paid.
    [Ed. Note. — For other cases, see Joint Adventures, Cent. Dig. § 7; Dec. Dig. t&wkey;>5.j
    5. Joint Adventures <&wkey;4 — Contract between Joint Purchasers — Construction-Conversion op Collateral.
    That the purchaser of a half interest in land had agreed with the purchasers of the other interest to whom the entire tract was deeded that in case he failed to sell the land within a certain time he would relinquish all claim to it did not entitle the other purchasers to retain and convert to their own use notes which he had pledged with them as collateral security.
    [Ed. Note. — For other cases, see Joint Adventures, Cent. Dig. §§ 3-6; Dec. Dig. <&wkey;>4.]
    Appeal from District Court, Deaf Smith. County; D. B. 1-Iill, Judge.
    Action by J. H. Bowman and others against J. H. Garrison and others. From a judg-
    ment for plaintiffs, defendants appeal.
    Reversed and remanded.
    Turner & Rollins, of Amarillo, for appellants. B. Frank Buie, of Canyon, for appel-lees.
   HALL, J.

Defendants in error, John H. Bowman, C. P. Bowman, and Albert O. Swin-son, filed this suit against W. L. Garrison and J. H. Garrison, and by their first amended original petition sought a recovery in the first count of three sections of land described therein, in trespass to try title.

In the second count it is alleged that the said Swinson is the legal and equitable owner of the land, having obtained the same through warranty deeds from J. H. and C. P. Bo,wman; that J. H. and C. P. Bowman acquired said sections from L. A. Pierce, by conveyance dated February 14, 1910; that the consideration mentioned in each deed to each section is $8,000, $2,666.67 cash, and four vendor’s lien notes. Two of said notes for $2,133.33 each, due on or before one and two years after date and two vendor’s lien notes for $533.33 each, due on or before one and two years after date, bearing 10 percent. interest from date, and providing for 10 per cent, attorney’s fees; that each of said notes are executed by J. H. and C. P. Bowman, payable to the order of L. A. Pierce, and retain a vendor’s lien to secure their payment; that J. H. and C. P. Bowman, on March 21, 1913, paid off the principal and interest of said notes, and obtained from L. A. Pierce the release of the vendor’s lien on said land. It is further alleged that a few weeks prior to taking over said three tracts of land, by the said Bowmans,’J. H. Garrison came to Staunton, Va., where said Bowmans resided, and stated and represented to J. H. Bowman and O. P. Bowman that he had an option contract with said Pierce, whereby the said Garrison could purchase said lands for the sum of $24,000, one-third cash, the balance on or before one and two years, with 6 per cent, interest; that he, the said Garrison, had paid the said Pierce on said option contract the sum of $3,000; that he was not able to get up the other $5,000, and in the event he should fail to do so he would lose the $3,000 already put up on said land, and that the time of the option had almost expired. He further represented to the said Bowmans that the land was very fine, two of the sections being smooth, level sections and the other one a creek section, containing fine alfalfa land; that the $24,-000 was actual cost of said land; and that there were no commissions or profits to anyone. The said Garrison further stated that if the said Bowmans would put up $4,000 and loan him, the said Garrison, $1,000, he would take them into the deal at just what he was paying Pierce for the land, and that if they would go in with him he would have the land deeded directly to them for their protection, they to give the vendor’s lien notes to Pierce, and that he would give them his two notes, in the sum of $4,000 each, to protect them in one-half of the deferred payments; and one note for $1,000 for the cash loaned him to make the first payment; that the said Garrison agreed to ‘sell the land within a very short time, viz., three or four months, and that they would divide the profits above the actual cost price equally; that is, one half to, Garrison and the other half to the said Bowmans. It is further alleged that neither of the said Bow-mans had ever been in Texas and knew nothing whatever about the character and value of said lands; that they had been friends of Garrison in Virginia in their boyhood days; and that Garrison had been in Randall county, Tex., for many years, and knew the character, quality, and value of the three sections. They further allege that they relied upon his statements, paid the $5,-000 cash, executed the vendor’s lien notes to Pierce and received the deeds to said land; that the said Garrison had not put up the $3,000 as stated by him; that at the time Garrison obtained the option contract for Pierce to purchase said land, he caused Pierce to sign two option contracts, one showing that Garrison was to pay $24,000 for the land, and the other showing the purchase price to be $19,200, which last price was the true consideration to be paid Pierce; that about two years after they executed said notes to Pierce and paid the $5,000 cash and received the deeds to said land they came to Texas to inspect the same, and learned from L. A. Pierce that he had received only $10 per acre, and not $12.50 per acre, as stated in the option contract, which Garrison had presented to them; that on February 8, 1910, the said Garrison made a contract with them, which was reduced to writing in part; that the contract as written showed the cost of said land to Pierce to be $12.50 per acre, one-third cash, balance in one and two years at 6 per cent, interest. It further recited that the Bowmans were to pay to Pierce $5,000 of the cash payment, and that Garrison was to pay $3,000 of the cash payment; that it failed to show who were to make the two deferred payments of $8,000 each to Pierce, and it is alleged that the deferred payments were to be made one half by Garrison and the other half by Bowmans; that subsequent thereto, J. H. Garrison had transferred the three tracts of land to his son, W. L. Garrison; that, by reason of the fraudulent acts and representations of Garrison, he had forfeited all rights and equities in said land. In this pleading the plaintiffs tendered the two! notes for $4,000 each, and the one note for $1,000, executed by Garrison to them, into court,' for cancellation. They prayed that the sale from J. H. Garrison to his son, W. R. Garrison; be canceled; that the three notes tendered into court be also canceled and for costs of suit.

On June 1, 1914, the defendants J. H. and W. R. Garrison filed their original answer, and in addition to general and special exceptions pleaded not guilty to the first count of the petition, which was in the form of trespass to try title. In answer to the second count, they denied that J. H. Garrison made any fraudulent representations as to the price paid by him for the land, and that nothing had been omitted from the contract by mistake or fraud. It is further specially alleged that Garrison never at any time offered to take J. H. and O. P. Bowman as partners in any transaction, and that in the purchase of said land they relied upon information received from their uncle, James F. Bowman, who resided in Texas, and had seen the land in question, and was well informed as to its value.

By way of cross-action, J. H. Garrison alleged that about the 8th day of February, 1910, he was in Staunton, Va., and while there met J. H. and O. P. Bowman; that they were anxious to purchase lands in Texas, and he stated to them that he had three sections which he had contracted to purchase, and in which he would sell them a half interest at $12.50 per acre; that at the time the market value of the said land was $12.50 per acre, and they were so informed by their uncle, James F. Bowman; that a written contract was entered into between them, whereby they agreed to purchase a half interest in said three sections at said price; that after the land had been conveyed to them, the said J. H. and O. P. Bowman, in disregard of the rights of the said Garrison, conveyed said land to the said Albert O. Swinson, at a consideration which he believed to be $25 per acre; that about the 29th day of November, 1911, he transferred to J. H. and O. P. Bowman two certain vendor’s lien notes, in the sum of $1,526.33 each, executed by ID. J. Cfiemmer, and payable to C. R. McAfee, and bearing 8 per cent, interest per annum, and which were secured by lien on the south half of a certain section of land in Randall county, Tex.; that said notes were transferred at the request of the said J. IT. and O. P. Bowman, for the purpose of giving to them additional security for money paid and to be paid out by them on the land in controversy, under a contract dated February 8, 1910; that it was not the intention of the parties that the said Bow-mans should become the owners of the Clem-mer notes, but that they should hold the same as security for the amounts paid out by them in carrying out the contract of purchase of the said three sections; that about the 27th day of April, 1912, the said Bow-mans caused such half section of land to be conveyed to O. P. Bowman and S. T. Glem-mer, in consideration of $10 and the assump'tion of an Indebtedness against said half section, and they converted said notes to their own use and benefit, making the amount which J. H. Garrison had paid on said land $7,029.50, with interest; that by reason of the breach of the contract of February 8, 1910, and the sale of said land and the conversion of the two notes held by them as collateral security, the said Garrison is entitled to a lien on the three sections of land to secure the payment of the amount due him; that the said Swinson took the title to ■said land, with full knowledge of the rights ■of the said Garrison therein; that the said Bowmans are estopped to set up the matters set out in the second count of their petition, because of the fact that soon after the making of the contract of February 8, 1910, they were in Texas and became fully informed with reference to the things set up in said petition, and after learning from Pierce the market value of said land, they ratified and confirmed the contract and transaction in all things, and made no demand for the cancellation thereof, until about three years thereafter; that before the Bowmans conveyed the said land to Swinson, the said J. H. Garrison, for a valuable consideration, conveyed his interest in said three sections to W. L. Garrison, and that such conveyance was immediately recorded.

On June 1, 1914, plaintiffs filed their first supplemental petition, in which, among other .things, it is alleged that, when the Bow-mans came to Texas, in November, 1911, and told Garrison that he had misrepresented to them the cost price of said land, and demanded of him that he make good the difference, it was agreed between them that Garrison should make good the $1,800 excess in cash and vendor’s lien notes that they had been out on the purchase of said land; that in order to secure the Bowmans in said amount, and other moneys that they had been or might be out on said land, Garrison agreed to put up as additional security for his half interest, two notes for $1,526.33 each, executed by E. J. Olemmer, and described in defendant’s pleadings; that it was further agreed that the said Garrison should have two years more in which to sell said land at .any price over and above the first cost thereof, profits to be equally divided; and that if such sale was not made within two years, the said Garrison would surrender any and .all claims he might have to said land, to the said Bowmans.

Defendants in error allege that they are ready, able, and willing to transfer to the ■said Garrison by general warranty deed an undivided half interest in said three sections ■of land, provided he will pay them in cash ■one-half of the first cost of said land to Pierce, viz., $9,600, plus the $1,800 excess taken by the defendant J. H. Garrison, with •6 per cent, interest from February 14, 1910, to November 29, 1911, and at said date allow J. H. Garrison a credit for said two notes of $1,526.33 each, with 8 per cent, from their date to November 29, 1911. It is admitted that on or about November 29th Garrison turned over to them, as collateral security, the two Olemmer notes, but they allege that they were a second lien on the half section of land for which they were given; that they were forced to pay off the prior lien in order to protect said notes; that the prior lien was to secure $1,666.67, with 8 per cent, interest thereon for several years; that in order to protect the two Olemmer notes, they were compelled to buy said land and pay off said first lien.

Other pleadings were filed, the substance of which it is not necessary to be stated here.

On a trial before the court it was decreed that Swinson recover the title and possession of the three sections of land; that J. H. and W. L. Garrison take nothing by reason of their cross-action on the two Olemmer notes; that J. H. and O. P. Bowman take nothing as against Garrison, either on the $1,000 note or the two notes for $4,000 each. The judgment further decreed the cancellation of the contract dated February 8, 1910, and also the deed from J. H. to W. L. Garrison. The said contract of February 8, 1910, made an exhibit to plaintiff’s pleadings, stipulates that J. H. and O. P. Bowman have taken over the contract made between Pierce and Garrison, for the three sections of land, at the price of $12.50 per acre; one-third of the purchase price to be paid in cash and the balance in one and two years, respectively, with 6 per cent, interest. Said sections of land to be deeded to J. H. and O. P. Bowman. It is recited that J. H. Garrison has a half interest in said land; that J. H. Bowman has a fourth, and C. P. Bowman a fourth, interest; that the selling price of said land should be agreed upon by all of the three interested parties. It is further stipulated that the Bowmans are to pay to Pierce in cash $5,000; that Garrison is to pay $3,000, and agrees to pay over to the Bowmans $1,000 with 6 per cent, interest, making them equal in the cash payment of $8,000; that said money was to be paid to the Bowmans out of the first cash received on a sale of any part of the land described.

It is insisted under the first and third assignments of error that, even though the representations made by Garrison as to the cost of the property were fraudulent, it is not actionable unless the petition also alleged that the property was not worth the sum of $12.50 per acre. We do not so understand the law. There seems to be some conflict in the authorities upon this question, but by the weight of authority, where the vendor misrepresents the cost of the land to him and the purchase price in a sale by him is measured by tjie cost price, it constitutes actionable fraud. Kohl v. Taylor, 35 L. R. A. (N. S.) 177, note 3, and authorities there cited. The rule is announced in this note, page 185, that when representations as to the cost of property are made by a person purchasing jointly for himself and another, or by a person turning property already acquired over to an association, of which he is a member, such representations are statements of fact, which may be properly relied upon, and, if false, will support an action for fraud. It is alleged and shown in this record that a confidential relationship existed between the Bowmans and Garrison, and under the allegations the general demurrer to the second count should not have been sustained.

By their second assignment of error, appellants insist that the court erred in overruling their exception, on the ground that the plaintiff’s pleadings showed a misjoinder of parties and causes of action. We believe the court was correct in overruling the exception. There was such a relationship existing between the various transactions involved in this suit and the rights of the parties were so interwoven that they should have been settled in the same action. Before Swinson could recover it was necessary that the deed from J. H. to W. R. Garrison be set aside, and that the rights of J. H. Garrison in the land, as fixed by the contract of February 8, 1910, should be determined. The Bowmans having executed a warranty deed to Swinson, were interested in the controversy between Swinson and Garrison, to the end that the title which they had warranted might be made clear. The matters might have been settled in two separate actions, but it has always been the policy of Texas courts to avoid a multiplicity of suits.

The fourth assignment of error must be sustained. The defendants in error pleaded that they were induced to purchase the land by reason of the false representations made to them by J. H. Garrison as to its cost. The record shows that after they had acquired knowledge of the fraud which had been perpetrated upon them, they paid off the remaining notes, and afterwards sold the land to Swinson, thus affirming the contract in toto. Plaintiffs in error excepted to the whole of the second count of the amended petition, because it appeared that defendants had affirmed the contract with knowledge of the fraud. Under these conditions they could not rescind the contract and have it canceled, depriving Garrison of his rights thereunder. Their remedy was a suit for damages. Grabenheimer v. Blum, 63 Tex. 369. According to the rule announced in Hall v. Grayson County National Bank, 36 Tex. Civ. App. 317, 81 S. W. 762, the Bowmans were entitled to the benefit of the contract they had made with Garrison. According to this contract, they were entitled to a half interest in the three sections of land, at the price of $10 per acre, but by reason of the fraud of Garrison they were forced to pay $12.50 per acre. Under the rule announced in the last-named case; the measure of their damages should be the difference between the price which .Pierce had agreed to sell the land to Garrison for — that is $10 — and the amount which the Bowmans actually paid for the land.

For the reasons stated, we think the court erred in canceling the contract of February 8, 1910, as between the Bowmans and Garrison. In our opinion the court also erred in decreeing that J. H. Garrison should recover nothing against the plaintiffs by reason of their conversion of the E. J. Clem-mer notes. It seems to be conceded that these notes were placed in the hands of J. H. and O. P. Bowman as collateral security, and while the Bowmans testified that Garrison agreed to relinquish all claims to the land, provided he did not succeed in selling the three sections within two years from the date of the agreement, no one contends that he was to surrender the Olemmer notes. In the adjustment of the equities between the parties, the Bowmans should account to Garrison for the amount of said notes.

For the errors pointed out, the judgment is reversed, and the cause remanded.
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author: CARL, J.

text:
    SELIGMANN v. SONKA.
    (No. 5601.)

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 26, 1916.
    Rehearing Denied Feb. 23, 1916.)
    1. Indemnity 15 — Liabilities oe Tenant —Injury to Pkoberty — Action—Pleading.
    A petition alleging that plaintiff consented to defendant’s occupancy of a shed on condition that in case of loss by fire defendant would be responsible, and that the defendant then promised that he would be responsible for such damage, and that, relying on that promise, plaintiff consented to the use of the shed, and that the use was a valuable right, shows a good cause of action based on the special contract of the tenant to indemnify the landlord in case of loss by fire, since it sufficiently alleges the contract.
    [Ed. Note. — For other eases, see Indemnity, Cent. Dig. §§ 36-40, 42-47; Dec. Dig. ⅞⅜=>15.)
    2. Indemnity ®=>3 — Contract — Consideration — Sueeiciency.
    Where plaintiff permitted the defendant to use a building of. his temporarily for the purpose of drying cotton, and the defendant agreed to indemnify him in case of loss by fire, the fact that the liability greatly exceeded the value of the use of the building did not vitiate the contract, since the liability was remote and contingent, and the use present and certain.
    [Ed. Note. — For other cases, see Indemnity, Cent. Dig. §§ 2-6; Dec. Dig. <§==3.]
    3. Indemnity t@=»15 — Contract—Evidence.
    Evidence held to show that a tenant using a building with the permission of the landlord entered into a special contract to indemnify the landlord for loss in case of fire.
    [Ed. Note. — For other eases, see Indemnity, Cent. Dig. §§ 36-40, 42-47; Dec. Dig. <£=>15.]
    Appeal from District Court, Guadalupe-County; M. Kennon, Judge.

      Action by Joseph. Sonka against Julius Sel-igmann. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Greenwood & Short and Dibrell & Mos-heim, all of Seguin, for appellant. Terrell, Walthall & Terrell, of San Antonio, and H. M. Wurzbaeh, of Seguin, for appellee.

      Application for writ of error .pending in Supreme Court.

   CARL, J.

Joseph Sonka sued Julius Selig-mann in the district court of Guadalupe county for the sum of $2,194, with 6 per cent, interest thereon from March 7,1914, and, upon findings in response to special issues, judgment was entered in favor of Sonka for $1,-067, from which judgment this appeal is prosecuted.

The gist of the cause of action is set forth in the following part of the petition:

“That some time in the latter part of February, and prior to the 7th day of March, 1914, the defendant, Julius Seligmann, came to this plaintiff and asked his permission to use a building owned by plaintiff to pick some damaged cotton which the said Seligmann had purchased. Plaintiff refused to grant said permission, stating that he was afraid that said cotton might catch fire and the building be destroyed. Defendant then asked for the use of the shed for said purpose, and plaintiff agreed to the use by defendant of same, on condition and for no other consideration than that, should said property catch fire and destroy the warehouse, shed, and other property above described, or certain of said property, defendant would be responsible therefor, and said Seligmann then and there told and promised this plaintiff that he, the said Seligmann, would be responsible for all damage that might be sustained by reason thereof, and that, relying on said promise and agreement on the part of the said Seligmann, this plaintiff consented for him to use the said shed; that the right to use said shed was a valuable right at said time and place, and said Seligmann, by his promise to be responsible for any damage that might be occasioned to any of the above described property by reason of fire, became liable and bound himself to pay to the said Sonka, in the event of the injury and destruction of the said premises and property by fire, the reasonable value thereof.”

It was also alleged that the defendant was negligent in failing to select x-easonably safe, prudent, and responsible employes to do and perform his work and in failing to supervise the work of such employés, so as to guard against the happening of fire. The defendant directed a general demurrer at this cause of action, the overruling of which is made the basis of the first assignment of error.

Appellant contends that the allegations show no definite contract or agreement to become responsible in case the shed should be destroyed by fire; and because it was not alleged to have been within the contemplation of the parties that the responsibility was as far-reaching as claimed in this case. In other words, the responsibility assumed was too indefinite. In a proposition subjoined to this assignment it is asserted that the consideration is so inadequate and out of proportion to the responsibility alleged to have been undertaken as to make the contract unenforceable, and that a contract is not established until it is shown that the minds of the contracting parties met in an agreement. This petition shows unquestionably that the parties agreed that for the use of the building appellant undertook and agreed to become responsible for the loss of the building by fire while he was using it. The damage accruing may have been out of proportion to the benefits he received, but he so contracted. The value of the use of the building was doubtless relatively very small. It is so as between the premium paid on an insurance policy and the loss occasioned by a fire. But the use was a certain present value, while the liability for loss by fire was remote and contingent, just as in the case of a fire insurance company, which for a small sum undertakes to insure the owner against loss by fire. If the amount of the policy were a certain fixed liability, the premium would be out of all proportion. But it is evidently considered between the parties that the certain value given is equal in value to the contingent liability, in ease of fire. Appellant received the use of the building, for which he was to pay nothing, except in case of loss by fire. This contingency unfortunately happened, and when it did happen there is no more reason to say that the consideration was inadequate than there would be for contending that an insurance company should not be held liable, in case of fire, because the premium paid was out of proportion to the liability claimed. Appellant could probably have obtained insurance against loss by fire for what the use of the building was worth. We are of the opinion that the petition stated a good cause of action, and the assignment is overruled.

And the court did not err in refusing to instruct a verdict for the defendant, “because plaintiff’s statement of the contract or agreement upon which the cause of action was based did not show any contract or agreement between plaintiff and defendant whereby defendant obligated himself to pay plaintiff the value of all property destroyed by fire,” etc. The substance of the plaintiff’s testimony on this matter is:

“I told Mm [Seligmann] that it is a costly building [the dance hall]. I wouldn’t lease for a purpose like that; then we went over to the building and looked at it, and then went out and went up to the house. Then I told him I got a shed there; just at present I haven’t got any use for it. If you want it, you can get that; but I am scared on account of fire. I don’t carry any insurance. He said : ‘Tes, but don't be scared about that. I will guarantee it to you for any damage.’ Then we went across the street, and vent over the shed, looked at the shed, and he just says: ‘You got plenty of room here, if you want to store something in it; it is plenty room. I just want to store a couple of bales of cotton in it, and carry it in the sun and dry it; take it out in the sun and dry it. It won’t be no danger because the cotton is wet.’ And that was all. * * * Then I suggested to him the use of the shed. In regard to the rent, I told him I wouldn’t charge him anything if he would take care of it; I wouldn’t charge him any rent at all. I would make it for accommodation. Before the shed was rented, and right inside of the yard, back of the saloon, the conversation took place, wherein Mr. Seligmann agreed to guarantee me against damage by fire.”

Again:

“I would let you have the shed for the cotton, but I am scared on account of fire. I did tell him that I would not let him have the hall, or the pavilion, because it was occupied as a storeroom, and because I was afraid of fire. I wouldn’t let him have no hall, because it is danger, a building like that, for that kind of stuff. I said, T am afraid on account of fire; 1 wouldn’t let you have it;’ and he said, ‘Joe, don’t be scared; I will guarantee to you any damage.’ That is all that was said about fire, or a guaranty. When we got down to the shed, and Mr. Seligmann looked at it, he says, T don’t bring much cotton in here; it won’t take much space;’ and he asked me for the roofing. I had the roofing piled up. He said, ‘I will put it under the cotton.’ He just took a little space. There was a space of about 20 by 30. He could place about 7 or 8 bales on that space. He just wanted space for 7 or 8 bales.”

Appellee was corroborated by other testimony as to the contract, and, even if he had not been, the finding of the jury is conclusive that the contract was made. Hugh Ram-age testified:

“Mr. Sonka spoke about fire while they were talking there, and Mr. Seligmann replied: ‘That’s all right, Joe; I will be responsible for that.’ That was before Seligmann took possession of the shed, and before any cotton had been hauled there. Mr. Seligmann told Mr. Sonka in my hearing.that he would be responsible for fire. He said, ‘Joe, I will take care of that.’ ⅜ * * ¶⅛ ¡s over there; yes, there is the old shed over there;’ and they walked over there. Mr. Sonka said, ‘It will be a better place for drying the cotton, and I won’t charge you any rent, but you will be responsible for fire;’ and Mr. Seligmann said, ‘Don’t worry, Joe; I will take care of that.’ ”

There is no merit in any of appellant’s assignments, and they are overruled. The contract was not only sufficiently alleged, but was established by competent evidence. There was sufficient consideration, and, considering the character of liability incurred, the benefits received were not out of proportion to the obligation assumed.

The judgment is affirmed.
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