author: HALL, J.

text:
    BRADY-NEELY GROCER CO. v. DE FOE et al.
    (No. 642.)
    (Court of Civil Appeals of Texas. Amarillo.
    July 4, 1914.
    Rehearing Denied Oct. 10, 1914.)
    1. Appeal and Error (§ 1040’’) — Haemless Eeeoe — Rulings on Pleadings.
    In an action by a firm for wrongful attachment, an assignment of error complaining of the overruling of an exception to allegations as to damages to the good reputation and credit of one of the partners, on the ground that such damages were recoverable by him alone, and not by the firm partnership, was without merit, where no exemplary damages were recovered, as such allegations were intended as a basis for exemplary damages.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig, § 1040.]
    2. Attachment (§ 373) — Wrongful Attachment — Actions—Petition.
    In an action for wrongful attachment of a stock of merchandise, the petition alleged that plaintiffs had no later inventory than one taken about two weeks before the attachment, and had not been able to obtain one since the attachment ; that no other inventory was ever made by any one; that in the suit in which the attachment was issued the property was not described by items, nor in the return of the writ of- attachment nor the order of sale; that, if the officers made an inventory, it was incorrect and incomplete, and made after a great deal of the property attached had been wrongfully removed from the store; and that it was made by incompetent persons under defendant’s direction or by interested persons not acquainted with the value of the goods. It also showed that part of the goods had been lost by a burglary, and theré was attached thereto an itemized statement of the goods in the store two weeks before the attachment, alleged to be correct, except that certain goods had been added and sold. It appeared that defendant made an inventory, the constable not being present, but never filed it in court. Held, that an exception for failure to show the articles removed from the store and their value, or those remaining in the- store and their value, was properly over-, ruled, as one party is never required to allege facts peculiarly within the knowledge of the adverse party, and the fact of the burglary relieved plaintiffs from making more specific allegations.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1356-1362, 1395-1397; Dee. Dig. § 373.]
    3. Attachment (§ 374) — Wrongful Attachment — Actions—Petition.
    In an action for wrongfully suing out an attachment on the ground that plaintiffs were about to dispose of their property to defraud creditors, allegations in the petition that plaintiffs were indebted to defendant for part of the purchase price of the stock of goods -attached to the amount of $1,400, that they had entered into an agreement that such sum should not be paid until a certain date, that they were to execute notes and a mortgage to secure them, covering furniture, fixtures, tools, and property having a total value of approximately $1,900, and convey certain lands, to be credited at an' agreed price in part payment for the goods, and that these agreements constituted one entire contract, were not subject to an objection that they were immaterial, irrelevant, and prejudicial, as they were proper to show the existence of malice and to rebut the grounds of attachment set up.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1363-1372, 1392; Dec. Dig. § 374.]
    4. Set-Off and Counterclaim (§ 29) — Availability in Action foe Unliquidated Damages.
    Under Rev. St. 1911, art. 1330, providing that the preceding article relative to set-offs in actions for unliquidated or uncertain damages founded on a tort or breach of covenant shall not prevent defendant from pleading in set-off any counterclaim founded on a cause of action arising out of, incident to, or connected with plaintiff’s cause of action, in an action for wrongful attachment of a stock of goods, a judgment in favor of the attaching creditor in the attachment suit for the purchase price of the goods was a proper set-off.
    [Ed. Note. — For other cases, see, Set-Off and Counterclaim, Cent. Dig. §§ 49-51;' Dec. Dig. § 290.]
    5. Judgment (§ 883) — Set-Off of Judgments — Alleging Credits in Defendant’s Favor.
    In an action for wrongful attachment of a stock of goods, plaintiffs had a right to plead a judgment recovered by defendant in the attachment suit for the purchase price of the goods, and ask that it be credited against their claim; this not being a plea of counterclaim and set-off, but merely an allegation of facts entitling defendant to a credit.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1669-1688; Dee. Dig. § 883.]
    6. Appeal and Error (§ 1040) — Harmless Error — Ruling on Demurrer.
    In an action for wrongful attachment, any error in overruling exceptions to allegations of the petition that the judgment recovered in the attachment suit was rendered on a debt not due was cured by the court’s instruction that the former judgment was res judicata of that issue.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089^4105; Dec. Dig. § 1040.]
    7. Attachment (§ 21) — Grounds—Necessity of Existence When Attachment is Issued.
    An attachment must stand or fall according to the facts existing at the date of its issuance, and cannot be cured by a subsequent event.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 54^60; Dec. Dig. § 21.]
    8. Attachment (§ 380) — Wrongful Attachment — Instructions — Conformity to Pleading and Evidence.
    Where, in an action for attaching a stock of merchandise, plaintiffs alleged that defendant, its agents and officers, used the writ in an oppressive and harsh manner,, and that it could nave collected its debt without closing plaintiffs’ store, and there was evidence that the debt amounted to $1,400, that goods to the value of $3,200 were taken under the writ, and that after a burglary, and after the sale of perishable goods, the goods remaining were worth $2,685 and were actually sold for $1,755, the issue as to an excessive levy was properly submitted to the jury.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1373-1375; Dee. Dig. § 380.]
    9. Appeal and Error (§ 216) — Reservation of Grounds of Review — Instructions— Necessity of Requesting.
    In an action for wrongful attachment, any error in failing to charge that plaintiffs could not recover if either of the grounds of attachment set out in the affidavit were true was waived by failing to request a special charge.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216; Trial, Cent. Dig. § 627.]
    10. Attachment (§ 374) — Wrongful Attachment-Attachment Wrongful as to One of the Attachment Debtors.
    In an action for wrongfully attaching a stock of goods owned by a firm, where there was sufficient evidence to sustain a finding that the managing partner, who was the only partner who at that time had invested any money in the business, was not trying to defraud the firm’s creditors by holding a discount sale, a verdict for plaintiffs was supported by the evidence, though the other partner did not testify as to his intention in making the sale, since one partner could not make an unlawful or fraudulent disposition of the firm assets without the consent of the other, and, if the attachment was wrongful as to the one partner, the verdict and judgment should be sustained.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1363-1372, 1392; Dec. Dig. § 374.]
    11. Attachment (§ 381) — 'Wrongful Attachment — Verdict — Form and Suffi-cienct.
    In an action for wrongful attachment, in which plaintiffs pleaded a judgment recovered by defendant in the action in which the attachment was issued, and asked that it be credited against their claim, a verdict for plaintiffs “in the sum of $930, with interest, * * * as actual damages over and above the principal and interest of the judgment,” was a sufficient finding to warrant the court in decreeing the cancellation of the former judgment in defendant’s favor.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. § 1401; Dec. Dig. § 381.]
    12. Attachment (§ 374) — Wrongful Attachment — Admissibility ox Evidence.
    In an action for wrongful attachment of a stock of merchandise purchased by plaintiffs from defendant, evidence as to the particulars of the trade between the parties, and as to the agreement showing how payments had been made, and in what way the balance due was to have been paid, was properly admitted.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1363-1372, 1392; Dee. Dig. § 374.]
    13. Attachment (§ 374) — Wrongful At-tachmentAdmissibility of Evidence.
    In an action for wrongfully attaching a stock of merchandise, where defendant had insisted that the act of one of the plaintiffs in taking money from a cash drawer in their store immediately before the attachment tended to show an intent to dispose of the goods for the purpose of defrauding creditors, he was properly permitted to testify that he used the money to pay bills owing by plaintiffs when the attachment was levied.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1363-1372, 1392; Dee. Dig. § 374.]
    Appeal from District Court, Potter County; Jas. N. Browning, Judge.
    Action by Louis De Foe and another against the Brady-Neely Grocer Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Madden, Trulove & Kimbrough and W. E. Gee, of Amarillo, for appellant. Synnott & Underwood, of Amarillo, for appellees.

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

      For other cases see same topic and section NUMBER in Dec. 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

   HALL, J.

This action was instituted by appellees, De Foe and K. C. Stubbins, partners, doing business under the firm name of De Foe & Stubbins, to recover from appellant both actual and exemplary damages for the wrongful suing out and levying of a writ of attachment by appellant upon certain goods belonging to appellees. A trial before a jury in the district court of Potter county resulted in a verdict and judgment for appellees for actual damages in the sum of $930, with 6 per cent, interest from February 1, 1910, over and above the principal and interest of a judgment which had been previously rendered in the same court and in favor of the appellant against the appellees; the former judgment being based upon an account for goods sold by appellant to appellees.

The petition alleged that Louis De Foe had established a good reputation and credit as a merchant, and that such reputation, credit, and standing constituted the property of the partnership of the value of $15,000. This allegation was excepted to upon the ground that the alleged damage to the credit and reputation of De Foe, if any, was recoverable by him alone and not by the partnership. This action of the court is questioned by the first, second, and sixth assignments. The allegations were intended as a basis for exemplary damages, • and, since no such damages were recovered, the assignments are without merit.

The petition alleged that they had no later inventory than one taken about two weeks before the .attachment, and that they had not been able to obtain one since the attachment; that no other inventory had ever been made by any one; that the property was not described by items in the previous suit between the parties nor in the return of the writ of attachment nor of the order of sale; that, if the officers made an inventory, it is incorrect and incomplete and did not contain all of the property, and only stated its probable value at the time, and, if made at all, was made after a great deal of the property taken by defendant from the plaintiffs under attachment had been wrongfully removed from the store before the taking of the above inventory; that it was made by incompetent persons under the direction of the defendant or by interested persons not acquainted with the value of the same and was incomplete and incorrect. The objection was because the allegation failed to show the articles removed from the store and their value, or the articles remaining in the store and their value. There was attached to the plaintiffs’ petition an itemized statement of all the goods in the store two weeks before the attachment, and it is alleged that such statement is correct, except that certain goods had been added and sold. It seems that an inventory was made by appellants soon after the attachment; the constable not being present when it was made. It had never been filed in court, but was retained by appellants until the trial. We think the court was correct in overruling this exception. One party is never required to allege facts peculiarly within the knowledge of the opposite party. The petition showed that the house had been left open and a burglary committed in the meantime, which relieved them from making more specific allegations. Jesse French Piano Co. v. Phelps, 47 Tex. Civ. App. 385, 105 S. W. 225; Schneider v. Ferguson, 77 Tex. 572, 14 S. W. 154.

Appellee further alleged that about the 20th day of January, 1910, appellees were indebted to appellants for part of the purchase price for the stock of goods to the amount of $1,400; that they entered into a contract that such sum should not he paid until after the 1st of February, 1910; that plaintiffs were to execute notes, due in SO, 60, and 90 days, and a mortgage to secure the notes covering furniture, fixtures, tools, and property belonging to appellees to the total value of $1,932.25; that De Foe and his wife should execute a deed to a certain tract of land in New Mexico, .at an agreed price of $1,300, which should be credited at that price in part payment for said goods; and that these agreements constituted one entire contract. The objection urged to this allegation was that it was immaterial, irrelevant, and prejudicial to defendant. These facts were properly alleged to show the existence of malice in levying the attachment and to rebut the grounds of attachment set up in the affidavit.

It is urged that fhe court erred in overruling the exception of defendant to that portion of the petition wherein appellees set up the existence of the judgment previously obtained against them by appellants. After setting up the judgment, appellees allege their willingness to allow the amount due on said judgment to be deducted from the amount which might be found to be due plaintiffs in this action, and ask that said judgment be canceled and a decree rendered herein for the difference after deducting same from the amount rightfully due plaintiffs from said judgment. The first proposition under this assignment is that an unliquidat-ed claim for damages cannot be set off against a judgment previously rendered. R. S. 1911, art. 1330, permits a set-off under such circumstances, if the counterclaim is founded on a cause of action arising out of or incident to or connected with the plaintiff’s cause of action. The judgment pleaded by appellees had been rendered against them in favor of appellant for the identical stock of goods attached. It appears from the record that appellees filed a cross-action for the purpose of recovering damages for the wrongful attachment in the original suit, but subsequently withdrew this pleading, permitting judgment nil dicit to go against them for the amount claimed, and brought this action as an independent suit to recover their damages. The mere fact that this is an independent suit does not take it out of the statute referred to. It will be noted that our statute relating to counterclaims and set-off gives the defendant the right to plead, the counterclaim, and we have not been able to find a case in which the plaintiff has so magnanimously pleaded the set-off of his opponent. It is not necessary to determine whether 'the plaintiff has such right, but we hold that the plaintiffs had the right to set up the judgment and ask that the same be credited against their claim, and we know of no rule of law prohibiting them from doing so. If the suit had been based upon a promissory note, upon which payments had been made,, good pleading would have required plaintiff to show the dates and amounts of the credits to which defendant was justly entitled. We construe this plea to be merely an allegation of certain facts entitling appellant to a credit rather than a plea of counterclaim and set-off. The question presented by this assignment is a novel one, and we have not been able to find an authority directly upon it. The fact that the allegation may have prejudiced appellant by informing the jury that appellants had previously obtained the judgment set up does not appear from the record, and in our opinion would not change the rule. What is here said disposes of the seventh, tenth, eleventh, nineteenth and twenty-sixth assignments of error.

The errqr of the court complained of under the eighth and ninth assignments, if indeed it could properly be called an error, in overruling the exceptions to that part of the petition wherein it is alleged that the former judgment had been rendered upon a debt not due, was cured by the instructions of the court that such former judgment was res judicata of that issue.

The twelfth assignment, complaining, of the charge of the court, is without merit. Under this assignment appellant contends that, if the ground of the attachment, set forth in the affidavit, was true at the time the attachment was levied, then the levy was lawfully made, even though the ground upon which the attachment was based might not have been true at the time the affidavit was made. In 3d Stand. Proc. 349, it is said:

“The attachment statutes in the different jurisdictions prescribe the grounds upon which a creditor may pursue the remedy by attachment in a suit against his debtor, * * * and must stand or fall according to the state of facts existing at the date of its issuance, and cannot be cured by a subsequent event.” 4 Cyc. 410; Hobbis v. Greenfield, 103 Ga. 1, 30 S. E. 257; Dennison v. Soper, 33 Iowa, 183; Boyd v. Labranche, 35 La. Ann. 285; Todd v. Shouse, 14 La. Ann. 426; Thompson v. Watson, 1 Man. Unrep. Gas. (La.) 220; Barth v. Graf, 101 Wis. 27, 76 N. W. 1100.

The thirteenth assignment of error is overruled. We have read the two paragraphs of the charge referred to, and do not think the fo.urth paragraph is subject to the objection of repeating and emphasizing the issue of wrongfully suing out the attachment. While the expression “wrongfully suing out the attachment” occurs in both paragraphs, they are used in different connections, and we think without prejudice to appellant.

The fourteenth fifteenth, sixteenth, and eighteenth assignments complain of the charge of the court upon the issue of excessive levy, and insist that there is no evidence upon which to base such a charge. The record shows that the officer acted under the personal supervision and direction of one of appellants. The debt amounted to $1,400. Goods to the value of $3,200 were taken under the writ according to plaintiffs’ testimony. According to the testimony of one of appellants, the goods remaining after the burglary and after certain perishable groceries had been sold amounted to $2,685. Appellants had agreed to take a mortgage on the fixtures alone to secure its indebtedness. Appellants actually received $1,755 for the property remaining after the burglary and after the sale of fresh meats, vegetables, and other perishable stock. Plaintiff alleged that the defendant, its agents and officers, used the writ in an oppressive and harsh manner; that it could have collected its debt without closing said store, and there was some evidence tending to sustain such allegation. We think the charge was properly given.

The seventeenth assignment complains of the failure of the court to instruct the jury that, if they should find either of the grounds for attachment set out in the affidavit to be true, then the verdict should be for the defendant, upon the question of the wrongful suing out of and the levy of said attachment. No special' charge was asked upon this point, and the error, if any, was waived.

It is urged under the twentieth assignment that because R. S. Stubbins, one of the partners and defendants in attachment, did not testify with reference to his intention in making the sale, and the burden being upon plaintiffs in this suit to prove the falsity of the grounds for the attachment, appellees have failed to establish their right to a judgment; and it is further insisted that the preponderance of the testimony was that Stubbins intended that the conversion of the stock into money was for the purpose of placing it beyond the reach of their creditors. The record shows that De Foe told Brady he was going to put on a discount sale for the purpose of getting acquainted with the trade in Amarillo, and it appears that Brady talked to De Foe only. In Brady’s presence De Foe promised to close the store at 6 o’clock, and directed Stubbins to do so, ■ and offered to make affidavit that they were not trying to defraud their creditors; that De Foe was the managing partner of the firm; that he negotiated the trade, and that Stub-bins had not paid any actual cash into the partnership business; that the money which he expected to invest in the firm arrived the day after the attachment. We think the testimony before the jury was sufficient to sustain appellees’ contention. There is sufficient evidence to sustain the verdict of the jury as to the intention of De Foe. Without the consent of De Foe, Stubbins could not have made an unlawful or fraudulent disposition of the firm assets, and, if the attachment was wrongful as to De Foe, the verdict and judgment should be sustained. Weir Plow Co. v. Armentrout-Frazier & Chew, 9 Tex. Civ. App. 117, 29 S. W. 405; 28 S. W. 1045; Rabb v. White, 45 S. W. 850.

The verdict and judgment are not excessive. The verdict is as follows:

“We, the jury, find for plaintiffs in the sum of $930, with interest from February 1, 1910, to date, as actual damages over and above the principal and interest of the judgment.”

This is a sufficient finding to warrant the court in decreeing the cancellation of the former judgment.

The twenty-third assignment is without merit. The court did not err in permitting De Foe to detail the particulars of the trade with appellants and to state the agreement between the parties showing how payments had been made, and in what way the balance due for the stock was to have been paid; nor did the court err in permitting De Foe to testify that he used the money taken by him from the cash drawer immediately before the attachment in paying bills owing by appellees at the time the attachment was levied. Appellants had insisted that the act of De Foe, in taking the money from the cash drawer, was evidence tending to show the fraudulent intent, and his evidence was admissible in rebuttal.

Finding no reversible error in the record, the judgment is affirmed.


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    WILLIFORD et al. v. RICHARDS et ux.

    (No. 6640.)
    (Court of Civil Appeals of Texas. Galveston.
    July 1, 1914.
    Rehearing Denied Oct. 8, 1914.)
    Parent and Child (§ 2)—Custody of Child —Rights of Paeent.
    Where the father of minor children was able and willing to provide for and educate them, and worthy to be intrusted with their care, and not shown to have been neglectful of them, he was entitled to their custody as against relatives of their deceased mother, his first wife, with whom he had agreed to leave them.
    [Ed. Note.—For other cases, see Parent and Child, Cent. Dig. §§ 4-32; Dec. Dig. § 2.]
    Appeal from District Court, Tyler County; A. E. Davis, Judge.
    Action by A. W. Williford and others against C. W. Richards and wife. From judgment for defendants, plaintiffs appeal.
    Affirmed.
    Joe W. Thomas, of Woodville, for appellants. J. A. Mooney and S. W. Sholars, both of Woodville, for appellees.

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

       writ of error pending in Supreme Court.

   PLEASANTS, C. J.

This suit was brought by appellants A. W. Williford and wife, Lydia Williford, and Mrs. H. A. Fountain, a feme sole, against C. W. Richards and wife, Lizzie Richards, for the possession of Charlie Richards, a boy 10½ years old, and Hattie Richards, a girl 8 years old. The facts alleged by the pleadings and established by the evidence, succinctly stated, are as follows: Charlie and Hattie Richards are the children of appellee C. W. Richards and his deceased wife, Hattie Richards, who was the sister of appellant Lydia Williford and the daughter of appellant Mrs. H. A. Fountain. Mrs. Hattie Richards died about 8 years before the institution of this suit. At the time of her death the child Hattie was an infant and the boy Charlie about 2% years old. During her la.st sickness she requested her sister, Mrs. Williford, who had no children of her own, to take her children and raise them. This request was made in the presence of appellee C. W. Richards, and he acquiesced therein, and he and Mrs. Williford both promised her that her request would be complied with. For the first years after the death of Mrs. Richards the children were kept by Richards at his home. His mother-in-law, Mrs. Fountain, lived with him, kept house for him, and took care of the children. This arrangement continued until the spring of 1896, when, because, of the fact that Richards’ business kept him from home a great deal, it was agreed that Mrs. Fountain and the children should go to live with the appellants Mr. and Mrs. Williford. From that time until appellee Richards married his second wife, Lizzie Richards, both of the children were kept by appellants, who bestowed upon them the love and care of fond parents. Mr. and Mrs. Williford are educated and refined, are in good circumstances, and the children have been provided with every comfort, and their welfare and education given every attention. Richards has at all times contributed to the support of the children and is able to properly provide for and educate them. He has visited them whenever his business would permit, and has been an affectionate and attentive father. Appellants have spent more upon the children than he, but this has not been due to any failure on his part to do all that was necessary in this regard.

After the death of his first wife Richards qualified as survivor of the community estate. He has sold some timber from lands that belonged to the community and mortgaged other lands, but there is no evidence to justify the conclusion that he has, or will, squander the estate, or will defraud his children of any portion of their patrimony. He has made no report to the probate court of his management of the estate.

When he informed the appellants of his engagement to his present wife he told them that he would not take the children from them. After his marriage, however, he asked them to let Charlie come to live with him. This was agreed to by appellants, and the boy has been with his father most of the time for two years or more. The present Mrs. Richards is an English woman, and does not like the manners and customs of America, and desires to return to England to live. She and Richards have made several trips to England, and on one of these trips took the boy, Charlie, with them. Mrs. Richards does not appear to be a woman of affectionate disposition, but there is no evidence that she has ever been unkind to the boy, Charlie, and nothing to warrant a fear that she will treat the children unkindly. She is an educated woman of good character, and qualified for the duties of caring for and training the children. The little girl, Hattie, has never lived with her father since she was taken into the home of appellants, but has visited him several times since his marriage. She testified that she wanted to live with appellants; that she loved her father, but loved appellants best. There is evidence tending to show that appellee intends to sell his property here and take his family to England and live there for an indefinite time, if not permanently.

Upon the trial below the court instructed the jury to return a verdict in favor of defendants and upon the return of such verdict rendered a, judgment in favor of defendants on their cross-action giving them the care, custody, and control of both children.

Upon the facts before stated no other verdict than one in favor of plaintiff could have been properly rendered, and therefore the court did not err, as contended by appellants, in directing the jury to return such verdict.

The welfare and best interest of the child is the controlling question in cases of this kind, and it is well settled by our decisions that if the parent is not shown to be unworthy the care and custody of his child, or unable to properly provide for it, or will place it in surroundings that will endanger its welfare in some way, the best interest of the child will be subserved by placing it in the care and custody of the parent. There is no evidence in this case tending to show that appellee Richards is not entirely worthy to be intrusted with the care and custody of his children, or that his wife will not do her full duty in assisting him in caring for his children. He is not shown to have ever been neglectful of his children or wanting in bestowing upon them the affection and care of a faithful and fond parent. He is able to provide for and educate them, and cannot be denied the right to their care and custody because of his agreement with appellant to give them such care and custody. Agreements of this kind are not enforceable as contracts, and when the parent seeks to regain possession of his children through the courts his paramount right to their care and custody must be recognized and enforced in the absence of evidence showing his disqualification therefor. Legate v. Legate, 87 Tex. 248, 28 S. W. 281; State v. Deaton, 93 Tex. 243, 54 S. W. 901; Watts v. Lively, 60 S. W. 676; Hall v. Whipple, 145 S. W. 309; Parker v. Wiggins, 86 S. W. 788.

It would serve no useful purpose to discuss the several assignments of error presented in appellant’s brief. Our conclusion that under . the undisputed evidence no other verdict and judgment could have been properly rendered than one in favor of the defendants requires that the judgment be affirmed, and it has been so ordered.

Affirmed.


text:
    MONTGOMERY COUNTY v. TALLEY et al.
    (No. 6688.)
    (Court of Civil Appeals of Texas. Galveston.
    July 1, 1914.
    Rehearing Denied Oct. 8, 1914.)
    1. Counties (§ 70) — County Treasurer— Salary — Commissioners’ Court — Authority to Fix.
    Under Rev. St. 1911, art. 3875, providing that county treasurers shall receive commissions on moneys received and paid out, to be fixed by the order of the commissioners’ court, not exceeding a specified percentage, the commissioners’ court had no jurisdiction to pass an order fixing the compensation of a county treasurer at a salary of $600 a year.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 104^113, 115-117; Dec. Dig. § 70.]
    2. Counties (§ 69) — County Treasurer-Compensation.
    Where an order fixing a county treasurer’s compensation at a specified salary was void, the treasurer was entitled to receive the compensation established by Rev. St. 1911, arts. 3873, 3875, providing that the county treasurer shall receive a specified commission on money received and paid out, to be fixed by the commissioners’ court, but not to exceed $2,000 annually.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 104-115; Dec. Dig. § 69.]
    3. Counties (§ 69) — County Treasurer-Compensation — Void Order — Knowledge of Incumbent.
    Where a commissioners’ court, prior to defendant’s election as county treasurer, attempted by a void order to fix the salary of the office at $600 per annum, the fact that defendant knew when he became a candidate for the office and when he qualified that the court did not intend to allow him the compensation fixed by Rev. St. 1911, art. 3875, did not estop him from claiming such compensation so long as the court did not pass a legal order fixing his commissions, as directed by article 3875.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 104-115; Dec. Dig. § 69.]
    4. Constitutional Law (§ 140) — Officers (§ 100) — Obligation op Contracts — Implied Contract — Compensation of County Treasurer — Reduction Order — Validity.
    An order of a commissioners’ court attempting to change the compensation of the county treasurer, in so far as it attempted to reduce his compensation for past services, was void as impairing the obligation of the county’s contract to pay the treasurer the compensation allowed by law.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 336, 356-361; Dec. Dig. § 140; Officers, Cent. Dig. §§ 152-157; Dec. Dig. § 100.]
    Appeal from District Court, Montgomery County; L. B. Hightower, Special Judge.
    Action by Montgomery County against Robert Lee Talley and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    R. J. Sullivan and W. N. Foster, both of Conroe, for appellant. C. W. Nugent, of Conroe, and Lightfoot, Brady & Robertson, of Austin, for appellees.

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

   PLEASANTS, C. J.

This suit was brought by appellant against Robert Lee Talley, ex-treasurer of appellant county, and the sureties on his official bonds, to recover money received by him as county treasurer and alleged to have been wrongfully converted to his own use. Said defendant Talley, it is charged in the petition, converted and appropriated to his own use moneys belonging to plaintiff as follows: $603.33 during the period from November 14, 1910, to February 14, 1911; $1,236.32 from February 14, 1911, to May 13, 1911; $31.97 from May 14, 1911, to November 13, 1911; and $612.83 during the period from November 13, 1911, to November 16,1912. Defendant Talley answered by a large number of special exceptions, all of which were overruled, admitted his elections and qualifications as alleged by plaintiff, but denied generally and specifically that he had converted to his own use any sums of money belonging to Montgomery county, and specially alleged that there was never any valid or legal order entered of record by the commissioners’ court of Montgomery county • fixing the compensation of the county treasurer in the manner prescribed by law, and asserted the right of said defendant as county treasurer to retain the sum of 2% per cent, on receipts and like percentage on disbursements. He further alleged specially that the plaintiff was relying upon certain orders of the commissioners’ court of Montgomery county ■ attempting to reduce and limit the compensation of the county treasurer and alleged that such orders were void and of no force or effect. The trial in the court below without a jury resulted in .a judgment in favor of plaintiff for the sum of $11.81.

The evidence shows that appellee Talley was elected county treasurer of Montgomery county in 1906 and was re-elected in 1908 and again in 1910. He qualified for his first term on November 14, 1906. After his second election he qualified on November 16, 1908, and after his third election on December 8, 1910. His successor was elected in November, 1912, and qualified on November 16, 1912. During the first two terms of office of defendant he received as compensation for his services 2% per cent, on all receipts and disbursements, other than school funds, not exceeding, however, $2,000 per year on all funds, which compensation was allowed at the regular quarterly terms of the commissioners’ court of Montgomery county.

At the February term, 1910, and on March 30th of said year, the commissioners’ court of Montgomery county entered an order in words and figures as follows:

“It is hereby ordered by the court that the salary of the county treasurer, from and after December 10, 1910, shall be, and it is hereby fixed, at the sum of $600.00 per annum, and this action of the court was unanimous,” as is shown by the minutes of said court in Book -, page 586 thereof.

The defendant knew of the entry of this order at or about the time it was passed by the commissioners’ court and knew of its existence at the time he qualified as county treasurer on the 8th day of December, 1910.

The commissioners’ court of . Montgomery county, at its May term, 1911, and on June 8th of said year, entered an order in words and figures as follows:

“Under, and in conformity with, article No. 2467, Sayles’ Texas Civil Statutes [Rev. St. 1911, art. 3873], it is hereby ordered that the compensation of the county treasurer of Montgomery county for receipts and disbursements of moneys, other than school funds, be, and the same is hereby fixed at a commission of one-half of one per cent, on all moneys received by him and a like per cent, on all moneys disbursed by him; provided, however, that his total compensation for one year shall not exceed the sum of $600.00. It is further ordered that the compensation hereby provided shall apply and be operative, beginning on the first day of the treasurer’s present term of office and continuously thereafter until changed by the further orders of this court.”

The commissions on receipts and disbursements of the' office from November 14, 1910, to February 13, 1911, at 2% per cent., amounted to $603.64, and this .amount was retained by the appellee. Of this amount $527.73 was commissions on receipts and disbursements from November 14, 1910, to December 8, 1910. From February 14, 1911, to May 13, 1911, appellee retained commissions amounting to $1,236.30, which was 2Yz per cent, on receipts and disbursements for said period. From May 14 to June 8, 1911, he retained the sum of $31.69, one-half of 1 per cent, commission on receipts and disbursements for s^id period. From June 8 to November 13, 1911, he retained $36.75, one-half of 1 per cent, on receipts and disbursements for said period. From November 14, 1911, to November 13, 1912, he retained $611.81, one-half of 1 per cent, commissions on receipts and disbursements for said period. The reports of the appellee to the commissioners’ court for the quarters ending February 13th and June 8th, respectively, showing that he had retained commissions of 2Vz per cent, - on receipts and disbursements, were each rejected by the court “because he had retained as compensation 2Vz per cent, commissions and did not abide by the order of the court of March 30, 1910.”

The undisputed evidence shows that appel-lee knew when he became a candidate for re-election in 1910 that it was the intention of the commissioners’ court to reduce the compensation allowed by law to the county treasurer to not exceeding $600 per year. After the passage of the order of March 30, 1910, he stated that he would not become a candidate for re-election because the commissioners’ court had cut his salary so that he could not make a living out of the office, and announced that he would run for the office of county tax assessor. After making this announcement friends of the tax assessor, who was a candidate for re-election, raised a purse of $1,000 and presented it to appellee as an inducement to retire from the tax 'assessor’s race and again become a candidate for county treasurer. He accepted this money and was re-elei ted county treasurer.

From the foregoing statement it appears that appellee received as compensation for his services as county treasurer for the year beginning November 14, 1910, and ending November 13, 1911, the sum of $1,90S.3S, of which amount $1,839.94 was commissions of 2% per cent, on receipts and disbursements up to June 8, 1911, when the order of the commissioners’ court fixing his commissions at one-half of 1 per cent, was passed, and $68.84 was commissions of one-half of 1 per cent, on receipts and disbursements from June 8, 1911, to November 13, 1911. The contention of appellant is that appellee was only entitled to receive as compensation for his services for said year one-half of 1 per cent, commissions on receipts and disbursements after December 8, 1910, and for the time from November 14, 1910, to December 8, 1910 (24 days) 2i/se5 of $2,000, the maximum amount allowed him by law as yearly compensation.

This contention is based upon the theory that the order “of March 30, 1910, by which the commissioners’ court fixed the salary of the county treasurer from and after December 10, 1910, at $600 per year, was a valid order, and that if said order was not valid appellee knew when he accepted the office of treasurer and qualified therefor on December 8, 1910, that it was the intention of the commissioners’ court to reduce his compensation as county treasurer to $600 per year, and under these facts there was no implied promise on the part of the county to pay him 2% per cent, commissions, but he accepted the office relying upon the county to fix his compensation, which was done by the order of June 8, 1911.

We think the order of the commissioners’ court made on March 30, 1910, fixing the compensation of the county treasurer at a yearly salary of $600, was unauthorized and void. It is well settled that commissioners’ courts have only such powers as are conferred upon them by law expressly or by necessary implication. Bland v. Orr, 90 Tex. 492, 39 S. W. 558; Mills v. Lampasas County, 90 Tex. 603, 40 S. W. 403; Baldwin v. Travis County, 40 Tex. Civ. App. 149, 88 S. W. 480.

The only authority given the commissioners’ court to fix the compensation of the county treasurer is found in article 3873 of the Revised Statutes of 1911, which is as follows:

“The county treasurer shall receive commissions on the moneys received and paid out by him, said commissions to be fixed by the order •of the commissioners’ court as follows: For receiving all moneys, other than school funds, for the county, not exceeding two and one-half per cent., and not exceeding two and one-half per cent, for paying out the same; provided, however, he shall receive no commission for receiving money from his predecessor nor for paying over money to his successor in office.”

Under this article of the statute the commissioners’ court is expressly authorized and directed to fix the commissions of the county treasurer upon moneys received and paid out by him, and neither express nor implied authority is conferred upon such court to limit or fix the compensation of the county treasurer otherwise than by fixing the commissions to be paid him on receipts and disbursements. The order of March 30, 1910, before set out, does not fix the commissions of the county treasurer of Montgomery county, but provides that he shall receive a salary of $600 per year. We think it clear that a statute which directs the commissioners’ court to fix the compensation of an officer by allowing him commissions on moneys handled by him does not authorize such court to pay the officer a fixed yearly salary,.but on the contrary, by necessary implication, prohibits his being paid in this way.

The order of March 30, 1910, being void, the only law, prior to the order of the commissioners’ court of June 8, 1911, before set out, fixing appellee’s compensation, was article 3873 of the statute above quoted, and article 3875, which provides that “the commissions allowed to any county treasurer shall not exceed $2,000.00 annually.”

The commissioners’ court having railed to fix appellee’s commissions, he was entitled to receive the compensation provided by the statute until such compensation was changed by an order of the commissioners’ court fixing his commissions. Bastrop County v. Hearn, 70 Tex. 503, 8 S. W. 302; Hill County v. Sauls, 134 S. W. 267; City of San Antonio v. Tobin, 101 S. W. 269.

The fact that appellee knew when he became a candidate for the office and at the time he qualified as county treasurer that the commissioners’ court did not intend to allow him the compensation fixed by the statute did not estop him from claiming and retaining such compensation so long as the commissioners’ court failed to give legal effect to its intention by passing an order fixing his commissions as directed by the statute. However reprehensible it may have been for appellee to have received the $1,000 given him as an inducement to withdraw from the race for county tax assessor, that illegal transaction does not affect his right to the compensation allowed him by law as county treasurer.

The amount retained by appellee was not in excess of 2% per cent, commissions on moneys received and paid out by him prior to the Sth of June, 1911, and one-half of 1 per cent, subsequent to that date, and his entire compensation was less than $2,000 per year.

In so far as the order of June 8, 1911, attempted to change the compensation to which appellee was entitled for services rendered prior to the date of said order, it was void, because to give the order such retroactive effect would impair the obligation of the contract of the county to pay appellee the compensation allowed by law for such services. 29 Cyc. 1427; Hill County v. Sauls, 134 S. W. 267.

We think the trial court properly held that appellee had not converted any moneys of the county, and that the commissions retained by him, except the $11.81 excess for the year beginning November 14, 1911, and ending November 13, 1912, were allowed him by law.

We have not discussed appellant’s various assignments in detail, but in what we have said above have disposed of all of the material questions presented by the appeal. Each of the assignments has been considered, and none of them, in our opinion, should be sustained.

It follows that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.


author: CARL, J.

text:
    SOUTHERN GAS & GASOLINE ENGINE CO. v. ADAMS & PETERS.
    (No. 5286.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 7, 1914.
    On Motion for Rehearing, Oct. 28, 1914.)
    1. Sales (§ 121) — Rescission by Buyer — Waiver.
    The buyer of a traction engine, sold October, 1911, and guaranteed to be of the best workmanship and material and to develop 20 horse power who knew from January, 1912, that the engine was defective in power, and who attempted to repudiate the purchase, but who thereafter repaired it and used it until July in. harvesting a crop, and then took it apart to see what the trouble was, thereby waived his right to rescind for breach of the guaranty.
    [Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 296-301; Dec. Dig. § 121.]
    2. Evidence (§ 457)—Parol Evidence—Contract of Sale—Explanation of Terms.
    In an action to rescind a contract of sale of a traction engine guaranteed to develop 20 horse power, parol evidence as to whether It was to develop such power at the belt or at the drawbar was admissible, since it is not varying the terms of a written contract to explain what is meant by scientific or trade terms.
    [Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2104, 2107, 2108; Dec. Dig. § 457.]
    3. Sales (§ 130)—Action to Rescind—Issues and Evidence.
    In an action to rescind a contract for the sale of a traction engine guaranteed to develop 20 horse power upon a certain test, where the buyer did not plead that the test was ever demanded or made, evidence as to what was meant by 20 horse power as expressed in the contract, whether at the belt or drawbar, was inadmissible.
    [Ed. Note. — Eor other cases, see Sales, Cent. Dig. §§ 322-324; Dec. Dig. § 130.]
    4. Trial (§ 350) — Submission or Issues— Statute.
    In an action to rescind a contract for the sale of a traction engine guaranteed to be of the best workmanship and material and to develop 20 horse power, where the question whether the power was to be developed at the belt or at the drawbar was sharply contested, a special issue’as to the workmanship, material, and horse power, so framed that the jury could not answer it “Yes” or “No,” unless they found the same as to workmanship, material, and horse power, was erroneous, since the statute provision that the court, submitted the case upon special issues, shall submit all the issues made by the pleadings does not permit several questions which might receive different answers to be included as' one issue and submitted so as' to admit of but one answer to all of them.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 828-833; .Dec. Dig. § 350.]
    5. Trial (§ 350) — Submission of Issues — Converse of Proof.
    In such action, where there was a question whether the guaranteed horse power was to be developed at the belt or at the drawbar, the submission of the issue whether it had been established that it was to be tested at the draw-bar was sufficient, since, if the drawbar was meant, it would necessarily follow that the belt was not meant, and it would be unnecessary to submit the converse of that which has already been affirmatively given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. § 350.]
    6. Trial (§ 350) — Instructions—Issues.
    In an action to rescind the sale of a traction engine for breach of the guaranty that it was of the best workmanship and material and to develop 20 horse power, where the issue as to power was submitted, the seller was entitled to an answer whether the workmanship and material were as guaranteed, and whether it had refused to furnish new parts.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. § 350.]
    7. Sales (§ 179) — Acceptance of Defective Article — Liability for Price.
    Where a buyer of machinery accepts it in defective condition and undertakes to place it in good condition at the cost of the seller, he becomes liable for the price, less his necessary expenditure.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 456-468; Dec. Dig. § 179.]
    8. Evidence (§ '413) — Parol Evidence — Form of Contract.
    In an action to rescind a contract for the sale of a traction engine, where no fraud, accident, or mistake in the execution of the contract was pleaded, evidence that the form of the contract between the parties was a form used for stationary engines and not for traction engines was inadmissible, since the contract could not be varied or set aside by oral testimony.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1855-1857, 1859, 1860; Dec. Dig. § 413.]
    9. Evidence (§ 131) — Relevancy— Similar Facts.
    In an action to rescind a contract for the sale of a traction engine guaranteed to develop 20 horse power, evidence that another traction engine, operating in a field two miles distant from the engine in question, would pull 12 disc plows, while the one in controversy was pulling 6, was inadmissible, where the other engine was of a different horse power and make, had a different driver, whose comparative skill was not shown, and where it was not shown that the two engines were operating under the same conditions as to soil, etc.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 399-402; Dec. Dig. § 131.]
    10. SaIes (§ 442) — Breach of Guaranty-Damages.
    In an action to rescind the sale of a traction engine for breach of guaranty to develop 20 horse power, where the seller was told that the buyer wanted it for use in raising and harvesting potatoes, the difference between their market price at the time they should have been gathered and the price at the time they were harvested on account of defects in the engine, taking into account their loss by rot and the fluctuations of the market, were proper for consideration on the question of damages.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1284-1301; Dec. Dig. § 442.]
    11. Sales (§ 130) — Breach of Guaranty-Question for Jury.
    In such action, held, on the evidence, that the question whether the buyer used due diligence to protect himself against loss after his discovery of the defects was for the jury.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. Si 322-324; Dec. Dig. § 130.]
    12. Sales (§ 442) — Action to Rescind — Damages.
    In an action to rescind the sale of a traction engine guaranteed to be of the best workmanship and material and to develop a certain horse power, the measure of damages as to the engine itself was the difference between the contract price and what it was worth when received.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1284-1301; Dec. Dig. § 442.]
    13. Sales (§ 130) — Action to Rescind — Evidence.
    In an action to rescind a contract for the sale of a traction engine for breach of guaranty as to materials, horse power, etc., where defendant had testified that the seller’s agent had refused to deliver a magneto, unless defendant would sign purchase-money notes, testimony of the seller’s witnesses that they had not given such agent such instructions when they sent the magneto to the buyer by him was relevant.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 322-324; Dec. Dig. § 130.]
    On Motion for Rehearing.
    14. Appeal and Error (§ 644) — Bills of Exception — Waiver.
    Under rules 40 and 41 of Courts of Civil Appeals (142 S. W. xiv), authorizing the court to rely upon briefs for a proper presentation of the case on appeal without an examination of the record, and providing that whatever of appellant’s statements in his! brief is not contested will be considered as acquiesced in, a party who in his brief does not object that there are no bills of exception in the record to the action of the court complained of in the assignments, or until his motion for a rehearing, thereby waives such objection, and the court may consider the assignments.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2795-2798; Dec. Dig. § 644.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by the Southern Gas & Gasoline Engine Company against Adams & Peters, with cross-action by defendant. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Bryan & Bryan, of Houston, for appellant. Fisher, Campbell & Amerman, of Houston, for appellee.

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

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

   CARL, J.

The appellant, Southern Gas & Gasoline Engine Company, sued Adams & Peters, appellees, to recover a balance due on the purchase price of one 20 horse power Flour City traction engine sold by appellant to appellees in October, 1911. Appellees answered and filed a cross-action, alleging that the engine had failed to develop 20 horse power traction pull and was defective in material and workmanship.

It was alleged that appellant contracted to sell them “a 20 horse power traction engine,” by which was meant (as commonly known and understood, especially among machinery men) to mean one which would develop a traction force or power when in operation of “20 horse power”; and further that said engine was warranted to be of the very best workmanship and material, and that the same, when properly handled, would develop the specified power.

It is further pleaded that appellees had notified appellant before, and at the time of purchasing said engine, that they desired the same to use upon their potato farm, for the purpose of drawing plows, potato diggers, etc., in planting, cultivating, and harvesting Irish potatoes for the market; that said engine did not work properly from the start, of which they advised appellant; and that appellant, on various occasions, sent its agents and representatives to work on said engine, and adjust the same, and, after each attempt to repair the same, appellant, its agents and representatives, assured appel-lees that same would then fulfill the requirements in the contract and do the work expected. And further that appellees relied upon the warranties and representations of appellant and repeated assurances, and did not know, prior to the time the potato crop was ready to be harvested, that they would not be able to harvest the crop by the use of the engine, and depended upon it for that purpose; that the engine would not develop 20 horse power and was not of the best material and workmanship; that when they began harvesting their crop, about June 1,1912, they were unable to do so, because of defective workmanship and material in said engine and on account of the fact that it did not develop 20 horse power; and that on that account it took the appellees about six weeks or more to harvest their crop, which might have been harvested in two weeks had the engine been as represented, they having no other means of harvesting the crop of potatoes; that the engine was of no value at the time of its delivery. They asked for rescission of the contract; for recovery of the part of the purchase money paid; for amount of freight paid by them on the engine from the factory to Duke’s Station, and an additional sum of $24 freight and demurrage on said engine from Duke’s Station to Sheppard’s Switch, because appellant failed to ship the engine to the latter place as provided in the contract; for amount of repairing done on the engine in an effort to make it work; for the amount of damages sustained by them to their potato crop by failure to get same harvested before the market declined.

The purchase price of the engine was $1,-750, one-third in cash upon arrival of engine, one-third in 8 months, and one-third due in 12 months.

The contract of sale states that appellant proposes to furnish and deliver f. o. b. cars at factory “one 20 H. P. Flour City gasoline traction engine,” and the guaranty clause reads:

“Guarantee. — -The material in the machinery and workmanship shall be of the very best class, and if any part of said machinery shows defective material or workmanship within one year from date of shipment, we agree to furnish a new part free of charge f. o. b. factory, to replace such defective part. The engine, when in proper condition and correctly installed, adjusted and handled, is guaranteed to develop the power as rated, when using satisfactory fuel as herein specified. (Upon written demand, within 60 days from date of invoice, we will make a regular Proney brake test after the plant is properly installed, the purchaser to furnish all facilities, material and assistance, and if the engine develops the power as above mentioned, under the conditions herein specified, he is to pay the entire expense thereof.)”

On answers to special issues submitted to the jury, judgment was rendered that appellant take nothing as against appellees, and that the contract of sale be rescinded and canceled, and in favor of appellees against appellant for $583.33 paid as part of the purchase price, together with interest, $24 freight and demurrage from Duke’s Station to Sheppard’s Switch, $156 freight paid from the factory to Duke’s Station, $165.80 for repairs on the engine, $2,159.01 damages sustained by defendant to their potato crop, or an aggregate sum of $3,088.14.

The engine was delivered about November 20, 1911, and unloaded by appellees a few days later. Mr. Adams, one of the appellees, is a practical machinery man, and upon his testimony in the main they rely. He says they began trying to use the engine about the 25th of November, 1911.

“We used it the last week in November, or tried to use it until the 10th or 12th of December; that is, for nearly three weeks, or two weeks anyhow. We tried it in January; I think we did.”

He says he did not at that time know it would not produce 20 horse power, because h,e had no catalogue nor specifications, and that he relied on the representations made that it would do so.

“I don’t know that I can now fix the time as to when I first discovered that that engine was not a 20 horse power at the drawbar. I don’t know whether it was as early as the 1st of February or not. I came up here to tell them it wasn’t doing 20 horse power work, and I believed it when I so told them, which was probably the first week in February. I know during the first week in February that the engine was not developing 20 horse power, and I told them it wasn’t doing the work a 20 horse power engine should do, and at that time they told me to sit still, that they would have a man down here that could make it do anything. Either Mr. Leavens or Mr. Marlin said that Mr. Adcock (the man who first came) wasn’t a traction man. He said he was a stationary engine man, and this man from the factory knew what he was doing, and I told them all right, we would wait and see what be was. I don’t know when I at last came to the conclusion we didn’t have a 20 horse power engine at the drawbar, but when we failed to make it work the first time I had some doubts about it. Mr. Fahling didn’t make it work the first time when he was there in January. When Mr. Fahling was down there, it was raining both times, and he didn’t get to show the engine out under favorable conditions. He said if it was dry he could make it pull the plows, and a whole lot of things, and I had to accept his statement because I couldn’t say it wouldn’t. * * * Ad-cock was sent down there the 24th or 25th of November, 1911, and was there up to about the 29th when he returned to Houston. He did not succeed in fixing it. Couldn’t get the hitch arranged, and, when they got that fixed, it wouldn’t pull the plow. It then began raining, and nothing was done with the engine until in January, and I came up and told these people here it was not giving satisfaction.”

He says he was told to wait till Fahling came. He did come, and' the engine failed to do any better.

“Then, about that time, why the bolts that hold the connecting rod broke — snapped off — and we were a month getting that fixed; then Mr. Fahling came back a second time and tried to make it work, and the magneto played but along about that time.” “When I say ‘about that time’ I am talking about early spring of that year, probably April; it might have been the last of March. . It was in February when we finished plowing our land for the potato crop. We finished with the mules.”

The last time Fahling was there, Adams says, he brought a new Remy magneto to put on, but refused to put same on the engine until the notes were signed for deferred payments, which Adams declined to do, stating that the engine was defective otherwise. Fahling then took the magneto away and returned no more. The engine was used some time after that before the harvesting of the crop began. About the 1st of June, appellees put a new magneto on and used the engine in harvesting the crop up till in July, although the evidence shows that it did not work well, and that it took about six weeks to do the work it should have done in two weeks, if working well.

On May 8, 1912, appellees wrote appellant that the engine was not working well, was not according to contract, and would be held subject to its order, upon repayment of the cash payment made. It was about the last of May or first of June that appellees put the new magneto on the engine. Adams 'says:

“I know that when we got through digging the potatoes (which was in July) we tore the engine down, and saw what the trouble was.”

The evidence shows that the items of expense in repairs on the engine were paid out by appellees; and it may be said that, if admissible, the testimony also shows that the value of the potato crop and damage thereto were as found by the jury.

It will be noted, from an inspection of the pleading, that no fraud, accident, or mistake is alleged in the action for rescission; but it is claimed that certain warranties as to the power of the engine and of the material and workmanship were made. These warranties are pleaded, and recovery based thereon is sought. Appellees discovered in January, 1912, that the engine would not develop 20 horse power and were dissatisfied with it. On May the 8th they wrote a letter repudiating the purchase and telling appellant the engine was held subject to its order, and giving the reasons why this action was taken. After that they continued to use it until about the first week in July.

No fraud is charged in this case, but even if it had been, this being strictly an action for rescission and damages, appellees had no right to continue to use the engine until the crop was harvested and then to offer it back after it had been torn down. Mr. Justice Fly has well said in Hailwood Cash Register Co. v. Berry, 35 Tex. Civ. App. 554, 80 S. W. 857:

“The rule is that a defrauded party must dis-affirm the contract at the earliest practical time after the fraud is discovered, and that he must return or offer to return whatever he has received from the other party; and if he retains the article purchased, and continues to use it after discovery of the fraud that induced the purchase, he will be held to have waived the right to rescind the contract and to have acquiesced in it.”

Again, Chief Justice James, in Geiser Mfg. Co. v. Lunsford, 139 S. W. 64, said:

“The testimony shows clearly that they kept and used the machine, after they knew that defendant would not perform the promises; and after they knew that defendant denied and repudiated the making of the promises they continued to use the machine under such circumstances until they abandoned it to its fate somewhere out in the country in Hale county. Admitting that such failure and refusal would give plaintiffs the right to rescind, it was nevertheless essential to such relief that upon discovery of the fact that the promises would not be performed to not only tender or offer to return the machine, but to hold to such position consistently, instead of, as they did in this case, proceeding with the use of the machine, recognizing the contract. Kempner v. Advance Thresher Co., and cases there cited, 118 S. W. 717; Grabenheimer v. Blum, 63 Tex. 369.”

Appellees bad known from January, 1912, until July of that same year that the engine was defective in power and in workmanship and material, if we take the testimony of Mr. Adams, who ■ was a practical machinist and had charge of the engine. In May they attempted to repudiate the purchase. Following all this they continued to use tlie niacbíne until July. We are therefore led to the conclusion that, notwithstanding appellees’ letter of May 8th, they did not repudiate the sale, but dealt with the property as their own long after they had discovered all of the alleged breaches of warranty. In addition to the authorities following, Justice Moursund has treated this subject extensively in Luckenbach v. Thomas, 166 S. W. 99. The first and second assignments of error are sustained. Hallwood Cash Reg. Co. v. Berry, 35 Tex. Civ. App. 554, 80 S. W. 857; Geiser Mfg. Co. v. Lunsford, 139 S. W. 64; Houston Motor Car Co. v. Brashear, 158 S. W. 233; Scalf v. Tompkins, 61 Tex. 476; Pullman Co. v. Street Car Co., 157 U. S. 94, 15 Sup. Ct. 503, 39 L. Ed. 362; Foster v. Rowley, 110 Mich. 63, 67 N. W. 1077; Palmer v. Banfield, 86 Wis. 441, 56 N. W. 1090; Bassett v. Brown, 105 Blass. 551.

The third and fourth assignments of error deal with exceptions to the admissibility of certain testimony as to what is meant by 20 horse power, as expressed in the contract, whether at the belt or drawbar, (1) because such testimony would vary the terms of a written contract, (2) because the contract provided that the engine would develop 20 horse power when subjected to the Proney brake test, and (3) it was not alleged that such test had been made; and the fifth assignment complains of the refusal of the court to submit a special instruction that the evidence failed to show that there was any general or universal custom among machinery men, whereby it was understood that, when a gasoline engine was sold at a certain rated horse power, it was generally and commonly understood that such rated horse power was at the drawbar and not at the belt, and as the contract provided for the Proney brake test, and that the undisputed evidence showed that the engine was to develop 20 horse power at the belt and not at the drawbar.

The contract states that it is to be “one 20 H. P. Flour City gasoline traction engine.” It is not varying the terms of a written instrument to explain what is meant by a term used therein, especially a scientific or trade term which is not generally understood. Here we have the written instrument merely stating that the engine is to develop 20 horse power. It is nowhere stated that it is to develop that power at the belt or drawbar, and the only way a layman could understand the term would be by proof as to what is meant by such a term. If it had stated that the power should 'be tested at the drawbar or belt, there could be no question that parol evidence could not be introduced which would tend to vary the writing. But parol evidence is admissible to aid in the interpretation of a contract in accordance with the recognized meaning of any word or term therein, as used in any art, science, or the trade or particular business out of which it arises. To the average juror, scientific or trade terms, such as this, would be meaningless unless so explained, and such explanation is not a variation of the contract in any sense of the word.

We are of the opinion that the third assignment should be sustained, because it was not' pleaded that the Proney brake test was ever demanded and made as provided in the contract; but the fourth assignment, raising specifically the question of the admissibility of testimony to explain what is meant by 20 horse power, whether at the belt or drawbar, is overruled, and a like disposition is made of the fifth assignment, complaining of the refusal of the requested charge therein set forth.

By the sixth assignment complaint is made of the action of the court in refusing to submit the charge requested as to whether the engine failed to develop 20 horse power at the belt; by the seventh assignment that the court erred in refusing to submit the question as to the horse power separate from the question of the quality of the material and workmanship; and by the eighth assignment that the court erred in submitting special issue No. 1 as to the horse power, quality of material and workmanship, all in one question. As to the first two, special issues were requested on these points and were refused. The question as to where the horse power was to be tested was a sharply contested point; appellees contending that it should be at the drawbar and appellant that it should be at the belt. Special issue No. 1 was so framed that the jury could not answer it “Yes” or “No,” unless they found all three one way. Suppose the engine were defective in material, but was not in workmanship, and at the same time developed 20 horse power, we will say at the drawbar, as contended by appellees. The jury could not make reply as required by the court. Appellant made timely request for the submission of these issues and filed objection to that complained of in the eighth assignment. A party is entitled, upon timely request, to have each material issue submitted to the jury in such a way as to make a clear-cut issue; and the court should not group contested issues so as to require the jury .to’ give an affirmative or negative answer to the whole group. A party is entitled to an answer on each material issue, and when the statute says “it shall be the duty of the court, when it submits a case to the jury upon special issues, to submit all the issues made by the pleading,” it does not mean that several questions, which might receive different answers, may be embraced as one issue and submitted in a way to admit of but one answer to the whole group. The sixth, seventh, and eighth assignments are sustained.

Upon the question of custom among machinery men as to what is meant by horse power, the cour.t submitted to the jury to determine whether it had been established that the rated horse power was to be tested at the drawbar, as contended by appellees, and we think this was sufficient. According to the testimony, there were only two places where it was claimed the power should be tested, and .they were at the drawbar and belt. So, if it be shown, by custom, that it was meant at the drawbar, it would necessarily follow that it would not be at the belt. It is not at all necessary to submit the converse of that which has already been affirmatively given. The ninth assignment is overruled.

The court submitted special issue No. 1 as follows:

“Do you or not find from the evidence that the engine in controversy was of the power represented in said contract, and that the material and workmanship used in construction of said engine was of the very best class? In answering this question you will say, ‘First, we find that it (was) or (was not),’ as you may find from the evidence. In this connection you are charged that, in order for the parties to be bound by custom, it is necessary that the defendants shall establish, by the preponderance of the evidence, that it was commonly understood among the dealers in machinery and gasoline traction engines in selling a traction engine at a rated horse power that, in the absence of any agreement, it was understood that the horse power mentioned was rated at the drawbar, and such custom must not be temporary but must be general as to the particular trade and so well established that every one dealing in that trade, namely, in this instance, in the gasolinei traction engine trade, is presumed to know such custom and make contracts with reference thereto.”

Appellant requested the following special issues which were refused:

“Fourth. Did any part of said engine show defective material or workmanship?
“Fifth. If, in answer to the foregoing question, you say that any part of said engine showed defective material or workmanship, then was the plaintiff, Southern Gas & Gasoline Engine Company, ready, able, and willing to furnish new parts free of charge f. o. b. factory when called upon by the defendants, Adams & Peters?”

If the engine developed the power at which it. was rated, but the material and workmanship were not as provided in the contract, it seems to us that appellant was entitled to know those facts from the jury. And it was entitled to have it determined whether it had failed and refused to furnish new parts. This may become material in view of another trial.

But this is an action to rescind .the contract, and not to offset the purchase price to the extent of necessary repairs.

“Where a buyer of machinery accepts same in defective condition, and undertakes to place it in good condition at the cost of the seller, he becomes liable for the price, less the amount necessarily used to place it in good condition.” Saunders’ Ex’rs v. Weekes et al., 55 S. W. 34; Masterson v. Heitman, 38 Tex. Civ. App. 476, 87 S. W. 227.

The tenth assignment is sustained, and a like disposition is made of assignments 11,12, 13, and 13%.

The fourteenth assignment complains of the action of the court in permitting witnesses to testify “to the effect that the written contract between the parties was a form of contract used among machinery men for stationary engines, and not for the sale of traction engines, because .the contract was the best evidence of its own contents and its-terms and conditions, and could not be varied or set aside by the oral testimony of witnesses as to their understanding, opinions, and conclusions, and the evidence is irrelevant and immaterial.” There is no fraud,, accident, or mistake pleaded as to- the execution of the contract, and it would certainly not be subject to attack in this manner. The assignment is sustained. Railway Co. v. Hannig, 91 Tex. 347, 43 S. W. 508; Metropolitan Company v. Wagner, 50 Tex. Civ. App. 233, 109 S. W. 1120, 1121.

The contract permitted witnesses to testify, over objection, that another traction engine of 22% drawbar pull, or 45 horse power belt pull, operated in a field about two miles distant from the engine in question would pull 12 disc plows, while this engine was pulling 6 plows, and this evidence was objected to because it was not shown that the two-engines were operating under the same conditions, being of different make, different horse power, and not being operated by the same man, and further that it was not shown that- the soil was the same, nor that the same physical conditions existed. For instance, it is in evidence that a great deal depends upon the engineer in charge and the lay of the land, and whether hard or soft soil, or whether it is wet or dry. The other engine (the-Hart-Parr) was of a different horse power- and made by another factory. A negro driver-was operating the engine in controversy, and it was shown that he had wrecked the engine and had broken disc plows by running onto stumps, and he had never operated a traction engine before that one. It is not shown what kind of man was operating the Hart-Parr engine, .to which this one was sought to be compared. Chief Justice James has well said that:

“Testimony of this character ought not to be admitted if the difference in conditions is probably such as would have a tendency to confuse or mislead the jury in considering the matter-at issue.” Olivaras v. Railway, 77 S. W. 981, 982.

Unless the conditions and surroundings are-the same or similar, testimony of this char- ■ acter ought not to be admitted, for, if not so-limited, .the jury wili be led off into a maze of comparisons; confusion and unsatisfactory results being the natural consequence. It may be said that the driver is of no material consequence, for instance, and yet one man may be able to get the greatest possible efficiency out of the engine, while another would not even approach it; one aeronaut may be able to describe all manner of figures in the-air, while another would only pilot a wreck in the attempt, as this negro driver did-Chief Justice Fisher held that similar testimony should have been rejected, the conditions not haying been shown to be similar. The fifteenth assignment is sustained.

Assignments 16, 17, 17%, 18, and 19 raise, in different forms, objections to the measure of damages as submitted by the court and are treated together. It is contended that the fall in .the price of potatoes and others rotting in the ground was not the natural and proximate result of the engine not being as provided in the contract, and could not reasonably be foreseen at the time the contract was made. Further that appellant was not responsible for fluctuations in the potato market. But it is shown that at the time the engine was purchased, and many times thereafter, appellant was apprised of the purposes for which it was bought. In fact, Mr. Marlin, president of appellant, testified:

“I knew they wanted the engine, which they were thinking of purchasing, for the purpose Of use on the potato farm.”

It is argued that it would be speculative to a high degree to hold appellant for loss of potatoes by rotting and for a fluctuation in the market eight or nine months after the contract was made. I.t was well known, however, at the time the engine was sold, that it was to be used in raising and harvesting a crop of potatoes, and it must have been in contemplation of .the parties that the crop would mature at about the time it was gathered. And it must likewise have been in the minds of all the parties that the market was subject to fluctuations. The only way that damages could be proven, then, would be to prove the market price at the .time the potatoes should have been gathered, and what it was at the time they were able to harvest them on account of any defects in the engine. We do not think the court erred in this respect, except that, of course, appellants would be entitled to full protection and credit for what the crop brought on the market. These assignments are overruled.

As to whether appellees used due diligence to protect themselves against loss after the discovery of the defects, if any, in the engine was a question for the jury, and the twentieth assignment is overruled.

In regard to the engine itself, .the measure of damages would be the difference between what it was worth at the time received and the contract price, and not what it was worth in June of the following year. This being an action for rescission, the evidence of value in June was doubtless permitted to support the allegation that it was of no value, • and thereby avoid an actual tender. Assignment 22 is therefore sustained. Aultman v. Hefner, 67 Tex. 59, 2 S. W. 861; Heisig Rice Co. v. Fairbanks, Morse Co., 45 Tex. Civ. App. 383, 100 S. W. 959; Aultman Co. v. Cappleman, 36 Tex. Civ. App. 523, 81 S. W. 1244; Southern Gas & Gasoline Engine Co. v. Peveto, 150 S. W. 279; Mechem on Sales, §§ 817-1830.

Appellee Adams having testified that Fahling had refused to deliver the magneto unless Adams & Peters would sign the notes, it was not irrelevant to permit appellant’s witnesses C. A. Leavens and C. W. Marlin to testify that they had not given Fahling such instructions when .they sent the magneto by him to appellees; but this was not such error as would cause us' to reverse the case, if that were the only trouble.

What we have already said makes it unnecessary to say more than .that all other assignments are overruled.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

Appellees urge, in their motion for a" rehearing, that this court erred in sustaining appellant’s assignments of error numbered 6, 7, 8, 10, and 11 for the reason .that said assignments complained of the errors of the trial court in either giving charges or refusing charges to the jury, and that there are no bills of exception in the record to the action of the court complained of in the assignments, and therefore this court had no power to consider and determine such assignments.

Both parties to this appeal filed lengthy and able briefs, but appellees nowhere in their brief made any objection to .the consideration of these assignments. Nor was our attention ever called to the fact that no bills of exception were reserved to .the action of the court in such matter until the motion for a rehearing was filed. Under rule 40 this court is authorized to rely upon the briefs for a proper presentation of .the case on appeal, without an examination of the record; and to assume that if there were any objections to .the assignments or to the matters upon which- the same were predicated, the other party would call our attention to it. Rule 41 (142 S. W. xiv), expressly provides that:

“Whatever of the statements of appellant or plaintiff in error in his brief is not contested will be considered as acquiesced in.”

We did not go into the lengthy transcript to see if there were preserved bills of exception, but assumed that, if counsel for appel-lees -had any objection to the consideration of said assignments, the same would have been made known to us. Appellant insists that objections or exceptions were preserved and are shown in the record; but .that is aside from the question. To tolerate a practice of this kind would virtually require a resubmission of the case. Certainly another consideration along a line not heretofore presented to us. It' would be equivalent to giving a party two opportunities to brief the case. No matter what disposition this court would have made of these assignments, had timely objection been made, when able counsel present .to us a brief upon all of tliem, in which 'they are presumed to urge every point favorable to them and do not raise the question, now for the first time urged, until a motion for rehearing, this court will consider that any other objection not contained in the brief was waived, unless it be some matter of fundamental law. And this is not a question of fundamental law, being purely one of procedure.

Other matters require a reversal anyway, and the motion for rehearing by appellee is overruled; and a like disposition is made of appellant’s motion for rehearing.


author: PRENDERGAST, P. J.

text:
    BELL v. STATE.
    (No. 3226.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    1. Criminal Law (§ 1092) — Exceptions— Bill of — Time of Piling.
    Under Code Cr. Proc. 1911, art. 845, allowing the filing of exceptions within 30 days after adjournment, and providing' that the court may for good cause shown extend the time, bills of exception filed more than 30 days after adjournment cannot be considered where no order of extension was procured.
    [Ed. Note. — For other cases, see Criminal Law, Cent.. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    2. Criminal Law (§ 922) — Appeal—Presentation of Grounds of Review in Court Below.
    Under Act April 5, 1913 (Acts 33d Leg. c. 138), requiring objections to the charge or an omission therein to be made before it is read to the jury, objections to omissions in the charge cannot for the first time be made in the motion for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2210-2218; Dee. Dig. § 922.]
    3. Criminal Law (§ 1159) — Trial—Province of Jury.
    When the punishment inflicted by the jury is within that prescribed by the Legislature, and the evidence is sufficient to support a conviction, it will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.]
    4. Criminal Law (§ 1208) — Punishment-Indeterminate Sentence.
    Under the statute prescribing as punishment for an assault with intent to murder, imprisonment for not less than 2, nor more than 15, years, the sentence should be indeterminate, and, if made for a given term of years, will be reformed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3281-3287, 3289-3295; Dec. Dig. § 1208.]
    Appeal from District Court, Ft. Bend County; Sam’l J. Styles, Judge.
    Nemeyer Bell was convicted of an assault with intent to murder, and he appeals.
    Reformed and affirmed.
    G. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted for an assault with intent to murder, and his punishment fixed at 13 years in the penitentiary.

There appears in the record what purport to be three very meager and insufficient bills of exceptions as to the introduction of evidence. The Assistant Attorney General contends that this court cannot consider said bills, because they were filed 55 days after the adjournment of the court, when the court allowed no such time for filing the same. His contention > is correct. The statute allows 30 days only after adjournment to file bills of exceptions without the court making any order to that effect. It authorizes the court to grant a longer time for good cause shown. No longer time was allowed. Hence neither of the bills can be considered. C. C. P.; art. 845. It is needless to cite the many eases of this court’s uniformly complying with the statute. Besides, each of the bills is so wholly insufficient that neither of them could be considered. Best v. State, 164 S. W. 997. Still further, if they had been filed in time and been sufficient to raise the question, the testimony objected to was admissible.

By the act of our Legislature approved April 5, 1913, amending certain articles of our Criminal Procedure, it requires a defendant to make objections to the court’s charge, or an omission therein, before the charge is read to the jury and prohibits this court from reversing a case because of defects in the charge when no such objections were made. Since the passage of that act, this court has uniformly, in many decisions, construed and followed this statute. It is unnecessary to cite them. No exception whatever was made in any way to the charge of the court. However,' in the motion for new trial only, appellant complains of a claimed omission in the charge, in that the court did not submit to the jury whether or not t)hey could suspend the sentence. This does not raise the question in such way that this court can consider it under the statute and decisions.

Appellant also complains in his motion for new trial that the evidence is insufficient to support the verdict. He also claims that the penalty is excessive. We have carefully read the evidence. The state’s side of it, by a preponderance, makes an aggravated case. Appellant’s victim was his wife. We could not disturb the verdict of the jury on appellant’s contention. Neither could we disturb it because of the claim of its being excessive. It has always been held by this court that, when the punishment inflicted by the jury is within that prescribed by the Legislature, the jury, and not this court, is to determine his punishment, and this court is bound by that fixed by the jury. The punishment for this offense is confinement in the penitentiary for not less than 2, nor more than 15, years. The punishment assessed in this case was 13 years.

The sentence is for 13 years, instead of indeterminate. It is ordered reformed and affirmed.


author: HARPER, J.

text:
    HEIDELBERG v. STATE.
    (No. 3210.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    Criminal Law (§ 1097) — Appeal — Statement of Facts — Necessity.
    The sufficiency of the evidence to sustain a conviction cannot be reviewed, where no statement of facts accompanies the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.)
    Appeal from District Court, Newton County; A. E. Davis, Judge.
    Cal Heidelberg was convicted of murder, and he appeals.
    Affirmed.
    See, also, 159 S. W. 1187.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at 12 years’ confinement in the state penitentiary. The only ground in the motion for a new trial complains of the insufficiency of the evidence. As no statement) of facts accompanies the record, this ground cannot be reviewed.

The judgment is affirmed.


text:
    JOHNSON v. STATE.
    (No. 3227.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    1. Criminal Law (§ 1097*) — Appeal-Presentation for Review.
    In the absence of a statement of facts, the sufficiency of the evidence to sustain a verdict of guilty cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.*]
    2. Criminal Law (§ 982*) — Suspension of Sentence — Verdict.
    Where a verdict of guilty recited “that defendant has never before been convicted of a felony,” but contained no recommendation for suspension of sentence, the court could not suspend sentence.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. 982.*]
    Appeal from District Court, Collin County ; M. H. Garnett, Judge.
    Lou Johnson was convicted of selling intoxicating liquors in prohibition territory, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for unlawfully pursuing the occupation or business of selling intoxicating liquors in prohibition territory, and her punishment fixed at the lowest prescribed by law.

There is no bill of exceptions nor statement of facts. There are but two questions mentioned in the motion for new trial. The first is that the verdict is not supported by the evidence. Of course, in the absence of a statement of facts, this cannot be considered.

The other is, “The court erred in overruling suspension of sentence.” The verdict of the jury found the appellant guilty and fixed her punishment, and further, “We further find that the defendant has never before been convicted of a felony in this state or any other state.” The suspended sentence law requires that the jury shall recommend the suspension of sentence. The court cannot suspend, unless the jury so recommend in the verdict. This court has so often decided that, in verdicts precisely as this, the court could not suspend sentence that we think it unnecessary to further review the question. We cite only some of the cases. Roberts v. State, 158 S. W. 1003; Potter v. State, 159 S. W. 846; King v. State, 162 S. W. 890.

The judgment is affirmed.


text:
    ALLEN v. STATE.
    (No. 3225.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    Highways (§ 186*) — Use of Highway — Offenses — Evidence.
    A conviction for the violation of Pen. Code 1911, art. 815, prohibiting the driving of an automobile upon any public road at a greater speed than 18 miles per hour, must be reversed, where the evidence does not establish that the road where the automobile was run was a public road.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 476, 477; Dec. Dig. § 186.*]
    Appeal from Wichita County Court; C. B. Felder, Judge.
    Reese Allen was convicted of operating an automobile on a public road at a greater speed than 18 miles per hour, and he appeals.
    Reversed and remanded.
    Carrigan, Montgomery & Britain, of Wichita Falls, for appellant. T. R. Boone, Co. Atty., of Wichita Falls, and C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for operating an automobile on a public road in said county at a greater rate of speed than 18 miles per hour. The statute is, no automobile shall be driven or operated upon any public road at a greater rate of speed than 18 miles an hour. P. O. 1911, art. 815.

There are but two questions necessary to be passed upon. The first: Appellant claimed the evidence was insufficient to identify him as the party who operated the machine at the time and upon which this prosecution was based. We have read the evi•dence carefully, and, in our opinion, the evidence was amply sufficient to show this. 'The other question is: Appellant claims that there was no proof showing that the road upon which the automobile was run was a public road. As stated, we have carefully read the evidence. In our opinion, the evidence is insufficient to show that it was a public road. Judge White, in section 796 of his Penal Code, correctly states how a road can be shown to be a public road, and cites the cases.

Because the evidence does not establish that the automobile was operated upon a public road, this ease must be reversed and remanded.