author: HENDRICKS, J.

text:
    GENERAL ACCIDENT FIRE & LIFE ASSUR. CORPORATION, Limited, v. ELLISON.
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 25, 1913.
    On Motion for Rehearing, Nov. 22, 1913.)
    1; Appeal and Eeeoe (§ 742) — Review—Assignments oe Eeeoe — Pbopositions.
    In an action on an automobile insurance policy, a provision under an assignment of error mentioning a policy clause, giving the company the right suitably to repair the automobile insured at its own expense, did not show a defense where there was no subjoined statement indicating that the company ever attempted to exercise such right.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    2. Appeal and Eeeoe (§ 742) — Bbiees — Statement.
    Under Supreme Court rule 31 (142 S. W. xiii), providing that the statement under an assignment of error must be made faithfully in reference to that which is in the record having a bearing on the proposition, it is the duty of the appellant to include in the statement all of the facts in evidence testified to on both sides bearing upon the question in issue so that the appellate court will not be compelled to search the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    On Motion for Rehearing.
    3. Appeal and Eeeoe (§ 757) — Beiees—As-signments — Peeliminaey Statement.
    A statement of the evidence under an assignment of error in appellant’s brief is insufficient where it refers to the pleadings for part of the facts on which the assignment is based instead of to the facts proved by the evidence introduced.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.]
    Appeal from Tarrant County Court; Charles T. Prewett, Judge.
    Action by T. B. Ellison against the General Accident Fire & Life Assurance Corporation, Limited. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    H. T. Cooper and H. M. Chapman, both of Ft. Worth, for appellant. Capps, Cantey, Hanger & Short and D. B. Trammell, all of Ft. Worth, for appellee.

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

   HENDRICKS, J.

The appellee in this case, plaintiff in the court below, sued the appellant, the insurance company, upon an insurance policy, embracing an automobile, in answer to which the defendant, which we gather from the pleadings in the brief, interposed numerous defenses, which we do not deem necessary to set out.

The appellant, in its brief in this cause, does not seem to think that the policy of insurance sued upon by appellee is of sufficient significance as a constituent element of this case or of its defense to even inform us of a single provision contained in said policy or its proper relation to the case, except that in the first proposition, under its second assignment, there is a bare mention as a part of said proposition, of a provision in the policy giving the insurance company the right to suitably repair the automobile insured at its own expense. Under this proposition there is no subjoined statement indicating in any manner that the company had ever attempted to exercise the right to suitably repair the automobile, the subject of the insurance, and we are unable to understand the relation of said provision to the merits of the cause.

We assume from reading the briefs that the insurance company is denying total liability upon its policy of insurance and also asserting that some freight charges, which appear to have accrued on account of the shipment of the auto to the factory, which manufactured it, for repairs, should not have been included in plaintiff’s recovery; and it is also suggested by the briefs upon this latter question that the agency and authority of one Mitchell might have been an important issue in the case. Mitchell’s testimony upon this question is not reflected in appellant’s brief, except in an argument under its eleventh assignment of error, in which argument certain testimony of the witness is quoted, addressed mainly to the credibility of said witness; and, when we turn to appel-lee’s brief upon this question, this general statement of said witness as to his authority, which does not seem to have been objected to, is found: “As to what my authority is in this territory on behalf of this insurance company, based on my previous dealings with the insurance company and previous adjustments and handling Of their business generally in this community, I will say that I am the agent of the company and have absolute authority to bind them for liability and do probably bind them for more liability than any other man in Texas.”

Rule 31 (142 S. W. xiii) promulgated by the Supreme Court says that the “statement must be made faithfully, in reference to the whole of that which is in the record having a bearing upon said, proposition,” which rule is intended primarily in its fulfillment by litigants, for the benefit of the appellate court, divesting the statement of partisanship under the specification of error. We do" not impute an intentional overlooking of the record in these matters; we believe differently ; but it is apparent, as to each of appellant’s assignments, there is not that character of statement extracted from the record bearing upon the propositions brought forward by appellant which the appellate court is entitled to -under tlie rules. Tlie insurance policy (to a considerable extent the gravamen of the case, as we gather from the pleadings condensed in the brief) is not in reality discussed in the argument of appellant as a part of the case. There is no assistance whatever to this court as to the construction of said policy embracing the matters in issue. Of course there is no statement germane to the real issue in the case upon which a proper discussion could be predicated, and the brief seems to depend upon evidence and matters which appear to constitute, although a part of the case, collateral issues, eliminated from the case by the charge of the court and the verdict of the jury. In this condition, by compelling the appellate court to go to the record for a salient element of the merits of the cause, and in order that appellant’s side of the case should be carefully determined, the whole record necessarily would have to be examined, which is not required; an appellate court would not be satisfied after a part of the case is left out of the brief, without an examination of the whole.

This court is not required to supplement a brief upon a fundamental part of the case (rebrief it so to speak); and, the appellee objecting to a proper statement upon matters which appear to be so elemental to an adequate understanding and determination of the -whole cas.e, the appellant’s brief in this record is not considered, and after inspection of the record for fundamental error, which we do not find, the judgment of the lower court is affirmed.

On Motion for Rehearing.

The appellant in this case presents a supplemental brief for the consideration of this court, accompanying its motion for rehearing, and also insists that we erred in not considering the assignments in their original brief, upon which the cause was submitted, contending that, as certain provisions of the insurance policy were set out in the preliminary statement of the nature and result of the suit as a part of the pleadings in the cause, we should have considered those provisions because the suit was based upon written contract. We, of course, noticed this on our former consideration of the case; that is that certain provisions were set out as having been pleaded by the appel-lee, and that the appellant insurance company also sets out a part of its own pleading in which it alleges that plaintiff failed to copy in its petition the whole of a certain paragraph and purports to copy the same as a part of the pleading. Under none of the assignments or propositions is there any reference to that part of the pleadings germane to any question involved, even if this court could possibly consider a statement of the pleadings as equivalent to a statement as being the same which should have been extracted from the statement of facts. The uncertainty of a matter of this kind is illustrated by this very brief, where the defendant in the court below pleaded that the plaintiff did not set out enough of the contract with reference to which plaintiff relies for its cause of action. All of the provisions of the insurance policy, which we have to presume are relied upon by the appellant as defeating the appellee’s cause of action, are merely stated as being in the pleadings, and we think it would be anomalous for a higher court to have to resort to a preliminary statement of this character and make the pleadings a part of a statement, under appellant’s assignments and proposition, in aid of its contentions as to the reversal of the cause. If there was not any statement of facts in the record, then to take the pleadings as equivalent to issues proven would be an intolerable assumption by a higher court, and almost equally so would be our action in the condition of this record. Our consideration of the supplemental brief in this matter would require a setting aside of the submission of this cause and a resubmission of the same at some future date, with an order that the appellee be given opportunity and time to answer said supplemental brief, which we do not feel warranted in doing. .

The motion for .rehearing and to file the supplemental brief is in all things overruled.


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    HARLAN v. TEXAS FUEL & SUPPLY CO. et al.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 22, 1913.)
    1. Sales (§ 359) — Actions fob Pbice — Sufficiency op Evidence.
    Evidence, in an action for the price of brick claimed to have been sold by plaintiff to defendant, held to show that the brick was sold to defendant and not to a contractor who was to build his house.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 511, 1056-1059; Dec. Dig. § 359.]
    2. Mechanics’ Liens (§ 317) — Indemnity Against — Actions—Evidence.
    In an action for the price of brick sold to defendant to erect his house, in which defendant filed a cross-action against the surety of the contractor, claiming that the unsatisfied claims for mechanics’ liens exceeded the unpaid part of the contract price, evidence was admissible to support such claim as to the amount and value of labor and material furnished by certain witnesses for the building.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 659; Dec. Dig. § 317.]
    3. Mechanics’ Liens (§ 128) — Peoceedings.
    Under Const, art. 16, § 37, giving mechanics, etc., a lien upon buildings for the value of their labor or materials, and requiring the Legislature to provide for the enforcement thereof, a lien is not lost by the material-man’s failure to file an itemized account of his claim, pursuant to statute, or to otherwise comply therewith; the lien not depending on the statute.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 177; Dec. Dig. § 128.]
    4. New Trial (§ 104) — Newly Discovered Evidence — Cumulative Evidence.
    Where, after judgment was rendered against defendant in an action for brick furnished for his house, in which he filed a cross-action against a bonding company as surety for his contractor to recover for the contractor’s failure to pay for the brick, it appeared that a judgment was rendered in another action against defendant, adjudging that he was entitled to credit for a certain sum, and that there was a balance due from him which balance was wholly insufficient to meet outstanding liens for labor and materials, a new trial should have been granted defendant, as against the bonding company, on the ground of newly discovered evidence; evidence of such subsequent judgment not being cumulative of evidence at trial as to the amount of materials furnished for the building.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 218-220, 228; Dec. Dig. § 104.]
    5. New Trial (§ 104) — Newly Discovered Evidence — “Cumulative Evidence.”
    Cumulative testimony is additional testimony of the same kind on the same question, and evidence is not cumulative, if it is of a different character, and tends to prove a question previously in issue by proof of a new and distinct fact.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 218-220, 228; Dec. Dig. § 104.

    For other definitions, see Words and Phrases, vol. 2, pp. 1783, 1784.]
    6. New Trial (§ 103) — Newly Discovered Evidence — Materiality.
    The evidence as to the subsequent judgment and defendant’s satisfaction thereof was material.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 215-217; Dec. Dig. § 103.]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by the Texas Fuel & Supply Company against Harry Harlan and others, in which defendant filed a cross-action against the General Bonding & Casualty Insurance Company. From a judgment for plaintiff against defendant Harlan and against such defendant in favor of the Insurance Company, he .appeals.
    Affirmed as to plaintiff and reversed and remanded for new trial on the cross-action.
    W. P. Donalson, of Dallas, for appellant. Flippen, Gresham & Freeman, of Dallas, for appellees.

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

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

   TALBOT, J.

This is a suit brought by the Texas Fuel & Supply Company, a partnership, against Harry Harlan, as defendant, to recover the sum of $350, the value of 17,500 face brick alleged to have been purchased of plaintiff by defendant Harlan about February 20, 1912. Defendant Harlan filed his second amended answer and cross-action on which the cause was tried (1) denying the purchase of said brick and his liability for the payment thereof, and (2) alleged that he had contracted with one C. F. McMahan to build a house for him, said McMahan to furnish all labor and material and complete the same, that to insure the faithful performance of such contract said McMahan, as principal, and the defendant General Bonding & Casualty Insurance Company, as surety, executed and delivered their certain bond payable to him, said Harlan, in the sum of $4,200, and that should he, said Harlan, be held liable in this cause for the payment of the brick in question, then, inasmuch as he furnished said brick to said McMahan, and said brick were used in the construction of said house, said McMahan and defendant bonding company, under the terms and conditions of said contract and bond, will be liable to him for such sum of money and judgment as plaintiff may recover against him, said Harlan, and prayed judgment. Defendant Harlan also set out a large number of mechanics’ and materialmen’s claims, which were in litigation in the Sixty-Eighth district court of Dallas county, Tex., for the purpose of showing that the unpaid portion of the contract price of the building in question was far less than the amount of such claims, and was far less than the. plaintiff’s claim, and that therefore he was unable to offset plaintiff's said claim out of such unpaid portion of the contract price of said building. Defendant Harlan also alleged that the said McMahan was insolvent, and was beyond the limits of the state of Texas, that his whereabouts were unknown, and that he had no property in Texas, to the knowledge of said Harlan, through which service might be had. Defendant bonding company answered by numerous demurrers and general denial. The case was tried by the court on January 9, 1913, without a jury, which rendered judgment in favor of plaintiff against defendant Harlan for the sum of $350, and further rendered judgment that the defendant Harlan take nothing as against defendant bonding company on his cross-action. His motion for a new trial being overruled, .I-Iarlan appealed.

There was no error in rendering judgment in favor of the plaintiff, Texas Fuel & Supply Company, against the defendant Harlan. The practically undisputed evidence shows the personal liability of this defendant for the price charged for the brick in question, so far as the Texas Fuel & Supply Company is concerned. It shows that he personally selected the brick and said he would take them. The brick were delivered to him, and statements of account rendered him therefor, and he did not claim at that time that they were purchased by him for his contractor, McMahan, and seek to avoid his liability for the price of the same until some time after they had been used in the erection of his building.

L. Fife, one of the plaintiffs, testified: “On or about February 15, 1912, Mr. Harlan stated to me that he desired to look at some brick; that he was going to build and wished to determine tlie character of brick that should be used. We took him to several houses that were built of brick we sold, and after several days he determined on the brick in question. He stated that he would take that particular brick, and we delivered the brick in question to him, which were of the same kind that he ordered, and they were placed in the house that was being built for him in Oak Cliff. We charged these brick to his account and sent him a bill for them. ⅜ * ⅜ ¶⅛ brick bought by Harry Harlan consisted of 17,500 face brick, and these brick were of the reasonable market value of $350; the price charged therefor, and same have never been paid for. Harry Harlan did not state to us that he would not be responsible for the payment of the brick, nor did he tell us to charge them to -McMahan until long after they were delivered and placed in the house. We never saw or knew McMahan in the transaction at all, but charged and sold same to Harry Harlan personally. * * * We did not know McMahan at the time, but afterward found that he was the contractor for the building. We would not have sold the brick in question to McMahan.”

The defendant Harlan testified: “I selected the brick in question as the kind X wanted to go in the house. I personally selected the brick that suited me for the Job in question, but there was nothing said about my personally buying any brick, or that the brick in question should be charged to me. * * * Some time after the brick had been delivered I got a bill from the plaintiff, and saw that they had charged the brick to me. Later * * * I received another bill after the brick had been placed in the house, and I immediately wrote them that this was a mistake, and that the brick was not to be charged to me at all, but to McMahan, which they refused to do. I had a contract with C. P. McMahan, the contractor, by the terms of which he was to build and complete the house, furnishing all labor and material for such at his own cost and expense, and I had been told by him to go and select the brick I desired to use on this job. I do not know whether Mr. Fife knew this fact or not.” Under this testimony the trial court could not properly do otherwise than render a personal judgment against Mr. Harlan for the contract price or value of the brick.

Appellant’s first assignment of error, according to numbers in the brief, complains of the court’s action in refusing to permit him to show by witnesses present in court that they, said witnesses, had furnished certain labor and material that went into and became a part of the building in question, and that the value of such labor and material aggregated the sum of $1,431.46, that said sum of $1,431.46 had not been paid, and that they, said witnesses, had given notice to defendant Harlan of their claims for said labor and material, and that they were asserting mechanics’ and materialmen’s liens upon and against said building. The main propositions-submitted under this assignment are: (1) “Where mechanics and materialmen furnish labor and material to a building contractor for the purpose of, and which is used in, constructing a building, the Constitution creates and fixes a lien upon such building and the-land upon which it stands — as against the-owner of same — in favor of such mechanics and materialmen, without requiring any further action on their part than (at most) giving notice to such owner of their claims.” (2) “Upon the trial of a suit against an owner of a building for the purchase price of brick alleged to have been bought from plaintiff by such owner, where it is shown that such brick were delivered to and actually used in the erection and construction of such, building; and where the contractor, at his own cost and expense, contracted to furnish all labor and material to be used in the erection and construction of such building; and where such contractor and his surety have-executed and delivered a bond, payable to such owner, to insure the faithful performance of such contract; and where the owner has asked judgment over against such surety (said contractor being shown to be insolvent and beyond the limits of the state), for such sum as the plaintiff might recover against him on the purchase price of such brick— the owner is entitled to introduce evidence of unsatisfied and outstanding mechanics’ and materialmen’s liens and claims upon and against the building and property upon which it is located for the purpose of showing that any part of the unpaid contract price of such building which he may have in his hands cannot be held or applied by him to protect himself against a judgment for the purchase price of the brick sued for.” The bill of exception reserved to the exclusion of this testimony shows that it was offered to establish appellant’s contention that the unsatisfied claims of the mechanics and mate-rialmen who had performed labor and furnished material in the erection of the building in question greatly exceeded the unpaid portion of the contract price of said building, for which appellant, Harlan, was liable by and under the terms of the building contract entered into between appellant and McMa-han. The bill further shows that the admission of the testimony was objected to on the ground that the same “was irrelevant and immaterial to any issue in the case, and did not tend to show that any valid lien had been fixed” upon appellant’s said building. We think the court erred in excluding this , testimony. McMahan contracted and agreed with appellant to furnish all labor and material and build his house for the sum of $4,200. To secure the faithful performance of chis contract McMahan entered into a bond in the sum of $4,200 with appellee General Bonding & Casualty Insurance Company as surety. It was his duty, and he was. bound by the terms of his contract with appellant to furnish the brick in question. For him and at his request appellant procured the brick from the Texas Fuel & Supply Company, and while, as between appellant and said company, appellant was personally liable to the latter for the value of the brick, McMahan was liable to appellant for their value, and, McMahan having failed to pay for the brick, he to that extent breached his contract with appellant, and the General Bonding & Casualty Company, as surety on McMahan’s bond, was liable therefor. The effect of the bond executed by the bonding company was to indemnify appellant against any loss ne might sustain by reason of Mc-Mahan’s failure to furnish the labor and material and construct the building according to contract. If, however, appellant had in his hands a sufficient amount of the contract price of the building, which was not subject to the payment of other claims against McMahan secured by mechanics’ and materi-almen’s liens on appellant’s building, to pay off and satisfy the purchase price of the brick, then he was in a position to protect himself from loss by reason of McMahan’s failure to pay the Texas Fuel & Supply Company for the brick in question, and the bonding company would be relieved from liability therefor. The contention of appellant was that he did not have such an amount in his possession, and the testimony excluded tended to establish this contention, and should have been admitted.

Section 37, article 16, of our Constitution, declares that: “Mechanics, artisans and materialmen, of every class, shall have a lien upon the buildings and articles made or repaired by them, for the value of their labor done thereon, or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens” — and it has been held that this lien does not depend upon the statute enacted by the Legislature in obedience to the directions given in the latter clause of the section, and is not lost by the failure of the mechanic or materialman to file in the office of the county clerk an itemized account of his claim, as directed by statute. It is said, in effect, that it was the intention of the members of the convention which framed and adopted this section of the Constitution to give full and ample security to all mechanics, artisans, and materialmen for labor performed and material furnished for the erection of all buildings and other improvements, and the courts must give such construction to its language as will carry out that intention. Strange v: Pray, 89 Tex. 525, 35 S. W. 1054; Beilharz v. Illingsworth, 132 S. W. 106; Bank v. Taylor, 91 Tex. 78, 40 S. W. 876, 966. It was not claimed that the premises involved in the controversy were appellant’s homestead, and the evidence showed that of the contract price of the house appellant had only the sum of $265.35. The testimony excluded was not therefore inadmissible, because appellant did not propose or offer to show, as a prerequisite to its admissibility, that the parties claiming to have furnished labor and material to erect appellant’s building, and of which claims notice had been given appellant, had fixed liens upon said building as provided by statute, as we judge from the bill of exceptions, the lower court held to be necessary.

But, if we should be mistaken in the views expressed, and it was necessary to show, in order to render the testimony offered admissible, that the parties claiming to have furnished labor and material for the erection of appellant’s house had fixed liens upon said house as prescribed by statute, still we think the ease as between appellant and the General Bonding & Casualty Company must be reversed and remanded for a new trial, because of the lower court’s failure to grant a new trial upon appellant’s amended motion therefor. In this motion, and upon the hearing thereof in the county court, it was shown without contradiction, as we understand the record, that since the rendition of the judgment in this case, and on February 22, 1913, a judgment was rendered in the district' court of Dallas county, Tex., in the cause of Boatman Hardware Company v. C. F. McMahan et al. No. 12,012C, in which cause appellant was also a party defendant, wherein it was expressly adjudged and decreed that defendant Harlan had paid on, and was entitled to and allowed credit for, the contract price of the building in question the total sum of $3,934.65, and that there was a balance -due and owing thereon by him of $265.35; that Boatman Hardware Company, a corporation, L. Hanks, J. G. Clardy, J. E. MeKeen, C. A. Campbell, B. B. Frost, J. A. Welch, Charles D. Allen, C. B. Von Der Hoya, and J. L. Markham Lumber Company, a corporation, have each and all established and proven up their respective claims for labor performed and material furnished in the construction of said building by the contractor, McMahan, in the total sum of $1,431.46, and that said building and property, to the extent of said sum of $265.-35, balance due and owing by said Harlan, was decreed to be subject to the material-men’s and mechanics’ liens of said parties to secure its payment, which liens were established and foreclosed, and that said Harlan has paid the sum of $265.35 to and for the benefit of said parties, and has therefore paid the full sum of $4,200, which was the contract price of and for said building, and which is the full sum for which he became and was liable by and under the terms and provisions of said building contract. This judgment was not in existence at the time the present case was tried, and the general rule applicable, ordinarily, in cases where newly discovered evidence is relied on for a new trial, does not apply. The failure to exercise diligence to discover this evidence was not a question involved, and the new evideuce introduced on the hearing of the motion for a new trial was not merely cumulative.

Cumulative testimony is additional testimony of the same hind, to the same point. It is not cumulative when it is of a different character, and tends to prove even a former proposition in issue by the testimony, by proof of a new and distinct fact. Railway Co. v. Forsyth, 49 Tex. 171; Wolf v. Mahan, 57 Tex. 171.

The testimony offered by appellant on his motion for a new trial in this case was original evidence, which he was unable to produce on the trial because it was not in existence, to establish a new fact, which fact tended to establish his alleged right to a judgment over against the General Bonding & Casualty Company in the event the appel-lee, Texas Fuel- & Supply Company should recover a judgment against him for the value of the brick involved in this suit. The materiality of the new evidence is manifest, and we think appellant’s motion for a new trial as between appellant and the General Bonding & Casualty Company should have been granted. Railway Co. v. Barron, 78 Tex. 421, 14 S. W. 698.

The judgment of the lower court will therefore, in so far as it is in favor of the Texas Fuel & Supply Company, and against appellant, be affirmed, but in so far as it is in favor of the General Bonding & Casualty Insurance Company and against appellant on his cross-action is reversed, and that branch of the case is temanded to the county court for a new trial.


author: HALL, J.

text:
    McLANE v. HAYDON.
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 8, 1913.
    Rehearing Denied Dec. 6, 1913.)
    1. Election of Remedies (§ 1) — Available Remedies.
    To sustain a defense founded on the doctrine of estoppel by the election of remedies, it must appear that plaintiff had two remedies and that he undertook to pursue one; his supposition that he had a particular remedy and his effort to enforce it being immaterial unless the remedy in fact existed.
    [Ed. Note. — For other cases, see Election of Remedies, Cent. Dig. § 1; Dec. Dig. § 1.]
    2. Election of Remedies (§ 11) — Equitable Assignment — Gaenishment.
    Where plaintiff had an equitable assignment of certain funds belonging to defendant in the hands of G., garnishment was not a proper remedy to recover the same, and his attempt to do so would not therefore constitute an election .of remedies precluding him from thereafter pursuing a proper one.
    [Ed. Note. — For other cases, see Election of Remedies, Cent. Dig. § 14; Dec. Dig. § 11.]
    3. Judgment (§ 243) — Against One Not a Paett — Peopee and Necessary Parties.
    Where, in a suit to recover the balance of the price of a business, plaintiff proved that he had an equitable assignment of a fund in the hands of G., who was not a party to the suit, belonging to defendant, a provision in a judgment in favor of plaintiff that he was entitled to recover such funds from G. was a nullity as to him, but he being a mere stakeholder or trustee, and not a necessary, though a proper, party, failure to make him a party did not invalidate the judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 428; Dec. Dig. § 243.]
    4. Sales (§ 347) — Action for Price — Defenses.
    In an action for the balance of the price of a business sold by plaintiff to defendant, allegations of the answer that defendant intended to pay the balance of the price with the proceeds of a homestead which had been purchased from money borrowed from his mother-in-law, and after taking possession of the business defendant had a nervous breakdown, when the mother-in-law “firmly and strenuously objected” to any more of the proceeds being invested in the business, were properly stricken as immaterial.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 962-972; Dec. Dig. § 347.]
    5. Sales (§ 348) — Action for Price — Recon-vention — Attachment and Garnishment-Damages.
    In an action for the balance of the purchase price of a business, defendant was .entitled to plead, in reconvention, damages suffered by the wrongful issuance of certain attachments and a garnishment by plaintiff arising out of the shine transaction.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 973-986; Dec. Dig. § 348.]
    Appeal from Hale County Court; ‘W. B. Lewis, Judge.
    Action by J. S. I-Iaydon against John B. McLane. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Y. W. Holmes, of Plainview, for appellant. Fred C. Pearce and L. C. Penry, both of Plainview, for appellee.

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

   HALL, J.

On the 30th day of September, 1912, appellant and appellee entered into a written contract for the sale of a certain stock of confectionery and fixtures owned by appellee in Hale county. By the terms of the contract the parties were to invoice the stock, foot up the liabilities of the business, deduct the liabilities from the invoice price, and appellant bound himself to pay to 'ap-pellee the difference in money. After the inventory was completed, it was ascertained that the balance due was $732. Upon failure of appellant to pay the amount, this suit was filed by appellee, setting up the terms of the contract, and that appellant had placed in the bank at Plainview his cheek for $200 ; that appellant advised plaintiff after the completion of the inventory that he did not have the money on hand to pay the balance but that he had sold certain real estate to one J. F. Garrison and was daily expecting Garrison to pay for the property; that it was then and there agreed that appellee should have and be entitled to the payment of the balance due out of the funds appellant was to receive from said Garrison; and that the same should be paid to appellee by Garrison. Relying upon this agreement, ap-pellee delivered to appellant the entire stock of goods and fixtures, which he would not have done but for said agreement; that, after taking charge of the business, appellant operated the same for his own use and benefit for about three weeks and sold therefrom about the sum of $600, which he appropriated to his own use; that appellant then advised appellee that he would not carry out the terms of the contract, stopped payment on his checks, and ordered Garrison not to pay plaintiff the sum of $750 or any sum whatever. There was a prayer for judgment for the sum of $750, with interest, and that the court order and adjudge the said sum of money above referred to as being in the hands of the said Garrison, to be subject to the payment of plaintiff’s debt.

The appellant’s answer to this petition contained numerous exceptions and answered specially that the contract between the parties provided that there should be deducted from the amount due defendant whatever debts might come against the business after-wards, and alleged that more than $200 in debts, which had not been listed by appellee at the time of the sale, had been ascertained since the sale was consummated. It is further alleged: That plaintiff fraudulently misrepresented the condition of the business and, in order to induce appellant to purchase the same and assume the debts, represented that it would require only about $600 in cash to pay said debts, whereas it required about $1,250 to pay the debts, $700 of which were then due. That these facts were not ascertained until long after appellant had taken possession of the business. The petition, however, asked no damages by reason of these fraudulent representations, nor is there a prayer for rescission of the contract. It is further alleged: That appellee falsely and fraudulently represented that the daily sales amounted to $25, which was untrue, and that he was induced by such fraudulent representations to enter into the contract and deceived thereby. That, about two weeks after appellant took possession of the business, he experienced a severe nervous attack and suffered a nervous breakdown on account of the high altitude and was advised by his physicians to leave the country. That he expected to pay for said business out of the proceeds of the sale of his homestead, but that the same had been purchased wholly with money borrowed from his mother-in-law, who lived with him, and for which he then still owed her, but says that when he experienced such nervous breakdown and it was found that he must leave the country, and the condition of the business had been found to be so different from what it had been represented by appellee to be, then his said mother-in-law firmly and strenuously objected to any more of the proceeds of the homestead being put into the business, for which reason defendant found it impossible to carry out his contract. That he offered the business back to appellee and at that time had not used one dollar of same for his own purposes, but instead had put every dollar taken in back into the business, together with about $100 of his own money, all of which he offered plaintiff and at the same time offered to render to him a full accounting, but that plaintiff refused to accept same under any consideration. The answer then pleads in reconvention for damages for the wrongful suing out of a writ of garnishment and two writs of attachment. This pleading was followed by a supplemental petition on the part of plaintiff, containing several exceptions. The court peremptorily instructed the jury to return a verdict in favor of plaintiff for the sum of $732 and interest and against defendant on his plea in reconvention.

The first question presented by the record for consideration is one of election of remedies. Upon the filing of the original petition, appellee sued out a writ of garnishment against J. F. Garrison upon the grounds that appellant' was indebted to him and had no property within this state subject to execution sufficient to satisfy said debt and averred that 3. F. Garrison was indebted to the appellant or that he had in his hands effects belonging to appellant.

As stated in Bandy v. Cates, 44 Tex. Civ. App. 38, 97 S. W. 710: “In order to sustain a defense founded upon that doctrine [estoppel by election], it must be made to appear that the plaintiff actually had two valid, available, 'and inconsistent remedies, and that he undertook to pursue one. His supposition that he had a particular remedy and his effort to enforce it is immaterial and does not constitute an election, unless the remedy in fact existed” — and this rule is followed in a number of later cases. Sullivan v. Ramsey, 155 S. W. 580; Gibson v. Oppenheimer, 154 S. W. 694; Whitney v. Parish of Vernon, 154 S. W. 264. It is definitely settled that, if the plaintiff by mistake should adopt a remedy to which he was not entitled, he would not be estopped from amending his petition and resorting to the proper remedy. Wilson v. Carroll, 50 S. W. 222.

Plaintiff’s pleadings show an equitable assignment, which, if true, would transfer the right to the fund in Garrison’s hands from appellant to appellee and carry with it the right on the part of appellee to file suit therefor. Under this state of facts, it is clear that garnishment was not a proper remedy for appellee to pursue. Being mistaken in his remedy, the rule governing where there had been an election of remedies does not apply.

The next question to be considered is raised indirectly by appellant in assignments based on the court’s action in overruling exceptions and exceptions to the judgment rendered. Upon verbal instructions by the court, the jury returned a verdict as above stated, and, after reciting the verdict, the judgment proceeds as follows: “And it appearing to the court that the plaintiff’s action is in addition to the fixing of his claim against defendant to subject, as against the defendant, to the payment thereof a certain fund in the hands of X F. Garrison to the satisfaction of said claim, and it appearing to the court that the same was assigned to the plaintiff by defendant to the extent of plaintiff’s claim against defendant, it is therefore ordered, adjudged, and decreed by the court that the plaintiff X S. Haydon do have and recover of and from the defendant, John B. MeLane, the sum of $732, with interest, etc. * * * It is further ordered, adjudged, and decreed by the court that, as between the plaintiff and defendant, the funds in the hands of said J. F. Garrison, described in the pleadings, the plaintiff is entitled to have the sum paid to him by said Garrison, to the extent of plaintiff’s judgment herein against the defendant.” In so far as this judgment attempts to control the action of Garrison with reference to the funds in his hands, it is clearly a nullity, since he was not a party to the suit. We have concluded that, while he was a proper party, he was not a necessary party defendant He occupied the position of a trustee of the fund or a stakeholder and, so far as this record discloses, has made no claim whatever to any part of it. Shelby v. Burtis, 18 Tex. 644; Perryman v. Smith, 32 S. W. 349. But the failure to make Garrison a party to this suit will not invalidate the judgment. Hammond v. Tarver, 89 Tex. 290, 32 S. W. 511, 34 S. W. 729. He should, however, upon another trial be made a party, unless he should pay the fund into court.

Appellee excepted to that part of appellant’s amended answer which alleged that, about two weeks after taking possession of the business, he had a severe nervous attack and suffered a nervous breakdown and was advised by his physician that on account of the high altitude he would have to leave the country; that the business had been purchased with money borrowed from his mother-in-law, who “firmly and strenuously objected” to any more of the proceeds of the homestead being invested in the business. We think the court was correct in sustaining the exception to this part of the pleading. While the potency of a mother-in-law’s ukase is recognized in our domestic affairs, we cannot permit it to be set up in the courts as justification for the breach of a binding contract, at least not yet; and, though a severe nervous breakdown is also a misfortune it cannot be held to be a defense in this case.

The court also sustained exceptions to the appellant’s plea in reeonvention for damages for the issuance of attachments and the garnishment. While the pleadings are not as full as they might have been, we think they were sufficient to admit the evidence which was introduced on that issue. The contract introduced in evidence provided tnat appellant should pay for the business In cash when the amount (being the original cost, less the indebtedness) was ascertained, and that he should assume the debts against the business. Appellee did not deny this allegation nor plead any agreement that he was to pay any part of the debts. After the inventory was completed and it was ascertained that $750 was the amount due, it was discovered upon looking over the inventory and list of claims that an item of $17 freight had been entered upon the list twice. Afterwards appellant ascertained that there was a debt of $199 against the business due one Morrison, and another of $10 due Warren & Samson, and possibly others. The evidence was conflicting as to who should pay these items. There was also some evidence tending to sustain appellant’s claim for damages on account of the attachments and garnishment writs being issued, and the evidence was also conflicting upon the issue as to whether or not the attachment writs had actually been levied. If, under the contract, appellant was bound to pay all of the debts against the business, the verdict peremptorily instructed against him is obviously too large; and, if he has suffered injury by reason of the attachment and garnishment proceedings, he had the right to have that issue also submitted to the jury. Appellant insists that the fund in the hands of Garrison, being the proceeds of the sale of his homestead, is exempt property. His pleadings do not raise this issue, and we cannot consider it here unless that fact is set up as an affirmative defense in the court below.

We think all of these issues, together with the issue as to whether or not there was an assignment of the fund, should upon another trial, under proper instructions, be submitted to the jury; and, because of the refusal of the court to do so, the judgment is reversed, and the cause remanded.


text:
    POLLARD v. McCRUMMEN et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 15, 1913.
    Rehearing Denied Dec. 6, 1913.)
    1. Appeal and Error (§ 737) — Assignments of Error — Sufficiency.
    In trespass to try title by a vendor against a purchaser who, it was claimed, had failed to comply with the contract, an assignment of error that the court erred in overruling defendant’s demurrer and the general demurrer, and in holding that plaintiff stated a good cause of action, it being alleged in the petition that plaintiffs had sold the land to defendants, and entered into the contract by which they agreed to enter into possession and place improvements thereon, and that, as soon as the improvements were so made, plaintiffs should execute and deliver to defendant a deed of conveyance, taking notes for the deferred payments, and it was not alleged that plaintiffs ever executed or offered to deliver the deed as they had contracted to do, and therefore did not allege a cause of action, was multifarious and too general to require consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3080-8032; Dec. Dig. § 737.*]
    2. Vendor and Purchaser (§ 104) — Tendee oe Deed — Necessity.
    In trespass to try title by a vendor under a contract which provided that the purchaser should become an actual settler upon the land and make certain improvements thereon, and that the vendor should then take vendor’s lien notes for the deferred payments, and make a good and sufficient deed to the land, where the petition alleged that prior to the institution of the suit the purchasers had repudiated the contract, claiming the land adversely to the vendors, and had asserted that he would not surrender the possession nor comply with the terms of the contract, an allegation of the execution of the deed, and a tender thereof into court, were unnecessary.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 178-182; Dec. Dig. § 104.]
    3. Vendor and Purchaser (§ 104) — Suit eor Rescission — Instructions — Conformity to Evidence.
    In trespass to try title by a vendor under a contract of sale which provided that the purchaser should give his note, secured by a chattel mortgage, for the earnest money, that he should become an actual settler upon the land, and place certain improvements thereon, and that the vendor should then take vendor’s lien notes for the deferred payments, with interest payable annually, and execute a deed to the land, where the evidence showed that the purchaser had occupied the land, cultivating, using, and enjoying the fruits thereof; that he had not offered to pay any interest, nor make any payments during the time he was in possession, and that he was not able to do so; that he had not executed the chattel mortgage to secure the earnest money note; that he had stated that the vendor had no title to the land, and that it was as much his as the vendor’s, and that he was not going to pay therefor; and it was not shown that he at any time offered to execute the vendor’s lien notes, and he did not tender them by his pleadings — an instruction that he could not recover for improvements on the land if he had himself refused to carry out the contract, and if the vendor was ready and willing to perform his part of the contract, was properly given.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 178-182; Dec. Dig. § 104.]
    4. Vendor and Purchaser (§ 105) — Suit eor Rescission — Instructions—Conformity to Evidence.
    In trespass to try title by a vendor under a contract which required the purchaser to make certain improvements on the land, where the evidence showed that the purchaser had failed to comply with the contract relative to giving-vendor’s lien notes and paying interest thereon, an instruction that if the purchaser refused to carry out the contract, and if the vendors were ready and willing to perform their part of the contract, the purchaser could not recover for such improvements, but that if the purchaser did comply with the contract, and was not in default, he should be allowed such sum as the land had been enhanced in value by such improvements, was a clear presentation of the law; and instructions that under the contract it was the duty of the vendors to make a deed, whether specially requested by the purchaser or not, and that if they did not do so, they had not complied with their contract, and must pay for the improvements, and that if the purchaser placed permanent and valuable improvements on the land, thereby enhancing the value thereof, he was entitled to such sum as the land had been enhanced in value thereby, were properly refused.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 183-187; Dec. Dig. § 105.]
    5.Vendor and Purchaser (§ 97) — Tender oe Deed — Necessity.
    Where a vendor was willing to comply with a contract of sale, but the purchaser repudiated the contract, the vendor was not bound to tender a deed before rescinding the contract and suing in trespass to try title.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 161, 162, 166; Dec. Dig. § 97.]
    Appeal from District Court, Lubbock County; W. R. Spencer, Judge.
    Action by M. C. McCrummen and others against P. J. Pollard. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    H. C. Ferguson, of Lubbock, for appellant. W. D. Benson, of Lubbock, for appellees.

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

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

   HALL, J.

On August 8, 1908, the appellant and appellee M. C. McCrummen entered into a contract for the sale by appellees to appellant of a certain half section of land in Lubbock county. It was stipulated in the contract that appellant should execute his note for $320, and secure the sanie by a mortgage on certain personal property set out in the contract, which said note should be delivered to appellee McCrummen, and should represent the earnest money on the sale; that said amount should be paid in the event appellant should fail to carry out his part of the contract. The total consideration for the land was $3,200, to be divided into 10 equal notes, to be dated August 8, 1908, and due January 1,' 1910 to 1919, respectively, each of said notes to bear interest at 8 per cent, from August 8, 1908, payable annually. It was further stipulated that appellant should become an actual settler on the land, put the same in cultivation during the spring of 1909, and make certain improvements thereon to the value of $320. “And when said improvements are placed on said land and the party of the second part has become an actual settler on the same, then the party of the first part is to surrender the first note herein described as being earnest money on this contract and then take the ten vendor’s lien notes for $320.00 each, as before described and make a good and sufficient deed to the above-described land.” There are other terms of the contract not necessary to be stated here. On March 23, 1912, the appellees filed this suit in the district court of Lubbock county, and by their first amended original petition they sought to recover, in trespass to try title, the land in question, and as a further plea set up the foregoing contract, specially pleading the terms above set out, alleging that they had complied with the terms of the contract in every respect and had prepared a deed of conveyance, conveying said lands to the defendant in accordance with the terms of the contract and tendered the same into court for delivery upon condition that the defendant should comply with the terms of the contract by executing the 10 notes provided for therein. It is further alleged that the defendant at no time offered to comply with the terms of the contract; that plaintiffs had been ready, willing, and able at all times to convey to the defendant a good and sufficient title to said property in accordance with the terms of the contract, and that on or about the 20th day of March, 1912, the plaintiffs had called on defendant to know what he was going to do with reference to the contract, and defendant then and there stated that plaintiffs did not have any title to said land, and that he, defendant, was not going to do anything, and was not going to make any payment of interest or principal, and was not going to pay any rents, and would not get off the land, and would not execute said notes nor comply with any of the terms of the contract. The defendant answered by general and special exceptions, alleging that plaintiffs had failed and refused to comply with the contract in that they had refused to execute and deliver the deed provided for therein; that defendant had placed valuable improvements on the land which had increased the value thereof in the sum of $2,150; prayed for a rescission of the contract, for the value of the improvements, and general relief. There was a trial before a jury, resulting in a judgment for appellees for the land and all improvements and against appellant on his cross-action.

The first assignment of error is that: “The court erred in overruling appellants’ demurrers and the general demurrer pleaded by appellee, and in holding that plaintiff stated a good cause of action and intended to recover on proof of the matters stated in said petition, it being alleged in said petition that plaintiffs had sold the land in controversy to appellant and entered into a mutual executory contract, by which appellant agreed to enter into possession of the land and place improvements thereon of the value of $320, in the spring of 1909, and as soon as the improvements were so much, that plaintiffs should execute and deliver to appellant a deed of conveyance to the land, taking notes for the deferred payments, and it was not alleged that plaintiffs ever executed or offered to deliver the deed as they had contracted to do, and therefore did not allege a cause of action against appellant.” This assignment is multifarious, and too general to require consideration. We will say, however, that the court was correct in overruling the general demurrer. Plaintiff did allege the execution of the deed and by his petition tendered it into court, This allegation was not necessary, in view of the furthef allegation that prior to the institution of the suit the appellant had repudiated the contract, claiming the land adversely to appellees, and had asserted that he would not surrender the possession of the land nor comply with any of the terms of the contract. What is here said also disposes of the second assignment of error.

The third assignment of error, submitted as a proposition, is as follows: “The court erred in charging the jury that the defendant, P. J. Pollard, cannot recover for such improvements on the land in controversy if he has himself refused to carry out his contract, and if the jury find and believe from the evidence that plaintiffs were ready and willing to perform their part of the contract in evidence, and the defendant refused to perform the contract on his part, then and in that event the defendant, Pollard, would not be entitled to recover anything for the enhanced value of the land by reason of such improvements. The evidence establishing that the plaintiff had never offered to deliver the deed of conveyance or inform the defendant of their willingness to execute and deliver such deed, and that the defendant at no time refused to carry out the terms of his contract until plaintiffs had failed and refused for three years to deliver any deed, and the defendant’s refusal was wholly for the reason that plaintiffs refused to deliver his deed.” The charge of the court under the facts of this case is manifestly correct. Moore v. Giesecke, 76 Tex. 543, 13 S. W. 290; Kennedy v. Embry, 72 Tex. 387, 10 S. W. 88. This assignment of error is not sustained by the record. The .statement of facts shows that on August 8, 1908, the appellees executed a deed, properly acknowledged, in March, 1910, conveying the land in question to appellant, which by its terms seems to be strictly in accordance with the provisions of the contract. Appellant admits in his testimony that he never offered to pay any interest nor make any payments during the three years in which he was in possession of the premises and was not able to do so. It was admitted that he did not'execute the chattel mortgage to secure the first $320 note which was delivered to appellees in lieu of the earnest money. It is not shown that he offered at any time to execute the 10 vendor’s lien notes provided for in the contract, and has not tendered them by his pleadings in this suit. His testimony shows that he occupied the land, cultivating, using, and enjoying the fruits thereof, from soon after the date of the contract until the institution of this suit; that he told some of his neighbors about a year after the execution of the contract that McOrummen had no title to the land, and that the land was as much his as it was McOrummen’s; that he was not going to pay for it until he had a title; and that he wished he had contracted for the whole section instead of half of it, as he could have held the entire section as well as he could half. He moved on the land about the last of March, 1909, and betgan his improvements soon after moving thereon. The record does not sustain the statement made a part of the assignment by appellant. The assignment is overruled.

The fourth and seventh assignments are submitted together, and are as follows:

“Fourth. The court erred in refusing to charge the jury, as requested by appellant, as follows: ‘Under the contract between M. C. McOrummen and P. J. Pollard, read to you in evidence, it was a part of the obligation of M. O. McOrummen and the plaintiffs, to mate and tender to P. J. Pollard a deed of conveyance to the land in controversy within a reasonable time after $320 worth of improvements were placed on the land, and you are directed that as the plaintiffs admit in their pleadings that the improvements were placed on said land in the spring of 1909, as provided in the contract, you are directed that it was the duty of plaintiffs to make such deed within a reasonable time thereafter, whether it was specially requested byP. J. Pollard or not, and if they did not do so, they have not complied with their contract, and they must pay to said P. J. Pollard such sum, if any, as the land may have been enhanced in value by such improvements.’ ”

“Seventh. The trial court erred in refusing to instruct the jury as requested by appellant, as follows: ‘If you find and believe from the evidence that the defendant, Pollard, has placed permanent and valuable improvements on the land sued for, and that the land has been enhanced in value by reason of such improvements, you will find for the defendant, P. J. Pollard, such sum as you may find and believe the land has been enhanced in value by such improvements.’ ”

The evidence showed that Pollard had failed to comply with his part of the contract and the • charge requested under the fourth assignment was not a proper charge. The court gave the jury in charge the following: “The defendant, P. J. Pollard, claims that he has placed permanent and valuable improvements on the land in controversy, and that said land has been enhanced in value by reason of such improvements, and in this connection you are charged as a principle of law that the defendant, P. J. Pollard, cannot recover for such improvements on the land in controversy if he has himself refused to carry out his contract, and, if the jury find and believe from the evidence that plaintiffs were ready and willing to perform their part of the contract in evidence, and that the defendant refused to perform the contract on his part, then and in that event the defendant would not be entitled to recover anything for the enhanced value of the land by reason of said improvements, and if you so believe you will not allow him anything for the same; but, on the other hand, if you believe from the evidence that the defendant, P. J. Pollard, has complied with the terms of said contract on his part, and is not in default, then you will find a verdict in his favor for such sum as you may • believe from the evidence the land has been enhanced in value by such improvements.” This was a clear presentation of the law in so far as appellant’s rights were concerned, and under the evidence he was not entitled to have either of the special charges set out in the fourth and seventh assignments given to the jury.

By his sixth assignment, appellant insists that the court should have instructed the jury that if they believed from the evidence that the plaintiffs never offered to deliver a deed to. the land until after the suit was brought, they would be bound to pay to the defendant the value of the improvements claimed by him. This assignment is not well taken. The record shows that prior to the institution of the suit appellant had repudiated the contract, and the law does not require the doing of a vain thing, but we think the facts sufficiently show a willingness on the part of appellees to comply with the contract by the delivery of a deed at any time appellant had manifested a willingness on his part to consummate the sale.

There being no reversible error, the judgment is affirmed.


author: FLY, C. J.

text:
    STOCKWELL v. GLASPEY et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 19, 1913.
    Rehearing Denied Dec. 10, 1913.)
    1. Appeal and Eeboe (§ 742) — Assignments oe Eeboe — Statements Accompanying Assignments.
    References to the record do not constitute the statement following an assignment of error required by the rules.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    2. Judges (§ 47) — Disqualification—Constitutional AND STATUTOBY PEOVISIONS.
    Under Const, art. 5, § 11, and Rev. Civ. St. 1911, art. 1675, both of which provide that no judge shall sit in any case wherein he is interested or where he shall have been of counsel in the case, a trial judge is not disqualified by his interest in the question involved, as distinguished from the result of the suit, or by the fact that he has been of counsel between the parties in a different case.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 214-219, 222, 223; Dee. Dig. § 47.]
    3. Appeal and Error (§ 742) — Assignments ob Errob — Statement and Proposition — Necessity.
    An assignment of error which is not followed by a statement or proposition will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. § 742.]
    4. Appeal and Error (§ 759) — Briefs—Necessity op Copying Assignments op Error.
    Where assignments of error are not copied in appellant’s brief but are merely referred to as contained in certain pages of the transcript, they will not be considered.
    [Ed. Note — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.]
    5. Appeal and Eerob (§ 742) — Assignments • op Error — Statements Accompanying Assignments.
    A reference under an assignment of error to a statement of material facts proved in. a different portion of the brief is not such a statement as is required by the rules.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    6. Appeal and Error (§ 742) — Assignments op Error — Sufficiency.
    Assignments of error which are general and indefinite and are not made clear by propositions or statements will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 74Z.J
    Appeal from District Court, Brazoria County; Louis J. Wilson, Special Judge.
    Action by W. R. Stockwell against Charles Glaspey and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Elmer P. Stockwell, of Angleton, for appellant. Masterson & Rucks, of Angleton, and H. Grass, of Alvin, for appellees.

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

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

   FLY, C. J.

This is a suit instituted by appellant against 11 of the Glaspey family, two Mullens, and six Clines to enforce specific performance of an alleged contract to convey to him a tract of 100 acres of land out of the Francis Moore league in Brazoria county and in the alternative for $1,500 damages arising from the increased value of the land. Appellees answered by general and special demurrers and general denial. A trial by jury resulted in a verdict in favor of ap-pellees under instructions by the court to return such verdict. Upon that verdict was rendered the judgment from which this appeal has been perfected.

The first assignment of error presents the question of the disqualification of the special judge to try the cause. The statement following the assignment is quite unsatisfactory and fails to indicate the matters disqualifying the trial judge. References to the record do not constitute the statement contemplated by the rules. However, the record fails to show that the judge was interested in the suit, or that he had been of counsel, or that he was connected with either of the parties by affinity or consanguinity within the third degree. These are the only causes which disqualify a trial judge under article 5, § 11, of the Constitution, and article 1675, Rev. Stats. 1911. Where the interest of the trial judge is simply in the question involved and not in the result of the suit, and even where he has been of counsel between the defendant and other plaintiffs in a different case, he is not disqualified. Taylor v. Williams, 26 Tex. 583; Railway v. Ryan, 44 Tex. 426; McFaddin v. Preston, 54 Tex. 403; King v. Sapp, 66 Tex. 519, 2 S. W. 573.

The fifth assignment of error is not followed by a statement or proposition and will not be considered. We cannot accede to the request to consider appellant’s assignments from 5 to 23 which apply to errors in excluding evidence, although only the fifth is copied into the brief. It may be that, “because of such peremptory instruction and limited time and space, such assignments are not copied but referred to as contained in 47 to 51 of transcript,” as stated in the brief, but this court cannot take upon itself the burdens which must be borne by those engaged in litigation.

The twenty-third assignment of error is overruled. It is not followed by such a statement as is contemplated by the rules. It refers to a “statement of material facts proven on pages of this brief.” The evidence, however, fails to show that appellees ever agreed in writing to sell the land in controversy to appellant or Pickert, or that either accepted any offer made in connection with it. No contract of sale was ever signed by appellees. The sale, if made, was conditioned on its approval by a court. The evidence failed to show a sale by Pickert to appellant.

The sixth, seventh, eighth, ninth, and tenth assignments of error are too general and indefinite to be considered. They are not made clear by propositions or statements.

The judgment is affirmed.


text:
    PAYNE et al. v. SNYDER.
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 19, 1913.
    Rehearing Denied Dec. 10, 1913.)
    1. Trial (§ 255) — Instructions — Request to Charge.
    Where declarations of one of several defendants in a suit to set aside certain conveyances of land for fraud and collusion were admissible against the declarant, it was not error for the court to omit to charge that the evidence was inadmissible against the other defendants, in the absence of a request by them so to charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. § 255.]
    2. Vendor and Purchaser (§ 244*) — Fraud— Bona Fide Purchaser — Evidence.
    In a suit to set aside certain deeds by which valuable land had been obtained from complainant in exchange for certain worthless stock in an insolvent corporation and later conveyed to defendant E., evidence held to justify a finding that E. was not a bona fide purchaser; he knowing that all of the other defendants participated in or had knowledge of the fraud.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 609-611; Dec. Dig. § 244.]
    Appeal from District Court, Brazoria County; Louis J. Wilson, Special Judge.
    Suit by Mary C. Snyder against L. H. Payne and others. Judgment for complainant, and defendants appeal.
    Affirmed.
    Lane, Wolters & Storey and Wm. A. Vinson, all of Houston, for appellants. Munson & Munson and Masterson & Rucks, all of Angleton, for appellee.

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

   FLY, C. J.

This is á suit instituted by appellee, a widow, of Franklin county, Ohio, against L. H. Payne, William J. Brewer, Evan A. Evans, and John T. Evans to cancel certain deeds made by her to Payne and Brewer, by Brewer to Payne, and by Payne to Evan A. Evans. She alleged that the deed from her to Brewer and Payne was obtained by certain fraudulent representations made by appellants, by which she was induced to part with her title to her land in exchange for 30,000 worthless shares in the Genoa Orange & Fig Company, which was insolvent and owned no property, that Evan A. Evans and John T. Evans were parties to the fraud, and that, in pursuance of the fraudulent, design of the conspirators, the deed was obtained from her, then Brewer sold to Payne, and immediately Payne sold to Evan A. Evans. The cause was tried by jury and resulted in a verdict and judgment in favor of appellee as against all the parties except John T. Evans. This appeal was perfected by Payne, Brewer and Evan A. Evans, but no brief has been filed in this court except in behalf of Evan A. Evans, and it will be proper to consider this case on the theory that as to Brewer and Payne the judgment is fully sustained by the law and the facts, as the record clearly • indicates.

The assignments of error from the first to the eighth inclusive assail the action of the court in admitting the declarations of William J. Brewer, the proposition being that such declarations, having been made after Brewer had parted with the title to the land in controversy, and not made in the presence of L. H. Payne or Evan A. Evans, were inadmissible, as against them, to establish fraud and collusion or a conspiracy. The evidence máy have been inadmissible so far as Payne and Evans were concerned, but it was admissible as against Brewer. This proposition is acceded to in the brief of appellants wherein it is stated: “We are not contending that this testimony was not admissible as against Wm. J. Brewer as tending to show fraud on his part and misrepresentations to Mrs. Snyder, inducing the execution of the original agreement. If it had been so limited, we would now have no complaint to urge, but the court unquestionably admitted it as against Evan A. Evans. * * * ” The testimony might properly have been limited in its operation and effect to Brewer, but the duty devolved upon appellants to request a charge so limiting it, and, having failed to request, such limitation will not be permitted to profit by the failure of the court to limit the scope of the testimony. Shumard v. Brown, 66 Tex. 72, 17 S. W. 398; Walker v. Brown, 66 Tex. 556, 1 S. W. 797; Railway v. Johnson, 72 Tex. 95, 10 S. W. 325; Railway v. George, 85 Tex. 158, 19 S. W. 1036; Ins. Co. v. Baker, 10 Tex. Civ. App. 515, 31 S. W. 1072; Sullivan v. Fant, 51 Tex. Civ. App. 6, 110 S. W. 507. The assignments of error are therefore, overruled.

The only remaining assignment of error questions the sufficiency of the evidence to sustain the verdict of the jury as to Evan A. Evans. The evidence clearly indicates that a fraud was perpetrated by Payne and Brewer, officers of the Genoa Orange & Fig Company on appellee, and that her tract of 190 acres of valuable land was conveyed by her to Payne and Brewer for a lot of worthless stock in an insolvent corporation; that the brother of Evan A. Evans, who was also his attorney, living in his home with him, drew all the papers in the transaction, and knew that the land was being conveyed for stock that was utterly worthless. The contract of sale was drawn by said attorney, and on the same day Brewer sold his interest in the land to Payne and the latter sold the land to Evan A. Evans. All of these transactions took place on the same day, except the execution of the deed by Mrs. Snyder. Evan A. Evans claims that he was a purchaser, without notice, for value. While the contract of sale was being prepared in Chicago, Brewer stated to Mrs. Snyder that Evan A. Evans was an owner of some of the stock. This statement was made in introducing the attorney, John T. Evans, who Brewer said' was a brother of Evan A. Evans. Brewer represented that Evan A. Evans was. a banker, and would be a director of the company. Those representations were not challenged by the attorney and brother of Evan A. Evans. Payne was an old acquaintance of Evan A. Evans, and had been connected with him in business during 11 or 12 years. Evans testified that, prior to March, 1911, the month in which the land in controversy was sold to him by Payne, he had some knowledge of the affairs of the Genoa Orange & Fig Company, and had discussed its affairs with Brewer and Payne three or four times. They tried to interest him in the promotion of the company. Evans had never seen the land when he bought it. The deed from Payne recited that the consideration was $1 and other considerations; and, although Evan A. Evans testified that he only paid a part of the purchase money in cash, no vendor’s lien was retained. Brewer swore that he had discussed the affairs of the company with Evan A. Evans, and he was to advance money towards the development of the company’s plans. The testimony of John T. Evans shows that he must have known that the Genoa Orange & Fig Company was heavily involved on the day he drew the dissolution papers between Brewer and Payne in which the Snyder land was conveyed to Payne. He must have known the company was heavily indebted. Evan A. Evans admitted that he had talked with Brewer and Payne about the company’s affairs. He stated that Brewer and Payne wanted to tell him about the financial condition of the company, but he would not let them do so. He bought the land without seeing it or knowing anything about it. The note executed by Evan A. Evans was for $36.65, but he testified that the word, “hundred” was omitted by mistake, and that it was paid off without him or his bookkeeper discovering the mistake. He knew that the consideration paid to Mrs. Snyder for the land was stock in the company, although he swore positively, after some evasion, that Payne and Brewer had not told him that the land had been obtained by them in exchange for stock in the Genoa Orange & Fig Company. He testified through his deposition that he “knew that Payne & Brewer had gotten this tract of land from some one in Columbus, Ohio, on a business deal involving some stock in the Genoa Orange & Fig Company,” but tried to evade the issue in his testimony at the trial. He also testified on the trial that he bought the land at the time that Payne first proposed to sell it, but in his deposition he stated that Payne spoke to him about selling it four or five days before he bought it. There was testimony tending to show that Payne obtained an option on the land on the day he sold it to Evan A. Evans. The latter knew that Brewer had sold his part of the land to Payne. The note, if paid at all, was paid after this suit had been instituted and full notice given, and was paid to a man who did not testify, and it was not shown to Evan A. Evans that he paid anything for it. Who Davidson was did not appear, but Payne was with him when the note was paid. It was -paid without any questions being asked of Davidson or of Payne, although this suit had been filed some time before, charging a conspiracy to defraud Mrs. Snyder. When the deposition of Evan A. Evans was taken, by the appellee, he stated that he did not know where the note was. He produced it at the trial. That statement was made on February 21, 1912, and yet John T. Evans swore that he and his brother had located the note in Galesburg, Ill., in September, 1911, and said he knew it was there in February, 1912. Payne swore that he told Evan A. Evans about getting the land from appel-lee before he sold to Evans, and that after the sale Evans said: “Payne, I am going to make you my agent, and turn the place over to you as my agent, and handle it as your own.” Afterwards Payne came to Texas and told Phillips, who lived in Angleton, Tex., that he owned. the place, had traded for. it. He afterwards rented the place and treated it as his own, although he swore he was acting for Evan A. Evans. Payne swore he told Evan A. Evans all about the affairs of the company, and about 2,400 acres of land it had bought from Dr. Knox. John T. Evans, the brother and attorney of Evan A. Evans, knew that Brewer and Payne had traded 30,000 shares of stock to appellee for the land, which they had told her were’ worth $30,000, and yet immediately Payne’ sold the land to Evan A. Evans for $5,665.

The circumstances show that a fraud was perpetrated upon appellee, and point to the further fact that both the Evans were parties to it, and that the conspiracy was so-arranged and executed that the role of innocent purchaser could be assumed by Evan A. Evans, and the property covered up and held for the benefit of the parties to the-fraud. It is seldom that a conspiracy can be proved by direct evidence, but resort must be had to circumstances which often, when combined and linked, form “proof as strong as Holy Writ.” The circumstances in this case lead irresistibly to the conclusion that Evan A. Evans was acquainted with all the facts about the Genoa Orange & Fig Company of which his friend of many years and associate in business was cognizant, and that he was a party to the scheme of passing the title to the land from one to another of the-conspirators until they had it in a position where they concluded that the role of innocent purchaser could be staged and played. 'Evan A. Evans had enough facts to put any sane man on notice, and his testimony clearly indicates that he is a shrewd, vigilant business man. It is utterly improbable that he talked with Brewer and especially his friend, Payne, several times about the company’s condition and did not ascertain anything. He must have been cognizant of the whole scheme to defraud appellee out of her property.

Appellant Evans states, if this court concludes that there were circumstances putting him upon inquiry, that it must be further held that inquiry would have led to notice of the fraud, and asks the question: “If there were facts or circumstances putting Evan A. Evans upon inquiry, where would they have led him?” They might have led him to Texas, where he could have ascertained all the facts; they might have led him to his friend, Payne, who Evans testified wanted to tell him all about the financial condition of the company, and who might have disclosed to him the fact that a fraud had been perpetrated by shrewd promoters upon an unsuspecting widow. He could have ascertained the facts if he had desired, if he was not already in possession of all of them and a party to the fraud.

The judgment is affirmed.