text:
    COTTON v. COOPER.
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 22, 1913.
    On Motion for Rehearing, Nov. 26, 1913.)
    1. Master and Servant (§ 341) — Malicious Procurement of Dischar&e —Petition — Sufficiency.
    Where a petition alleged that defendants, falsely claiming that plaintiff was indebted to them, filed with his employer copies of instruments purporting to be assignments of his wages, that his employer had in force a custom or rule that any employé known to have given such an assignment should at once be discharged, that defendants were aware of such rule and aware that plaintiff was not indebted to them, but that they nevertheless wrongfully, willfully, and maliciously and with wanton disregard of the rights of plaintiff and for the purpose of procuring his discharge filed copies of such assignments with notice thereof with the employer, and that because thereof plaintiff was discharged and his wages withheld, it was not necessary for it to allege that the employer was put in fear or coerced to act without its consent.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 1286; Dec. Dig. § 341.}

      2. Master and Servant (§ 341) — Malicious Procurement oe Discharge — Petition— Sufficiency.
    Such petition was sufficient to sustain a recovery both for actual and exemplary damages.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1286; Dec. Dig. § 341.]
    3. Appeal and Error (§ 750) — Assignments of Error — Scope and Effect of Assignment.
    An assignment of error that there is no evidence to support the verdict or upon which a charge can be predicated raises only the question whether there is any evidence upon which the verdict or charge might be based.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3074-3083; Dec. Dig. § 750.]
    4. Master and Servant (§ 341) — Malicious Procurement of Discharge — Instructions —‘ ‘Malice’ ’ — “Maliciously. ’ ’
    In an action for procuring an employé’s discharge by filing purported assignments of his wages with his employer with knowledge that the employer had a rule that employes, assigning their wages should be discharged, the court charged that “malice” did not mean personal spite or ill will, that an allegation that an act was “maliciously” done did not mean that it was done for that reason or in such spirit, but meant an unlawful act done in reckless disregard of the rights of another and in a spirit of indifference as to whether such other party was injured or not, that exemplary damages could only be awarded where actual damages were found, that in addition to finding actual damages it must be shown by 'a preponderance of the evidence that the defendant filed or caused such assignment to be filed, knowing that plaintiff had discharged the obligation due defendant with interest, or that it was filed with his knowledge and approval, or in pursuance of directions given by him to his agents as to how they should deal with plaintiff if he did not meet his obligations, which he had reason to believe would be followed, and that he' knew or had reason to believe that plaintiff’s discharge would follow such filing, and that he gave such directions in such spirit and with such motive as would make the filing malicious as that term had been defined, that he could not be held responsible in exemplary damages for the action of his agent unless he was so connected with or responsible for such action as to make his action, in connection therewith, malicious, and that if his agent filed the assignment without his knowledge. or direction and not in pursuance of his directions as to how plaintiff should be dealt with, given in such spirit and with such purpose as to make the act malicious, to find for defendant on the claim of exemplary damages. Held, that the charge as a whole was a clear and correct presentation of the law.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1286; Dec. Dig. § 341. For other definitions, see Words and Phrases, vol. 5, pp. 4298-4304; vol. 8, pp. 7712, 7713; vol. 5, pp. 4311-4313; vol. 8, p. 7714.]
    5. Master and Servant (§ 341*) — Malicious Procurement of Discharge — Sufficiency of Evidence.
    In an action for maliciously procuring an employé’s discharge by filing purported assignments of his wages with his employer which had a rule or custom that employés assigning their wages should be discharged, evidence held to support a jury finding that defendant knew and approved of such filing by his agent.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1286; Dee. Dig. § 341.*]
    6. Evidence (§ 595*) — Weight and Sufficiency-Inferences.
    Direct evidence is not required by law, and juries may indulge all reasonable inference from the facts shown by the evidence, or which unbiased and rational minds can properly deduce from the facts proved.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2444, 2445; Dec. Dig. § 595.*]
    7. Master and Servant (§ 341*) — Malicious Procurement of Discharge — Questions for Jury.
    In an action for maliciously procuring an employé’s discharge, where the evidence sharply presented the issue of whether the proximate cause of the discharge was the -employé’s execution of an assignment of his wages, or the as-signee’s wrongful act in giving the employer notice thereof after the loan secured thereby had been paid, the court did not err in submiting such issue to the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1286; Dec. Dig. § 341.*]
    8. Appeal and Error (§ 1064*) — Harmless Error — Withdrawal of Evidence.
    In an action for maliciously procuring an employé’s discharge by filing assignments of his wages with his employer which had a rule that employés assigning their wages should be discharged, it appeared that plaintiff had sued de-defendant in justice’s court to recover a sum usuriously collected on the loan secured by such assignment and had recovered a judgment from which defendant had appealed to the county court. Held that, while the appeal annulled the judgment of the justice court, the withdrawal of such evidence from the jury could not have prejudiced plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.*]
    On Motion for Rehearing.
    9. Assignments (§ 11*) — Sales of Property— “Wages.”
    Wages earned under an existing or known and identified employment are property subject to sale or assignment as other property, if the transaction is in good faith and is-intended to be, and is in fact, a sale and not a usurious loan under the guise of a sale.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 19-23; Dee. Dig. § 11.*
    For other definitions, see Words and Phrases, vol. 8, pp. 7369-7373, 7831.]
    10. Usury (§ 119*) — Nature of Transaction —Questions for Jury.
    Whether a contract apparently innocent upon its face, but which is questioned by the pleading and evidence', is usurious, is a question for the jury.
    [Ed. Note. — For other eases, see Usury, Cent. Dig. §§ 343-357; Dec. Dig. § 119.*]
    11. Appeal and Error (§ 917*) — Reservation of Grounds of Review — Waiver of Error.
    Where the record does not show that demurrers or exceptions to the petition were ever presented to or ruled upon by the trial court, they will be presumed on appeal to have been waived.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3706-3709; Dec. Dig. § 917.*]
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
    Action by Will Cooper against Almon Cotton and another. From a judgment for plaintiff, the defendant named appeals.
    Affirmed.

      J. V. Meek, of Houston, for appellant. K. C. Barkley, John E. Green, Jr., and Ashley N. Denton, all 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 cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   TALIAFERRO, J.

This is the suit of Will Cooper against Almon Cotton and G. E. Cotton to recover actual damages in the sum of $700, alleged to have been suffered by ap-pellee by reason of the wrongful, fraudulent, and malicious conduct of the Cottons and their agents, and for $5,000 punitive damages. Appellee alleged:' That the defendants, falsely claimed that he was indebted to them in the sum of $35, filed with the Houston & Texas Central Railway Company, his employer, copies of two written instruments; purporting to be assignments made by the plaintiff of portions of his salary or wages to Almon Cotton. That at the time the said assignments were filed by the defendants the said railway company had in force a custom ox rule, to the effect that any employé known to have given an assignment of any part of his salary or wages should at once be discharged from its service. That although the defendants were aware of such rule at the time, and were also aware that at such time he was not indebted to them in any sum, that they nevertheless wrongfully, willfully, and maliciously, and with wanton disregard of the rights of the plaintiff, and for the purpose of procuring his discharge, filed copies of said assignments together with notice thereof with the said railway company, and that because of the acts of defendants complained of he was discharged by the said railway company from their service and his wages then due were withheld from him. Trial in the district court before a jury resulted in a verdict and judgment for plaintiff against Almon Cotton for $400 actual damages and $3,500 exemplary damages.

It is necessary, for a comprehension of the case, to recite the facts which led up to this suit and to reveal the devious and disgusting details of the methods used by those engaged in the business of extracting usury from the ignorant and helpless; but only such facts as may be necessary will be discussed.

Almon Cotton is father of G. E. Cotton. G. E. Cotton is 28 years old, and appellants’ evidence impresses upon us that he is married and has four children. Almon Cotton owns and operates what he calls “loan offices” in many of the Southern states, in Louisiana, Mississippi, Alabama, Florida, Arkansas, and Texas, apparently only where ignorant negro labor is abundant. In some cities he conducted several of these agencies or loan offices, always under high-sounding names, such as the “Dixie Loan Company,” or some name concealing his own identity and calculated to give to the public the impression of a corporation. In Houston, Tex., he operated the Texas' Loan Company, the Empire Loan Company, the New York Loan Company, and the Eagle Loan Company. His business was to loan money on chattels and to “buy” salaries or wages. And this was his method: His own office, called “Central Office,” was in one of the large office buildings of the city of Houston. His various loan companies were scattered about town. In general charge of the loan offices he had one L. H. Joyner, who was his general agent and manager, vested with full authority to act at all times. He also had “outside men” whose duty it was, among others, to advise the needy and helpless that they could always get money from one of Cotton’s institutions. The interest charged upon loans seemed uniformly to be 20 per cent, per month to whites and 30 per cent, per month to negroes. Each office had positive orders not to make a “loan” upon salaries or wages, but, instead, to “buy” salaries and wages or any such part thereof as the customer should desire to sell and to take an assignment of such an amount thereof as should be “bought” together with power of attorney to Almon Cotton to collect from the borrower’s employer. The advances were made in this manner: The borrower executed his assignment and power of attorney, we will say, for $19.50, and was thereupon given $15 in cash. At the end of the month he was “permitted” to collect his own salary and bring in the portion which he had pledged to the loan office. If he desired to retain the money he had borrrowed, he did not pay the '30 per cent, interest and renew the obligation. Instead, he went through the formality of paying $19.50 in cash. He then execut-a new obligation and assignment and received back $15 of the money paid by him. An extract from a page of the tabulation of accounts, made by the general manager for use in this suit, is as follows:

Appellee Cooper, in December, 1909, negotiated with appellants’ office, known as the Texas Loan’ Company, what he thought was a loan of $10 on his salary. The contract he signed was for $13, which, instead of being in form of a loan, was written so that it appeared that he had “sold” that portion of his salary to accrue the succeeding month and also made a power of attorney for the collection of the amount by Cotton. Cooper was a negro brakeman or yardman in the service of the Houston & Texas Central Railway Company, earning about $115 per month. He could not read or write, and the paper which he signed was never read to him. Monthly thereafter, with perhaps a few exceptions, he renewed this loan in the manner above described, up to the time of beginning litigation with appellant. The amount was increaseó or was made less in accordance with his needs; it appearing that at least once he was entirely out of debt to Cotton. He also had some dealings with another of Cotton’s loan offices. The method of doing business was always the same and the rate of interest was always the same. In August of 1911, litigation was begun between appellee and appellant in the courts of Harris county involving the transactions above mentioned. On January 2, 1912, Almon Cotton transferred all his loan business in Texas to G. E. Cotton, his son. The terms of that assignment, briefly stated, were: The consideration was $300,-000 all on credit. G. E. Cotton executed his note for that sum to Almon Cotton, due on or before two years after date, and bearing 8 per cent, interest. In case the note should not be paid at maturity, G. E. Cotton agreed to convey the business to any one named by Almon Cotton and at the price fixed toy him. And it was also agreed that all the moneys collected by G. E. Cotton, whether principal or interest, except necessary operating. expenses and a salary of $100 per month to be retained by him for his services, should be “turned over to Almon Cotton or placed in the Commercial National Bank of Houston, Tex., to his credit.” He agreed to apply such money first to payment of interest and next to discharge of the principal. Almon Cotton was a man of large means, while G. E. Cotton was then insolvent and wholly execution proof. No effort was made to show that the business, purported to have been sold to G. E. Cotton, was worth $300,000 or any other sum. At this time the litigation filed by Cooper against Almon Cotton was pending. On January 8, 1912, L. H. Joyner, who claimed he was acting under the advice of J. V. Meek, attorney for Almon Cotton, wrote upon the back of the two salary assignments referred to an indorsement, “Without recourse,” to G. E. Cotton, which was then signed Almon Cotton. Joyner then filed copies of said assignments with the Houston & Texas Central Railway Company accompanied by a letter asserting that appellee was then indebted to G. E. Cotton, assignee of Almon Cotton, in the sum of $35 upon those assignments. The railway company at once discharged Cooper and retained funds due to him in the sum of $99.69 to satisfy the appellants’ assignments. Further necessary facts will be stated in the opinion.

By his first assignment of error appellant contends that the court erred in not sustaining his general demurrer to appellee’s second amended original petition upon the ground that the petition nowhere alleges “that the defendant acted maliciously and without justifiable cause, nor that the means adopted by the defendant were false statements or threats, or that he put in fear the plaintiff’s employer so that his acts in discharging plaintiff were not voluntary.”

There are three propositions presented under this assignment, all of which may state very correct propositions of law in themselves, but none of which in any sense are applicable to the law or facts in this case. In the main part this assignment of error Is too abstract to be considered. In stating a cause of action against appellant it was not in any manner necessary that the plaintiff should allege that his employer was put in fear or coerced to act without its consent. The plaintiff did allege in the most positive terms that the acts of appellant were malicious, wanton, unjustified, and that all his statements were false and known by him to be false. Stronger language could hardly be used than that employed by appellee in his allegation of appellant’s willful, deliberate, wanton, and malicious effort to obtain his discharge from employment because he refused to pay a debt which he alleged had been long since paid.

The first assignment of error is overruled, and so also are the second, third, fourth, fifth, and sixth, all of which question the sufficiency of the petition against general demurrer. The petition is not subject to any of the objections urged in these assignments.

The seventh assignment of error is overruled. It questions the sufficiency of the petition by what is called a special exception, but which in fact is a general demurrer. It contends that no facts are alleged sufficient to sustain a recovery either for actual or exemplary damages. We consider the allegations upon both these matters amply sufficient. The ninth and tenth assignments of error urge the same objection to the petition and for like reason are overruled.

In his second proposition under his eleventh assignment of error appellant contends that the court erred in his charge submitted upon the issue of malice, upon the ground, as he asserts, that there is “not a scintilla of evidence that the defendant Al-mon Cotton knew that the power of attorney had been filed or notice thereof given to ap-pellee’s employer.” Under an assignment of error which asserts that there is no evidence to support the verdict or upon which a charge of the court can be predicated, this court is confined to the determination of the one question of whether there was any evidence upon which the verdict might have been based or the charge given. Railway Co. v. Raney, 86 Tex. 363, 25 S. W. 11. The charge complained of was as follows:

“Malice, as used in law and in this charge, does not mean personal spite or ill will, and the allegation that an act was ‘maliciously’ done does not mean that it was done for that reason, or in such spirit, but it means an unlawful act done in reckless disregard of the rights of another and in a spirit of indifference as to whether such other party is injured or not. When an act is done in that spirit and with such malice, it is said in law to be done maliciously, or upon legal ‘malice.’
“Concerning the claim for exemplary damages, you are instructed that such damages can only be awarded where actual damages are found, and, In addition to finding actual damages, it must be shown by a preponderance of the evidence that defendant Almon Cotton filed or caused to be filed the assignment at a time when he knew the plaintiff had paid enough to discharge the obligation due him (defendant) with interest at 10 peí-cent. per annum, or that the same was filed with his knowledge and approval, or that it was filed in pursuance of directions given by him, to his agents, as to how they should deal with plaintiff if he did not meet his obligations, which he had reason to believe would be followed, and that he knew, or had reason to believe, that plaintiff’s discharge would follow such filing, and that defendant Almon Cotton gave such directions in such spirit and with such motive as you are instructed in paragraph 3 would make the filing ‘malicious’ on his part, as that term is defined in paragraph 3.
“The defendant cannot be held responsible in exemplary damages for the action of his agent unless the proof shows that he was so connected with or so responsible for such action as to make his action in connection therewith ‘malicious,’ as that term has been defined in paragraph 3.
“If defendant’s agent filed the assignment without his knowledge or direction, and not in pursuance of the directions of defendant, as to how the plaintiff should be dealt with, given in such spirit and such purpose as to make the act malicious, as that term has been defined, then you will find against plaintiff and for defendant on the claim of exemplary damages.”

Only the first paragraph of the above is contained in appellant’s eleventh assignment, but a proper comprehension of the point cannot be had without showing the court’s whole charge upon the question. As a whole, it is a clear and correct presentation of the law, and it only remains to determine whether there was evidence to justify the charge and to support the verdict of the jury upon the igsue.

Direct evidence is not required by law, and juries are allowed to indulge all reasonable inference from the facts revealed to them by the evidence, or which unbiased and rational minds can properly deduce from the facts adduced before them. Schumick v. Noll, 72 Tex. 1, 8 S. W. 83; Stookbury v. Swan, 85 Tex. 563, 22 S. W. 963; Earley v. Railway Co., 34 Tex. Civ. App. 81, 77 S. W. 1040; El Paso Foundry Co. v. De Guereque, 46 Tex. Civ. App. 86, 101 S. W. 814; 1 Greenleaf on Ev. (15th Ed.) § 48. If this were not so, it would often be impossible to reach the rational conclusions that are inevitable deductions from proven facts. The very • nature of the proof here sought 'belongs in that class. Almon Cotton was sole owner of all the business and property of all those innumerable loan companies. Their every act was his act. It matters not whether he acted through Joyner, his factotum, or whether he acted alone; no other man’s approval or consent was sought 'or required. He knew that Will Cooper had an account running through his books; he knew he held Cooper’s powers of attorney; he knew the amount and the interest and the maturity and the effect of all these things. It matters not whether he had a personal knowledge of all these details — the knowledge was in possession of his agent, who, he himself admits, had full power and authority to act for him. The two assignments were presented to him on January 8, 1912, for his indorsement. They were on the same day forwarded, with a letter signed by Joyner, his general agent, to the railway company. On the 6th of January a judgment had been obtained against him in the courts of the county involving the validity of these very assignments and declaring them void. He says he had no knowledge as to why these papers were presented to him for indorsement or what Joyner and Meek intended to do with them, and that he did not know of their intention to file the papers with the railway company. If his testimony upon this matter was false, there was no possible way for appellee to impeach him. No man could look into his mind and discover the truth against his will. No other source of evidence could be found from which facts could be had to discover its falsity, if it was false. Therefore the law permits the court, or the jury trying the case, to weigh his evidence with the surrounding circumstances and the facts, otherwise in evidence, and decide whether or not he is to be believed. Under a proper charge in this case the jury found that Almon Cotton did know and approve of the filing of the Cooper assignments, and we believe the evidence amply supports the verdict. The first proposition under this assignment is not germane, and the assignment is overruled.

What has been said concerning the eleventh assignment of error also disposes of assignments Nos. 12, 13, 14, 15, 16, 20, 21, 22, 23, and 30. Each of them submits propositions contending that there is not “a scintilla” of evidence to justify the charge of the court or to sustain the verdict of the jury. We have with great care examined the record and studied the evidence, and have concluded that the evidence is sufficient in each instance, and the said assignments are overruled.

Appellant’s eighteenth and nineteenth assignments of error complain that the court submitted to the jury the issue of proximate cause of appellee’s discharge from his position. His proposition under these assignments is that, “where the evidence is undisputed on any question and shows what caused an act, it is improper for the court to submit to the jury the question of proximate cause.” The proposition states a correct rule of law, but it is not supported by the facts in this cause. The issue of proximate cause was sharply presented by the facts proven. Appellant contended that the evidence shows that appellee was discharged by his employer because he executed an assignment, while appellee’s contention was that his discharge was the proximate result of appellant’s wrongful act in giving his employer notice of the assignment. The jury decided the issue in favor of appellee, and, without discussing the matter further, we will say that we quite agree with the view taken by the jury. The eighteenth and nineteenth assignments are overruled. What has been said in reference to the eighteenth and nineteenth assignments also disposes of assignments Nos. 26, 27, 28, and 29.

The twenty-fourth assignment of error complains because the court instructed the jury “not to consider the judgment rendered in the justice’s court as testimony in this cause, as it has no legal bearing,” etc. If this was error, we fail to see how it could have damaged the appellant. The evidence was that appellee had filed suit in the justice’s court against appellant to recover the sum of $66, alleged to have been usuriously collected by appellant from him upon a loan of $36; the very debt involved in this suit. The justice of the peace gave appellee a judgment for the amount sued for. Appellant took an appeal to the county court where the case was pending at the date of this trial. The contention is that appellant “was entitled to have the judgment remain before the jury for it to consider, to show that as a matter of fact there was no judgment in existence.” It is true that our courts have held that, on appeal from the justice to the county court, the trial there being de novo, has the effect of annulling the judgment in the justice’s court. Bender v. Lockett, 64 Tex. 566; Moore v. Jordan, 65 Tex. 395; Railway v. Mosty, 8 Tex. Civ. App. 330, 27 S. W. 1057; Harter v. Curry, 101 Tex. 187, 105 S. W. 988. But those were cases in which the status of the judgment was involved, while this is merely a matter of evidence. If the jury had been permitted to take into consideration the fact that a court of justice had rendered a judgment declaring appellee was not indebted to appellant and canceling the very instruments in question here, it is hard to see how it could have resulted to the benefit of the appellant. The record does not reveal at whose instance this evidence was withdrawn from the jury, but it is certain that its withdrawal could not have resulted in injury to the appellant, and the twenty-fourth assignment of error is overruled.

Appellant’s twenty-fifth assignment of error complains of the amount of the verdict, both for. actual and exemplary damages, and earnestly insists that they are excessive. We need only say that there is evidence to support the verdict, and the amount awarded, under the facts of this case, is far from shocking to the conscience of this court.

The judgment of the lower court is affirmed.

On Motion for Rehearing.

In his motion for rehearing appellant presents issues, which he contends are in this case, in a series of six questions. Such of them as may not seem to be fully discussed in the opinion of the court we will answer in their order:

First. “Oan a man assign his wages to be due at a future date from an employer for whom he is working at the time of the assignment? If so, can the purchaser pay for the wages assigned a less sum than the amount assigned, so that when the wages are paid the discount thereon will more than equal 10 per cent, on the amount advanced?”

To this we answer that it has been held to be lawful to assign all or any part of one’s salary or wages “earned under an existing or known and identified employment.” Wages are declared to be property, subject to sale or assignment as other property. McKneely v. Armstrong, 162 S. W. -, and cases cited; Owens v. State, 53 Tex. Cr. R. 105, 112 S. W. 1075, 126 Am. St. Rep. 772. And it may reasonably follow that the consideration paid will not be a material inquiry by the courts so long as the transaction is in good faith, intended to be and is in fact a sale of such property. But we have held and now reaffirm that the pleadings and evidence in this case raise the issue of the good faith of appellant in the transaction. The jury found under the evidence that the transaction was in fact a loan under the guise of a sale and in effect that appellant’s act was an effort to avoid and defeat the usury law. The intent of the laws against usury is too often defeated by reason of the narrow space they must occupy between the proper prohibition of acts against public policy and the limitation of the right to free contract.

Whether a contract, apparently innocent upon its face but which is questioned by the pleading and evidence, is usurious, is one for the jury. Peightal v. Cotton States Bldg. Co., 25 Tex. Civ. App. 390, 61 S. W. 428; Lawrence v. Grillen, 30 Tex. 401. The jury in this case found that the transaction between appellant and appellee was a subterfuge to avoid the usury laws, and their finding is well supported by the evidence.

The second question is: “Should the demurrer of the defendant to plaintiff’s petition have been sustained?”

This contention is covered by appellant’s assignments from 1 to 10, inclusive. We see no reason to change the views announced by us, but another reason requiring these assignments to be overruled exists which was not called to our attention by ap-pellee’s brief, nor did we observe it until we began the consideration of this motion; that is, that the record does not show that any exceptions were taken by appellant to the action of the court in overruling his demurrers and exceptions. In fact, the record does not show that such demurrers or exceptions were ever presented to or ruled upon by the trial court Where the record does not show that demurrers and exceptions were called to the attention of the trial court, they will be presumed by this court to have been waived. Moore v. Woodson, 44 Tex. Civ. App. 503, 99 S. W. 116; Railway v. Barnett, 12 Tex. Civ. App. 321, 34 S. W. 139; Lemp Brewing Co. v. McDougle, 40 Tex. Civ. App. 583, 90 S. W. 215; Insurance Co. v. Boren, 83 Tex. 97, 18 S. W. 484; Floyd v. Rice, 28 Tex. 341, and cases cited. No fundamental error was presented by the assignments, and they were properly overruled.

The remaining questions, from 3 to 6, inclusive, concern mere issues of fact which were passed upon by the jury. Each assignment of error, in which the matters presented by these questions are covered, contends that there is not a “scintilla” of evidence to support the verdict of the jury.

A re-examination of the record does not alter our belief that the facts are amply sufficient to support the verdict, and the motion for rehearing is overruled.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    HARTFIELD v. GREBER et al.
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 23, 1912.
    Rehearing Denied Nov. 20, 1913.)
    1.'Parties (§ 80) — Misjoinder—Waiver oe Objection.
    Where, in an action on notes, and to foreclose a mechanic’s lien securing the same, the answer filed by the makers of the notes snowed that they relied upon a release by their grantee, the original lienor and payee of the notes, and the defendant present owner of the property did not file any plea for additional parties, he could not complain after judgment because such grantee was not made a party to the action.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 123-131, 170; Dec. Dig. § 80.]
    .2. Exceptions, Bill oe (§ 17*) — Sufficiency —Offer oe Evidence.
    Where a bill of exceptions complained of the exclusion of testimony “offered to prove” certain facts, it was not fatally defective on the ground that it did not show that the witnesses would have testified to the matters “offered to be proved.”
    [Ed. No.te. — For other cases, see Exceptions, Bill of, Cent. Dig. § 18; Dec. Dig. § 17.]
    3. Appeal and Error (§ 1056) — Harmless Error — Exclusion oe Evidence.
    The exclusion of evidence is harmless where no other verdict could have been rendered had it been admitted.
    [Ed.1 Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. § 1056.]
    Appeal from District Court, Harris County; E. R. Campbell, Judge.
    Action by J. A. Greber against E. S. Clark and others. From judgment for plaintiff, defendant A. P. Hartfield appeals.
    Affirmed.
    Lane, Wolters & Storey, Stanley Thompson, Wm. A. Vinson, and L. C. Ayars, all of Houston, for appellant. Jones & Jones and W. F. Carothers, all of Houston, for appellee.

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

   HARPER, J.

This suit was brought by J. A. Greber against E. S. Clark and wife and A. P. Hartfield upon two promissory notes, principal, interest, and attorney’s fees, executed by E. S. Clark and wife to F. E. Pye, and afterwards assigned by Pye to Greber, the plaintiff herein, and to foreclose mechanic’s lien. Judgment in lower court for $734.21, and foreclosure of lien as against Hartfield; but no personal money judgment against Clark and wife in case the sale of the premises did not satisfy the lien, from which judgment, Hartfield has perfected this appeal.

Plaintiff alleged that April 23, 1906, Clark and wife executed six notes payable to F. E. Pye, and secured same by mechanic’s lien on certain lots in Houston and the building then contracted to be constructed; that after-wards Pye assigned the notes and lien to plaintiff; that there were originally six notes, and that four have been paid; that the property was afterwards conveyed by Clark and wife to Pye, and in turn by Pye to Hart-field, defendant in this cause, and prayed judgment for principal, interest, attorney’s fees, and foreclosure of lien.

Defendants Clark and wife pleaded general denial, and specially that they conveyed the premises to Pye in liquidation and settlement of their said indebtedness; that said Pye assumed the payment of the notes as a part of the consideration to them for the property; that the plaintiff was so informed, and agreed to release them from further liability; that more than two years have elapsed since this agreement; that the property is sufficient in value to pay the amounts due; and that Pye has since become insolvent.

Defendant Hartfield pleaded general denial, and specially denied that any improvements were put upon the premises, for which the lien was executed, and, if he is mistaken in this, that they were not erected in accordance with the plans and specifications; that the contract price as claimed was $1,208, but that all the improvements put upon the lots did not exceed in value $250; that plaintiff had full knowledge of this fact; that, if he purchased the notes, he did so upon the personal ability and liability of Pye, and did not rely upon the value of the premises; that said lien is void because the contract for improvements did not set out the kind nor quality of improvements, etc.

The facts necessary to a proper disposition of the assignments of error we quote as follows: E. S. Clark and wife executed and delivered to F. E. Pye their six promissory notes for tile erection by Mm of a Rouse and other improvements at Ms expense on certain lots in the town of Houston Heights in Harris county, Tex. At the same time Clark and wife executed and delivered a mechanic’s lien on the said lots and improvements to the extent of the indebtedness evidenced by said notes; said lien was filed of record. That thereafter said Pye in writing assigned said notes and lien to J. A. Greber; that after said assignment Clark and wife conveyed the property to Pye, and in turn Pye sold to appellant Hartfield, who did not assume the payment of the notes; and the jury found (that Pye and) Greber released Clark and wife from liability upon the notes sued on.

The question as to whether the builder substantially complied with his contract in the construction of the building so as to fix the lien upon a homestead was answered by the jury in the affirmative.

Judgment was rendered for Greber for the notes sued on against Clark and wife, the original makers, without execution, and against all parties to the suit foreclosing the lien. Pye was not made a party to the suit. Prom this judgment, Plartfield has appealed, and urges two reasons in his three assignments of error why the judgment should be reversed: First, because the only person primarily liable on the notes was Pye, and he is not a party to the suit, therefore there was no person against whom judgment for the debt could be rendered, therefore no basis in the record for the foreclosure of the lien; and, second, that it was a question of fact whether there was a substantial compliance with the contract, and that the court erred in excluding the proffered testimony of the witnesses. The original makers, E. S. Clark and wife, were made parties, as well as Hart-field.

It having only developed by the evidence that Clark and wife had been released from liability, and Hartfield not having filed any plea for additional parties, although Clark and wife gave notice by their answer that they relied upon a release, the appellant will not be heard to complain of nonjoinder of the parties after judgment. It comes too late. McShan v. Watlington, 133 S. W. 722; De Perez v. Everett, 73 Tex. 431, 11 S. W. 388. We think this case clearly distinguishable from Walter v. Hearing, 65 S. W. 380, Railway Co. v. Davis, 37 Tex. Civ. App. 342, 83 S. W. 883, and Railway Co. v. Peek, 102 S. W. 776.

The bill of exceptions upon wMeh the other assignment of error is based reads: “Be it remembered that upon the trial of the above-numbered and entitled cause, and while the witnesses T. J. Sanderson, P. A. Gaedke, John Loestch, and A. W. Newman were on the stand testifying in behalf of the defendant A. P. Hartfield, and after each of said witnesses had qualified as being expert contractors and mechanics, and after each had stated that they had made an inspection of the Hartfield residence, the place in controversy, and had made an estimate of the amount of material in the house, and an estimate of the labor to construct same, based upon the price of material and labor at the time the house was constructed, the defendant A. P. Hartfield offered to prove by each of said witnesses that the entire cost of said house as completed at the time it was built would not exceed the sum of $300, to which testimony the plaintiff then and there objected, because the witness T. J. Sanderson shows-that he never saw the house until three years after it had been built, and had never seen the inside of the house, and P. A. Gaedke had never inspected the house until March 3, 1910, about four years after it was built, and because each and all of said witnesses first above named had shown that they had-neither ever seen the plans and specifications for said house or the contract under which it was built between the contractor and owner, and were therefore not qualified to testify as stated, and could not testify that said house was not built in substantial compliance with the plans and specifications and contract, and because said testimony as to the cost of the said house, or what it could be built for, was wholly immaterial, irrelevant, and incompetent, and did not show, nor tend to show, whether or not the improvements in question had been built in substantial compliance with the plans and specifications and contract made between the contractor and owner.”

TMs bill of exceptions is objected to because it does not show that the witnesses would have testified to the matters “offered to be proved.” The bill is not as clear as it should be; but under the authorities we hold it sufficient to enable us to consider the assignment. We have carefully considered the reasons given in the bill for excluding the testimony, and are of the opirnon that it was not error to sustain the objection.

But, if the testimony had been admitted, we are of the opinion that no other verdict could have been rendered, with the evidence in, than that which was rendered, and therefore the assignment should be overruled.

Finding no error in the record, the judgment of the lower court is in all things affirmed.


author: HALL, J.

text:
    COX et al. v. THOMPSON et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 8, 1913.
    Rehearing Denied Nov. 22, 1913.)
    1. Trial (§ 396) — Findings — Responsiveness.
    In. an action on a note, where the petition alleged it was due October 1, 1906, a finding that the note was due October 1, 1907, is not bad because not responsive to the pleadings, where defendant’s answer alleged that the note was due on that date.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 935-938; Dee. Dig. § 396.]
    2. Appeal and Error (§ 909) — Review—Presumptions.
    In the absence of a statement of facts, the appellate court must presume that the proof sufficiently described the note upon which the lower court rendered judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3675; Dec. Dig. § 909.]
    3. Pleading (§ 403) — Error in Petition-Cube by Answer.
    Even though the petition in an action on a note showed that it was barred by limitations, the error is cured where the answer showed that the note was not due until a later date than that alleged and so did not fall within the bar of limitations.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1343-1347; Dec. Dig. § 403.]
    4. Bills and Notes (§ 539) — Actions—Findings — Construction.
    A finding by the court that the evidence did not show that the defendants executed the note in suit is not sufficient to bar a recovery of the original debt under the principle that one who fraudulently alters a negotiable instrument cannot recover either on the note or the original debt.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1911-1913, 1934; Dec. Dig. § 539.]
    Error from Wise County Court; E. M. Allison. Judge.
    Action by W. R. Thompson and others against G. W. Cox and others begun in Justice Court, where judgment was for defendants. On appeal to the County Court, judgment was had for plaintiffs, and defendants bring error.
    Affirmed.
    R E. Carswell and Kobt. Carswell, both of Decatur, for plaintiffs in error. McMur-ray & Gettys, of Decatur, for defendants in error.

      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 Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HALL, J.

This suit was instituted by defendants in error in the justice court of Wise county, against plaintiffs in error, on a note for the sum of $115, alleged to have been executed by defendants in error on February, 2, 1907, and due October 1, 1907, bearing interest at 10 per cent, and providing for 10 per cent, attorney’s fees. The defendants pleaded non est factum, and the plaintiffs alleged that said note was a renewal of a former note for about the sum of $103, dated October 1, 1906, and due about October 1, 1907. A trial in the justice court resulted in a judgment for the defendants. On appeal to the county court, plaintiffs filed an amended petition, alleging the same facts, with the exception that the first note executed by defendants was dated on or about the 1st day of February, 1906, and due about the 1st day of October, 1906, and alleging, as in the former pleadings in the justice court, that said first note was lost or in the hands of the defendants and that it could not be described with certainty. The amended petition prayed for a judgment thereon, in the event the said note for $115 should be held invalid. The defendants replied to said alternative plea, alleging that the former note was executed on October 1, 1906, and due October 1, 1907. Upon a trial in the county court without a jury, there was a judgment for plaintiffs on the first note, executed by defendants (plaintiffs in error), from which this appeal is prosecuted.

Plaintiffs in error first attack the finding of the court that defendants executed a note in the fall of 1906, for about $100, due October 1, 1907, because the finding is not responsive to the pleadings of the parties. There is no statement of facts in the record. The defendants in error alleged the execution of a first note “in about the sum of $103 on about the-day of February, 1906, and due about the 1st day of October, 1906.” Plaintiffs in error, however, allege that if said note was executed at all it was executed “in October, 1906, and due October 1, 1907.” The failure of defendants in error to more specifically describe the first note as to its date and time of maturity is cured by this plea of plaintiffs in error.

In the absence of a statement of facts, we must presume that the proof sufficiently described the note upon which the court rendered judgment.

The second assignment is that the note described in plaintiff’s petition as being due on October 1, 1906, was barred by limitation. This assignment would be good if the pleading of plaintiffs in error had not correctly described the note as being due October 1. 1907, which relieved it of the bar of limitation.

The fourth assignment of error is that, the court having found that the second note for $115 was a forgery, defendants in error were not entitled to recover upon the first and urged the rule announced in Daniel on Negotiable Instruments (5th Ed.) § 1410a, that, where a person by his own fraud alters or changes an instrument in a material way, he can neither recover upon the altered or changed instrument, nor recover the amount of the original debt. The finding of the court upon this point is: “I find that the evidence does not sufficiently show that the defendants, G. W. Gox, J. O'. Cage, and A. Myers, executed the $115 note sued on by plaintiff, and for the want of sufficient proof of its execution no recovery can be had on it; I find said note was not executed by defendants.” This finding of the court, in the absence of a statement of facts, does not bring the case within the rule announced in Daniel on Negotiable Instruments, supra. As we understand that rule, it must be established that the obligee of any such instrument altered the instrument himself or that it was done with his knowledge or consent. The finding certainly does not charge defendants in error with forgery.

Finding no reversible error in the ■ judgment of the court, it is affirmed.


author: KEY, C. J.

text:
    HOUSTON & T. C. R. CO. v. ELLIS et al.
    (Court of Civil Appeals of Texas. Austin.
    June 11, 1913.
    Rehearing Denied Oct. 22, 1913.)
    t. Railroads (§ 485) — Eires—Actions—In-struction.
    In an action for damages for fire ignited by 4i railroad company, an instruction that the measure of damages would be the value of the grass which was destroyed and the difference in the value of the land for pasture purposes before and after the grass was burned is not misleading, as the jury must have understood it to mean that, for the injury to the turf, the plaintiffs would be entitled to recover the difference between the value of the land for pasture purposes immediately before and after the fire.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 1747-1756; Dec. Dig. § 485.] l. Railroads (§ 483) — Fires—Damages.
    Where plaintiffs’ land was negligently fired by a railroad company and the grass was burned off, plaintiffs may recover damages for the difference between the value of the land before and after the fire for pasture purposes; it appearing that the land had been so used before the'fire.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1737-1739; Dec. Dig. § 483.]
    3. Evidence (§ 543½) — Opinion Evidence-Expert Testimony.
    In an action against a railroad company for damages for negligently firing plaintiffs’ grass lands which were used for pasture purposes, witnesses engaged in the stock business, and familiar with the pasture land involved, may testify as to the damage caused by the burning of the turf.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2359; Dec. Dig. § 543½.]
    Appeal from District Court, Waller County; Wells Thompson, Judge.
    Action by W. E. Ellis and others against the Houston & Texas Central Railroad Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and W. B. Garrett, of Austin, for appellant. J. V. Meek, of Houston, and R. E. Hannay, of Hempstead, for appellees.

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

   KEY, C. J.

This is a suit for damages caused by fire which escaped from an engine while operating a train. There was a verdict and judgment for the plaintiffs, and the defendant has appealed. The plaintiffs sought to recover the value of the grass that was burned, and for injury to the turf, which thereby diminished the value of the land for pasturing stock; that being the purpose for which the plaintiffs used their land. There were 617 acres of grass burned, and the jury fixed the value thereof at $2.50 per acre, and the injury to the turf at 50 cents an acre, making the total of damages $1,851. The findings referred to are sustained by testimony and adopted by this court.

All of the assignments presented in appellant’s brief have been duly considered, and our conclusion is that none of them show reversible error, and only two questions will be discussed in this opinion. The plaintiffs alleged and proved that they were devoting the land upon which the grass was burned to pasture purposes, and the court instructed the jury that the measure of damages would be the value of the grass which was destroyed and the difference in the value of the land for pasture purposes before and after the grass was burned. We do not think the jury were misled by the charge, and believe they must have understood it to mean that, so far as injury to the grass roots or turf, the plaintiffs would be entitled to recover the difference between the value of the land, without the grass, for pasture purposes immediately before and after the fire. In discussing the measure of damages in this class of cases, our Supreme Court, in Railway v. Wallace, 74 Tex. 581, 12 S. W. 227, said:

“The court instructed the jury that, in estimating the damages to which plaintiff might be entitled, they would look to the market value of the grass destroyed at the time and place where it was, and that they might consider the market value for pasturage or hay purposes; there being much evidence as to the value for either purpose.
“It is urged that it was error so to charge, and the ground of the objection we understand to have been that there was no averment as to the particular manner in which plaintiff desired to Use the grass. Such an averment was not necessary. The grass belonged to the plaintiff, and, if entitled to recover at all, she was entitled to the market value of the grass as it stood” for any legitimate use to which she could put it. Many witnesses had testified to its value if to be used for pasture, as had many if it was to be used to make hay; but they all had reference to the value of the grass as it stood at the time it was destroyed.
“It was urged that the court erred in the following paragraph of its charge:
“ ‘If you should think that the defendant is liable to plaintiff for the burning of her grass under the foregoing instructions, and should also believe that the turf or sod of said grass was injured by the burning of said grass, you should find for the plaintiff also the amount of damages or injury done by injury of said sod or turf, and, in estimating this damage, you should be governed by the difference of the value in plaintiff’s land immediately before and immediately after the injury, if any, done to such turf or sod.’
“The proposition under the assignment which raises this objection was that ‘there being no allegation in tbe petition to admit proof of injury to tbe land. * * * ’ Tbe substance of tbe allegation was that there was a good turf, well and thickly set; that tbe fire parched the turf roots and sod of tbe grass on the land so as to greatly injure and damage the same; that on account of tbe injury to tbe turf it will be three or four years before the turf will become as productive as it was before tbe fire; that by reason of burning tbe turf tbe plaintiff has been damaged $376.
“We understand tbe averments of tbe petition, in effect, to be that tbe mass of roots to tbe native grass growing on the land without sowing or cultivation which with tbe surface earth with which commingled constitutes tbe turf, sward, or so.d, were so injured by tbe fire as to make tbe land less productive of grass than it otherwise would have been in tbe future.
“Tbe averment was one, in effect, that tbe land was injured, and tbe charge as correctly informed tbe jury what tbe true measure of damages was as would a charge directing tbe jury to assess tbe damages at such a sum as would compensate plaintiff for such injuries as resulted from tbe burning of tbe turf or sod. Tbe turf or sod was a part of tbe land, and an injury to it was an injury to tbe land, which could be as well measured by the differences in the value of tbe land before tbe burning and afterwards as by an inquiry as to the sum which would compensate tbe plaintiff for any injury to tbe turf or sod.
“Tbe measure is the- same, whether expressed in one way or the other. Such an injury is one in its nature permanent, though it may not be perpetual, and differs from an injury to a growing crop which does not result in any injury to tbe land. * * * It seems to be urged that tbe destruction or injury of the turf would have rendered it less difficult to have placed tbe land in cultivation than it would otherwise have been; that for that reason tbe owner was not injured at all. It is not tbe right of one through whose wrongful act an injury has been done to tbe land of another to have tbe measure of damages fixed by tbe effect tbe injurious act may have on the land if used for some purpose other than that to which it was applied or desired to be applied by its owner; but it is tbe right of tbe owner to have his damages measured by tbe extent of the injury to tbe land used for any lawful purpose to which he had appropriated it, desired to appropriate it, or to which it is adapted. Railway v. Hogsett, 67 Tex. 687 [4 S. W. 365]. It does not rest with the wrongdoer to say to the owner, Use your land for a purpose for which you do not desire to use it, and it will be as valuable to you for that use as it was before for another.”

In the case at bar the trial court correctly applied the rule announced in the Wallace Oase.

William Quinn, a witness for the plaintiffs, testified that he had been in the stock business all of his life, was familiar with the pasture and land involved in this case, that he knew what effect burning the pasture has upon the roots of grass, when the ground is dry, and the burning occurs in October and December, and that such effect would be very injurious, for the reason that it would cause the roots to be more or less exposed through the winter, and would thereby diminish the amount of grass coming on in the following spring, and gave it as his opinion that the result of such fires would cause a difference in the value of the land for pasture purposes of 50 cents per acre before and after the fire. He said it would make that much difference in the rental value of the land for pasture purposes. Two other witnesses were permitted to give similar testimony, to all of which appellant reserved exceptions; the objection being that the question called for the conclusion of the witness, and was not the proper basis for the correct measure of damages to the land. The testimony here complained of was substantially the same as that held to be admissible in Railway Co. v. Hall, 78 Tex. 176, 14 S. W. 259, 9 L. R. A. 298, 22 Am. St. Rep. 42, and therefore we overrule the assignments asking a reversal on account of the admission of that testimony.

Judgment affirmed.


text:
    HOUSTON & T. C. R. CO. v. ELLIS.
    (Court of Civil Appeals of Texas. Austin.
    Nov. 5, 1913.)
    1. Trial (§ 260) — Instructions—Refusal.
    Where the charge of the court as supplemented by instructions given at defendant’s request sufficiently guarded his rights, defendant cannot complain of the refusal of other requested instructions.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 817-823;- Dec. Dig. § 260.]
    2. Railboads (§ 482) — Fxees—Actions—Ev-idence— Sufficiency.
    In an action against a railroad company for damages caused by the negligent firing of plaintiff’s land, evidence held to warrant the jury in finding that the engine -Which caused the fire was not properly equipped, or that proper care had not been exercised to maintain the equipment.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1730-1732, 1734-1736; Dee. Dig. § 482.]
    Appeal from Waller County Court; J. D. Harvey, Judge.
    Action by W. E. Ellis against the Houston & Texas Central Railroad Company. - From a judgment for plaintiff, defendant appeals.
    Affirmed.

      Baker, Botts, Parker & Garwood, of Houston, and W. B. Garrett, of Austin, for appellant. Hannay & Hannay, and R. E. Hannay, Jr., all of Hempstead, and J. V. Meek, of Houston, for appellee.

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

   KEY, C. J.

This case comes up from the county court of Waller county, and is a grass-burning case, similar in many of its features to H. & T. O. R. R. Co. v. Ellis, 160 S. W. 606, decided by this court at its last term. Some of the questions raised here were decided against appellant in the former case, and we adhere to the rulings there made.

The charge prepared by the court, as supplemented by instructions given at the request of appellant, sufficiently safeguarded appellant’s rights, and the assignments complaining of the charge and of the refusal of requested instructions are overruled.

We also overrule the assignments which assail the verdict of the jury, and hold that, notwithstanding the alleged proof that the engine which caused the fire was properly equipped, etc., there was testimony tending to show that it caused a continual series of fires to originate on the right of way on the occasion in question, which evidence warranted the jury in finding that the engine had not been properly equipped with a spark arrester, or that proper care had not been exercised to maintain such equipment.

No reversible error has been shown, and the judgment is affirmed.

Affirmed.


author: FLY, C. J. O. T.

text:
    HUNTER v. HOLT et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 12, 1913.)
    1. Continuance (§ 37) — Application—Sue-stciency.
    An application for a second continuance was properly overruled, where it showed on its face that no summons had been issued for the absent witness and failed to show what he would testify or what it was expected to prove by- him, merely stating that he was present when certain events transpired.
    [Ed. Note. — -For other cases, see Continuance, Cent. Dig. §§ 117-121, 127; Dec. Dig. § 37.]
    2. Evidence (§ 213) — Admissions—Offer of Compromise.
    Where letters between attorneys and a client when taken together showed merely an effort to compromise a dispute as to the attorneys’ compensation by accepting less than they thereafter sued for, they were all properly excluded, as one should not have been admitted without admitting all.
    TEd. Note. — For other cases, see Evidence, Cent. Dig. g§ 745-751, 753; Dec. Dig. § 213.]
    Appeal from Galveston County Court; George E. Mann, Judge.
    Action by O. T. Holt and another against D. Hunter. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    O. S. York, of Galveston, and Campbell, Sewall & Myer, of Houston, for appellant. Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for appellees.

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

   FLY, C. J. O. T.

Holt and L. M. Williamson, attorneys at law, sued appellant to recover $500, alleged to be the reasonable value of legal services rendered by them in representing him in condemnation suits filed against him in the city of Galveston. The cause was tried by a jury, and a verdict was returned in favor of appellees in the sum of $450.

The first assignment of error assails the action of the court in refusing to grant a continuance of the cause. The application for continuance .was the second one filed by appellant, and it clearly shows upon its face that no summons was ever issued for John Leach, the absent witness, and the application failed to indicate what was expected to be proved by the witness, merely stating that the witness was present when the fee was agreed upon and when Williamson told appellant that on account of the illness of Holt he had come to Galveston as Holt’s agent. What the witness would testify is not disclosed. The application for continuance was properly overruled.

The evidence discloses that appellees were employed by appellant to represent him before commissioners of condemnation of his land in Galveston. Appellees lived in Houston, and went to Galveston to represent him, and performed certain services in preparing answers, appearing before the commissioners, and perfecting an appeal from the award to the county court. Appellant then refused to secure the fee of appellees, and they withdrew from the suits. The only real issue was the value of the services rendered, and that issue was submitted to the jury. The evidence -sustains the verdict. There was no conflict as to the fact that some services were rendered and the jury found their value. The whole evidence showed that the attorneys were justified in abandoning the case when appellant would not secure their fee.

The letters from appellees to appellant were properly excluded because the offer on their part to take $250 appeared from the letters to be an offer of compromise. One of the letters should not have been admitted without admitting all of them, and, taken together, they only evinced an effort to compromise the matter.

The fourth, fifth, sixth, seventh, tenth, eleventh, and twelfth assignments of error are not meritorious, and are overruled. The pleadings of appellees were sufficient, and the questions to the witnesses were properly allowed.

The judgment i-s affirmed.


author: HENDRICKS, J.

text:
    RUSH et ux. v. FIRST NAT. BANK OF AMARILLO et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 1, 1913.)
    Evidence (§ 426) — Pabol Evidence to Vaby Weiting.
    Notwithstanding a written contract of partnership, it could be shown by parol, .for the purpose of showing that no partnership in fact existed, that one of the parties ignored and-disregarded the contract and wholly failed to furnish his contribution to the partnership capital.
    [Ed. Note. — For other cases, ,see Evidence, Cent. Dig. § 1911; Dec. Dig. § 426.]
    On motion for rehearing. Overruled.
    For former opinion, see 160 S. W. 319.
    H. H. Cooper, of Amarillo, J. A. Stanford, of Waco, and L. C. McBride, of Dallas, for appellants. Madden, Trulove, & Kimbrough and C. B. Reeder, all of Amarillo, and W. F. Ramsey, of Austin, for appellees.

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

   HENDRICKS, J.

The appellee, by an additional brief and argument in this case, is vigorously insisting that we committed serious' error in the former disposition of this case.

First As to our construction of the judgment in favor of the First National Bank being based upon the open account instead of upon the note, and that certain language in another portion of the judgment is a significant indication that the judgment was based upon the note and not the open account, ap-pellee says: “This judgment, which we must construe as an entirety, * * * disposes of the whole matter and gives the bank judgment for the entire amount of the note sued on, principal and interest, without attorney’s fees, even to the odd 13 cents distributed and adjudged as follows: Against Rush on said note the sum of $10,890.35; against Fuqua,” the balance of plaintiff’s note sued on after deducting the above verdict against defendant from thé amount thereof, which balance is $8,230.78,” making the recovery on the note sued on the full sum of the amount due on the note at the date of the trial, to ■wit, $19,121.13, thus by the plain recitals of the record making it demonstrable that, as. stated in the verdict, the recovery both as to Fuqua and as against Rush was on the note.” If the recitations in the judgment as to the recovery against Fuqua upon the balance of plaintiff’s note is conclusively indicative that the other balance which was rendered in favor of the bank against Rush was also on the note, why, if we must construe this judgment as an entirety, did not the court render judgment against Rush for 10 per cent, interest, which was stipulated for in the note, instead of 6 per cent, interest, which is the correct interest on open account?

Second. Appellee again says that, the contract of partnership with reference to the land transaction being unambiguous upon the face of it, parol evidence was not admissible for the purpose of determining whether or not a partnership in fact existed. Appellee, intervener, pleaded this contract, and also pleaded that the furnishing of the money by the First National Bank, by the influence of Mr. Fuqua, and acquiesced in by Rush, was a furnishing of the money by Mr. Fuqua, in compliance with the contract of partnership; which, however, was denied under oath with the additional pleading that these parties had ignored and disregarded this contract, and that the consideration for same had wholly failed. It Would be an anomaly to apply the rule contended for to this character of case — which rule, of course, is venerable with reference to the law of contracts. We think appellee has overlooked the record.

Third. As to the- question of partnership, appellee cites numerous authorities, most of which we believe we thoroughly considered in our original examination of this case. With the exception of one case, Petrakion v. Arbelly, 26 N. Y. Supp. 731, decided by an inferior court in New York, and we believe there is not a single citation of authorities where the question is raised of the failure to pay the full consideration agreed to be paid by a partner that the same constitutes a partnership vel non, in favor of the defaulting partner asking the court for an accounting. We think appellee in this additional brief begs thg question when he assumes that the payment of $960, the first payment upon the land, was furnished by Mr. Fuqua, in accordance with his plain written contract. There are cases, of course, where a part of the consideration has been paid and the other partner has accepted and the partnership is carried on as originally intended that the status of that relation could not be questioned; besides, in this record the testimony clearly raised the issue of an abandonment of the contract formerly written and executed and that the proceeds of the note furnished by the bank, secured by the land, bought this real estate, and that Rush furnished the money instead of Fuqua.

The motion for rehearing is in all things overruled.


author: KEY, O. J.

text:
    CITIZENS’ NAT. BANK OF WACO v. ABEEL.
    (Court of Civil Appeals of Texas. Austin.
    July 5, 1913.
    On Motion for Rehearing, Nov. 19, 1913.)
    1. Tbiad (§ 180*) — Dibected Vebdicts — Dis-CBETION OF COITBT.
    Where the court submitted the case to the jury it may, in its discretion, upon the .inability of that body to agree, direct a verdict.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 405; Dec. Dig. §, 180.*]

      2. GUARANTY (§ 14) — CONTRACTS OF SURETY-SHIP — -CO NSIDERATIO N.
    Where a shipment of produce was attached by another creditor after the bank had cashed a draft with a bill of lading attached, a statement to the bank by defendant, who was surety for other debts due the bank from the shipper, that he was responsible and would pay any amount which the bank might lose, was a mere naked promise which would not support an action; it not appearing that the bank agreed to defendant’s request to extend the time for the shipper to dispose of the produce or that the extension of the time was for the benefit of defendant.
    [Ed. Note. — For other cases, see Guaranty, Gent. Dig. §§ 13, 20; Dec. Dig. § 14.]
    3. Frauds, Statute of (§■ 23) — Contract of Suretyship.
    Where defendant,’who was interested in a produce company whose shipment had been seized under judicial process, stated to plaintiff bank, which had cashed a draft with a bill of lading annexed, that he would see that it lost nothing, the agreement fell within the statute of frauds, and is unenforceable, not being in writing; it not appearing that defendant had any lien or was otherwise interested in the property.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 18, 19; Dec. Dig. § 23.]
    On Motion for Rehearing.
    4-, Appeal and Error (§ 1033) — Review-Harmless Error.
    In an action on several items, where the trial court had properly instructed the jury to find for defendant as to all but one, the action of the court in directing a verdict for plaintiff as to that item on the inability of the jury to agree cannot be held prejudicial to plaintiff, although it prevented a mistrial, and thus precluded plaintiff from trying the action again before another judge.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.]
    Appeal from District Court, McLennan County; Marshall Surratt, Judge.
    Action by the Citizens’ National Bank of Waco against Alfred Abeel. From the judgment, plaintiff appeals.
    Affirmed.
    O. L. Stribling, of Waco, for appellant. Sleeper, Boynton & Kendall, of Waco, for appellee.

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

   KEY, O. J.

Appellant sued appellee upon two items of alleged indebtedness, one amounting to $4,486.31 and interest, and the other amounting to $200 and interest. There was a jury trial, and, after the jury had reported that they were unable to agree, the trial court instructed a verdict for the defendant as to the larger item, and a verdict and judgment was rendered for the plaintiff as to the other item, and for the defendant as to the former, and the plaintiff has appealed and assigns as error the action of the trial court in the particulars referred to.

We have reached the conclusion that the judgment should be affirmed, and in so doing we hold:

1. That after submitting the entire case to the jury, and the report of that body that it was unable to agree, it was within the discretion of the trial court to direct a verdict for the defendant, as was done, and, ufion the verdict so directed, to render judgment.

2. We also hold that the trial court properly instructed a verdict for the defendant as to the $4,486 item, for the reasons: First, that the plaintiff failed to prove the contract upon which the recovery was sought; and, second, the contract, if proved, was within the statute of frauds. Appellant bank sought to hold appellee Abeel liable upon the theory that hie had entered into an oral contract, by the terms of which he became obligated to pay to the bank a debt then owing to the bank of the Texas Packing Company. The proof shows that the Texas Packing Company was engaged in the business of buying and shipping poultry and eggs; that it had shipped several cars from Waco to New York, had delivered to the bank the bills of lading and drafts drawn upon the consignees, which drafts the bank had cashed. When the shipments referred to reached their destination, it seems that the market was not satisfactory, and the packing company and appellee, Alfred Abeel, who was a surety for the packing company as to a large indebtedness to the bank, desired that the shipments referred to should be held in New York for a better market, while the bank, who was uneasy about its security for the money advanced on the shipments, seemed disposed to enforce its legal right, and have the shipments sold out, regardless of the condition of the market.. This is the most favorable view that can be taken of the testimony as respects the circumstances under which it is alleged that Abeel agreed to pay the debt of the packing company. Appellant contends that the contract to pay that debt was assumed by appellee, acting in person, and by Mr. Black and Mr. McAshan, one cashier and the other vice president, acting for the bank. The proof shows that, on the occasion in question, notice had been received that one car of the poultry had been seized under a judicial attachment, and that a conference was held in the bank in reference to that matter; those present being appellee Abeel, Mr. Lacy, president, Mr. .McAshan, vice president, Mr. Black, cashier of the bank, and Judge Sleeper, who was perhaps representing only appellee Abeel. Judge Sleeper informed the parties what steps were necessary to be taken in order to release the shipment that was attached; and, the conference having ended, Mr. Lacy and Judge Sleeper went into another room to confer about another matter, and Mr. Abeel, after starting to leaVe the bank, returned, and, according to the testimony of Mr. Black and Mr. McAshan, stated to them, in substance, that he was responsible, and that when the matter was closed up he would pay the bank whatever loss it had sustained. Mr. Abeel gave a different version as to what he said ; but, in disposing of the question under consideration, we leave his testimony out, and look alone to that in behalf of appellant. Both the witnesses referred to state that nothing more was said by either of them or by Mr. Abeel, and that the latter then left the bank.

Appellant makes the further contention that thereafter, while the shipments were handled in its name, in fact appellee was permitted to control the same, and that the instructions given by appellant as to the disposition of the property were given at the request of appellee, who was endeavoring to make the property sell for more than the amount for which it was pledged to the bank, in order that the surplus might be applied to the packing company’s indebtedness to the bank, for which appellee was surety. If it be conceded that testimony was produced tending to support the contention referred to, still we are of opinion that the testimony falls short of showing that appellee became liable for the indebtedness of the packing company in the matter referred to. In the first place, the testimony of the witnesses McAshan and Black fails to show that a contract was entered into by which it was mutually agreed between the bank and Abeel that the former would pay to the latter whatever loss it might sustain on account of the advancements it had made on the shipments, and that the latter would forego its right to have the property sold at once. In fact, the testimony fails to show that either Mr. McAshan or Mr. Black made any promise whatever on behalf of the bank, and merely shows that Mr. Abeel, without any consideration whatever, declared that he was responsible and promised, or at least stated, that when the matter was settled up he would pay any loss that the bank might sustain. If this was a promise, it was without consideration, because there was no corresponding agreement or obligation upon the part of the bank to refrain from enforcing its right to have the property sold, or to do or not to do anything. In fact, it does not appear that the matter of appellant’s right to force an immediate sale of the property, and appellee’s desire that an immediate sale should not be ma'de, was referred to, or had any connection with the statement and promise imputed to appellee by appellant’s witnesses. So we conclude that the alleged promise on the part of appellee to pay the shortage referred to was without consideration, and did not constitute a binding contract.

But we are also of opinion that, if it was supported by a consideration, it was merely an oral promise to pay the debt of another, and was within the statute of frauds. Appellant seeks to avoid the effect of the statute by the contention that testimony was submitted tending to show that appellee’s primary purpose in making the promise was not to secure appellant’s debt, but to obtain a pecuniary benefit for himself. The evidence fails to show that appellee had any lien upon the property, or was in possession of it, or would have had any right to control it but for appellant’s prior right; and therefore we hold that the transaction comes within the purview of the statute of frauds, and appellant was not entitled to have the alleged contract enforced.

No error has been shown, and the judgment is affirmed.

Affirmed.

On Motion for Rehearing.

All the questions presented in appellant’s brief have been reconsidered upon appellant’s motion for rehearing, and our conclusion is that the case has been properly disposed of. One of the complaints in the motion is that this court failed to make a correct statement as to how the case was disposed of in the court below. We were then, and are still, of the opinion that the controlling question in appellant’s brief was whether or not the trial court committed error when it instructed the jury to return a verdict against the plaintiff as to all of its claim except the item of $200, for which a verdict was instructed against the defendant; and, as the losing litigant is required to pay the clerk of this Court for recording its opinions, w.e did not suppose counsel for appellant would object to the use of brevity in the opinion in stating the controlling question. However, as he states in the motion for rehearing that he desires the opinion of this court to present accurately the facts as they appear in the record, we will elaborate our former statement by adding thereto that the trial court instructed the jury that all of the plaintiff’s claim except the $200 item came within the statute of frauds, and therefore the plaintiff was not entitled to recover thereon, and at first submitted to the jury for their decision whether or not the plaintiff was entitled to. recover as to the $200 item. The remainder of the record relating to that subject is stated as follows in appellant’s brief: “The bill of exception shows that the court submitted for the jury’s determination the liability of appellee for the $200; that the jury retired on October 30th, to consider their verdict, and on October 31st, after considering the case for more than 12 hours, returned into, court and notified the court that they would not be able to reach a verdict. The court thereupon urged them to endeavor to. reach a verdict and had them to further consider the case,, and in the afternoon of that day plaintiff’s attorney was notified to appear at the court’s chamber, and, when he reached there, found the judge of the court and the attorney for the defendant. Whereupon the attorney for the defendant, in the presence of the judge, requested plaintiff’s attorney to agree that the court might instruct the jury to return a verdict for the plaintiff for $200, with interest, which plaintiff’s attorney refused to do, giving as his reason therefor that he did not believe the jury would reach a verdict, and, in view of the peremptory instruction given the jury by the court as to part of plaintiff’s cause of action, he would prefer having a mistrial rather than a verdict for $200, The judge thereupon stated that, if defendant would request the court to instruct the jury to return a verdict for plaintiff for $200, he would do so. Whereupon, at the request of the defendant, the court had the jury brought before him and instructed them to return a verdict for $200 for the plaintiff, which the jury did, to which instruction the plaintiff in open court objected, on the ground that the court had already charged the jury as to the law of the case and the giving of the special charge was improper and unwarranted, and was for the purpose of preventing the jury from failing to reach a verdict, and to deprive the plaintiff of the right of another trial in said court without the expense of an appeal; that the special charge given was not the court’s view of the law of the case, as the court had already refused to charge the jury peremptorily to find for the plaintiff the said amount, but had submitted the same to the jury as an issue to be determined by them.”

It is also true that the action of the court referred to is assigned as error, and presented in appellant’s brief, but its counsel, with commendable candor, says in the brief: “We understand that ordinarily the appellant would not be in a position to complain of the action of the court under similar circumstances; but here the court by giving a peremptory instruction was in all probability defeating the appellant in securing another trial of the case in that court under another judge, whose views of the law and the evidence might be entirely different from the views entertained by the presiding judge at the time of the trial.”

It seems to us that it follows as a necessary corollary from the concession made in the statement quoted that, if the trial court ruled correctly on the other issue in the case, appellant cannot be heard to complain because that court instructed a verdict for it on the $200 item, upon the ground that if such peremptory instruction had not been given there might have been a mistrial and the case might have come up before another trial judge who would have made an erroneous and incorrect ruling as to appellant’s other and larger claim. We cannot believe that the learned counsel who represents appellant would seriously insist upon the proposition that a particular act of the trial court which inured to the benefit of his client should be made the basis of a reversal, upon the theory that the action of the court referred to prevented his client from getting the case tried by another judge who would have ruled erroneously upon the main question in the case.

The correctness of the court’s charge directing a verdict against the plaintiff for all except the $200 item was discussed and decided in our former opinion, and we adhere to the ruling then made.

Motion overruled.