author: HIGHTOWER, C. J.

text:
    MURPHY v. LEWIS et al.
    (No. 151.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 20, 1917.)
    1. Estoppel <®=>34^-Homestead — Necessity of Pleading.
    In action on note and trust deed securing it, ⅛ the absence of plea of estoppel of the maker to claim homestead by reason of statement in the trust deed, the issue of estoppel was properly withheld from the jury.
    2. Homestead <§=5216 — Right to Claim — Residence.
    Since the mere fact that the claimant’s wife was not living on the land with him at the time a deed of trust thereon was executed did not remove the homestead character of the land, instruction that if the land was the separate property of the husband, and his wife was not living with him at the time of the execution of the deed of trust, the land was not a homestead, was properly refused.
    3. Homestead <§=j157 — Right to Claim — Residence.
    If, when the husband executes a deed of trust on his land, his wife is living separate and apart from him, and in abandonment of him, with no intention of ever living with him again, or on the property as a homestead, then the land is not a homestead in contemplation of law.
    [Ed. Note. — For other definitions, see Words and Phrases, First and .Second Series, Homestead.]
    4. Homestead <®=>32‘ — Right to Claim — Intention.
    The mere fact that the husband, when he married, had the intention at some time to occupy as a homestead the land involved in a subsequent trust deed, did not impress it with the character of homestead, where in fact such intention was never consummated.
    5. Homestead <§=5157 — Right to Claim — Residence.
    The husband may make a valid sale of community property, constituting the homestead of himself and wife, where the wife voluntarily abandons and is living in abandonment of him at the time of such sale, and the husband’s deed to such property, under such circumstances, will pass the tiñe as against any right or claim of the wife, notwithstanding the law forbids the sale of a homestead by a husband without being properly joined in the deed by his wife.
    6. Homestead <§=>118(2) — Right to Claim — Residence.
    In view of Const, art. 16, § 50, exempting the homestead from forced sale and providing that no trust deed shall be valid except for purchase money or improvements, whether made by the husband or the husband and wife, a married man cannot successfully contend that his voluntary act in executing a deed of trust was a nullity, because he was married and was occupying the property as a place of residence when he executed the deed of trust, his wife having abandoned him with the intention never to return.

      *7. Homestead <§=>133 — Exemptions—Btjbden of Pboof.
    One seeking to avoid a trust deed on the ground that the property covered thereby was the homestead of himself and wife, has the burden of showing every element.of homestead as defined by Const, art. 16, § 50.
    8. Homestead <§=>213 — Exemptions—Bubden of Pboof — Special Plea.
    One seeking to enforce a trust deed upon property alleged to be the homestead need not specially plead abandonment of the maker of the trust deed by his wife in order to avail himself of such abandonment in determining the character of the land.
    Appeal from District Court, San Augustine County; A. E. Davis, Judge.
    Action toy Mrs. S. J. Polk against John H. Broocks, W. C. Crouch, A. Murphy, and Frank Lewis. From the judgment rendered, A. Murphy appeals.
    Reversed and remanded.
    D. M. Short & Sons, of Center, for appellant. Davis & Ramsey and W. J. Garrett, all of San Augustine, for appellees.
   HIGHTOWER, C. J.

This is an appeal from a judgment of the district court of San Augustine county by A. Murphy, who was one of the defendants cast in the judgment of the trial court, and who alone has appealed. The statement of the nature and result of this suit, as made by appellant in his brief and acquiesced in by appellee's, is very lengthy and covers some 15 pages of appellant’s brief, but we think that it is entirely unnecessary or profitable to any one tó incumber this opinion with a statement of such length, and we have therefore decided to state the case more briefly.

On the 24th day of February, 1913, Frank Lewis executed and delivered to A. Murphy his promissory note in the principal sum of $540, which bore interest at the rate of 10 per cent, per annum, and contained the usual clause for attorney’s fees. This note was due and payable on or before November 1, 1913. To secure the payment of this note, Lewis, at the same time, executed and delivered to T. L. Foster, trustee, a deed of trust covering a tract of land in San Augustine county owned by Lewis, which tract embraced 277 acres. It was expressly declared in the deed of trust that the land thereby conveyed constituted no part of any land or property claimed by Lewis to be exempt from forced sale under any law of this state. The note above mentioned was sold, transferred, and indorsed by Murphy to John H. Broocks.

On the 26th day of March, 1914, John H. Broocks borrowed from Mrs. S. J. Polk, a widow, $500, and at the same time executed and delivered to her his note in that sum, payable 90 days thereafter, bearing interest at the rate of 10 per cent, per annum, and providing for the usual attorney’s fees. This note was indorsed by W. O. Crouch merely for the accommodation of Broocks. To further secure the payment of his note to Mrs. Polk, Broocks delivered and pledged to herf as collateral, the $540 .note executed by Lewis to Murphy, of which Broocks had become the owner, as above stated. John H. Broocks having wholly failed to pay his note executed to Mrs. S. J. Polk, the latter, as plaintiff below, filed this suit, making thei said Broocks, Crouch, Murphy, and Lewis defendants.

The plaintiff’s petition contained proper allegations showing the liability of Broocks and Crouch on the Broocks $500 note, and also alleged that she held as collateral security-for its payment the note from Lewis to Murphy, pledged to her by Broocks, alleging that Murphy was personally liable on the Lewis note, by reason of his indorsement to Broocks, and also alleging that Lewis was personally liable as maker thereof. It was further alleged by the plaintiff that the deed of trust executed by Lewis to secure the payment of the pledged note constituted a valid and subsisting lien on the land thereby conveyed to secure the payment of the pledged note. The prayer was, in substance, for judgment against all of the defendants, as follows: Against Broocks and Crouch for the amount due on the Broocks $500 note, and against Lewis as maker and Murphy as indorser on the Lewis $540 note held by plaintiff as collateral to the Broocks note, and for foreclosure of the deed of trust given by Lewis to secure the payment of the Lewis $540 note.

Each defendant in due time answered plaintiff’s petition, such answers being, in substance, as follows: Broocks and Crouch admitted their liability to plaintiff on the Broocks $500 note, as claimed by plaintiff, and Murphy admitted his liability as indorser on the Lewis $540 note, as claimed by plaintiff, and these defendants admitted and asserted that plaintiff was entitled to a foreclosure of the deed of trust executed by Lewis to Murphy, as prayed by the plaintiff. The defendant n,ewis, by his answer to plaintiff’s petition, denied any liability whatever to plaintiff. This defendant alleged that he was not liaDle on the $540 note executed by him to Murphy, for the reason that he had paid same in full while it was held by Murphy, and that plaintiff was not an innocent purchaser of the note, because she acguired it long after maturity, etc. The alleged terms of payment of this note are not necessary to be here stated, but we might say, however, that the plea of payment of this note by defendant Lewis was denied him. The defendant Lewis also denied the right of plaintiff to a foreclosure of the deed of trust declared on in her petition, except, in any event, as to 77 acres off of the west end of the 277-acre tract covered by the deed of trust, on the alleged ground that the remaining 200 acres constituted the homestead of himself and family at the time of the execution of the deed of trust, and that his attempt to incumber the same by such deed of trust was an absolute nullity, etc.

To this answer, plaintiff replied by supplemental petition, consisting of a general denial, special denial of payment of the $540 note, and special denial that the deed of trust was invalid on the ground that the property conveyed thereby, or any part of it, was exempt from forced sale, for the reason that it was such a homestead as claimed by the defendant Lewis.

There were also other pleas by all of the defendants, in the nature of cross-actions as against each other) but we deem it unnecessary, in view of the disposition we have made of this case, to incumber this opinion with a statement of these several pleas, some of which are lengthy.

The case was tried with a jury, to whom it was submitted on special issues, and upon the verdict of the jury judgment was entered by the court, which, as between the plaintiff, Mrs. Polk, and the defendants Broocks, Crouch, Murphy, and Lewis, was, substantially, as follows:

It was decreed that the plaintiff have judgment against Broocks as maker and Crouch as indorser on the Broocks $500 note for the principal sum thereof, together with accrued interest and attorney’s fees, as prayed by the plaintiff, and was further decreed that the plaintiff should recover a personal judgment as against the defendant Erank Lewis, on the $540 note executed by him to Murphy, and held by the plaintiff as collateral security to the Broocks note, to the extent of the amount recovered by plaintiff on the Broocks note, and also that the plaintiff have judgment as against defendant Murphy, as indorser on the Lewis $540 note held by plaintiff as collateral for the Broocks note. It was further decreed that the deed of trust declared on in plaintiff’s petition constituted a valid lien as to 77 acres off of the west end of the tract of land mentioned in the deed to secure the payment of the $540 Lewis note, and it was therefore decreed that ‘the deed of trust lien to that extent be foreclosed; but it was further decreed that, as to the remainder of said tract of land conveyed by said deed of trust, the deed of trust constituted no lien on the same, for the reason that such remaining portion of the tract constituted the homestead of the defendant Lewis at the time of the execution of the deed of trust, and that therefore the attempt on the part of Lewis to incumber the same by the deed of trust was a nullity, and a foreclosure was, therefore denied; and further, the decree recites that as between the plaintiff and defendant Lewis, the deed of trust should he canceled and annulled as constituting a cloud upon the title of the said Lewis. The judgment goes on at great length in fixing the rights and liabilities of all the defendants as between each other under their several cross-actions, but it is unnecessary to here mention the judgment further.

The judgment as entered by the court was duly excepted to by defendant, Murphy, and in due time motion for new trial was filed by Murphy, which motion was overruled and the action of the court in that respect duly excepted to, and the case is now properly before this court on appeal by defendant, Murphy, for review.

The trial court’s charge to the jury, with reference to the issue of homestead interposed by the defendant Lewis, was as follows:

“Question No. 1. Was the 200 acres of land described in the answer of Frank Lewis, and claimed by him as his homestead, the homestead of said Frank Lewis at the time he executed the deed of trust to T. L. Foster on February 24, 1913?”

To this question, so propounded by the court, the jury answered, “Yes.”

There was nothing else in the court’s main charge touching this issue of homestead, nor any further guide whatever given by the main charge to the jury, by which they should be governed in determining that issue, but the court did give, at the request of the defendant Frank Lewis, several special instructions with a view to guiding the jury in determining the homestead issue, to which reference will be made hereafter.

The first, second, and third assignments of error complain of the refusal of the trial court to give to the jury special instructions, by which appellant sought to have submitted to the jury an issue of estoppel, substantially telling the jury that if. they should believe from the evidence that at the time appellant, Murphy, loaned to Lewis the $540 represented by the note of Lewis to Murphy, Murphy did so in good faith, relying upon the declaration of Lewis in the deed of trust, to the effect that the land thereby conveyed constituted no part of any property claimed by him as a homestead or exempt from forced sale,- and that Murphy would not have made such loan to Lewis but for such declaration and Murphy’s belief therein; that then defendant Lewis would be estopped to claim that any portion of the land eov-ered by the deed of trust was his homestead.

After careful consideration of these assignments, we are of the opinion that they should be overruled, for the reason that there was no plea of estoppel interposed by appellant, Murphy, or any other party to this suit, as here sought to be submitted- for the jury’s consideration, and in the absence of such plea of estoppel, the trial court would not have been authorized to submit the issue of estoppel.

The fourth assignment complains of the action of the court in refusing to give a special instruction requested by appellant, which was, in substance, that if the land conveyed by the deed of trust was the sepárate property of the defendant Lewis, and his wife was not living with him on the land as a homestead at the time the deed of trust was executed, that then the land claimed as a homestead by Lewis did not constitute a homestead in contemplation of law, even though Lewis, himself, was actually living on the land at the time as his homestead.

We think the trial court did not err in refusing to give this charge, because it is entirely too broad. It may be that Lewis’ wife was not living on the land in question with her husband at the time the deed-of trust was executed, and, in fact, this record shows, without dispute, that she was not living with her husband on the land conveyed by the deed of trust at the time of its execution, but this fact, of itself, would not have the effect, in law, to take away the homestead character of the land, if the other essential elements were present, stamping it with that character. The charge requested did not present to the jury the issue of fact as to whether, at the time of the execution of the deed of trust, the wife was living in abandonment of her husband, but merely told the jury that if she was not actually living with him on the land in question, at the time, that that fact alone would take away the homestead character of the land, as claimed for it by defendant Lewis. Therefore, we think that the court did not err in refusing to give this charge, and this assignment is overruled.

By assignments Nos. 5 and 6, appellant complains of the action of the trial court in declining to give to the jury two special instructions, designed to guide the jury in answering the issue of homestead submitted to them, as above-set out, and which charges so requested read, substantially, that if the jury should believe from the evidence that at the time the deed of trust was executed by Lewis, his wife was living separate and apart from him, and in abandonment of him, and with no intention of ever living with Lewis again, or on the property conveyed by the deed of trust, as a homestead, that then, in such event, the land claimed as a homestead by defendant Lewis was not a homestead in contemplation of law.

The court refused both these instructions, and its action in doing so was duly excepted to by appellant, Murphy, and we think, after careful consideration of the question, that the court’s action in this respect was error, for which the judgment must be reversed. In this connection, we shall briefly discuss the facts which we consider relevant to these assignments.

The tract of land conveyed by the deed of trust in question was the separate property of the defendant Lewis, having been inherited by him long prior to his marriage with his present wife, to whom he was married some time in the summer, about July, perhaps, of 1911. Defendant Lewis, shortly after marrying his wife in Angelina county about July, 1911, brought his wife to San Augustine county, and he and she lived together as man and wife on premises other than the land conveyed by the deed of trust, and they continued to live in and about the town of San Augustine for several months, some three or four months, at which time Lewis’ wife left San Augustine and her husband, carrying with her all household effects, except one trunk and bedstead, the individual property of the defendant Lewis, and went to the town of Nacogdoches, in Nacogdoches county, and' there lived for several months thereafter, on premises rented by her, and from there she moved to Marshall, Tex., where she has continued to reside, and was residing at the time of the trial. The defendant Lewis testified that after his wife left him and went to Nacogdoches; he visited her there several times, and lived with her as his wife, and that after she went from Nacogdoches to Marshall, he also visited her and lived with her as his wife, but it is also shown by his testimony that he was unable to prevail upon his wife to return to him in San Augustine county, and it is expressly admitted by defendant Lewis, in his testimony, that he had told several different persons, prior to the execution of the deed of trust in question, that it was his intention to sue his wife for divorce, and there are other facts and circumstances in this record, taken in connection with what we have stated, which would strongly indicate that at the time the deed of trust in question was executed, Lewis’ wife had abandoned him, with the intention of permanent abandonment, and that such intention continued up to the time of the trial of this case. It is also undisputed in this record that Lewis never at any time occupied any portion of the land conveyed by the deed of trust in question as a homestead with his wife, after his marriage to her, and during the period of time that she remained with him, and she never for a moment actually resided upon the land covered, by the deed of trust while living with Lewis as his wife; in other words, the land covered by the deed of trust was never made the homestead, in fact, of Lewis and wife, or either of them, while the wife was living with him, and as we understand it, there is no contention on the part of Lewis that the property in question was ever stamped with the homestead character, in fact, during the time that Lewis’ wife was actually iiving with him. The most that can be said in behalf of the homestead claim in that connection is that Lewis testified that he had always claimed the 200

acres of land now claimed as a homestead to be his homestead, and that he intended, after marrying his wife, to at some time actually occupy this property as a homestead for himself and family. Such intention on Lewis’ part, however, did not and could not have the effect in law of giving to the property in question the character of homestead, in fact. West End Co. v. Grigg, 98 Tex. 451, 56 S. W. 49; Summerville v. King, 98 Tex. 340, 83 S. W. 683; Johnson v. Burton, 39 Tex. Civ. App. 250, 87 S. W. 181; Sproulle v. McFarland, 56 S. W. 695.

Now, it being undisputed in this record that the property claimed by Lewis as being the homestead of a family was never, in fact, occupied as such by the family' or stamped with the character claimed for it during, the time that the family relation existed, can it be said that such property could be stamped with the character of homestead of a family after the wife of Lewis had abandoned him, with the intention of abandonment, which intention on her part has continued, if it has, in the sense that Lewis could not execute a valid deed of trust on the property if he saw fit to do so, especially since the property covered by the deed of trust is admittedly the separate property of the defendant Lewis?

We understand it to be the rule in this state that the husband may make a valid sale of community property, constituting the homestead of himself and wife, where the wife voluntarily abandons' and is living in abandonment of her husband at the time of such sale, and that the husband’s deed to such property, under such circumstances, will pass the title as against any right or claim of the wife, notwithstanding the law forbids the sale of a homestead by a husband without being properly joined in the deed by his wife. This rule must rest upon the fact that the wife, in voluntarily and without cause abandoning the husband and homestead, loses or forfeits all interest that she theretofore had in such property as a homestead, and if, in such circumstances, the husband can make a valid conveyance of the property belonging to the community and constituting the homestead, and actually occupied and stamped as such at one time, we can see no sound reason why the husband, when voluntarily abandoned by the wife, may not incumber property owned in his individual right, especially where such property had never been, in fact, stamped with the homestead character during the time the spouses were actually together as man and wife.

It will be remembered that the wife of Lewis is not a party to this suit, and no claim whatever on her part is asserted, but the real contention of Lewis is that his voluntary act in executing the deed of trust on the property in question was a nullity, simply because he had been married, and because the marriage relation had not been legally severed by a decree of divorcement, and because, as he contends, he, himself, was actually occupying the property in controversy as a place of residence at the time the deed of trust was executed. We think that such contention on his part cannot be sustained, and we have been cited to no authority in this state upholding such contention thus broadly made, and in the absence of any adjudication of the Supreme Court of this state upholding such contention, we would hesitate to establish such precedent.

The Constitution of this state) (article 16, § 50), which is sought to be invoked by the defendant Lewis as defeating the deed of trust executed by him in this case, is as follows:

“The homestead of a family shall be, and is hereby, protected from forced sale, for the payment of all debts except for the purchase money thereof, or a part of such purchase money, the taxes due thereon, or for work and material used in constructing improvements thereon, and in this last ease only when the .work and material are contracted for in writing, with the consent of the wife given, in the same manner as is required in making a sale and conveyance of the homestead; nor shah the owner, if a married man, sell the homestead without the consent of the wife, given in such manner as may be prescribed by law. No mortgage, trust deed, or other hen on the homestead shah ever be valid, except for the purchase money therefore, or improvements made thereon, as hereinbefore provided, whether such mortgage, or trust deed, or other hen, shah have been created by the husband alone, or together with his wife; and ah pretended sales of the homestead, involving any condition of defeasance shah be void.”

In construing this article of our Constitution, it has been said by the Supreme Court of this state that the protection of the wife and children entered very largely into the consideration that induced the exemption of the homestead, in order that the wife might have an asylum from which she and her children could not be expelled by creditors and exposed, not only to physical suffering, but also to the more baneful influences so often brought to bear on the unfortunate. Trawick v. Harris, 8 Tex. 813. It has been also held by the Supreme Court of this state, however, that when the wife voluntarily withdraws from the state .and takes up her domicile in another, and is no longer a priestess ministering at the household altars, all her claims under such circumstances to the homestead are repugnant to the beneficent designs in contemplation, and must be rejected. Howard v. Marshall, 48 Tex. 478.

Thus, it will be seen that the framers of our Constitution, in exempting from forced sale property constituting the home of a family, and declaring all attempts to incumber the same by any character of lien shall be a nullity, had in mind, as a controlling factor, the protection of the wife and children. The defendant Lewis had no children, and there never was at any time any member of his family, other than himself and wife, and when the wife, of her own volition, abandoned her husband, with no intention ever to return to him, if such was the case, which intention remained up to the time of the execution of the deed of trust in this instance, she thereby and in consequence of her own voluntary act deprived herself of any valid claim in the property covered by the deed of trust, as a homestead, and in our opinion the defendant Lewis, under such circumstances, was authorized to create a valid lien upon this property as he did, and that his act in doing so, under the circumstances of this case, would bind both himself and his wife, as against the claim of homestead interposed by him in this case.

We therefore conclude that the trial court was in error in refusing to give to the jury the special charges requested, as shown by these assignments, and for that error the case should be reversed.

The seventh, eighth, ninth, and tenth assignments of error complain of the action of the trial court in giving to the jury, at the request of defendant Lewis foujr special charges designed to guide the jury in determining whether the land claimed by Lewis as a homestead was a homestead in contemplation of law, at the time the deed of trust in question was executed. We have carefully considered these special instructions which were given by the court, and we have concluded that they were entirely too broad, in that each of them ignored the fact of voluntary abandonment by Lewis’ wife, if such was a fact, at the time the deed of trust was executed, and upon another trial, if the evidence should be substantially the same, the trial court should not give either of these charges as now framed. In the main, these charges announce a correct abstract proposition of law, but, as stated, they ignore one of the material issues in this case, and instead of clearly guiding the jury in arriving at their verdict on the issue of homestead, they are calculated to mislead the jury in arriving at a verdict on that issue.

In what we have said above we have not been unmindful of the contention of the defendant Lewis, to the effect that the appellant, Murphy, cannot complain of the action of the court in refusing to give to the jury the special instructions requested by him relative to the wife’s abandonment of the husband in arriving at their verdict on the issue of homestead, for the reason, as contended by appellee Lewis that appellant did not specially plead that Lewis had been abandoned by his wife at the time of the execution of the deed of trust in question. We think that such a special plea was not required as a basis for the evidence on that point, or the charges requested by appellant, because we hold that the burden of proof was upon appellee Lewis, in order to defeat the deed of trust on the ground of homestead, to show every essential element which, gave to the property in controversy that character ; in other words, it was incumbent upon him to show that at the date of the execution of the deed of trust, the property claimed as a homestead constituted the homestead of a family, as defined by article 16, § 50 of the Constitution, and if, in the attempt to do so, the proof showed or was sufficient to raise the issue that his wife, the only other member of his family than himself, was living in voluntary and permanent abandonment of him at the time of the execution of the deed of trust, and if such issue of abandonment was found against him, then he had failed to establish the fact that the property claimed by him as the homestead of a family was such, in fact, or in contemplation of law, at the time of the execution of the deed of trust.

This disposes of all assignments of error on the part of appellant, Murphy, with the exception of one, the eleventh, which challenges the verdict of the jury on the issue of homestead as being against the weight of the evidence, etc. We shall not discuss that assignment, in view of another trial, and especially in view of the manner in which that issue was presented to the jury in connection with the special charges requested by appellee Lewis, and given by the court, and which we hold should not have been given as framed.

For the errors pointed out, the judgment of the trial court is reversed, and the cause remanded.
      <@E»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    HOME LIFE & ACCIDENT CO. v. GENERAL BONDING & CASUALTY INS. CO.
    (No. 7609.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 14, 1916.
    Rehearing Denied Nov. 11, 1916.)
    1. Insurance <s=^514 — Liability of Insurer —Indemnity Insurance.
    Under an employer’s liability insurance policy, providing that no action should lie, unless it should be brought by the insured for loss actually sustained and paid in money by the insured in satisfaction of a judgment, where insured became bankrupt after the affirmance of a judgment on a claim covered by the policy, and the surety on its appeal bond paid off the judgment, took an assignment thereof and an assignment of the policy, it was entitled to recover against the insurer as the situation was the same as though insured had borrowed the money and paid the judgment and then transferred it to the surety, and the surety was entitled to all the rights of insured under the policy.
    2. Insurance <⅜=>622(2) — Actions — Limitation by Policy — Validity.
    Under Rev. St. 1911, art. 5713, providing that it shall be unlawful to enter into any stipulation, contract, or agreement whereby the time in which to sue thereon is limited to a shorter period than 2 years, and that no stipulation, contract, or agreement for any shorter limitation shall be valid, a provision in an employer’s liability insurance policy that no action should lie, unless brought within 90 days after final judgment against the insured had been paid and satisfied, did not prevent the bringing of the action more than 90 days after the payment of the judgment.
    Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.
    Action by the General Bonding & Casualty Insurance Company against the Home Life & Accident Company. From a judgment for plaintiff, defendant appeals..
    Affirmed.
    Seay & Seay, of Dallas, for appellant. Locke & Locke, of Dallas, for appellee.
   RAINEY, C. J.

This suit was brought by appellee to recover of appellant on an accident insurance policy commonly called an employers’ liability policy, issued by appellant to Fred A. Jones Company. From the judgment rendered by the court, without the intervention of a jury, in favor of appellee, this appeal is taken by appellant.

The policy insured the Fred A. Jones Company against loss by reason of any accident to any of its employes. During the life of said policy Charlie Drake, an employé of the Jones Company, was injured. Drake sued the Jones Company for damages, and appellant undertook to defend said suit in the name of said Jones Company. A judgment was rendered in said suit against said Jones Company in favor of Drake for $1,500. An appeal was taken by said Jones Company, as desired by appellant. Jones Company executed a supersedeas bond, with the appellee as surety. Said appeal was affirmed by the appellate ‘ court. Pending the appeal said Jones Company became insolvent and was adjudged a bankrupt. After the mandate was filed appellee paid off the judgment, took an assignment thereof, and in exchange of the policy released said Jones Company from all liability on account of the judgment. Said policy, among other things, contained the following provision:

“No action shall lie against the company to recover for any loss under this policy, unless it shall be brought by the assured for loss actually sustained and paid in money by the assured in satisfaction of a judgment after trial of the issue, nor unless such action is brought within 90 days after final judgment against the assured has been so paid and satisfied. The company does not prejudice by this condition any defense against such action that it may be entitled to make under'this policy.”

It is admitted that the Fred A. Jones Company did not pay in money, or in any other way satisfy, said judgment secured against it by said Charlie Drake, save and except in the manner herein stated; that this appellant, the Home Life & Accident Company, did not have any notice of, nor did it consent in any manner to, the transferring of its policy issued to the said Fred A. Jones Company to the General Bonding & Casualty Insurance Company, or to any other person.

Appellant complains by its first assignment of error that the judgment is contrary to law and the evidence, and proceeds to set forth the salient features of the evidence. The propositions submitted are three in number, which we will group, and are as follows:

First. “A clause in an employers’ liability policy to the effect that no action shall lie against the company to recover for any loss under the policy, unless it shall be brought by the assured for loss actually sustained and paid in money by the assured in satisfaction of a judgment after trial of the issue, nor unless such action is brought within 90 days after final judgment against the assured has been so paid and satisfied, is binding; and where before a judgment is paid the assured becomes insolvent, and the judgment is paid by the surety on the assured’s appeal bond more than 90 days before suit is brought, who signed the appeal bond at the request of the assured, and the surety subsequently pays the owners of the judgment and takes, an assignment of the same, as well as of the policy, from the assured and its trustee in bankruptcy without the consent of the company issuing the employers’ liability policy, such is not a payment in compliance with the policy as would render the company issuing the employers’ liability policy liable to the surety company going upon the assured’s appeal bond;”
Second. “An employers’ liability policy is not a negotiable instrument, and cannot be legally assigned by the assured to any person without the consent of the company issuing the policy.”
Third. “Where an insurance policy provides, ‘No action shall lie against the company to recover for any loss under this policy, unless it shall be brought by the assured for loss actually sustained and paid in money by the assured in satisfaction of a judgment after trial of the issue, nor unless such action is brought within 90 days after final judgment against assured has been so paid and satisfied,’ and the record shows that judgment became final on March 25, •A. D. 1914, and was paid and satisfied by the surety company on assured’s appeal bond on April 22, A. D. 1914, and assigned by the owners of said judgment on said date to said surety, and suit was not filed until September 15, A. D. 1914, by such surety against the insurance company, then, even if this be construed to be payment by assured in compliance with such provisions in said policy, and such surety is thereby subrogated to the rights of the assured as if paid by assured, such payment and sub-rogation took place on April 2, A. D. 1914, and suit was filed on September 5, A. D. 1914-, it came too late to comply with the provision, ‘nor unless such action is brought within 90 days after final judgment against the assured has been so paid and satisfied.’ ”

' Under the facts as detailed we are of the opinion that the appellee was entitled to recover on the policy. Appellee having been forced to pay the judgment, for the Jones Company, it became entitled to all the rights possessed by the Jones Company under the policy sued on. The Jones Company, who secured the appellee to make the appeal bond, procured the payment of the judgment, and as far as appellant’s liability on its policy is concerned, it is not changed, and it stands as though the Jones Compány had borrowed the money, and therewith paid off the judgment, and then transferred the judgment to appellee. In such-a case the Jones Company could have recovered on the policy. So in the present case we see no difference as to the right of appellee to recover on the policy. The principle announced in Casualty Co. v. Omaha Electric L. & P. Co., 157 Fed. 514, 85 C. C. A. 106, is applicable in this case.

Article 5713, K. S., prevents the entering into agreements for the right to sue to be limited to 90 days from the accrual of an action; hence appellee not having brought his action within 90 days from the payment of the judgment is not barred. Insurance Co. v. Luckett, 12 Tex. Civ. App. 139, 34 S. W. 173; Ass’n v. Bosworth, 156 S. W. 346.

What has heretofore been said herein disposes of the second assignment of error.

The judgment is affirmed.
      ®=sFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    PULLMAN CO. v. GUTIEREZ et al.
    (No. 5902.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 21, 1917.
    On Motion for Rehearing, Dec. 12, 1917.)
    Carriers <®=»411 — Pullman Company —Injury to Passenger — Negligence—Proximate Cause.
    Any negligence of the porter of a Pullman car,.placed on a siding in a city to await the next train, in temporarily going away, leaving a woman passenger alone,, was not proximate cause of any injury to her from fright on being unable with the single effort made to open the door, though it could be opened by turning the knob and applying a twelve-pound pull; as it could not be anticipated that she could not open it, and that if she could not, such result would follow.
    Appeal from District Court, Cameron County; W. B. Hopkins, Judge.
    Action by Emilia Gutierez and another against the Pullman Company. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    Lane, Wolters & Storey, of Houston, and James B. Wells, Joseph K. Wells, and Herbert Davenport, all of Brownsville, for appellant. Graham, Jones & George, of Brownsville, for appellees.
   FLY, C. J.

This is a suit for damages instituted by Emilia Gutierez, joined by her husband, Jacinto Gutierez, against appellant, it being alleged that Emilia Gutierez was, on or about August 22, 1914, a passenger on a sleeping coach of appellant, going from San Antonio to Sam Fordyce, Tex., on the San Antonio & Aransas Pass Railway to Sinton, and from there to destination on the St. Louis, Brownsville & Mexico Railway; that the car arrived in Sinton about 7 o’clock a. m., and not having made connection with the connecting line, was placed on a siding where it remained until 5 o’clock p. m., of .the same day; that she and one Jack Caldwell were the only occupants of the sleeping coach, which was known to the negro porter who was in, charge of the car; that she was a woman in delicate health, about 30 years of age; that after 8 o’clock, when Caldwell and the porter had left the car she attempted to open the doorsi of the car and found them locked, or too heavy for her to open, and she became greatly frightened and terrorized and fell into hysteria, bordering on temporary delirium which lasted for a number of days, and her entire bealtb and nervous system Were affected thereby. The cause was tried by jury, resulting in a verdict and judgment for appellees in the sum of $2,975, the exact amount prayed for in the petition of appel-lees.

We talce the statement of the facts set out in the brief of appellant as being true, except in the three particulars in which objection is made to the statement by appellees. We find that Emilia Gutierez was a “little delicate” andi is “a frail and delicate person,” but was in good health, as testified by her; that the car was on a siding about 400 yards from the business part of Sinton; that the woman testified that she examined the car and found she was locked in. The doors were only locked as against persons from the outside and not locked as to those on the inside of the car. The windows were up, only screens being over the openings. Caldwell, a witness for appellees, testified that the doors were locked as against him from the outside until about 12 o’clock when he found the doors open, and found Mrs. Gutierez and the negro in the car. He then went back to town, sent a telegram for the woman, and brought some ice cream and fruit to her. He then went .to town again and. returned in company with a Mr. Custis and sat outside the car until about 5 p. m., when the car was taken off hy a train. The woman complained of being sick, about noon.

The first and second assignments of error are directly in the face of the rules for briefing and are too general to be considered.

The third and fourth assignments of error complain of the refusal of the court to instruct a verdict for appellant, as requested by it. This contention necessitates a review of the testimony which is as hereinbefore stated. That testimony discloses that Mrs. Gutierez was a passenger on a Püllman sleeping car, which was carried by the San Antonio & Aransas Pass Railway Company from San Antonio to Sinton and there placed on a siding to await the arrival of the train of the connecting line which would convey the car to its destination. The car was placed on the siding about 7 o’clock a. m., and remained there until about 5 p. m. The evidence showed that, for some reason not disclosed, Mrs. Gutierez desired to leave the car between 8 and 9 o’clock, and could not because she could not open the door. Afterwards, although the porter and Caldwell came into the car, she did not express a desire to leave the car. All she told Caldwell was that she was sick and wanted him to send a telegram for her. She did not complain that the car had 'been fastened so that she could not leave it. Mrs. Gutierez, although small, was a healthy woman, with nothing about her to indicate, so far as the record discloses, that she was not able to open an unlocked sleeping coach door, or that she would have an intfense attack of hysteria if she failed to open the door. The testimony showed beyond doubt that the doors could not be locked so as to prevent any one inside from going out, and that an average pull of twelve pounds would he required to open the doors from the inside. The ear was from 50 to 75 yards from the nearest residences, and within 50 yards of an ice factory and blacksmith shop. The woman seems to have made only one, effort to open the doors of the car, and that was about 20 minutes after Caldwell carried off the dishes from which she had eaten her breakfast, which he had brought to her. She claims that the knowledge that she could not get out was what affected her, and not that she was afraid some one might get in. She claims to have yelled, but no one seems to have heard her. She claims that she did not see Caldwell after he left with the dishes, but he swore that he went into the car about noon and she gave him the telegram and asked him to send it. He sent the telegram, and about 1:80 p. m., brought her some fruit and ice cream. The negro porter claimed to he sick at noon also. At least a part of the windows of the car were up all day. The porter swore that he was in and about the car most of the day, and Caldwell testifies that he was in the car at noon and probably at 1:30 p. m. and 3 p.m.

The only ground of negligence that could arise from the allegations and proof was the condition of the doors being such that Mrs. Gutierez could not open either of them. The siding was alleged to be in the town of Sin-ton, at a point near or in the resident part of the town. No negligence is shown in placing the car on that siding, if so, it would have been that of the railway company and not of appellant. No negligence was shown in the fact that the porter went out of the car for a while, for no one could reasonably have anticipated that a female passenger would desire his presence in the car all the time. Ap-pellees allege that she had been in a sanitarium, and was in a weakened, pale, and frail condition; she swore that she was in a healthy condition. Although she was small, how could any one anticipate that she would desire to leave the- car at the only time when it seems that the porter was absent, and could not pull twelve pounds resistance at the door so as to open it? It is not claimed that any one connected with appellant knew that Mrs. Gutierez had been in a hospital, or that S?ie was not a normal woman. She says she was healthy, and she ate her breakfast and probably the ice cream and fruit that was brought to her by Caldwell.

If the doors were too heavy for Mrs. Gutie-rez to open or were locked from the inside, no reasonable being could have anticipated that any healthy, normal passenger would have hysterics and become unconscious and have a spell of sickness because the doors could not be opened, in the absence of any one molesting her or in any way making her afraid. She was absolutely protected from all danger because no one could enter the ear except the porter who had the only key to the doors. It was not negligence to have the doors constructed as they were, and if it was negligent for the porter to absent himself from the ear for a short time, the evidence fails to show that his absence was the direct and proximate cause of the injury to Mrs. Gutierez, but her inability to open the unlocked doors. No one could have anticipated that the absence of the porter from the car for a while would cause a female passenger to go into hysterics. The woman made but one effort to open the door and then ceased to make any efforts to get out of the car. She does not claim to have turned a knob on the door, or that there was none to turn, but merely that she pulled and pushed the door. She was sharply contradicted as to being unconscious and in other particulars by her witness Caldwell. He talked with her at noon and at her request sent the telegram, and yet she swore she never saw him again after he left with the tray, after she had eaten her breakfast.

The test in such cases is, Would a reasonably prudent man have anticipated, in view of all the facts, the result that flowed therefrom? Railway v. Kellogg, 94 U. S. 469, 24 L. Ed. 256; Railway v. Bigham, 90 Tex. 223, 38 S. W. 162. No reasonable man could have anticipated that a female passenger would fry to open the door by merely pulling or pushing it without turning the knob or handle, or that when she failed to open it that she would become frightened or excited and go into hysterics. If the door would not open by the use of means within the power of the passenger she should have proved it, and proof was not made by testimony showing that the door was pushed and pulled.

The other assignments need not be considered, but because the evidence is not sufficient to sustain the verdict the judgment is reversed and the cause remanded.

On Motion for Rehearing.

If the evidence showed that Amelia Gutie-rez used every effort to open the doors of the car, that does not disprove the fact testified to by two witnesses, and not contradicted, that no Pullman car door is ever locked so that it cannot be opened by applying the proper degree of force from the inside. This being true, how could appellant have anticipated that a grown woman could not open the doors of the car? The rule laid down in Railway v. Trott, 86 Tex. 412, 25 S. W. 419, 40 Am. St. Rep. 866, as to proximate cause is:

“In determining what is the proximate cause, the true rule is that the injury must be the natural and probable consequence of the negligence; such a consequence as under the surrounding circumstances .of the case might and ought to have been seen by the wrongdoer to flow from his act.”

Tested by this rule, who could have anticipated that the woman could not open the car doors, and if she could not that she would become so alarmed on a switch in the inhabited part of a county seat that she would be thrown into hysterics, and that such dire consequences as narrated by her and her witnesses would flow from such fright? Her ■body was not injured by any negligence on the' part of appellant and all of her injuries must have flowed from her fright' and terror, which could not have been anticipated by appellant. The car-was not in an isolated spot, as contended by appellees. The evidence showed that, while the car might have been 400 yards from the business center of the town, it was in the residence part of the town.

The evidence of Amelia Gutierez shows that the porter did eoi lock her in the car, for she testified that he left the car before Caldwell did, and the doors were not locked when Caldwell left. She testified:

“The porter was not in the car at the time Caldwell took the dishes away; he had left. He gave me my coffee and left. 1 did not see him again.”

Caldwell brought the breakfast after the negro porter brought the coffee, and when Caldwell left he must have locked the doors, if they were locked. In 20 minutes after Caldwell left with the dishes she tried, the doors and found them locked. There was no evidence that the porter had returned after Caldwell left and before Mrs. Gutierez tried to open the doors. Mrs. Gutierez swore that she did not see Caldwell after he left with the dishes, and yet he is corroborated in his statement that he came back to the car and at the request of Mrs. Gutierez sent a telegram, by the fact that she admitted that she wrote the telegram to her father and he received it. .

The motion for rehearing is overruled.
      ®c=>Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    MISSOURI IRON & METAL CO. v. TEXAS & P. RY. CO.
    (No. 8710.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 13, 1917.
    Rehearing Denied Nov. 10, 1917.)
    1. Carriers <⅜»93 — Carriage of Goods — Liability.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 710, requiring carriers to deliver goods as provided by common law, etc., a carrier is liable for a misdelivery made in good faith and without negligence, unless the error was caused by the consignor.
    2. Carriebs <S=>94(3) — Carriage of Goods— Burden of Proof.
    In a consignor’s action for misdelivery, defendant carrier had burden of showing that individual to -whom delivery was made was either a partner or agent of the consignee partnership.
    3. Carriers ©=c94(3) — Carriage of Goods— Sufficiency of Evidence.
    In a consignor’s action for misdelivery, evidence that the person to whom delivery was made acted for the consignee partnership in transactions with the consignor, etc., held prima facie proof of such person’s authority to receive the goods, and authorized a directed verdict for defendant carrier, in absence of rebutting testimony.
    , Appeal from Tarrant County Cburt; Charles T. Prewitt, Judge.
    Suit by the Missouri Iron & Metal Company against the Texas & Pacific Railway Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Slay, Simon & Smith, of Ft. Worth, for appellant. ' Thompson, Barwise & Wharton and George Thompson, Jr., all of Ft. Worth, for appellee.
   BUCK, J.

This suit was filed in the county court of Tarrant county for civil cases by appellants, the Missrv-i Iron & Metal Company, a firm composed of M. Ginsburg and L. Cohen, against appellee, the Texas & Pacific Railway Company. Appellants alleged that on February 17, 1913, they delivered to ap-pellee at Ft. Worth, Texas, 17 bundles of old automobile tires, weighing 2,379 pounds, consigned to the Double Strength Relining Company, Dallas, Tex., and that appellee delivered to appellants its bill of lading for same. That appellee had never delivered said goods to the consignee, or to appellants, but had converted same, and that their market value was $286.48. In its answer appellee admitted the receipt of said goods for shipment and the execution of the bill of lading, which it alleged to be a straight, open bill of lading, and further alleged that it delivered said goods to one R. H. Caperton, who was alleged to be a member of the firm of the Double Strength Relining Company, and that he receipted for same as “R. H. Caper-ton, manager.” In' another paragraph, it alleged that said Caperton at the time of said delivery was the agent of the Double Strength Relining Company, duly authorized to receive said shipment and having apparent authority to receive it. Appellants denied that said Caperton was a partner or a member of the Double Strength Relining Company, or that he was in any way connected with said company, or had any authority, as manager or otherwise, to receipt for said shipment, or that appellee was authorized to deliver said shipment to him. Testimony was introduced on the trial, and at the close of the evidence the court peremptorily instructed a verdict for the defendant and entered judgment on said verdict. The plaintiffs have appealed.

In order to determine the correctness'vel non of the court’s action, it will be necessary for us to review the state of the evidence ¿nd see if the parties litigant, respectively, met the burden of proof resting upon them. The evidence shows: (1) A delivery to the railway company by the plaintiffs of the goods in question. (2) A delivery by the railway company to R. H. Caperton, who signed the expense bill, “R. H. Caperton, manager.” (3) That Caperton was the agent of the Double Strength Relining Company at least for the purpose of purchasing the goods in this shipment, and that Caperton bought the goods for the consignee, and agreed with the consignor as to the price, time of shipment, etc. (4) That he had bought a previous shipment of old tires, and it had been paid for. (5) That a draft was drawn on the consignee by the consignor, Caperton filling out the draft for Ginsburg, who sighed it. • That the draft was sent either through a Ft. Worth bank or directly by mail, and that the draft was returned unpaid. (6) That this was an open shipment, i. e., it did not require the presentation and surrender of the bill of lading in order to secure the delivery of the goods. (7) That a Mr. Murray “ran the Double Strength Relining Company,” or “was the Double Strength Relining Company.” (8) Mr. Ginsburg testified in several places in his testimony that Caperton was the agent for the consignee company, but no effort was made in the testimony to define or limit the scope of Caperton’s agency. (9) That Cap-erton on January 8, 1913, about a month before this shipment, drew a draft for $6.16 on the Double Strength Relining Company, which was paid.

We believe the above to be a fair statement of the substance of the testimony. Caperton did not testify, nor did Mr. Murray or any one else representing or connected with the Double Strength Relining Company, nor was there any positive evidence as to the character of such company, whether it was an individual firm or corporation, or what relation Caperton bore to it, except, as before stated, Ginsburg testified that Cap-erton was the agent of the company. Under article 710, Vernon’s Sayles’ Texas Civil Statutes:

“Common carriers are required, when they receive goods for transportation, to give to the shipper, when demanded, a bill of lading or memorandum in writing, stating the' quantity, character, order and condition of the goods, and such goods shall be delivered in the manner provided by common law, in like order and condition, to consignee, subject to ordinary wear and tear afid deterioration in due course of transportation”

—and if said common carrier shall fail to deliver the goods as above required, it shall be liable to the party injured for his damages as at common law. If the carrier deliver the goods to one other than the consignee, or his duly authorized agent, and said goods are lost or injured thereby, the carrier is responsible, even though said delivery was made to a person whom the carrier in good faith, but erroneously, believed to be duly authorized by the consignee to accept and receipt for the goods. Of course this statement of the law is subject to the exception, that if the mistake in the delivery was caused or induced by the act of commission or omission of the consignor, himself, the carrier would be relieved from liability because of said mistake. But it is not a question as to whether or not the carrier exercised due care in the delivery, and the carrier makes a delivery to any person other than the consignor or his duly authorized agent at its peril. As is said in Fielder v. M., K & T. Ry. Co., 92 Tex. 176, 179, 46 S. W. 633, 634:

“The relation of consignee and carrier begins when the goods are received to be carried, and ends only when they are delivered or stored at the point of delivery under such circumstances as to constitute the liability of the carrier that of a warehouseman only.. And so as a rule, the contract of the carrier is not performed until he has delivered the freight to the consignee.”

As is said by ■Chief Justice Stayton in M. P. Ry. Co. v. Haynes & Co., 72 Tex. 175, 182, 10 S. W. 398, 401:

“However the law may he elsewhere,. under the statutes in force in this state the liability of the carrier continues until the thing carried is actually delivered to the owner or consignee at such place as the nature of the carriage requires the delivery to be made.”

See, also, H. & T. C. Ry. Co. v. Adams, 49 Tex. 748, 30 Am. Rep. 116; 10 C. J., p. 264, sections 378 and 379; 4 R. C. L., p. 838, section 291 et seq.

It having been shown in the evidence that the delivery was made to Caperton, we think the burden of proof rested upon the railway company to show that said Caperton was either a partner in the Double Strength Relining Company, or its agent duly authorized to receive the goods, or generally authorized to transact business for said company. The question is, Has it discharged that burden? We hold that it has made a prima facie showing of the requisite authority in Caperton to receive the goods.

It will be recalled that the evidence shows that Caperton had bought for the Double Strength Relining Company a former shipment of old tires, and that said shipment was duly paid for; that he carried on all the negotiations leading up to the purchase and shipment of the consignment in question; that at one time he drew a draft on the Double Strength Relining Company, which was duly paid; that Ginsburg testified that Hr. Caperton acted as agent for . the Double Strength Relining Company in the first shipment, and that “he acted the same as last time.” He further stated as follows:

“Yes; I stated a while ago that previous to that, before I sold this shipment to Mr. Cap-erton, that I sold another shipment to Mr. Caperton, and that the Double Strength Refining Company when I sent in the draft paid it, and I got my money. Yes; before this transaction took place between me and Mr. Caper-ton, I had had another dealing with Mr. Caper-ton, but he always presented the same name, Double Strength Refining Company. Yes; he told me he was agent for the Double Strength Refining Company; that is what he said. Yes; me and him made the price. Yes; he told me how much he would give for the tires, I told him how much I would take, and we agreed about it. Yes; he represented on the one hand the Double Strength Refining Company, and I, on the other hand, represented the Missouri Iron & Metal Company.”

In the absence of any evidence tending to overturn the prima facie showing of Caper-ton’s agency for the purpose of receiving the goods, and in the absence of any evidence even tending to show that the Double Strength Relining Company did not in fact receive the goods receipted for by Caperton, we are of the opinion that the trial court was justified in giving the peremptory instruction, and the judgment is therefore affirmed.
      ÉssiFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: 'BUCK, J.

text:
    SHAMBURGER v. SCHEURRER et al.
    (No. 8793.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 16, 1917.
    Rehearing Denied Oct. 13, 1917.)
    1.' Judgment <§=>248 — Suppobt bt Pleading —Evidence.
    Plaintiffs’ cause of action must rest on the allegations contained in their petition, and the judgment rendered cannot be sustained by evidence introduced over defendant’s objection tending to establish facts and conditions not alleged in the petition.
    2. Nuisance <§=>59 — “Nuisance Pee Se” — “Nuisance at. Law” — “Nuisance Acoi--dens” — “Nuisance in Fact.”
    A “nuisance per se,” or a “nuisance at law,” is an act, thing, or omission, or use of property which in and of itself is a nuisance, and hence not permissible or excusable under any circumstances ; but a “nuisance aecidens,” or a “nuisance in fact,” is one which becomes a nuisance by reason of circumstances and surroundings (queting Words and Phrases, Second Series, Nuisance .Per Se).
    3. Nuisance <§=>61 — Lumbeb Yabd — “Nuisance Pee Se.”
    In the absence of statutory enactment limiting the right to conduct a lumber yard within defined districts, the maintenance of a lumber yard is not a nuisance pe.r se, since the pursuit of a lawful business in a lawful way cannot be said to be such a nuisance.
    4. Nuisance <§=>75— Injunction — Dangeb peom Fiee — Allegation and Peooe.
    To entitle an adjoining property owner to injunction against a nuisance increasing the danger from fire, the allegation and proof of the imminence, or probability of the danger from fire, must be clear and unmistakable.
    5. Nuisance <§=>61 — Abatement and Injunction-Diminution op Value op Pbopebty.
    Diminution of value caused to plaintiffs’ property by reason of the erection of a building or the use of property by another is not sufficient to justify an injunction as to prevent a nuisance.
    6. Nuisance <g=>61 — Abatement and Injunction — Incbeasing Fiee Hazaed and Enhancing Insueance Rate.
    The mere fact that the erection of a building near to or adjacent to that of another will increase the fire hazard or enhance the insurance rate on such other building is not of itself ground to enjoin the erection as for.the prevention of a nuisance.
    7. Nuisance .<§=>61 — Abatement oe Injunction-Unsightly Building.
    That buildings or improvements are ugly or unsightly or objectionable to the sesthetic tastes of complainants is not sufficient ground for abatement or injunction,as a nuisance.

      8. Waters and Water Courses <§=3118 — “Diversion of Natural Flow of Surface Water” — Statute.
    That the erection of a building, or an excavation therefor, may divert slightly the water falling on the lot or lots to be used in connection with the building, does not constitute a diversion of the natural flow of the surface water as prohibited by Acts 34th Leg. (1st Called Sess.)' c. 7.
    9. Nuisance <§=>75 — Abatement and Injunction— Sufficiency of Allegation.
    The allegation of a petition for injunction against the erection of buildings for a lumber yard as a nuisance as to the likelihood of diseases being brought into and kept within the yard, asserted merely a probability, of an uncertain contingency, and was insufficient to invoke injunctive relief.
    10. Nuisance <§=>75 ■— Abatement and In-jun ctio-n — Pleading—Evidence.
    In suit to enjoin the' erection of lumber yard buildings as a nuisance, the general allegation of the petition that the yard 'would constitute a nuisance did not justify the admission of testimony, over defendant’s objections, that a lumber yard would draw flies, rats, and cockroaches, and invite tramps, and that the odors, dust, and noise from the yard would be objectionable to residents in the vicinity.
    Appeal from. District Court, Wichita County; Edgar Scurry, Judge.
    Suit by R. G. Scheurrer and others against O. D.' Shamburger. From judgment perpetuating temporary injunction, defendant appeals.
    Judgment reversed, and cause remanded.
    Nicholson & Fitzgerald, of Jacksboro, for appellant. •' T. R. Boone, of Wichita Falls, for appellees.
   'BUCK, J.

R. G. Scheurrer and other citizens having their homes and owning property in the Billevue addition to the city of Wichita Falls filed their petition in the Seventy-Eighth district court to enjoin C. D. Sham-burger from erecting, constructing, and maintaining a lumber yard on certain described •lots in .the , n,ear proximity to petitioners’ residences and property. On the presentation 'of the petition a temporary, injunction having .been granted, the defendant moved the .court to dissolve the injunction for want'of ■equity in the bill. Upon a hearing before the •Court the-motion to dissolve was overruled, and .the . temporary injunction theretofore granted was. perpetuated. Defendant has appealed.

The evidence introduced by the plaintiffs took rather a' wide range, and in many instances went beyond the allegations contained in the petition, and several assignments are directed to the admission of such testimony. But plaintiffs’ cause of action must rest upon the allegations contained in their ■petition, and- the judgment rendered cannot ■be sustained by evidence introduced over the objections of defendant where such evidence tended to establish facts and conditions which the petition did not allege. The petition alleged that a lumber yard erected and maintained in the vicinity, which was claimed to be a residential district, and upon the lots owned by the defendant and upon which he proposed to build and maintain a lumber yard, would constitute a nuisance. Plaintiffs alleged that they were the owners of certain lots in the residence district of Wichita Falls, and had their residence and homes on said lots; that said Billevue addition was formed for the purpose of building residences and had been used as a residence district for some ten years; that the plaintiffs had certain key rate of insurance to pay on their residences and homes and buildings situated on the lots they were occupying and using, and that by the erection and maintenance of the lumber yard in question the fire hazard-to said buildings would be increased and their rate of insurance enhanced; that plaintiffs had reason to believe and did believe that said defendant was going to erect on the lots owned by him, adjacent and lying, next to plaintiff’s homes and places of residence, unsightly, unseemly, and ugly buildings, and structures; that defendant would excavate and fill in at different portions, of said lot .to such an extent that he would change the flow of the surface water that naturally flows across said premises, and would, cause same to accumulate on plaintiff’s lots' and premises; that defendant was threatening to open up a lumber yard where all kinds of inflammable material would be kept “and where all kinds of diseases would likely be brought and kept around said yard” ; that said lumber yard would “be erected and maintained in such a manner as that same will be a nuisance to all of these plaintiffs and the surrounding neighborhood, and that said business so threatened by the defendant to toe erected and maintained on his said lots * ⅜ ⅜ will be a nuisance to these plaintiffs and the entire community thereabout; that the establishment and maintenance of said lumber yard would work an irreparable injury to the plaintiffs.”

Without reference to the testimony introduced or the answer of the defendant filed in the case; we will first consider the question of the sufficiency of the petition on its face to invoke the equitable powers of the trial court. Wood’s Law of Nuisances, § 1, defines a nuisance, in its legal sense, as:

“That class of wrongs .that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, real or personal, or from his own improper, indecent, or unlawful personal conduct, working an obstruction of or injury to a right of another or of the public, and producing such material annoyance, inconvenience, discomfort, or hurt that the law will presume a consequent damage.”

The test of what constitutes an actionable nuisance, one that may be enjoined or abated, is defined by the same author on page 3 of his work (second edition) in the following language:

“It is not every use of one’s property which works an, injury to the property of another that creates a nuisance. Injury and damage are essential elements of a nuisance, but they may both exist as the result of an act or thing, and yet the act or thing producing them not be a nuisance; for, as has been before stated, every person has a right to the reasonable enjoyment of his property, and so long as the use to which he devotes it violates no rights of another, however much damage others may sustain therefrom, his use is lawful, and it is ‘damnum absque injuria.’ ”

A “nuisance per se” or a “nuisance at law” is an act, thing, or omission,'or use of property which in and of itself is a nuisance, and hence not permissible or excusable under any circumstances. A “nuisance ac-cidens” or “a nuisance in fact” is one which becomes a nuisance by reason of circumstances and surroundings. 3 Words and Phrases, p. 661; 29 Cyc. 1153. The pursuit of a lawful business in a lawful way cannot be said to be a nuisance per se, and hence in the absence of some statutory enactment limiting the right to conduct a lumber yard within certain defined districts it cannot he said that the maintenance of a lumber yard is a nuisance per se.

Omitting the general allegation that the lumber yard as contemplated would be a nuisance, which allegation would be rather a conclusion of the pleader than a statement of a fact, the grounds for injunction presented in plaintiff’s petition are: (1) That the erection and maintenance of the lumber yard would raise the rate of insurance on plaintiffs’ residences and property; (2) that defendant would erect on his lots, in connection with his lumber yard, buildings that were unseemly and unsightly; (3) that he would make excavations which would cause the change of the natural flow of the surface water and cause the said water to flow on plaintiffs’ premises; (4) that defendant was threatening to open up a lumber yard “where all kinds of inflammable material would be kept, and where all kinds of disease is likely to1 be brought and kept around said yard.”

While it has been held that it is a nuisance for a person to erect a building in the vicinity of the buildings of another, and to negligently and carelessly carry on a business there that exposes the property of the other person to loss or damage from fire- (Wood on Nuisances, § 147, p. 159), yet such injury to the property of the other person is abatable as a nuisance because of the negligence and carelessness shown in the manner of carrying on such business. In the case cited by the author in support of the text the defendant erected a building with a thatched roof, and used it as a smith’s forge in the immediate vicinity of plaintiff’s residence ahd other thatched houses. The sparks falling upon the roofs from ■ the ■ chimney constantly exposed the plaintiff’s property- to damage from fire. The court restrained the defendant from using his building for the purpose.

“But in order to render a building a nuisance, by reason of the exposure of other buildings to danger from fire, the hazardous character of the business must be unmistakable, the danger imminent, and the use of such an extraordinary and hazardous character as to leave no doubt of the nuisance. The mere fact that the business carried oñ there is of a hazardous character, ahd largely increases the rates of insurance upon surrounding property, is'not" sufficient; it must appear not only that the business or use to which the building is applied is hazardous, but also, that it is conducted in such a careless manner, or in such a locality, as to make injurious results probable.” Wood’s Law of Nuisances, § 148.

In Duncan v. Hayes, 22 N. J. Eq, 25, the plaintiff, among other grounds, urged that the defendant should be enjoined from erecting a steam planing and sawmill, because it exposed her buildings to fire, and largely increased the rates of insurance upon property in the vicinity. In denying the writ, the court said:

“I know of no precedent for an .injunction against any business on account of an increased risk from fire to the adjoining buildings.”

This announcement by the New Jersey court, however, should not be understood to mean that because of the nature of the business, the character of the surrounding buildings, and the manner in which the business is conducted, especially if it be shown to be conducted in a negligent and careless manner with reference to fire hazards, and unnecessary and unreasonable danger from fire is created, an injunction would not lie. But cases of this character must necessarily be rare, and the allegation and proof of the imminence and probability of the danger from fire clear and unmistakable. The diminution of value caused to plaintiff’s property by reason of the erection of a building, or the use of property by another, is not sufficient to justify an injunction. Wood on Nuisances, § 3, and Dunn v. City of Austin, 77 Tex. 139, 11 S. W. 1125. Nor do we think the mere fact that the erection of a building near to or adjacent to that of another would increase the fire hazard or enhance the insurance rate on. such other building would itself be ground 'for injunction;. and' as to this feature we do,not believe that plaintiffs alleged sufficient grounds to invoke the relief for which they prayed. -

We find no authority for.the contention that merely because buildings or improvements are ugly or unsightly,' or objectionable to the msthetic tastes of complainants, that a sufficient ground for abatement or. injunction is presented. As is said in 29 Cyc. 1190, § D, subd. 2:

“The injury or annoyance which warrants relief against an alleged nuisance must be of a real and' substantial ’character» and such1 as impairs the ordinary enjoyment, physically, of the property within its sphere; for if, the injury or inconvenience Be merely theoretical, or if it be slight or trivial, or fanciful; or one of mere delicacy or fastidiousness, there is no nuisance in ,a legal sense. Thus the law will not declare a thing a nuisance because it is unsightly or disfigured, because it is not in a proper or suitable condition, or because it is unpleasant to the eye and a violation of the rules of propriety and good taste,, for the law does not eater to men’s tastes or consult their convenience merely, but only guards and upholds their material rights, and shields them from unwarrantable invasion.”

The same rule is laid down in Wood’s Law of Nuisances, § 7, pp. 15 and 16, in the following words:

“The law should not and does not deal with trifles. The maxim, ‘De minimis non curat lex,’ is applied in proper cases. Therefore the law will not declare a thing a nuisance because it is unpleasant to the eye, because all the rules of propriety and good taste have been violated in its construction, nor because the property of another is rendered less valuable, nor because its existence is a constant source of irritation and annoyance to others. No fanciful notions are recognized. It does not pander to men’s tastes, nor consult their mere convenience. It simply guards and upholds their material rights, and shields them from unwarrantable invasion. It recognizes no distinction in classes, ranks, or conditions of life, but measures out the same even and exact justice to all. While it enforces with rigid exactness the principles of that time-honored maxim of the law, borrowed from the gospel rule, ‘Sic utere aliunum non l^das,’ yet it gives it a reasonable application, and applies it only to those instances where the damage resulting arises from a use of property in such a manner as violates a legal right of another.”

It might be a source of irritation and. extreme annoyance to the owner of a beautiful mansion to have his neighbor build a lowly log cabin on an adjacent lot, and the value of the rich man’s palace might be depreciated thereby and the pleasure in its use as a home be largely circumscribed, yet equity will not, by reason of such facts, restrain the building of the humble cottage to provide a shelter and a home for the poor man’s family. The absence of beauty of architecture will not constitute a structure a nuisance.

As to the allegation that the erection and maintenance • of a lumber yard would divert the natural flow of the surface water, there is no contention made in the petition, nor is there any evidence to show, that the lots proposed to be used for the lumber yard are in the bed of a natural water course. In fact, both the pleadings and the evidence, including the plat introduced in evidence, exclude such an assumption. Ninth street lies in front of the Shamburger lots, and the several residences of at least three of the plaintiffs are on the right, the left, and at the rear, respectively, of such lots. The fact that the erection of a building, or, the excavation therefor, may divert slightly the water falling on the lot or lots to be used in connection with the building, certainly would not constitute a diversion of the natural flow of the surface water as inhibited by Acts 34th Leg. 1st Called Sess. pp. 17 and 18. We do not think that statute, referred to and relied on by. appellee, has any reference to the case and condition here presented.

As to the asserted ground that the lumber yard would be a place (a) “where all kinds of inflammable material would be kept,” and (b) “where all kinds of disease is likely to be brought and kept,” we think it is sufficient to say that the presence of inflammable material in the proposed lumber yard was evidently charged and relied on to show that the fire hazard would be increased. What we have said heretofore we think sufficiently disposes of this question. The allegation as to the likelihood of disease, being “brought and kept” into and within the lumber yard only asserts a probability or an uncertain contingency, and is, therefore, insufficient to invoke injunctive relief. To be sufficient, the allegations must assert with a reasonable certainty that the condition relied on to constitute the premises or structure a nuisance will ensue. Dunn v. City of Austin, 77 Tex. 139, 11 S. W. 1125. The case of Moore et al. v. Coleman et al., 185 S. W. 936, by this court, is cited by the appellee to sustain the sufficiency of the allegation now under discussion. But in that case the petition alleged positively and definitely that the cotton gin proposed to be erected would produce loud noises, and cause clouds of lint, dust, sand, and dirt to be deposited in complainants’ homes, yards, and church houses, etc. The allegation in the instant case falls far short of those in the cited case in this respect.

Erom what we have heretofore said, it follows, as we view it, that the petition itself was insufficient to authorize the trial court to grant even the preliminary injunction, and that the motion to dissolve, irrespective of the testimony introduced, should have been granted. We think appellant’s general demurrer should have been sustained. Hence we sustain appellant’s second assignment directed to the alleged error of the trial court in overruling such general demurrer.

While there was considerable evidence introduced by plaintiffs to show that a lumber yard would draw flies, rats, and cockroaches, and invite tramps, and that the odors, dust, and noise from such lumber yard would be very objectionable to the plaintiffs and other citizens in that vicinity, yet none of these constitute the grounds alleged by plaintiffs in their petition, and we do not think that the general allegations in the petition contained that the lumber yard would constitute a nuisance justified the admission of such testimony over the objections of defendant. The fourth assignment is directed to the admission of testimony of this character, and we believe that the court erred in so admitting it over objection.

Eor the reasons stated, the judgment of the trial court- is reversed, and the cause remanded.
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author: KING, J.

text:
    TULLOS et al. v. MAYFIELD et al.
    (No. 193.)
    (Court of Civil Appeals of Texas. Beaumont
    Nov. 16, 1917.
    Rehearing Denied Dec. 5, 1917.)
    1. Judgment <®=>589(1) — Causes oe Action Baeeed — Trespass to Try Title — “Res Adjudicata.”
    Where a vendor after default in the payment of lien notes brought an action of trespass to try title in -which he sought to recover the land by virtue of his superior title, and did not seek a recovery on the notes or a foreclosure of the lien, and the answer did not put the notes in issue, deny their execution or allege that they constituted a cloud on defendant’s title, and the only question involved was that of limitation, a judgment for defendant did not bar a suit by the vendor to recover on the notes and foreclose the lien, as a cause is not res adjudicata unless there is identity of the thing sued for, of the cause of action, of the persons and parties, and of the quality in the persons for or against whom the claim is made.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Res Ad-judicata.]
    2. Election oe Remedies <®=>11 — Mistake as to Remedy.
    To sustain a defense founded upon the doctrine of election of remedies it must appear that plaintiff actually had two valid available and inconsistent remedies, and that he undertook to pursue one, and his effort to enforce a particular remedy which he supposed he had is not an election, unless the remedy in fact existed.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Election.]
    3. Election oe Remedies <®=>3(1) — Enforcement oe Lien.
    A vendor’s attempt to recover land by virtue of his superior title, in an action of trespass to try title, after such action was barred by Rev. St. 1911, art. 5695, as amended by Acts 33d Leg. c. 123 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5695), was not an election of remedies preventing an action on the vendor’s lien notes and to foreclose the lien.
    4. Election oe Remedies <§=>11 — Mistake as to Remedy — Burden oe Prooe.
    A defendant pleading an election of remedies as a defense must show that the remedy which plaintiff undertook to pursue in the first suit was available.
    5. Vendor and Purchaser <§=>278 — Limitations — Enforcement of Lien.
    Under Rev. St. 1911, art. 5695, as amended by Acts 33d Leg. c. 123 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5695), effective November 18, 1913, 90 days after the adjournment of the Legislature, providing that owners of vendor’s lien notes reserved in conveyances executed subsequent to July 14, 1905, shall have four years after that act takes effect within which to bring suit to enforce the liens if they are valid obligations and not already barred by the four years’ statute of limitations when the act takes effect, and article 593 giving three days’ grace on promissory notes, a vendor’s lien note due November 15, 1909, was not barred when the act took effect and the holder had four years thereafter within which to enforce it, as he had three full days of grace after November 15, 1913, within which to file suit and suit could have been filed at any time before midnight of November 18th.
    Appeal from District Court, Liberty County ; L. B. Hightower, Judge.
    ■Suit by J. E. Mayfield and others against
    Alfred Tullos and Others. From judgment for plaintiffs, defendants appeal.
    Affirmed.
    H. E. Marshall, of Liberty, for appellants. C. R. Wilson, of Liberty, for appellees.
   KING, J.

This appeal is from a judgment in favor of appellees, who sued appellant Alfred Tullos, on the 15th day of July, 1916, in the district court of Liberty county on three vendor’s lien notes executed by appellant Alfred Tullos, on the 15th day of November, 1906, as part payment for certain real estate, appellees asking judgment for the amount of said notes, with interest, etc., and for foreclosure of the vendor’s lien retained. D. J. Harrison and H. E. Marshall were made parties defendant in said suit, it appearing that they were the grantees of appellant Tullos, to the extent of one-half of the land in controversy, the same having been conveyed to them before this suit was instituted.

The defendants pleaded the statute of limitation of four years, and that plaintiffs were barred from prosecuting this suit, because they had made an election in another suit of one of two remedies which were available to them, which estopped them from prosecuting this suit; also that the matters here in controversy. are res adjudicata. These defenses are presented under proper assignments of error.

It appears that appellees herein, on January 11, 1916, filed a suit against appellant Tullos and Robert Copeland, a tenant under Tullos, in trespass to try title to recover the superior title to the land in controversy, the nonpayment of the three notes in issue in this suit being the basis of the former suit, wherein appellees claimed the superior title to the land by virtue of their nonpayment. These notes were introduced in evidence upon the trial of the first suit for the purpose only of showing their nonpayment. Judgment was rendered for appellant for the land and costs in the first suit.

There are but three questions involved in the disposition of this cause: (1) Did the judgment in the first suit adjudicate the issues in this suit? (2) Are the appellees es-topped from suing upon the notes and foreclosing the lien by virtue of having elected to sue for the superior title under said notes? (3) Are the notes in question barred by the statute of limitation?

The former judgment is not a bar to this, because the vital points in this suit were not put directly in issue and determined in the first suit. A cause is not generally regarded as res adjudicata unless there be a concurrence of the following four conditions: (1) Identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action, (4) identity in the quality in the persons for or against whom the claim is made.

The appellees brought their first suit to recover in an action of trespass to try title to the land involved in this suit, by virtue of the land never having been paid for, and no personal judgment was asked, and the notes were in no way involved in issue in the first suit. In the present case, appellees brought their suit to recover on the notes, and seek a personal judgment against the defendant Tullos for the amount due on the notes, and for a foreclosure as against all of the appellants, the present suit being wholy inconsistent with the remedy sought in the former suit, and is an entirely different cause of action. The fact that the notes herein sued upon were collaterally involved in the former suit, and were introduced in evidence for the purpose of showing that they were unpaid, is not sufficient to invoke the rule of res adjudi-cata, the vital issue in the first and in this case not being the same. In the first suit, appellees did not sue on the^notes, and sought no personal judgment against appellant Tul-los, who by his answer in the first suit did not put the notes in issue, nor did he deny the execution of same, nor set up the fact that the same constituted a cloud on his title ; neither did he ask that they be canceled or in any other way put them in issue. The only question involved in the former suit was the question of limitation as to the appellant Tullos’ right to bring suit for the superi- or title to the land. In the instant case, ap-pellees are in no manner claiming the superi- or title to the land, but are seeking a money judgment against appellant Tullos, as well as a foreclosure of the lien, as against him and appellants Marshall and Harrison, who purchased a one-half interest from Tullos, pending the first suit. Philipowski v. Spencer, 63 Tex. 604; Cook v. Burnley, 45 Tex. 115; Lucas v. Heidenheimer, 3 Willson Civ. Cas. Ct. App. § 360; Freeman v. McAninch, 6 Tex. Civ. App. 644, 24 S. W. 922; James v. James, 81 Tex. 373, 16 S. W. 1087; Noel v. Clark, 25 Tex. Civ. App. 136, 60 S. W. 356; 23 Cyc. 1216; Bandy v. Cates, 44 Tex. Civ. App. 38, 97 S. W. 710.

In order to sustain a defense founded upon the doctrine of 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, and 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.

In the first suit, appellees were attempting to recover the superior title to the land, when under the act of 1913 (art. 5695, Vernon’s Sayles’ Texas Civil Statutes, amending art. 5695, R. S. 1911), such action was barred. The act went into effect the 18th day of November, 1913, and appellees’ first suit was not filed until January 11, 1915, and was barred at the time the suit was brought. Therefore, at the time of the filing of the first suit, the remedy they were seeking to assert did not, in fact, exist. Bandy v. Cates, 44 Tex. Civ. App. 38, 97 S. W. 710; Zimmerman v. Robinson & Co., 128 Iowa, 72, 102 N. W. 814, 5 Ann. Cas. 960; D. Sullivan & Co. v. Ramsey, 155 S. W. 580; Griffin v. Williams, 142 S. W. 981; Brodkey v. Lesser, 157 S. W. 457.

Furthermore, it was incumbent upon appellants to show that the remedy which ap-pellees undertook to pursue in their first suit was available, and we are unable to find in the record where appellants undertook in any manner to show that such remedy, was, in fact, available. Brodkey v. Lesser 157 S. W. 457.

That part of the act of 1913 (Acts 33d Leg. c. 123, § 3), which applies to, these notes reads as follows:

“Provided that the owners of all notes secured by deeds of trust or other liens, and the owners of all vendor’s lien notes reserved in deeds of conveyance which were executed subsequent to July 14, 1905, shall have four years after this act takes effect within which they may obtain such recorded extension as herein provided for, or bring suit to enforce the liens securing them if same are valid obligations, and not already barred by the four years’ statute of limitations when this act takes effect, and if such debt is not extended of record, or suit is not brought within such four years, or four years after they mature, they shall be forever barred from the right to extend such debt of record, or bring suit to enforce the lien securing the same, and further provided [that] if any such obligations executed subsequent to July 14, 1905, were barred by the four years’ statute of limitation on the 30th day of June, 1913, the owners thereof shall have four years within which to bring suit to enforce the lien securing the same; and providing those owning the superior title to land retained in any deed of conveyance or his transferee and those subsequently acquiring such superior title by transfer, shall have twelve months after this act takes effect within which to bring suit for the land, if their claim to the land is not otherwise invalid, and unless such suit is brought within twelve months after this act takes effect, they shall be forever barred from bringing suit to recover the same.”

Notes Nos. 1 and 2 were due November 15, 1907, and 1908, respectively, and were barred by the statute of four years’ limitation November 19, 1911, and 1912, respectively, adding three days of grace, and were therefore barred prior to June 30, 1913. Ap-pellees had four years from the date said act took effect within which to sue upon these notes, and to enforce the lien retained by them.

Note No. 3, which was due November 15, 1909, does not come under this part of the act, as said note was not barred by the statute of limitation on June 30, 1913, it being four years past due on November 15, 1913, but article 593 gives three days of grace on promissory notes. The Legislature adjourned on the 19th day of August, and this act became effective 90. days thereafter, that is on November 18, 1913, just three days after the third note was four years past due,

Appellants therefore had three full days of grace after said date within which to file the suit on the third note: Suit could have been filed at any time before midnight of November 18, 1913. Therefore the third note was a valid obligation, and was not barred by the four years’ statute of limitation when that act took effect, and appellees had four years from the date said act took effect within which to enforce it.

In the case of Watkins v. Willis & Bros., 58 Tex. 521, the note matured on March 18, 1877, and suit was filed on March 21, 1881. The court held that the debtor was entitled to three entire days after the day of payment and that limitation did not commence to run until after the expiration of the three-day period of grace. The case of McCutcheon & Church v. Smith, 194 S. W. 831, construes said act.

We have examined the other assignments of error in the record, and they are overruled. The judgment of the lower court is affirmed.
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