author: RICE, J.

text:
    CROSS v. FLEWELLEN et al.
    (No. 5830.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 5, 1917.)
    1. Justices of the Peace <§=>159(10) — Ab-peal — Bond—Abandonment.
    Where the attorney for the appellant obtained from the justice the appeal bond, together with the original papers and transcript, and failed to return them to the justice until six terms of the-county court had passed, the appeal from the justice’s judgment will be treated as abandoned, even though it is the justice’s duty to file such appeal bond, etc., in the county court, hence execution may be issued on the justice’s judgment.
    2. Justices oe the Peace <§=>174(6), 176(1) — . Trial de Novo on Appeal — Reception oe Evidence — Amendment oe Pleading.
    Where the District Court on appeal from a justice of the peace heard evidence and took the case under advisement, and later advised the attorneys of his decision, and that judgment would be entered on a certain date, a party was properly denied leave at the date fixed for rendition of the judgment to file an amendment and offer additional evidence.
    Appeal from District Court, Bell County; E. M. Spann, Judge.
    Action by Prank Cross against Dr. W. P. Plewellen and others. Prom a judgment for defendants, plaintiff appeals.
    Affirmed.
    A. D. Dyess, of Houston, for appellant. James Boyd, of Belton, for appellees.
   RICE, J.

On the 7th of August, 1915, W. P. Plewellen recovered a judgment in the justice court, precinct No. 1, Bell county, against Prank Cross, for the sum of $80, together with attorney’s fees and costs of suit. On the 14th of said month he. filed his appeal bond with the justice of the peace, who approved the same. The record shows, however, that immediately upon the filing and approval of the bond, same, together with the papers in the case, was delivered by the justice to the attorney for Cross, who promised to return same in time for them to be filed at the next succeeding term of the county court; but the papers were never returned to the justice, although they were duly requested. The papers remained in the hands of said attorney until about the time of this trial, for which reason said bond, original papers, and transcript thereof were never filed in the county court, and six terms thereof had passed before the suing out of the execution herein mentioned.

Some time prior to the 18th of October, 1916, the justice of the peace, at the instance of Plewellen, issued and placed in the hands of the constable of said precinct an execution, which was levied by him upon one mule, the property of appellant, who thereupon applied to and obtained from the district judge a writ of injunction restraining all of said parties from further proceedings under such execution ; said writ being applied for chiefly on the ground that said appeal was pending in the county court and no execution could legally be issued thereon. Defendants answered by general demurrer, special exceptions, and set up the fact that the original papers in the case, together with the bond and transcript, had not been sent by the justice to the county court, for the reason that the bond and papers had been withdrawn by appellant’s attorney and withheld until six terms of the county court had passed, as well as other facts unnecessary, to be stated. On the trial in the district court on the pleadings and sworn answer of defendants, the court dissolved the injunction, from which this appeal is prosecuted.

It is urged by the first assignment that the court erred in dissolving the writ of injunction, and in refusing t'o make it permanent, because the appeal bond having been filed in the justice court within the time required by law, the judgment of the justice court was superseded, and no valid execution could be issued thereon until the appeal had properly been dismissed in the county court. We differ with appellant in this contention, and think that the .court properly dissolved the injunction, because under the facts set out in the record appellant must be held to have abandoned his appeal. While the law imposes the duty upon the justice to file the appeal bond, together with the original papers and transcript, in the county court, still where this is rendered impossible by the action and conduct of counsel for appellant, who retains the papers and makes no effort to prosecute the appeal, and permits six terms of the county court to pass, it must be held that he has lost his right of appeal by his own laches, for which reason the court did not err in dissolving the injunction.

Appellant complains that the court refused to permit him to file an amended original petition, showing that the judgment entered in the justice court had become dormant by reason of the failure to issue an execution thereon within 12 months after its rendition; and also complains that the court erred in refusing to permit his counsel to testify to an agreement he had made with an attorney for appellees with reference to a substitution for lost papers, and the filing of the transcript in the county court without prejudice.

With reference to these matters the bills of exception show that the case was called and tried on its merits on the 8th of November, at which time the court took the case under advisement, stating to counsel of both parties that he would later advise them of his decision in the premises, .but that he would not enter judgment until they had had an opportunity. to appear in court and take such exceptions as they might deem proper; that afterwards, on the 13th of November, the court did advise counsel for plaintiff of its decision in this ease, and that it would on the 16th of November enter judgment accordingly in said 'cause; and on the 16th plaintiff’s attorney appeared in open court and asked leave to file his amendment, and also offered, testimony in support of the agreement. The court declined to permit the amendment, and refused to hear the testimony. It was too late after the trial was concluded and judgment entered to file an amendment or offer additional testimony. The court' in so holding did not, in our judgment, abuse its discretion, for which reason we overrule all of the assignments complaining of these matters.

Finding no error in the proceedings of the trial court, its Judgment is in all things affirmed.
      <®=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ■


source: Caselaw Access Project

author: BOYCE, J.

license: Public Domain

text:
    PANHANDLE & S. F. RY. CO. et al. v. HARP.
    (No. 1273.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 19, 1917.)
    1. Trial <g=>118 — Argument of Counsel— Statement of Law.
    In a cattle shipping case, plaintiff’s attorney in closing argument erroneously stated that the laws of the state required a railroad to run its trains on schedule time, that, in the absence of proof to the contrary, it is presumed to be the law elsewhere, it being the duty of the trial judge to inform the jury as to the law of the case, the court refusing to sustain objections to such argument and to instruct the jury not to consider it.
    2. Trial <©=^118 — Argument of Counsel-Failure to Sustain Objection.
    If a charge by the court, similar to an argument by counsel as to the law, would have been erroneous, it was error for the court not to sustain defendants’ objections to the statement in argument.
    Appeal from Hale County Court; Charles Clements, Judge.
    Action by Ross Harp against the Panhandle & Santa Fé Railway Company and others. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    Terry, Cavin & Mills, of Galveston, Madden, Trulove, Ryburn & Pipkin, of Amarillo, and L. R. Pearson, of Plainview, for appellants. Graham & Graham and Mathes & Williams, all of Plainview, for appellee.
   BOYCE, J.

This is a cattle shipping ease, being the second appeal in the same case; the decision on former appeal being reported in 193 S. W. 438. The cattle were shipped from Plainview, Tex., to Wichita, Kan., and, after being unloaded and remaining at Wichita for about 24 hours, were reshipped to Kansas City. The suit is for damages growing out of the transportation from Wichita to Kansas City.

There was testimony to the effect that the shipment did not make the usual time between Wichita and Kansas City, and the defendant introduced evidence explaining the reason of certain delays to which the shipment was subject, and under the evidence it became a question of fact for the jury as to whether the defendant exercised ordinary care to transport the shipment in a reasonable time and whether the explanation of the delays shown was sufficient under this rule of liability. Plaintiff’s attorney, in his closing argument to the jury, made this statement:

“The laws of this state require a railroad to run its trains on schedule time, and, in the ab-. sence of proof to the contrary, it is presumed to be the law elsewhere.”

Appellant’s objection to this argument was overruled by the court. The argument was improper. G. T. & W. Ry. v. Culver, 168 S. W. 519; Colorado Canal Co. v. McFarland, 109 S. W. 440. It is the duty of the judge to inform the jury as to the law of the case. The charge of the court contains no such statement of the law. The natural effect of such statement and refusal of the court to sustain objections thereto and instruct the jury not to consider it was to impress the jury that such statement of the law was correct, and being sanctioned by the court was proper to be considered in its determination of the case. If the statement was such as it would have been proper for the court to charge the jury, it might be held to be harmless, though, even then, for obvious reasons, it would not be a correct method of having the jury informed of the law of the case and might result in detriment to the opposing side.

Certainly, if such a charge by the court would have been erroneous, it was error for the court not to sustain appellant’s objection to the statement. We presume that plaintiff’s attorney had in mind the provisions of articles 6552 and 6543, Revised Statutes. In a cause of action based on negligent delay, even in an intrastate shipment, we do not think such a charge would be proper. T. & P. Ry. Co. v. Currie, 33 Tex. Civ. App. 277, 76 S. W. 810. Certainly not where the cause of action is for damages to an interstate shipment where the delay occurred in another state, since the liability imposed is that of the common law, as administered by the federal courts. M., K. & T. Ry. Co. v. Harriman Bros., 227 U. S. 672, 33 Sup. St. 397, 57 L. Ed. 698. We cannot, of course, say just what effect the argument had on the jury. Its tendency was to appellant’s detriment; otherwise, counsel would not have insisted on the statement remaining for the consideration of the jury. There was nothing in the argument of defendant’s counsel to which this was a legitimate reply. Under these circumstances, we think the case should be reversed on this assignment.

Plaintiff alleged that the cattle had been transported to Wichita, Kan., in seven cars and were negligently loaded at said place by defendant into ten cars, and that on account of the loose loading and delay said cattle were bruised and caused to become jaded and gaunt, and lost in weight. There is some evidence that this character of loading of the cattle would have a bad effect on them. The facts are not sufficiently presented in the briefs for us to determine who was responsible for the manndr of the loading of the cattle, or whether this would be a question of fact for the jury. The charge of the court submits only the issue ’as to whether the delay in transportation resulted in a loss of weight and the jaded and gaunt condition of the cattle, and requests a finding as to the amount of the loss in weight and depreciation in price on account of such condition, and we presume that, either the plaintiff abandoned his claim for any damages on account of the misloading, or the court held that the defendant was not responsible for such damages. Under these circumstances, if the court had determined to submit only the issue of damages for delay, it would have made the issues more clear to the jury if the court had specifically charged that in estimating the loss of weight and depreciation in value they should not include therein any such loss and depreciation due to the alleged misloading of the cattle. Such a charge was requested by appellant and refused by the court, and, while we do not reverse the case on this a'ccount, we make the above suggestion in view of another trial.

We have considered the other assignments of error and overrule them.

The ease will be reversed and remanded for the reasons indicated.
      <a=>For otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, O. J.

text:
    TEXAS POWER & LIGHT CO. v. MOERBE et ux.
    (No. 5827.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 21, 1917.
    Rehearing Denied Jan. 2, 1918.)
    Eminent Domain <s=»219 — Condemnation Peoceedings — Right to Open and Close.
    Where, in condemnation proceedings, defendants admitted that the property sought to be condemned by plaintiff was subject to condemnation proceedings, that plaintiff had condemned and gone into possession in the manner provided by law, and that the only issues between plaintiff and defendants were the value of the property condemned and the damage done to defendants’ adjoining property, defendants were entitled to open and close.
    . Appeal from Milam County Court; John Watson, Judge.
    Condemnation proceedings by the Texas Power & Light Company against Chas. Moer-be and wife. Defendants, being dissatisfied with the damages awarded by the commissioners, appealed to the county court, and, from the decision there rendered, plaintiff appeals.
    Affirmed.
    Henderson, Kidd & Henderson, of Cameron, and E. A. Camp, of Rockdale, for appellant. E. A. Wallace, of Cameron, for ap-pellees.
   KEY, O. J.

Appellant brought this suit for the condemnation of land for the purpose of erecting thereon a transmission line in order to carry an electric current from the town of Thorndale to the town of Rockdale, in Milam county, Tex. The county judge appointed commissioners, who qualified, and after hearing 'evidence made an award of damages to appellees in the sum of $70. Being dissatisfied with the amount of damages awarded, appellees appealed to the county court, where the question of damages was tried by a jury, who returned a verdict awarding appellees $750, and appellant has brought the case to this court for revision.

By the first assignment of error appellant complains of the action of the trial court in permitting appellees, who were defendants in the court below, to open and conclude in the introduction of testimony and argument to the jury. In order to obtain that right, appellees made this admission of record in the court below:

“These defendants here now admit that the property belonging to them, sought to be condemned by plaintiffs, is subject to condemnation proceedings, and that the plaintiff is entitled to have the same condemned and have condemned and gone into possession thereof in the manner provided by law; and that the only issues between plaintiff and the defendants is the value of the property taken and the damage done to these defendants’ property adjoining that which has been condemned by plaintiff, and defendants here now, having filed this their written admission as to such issue, demand the opening and closing of the case of the remaining issues, both in the introduction of the testimony and the argument of the case.”

Counsel for appellant make the contention that the burden of proof rested upon appellant in the county court to show the amount of injury to the defendants’ land, that it was not entitled to a judgment condemning the same for an easement until the amount of such damage was shown, and that the admission did not go far enough to entitle the defendants to the right to open and close.

In G. C. Ry. Co. v. Brugger, 24 Tex. Civ. App. 367, 59 S. W. 556, and Calvert Ry. Co. v. Smith, 68 S. W 68, that question was decided against the contention urged by appellant in this case. The Smith Case was decided by this court, and, while the report of it does not disclose the terms of the admission there made to secure the right to open and close, we have examined the record and find that it was substantially the same as was made in this case. We see no sufficient reason for overruling the two cases cited, and therefore the assignment under consideration is held to be untenable.

As to the amount of damages awarded by the jury, we are free to say that it appears to this court to be large, • especially so when compared with the amount awarded by the commissioners appointed by the county judge. However, after a careful consideration of the statement of facts, we cannot say that there is no testimony supporting the verdict. The amount awarded is less than the injury to the land as estimated by some of the witnesses who were familiar with it, and with the value of such property adjacent to the town of Thorndale, as was the land in question. Some other questions are presented in appellant’s brief, which have been duly considered, but are not deemed of such impor-tanee as to reguire discussion in this opinion. They have all received' due consideration, and are decided against appellant.

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

Affirmed.
      igsoEor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    GALLUP v. RUNNELS et al.
    (No. 256.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 26, 1917.)
    1. Adverse Possession <§=>86 — Holding Un-dek Deed — Payment oe Taxes — Concur-BENCE.
    To constitute adverse possession under the five-year statute of limitations payment of taxes must be concurrent with the holding of the land under a deed.
    2. Advebse Possession <®=95 — Payment oe Taxes — Character, oe Proof.
    Payment of taxes should be shown to a reasonable certainty in every case where title is claimed under the five-year statute of. limitations.
    3. Adverse Possession <S=^95 — Payment oe Tax — Sufficiency of Evidence.
    Evidence held insufficient to show concurrent payment of taxes for any consecutive five years by one claiming by adverse possession.
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    Suit by Jessie Runnels and others against David L. Gallup. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    Terry, Cavin & Mills and Jno. G. Gregg, all of Galveston, and Mantooth & Collins, of Lufkin, for appellant. Wright & Jordan, of Lufkin, E. O. Fuller, of Cold Springs, and T. W, Jordan, of Lufkin, for appellees.
   BROOKE, J.

This suit was originally filed by the appellees, Jessie Runnels and Ella Clingman, against appellant for a partition of the Henry Stagner league of land in Angelina county, it being alleged in the petition that the plaintiffs were the owners of an undivided one-tenth interest in one-third of said league and that appellant owned the remaining nine-tenths. Afterwards, Annie Merrell, joined by her husband J. W. Merrell, and A. J. Murray, intervened, and alleged that they were entitled to one-twentieth interest in an undivided one-third of the Stag-ner league. Appellant answered by plea of nonjoinder of necessary parties, general denial, plea of not guilty, and special answer alleging that he was the owner of all of the Stagner league except a tract of 320 acres and a tract of 137 acres, particularly described in hi's answer as to which two traóts he disclaimed. As to all of the remainder of the league, except said two tracts as to which he disclaimed, appellant pleaded' that he held title to it and was the owner of it by virtue of a regular chain of title from the sovereignty of the soil, and also pleaded the three, five, and ten years’ statutes of limitation 'and filed a cross-action praying for the recovery of the land claimed by him against the plaintiffs and interveners. In answer to-the cross-action filed by appellant, plaintiffs pleaded the five and ten years’ statutes of limitation. The case was submitted to the jury on special issues, and, on the answers of the jury, judgment was rendered in favor of the plaintiffs, Jessie Runnels and Ella Clingman, against appellant for 147.6 acres, and in favor of the interveners, A. J. Murray and Annie Merrell, against appellant, for 59.5 acres ot an undivided one-third of the Stagner league. After appellant’s motion for judgment had been overruled, appellant filed his motion for new trial in due time, which was overruled, and the case has been properly brought to this court by appeal.

There are several record chains of title to the Stagner league, as follows: (1) A chain beginning with a deed from Henry Stagner to Isaac W. Burton, dated March 13, 1837-Appellant holds all of the title coming-through this chain. (2) A chain beginning with a deed from Henry Stagner to Arthur Jones, dated March 20, 1847. Appellant holds all of the title coming through this, chain. (3) A chain- of title originating with S. F. Everett. Appellant holds all of the title coming through this chain. (4) A chain of title originating with a deed from Sarah Stagner, Elizabeth Salina Stagner, and Roderick Sibley Stagner, to Franklin D. Boden-hamer, dated November 24, 1859, conveying the entire league. Bodenhamer, the grantee in this deed, on February 12, 1861, conveyed one-third of his interest in the league to Jessie Runnels, and .on August 26, 1881, J. W. Runnels and others, as heirs of Jessie Runnels, the grantee in the last-mentioned deed, conveyed the land in controversy to-John Albert Chrystie. Appellant holds all of the title which vested in Glirystie by this, last-mentioned deed. Appellees and inter-veners are other children and grandchildren of Jessie Runnels, who.was the grantee in the deed from Bodenhamer, and base their right to recover on the vesting of title in their father or grandfather, Jessie Runnels, as against the other superior record titles now held by appellant, by virtue of the five years’ statute of limitation; this being the only statute of limitation submitted to the jury in favor of appellees. Appellant claims, title to all of the Stagner league, except the 320 and 137 acre tracts above-referred to by virtue of his record titles above mentioned.

The first, second, and third assignments of error will be considered together, as follows:'

“(a) Because the court erred in failing and refusing to give in charge to the jury the defendant’s special charge No. 1, which was as follows: ‘Gentlemen of the jury, you are instructed to return a verdict for the defendant, David L. Gallup.’ Because the evidence in this, case failed to show any title in the plaintiffs or the interveners and failed to show that the ancestors of the plaintiffs and interveners did for any period of five consecutive years, while the ■statute of limitation was in effect in this state, use and cultivate the lands described in the plaintiff’s petition claiming the same adversely and paying the taxes for said period, all as is more fully shown by defendant’s bill of exception No. 1.
“(b) The court erred in submitting to the jury ■special issue No. 1, which was as follows: ‘Did the plaintiff Jessie Runnels, and interveners, the ancestors of plaintiffs and interveners, use and ■cultivate the lands described in plaintiff’s petition for five years consecutively before Mr. Runnels and others made a deed to the land to other parties? ’ Because there was no evidence in this case to show that the ancestors of the plaintiffs and interveners did for any period of five consecutive years, while the statute of limitation was in effect in this state, use and cultivate the land described in plaintiff’s petition-, claiming the same adversely and paying taxes upon the same.
“(c) Because the finding of the jury in answer to special issue No. 1, in the affirmative is contrary to the evidence in this case, in this, that there was no evidence to show that the ancestors of the plaintiffs and the interveners ■used and cultivated the land described in plaintiff’s petition and paid the taxes upon the same during any period of five consecutive years while the statutes of limitation were in effect in this -state.”

Among other propositions advanced by the ■appellant under the above assignments will be found this:

“The evidence was insufficient to prove payment of taxes on the land claimed by the predecessors in title of appellees during the period when it is claimed their limitation title matured, and the payment of such taxes being a necessary requisite to the sustaining of title under the five years’ statute of limitation, the court should have granted appellant’s motion for new trial.”

We have carefully gone over the record, which is not a very large one, and we are compelled to the conclusion that the assignments must be sustained.

The testimony with reference to the payment of taxes during any consecutive period of five years can be stated in a few words, and is as follows:

J. F. Runnels, a witness for the appellees, testified: ■

“My name is J. F. Runnels, and I live down here — well, I call it five miles from Huntington. That’s in Angelina county, Tex. I have lived in this county and down in that section for 65 or 66 or 67 years, and I am going on 70 years old now.
“I am acquainted with the Henry .Stagner league of land: I was raised on it. I was personally acquainted with Jesse Runnels, Sr. He was my father; I ought to have been acquainted with him, I guess. My father lived on the Henry Stagner league of land; he owned one-third of it, you- understand, himself. I could, not tell you just exactly what year he moved onto this league of land, but he settled there the first place when he moved to this county. That was the first place he settled. I could not swear to the exact date he moved to this county, but it was along about 1855 or 1856, somewhere along about that time. He was living on it at the time he bought it from Bodenhamer, and he continued to live on it up until his death. I think he died four years after the Civil War, is my best recollection about the time he died. He died in December, and, if he had lived until the next April or May, it would have been four years after the Civil War closed. X think the war closed in April or May. I would guess that my father died along in 1868 or 1869, somewhere along there; but I could not be positive as to that date, you understand. He died right on that survey of land, on the Henry Stagner league that he was occupying as his home.
“My mother was living at the time my father died. She was then living on the Stagner league. She continued to occupy that place after my father’s death. I think she lived some 10 or 11 years after my father’s death. Well, I mean she occupied the ,Stagner place 10 or 11 years after my father’s death, but X would have to count up the crops really to tell about that. I think she stayed on that place 11 years after my father’s death, and he died on the place. As to who occupied the place after my mother left it, we sold out to Townsend and Branch. My mother lived on that place until some of the heirs sold out. I think she stayed there a right smart little while after they sold out. I know that she was living on the place at the time some Of the heirs sold out to Townsend and Branch.
“During the time my father lived on the Henry Stagner land he claimed it, and after he died my mother had possession of it, and me and her claimed it then. I was one of the heirs that sold out. After my father died my mother occupied the place, and my mother paid the taxes on that place after my father died for a long time; she and the children paid the taxes for some time after my father died. I don’t think there were any back taxes on it unpaid.”

In the case of Snowdon v. Rush, 69 Tex. 593, 6 S. W. 767, it was held by our Supreme O'ourt that, in an action for the recovery of real estate, a defendant who has maintained five years’ adverse possession under a duly registered deed, with concurrent payment of taxes, may, under the Revised Statutes, plead the bar of the statute, but he is not entitled to the privilege if the possession and payment of taxes have not been concurrent.

In the case of Donlon v. Lyons, 15 S. W. 578, it was decided by our Supreme Court, Chief Justice Stayton handing down the opinion, as follows:

“The only evidence tending to show payment of taxes by Mary Donlon and the defendant was found in the testimony of defendant’s wife, who states that: ‘After the death of Mike Don-lon, she saw his surviving wife, Mary, give money to Patrick Donlon, to pay the taxes for her on the lot, and he brought back a receipt for the taxes, and delivered it to Mary Donlon; and that her husband, John Lyons, had 'paid the taxes on same since the death of Mary Donlon.’ Plaintiff testified that after his father’s death he paid taxes on the lot, which is situated in this city. This evidence does not show what taxes Mary Donlon paid. She may only have paid the city taxes, and the evidence only tends to show that -she paid taxes one time. -Taxes for the years 1884, 1885, and 1886, were doubtless assessed against the property after the deed to Mary Donlon was made, or, at least for the two former years, became due between the time the deed was recorded and her death, and it was incumbent on defendant to prove that she paid them, and that he paid the taxes for the year 1886, and all succeeding years unless he showed that Mrs. Donlon paid the taxes for 1886. He needed to show payment of taxes for all these years to sustain his plea of limitation, and, having failed in this, judgment should have been entered for plaintiff.”

In the case of Smith v. Estill, 87 Tex. 264, 28 S. W. 801, it was held by Judge Brown that payment of taxes is capable of definite proof by reference to the records of the proper officers, and, while it may be proved otherwise, the evidence should show the fact with reasonable certainty.

We are not unmindful of the fact that there seems to be in the decisions of Texas, on the proposition as to whether or not the payment of taxes should be concurrent, somewhat unsatisfactory readings of the opinions of the Supreme Cburt. However, we hold in this case that the case of Snowdon v. Rush, from which quotation has been made heretofore, holding that the payment of taxes must be concurrent with the holding of the land under a deed, in order to put the five years’ statute of limitation in force, lays down the correct rule.

The testimony has heretofore been set out, and to our minds is not of that definiteness and certainty which should and ought to be conclusive in settling the land titles of this state. As stated in one of the decisions heretofore referred to, payment of taxes can be shown by circumstantial evidence, or can be shown with definiteness by the records, and at least, in our opinion, should be shown to a reasonable certainty in each and every case. We have given this matter a great deal of thought ^.s to' what should be a correct conclusion as to the payment of taxes, having, as before said, in mind the somewhat uncertain condition of some of the decisions of the state. However, we believe the decision in this case announces a correct conclusion, and we hope that either in this cause or in some other cause, at an early date, our Supreme Court will take occasion to set this matter at rest in the minds of the bench and bar of this state.

Being of opinion, as we have heretofore said, that the testimony is insufficient to show a concurrent payment of taxes for any consecutive five years, we are of the opinion that the cause must be reversed and remanded to the lower court for a new trial. It is so ordered.
      ®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    BASS v. WALLACE et al.
    (No. 7450.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 28, 1917.)
    1. Trial <©==>365 (1) — Findin® of Jury — Construction.
    In suit on a note executed by the president of a corporation, in view of the evidence, the jury’s finding that the consideration for the note was “quieting of stock certificates for six months to stifle publicity of affairs of [the president’s] company,” was to be construed as a finding that the note was executed in consideration of plaintiffs’ forbearance to sue the corporation on its contract to repurchase stock from purchasers thereof.
    2. Bills and Notes <®=^92(3) — Consideration for Note — Forbearance to Sue.
    Plaintiffs’ forbearance to sue a corporation on its contract to repurchase stock was a sufficient consideration for a note executed by the opmpany’s president, a large stockholder, who did not desire suit to be brought.
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Suit by E. A. Wallace, trustee, and others, against T. H. Bass. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    C. L. Bass, of San Antonio, and Gill, Jones, Tyler & Potter, of Houston, for appellant. E. A. Wallace, of Cameron, and Woods, King & John, of Houston, for appellees.
   PLEASANTS, C. J.

This suit was brought by appellee E. A. Wallace, as trustee for several persons named in the petition, to recover upon a note executed by appellant Bass and payable to appellee as such trustee, and to foreclose a lien upon certain shares of capital stock of a corporation, called the Consolidated Company, which stock certificates had been pledged or mortgaged by appellant to secure the payment of the note. The second amended original answer of appellant, among other defenses, alleged that the note was executed for and in consideration of the shares of stock in Consolidated Company held by appellee as security for the note, and that then and since same were worthless, and hence there was no real consideration, and that the consideration has failed.

The only pleadings of appellee, other than the original petition, relating to a consideration for the execution of the note was the third supplemental petition, averring substantially that:

“Consolidated Company, while appellant was president and general manager, contracted with parties for whom appellee sues to buy the stock from them at any time within two years after they bought the stock from Consolidated Company, if they became dissatisfied; and that they, becoming dissatisfied, employed counsel to investigate the management of the company and to institute, if necessary, suit to recover the money they had paid for the stock, and that for the purpose of forestalling an investigation into the 'affairs of Consolidated Company and of settling a then bona fide controversy between himself and Consolidated Company on one hand and appellees on the other, appellant contracted and agreed with appellees to repurchase the stock and reimburse them for the money appellees paid therefor, and to execute to appellees the note sued on, and that such proposition was accepted by appellant, and that appellant did execute and deliver to appellees the note sued on.”

The cause was submitted to a jury in the court below upon special issues. In response to questions submitted by the charge, the jury found: First, that the stock of the Consolidated Company had no value at the time the note sued on was executed; second, that the holders of the stock did not know at said time that it was worthless; third, that the consideration for the execution of the note was “quieting of stock certificates for six months to stifle publicity of affairs of Consolidated Company.” Upon this verdict the trial court rendered judgment for appel-lee against appellant for the sum of $5,346.15, the amount of the principal, interest, and attorney’s fees due upon said note, and foreclosing the lien and ordering sale of the stock certificates described in the petition.

The evidence shows that the persons for whose benefit the note sued on was executed by appellant were the holders of shares of stock in the Consolidated Company, the greater portion of the stock of said company being owned by appellant, T. H. Bass, and his brother, C. L. Bass. On the back of each of these certificates of stock was the following printed indorsement:

“Section Y, article II, of the by-laws of the company, adopted on the second Monday in July, 1910, are as much a part of this certificate as if fully set forth hereon, and the irrevocable power of voting evidenced by this certificate is hereby reserved and vested in the proxy committee now composed of T. H. Bass and C. L. Bass in accordance with said section V, article II, of said by-laws.”

There was also printed in red ink across the face of each certificate the following:

“ ‘Annual preferred’ dividends averaging one (1) per cent, per month _ upon the par value of said shares shall be paid their holder, out of surplus and net profits, or if none, then out of capital stock, after deducting the par value of all ‘preferred’- shares standing issued. ‘Ordinary’ dividends may be paid upon all ‘preferred’ and common shares in accordance with the by-laws. If the holder gives this, company 60 days’ written notice prior to two years after this date, it will then pay the holder the price paid it for shares, same being $10 per share, with 6 per cent, interest a year for two years, less all dividends paid on shares.”

No dividends having been paid on this stock, the holders, beneficiaries of the note sued on, within two years from the issuance of the stock, employed appellee E. A. Wallace to enforce their rights under their contract of purchase. In pursuance of this employment Wallace, within two years from the issuance of the stock, notified the company by letter of the demand of said holders for the repayment of the purchase price of the stock in accordance with their contract of purchase. After some correspondence between Wallace and O. L. Bass who was the attorney for the company, it was agreed that appellant T. H. Bass, who was president of the company, would take over the stock and give his note payable in six months, with 8 per cent, interest for the amount paid for the stock by said original purchasers. In pursuance of this agreement the note sued on was executed and delivered by T. H. Bass and the certificates of stock were transferred to him, and he gave a mortgage lien thereon to secure the payment of the note. Under appropriate assignments of error appellant assails the judgment on the ground that it is not supported by the verdict, but is contrary thereto and is without any evidence to support it.

The contention of appellant is that the finding of the jury that the stock had no value at the time the note was executed establishes his plea of want of consideration; no consideration other than the sale of the stock having been found by the jury or shown by any evidence in the case.

We do not think this contention is sound. The finding of the jury that the stock had no value at the time the note was executed is not assailed, and must be accepted as a fact; but this fact does not show that the note was without consideration. The evidence as before stated authorizes the finding that appellant, who was president of the company and a large stockholder therein, either because he believed that the properties held by the company would prove valuable oil lands, and that the stock would become valuable, or for other reasons personal to himself and his management of the affairs of the company, did not desire suit to be brought upon the contract of the company to repurchase this stock, and to prevent the bringing of such suit took over the stock and executed his note for the amount which the company had contracted to pay therefor. In view of all the evidence we think the finding of the jury that the consideration for the note was “quieting of stock certificates for six months to stifle publicity of affairs of Consolidated Company” should be construed as a finding that the note was executed in consideration of the forbearance of the plaintiff to sue the company on its contract to repurchase the sto’ck.

This was a sufficient consideration for the note. Gauss-Langenberg Co. v. Alley, 154 S. W. 1063; Yon Brandenstein v. Ebens-berger, 71 Tex. 267, 9 S. W. 153; Schofield v. Texas Bank & Trust Co., 175 S. W. 506.

We have considered each of appellant’s assignments of error, and none of them in our opinion should be sustained. We are of opinion that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.
      <S=>ITor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRAVES, J.

text:
    NATIONAL FIRE INS. CO. OF HARTFORD, CONN., v. CARTER et al.
    (No. 7445.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 5, 1917.)

    1. Insurance i®=3668(5) — Material Provisions in Policy — Questions oe Pact.
    Under Rev. St. 1911, art. 4947, providing that false statements in contracts of insurance will not constitute a defense unless material, and a provision in a fire policy that it would be void if the insured was not the sole unconditional owner, it was a question of fact whether such provision in the policy was material where the insured was only a mortgagee.
    2. Appeal and Error <⅞=>1010(1) — Review— Findings — 'Weight oe Evidence.
    Where there is sufficient evidence in the record to support a finding of fact by the court, the appellate court cannot disturb it.

      3. Insurance tg^378(l) — Estoppel—Knowl-edge oe Agent.
    Where an insurance agent at the time of issuing or renewing a policy knew and had in mind the fact that the insured was not the owner, hut only a mortgagee, of the insured property, the company is estopped to deny that it waived a provision in the policy that the policy would be void if insured was not the unconditional owner.
    Error from District Court, Trinity County; S. W. Dean, Judge.
    Suit by W. T. Carter and another against the National Fire Insurance Company of Hartford, Conn. Judgment for plaintiffs, and defendant brings error.
    Affirmed.
    Locke & Locke, of Dallas, for plaintiff in error. Nelms & Platt, of Groveton, and Dean, Humphrey & Powell, of Huntsville, for defendants in error.

      Rehearing denied Jan. 10, 1918.

   GRAVES, J.

This suit was brought by defendants in error to' recover from National Fire Insurance Company of Hartford, Conn., plaintiff in error here, $5,500 under a fire insurance policy for that amount issued by it in their favor, as owners, on a two-story, metal roof brick building at Trinity, Tex., destroyed by fire on January 1, 1915.

The insurance company defended on the ground that the interest of Carter & Bro. was not the sole and unconditional ownership of the property, and that they'were not the owners in fee simple of the ground on which the building stood, as required by provisions in the policy to that effect. The latter replied by a general denial, a plea setting up all the facts about the status of the title to the property at the time of the issuance and delivery of the policy, which were at variance with the stipulations in the policy requiring that their ownership of both building and ground be exclusive, and alleging that such facts were wholly immaterial to the risk, were then fully known to the insurance company, and that it had- waived any right to do so, and was estop-ped to urge these conditions in the policy in defense of their suit thereon.

The case was tried before the court without a jury, resulting in a judgment for Carter & Bro. for the amount sued for, with interest and costs, from which the insurance company has appealed through this writ of error. The policy was issued to run one year from March 22, 1914, and the fire, as stated, occurred January 1, 1915. The provisions of the policy relating to ownership were these:

“This entire policy, unless otherwise provided 'by agreement indorsed hereon, or added hereto, shall be void * * * if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple.”

The material facts as to actual ownership were in substance the following:

Prior to December 2, 1911, the legal title to the property in question was in S. A. E. Clegg, who held it in trust for her son, G. C. Clegg, to whom she had given it. Under that date S. A. E. Clegg executed and delivered to W. T. Carter, one of the defendants in error, a general warranty deed thereto reciting the payment of $100 in cash and other good and valuable considerations, the testimony showing, however, that G. C. Clegg then both owed Carter & Bro. an old debt, and also had arranged to borrow from them money with which to erect a building on the property, and that this deed from his mother to W. T. Carter, though in form a general warranty, was in reality a mortgage executed at his request and given to secure the firm of W. T. Carter & Bro. in the payment of the old indebtedness, and in the repayment of such money as they might advance for the construction of the building.

Thereafter, and until January 1, 1914, the apparent record title to the property remained continuously in W. T. Carter, but under that date he executed, and delivered to G. C. Clegg a general warranty deed to it, retaining a vendor’s lien to secure payment of a number of notes representing the entire consideration, which was the aggregate of the old indebtedness at the time of the deed to Carter in 1911 and the moneys advanced by his firm for the construction of the building. Thereafter, that is, from January 1, 1914, until the fire on January 1, 1915, the legal title to the property remained in G. C. Clegg, so that there was no change, even in the form of the title, between the date of the issuance of the policy and the destruction of the building by fire.

There was neither suggestion of misrepresentation in' the procuring of the insurance nor of negligence or improper conduct on the part of either the assured, or of G. C. Clegg, in reference to the fire; and it was shown that Carter & Bro., despite the form of the previously mentioned conveyances, never claimed any title to the property, except as security for debt.

Upon the case thus grounded, the insurance Company’s sole contention, very ably and earnestly presented through several assignments, is that the policy was void according to its terms, because the undisputed evidence showed that the interest of the assured in the property was not the sole and unconditional ownership thereof, nor did they own in fee simple the ground upon which the insured building stood.

Objection is made to our consideration of the first assignment upon the ground that it is too general, which we think well taken, and sustain; but the same questions are properly raised in succeeding assignments, to which no objection is or could be effectually offered, and the ruling is therefore without practical result.

The answer of defendants in error to this position is twofold; First, that article 4947 of the Revised Civil Statutes of Texas of 1911 is applicable to the case, and that under its provisions the trial court was under the duty of determining from the evidence whether or not the status of the title to the property insured was material to the risk, or actually contributed to the contingency or event on which the policy became due and payable; second, that under the undisputed evidence the insurance company waived these provisions in the policy as to the sole, unconditional, and fee-simple ownership of the building and ground. Under the established facts either answer would have been conclusive, but we think both were available.

The statute referred to is as follows:

“Any provision in any contract or policy of insurance issued or contracted for in this state, which provides that the answers or statements made in the application for such contract, or in the contract of insurance, if untrue or false, shall render the contract or policy void or voidable, shall be of no effect, and shall not constitute any defense to any suit brought upon such contract, unless it be shown upon the trial thereof that the matter or thing misrepresented was material to the risk, or actually contributed to the contingency or event on which said policy became due and payable; and whether it was material and so contributed in any case, shall be a question of fact to be determined bv the court or jury trying such case.”

With much force the insurance company insists that this statute has no application to the case here made, but applies only to a “provision in any contract or policy- of insurance * * ⅜ that the answers or statements made in the application or in the contract, if untrue or false, shall render the contract or policy void or voidable”; that, while there were provisions of this latter character in the policy here involved to which the statute would apply, it in no wise related to the first above-quoted stipulations therein making liability contingent upon the kind of ownership there specified. Among others, the following Texas cases axe cited in support of this contention: Scottish Union & National Ins. Co. v. Weeks Drug Co., 55 Tex. Civ. App. 263, 118 S. W. 1086; Gross v. Colonial Assur. Co. (1909) 56 Tex. Civ. App. 627, 121 S. W. 517; Hartford Ins. Co. v. Wright (1910) 58 Tex. Civ. App. 237, 125 S. W. 363; Home Ins. Co. v. Rogers (1910) 60 Tex. Civ. App. 456, 128 S. W. 625; National Fire Ins. Co. v. I. W. Caraway & Co. (1910) 60 Tex. Civ. App. 566, 130 S. W. 458.

But this identical construction of the statute, upon a review of these same authorities, and upon what we deem to be essentially the same state of case, was passed upon by the Court of Civil Appeals at Austin, through Chief Justice Key, in Mecca Fire Insurance Co. v. Stricker, 136 S. W. 599; and we feel that we can do no better than quote with approval, as our own interpretation of the statute, what is there said, as follows:

“Counseql for appellant contend that the statute is not applicable, and in support of that contention cite Insurance Company v. Weeks [55 Tex. Civ. App. 263] 118 S. W. 1087, in which case the Supreme Court refused to grant a writ of error; also Gross v. Colonial Insurance Co. 56 Tex. Civ. Ann 627] 121 S. W. 517; Insurance Co. v. Wright [58 Tex. Civ. App. 237] 125 S. W. 365; Home Insurance Co. v. Rogers [60 Tex. Civ. App. 456] 128 S. W. 628; National Insurance Co. v. Caraway [60 Tex. Civ. App. 566] 130 S. W. 458. In nearly all the cases cited, and especially the one which was passed on by the Supreme Court, the provision of the contract under consideration was the ‘iron-safe’ clause, which is neither a representation nor a statement concerning past or present matters, but is a promissory warranty. In such clauses the assured does not represent or state that he has kept or is keeping a set of books, etc., but he enters into an executory contract by which he obligates himself to do so in the future. Obviously such a stipulation is not within the purview of the statute. None of the other cases cited are entirely analogous to this case, and, if they were, we would not feel compelled to follow them, as they were not rendered by a tribunal of any higher authority than this court. But it is contended on behalf of appellant that it was not the intention of the Legislature that the statute referred to should apply to and qover covenants of warranty, but that it should apply only to such answers or statements made by the assured in bis application or in the. contract as were not by the terms of the contract made warranties. That contention is not believed to be sound. The statute in question is remedial legislation, and shows upon its face that it was enacted for the purpose of remedying what the Legislature must have deemed an evil. It is a matter of common knowledge that for many years prior to the enactment of the statute insurance companies, as a general rule, embodied in the policies which they issued stipulations making many things warranties which, when the policy was sought to be enforced, appeared to be immaterial. Such stipulations were always embodied in the printed forms of contract furnished and used by the insurance companies. It was that supposed evil that the Legislation under consideration was intended to remedy. The rule is universal that in construing a remedial statute courts will consider the evil intended to be remedied, and give to the language of the statute a liberal construction in order to accomplish the legislative purpose.
“Other reasons exist for a liberal construction of this statute, and these are: (1) A legislative declaration contained in section 3 of the final title of the Revised Statutes of 1895, to the effect that legislation in this state should be construed liberally in order to accomplish the legislative purpose; and (2) the law does not favor forfeitures, and the legislation under consideration was enacted for the purpose of preventing forfeitures on account of immaterial matters. Keeping' in view these rules of construction, we are of the opinion that the stipulation in the policy under consideration, in reference to liens, is equivalent to a representation or statement on the part of the assured that no liens then existed on any of the property covered by the policy, and therefore that stipulation comes within the terms of the statute.”

As stated, the two cases were in principle the same. There was no application for the insurance in either. In the Strieker Case' the policy provided it would be void if at the time it was issued there were any liens on the property insured, while in the case at bar the provision was that the policy would be void if the assured was not the sole, unconditional, and fee-simple owner of the property.

We can see no difference in so far as the applicability of the statute is concerned. Just as was done in the Strieker Case, the trial court here found and held, upon what we think was amply supporting evidence, that under the terms of article 4947 the status of the title to the property insured was not material to the risk; and in that holding we think there was no error. To the same general effect are the conclusions in Insurance Co. v. Wade, 59 Tex. Civ. App. 631, 127 S. W. 1186; Insurance Company v. Lester, 176 S. W. 602; Insurance Assn. v. Ray, 138 S. W. 1122.

Plaintiff in error yet maintains, however, that it is material as a matter of law for a fire insurance company to know whether its assured owns solely and unconditionally the insured building and in fee simple the ground on which it rests, or merely holds a mortgage against them, and in illustration discusses a number of authorities, such as Insurance Co. v. Lawrence, 2 Pet. 25, 49, 7 L. Ed. 335, Watson v. Insurance Co., 159 N. C. 638, 75 S. E. 1105, Dry Dock v. Houghton, 92 Md. 68, 48 Atl. 85, 84 Am. St. Rep. 485, Oakes v. Insurance Co., 131 Mass. 164, Bates v. Insurance Co., 2 Cinn. Sup. Ct. 195, 13 Ohio Dec. 851, Insurance Co. v. Camp, 64 Tex. 521, and Insurance Co. v. Gordon, 68 Tex. 144, 149, 3 S. W. 718, treating of the general principle of materiality as to knowledge of ownership; but the two Texas cases cited were decided long before the statute in question was passed.

In general and prima facie we do not doubt that to be the correct rule; but not so, we think, in the face of a special statute authorizing the court or jury in the particular case to inquire into the question of its materiality, and where upon the special facts existing it was found not to be material, as was the situation here. Under our statute, as above quoted, the determination of the issue of materiality of the true status of the title to the risk was one of fact for the trial court, and there being sufficient evidence in the record to support its finding, we are not at liberty to disturb it.

Upon the further question, of the sufficiency of the evidence upon the plea of waiver of the stipulated conditions in the policy relating to ownership, even if it were in position here to raise the issue, which it is not, because its assignments are all too general to even suggest it, we yet think that the record likewise concludes plaintiff in error, and that it was estopped to urge the breach of either condition in defense of the suit.

We think the record discloses, not only that the insurance company had at all relevant times full knowledge of the material and essential facts showing the real and true ownership of the property it insured, but that such knowledge had been, if not originally so obtained, certainly at a later date, acquired by its agent while acting in the course of his agency, and was present in his mind at the time he issued the policy sued upon: indeed, the agent, Mr. Bell, himself, by direct and uncontroverted statement admitted as much in the following excerpts from his testimony:

“At the time I wrote this last policy I knew that Mr. Clegg was in actual control of the building. There never had been any change in it, that I knew of. I knew that he was claiming the building, and I understood that he was the owner of it; I thought he was the owner, but I didn’t know how he was 'the owner. I just understood that he was the real owner, when I wrote this policy in suit. My judgment was at the time that he would have a clear title to the property by paying Carter what he owed him.”
“That supposition was not based on conversation alone; it was based on my knowledge Of Clegg and general business affairs.”
“When I would renew that policy I had in mind the original proposition. I did not know a thing in the world of any change. All the time, until that building burned, I knew that Clegg was in actual possession of the building and claimed to own it.”

Such is our finding of fact, and we do not understand that, under it, plaintiff in error would question the conclusion that estoppel against it would follow. Its claim is that the knowledge of the agent, Mr. Bell, was not acquired by him while in the performance of his duties to it, and was therefore not attributable to it. While our last-stated fact finding is a complete answer to this contention, we further think that, under our authorities, the crux of the question here involved, and particularly as here applied, is not so much the source of the agent’s knowledge, nor even when he obtained it, but whether or not, at the very time he issued the policy in suit, he actually, had the real facts in his mind. Taking his own statement for it, there can be no doubt that he did, and, that being so, his principal was bound by it. Insurance Co. v. Ende, 65 Tex. 123; Insurance Co. v. Cummings, 98 Tex. 115, 81 S. W. 705; Wagner et al. v. Insurance Co., 92 Tex. 549, 50 S. W. 569; Fire Association of Philadelphia v. Compress Co., 50 Tex. Civ. App. 172,109 S. W. 1134; Shawnee Fire Ins. Co. v. Chapman, 63 Tex. Civ. App. 61, 132 B. W. 854.

Prom the conclusions stated, it follows that all assignments should be overruled and the trial court’s judgment in all things affirmed; and it is so ordered.

Affirmed.
      <g=^Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      (gsssFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes -


author: HALL, J.

text:
    BROOKS v. LONG.
    (No. 1219.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 12, 1917.)
    1. Fraud <S=348 — Action — Answer — History oe Transaction — Statements.
    Defendant in answer to a charge of fraud in the transaction out of which notes arose, being entitled to set out the history of the negotiations, may allege plaintiff’s statements with reference to value of lots, constituting a part of such history, though they constitute only the expression of an opinion.
    2. Evidence <§=>121(7) — Competency — Res Gestae — Conversations.
    Agreements between plaintiff and defendant and between defendant and others having given rise to the notes sued on, what was said and done during both conversations is admissible as part of the res gestse.
    3. Damages <§=>89(2)--Exemplary Damages —Breach op Contract.
    Exemplary damages may not be recovered for breach of contract, where there is no element of fraud, willful negligence, or malice; and though fraud is shown, there must be additional injury.
    4. Biles and Notes <§=>534, 543 — Action— Attorney’s Fees — Costs.
    Plaintiff in an action on notes providing for attorney’s fees is not entitled thereto or to costs; the action being prematurely brought, and defendant having made tender when notes were due.
    Appeal from District Court, Donley County; Hugh L. Umphres, Judge.
    Action by J. M. Brooks against H. M. Long. From an adverse judgment, plaintiff appeals.
    Affirmed.
    E. F. Ritchey and A.. T. Cole, both of Clarendon, for appellant. H. B. White, of Clarendon, and S. A. L. Morgan, of Vernon, for appellee.
   HALL, J.

Appellant Brooks sued appel-lee Long upon two promissory notes, the first being for the sum of $150, due December 1, 1915, and containing a provision for the maturity of all notes of the same series at the option of the holder, in the event the maker should fail to pay any note of the series at maturity. There was a further provision for 10 per cent, attorney’s fees. The second note, being of the same tenor and effect, was for the sum of $200, maturing December 1, 1916. It is alleged that both notes were given as part of the purchase money for certain lots in the city of Clarendon. Plaintiff prayed for judgment for the full amount of the notes, interest, and attorney’s fees, and a foreclosure of the vendor’s lien. It is further alleged that as part consideration for the conveyance of said lots appellee Long had promised to pay to the Methodist Church of Clarendon, on account of appellant Brooks, $250, subscribed by Brooks toward paying the debt then against the church building at Clarendon; that before the delivery of the deed appellee Long procured a receipt from the church authorities, reciting that $250 had been paid in cash for and on account of Brooks, when in fact no sum whatever had been paid, all of which was known by appellee Long to be false; and that by reason of such false representations and false receipt the delivery of the deed was procured. Appellant prayed that appellee Long be required to pay to said church the said sum of $250, with 6 per cent, interest after December 1, 1913, that being the date upon which appellant conveyed the lots to Long. Appellant further prayed for $1,000 exemplary damages for deceit and fraud. Appellee Long answered by general denial, and specially alleged that the transaction in question with appellant was during the time appellee was pastor of the M. E. Church South at Clarendon; that when he became! pastor of said church he found that there was an outstanding indebtedness against it of approximately $17,000; that in order to pay off and discharge said indebtedness it became necessary for him to solicit donations from among its members and friends; that among those solicited was the appellant, who informed him that he was unable to make a donation unless he could sell some town property situated in Clarendon and near the college; that all his property in said town was on the market, and he was preparing to remove from Clarendon as soon as he could sell; that appellant informed appellee of the location of said lots, stating that they were reasonably worth $750, and could be quickly sold for that amount; that if appellee would find him a purchaser for said lots at that price he would make a donation to said church of $250; that after conferring with the official board of said church and advising them of-appellant’s said proposition the said official board representing said church agreed that appel-lee would purchase said lots in his own name for the price mentioned, and that when they were sold for $750 the church should receive all the purchase money in excess of $500, the last-named amount to be evidenced by notes in question, being the amount to be paid appellant; that relying upon the representations and statements of appellant to the effect that said property was reasonably worth $750 and could be • easily and quickly sold for that amount, and believing such statements were true, he purchased the property and executed his notes in question to the appellant, in order to aid appellant to make his donation to the church; that immediately after appellant conveyed the lots to him and delivered the deed he turned over to said church, through its official board, all equity he might have in said lots after paying off notes to the amount of $500; that he authorized the board of said church to sell said lots, and after paying said notes, to apply the excess to the payment of appellant’s subscription. He further alleged that when the deed to the lots was delivered by appellant he requested that he be given something to show that he'had made a donation to said church, whereupon A. M. Bevel, president of the official board of said church, prepared the receipt mentioned in plaintiff’s petition, which was signed by J. S. Hayter, secretary and treasurer, which receipt recited the payment by appellant of $250, it being understood by appellant and said church that said sum had not been paid, and .was not to be paid until said lots should be sold at the price appellant had represented they could easily and quickly be sold for, viz. $750; that appellant had never agreed to make a donation to said church other than in the manner above set out; that when the first of the series of notes in question matured the lots had not been sold and said note was extended to December 1, 1915, that being the date of the maturity of the second note; that when the-second note matured a purchaser for the lots had still not been found, notwithstanding diligent effort to that end, whereupon appellee informed appellant of such fact, and that he was unable to pa'y off both of said notes then due; that if appellant insisted upon being paid the full amount then due it would result in said lots being sold at forced sale, in which event they would not bring a sufficient sum to enable the church to realize anything out of it, but that if he would accept payment of one of the notes, being the note previously extended, as well as all interest then due, appel-lee could pay Mm that amount, and if he would extend the payment of the note maturing December 1, 1915, to December 1, 1916, the date of the maturity of the last note, the lots could probably be sold and the church realize something on them; that with that understanding an agreemeni to the end that the said church realize something out of the sale of the lots said note was extended to December 1, 1916; that payment of one of the notes was duly made, including all interest then due in line with said agreement; that this suit being filed on July 3, 1916, the note as .extended being due December 1, 1916, the action was prematurely brought; that when the two notes in question became due the tender was made of the full amount, including interest, which tender was refused by appellant.

Appellant specially excepted to that part of the defendant’s answer which referred ' to appellant’s representations concerning the value of the property in controversy because it was simply the expression of an opinion by appellant, and it does not appear in the answer that the appellee was not as well informed as to the value of the property as appellant. The court overruled the exception, and this ruling is made the basis of the first assignment of error. AVe .sustain the ruling. Appellee did not seek a rescission or cancellation, nor was he suing for fraud or misrepresentation. It is shown that he tendered appellant the full amount due upon both notes on December 1, 1916, and upon appellant’s refusal to accept the tender paid the amount into the registry of the court to abide the determination of the suit. Appellee had been charged with fraud and deceit, and in answer to such charge .set out the history of the negotiations out of •which the notes arose. The alleged statements of- appellant with reference to the value of the lots were a part of the negotiations, and therefore facts proper to be alleged.

The third, fourth, and fifth assignments are based upon the court’s action in permitting appellee to recite while on the witness stand the conversation he had with the board of officers of the church, wherein it was agreed that appellee should purchase the lots for $500, executing his notes, payable to appellant, for that amount, and that the lots should be sold by the church and the excess, if any, applied to the subscription of Brooks. The objection was made that the evidence was irrelevant and immaterial, and was a self-serving declaration made by appellee, not in the hearing of appellant and not shown to have been brought home to him before the deed was executed and delivered. The proposition is urged that self-serving statements, declarations made by a party to a business transaction to a third person, not in the presence or hearing of the other party, and not shown to have been brought to the knowledge of the adverse party before closing the transaction, are inadmissible. This evidence was introduced to sustain the allegation in defendant’s answer, which set up the history of the transaction. The agreements made between appellant and appellee and between appellee and the church officials gave rise to the notes sued upon, and what was said and done during both conversations is part of the res ges-tas and admissible as such. Mitchell v. Crossett, 143 S. W. 965; Memphis Cotton Oil Co. v. Goode, 171 S. W. 284; Naylor v. Parker, 139 S. W. 93; Britt v. Burghart, 16 Tex. Civ. App. 78, 41 S. W. 389.

Appellant complains of the action of the court in submitting the case to the jury upon only one issue, as follows:

“AVas there an agreement by plaintiff with defendant, through his agent, Slover, whereby plaintiff promised that he would extend the $150 note so as to mature at the same time the $200' note by its own terms matured?”

It is true that appellant sued for exemplary damages in the sum of $1,000, based upon the alleged fraud and deceit of appel-lee in promising to pay $250 to the church for appellant. The general rule is that for a breach of contract exemplary damages are not recoverable where there is no element of fraud, willful negligence, or malice. And even when fraud is shown there must be additional injury. Littlefield v. Clayton Bros., 194 S. W. 194. Aside from the testimony of appellant, there is no evidence in the case tending to show that appellee has been guilty of any fraudulent conduct or that he has failed to comply with the terms of his undertaking, as testified to by every witness except appellant. Appellant’s contention is that appellee promised to pay to the church $250, which appellant had agreed to pay upon condition that the lots which were afterwards conveyed to appellee could be sold for $750. It appears that the indebtedness against the church was secured by a collateral note signed by appellant and other church members, and that appellant’s liability on the note amounted to $250. It is shown that through Long’s efforts appellant’s liability upon the collateral note has been discharged, and that appellant has a receipt signed by the proper officials of the church, acknowledging the payment to the church of the $250 subscribed by him. As a matter of fact, the $250 was never paid to the church officials in cash, but under the agreement between appellee and several members of the board the receipt was issued to satisfy appellant, and it was understood that the $250 would be paid as soon as the lots could be sold for $750. The church is not a party to the suit, and the record shows that the church authorities are satisfied with the arrangements and are making no claim whatever against appellant, either in regard to his liability upon the collateral note or the subscription of $250 which the conveyance in question was made .to satisfy. Under this state of facts there is no element of fraud in the transaction, and since appellee did not breach the contract appellant was not entitled to recover any sum as exemplary damages. If the members of the official board of the church, after having receipted appellant for $250 as paid, are content to await the sale of the lots before receiving the amount of Brooks’ subscription, it is not a matter with which either appellant or the court is concerned. There being no right to recover exemplary damages, the court was not required to submit it to the jury. Since the church was satisfied with the arrangement for the payment of the $250, and was not a party to the suit, the court could not properly submit any is sue upon that phase of the case.

The only remaining question was the right of appellant to recover attorney’s fees and costs, and this depended upon whether or not the suit had been prematurely filed. Dr. Slover testified that when he paid off one note and $10 attorney’s fees appellant agreed to extend the time of payment of the remaining note to December 1, 1916. It was further contended that in consideration of the agreement to extend the payment of the; last note appellee would pay 10 per cent, instead of 8 per cent, interest, as provided by the writing. There is no conflict as to the amount paid under this agreement, but appellant denied having made any such agreement. The conflict between appellant and Slover raised the only issue which the court should have submitted to the jury, and this was resolved against appellant.

Some of appellant’s assignments are not properly briefed, and we will not consider the remaining ones in the order presented. What we have said disposes of all the material questions properly presented. The court submitted the only material issue warranted by the evidence.

Finding no reversible error, the judgment is affirmed.
      other oases see same topic and KEY-NUMBER in all Kev-Numbered Digests and Indexes

      <g=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    TEXAS & N. O. R. CO. v. LEVY.
    (No. 7801.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 17, 1917.
    Rehearing Denied Dec. 15, 1917.)
    1. Cabriebs @=^11 — Baggage—Samples oe Traveling Salesmen as Baggage — “Freight’ ‘ ‘Property. ’ ’
    Under the act creating the Railroad Commission, delegating to it power to classify and subdivide all freight and property that may be transported over railroads, and despite the statute providing that each railroad passenger shall have an allowance of baggage not to exceed 100 pounds, it was within the power of the commission to classify and subdivide baggage, and to fix the articles included, determining that baggage shall consist of wearing apparel, etc., and articles carried as samples by traveling salesmen, since if baggage does not come within the term “freight,” it comes within the term “property.”
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Freight; Property.]
    2. Carriers <§=3397½ — Carriage of Baggage —Liability for Loss.
    Where a passenger’s suit case, containing baggage, as defined by the Railroad Commission, was delivered to a railroad for transportation, but the articles of baggage were not found in it when the suit case was returned to the passenger, the road was liable for their value.
    Appeal from Dallas County Court; T. A. Work, Judge.
    Suit by Israel Levy against thé Texas & New Orleans Railroad Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and Smith, Roberston & Roberston and Paul A. McDermott, all of Dallas, for appellant. Claude M. McOallum, of Dallas, for ap-pellee.
   RAINEY, C. J.

This suit was brought by appellee in the justice court against appellant to recoven for the loss of certain jewelry, samples contained in his suit case, and his expenses incidental to delay in delivering the suit case to him. 'Appellee alleged: That he was a traveling salesman of watches and jewelry, and carried his samples in his suit case, which also contained his personal wearing apparel. That he bought a ticket at Athens, Tex., entitling him to ride over appellant’s road from Athens to Frankston, Tex., and at the same time he checked said suit case from Athens to Frankston. When he arrived at Frankston said suit case was not there, and after Waiting a day he proceeded to Jacksonville, Tex., being told by defendant’s agent at Frankston that his baggage would be recheck-eel to him there. That he waited at Jacksonville two or three days, but his baggage not appearing he went on to Texarkana, Tex., requesting defendant’s agent at Jacksonville to forward his baggage to him there, if found, which said agent promised to do. That he waited at Texarkana three days, but the baggage did not arrive, and he then went to his home in Chicago. That his baggage was aft-erwards found by defendant and forwarded to him at Chicago. That when the said baggage was received by him at Chicago it had been broken open and was badly damaged, and was wrapped in a sack or cloth. That out of the samples that were in the suit case when delivered to defendant there were missing when it was delivered to him in Chicago 16 watches, of the reasonable and market value of $97.60. That appellee while waiting for his baggage at Erankston, Jacksonville, and Texarkana was at an expense of $15. Appellant answered orally by general demurrer and general denial.

In the justice court the appellant recovered judgment, and an, appeal was taken to the county court, where appellee further pleaded orally the provisions of Passenger Circular No. 64 of the Railroad Commission of Texas, and appellant answered by general demurrer and general denial. In the county court the case was submitted to a jury on special issues, and upon return of their verdict judgment was rendered for appellee, from which this appeal is prosecuted.

The material allegations of appellee’s petition were established by the evidence, except as to the expense of appellee in waiting at Erankston, Jacksonville, and Texarkana, no evidence having been introduced as to that matter, and judgment was only rendered for $97.60, the value of the watches. Appellant objects to the action of the court in directing a judgment for appellee, and submits the proposition that:

“A carrier, receiving articles for transportation as baggage which are not properly baggage, without knowledge at -the time that they are not proper baggage, is not responsible therefor, and the samples of a traveling salesman are not proper baggage.”

Under the common law and former holdings/ of our decisions it is questionable whether a recovery could be had for the loss of samples when checked as baggage, as in this case, but by the provisions of Passenger Circular No. 64 of the Railroad Commission of Texas, which took effect February 1, 1909, baggage was defined as follows:

“The term ‘baggage’ shall consist of wearing apparel and such personal effects of passengers as may be necessary for their journey, and articles carried as samples by traveling salesmen, and will be checked upon presentation of proper transportation, when inclosed in receptacles which will insure safe transmission, such as trunks, valises, telescopes, satchels, leather hat boxes, suit cases, sample cases,” etc.

If the commission had the power to make such a regulation and define what constitutes baggage, then the proper judgment is rendered in this case. But the contention of. appellant is:

“When the statute provided that each passenger shonld have an allowance of baggage not to exceed 100 pounds in weight, ‘baggage,’ as known to the common law, and as defined by the appellate courts of this state, not including the samples of a traveling salesman, the Railroad Commission was without power and authority to declare the samples of a traveling salesman to be baggage, so as to bind the carrier for the loss of such samples attempted to be carried as baggage without the carrier’s knowledge.”

The act of the Legislature creating the Railroad Commission has been held to be constitutional in Railroad Commission v. Railway Co., 90 Tex. 340, 38 S. W. 750. In that case it is said:

“The provisions which directed the Legislature to enact laws by which control over the public highways and common carriers may be exercised to the fullest extent are in harmony with the subject-matter of the amendment and the policy of the state as declared.”

Some of the powers, among others, delegated to it, which were authorized by article 10, § 2, of the Constitution, are:

“1. To Classify Freights. — The said commission shall have power, and it shall be its duty to fairly and justly classify and subdivide all freight and property of whatsoever character that may be transported over the railroads of this state into such general and special classes or subdivisions as may be found necessary and expedient.
“2. To Fix Reasonable- Rates. — The commission shall have power and it shall be its duty to fix to each class or subdivision of freight for each railroad subject to this chapter for the transportation of each of said classes and subdivisions.
“3. May Fix Rates For All Services. — The commission shall make and establish reasonable rates for the transportation of passengers oyer each or all of the railroads subject hereto, which rates shall not exceed the rates fixed by law. The commission shall have power to prescribe reasonable rates, tolls or charges for all other services performed by any railroad subject hereto.”

What constitutes “baggage” has never been defined by the Legislature, but it has empowered the commission to classify and subdivide all freight and property of whatever character that may be transported over the railroads of this state, etc.; also to fix rates for the transportation of passengers, etc., and to fix charges for all other services performed by railroads, etc.

If it should be contended by appellant that baggage does not come within the term “freight,” it surely fails within the term “property” necessary to be transported, and as the statute allows 100 pounds of baggage to be transported, it was within the purview of the commission to classify' and subdivide baggage and fix what articles shall be constituted for transportation as such. The common law having been adopted by the Legislature of Texas, such adoption does not deprive the Legislature of enacting laws as it deems proper relating to the regulation of the transportation of baggage and of what articles it shall be constituted^ and having created a railroad commission witl! the powers enumerated, it was authorized so to do under the Constitution, and the commission having passed an order as above defined, its action is legal. The contract for carriage of the valise was between 'points in this state. The appellant was operating its line in this state, and the transaction does not come within interstate commerce.

The evidence shows that the suit case contained the watches when delivered to appellant for transportation, and said watches were not found in- it when returned to appel-lee, which makes appellant liable for their value.

The judgment is affirmed.
      <gz=sPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes