author: BROOKE, J.

text:
    W. M. FINCK & CO. v. NACOGDOCHES MERCANTILE CO.
    (No. 412.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 19, 1918.)
    Error from Nacogdoches County Court; J. E. Perritte, Judge.
    Action by W. M. Finck & Co. against the Nacogdoches Mercantile Company. Erom the judgment rendered, plaintiff brings error.
    Affirmed.
    See, also, 163 S. W. 590.
    E. B. Lewis, of Nacogdoches, for plaintiff in error.
    A. A. Seale, of Nacogdoches, for defendant in error.
   BROOKE, J.

After a careful examination of the record in this case, together with the briefs of counsel for the respective parties, we have come to the conclusion that there is no reversible error shown, and the cause should therefore be affirmed.


source: Caselaw Access Project

author: BOYCE, J.

license: Public Domain

text:
    FT. WORTH & D. C. RY. CO. et al. v. KEMP.
    (No. 1414.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 27, 1918.
    Rehearing Denied Jan. 8, 1919.)
    1. Cabeiebs <§=>173 — Connecting Cabbiers— “Through Bill oe Lading.”
    A shipper’s order bill of lading which provided that the rights of shipper and all carriers transporting the grain were to be fixed thereby as to the entire transportation between points necessitating the use of two connecting lines, is a “through bill of lading,” within the terms of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 731, 732, making carriers jointly liable notwithstanding it stipulates otherwise.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Through Bill of Lading.]
    2. Judgment <§=>252(1) — Conformity to Pleadings — Damages—Apportionment.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, subd. 25, providing that, where freight has been damaged in transit over two or more railroads, the damage shall ibe apportioned among them, does not require the apportionment of damage, where defendants have not filed pleadings asking apportionment.
    Appeal from Hardeman County Court; D. E. Magee, Judge.
    Suit by G. G. Kemp against the Ft. Worth & Denver City Railway Company and another. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Thompson, Barwise & Wharton, of Ft. Worth, and J. A. Clarke, of Quanah, for appellants.
    Marshall & Perkins, of Quanah, for appel-lee.
   BOYCE, J.

Appellee, G. G. Kemp, sued appellants, the Ft. Worth & Denver City Railway Company, and J. L. Lancaster and Pearl Wright, receivers of the Texas & Pacific Railway Company, for the value of 2975/g bushels of wheat, alleged to have been lost out of a car of wheat shipped by appellee over the lines of the said railway companies, from Chillicothe, Tex., to Dallas, Tex. Judgment for the value of the wheat was rendered against the defendants jointly. Without making a detailed statement as to how the question is raised, we may say that the principal question of law presented on. this appeal is whether the grain was received for shipment “on a contract for through carriage, recognized, acquiesced in or acted upon by such (defendant) carriers,” so as to bring the liability incurred in such shipment within the terms of Vernon’s Sayles’ Revised Statutes, arts. 731 and 732.

The shipment was made under a shipper’s order bill of lading issued by the Ft. Worth & Denver City Railway Company, upon receipt of the wheat at Chillicothe. By the terms of this instrument it was recited that—

The wheat was “received from G. G. Kemp Grain Company at Chillicothe, Texas, * * * to be transported from - to -, there to be delivered as stated below, unless destined beyond; then the Ft. Worth & Denver City Railway Company agrees as agent for the shipper, to tender the shipment to a connecting common carrier en route to destination, consigned to order of G. G. Kemp Grain Company, destination, Dallas, Texas.”

This bill of lading contained many provisions; the only ones material, in our opinion, to a determination of the question we are considering, being as follows:

“It is mutually agreed as to each carrier of all or any of said property over all or any portion of said route to destination, and as to each party at any time interested in any or all of said property, that every service to be performed by any carrier shall be subject to all conditions, whether printed or written, herein contained, and which are agreed to by the shipper and accepted for himself and his assigns.”
“If shipment is destined to a point off this company’s road, it is agreed that this is no contract for through shipment and this company’s liability as a common carrier shall terminate on tender of delivery to a connecting carrier.”

It will be noted that, by the terms of the stipulation above quoted, the rights of the parties, shipper and all carriers transporting the grain, were attempted to be fixed as to the entire transportation from Chillicothe to Dallas. The shipper was not at liberty to make a new contract with any connecting carrier, and the initial carrier, the Ft. Worth & Denver City Railway Company, agreed in effect that the connecting carrier’s transportation of the shipment would be under the conditions of such contract. This stipulation, as well as the very attributes of a shipper’s order bill of lading, show that it was Intended that this bill of lading was to be the one and only contract that should be made concerning the shipment, and that it would determine the rights of all the parties interested in the transportation. It seems to us, therefore, that it is a “contract for through carriage,” or a “through bill of lading,” within the terms of article 731, Vernon’s Sayles’ Civil Statutes; Standard Oil Co. v. U. S., 179 Fed. 621, 103 C. C. A. 172.

Appellants contend that the declaration that “this is no through contract” and the limitation of liability refutes this construction of such contract. But it was evidently the intention of the Legislature that the character of the contract was to be determined by some other test than by such stipulations, for it is expressly, provided that, if the shipment is made on such contract for through carriage or through hill of lading, then the relations and liabilities as fixed by the law follow, “notwithstanding any stipulations or attempted stipulations to the contrary by such carriers, or either of them.” The feature of the contract we have noted above distinguishes it, we believe, from any of the contracts under consideration in the cases referred to by the appellants. In such contracts, the initial carrier merely undertook to transport the property over its own line and deliver to its connecting carrier for further transportation, but did not agree that the further transportation should be made under the conditions of the contract made with the initial carrier. This contract was acquiesced in and acted upon by the Ft. Worth & Denver City Railway Company because it made the contract itself and carried the wheat under it. The Texas & Pacific Railway Company accepted the shipment, transported it without requiring a new contract, and is now pleading that it transported such shipment under such contract, and, claiming the benefit of its provisions, it has also acquiesced in and acted upon said contract. We conclude, therefore, that there was no error in holding that the liability of the appellants was to be determined by the provisions of articles 731 and 732, Yernon’s Sayles’ Civil Statutes, and the judgment against the defendants jointly was proper. The following authorities, though not directly in point, tend in some measure to sustain these conclusions: St. Louis Southwestern Railway Co. v. Hughston Grain Co., 186 S. W. 429; Elder Dempster v. Ry. Co., 105 Tex. 628, 154 S. W. 979; I. & G. N. Ry. Co. v. Kansas City Produce Co., 200 S. W. 254.

The appellants complain that there was no apportionment of the damages between them, and contend that this was necessary under the terms of subdivision 25, art. 1830. There was no pleading by either of the defendants, ashing for an apportionment of the damages, and judgment'over against the other. 'At the request of the appellants, an issue was submitted to the jury, asking a finding as to the amount of damages sustained on each line of road, and the jury answered these issues: “We have no way of telling.” Article 1830, subd. 25, is merely a venue statute, imposing no new liability and providing that all carriers participating in a shipment might be sued in the one action whether they are jointly liable or not. M., K. & T. Ry. Co. v. Elliott, 99 Tex. 286, 89 S. W. 767. If liability of the carriers is found to be joint and several, as here, plaintiff in the suit is obviously not concerned with any question of apportionment of the damages; and, if the defendants should desire that the damages be apportioned, they should, by proper pleading and evidence, present the issue as between themselves. This they did not do and are in no position to resist the payment of plaintiff’s judgment, because this issue was not determined. Texas Central Railway Co. v. McCall, 166 S. W. 925; G., H. & S. A. Ry. Co. v. Young & Webb, 148 S. W. 1113.

The only other question presented concerns the sufficiency of the evidence to sustain the finding as to the loss of the wheat. The evidence clearly made an issue on this question for the determination of the jury, and we do not think we would be justified in disturbing a finding either way thereon.

The judgment is affirmed.
      <§=For. otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    QUANAH, A. & P. RY. CO. v. LANCASTER.
    (No. 1387.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 6, 1918.
    Rehearing Denied Jan. 8, 1919.)
    1. Continuance <@=>24— Absence of Witness-Cumulative Evidence.
    There was no error in denying continuance, where testimony of absent witness would have been merely cumulative,
    2. Appeal and Error <@=>662(3) — Bill of Exceptions — Qualification.
    Where appellant accepted bill of exceptions as qualified by court, he is bound by the court’s statement therein, which will be presumed to be true.
    3. Evidence <©=>488 — Opinion — Value — Gkass.
    Witnesses, shown to have lived in the county 19 and 27 years, respectively, could testify upon issue of value of grass burned by fire alleged to have been set by defendant railway company’s engine.
    4. Evidence <©=>213(1) — Offer of Compromise-Admissibility.
    Plaintiff’s testimony with reference to offer of defendant railway company to make settlement for damages due to fire alleged to have been caused by its engine held inadmissible.
    5. Appeal and Error <@=>1050(1) — Admission of Incompetent Evidence — Prejudicial Error.
    Admission of testimony with reference to offer of defendant railway company to make settlement for damages due to fire started by its engine was prejudicial error.
    6. Trial <@=>208(3) — Instructions—Affirmative Defense.
    Defendant had the right to have his defense presented to the jury in an affirmatiye manner.
    7. Trial <@=>140(1) — Credibility of Witnesses — Province of Jury.
    The credibility of witnesses is a matter exclusively within the province of the jury.
    Appeal from District Oourt, Motley County; J. H. Milam, Judge.

      Action by J. C. Lancaster against the Quanab, Acme & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Jno. P. Marrs, of Quanab, and G. E. Hamilton, of Matador, for appellant.
    T. T. Bouldin, of Matador, for appellee.
   HALL, J.

Appellee, Lancaster, sued appellant, railway company, for damages in the sum of $3,750, for alleged injury to the grass, turf, and timber on certain land owned by appellee in. Motley county, resulting from fire set out by defendant’s engine on or about the 15th day of July, 1916. Appellee alleged that appellant’s locomotive was defective and improperly built, in a poor state of repair, and so carelessly, negligently, and unskillfully managed that fire escaped therefrom and ignited the grass and other combustible matter which appellant is alleged to have negligently permitted to accumulate upon its right of way. Appellant .alleged the good condition of its engines; that they were skillfully operated; denied that it permitted combustible matter to accumulate upon its right of way, and alleged that during the four or five days just prior to the fire the grass and weeds on its right of way. bad become dry enough to burn, but bad been too green to burn prior to that time; that hot winds during the last four or five days had suddenly dried up the vegetation and grass, rendering it sufficiently dry to burn, but that said winds made it unsafe to try to burn off its right of way at that time; that it bad attempted to burn off the right of way only a day or two before the fire, but found that the high winds made the effort dangerous.

The first assignment is predicated upon the action of the court in overruling appellant’s second motion for a continuance. The motion was made on account of the absence of the witness J. N. Jackson, whose testimony would have been merely cumulative. The court qualified the bill' of exceptions as follows:

“Motley county is a stock-Taising county, and in the opinion of the court there were living in said county a number of stock men who were as fully acquainted with the market value of this grass as the witness Jackson, and these stock men could have been procured by the defendant as witnesses to the value of the grass in this cause.”

Having accepted the bill of exception with this qualification, appellant is bound by the court’s statement, which we must presume is true. Taking the bill in connection with the court’s qualification, there was no abuse of 'judicial discretion in overruling the application.

By its second assignment appellant insists that the court erred in permitting the witness L. O. Steams to testify upon the issue of the value of the grass; 'and by the third assignment the same objection is made to the testimony of J. R. Moore. These witnesses are shown to have lived in Motley county 19 and 27 years, respectively. The general rule is that old settlers who own pastures in the vicinity of where the injury occurred are qualified to testify upon the value of grass. Galveston, etc., R. R. v. Polk, 28 S. W. 353; Gulf, etc., R. R. v. Dunman, 85 Tex. 176, 19 S. W. 1073; Gulf, etc., Ry. v. Wedel, 42 S. W. 1030. The witness Stearns testified that be was acquainted with Lancaster’s land, and knew the condition of the grass on it at the time of the burn. On direct examination be further stated that be was acquainted with the market value of the grass at the time, and that such market value was not less than $1 per acre. He was put through several rather severe cross-examinations ; and, while we find occasional expressions which tend to show that bis knowledge was in a measure hearsay, be testified :

“I don’t know of anybody this year paying as much as $1 per acre lease for grass, but I have offered .that. * ⅜ * I don’t know of anybody that has paid that, or that would take that for it, or getting that for it, even. * * * I made investigations with reference to getting grass at that time, and I didn’t hear of any at all I could lease for less than $1 per acre or could use at all. I tried to get land, and offered $1 per acre for it.”

Moore testified:

“I don’t know of any grass leasing, along about the 15th of July last year in this country, hut I do know of men offering $1 per acre for it, and did not get it. I didn’t hear of anybody leasing land for $1 per acre. I can’t say that I knew of a lot of land leasing for a good deal less than $1 per acre. It is not a fact that the $1 per acre grass was a month or two after this fire.”

Under tbe rule above announced, and after reviewing the testimony of these witnesses at length, we have concluded tbat there was no error in tbe court’s ruling.

While tbe plaintiff was a witness in bis own behalf, be was asked by his attorney:

“Did tbe Q., A. & P. Ry. Co. offer to make a settlement with you for this grass?” And tbe witness answered: “Yes, sir; they did.” Appellee insists tbat this testimony was properly admitted to show an admission of liability on tbe part of appellant. On cross-examination appellee further testified:
“They offered to pay me 15 cents at the start, and later on they offered me 25 cents. They did not offer me any more later than that. You (appellant’s attorney) did not offer me 50 cents per acre for that. I do not remember that you came in Judge Bouldin’s office after that and told me you would give me 50 cents per acre if I would settle without a lawsuit, and pay me right then. I know I made you a proposition, and you said there was not any use in figuring on it. You knew they would not accept it; that was, $1 per acre. I don’t remember that you offered me 50 cents for the grass. When they offered me 25 cents per acre, I guess you would call it a compromise. I suppose that was offered to avoid a lawsuit. I refused to accept it. We could not get together on it.”

On redirect examination he testified:

“I had not said anything to them about a compromise when they came to me and offered that settlement. They did not say anything about a compromise.”

Cross-examined the second time, he testified :

“When they offered me that, I don’t remember what words they used. X think either Mr. Summers or Mr. Gray, or maybe both of them, came down here to see me at my place. I never refused to talk to them. I didn’t tell them I had employed an attorney. I had not at that time. I don’t think I had talked to a lawyer. X have no recollection of talking to any lawyer about it. I suppose they came to see me in an effort to settle the matter without a lawsuit.”

The Courts of Civil Appeals are not in harmony upon this question. Galveston, etc., Ry. Co. v. Green, 35 S. W. 819; St. Louis Southwestern Ry. Co. v. Smith, 33 Tex. Civ. App. 520, 77 S. W. 28; M., K & T. Ry. Co. of Texas v. Sullivan, 157 S. W. 194 (writ of error granted); Texas Co. v. Strange, 154 S. W. 327; Iowa Mfg. Co. v. Taylor, 157 S. W. 171. I. & G. N. Ry. Co. v. Ragsdale, 67 Tex. 24, 2 S. W. 515, is a case where the appellee demanded $200 in payment of his damages, and appellee agreed to pay it as soon as he could hear from the auditor at St. Louis. It was objected that the evidence was inadmissible because it was an offer of compromise. Judge Gaines said:

“The principal is elementary that an offer to compromise a prospective suit, if expressly or impliedly made without prejudice, cannot -be admitted in evidence when objected to. To permit the introduction .of such offers tends to discourage the adjustment of suits, and for that reason is against the policy of the law. If the object of the party in making the offer was to buy his peace (which is impliedly manifested by a mere proposition to pay a sum in settlement), it is deemed to have been made without prejudice, and will be excluded. * * * Numerous authorities may be cited to show that the admission of a fact pending a negotiation for compromise may be admitted; but we have found none that a proposition, which has not been accepted and become a contract, is legal testimony. In Home Insurance Company v. Baltimore Warehouse Company, supra [93 U. S. 527, 23 L. Ed. 868], the court says: ‘The letter was an offer of compromise, and, as such, upon well-recognized legal principles, it was inadmissible. It contains no statement which can be separated from the offer and convey the idea which was in the writer’s mind.’ This shows the distinction between a fact admitted pending an attempt to compromise and a mere proposition of settlement. The testimony introduced in the case before us was purely an offer by Gooch to pay $200 in settlement of appellee’s claim, subject to the approval of the auditor of the company, and, though accepted by appellee, could not, under the rules laid down above, be admitted in evidence over appellant’s objection.”

Under this holding the testimony of appellee, with reference to the offer, was clearly inadmissible, and we think is prejudicial error.

The fifth assignment of error complains of the court’s failure to present to the jury appellant’s defense in an affirmative manner. We think this criticism is well taken. Appellant insists that it used ordinary care to prevent the accumulation of dry grass and combustible material upon its right of way, and used ordinary care in its effort to remove such matter and prevent the fire. Appellee insists that these questions were submitted to the jury in the general charge, and in his brief refers to pages of the record upon which we find special issues requested by appellant and not submitted.

It is insisted under the sixth assignment that the verdict is contrary to and unsupported by the evidence, in that the un-controverted evidence shows the defendant used all reasonable care and diligence in burning off its right of way to prevent the fire. One witness for appellee testified that the only evidence of any burning on the right of way was at the scene of the fire. Without this testimony, however, the question resolves itself to the fundamental one of the credibility of the witnesses, which is a matter exclusively within the province of the jury; and what is here said disposes of the seventh assignment, which raises the question of the sufficiency of the evidence to show that defendant’s engine caused the fire.

The judgment is reversed, and the cause remanded.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MCDONALD et al. v. WHALEY.
    (No. 1388.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 13, 1918.
    Rehearing Denied Jan. 8, 1919.)
    1. Ybndoe and Purchaser <S=>334(1) — Breach by Vendor — Recovery oe Purchase Money.
    Where vendor agreed to sink well and provide irrigation plant by certain date, purchaser was entitled to recover amount paid on contract upon vendor’s failure to sink well by such date or within a reasonable time thereafter.
    2. Vendor and Purchaser <§==>339 — Recovery of Purchase Money — Condition Precedent.
    Where vendor agreed to sink irrigation well upon premises after purchaser had entered into written contract of sale or exchanged deeds, purchaser could not recover purchase money paid on contract, unless vendor refused to sink well after purchaser had offered to enter into written contract or exchanged deeds.
    3. Sabes <®=>3 — Vendor and Purchaser <§=> 3(1) — Exchange of Property — Damages.
    Where, in an exchange of property, the value of the land or personalty is agreed upon, the transaction is a sale and not an exchange, and the rules of law governing in cases of sales will control rather than the law of exchange.
    4. Vendor and Purchaser <S=v341(5) — Agreed Value — Trade.
    Where value of automobile given as part consideration in land deal was agreed upon, the purchaser in recovering consideration paid, upon vendor’s breach, was entitled to the agreed value of the automobile, and not its market or intrinsic value, where automobile itself was not in condition to be returned.

      5. Evidence <⅜=>213(1), 271(2) — Self-Serving Declarations — Offers of Compromise.
    In a purchaser’s action to recover payment made upon vendor’s failure to deliver deed and sink well by agreed date, any testimony tending to show vendor’s willingness to comply with the contract within reasonable time after such date is admissible; but self-serving declarations, counter propositions, or offers in the nature of a compromise, should not be admitted.
    Appeal from District Court, Deaf Smith County; Reese Tatum, Judge.
    Action by E. B. Whaley against D. L. McDonald and another. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    Wm. M. Knight and W. H. Russell, both of Hereford, for appellants.
    S. J. Dodson, of Hereford, and F. P. Works, of Amarillo, for appellee.
   HALL, J.

Appellee, Whaley, instituted this suit to recover of appellants, McDonald and Edwards, the sum of $4,500, alleged to have been paid them by him on a verbal contract for the purchase of 320 acres of land. He alleges in substance that the money was originally paid under' a written contract for the sale of three quarters of a certain section of land in Deaf Smith county, said contract dated May 5, 1913; that thereafter, on the following day, .the written contract was by mutual consent abandoned and canceled, and the above-specified sum of money was by oral agreement to be applied as a cash payment on the south half of a different section of land, known as the Estes land; that defendants agreed on said. last-named date to sink a well on the Estes land and install a pumping plant by November 1, 1913, and that the well should be of 1,500 gallons capacity; that appellants were to execute and deliver a deed conveying him the property by November 1, 1913, which verbal contract was later confirmed in writing by appellants. Appellee further alleged that he was at all times ready, willing, and able to comply with his part of the contract, etc. Since the former appeal of this case, appellants have filed their fourth amended original answer, in which they admit the execution of the written contract of May 5, 1913, and deny that they have ever breached the same, alleging that they have always been and are now ready, willing, and able to comply with its terms. Their version of the verbal contract of May 6th is that plaintiff desired to inspect other lands than that described in the written contract of May 5th, and was shown the south half of section 24; that appellants informed him they would be willing to let him have said half section in lieu of the three quarters of the section named in the written contract, if the plaintiff would make up his mind definitely as to which tract he desired and would return to Hereford from his home in Colorado not later than August, 1913, at which time they would enter into a contract with him for the sale of the half section, or they would exchange deeds for the respective lands, it ■ having been alleged that appellee should convey appellant his farm in Colorado as part of the consideration for the land which he proposed to buy of them. Appellants allege further that it was the agreement between the parties that, after entering into a proper contract upon the return of appellee from Colorado or upon ah exchange of deeds, they would sink an irrigation well on the said half section and equip an irrigation plant as alleged by plaintiffs. They specially denied that they ever verbally agreed to sink a well on the land until after plaintiff had definitely determined which tract he wanted, by entering into a written contract of sale or by exchanging deeds. They further allege that appellee failed to return to Hereford in the month of August and did not arrive ini Hereford until about October 20th; that he did not call on appellants, but studiously avoided them until after November 1st. They allege their willingness to comply with the terms of the verbal contract. After the introduction of the. evidence, the court directed a verdict for the appellee.

It will be seen from the brief outline of the pleadings that there is a material difference in the verbal contract as alleged by appellants and appellee, in that appellee contends that appellants were to sink the well and install the irrigation plant prior to November 1, 1913, whereas appellants alleged that the contract is that the sale should be partially executed by the exchange of deeds after which they were to sink the well and install the plant. The pleadings of each party charged the other with a breach of the contract. On the former appeal this court said (191 S. W. 411):

“The evidence in this case is sufficient to submit the issue as to whether or not the defendants refused to convey the land known as the Estes land, and whether they breached their oral contract in refusing to put down a well on the land, as agreed upon, whether they refused to convey the land in accordance with the agreement.”

Appellants did not set out their version of the contract in their pleadings on the former appeal. Under their amended pleadings, as they appear in the record on this appeal, the first issue to be determined is whether under the contract it became the duty of appellants to sink the well prior to November 1, 1913, or after the parties had exchanged deeds or entered into a binding contract. The evidence upon thisi issue is sharply conflicting, and, since the question of the breach of the contract must necessarily be determined after the jury has decided which version is correct, it follows! that the court erred in directing a verdict. If under the findings of the jury appellee’s contention is sustained, then it becomes the duty of appellants to sink the well and provide the irrigation plant by November 1, 1913, or within a reasonable time thereafter. If it should appear that this term of the contract has never been complied with by appellants, then under our former holding appellee would be entitled to recover. If the jury should find with appellant’s contention, appellee cannot recover without first making a tender of performance and a refusal of appellants to perform. Fink v. Hough, 153 S. W. 677; Estes v. Browning, 11 Tex. 237, 60 Am. Dec. 238; Cammack v. Prather, 74 S. W. 354.

Appellants contend that the court erred in rendering judgment for the sum of' $1,500, that being the agreed value of the automobile. Where, in an exchange of property, the valué of the land or personalty is agreed upon, the transaction is a sale and not an exchange, and the rules of law governing in cases of sales will control rather than the law of exchange. Ullmann v. Land, 37 Tex. Civ. App. 422, 84 S. W. 294. $1,500 being the agreed value of the automobile in the trade, appellee was entitled to .recover that amount, if anything, rather than its market or intrinsic value. In fixing the trade value as the measure o-f appellee’s recovery, in the event, under the jury’s findings, he is entitled to recover at all, we are presuming that the automobile itself is not ini condition to be returned to appellee.

Under different assignments, appellants insist that the court erred in excluding the testimony of McDonald, to the effect that appel-lee never at any time offered to take the half section of land after the 1st of November, bnt, on the contrary, repeatedly refused to accept it after various offers to convey it to him and to guarantee the sinking of a well on it in accordance with that Whaley claimed had been agreed to by parol on May 6th, and also erred in excluding a letter dated the 31st day of December, 1913, from appellant McDonald to appellee, offering to comply with the verbal contract of May 6th, and submitting some alternative propositions.

The same question is raised under the seventh assignment. Any testimony tending to show appellants’ willingness to comply with the contract, as alleged by them, made within a reasonable time after November 1st, is admissible; but self-serving declarations, counter propositions, or offers in the nature of a compromise, should not be admitted.

There are a number of other assignments which will not be considered in detail, since what we have said disposed of the issues presented.

The judgment is reversed, and the cause remanded.
      ®=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    STATE ex rel. MILLER et al. v. TROELL et al.
    (No. 6101.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 11, 1918.
    Rehearing Denied Jan. 15, 1919.)
    1. Municipal Corporations <®=^12(8) — Incorporation — Elections—Orders.
    Order, purporting to be only notice of election to determine whether town should be incorporated, signed by county judge, held a valid and sufficient order for the election.
    2. Municipal Corporations <⅞=»12(8) — Incorporation — Elections—Orders.
    Requirement of Rev. St. 1911, art. 1037, that election to determine whether town shall be incorporated shall be held after ten days’ notice, is directory.
    3. Municipal Corporations <®=sl2(8) — Incorporation — Election—Notice.
    That 102 of 115 town electors voted at election to determine whether town should be incorporated is proof of actual notice, and, in the absence of fraud, the election was not invalid for failure to advertise it for ten days, as required by Rev.' St. 1911, art. 1037.
    4. Municipal Cokpoeations @=>12(8) — Incorporation — Election—Obbeks.
    Where county judge, in response to petition, ordered election on specified date to determine ■whether town should be incorporated, and that election was temporarily restrained, he could order another election on dissolution of the injunction, without new petition.
    5. Municipal Corporations @=>¿2(8) — Incorporation — Election.
    Pact that promoters of town election,to determine whether town should be incorporated procured order for election without ten days’ statutory notice in order to beat neighboring town election did not invalidate* the election when the judge acted fairly and without corrupt motive.
    Appeal from District Court, Atascosa County; Covey C. Thomas, Judge.
    Suit in nature of quo warranto by the State, on relation of J. D. Miller and others, against Charles T. Troell and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    T. P. Morris, of Ploresville, W. W. Walling, of San Antonio, and J. D. Dodson, of Earedo, for appellants.
    Dibrell & Moslieim, of Seguin, and P. H. Burmeister, of Jourdanton, for appellees.
   SWEARINGEN, J.

This is a suit in the nature of a quo warranto by the state of Texas, upon the relation of residents and property owners within the territory embraced in the town of Pleasanton, to test the legal existence of Pleasanton as a municipal corporation. The cause was tried by the court without a jury. The judgment was in favor of the defendants in the trial court, holding that Pleasanton was legally incorporated.

The issues made by the pleadings and testimony may be fairly stated as follows: Based upon the petition of proper signers in compliance with statutory requirements, the county judge of Atascosa county, upon proof, found that there was the required population and ordered an election to determine the question of incorporation. An order was made May 30, 1916, and designated June 10, 1916, as the date of the election. The officer was selected for holding the election- and notice published. The election was not held on June 10, 1916, because temporarily enjoined by the district court. The temporary injunction was dissolved November 24, 1916, after which, on the same day, the county judge signed the following document:

“Notice of an Election to be Held in the Town of Pleasanton, to Determine Whether or
Not Said Town Shall be Incorporated.
“Whereas, on May 30, 1916, the Honorable Walter E. Jones, county judge of Atascosa county, Texas, pursuant to a petition by the requisite number of qualified voters, residing in the town of Pleasanton, asking for an election to determine whether or not the town of Pleas-anton shall be incorporated as a town or village, issued his proclamation for said election to be held in the town of Pleasanton in the southwest room of the old courthouse building on the first floor, on the 10th day of June, 1916;
“And whereas, notices of said election were given on the 30th day of May, 1916, by posting printed notices thereof in three public places in the town of Pleasanton, and within the territory sought to be incorporated, that an election would be held at the time and place specified in said proclamation;
“And whereas, on 9th day of June, 1916, said election was enjoined at the instance and upon the petition of W. L. Payne, W. L. Baird, E. I>. Baird, Hersehel Cast and E. R. Breaker, filed in the district court of Atascosa county on June 9, 1916, by the temporary order and fiat of the Honorable P. G. Chambliss, judge of the Thirty-Sixth judicial district of Texas;
“And whereas, on the 24th day of November, 1916, in the district court of Atascosa county, the Honorable E. G. Chambliss dissolved said temporary injunction:
“Now, therefore, notice is hereby given that an election will be held on the 25th day of November, 1916, in the southwest room of the old courthouse building on first floor in the town- of Pleasanton, in Atascosa county, Texas, to -determine whether or not the town of Pleas-anton shall be incorporated.
“Reference is here made to the petition filed in the office of the county judge of Atascosa county, Texas, on the 30th day of May, 1916, and the plat accompanying same, asking for an election in the town of Pleasanton on the 10th day of June, 1916, to determine whether said town shall be incorporated.
“Every male person who has attained the age of 21 years and who has resided within the limits of the proposed town of Pleasanton for six months, next preceding this election, and who is a qualified elector under the laws of the state of Texas, shall be entitled to vote at said election.
“Said election was ordered by the county judge of Atascosa county, by order made on the 30th day of May, 1916, and this notice is given in pursuance of said order.
“Dated this November 24, 1916.
“H..E. Smith,
“Presiding Officer.
“Walter E. Jones,
“County Judge, Atascosa County, Texas.”

Notice of the above was given by posting same on November 24th. The election was held the following day, November 25th. In addition to the foregoing, the undisputed testimony shows that the qualified voters in the territory had actual notice of the election in time to vote, and that 102 of the 115 qualified voters participated in the election by casting their ballots in favor of the incorporation. The promoters of the incorporation of Pleasanton desired to hold the election prior to an election to incorporate North Pleasanton, as a portion of the territory was embraced In the petitions for both, incorporations.

The proposition presented in the six assignments is stated by appellants to be:

“The contention of appellants is that ‘Pleas-anton’ is forbidden corporate existence by the Constitution except under the general laws, and that it cannot be held to be incorporated under the general laws authorizing such corporations 'because the election was not held on the day named in the order and was held on less than one day’s notice, and there was therefore no compliance with the general law. Moreover, if it should be held under some facts that compliance with the general law was not essential either as to the time or the notice, but\hat both could be disregarded in the same’election, still, where the disregard for and- failure to comply with the law was intentionally and purposely done for the admitted and express purpose of holding the election before another election could be held which had been ordered as provided by the general law and which was abiding the 10 days’ notice provided by general law, as is here admitted, the courts will not relax the rigors of the law, excuse its disregard, and thereby give effect to an advantage sought by illegal methods over the person who respected the law.”

It will be seen from the foregoing that it is necessary to determine whether the document above set out dated November 24,1916, is evidence of an order of an election made by the county judge. Appellants urge that the document is only a notice of an election, and not an order. Appellees insist that the document is the evidence of the order of the county judge, and further urge that as the voters had actual notice of the order in time to have voted, and as 90 per cent, of the qualified voters voted for the incorporation, the publication of notice for ten days has become immaterial.

Upon the filing of a requisite petition, the qualified voters of the town of Pleasanton, containing, as it did, a population of between 500 and 10,000, were entitled to have the county judge order an election. There is no provision requiring this order to be made in writing nor entered of record in any particular book or place, nor requiring the order to be made within a certain time after the petition was filed with the county judge. The only requirement is that the judge hear proof and then order, the election, stating in the order itself the time and place when and where the ballots are to be east.

The instrument under consideration was executed by the county judge and purports to be given in response to the petition filed May 30, 1916, and after proof of population made in action upon that petition. In this «aid instrument, dated November 24th, the county judge designated the time and place for holding the election. We think the instrument, though it recites that it is a notice, is in fact an order for the election to be held on the date mentioned in it, namely, November 25, 1916. The document is a sufficient order from the proper authority in compliance with an initial statutory petition and after conclusive proof of population.

Article 1037, Rev. St., provides that the election thus ordered shall be held after ten days’ notice. This provision for notice is directory. Norman v. Thompson, 30 Tex. Civ. App. 537, 72 S. W. 64. The fact that 90 per cent, of the voters actually voted for the incorporation at the time and place designated in the order of November 24, 1916, is proof of actual notice, and, in the absence of any fraud, the election will not be invalidated because of the failure to advertise the election for the statutory period of ten days. Norman v. Thompson, 30 Tex. Civ. App. 537, 72 S. W. 64; Wallis v. Williams, 50 Tex. Civ. App. 623, 110 S. W. 787; Clark v. Leathers (Ky.) 5 S. W. 578; Ex parte Segars, 32 Tex. Cr. R. 553, 25 S. W. 26; Ex parte Mayes, 39 Tex. Cr. R. 36, 44 S. W. 831; McCrory on Elections, §§ 166-176; 9 R. C. L. p. 991, § 14; 10 Am. & Eng. Ency. 10; Cooley on Cons. Lim.

We cannot concur in the proposition, of appellants, that because the county judge made an order for the election to be held on June 10, 1916, which was restrained by injunction, the judge could never again issue the order after dissolution of the injunction, unless there was a new initial petition and a new hearing of proof of population.

The injunction restrained the election on the 10th of June, as ordered, but did not deprive the county judge of the authority to perform his duty of ordering the election to be held at time and place specified in the order, when petitioned to do so. The contention that the ten days’ notice of the election on November 25, 1916, was not given because the promoters of the town of Pleas-anton desired to hold the election before the incorporation of North Pleasanton was voted upon, can have no bearing upon the question before us, for the following reason: The county judge ordered the election for November 25, 1916, and not the promoters. There is no evidence that the county judge deliberately attempted to have the election of Pleasanton precede the election for the incorporation of North Pleasanton. On the contrary, the record discloses the complete impartiality of the county judge in ordering the elections.

We therefore hold that all the procedure for incorporating the town of Pleasanton was regular in every respect except the provision that ten days’ notice of the election to be held on November 25, 1916, be given. This omission, or irregularity, was rendered harmless by the fact that 102 of the 115 qualified voters in the territory to be incorporated cast their ballots and were in favor of incorporating.

The six assignments are overruled.

The judgment is affirmed.
      <g^>For other cases see same topic and KEY-NUMBER in all Key-Numtiered Digests and Indexes

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author: FLT, C. J.

text:
    REDUS v. BLUCHER.
    (No. 6100.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 27, 1918.
    Rehearing
    Denied Jan. 15, 1919.)
    1. E&tortion <⅝=11 — Penalty—Pleading.
    A suit, under Rev. St. 1911, art. 3915, to recover four times the amount of excessive fees charged by a county surveyor, is one for a penalty, and the petition is subject to strict construction.
    2. Penalties <®=32 — Pleading.
    A petition, in an action in which penalties are sought to be recovered, should state all the statutory requirements with the same degree of certainty as is required in an indictment' in a criminal case.
    3. Extortion <©=>11 — Penalty—Pleading-Excessive Pees.
    A petition against a county surveyor, under Rev. St. 1911, art. 3915, to recover statutory penalty of four times amount of excessive fees charged, must allege that application under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5904c, for survey, was made to surveyor in proper county, and that land surveyed was situated in such county.
    4. Boundaries <S=>54(7) — Surveyors—Fees— “Land.”
    In an action, under Rev. St. 1911, art. 3915, to recover statutory penalty from county surveyor on account of excessive fees charged for a survey made under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5904c, the fees prescribed in Rev. St. 1911, art. 3876, for surveying “land” will not be held to apply, where the land was covered by waters of Nueces Bay.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Land.]
    Appeal from Nueces County Court; David M. Picton, Jr., Judge.
    Suit by R. R. Redus against C. F. H. v. Blueher. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    J. C. Houts, of Sinton, and Jefferson D. Todd, of Corpus Christi, for appellant.
    G. R. Scott and Boone & Pope, all of Corpus Christi, and Dougherty & Dougherty and H. S. Bonham, all of Beeville, for appel-lee.
   FLT, C. J.

This is a suit instituted by appellant to recover a penalty for an overcharge in fees made by appellee as suveyor of Nue-ces county. A general demurrer to the petition was sustained by the court, and, appellant failing to amend, the cause was dismissed.

It is claimed that the petition is open to attack by a general demurrer because it fails to allege that the land surveyed for appellant was situated in Nueces county, and, the suit being for a penalty the rule, that when a pleading is assailed by general demurrer every reasonable intendment must be indulged in favor of it, has no application, but the petition must be considered with the same strictness as would an indictment for a crime.

It was alleged that appellee was on or about April 22,1914, the legally elected, qualified, and acting county surveyor of Nueces county, Tex.; that appellant filed with him, on the date named, his application to “prospect for and develop and put out the petroleum oil and natural gas” within a certain area in the manner and under the terms and conditions provided for in chapter 173 of an act approved on April 9, 1913 (Vernon’s Say-les’ Ann. Civ. St. 1914, arts. 5904-5920j), and at the same time paid appellee the filing fees required by law and requested a survey of said area which contained 533 acres. It was further alleged that appellee, as county surveyor of Nueces county, made the survey, and then made a resurvey of the area, which is fully described; it being stated that it was situated in Nueces Bay. There is no direct allegation that the area was situated in Nueces county, and that fact can only be implied from the circumstance that the survey was made by an officer of Nueces county, and that it was situated in Nueces Bay and on the southern shore at the mouth of the Nueces river. If the ordinary rule of testing a pleading, when a general demurrer is urged, be applied to the petition, it would be held sufficient; but it seems that where penalties are sought to be recovered a different rule obtains.

There can be no doubt that this suit is for a penalty and nothing else, for appellant does not sue for the excessive fees paid by him, but for the statutory penalty of four times the amount of the excessive fees as permitted and authorized by Revised Statutes, art. 3915. That statute not only makes an officer charging excessive fees liable for a penalty to the amount of four times the amount of the excess, but also subjects him to a criminal prosecution. It follows that the decisions in cases of penalties would be applicable to this case if it is necessary in such cases to allege the county in which the penalty was incurred.

It is the settled law in Texas that the petition in a case in which penalties are sought to be recovered should state all the statutory requirements with the same degree of certainty as is required in an indictment in a criminal case. State v. Williams, 8 Tex. 255, and 14 Tex. 98; Scogins v. Perry, 46 Tex. 111; Hedgepeth v. Hamilton, 104 Tex. 496, 140 S. W. 1084; Dorrance v. Railway, 53 Tex. Civ. App. 460, 126 S. W. 694; Railway v. Cole, 149 S. W. 753; Railway v. Harrell Gin Co., 187 S. W. 376.

There can be no doubt that an allegation of venue is essentially necessary when it is sought by a bill of indictment to charge a person with a crime, and, if such allegation be necessary in a suit for a penalty, then the petition in question was subject to general demurrer because there is no allegation as to where the land, which was surveyed, was situated, nor where the excessive fees were demanded and received.

The statute authorizing prospecting for and developing petroleum oil or natural gas in any of the state’s islands, salt-water lakes, bays, marshes, reefs, and fresh-water lakes owned by the state provides that a prospector shall file a written application for each tract desired, “with the county surveyor of the county in which the area or a part of same may be situated or the county to which said county may be attached for surveying purposes.” Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5904c. The petition fails to show that such application was made to the surveyor in the proper county or in what county the area was situated that was surveyed. Unless the area was in Nueces county, there was no proper application filed, and the survey- or of that county had no right or authority to make a survey, and could not charge any fees at all. Appellant does not claim that these necessary allegations were made, but seeks to have them read into the petition as in any ordinary civil action.

It is the claim of appellant that the fees prescribed in article 3876, Rev. Stats., should form the basis of this action, wherein it is provided;

“Surveying any tract of land, including all ■expenses in making the survey, and returning the plat and field notes of the survey, for each English lineal mile actually run, $3.00.”

The penalty sought must arise from a greater charge than is permitted for surveying land, and the allegations show that a survey was made of an area covered with the waters of Nueces Bay. The act fixing surveyors’ fees, as appears in article 3876, was passed in 1881, and the law for prospecting for oil and gas was passed in 1913, and it is not evident that the fees to be charged for surveying land would apply to the survey of areas covered by water which may be of great depth and would probably require more time, labor, and skill than in surveying land. That the Legislature intended to draw a distinction between land and areas covered by water is clear from the language of the statute itself which speaks of islands, salt-water lakes, bays, marsh reefs, and fresh-water lakes. The statute fixes fees for surveying land, and not water, and, being a penal statute, it must be construed strictly. The distinction between land and areas covered by water has been clearly recognized. It was said by the Supreme Court, in the case of De Merit v. Robison, 102 Tex. 358, 116 S. W. 796, in construing what was meant by “public lands,” that it contemplated land and not water. That was held in regard to “lands under the shallow waters of San Jacinto Bay, which is an arm'of Galveston Bay” and at times was not covered with water. The same was held in the case of Rosborough v. Picton, 12 Tex. Civ. App. 113, 34 S. W. 791, 43 S. W. 1033, and that case was quoted and approved in the De Merit Case.

In no event were the allegations sufficient to show that appellee had been guilty under the law of charging illegal fees for surveying land in Nueces county, and the judgment should be and is affirmed.
      É=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    BILLS v. BILLS et al.
    (No. 2024.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 20, 1918.
    Rehearing Denied Jan. 9, 1919.)
    1. Insubance @=>783 — Fbatebnal Insubance — Beneficiaries—Rights of.
    A beneficiary named in fraternal benefit certificate, providing for change of beneficiary, has no vested interest in the contract of insurance which will prevent the insured from changing any of the terms of the contract, but has a mere expectancy, which may be defeated by a change of beneficiary.
    2. Insubance @=>784(6) — Fraternal Insubance — Change of Beneficiary.
    A displaced beneficiary can question insured’s method of making change of beneficiary only on the ground that it was legally insufficient to accomplish that purpose, where the insurer acquiesced therein, though the method did not follow the procedure provided in the certificate; those requirements being for the benefit of the insurer.
    3. Insurance @==>784(6) — Fraternal Insurance — Change of Beneficiary.
    Where a member of a fraternal insurance order who designated two beneficiaries secured the erasure of the name of one of them from the certificate, held that though such attempt to change beneficiaries was irregular and might give the insurer the right to deny liability, yet, where the insurer acquiesced in the change, the displaced beneficiary was entitled to no rights.
    4. Insurance @=>784(7) — Fraternal Insurance-Assent to Change of Beneficiary.
    Where a member of a fraternal insurance order who had designated two beneficiaries attempted to displace one by causing his name to be erased from the certificate, held, that the insurer, by admitting its liability for the sum specified in the certificate, and paying the money into the registry of the court, ratified the certificate in its altered form; no new consideration being necessary.
    5. Insurance <S=>784(7) — Fraternal Insurance — Ohange of Beneficiary.
    Where a'fraternal insurer ratified a change of beneficiary by filing an answer admitting its liability, held that it could not thereafter arbitrarily repudiate its ratification so as to entitle the displaced beneficiary to share in the fund.
    Appeal from Lamar County Court; Tom L. Beauchamp, Judge.
    Action by E. B. Bills against the Mosaic Templars of America, who filed an answer interpleading J. H. Bills. Erom a- judgment for plaintiff the defendant interpleaded appeals.
    Affirmed.
    W. L. Hutchison, of Paris, for appellant.
    Chas. Beach, of Paris, for appellees.
   HODGES, J.

This appeal is a continuation of a contest between E. B. Bills, the appellee, and J. H. Bills, the appellant, which involves the disposition of a benefit fund claimed from the Mosaic Templars of America upon the death of their deceased mother. The Mosaic Templars of America is a fraternal benefit society incorporated under the laws of the state of Arkansas. It has a constitution and by-laws for the government of its members. It also has a lodge system and a ritualistic form of work, issues policies of insurance on the lives of its members, and raises the benefit funds with which to pay such policies by levying assessments upon its members. In May, 1911, a policy of insurance was issued by this company to Martha Bills, the mother of E. B. and J. H. Bills, who was then a member in good standing of a local, or branch, lodge of the Mosaic Templars of America situated in’ Paris, Lamar county, Tex. At the time of the issuance of this policy Martha Bills designated upon the blank form provided for that purpose her two sons, E. B. Bills and J. H. Bills, as beneficiaries. Some time during the year 1915, and about a year before her death, Martha Bills, desiring to make a change in the policy, marked out the name of J. H. Bills, and caused it to be erased, leaving the name of E. B. Bills as her sole beneficiary. The secretary of the local lodge made this erasure at the request of Martha Bills, but without the knowledge of any of the officers of the grand lodge. In 1917 Martha Bills died, and E. B. Bills filed this suit against the Mosaic Templars of America in an effort to collect the sum of $300, the entire amount of the policy. J. H. Bills was made a party defendant, upon the ground' that he was claiming an interest in-that fund. The Mosaic Templars of America filed an answer, in which it admitted the execution and delivery of the policy to Martha Bills and its liability thereon to E. B. Bills or to E. B. Bills and J. H. Bills jointly, paid the sum of $300 into the registry of the court, and asked that the court determine who was the party to whom the fund belonged, and that it be discharged, with its costs. J. H. Bills filed an answer, in which he claimed that the effort of his deceased mother to eliminate him as a beneficiary under the policy was ineffectual for that purpose, because not made in conformity with the rules and regulations of the association.

There appears to be no dispute about the material facts of this case. The constitution and by-laws were referred to and made a part of the insurance contract. At the time the policy was issued the following by-law was in effect:

“How Beneficiaries may he Oltonged. — The National Grand Scribe is authorized to change the beneficiary named in ⅝ policy when requested in writing to do so by the" insured, and no beneficiary shall have or obtain any vested interest in said policy until the same has become due and payable upon the death of said member, provided that at any time the order may by its by-laws limit the scope of beneficiaries within the classes named in law.”

At the time the change was made the above had been amended, and the following was in effect:

“Sec. 1. The National Grand Scribe is authorized to change the beneficiary named in a policy whenever requested to do so by the assured under affidavit sworn to before a notary public, attested by the presiding officer and secretary; and no beneficiary shall have or obtain any vested interest in said policy until the same has become due and payable upon the death of said member; provided, that at any time the order may by its laws limit the scope of beneficiaries within the classes named in the laws of the states in which this order is operating.”

The policy contained, among others, the following provision:

“Mosaic Templars of America, Martha Bills, of Evergreen No. 2186, located at Paris, state of Texas, was a financial member in good standing at issuing of this policy; if they should so continue until death, their widow, widower, mother, father, sister, brother, or relative by blood to the fourth degree, ascending or descending, to whom this policy may be willed or assigned shall be paid any sum not exceeding three hundred dollars,” etc.

In addition to special findings made by the jury in answer to questions propounded, the court filed his conclusions, in which he says:

“Nowhere in the policy does it adopt the will or assignment as a part of the policy,'or attempt to designate which relative named shall he the beneficiary. This matter is left wholly with the insured to will or assign.”

After quoting section 1 of the by-laws, he continues:

“In the first place, no beneficiary is named in this policy. True, there is a blank for will or assignment attached to the policy, presumably for the convenience of the insured.’*

That beneficiaries in policies of this character have no vested, interest in the contract of insurance which will prevent the insured from changing any of the terms of the contract is too well settled to require the citation of authorities. Theirs is but an expectancy which depends upon the policy remaining unchanged as to.them till the death of the insured. In this instance Martha Bills had the right at any time, and for any purpose, to change the names of her beneficiaries. Having that right, her method of making d change, if acquiesced in by the insurer, can be questioned by a displaced beneficiary only upon the ground that it was legally insufficient to accomplish that purpose. The laws of this state do not prescribe any form or .requirements to be followed in making such changes; that matter is usually provided for in the laws and regulations of the insurance orders themselves, as was done in this instance. But the adoption of such by-laws by insurance associations does not have the same effect as a public statute which expressly or impliedly prohibits any other form of changing beneficiaries. Such private regulations are not fundamental, but relate to matters of detail, which may be ignored or modified by the interested parties without violating any organic duty imposed upon the company by law. Those regulations are made for the convenience of the insurer and its policy holders and to protect the association from the claims of unknown beneficiaries. By referring to and making them a part of the contract of insurance the obligation of the insured to follow that method becomes contractual. Hike all other contractual stipulations, those requirements may be waived by the insurer, for whose benefit it has been made. Splawn v. Chew, 60 Tex. 534.

' But the method adopted by Martha Bills for displacing one of her beneficiaries and increasing the interest of the other is materially different from that discussed in any case to which our attention has been called. Usually such irregular attempts are made by written designation in instruments distinct from the policy itself; and the proceeding, if ineffective, cannot impair the validity of the insurance contract. Here the attempt was by making an alteration in that portion of the policy which was essentially a part of the contract of Insurance. If that alteration was immaterial, or one which Martha Bills had a legal right to make without consulting the insurance association, the appellee’s right to the entire fund cannot now be questioned. On the other hand, if erasing the name of J. H. Bills was a material alteration, its legal effect was to either annul the contract of insurance or render it voidable at the option of the insurance association. If the contract was ipso facto annulled by the erasure, then neither of the parties to this contest is entitled to any part of the benefit fund. While, under that view of the case, the appellee may have recovered a judgment for something to which he had no right, the appel-' lant lost nothing which he might lawfully claim, and is therefore not entitled to have the judgment reversed. If the alteration had the effect only of making the contract voidable at the option of the insurer, its ratification thereafter made it enforceable in its altered form. The intentional erasure of the name of J. H. Bills by his mother cannot be treated as a mere spoliation by a third person which either party to the contract had a right to disregard, in the absence of some agreement to thus ignore it. By that act Martha Bills evidenced a purpose to so alter the contract of insurance as to eliminate one of the original beneficiaries and correspondingly increase the Interest of the other. That contract, if thereafter enforceable, was enforceable in its altered form. For if the alteration was a material one the contract was not enforceable in any form till assented to by the insurer, and when ratified it became the only obligation.

The next question is, Did the Mosaic Templars of America assent to, or ratify, the altered policy? After receiving notice that (the contract had been altered, the Mosaic Templars of America could claim no greater right than that of treating the contract of insurance as at an end, and refuse to pay the benefit fund to any one. Otto v. Halff, 89 Tex. 384, 34 S. W. 910, 59 Am. St. Rep. 56; Baldwin v. Haskel Nat. Bank, 104 Tex. 122, 133 S. W. 864, 134 S. W. 1178. When called upon to pay that fund after the death of the insured, the Mosaic Templars of America, with full knowledge of the alteration, admitted its liability for the entire sum claimed, paid the money into court, and asked to be discharged with its costs. Under the authorities that follow, that act and pleading were sufficient to constitute a ratification of. the policy in its altered form. Matson v. Jarvis, 63 Tex. Civ. App. 376, 133 S. W. 944; Hall v. Allen, 75 Miss. 175, 22 South. 4, 65 Am. St. Rep. 601; Adams v. Grand Lodge, 105 Cal. 321, 38 Pac. 914, 45 Am. St. Rep. 45; Lake v. Minnesota, etc., Ass’n, 52 Am. St. Rep. 562; 8 Elliott on Contracts, § 2018. It was not necessary that there be a new consideration. 2 Cor. Juris, pp. 1255, 1256, and notes.

It is true that the Mosaic Templars of America filed in the court below an amended answer, in which it demurred to the petition of E. B. Bills, and pleaded that because of the erasure the policy was void and unenforceable, and, further, that Martha Bills had not pursued the method provided for in the by-laws of the order in changing the name of her beneficiary. This amended answer appears to have been filed nearly four months after the filing of its original answer tendering payment, and after the contestants had joined issue in the case. The Mosaic-Templars of America did not in this amended answer ask to withdraw the fund which it had theretofore paid into court, or claim that it had in any manner acted under a misapprehension of the facts. The apparent purpose of the amended answer was to insist that the fund should be equally divided between the claimants according to the original provisions of the policy. Having once performed acts sufficient to constitute a ratification of the contract in its altered form, the Mosaic Templars of America could not, without showing that it had been misled, escape the legal consequences of that conduct. It could not arbitrarily repudiate what it had once fully ratified. The court sustained a motion to strike out that amended answer, and the Mosaic Templars of America has not appealed from that ruling. J. H. Bills has no right to complain of it.

The judgment is affirmed.
      <gcsFor other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes

      <&=sFor other oases see same topic ami KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TEXAS MIDLAND R. CO. v. CUMMER MFG. CO.
    (No. 1996.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 20, 1918.
    On Motion for Rehearing, Dec. 25, 1918.)
    1. Caeeiers <§=3116 — Diversion of Shipment —Negligence.
    Where agent of carrier consented to cause diversion of shipment and secured change in destination, and by negligently giving erroneous directions concerning consignee caused loss, carrier was liable.
    2. Carriers <§=380 — Diversion of Shipment.
    Instructions for change in destination of freight must emanate from party who is real owner, or one who has authority to divert; otherwise carrier alters destination at its peril.
    8. Carriers <§=>177(3) — Connecting Carriers — Diversion of Shipment — Concurring Negligence.
    Carrier was liable for negligence in diverting shipment, resulting in loss of the goods, though negligence of agent was not sole cause of loss, but concurred with that of connecting carrier.
    On Motion for Rehearing.
    4. Evidence <§=>593 — Hearsay—Sufficiency.
    Hearsay testimony, unsupported, is insufficient to establish an essential-fact.
    5. Carriers <§=>123 — Diversion of Shipment —Proximate Cause of Loss.
    If shipper knew, or should have known, that shipment had been billed to original consignee, and was being held in Mexico, after negligent diversion by initial carrier, for tariff charges, but made no effort to redeem or forward it, failure of carrier correctly to designate new consignee in order of diversion was not proximate cause of loss of shipment through sale to pay customs charges.
    6. Carriers <§=>134 — Diversion of Shipment —Negligence—Sufficiency of Evidence.
    In suit by shipper for loss of shipment as caused by negligence of carrier’s agent in effecting diversion, evidence that negligence of agent was cause of loss held, insufficient to support verdict for plaintiff.
    Appeal from Lamar County Court; Tom L. Beauchamp, Judge.
    Action by the Cummer Manufacturing Company against the Texas Midland Railroad Company. Judgment for plaintiff, and defendant appeals.
    Reversed, and cause remanded.
    Dashiell, Terry & Brown, of Terrell, Coke & Coke and S. W. Marshall, all of Dallas, and Wright & Patrick, of Paris, for appellant.
    Long & Wortham and A. P. Park, all of Paris, for appellee.
   HODGES, J.

The appellee is a private corporation, with its place of business at Paris, Tex. The judgment recovered in this case against the appellant is based upon a claim that appellant’s agent negligently failed to properly divert a carload of crates which had originally been billed for shipment to Ida Muller at Laredo, Tex.

The facts show that J. W. Warren was the president an,d manager of the appellee’s business at Paris; that he was represented by a sales agent, J. A. McGill, at Laredo, Tex. On the 17th of February, 1913, the appellee delivered a carload of crates to the appellant, consigned to Mrs. Ida Muller, care of Warehouse No. 2, Laredo, Tex. The goods were routed over the appellant’s line, the Missouri, Kansas & Texas Railway and the International & Great Northern Railway. On the 19th of February Warren desired to change the destination of the shipment, and requested the appellant’s agent at Paris to have the shipment diverted from Laredo, Tex., with Mrs. Ida Muller as consignee, to Columbus, Mexico, with J. W. Murray as consignee. Appellant’s local agent at Paris wired its general manager, F. B. McKay, requesting that the diversion be made. McKay undertook to intercept tbe shipment before delivery to the International & Great Northern Railway Company, and directed its diversion from Laredo, Tex., to Columbus, Mexico, but failed to direct a change in the name of the consignee as requested by Warren. On February 20th Warren wired to James Beatty, assistant general manager of the Wolvin Line at Texas City, advising him that the car of crates had been diverted from Waco on that date, via the Missouri, Kansas & Texas Railroad, billed to J. W. Murray, Columbus, Mexico, and asking him to make an effort to get the car on the boat which left that point on Saturday following. Beatty immediately wired H. W. Landman, commercial agent of the Missouri, Kansas & Texas Railway, that the car from Paris to Tampico, due at Waco that day, must arrive at Texas City on Saturday the 22d, and to start a wire tracer. The car was diverted by the Missouri, Kansas & Texas Railway, but arrived at Texas 'City too late for shipment on Saturday. Warren, being under the impression from information received that the next boat would not sail from that point to Mexico until March 4th, directed that the goods be again diverted to another consignee at another point. But this message did not arrive till after the goods had been shipped over the Wolvin Line on the 24th to Tampico, Mexico. The agent of the Wolvin Line received from the Missouri, Kansas & Texas Railway, Company what they called a “transfer slip,” which gave the name of Ida Muller as the consignee at Columbus, Mexico; and this was accepted as giving the correct shipping instructions. The crates arrived at the docks on February 24th, were unloaded on the Wolvin Line wharf on the 25th, and loaded on the steamship City of Tampico the same day. The Wolvin Line issued its bill of lading, showing the shipment consigned to Mrs. Ida Muller, Tampico, hut, with final consignee, Mrs. Ida Muller, Columbus, Mexico, the original hill of lading was sent with the shipment, as required by the Mexican authorities in Tampico. James Beatty, the agent of the Wolvin Line, mailed a copy of its bill of lading to the Cummer Manufacturing Company at Paris the day after the steamship sailed from Texas City. Warren testified that he did not remember receiving that bill of lading. J. A. McGill testified that he did not know that the Wolvin Line had issued the bill of lading. Beatty, the agent of the Wolvin Line, did not inquire of any one about the apparent conflict in the name of the consignee mentioned in the telegram and letter received from Warren, and that contained in the transfer slip delivered to him by the Missouri, Kansas & Texas Railway Company at Texas City; but in construing the telegrams and letter he had received, together with the transfer slip delivered by the Missouri, Kansas & Texas Railway Com- ' pany, concluded that J. W. Murray was the original consignee, and Ida Muller was the new consignee. The steamer upon which the goods were shipped arrived at Tampico on March 1st. On the same date the agent of the Wolvin Line received a telegram from the appellee, requesting it to divert the car in question to J. A. McGill, Laredo, Tex., hut failed to do so, as it was then out of control of the Wolvin Line, since the vessel had cleared from Texas City, because of the requirements of the Mexican customs authorities. The evidence shows that no arrangements had been made for payment of the import tax levied by the Mexican authorities at Tampico, and that the goods were unloaded and held for these charges. It appears that J. W. Murray inquired several times at Tampico for goods shipped to him as consignee, but was informed that none were there. Notice was put in the mail, addressed to Mrs. Ida Muller, Columbus, Mexico, but met with no response, presumably for the reason that her post office address was Laredo, Tex. The crates remained for some time in the custody of the Mexican custom house authorities, and were finally sold to pay the import tax.

Under the charge given the -jury found that the appellant’s agent was guilty of negligence in failing to give the correct name of the consignee in ordering the goods diverted from Laredo, Tex., to Columbus, Mexico, and that this negligence was the proximate cause of the loss.

It is contended here, as it was in the trial below, that if it be conceded that the facts alleged and proved by the appellee are true, they do not create any legal liability against the appellant, for the reason that the law did not impose upon it the duty of diverting the freight and there was no contractual undertaking to perform that service. In support of that proposition we are referred to the case of Patton v. Texas & Pacific Ry. Co., 137 S. W. 721, decided by this court, fin that case it was held that the initial carrier was under no legal duty to cause the diversion of freight that had left its line to a different destination from that mentioned in the original bill of lading, unless such a duty was specially assumed in the contract of shipment. The prominence of that issue of law in that case was such that the subsequent refusal of a writ of error by the Supreme Court should, we think, be regarded as an approval of the ruling. But the facts of this case are materially different. There the agent of the carrier never undertook to divert the shipment, nor agreed to do so. Here the carrier’s agent not only consented to cause the diversion, but actually secured a change in the destination, but, by giving erroneous directions concerning the consignee, caused a loss of the goods. It may be true that the appellant owed the shipper in this instance no duty to undertake to change the destination of the goods after they left its line, and could not have been held for the consequences of a refusal to do so. But the same immunity from liability does not exist when the service is undertaken and is so negligently performed that damages result. When the appellant’s agent consented and actually entered upon the performance of the service of changing the destination of the freight, the attitude of the parties was changed, and a situation was produced in which there was a sufficient consideration to bind the appellant to a reasonably prudent performance of its engagement. Glavin v. Rhode Island Hospital, 12 R. I. 411, 34 Am. Rep. 685; Pollock v. Carolina, etc., B. & L. Ass’n, 51 S. C. 420, 29 S. E. 77, 64 Am. St. Rep. 683, 689; Hammond v. Hussey, 51 N. H. 40, 12 Am. Rep. 41; Kincheloe v. Priest’s Executors, 89 Mo. 240, 1 S. W. 235; 5 Thompson on Corp. § 6357 ; 6 Co. Jur. 1118; 9 Cyc. 310.

In Pollock v. Carolina, etc., B. & L. Ass’n, the court quoted with approval the following language:

“ ‘The confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it.’ * * * The principle which governs the liability of a corporation for failing to perform a duty voluntarily assumed is precisely the same as that which governs the liability of an individual in the like case.”

One who undertakes to change the destination of freight and negligently causes it to be missent is in the same legal situation as one who accepts goods for transportation and negligently delivers them at the wrong place. If loss results, the fact that the undertaking is voluntary no more excuses negligence in one case than it does in the other. That form of negligence under such circumstances amounts to more than mere inaction; it is- affirmative misconduct. The situation here would not have been materially different had the appellant’s agent committed an error both in the destination and in the name of the consignee. The attitude of the initial carrier toward the shipper in cases of this character, even after it has delivered the goods to its connecting carrier, is not in all respects the same' as that of an entire stranger to the transaction. Instructions for a change in the destination of freight must emanate from the party who is the real owner, or one who has the authority to divert; otherwise the carrier alters the destination at its peril. N. C. & St. L. Ry. Co. v. Grayson County Nat. Bank, 100 Tex. 17, 93 S. W. 431; 1 Hutchinson on Carriers, §§ 177, 193, 194. Such instructions must usually be delivered by telegraph, leaving little time for an intermediate or terminal carrier to investigate the matter of ownership. The initial carrier, having issued the bill of lading, is generally in a more favorable‘situation for ascertaining that authority. There was no error committed in submitting the issue of negligence to the jury.

It is also contended by the appellant that the real cause of the loss of the freight was the negligence of the Wolvin Line in failing to observe the instructions given as to the name of the proper consignee through other sources. Those issues were submitted to the jury, and its verdict involves a finding that the appellant’s agent was negligent. And even though his negligence may not have been the sole cause of the loss of the goods, yet the appellant would be responsible if it concurred with that of the Wolvin Line in causing the loss.

The remaining assignments of error are overruled, and the judgment is affirmed.

On Motion for Rehearing.

While we are not disposed to recede from any of the legal propositions upon which this judgment was affirmed, a more careful inquiry into the facts has convinced us of the insufficiency of the evidence to support the verdict of the jury. If the appel-lee’s right to recover depends upon proof of a negligent failure on the part of the appellant’s agent to give the correct name of the consignee of the goods as alleged in its original petition, it was also required to prove that such failure was the proximate cause of the loss of the goods.

The failure of the appellant’s agent to give the correct name of the new consignee is conceded. But the question is, Has it been shown by satisfactory evidence that such failure was the proximate cause of the loss of the goods? It appears from the record that the goods arrived safely at Tampico, Mexico, on March 1st, where they were stored and held for some time thereafter for the payment of a Mexican import tax and the accrued charges; that this tax was never paid or its payment arranged for in any manner ; and that the goods were sold for the purpose of satisfying those charges. The goods were, destined to Columbus, which was a flag station about 40 miles from Tampico in the interior of Mexico. Under the regulations existing at the time the freight charges to that point were required to be paid in advance; The evidence shows that no arrangements had been made by the appellee for the payment of those charges. Warren, appellee’s-.manager, testified that he expected to get the goods into Mexico without the payment of an import tax. It is therefore reasonable to infer that he had consigned them without stipulating for any such payments. It is true that McGill, an agent of the appellee, testified in its behalf that Murray, the party to-whom the appellee intended to ship the goods,, had called at Tampico, and in response to his inquiries was told that no goods were-there.for him. But the evidence fails to show when lie made those inquiries; neither is there any evidence that Murray was ready and willing to prepay the import tax and the freight charges to which the goods were subject. The only testimony tending to show the amount of this import tax places it at a sum about equal to the invoice value of the goods. Considering that fact and the further fact that the appellee expected the goods to go into Mexico duty free, it is not to be assumed without proof that Murray would have accepted them upon the conditions under which he would have been compelled to take them at Tampico. Moreover, it is made apparent that the testimony that Murray had called for the goods was hearsay. Our Supreme Court has held that such testimony, when unsupported, is insufficient to establish an essential fact. Henry v. Phillips, 105 Tex. 459, 151 S. W. 533. If that hearsay testimony should be disregarded, we then have no evidence that Murray ever called for the goods. If he did not, then it is reasonable to infer that the goods would have met the same fate had he been named as the consignee. We must assume that the shipper was fully aware in advance of the necessity for arranging for the payment of the taxes and charges required in ordering that the goods might go to their destination, unless it is made to appear that the consignee had assumed that burden. Furthermore, the testimony tends to show that soon after the goods left the port of Texas City in the latter part of February Warren had been furnished with a copy of the bill of lading, showing that the goods had been consigned to Ida 'Muller. In rebutting the evidence of that fact Warren merely stated that he did not remember receiving such a bill of lading. He admits, however, that he had been advised by the Wolvin Line of the arrival of the goods at Tampico and the amount of the customs the appellee would be required to pay, but failed to remember the date upon which he received that information. Beatty, the agent of the Wolvin Line, who testified by deposition, stated that on March 11th he telegraphed to Warren, and two days later he wrote him the following letter:

“Please see your telegram March 11 regarding car of crates shipped to Mrs. Ida Muller, Columbus, Mexico, diverted to A. E. Graham Forlorn, Mexico. This is to advise you that the shipment is now on hand at Tampico, Mexico, having been refused by consignee. Please advise disposition as soon as possible to avoid the storage accruing.”

Evidently that letter and telegram furnished the information Warren received. This witness further testified that he had been instructed, after the arrival of the goods at Tampico, to divert them to A. E. Graham at Forlorn, Mexico, by a telegram from the ap-pellee dated March 11, 1913, and that Graham had refused to receive the goods. The record shows that after that time no effort was made by the appellee to make any disposition of the goods. It is difficult to understand why the jury should disregard the positive statements of this witness, who testified by deposition, or infer a miscarriage of the mails from the mere statement of Warren that he did not remember receiving the communications which fully advised him as to how the goods had been billed out of Texas City. If the appellee knew or was in possession of facts from which it might be reasonably inferred that the goods had been billed to Ida Muller and were being held in Tampico for the charges to which they were subject, and made no effort to redeem or forward them, it cannot be said that the failure of the appellant's agent to correctly designate the new consignee in the order of diversion was the proximate cause of their loss. A re-examination of the record has convinced us that the evidence upon which the verdict of the jury rests is too unsatisfactory.

We do not pass upon those assignments of error which complain of an excessive verdict, as the determination of that question is not necessary in view of a new trial.

The judgment heretofore rendered affirming this easel will be set aside, and the judgment of the trial court will be reversed, and the cause remanded.
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