text:
    TRANS-PECOS LAND & IRRIGATION CO. v. ARNO CO-OPERATIVE IRR. CO.
    (No. 491.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 2, 1915.)
    1. Appeal and Error <@=>643 — Motion to Correct Record — Time—Power oe Court.
    Where the motion to correct the statement of facts on appeal showed that the figures “$20,-000.00” should have been “$2Ó0,000.00,” and there was no applicable rule, the court, in the exercise of its inherent power, and in order to prevent fraud, might allow the motion, though not filed within 30 days, and though the error was not discovered until briefing the case.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2791-2794; Dec. Dig. <@=> 043.]
    2. Judicial Sales <@=o45 — Action to Set Aside — Interest oe Parties.
    Allegations, in an action to set aside a judicial sale of an irrigation company’s property, that the company was the owner of the property sold and that the individual plaintiff owned two notes containing a lien on its property, were sufficient allegations of interest, and proof that the property sold for $100, when reasonably worth $200,000, was sufficient proof that such interest would be injuriously affected.
    [Ed. Note. — For other cases, see Judicial Sales, Cent. Dig. § 83; Dec. Dig. <@=345.]
    3. Pleading <@=>36 — Admissions — Allegations oe Complaint.
    Where the complaint in an action by an irrigation company and by an individual lien-holder against its property, brought to set aside a judicial sale of its property for $100, alleged that it was reasonably worth $20,000, and that if they had not been misled by breach of an agreement to postpone the sale it would have brought that figure, the allegations did not amount to admissions, so as to preclude their proof that the property was actually worth more than that alleged, in answer to the plea that the sale price was adequate, in view of the property and the company’s liabilities.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 81-86; Dec. Dig. <@=336.]
    4. Judicial Sales <@=335 — Action to Set Aside Sale.
    Courts generally refuse to set aside an execution sale for mere irregularities, as shown by the record, where such sale is not shown to be void by reason of fraud or because of irregularities.
    [Ed. Note. — For other cases, see Judicial Sales, Cent. Dig. §§ 72, 73; Dec. Dig. <@=335.]
    5. Judicial Sales <@=339 — Action to Set Aside Sale — Grounds — Inadequacy oe Price.
    Courts generally will not set aside judicial sales for inadequacy of price, where other things are regular, or where the irregularities, if any, are not such as to vitiate the sale.
    [Ed. Note. — For other cases, see Judicial Sales, Cent. Dig. § 77; Dec. Dig. <@=339.]
    6. Judicial Sales <@=336 — Validity—In General.
    A judicial sale of the property of an irrigation company subject to a lien was void, where no specific property was described in the judgment upon which the lien attached and was foreclosed, where the judgment did not order execution against any property upon which the lien was declared to attach, but directed the sale as under execution upon a sufficient amount of its property to satisfy the lien and costs of sale, where the order of sale, having been returned by the sheriff prior to sale, was functus officio, and where it was induced by parties interested, in violation of an express agreement not to sell the property.
    [Ed. Note. — For other cases, see Judicial Sales, Cent. Dig. § 74; Dec. Dig. <@=>30. ]
    7. Judicial Sales <@=345 — Action to Set Aside — Judgment.
    In an action by an irrigation company and by an individual plaintiff, who had had a lien on its property, to set aside a judicial sale of its property, with cross-action by the purchaser’s assignee against the individual plaintiff, a judgment that the assignee recover on its cross-petition against the individual plaintiff, and that a cloud be removed from the assignee’s title, was erroneous, and contradictory to judgments for the plaintiff company against the defendant company, in that it attempted to quiet title to property in the assignee, when there was no proof of any valid title in it.
    [Ed. Note: — For other cases, see Judicial Sales, Cent. Dig. § 83; Dec. Dig. <§=>45.]

      8. Judicial Sales <S=45 — Action to Set Aside — J ud gment — Election .
    In such action a judgment recital that the plaintiffs desired to elect as to which of them •would prosecute as plaintiff, and that their attorney elected that the plaintiff company would prosecute the cause solely for and on its behalf, was erroneous, where there was no evidence in the record to prosecute solely in the name of the plaintiff company..
    [Ed. Note. — For other cases, see Judicial Sales, Cent. Dig. § 83; Dec. Dig. <§=>45.]
    9. Judicial Sales <@=345 — Action to Set Aside — Judgment—Application oe Money Tendered.
    In an action by an irrigation company and its lienor to set aside a judicial sale' of the company’s property, joining as defendants the purchaser and his assignee, where the plaintiff tendered into court a sum of money to the purchaser and others, and where the purchaser, who had paid the value of the judgment on which execution was had, disclaimed any title in the property, and sought to have the judgment confirmed or set aside, the only judgment which might be rendered was in accordance with the purchaser’s pleading, so that a decree awarding the money to him was erroneous.
    [Ed. Note. — For other cases, see Judicial Sales, Cent. Dig. § 83; Dec. Dig. <@=45.]
    10. Appeal and Error <@=1175 —• Final Judgment — Rendition.
    Whether such judgment was final or not, it confirmed the decree in the action in which the judgment leading to judicial sale was had, so that the court reversing it would enter such judgment as could, under the pleadings, verdict, and evidence, have been entered by the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. <@=j
    Appeal from District Court, Reeves County; S. J. Isaaoks, Judge.
    Action to quiet title by the Arno 'Co-operative Irrigation Company and Christine F. Werner against the Trans-Pecos Land & Irrigation Company and others, with cross-action by defendant company against plain'tiff Werner. Judgment on the verdict returned for plaintiff company against defendant company and others, and default judgment for defendant company against plaintiff Werner, and defendant company appeals.
    Reversed and rendered.
    Leslie A. Needham and Jno. B. Dandridge, both of Chicago, Ill., and Ross & Hubbard, of Pecos, for appellant. Clay Cooke, of Pecos, for appellees.
   HARPER, C. J.

Appellees, Arno Co-operative Irrigation Company, a corporation, and Christine F. Werner filed this cause August 8, 1913, against M. J. Zollman, Elmer Johnson, individually and as receiver, and the Trans-Pecos Land & Irrigation Company, a corporation, to set aside the judgment entered in cause No. 1124 on the docket of the district court of Reeves county, Tex., to set aside the order of sale issued from said judgment and the sale made by the sheriff thereunder, and to set aside and cancel the deed made pursuant to the sale made by the sheriff to M. J. Zollman, and that they have judgment removing the cloud cast upon the title to the property by virtue of the deed aforesaid, as well as the cloud cast upon the title by virtue of the deed from M. J. Zoll-man to the Trans-Pecos Land & Irrigation Company.

The cause was submitted to the jury upon special issues, and upon the verdict returned judgment was entered that Arno Cooperative Irrigation jCompany recover of the Trans-Pecos Land & Irrigation Company ; that the order of sale and the return thereon, and the deed executed by the sheriff to Zollman, and the deed from Zollman to Trans-Pecos Land & Irrigation Company be canceled; and it further decrees that Trans-Pecos Land & Irrigation Company recover said property as against plaintiff Christine F. Werner by default, as expressed in the decree, because she did not answer the cross-action of the defendant Trans-Pecos Land & Irrigation Company, and that the title in the Trans-Pecos Land & Irrigation Company be quieted — from which this' appeal is taken.

Preliminary to passing upon the assignments of error, appellees urge a motion to correct the statement of facts' as it appears in this court. The facts alleged in the motion, and which are apparent upon the face of the record, are that the copy of the statement of facts filed in this court has a witness’ statement:

“All of the property described in the sheriff’s deed; considering that good title passed at the sheriff’s sale, I should say that it had a minimum value of probably $200,00.00.”

It is apparent that one cipher has been erased. The affidavits of appellee’s counsel, and of the clerk, are that the copy now in the clerk’s office contains the other cipher, making the testimony “$200,000.00,” instead of “$20,000.00.” The stenographer testifies that the testimony of the witness was “$200,-000.00,” and the attorney files his affidavit that he corrected both copies before he agreed to same, and that the change has been made at some time by some person since that time.

' Appellees do not deny that the motion and the accompanying affidavits state the facts, but urge that motion comes too late, because not filed within 30 days. This is not a motion relating to informalities in the manner of bringing a case into court, as per rule 8, nor is it governed by rule 11, relating to certiorari to perfect record. In fact, there is no rule applicable; but it occurs to us that it would be an anomalous and unfortunate condition of affairs that, between the time it was approved by the judge and the time to brief the ease, the statement may be so altered by the fraudulent act of some person as to destroy the case of one of the parties to the appeal in some material particular, as in this ease, and this court be powerless to order tliat the alteration be made to show the facts', because, forsooth, the party aggrieved did not discover it until he was called upon to brief the cause. The power is clearly suggested by the Supreme Court rule 11, in regard to motions, and if there is no express authority in the statute, the inherent power of the courts of this state to prevent frauds being perpetrated upon the court itself is amply sufficient. The motion, therefore, is granted, and the record ordered corrected in accordance with its prayer.

Findings of Fact.

March, 1913, one of the plaintiffs in this cause, Christine F. Werner, filed suit against Arno Co-operative Irrigation Company in the district court of Reeves county, No. 1124, upon certain notes, and among other things asked that a receiver be appointed. Elmer Johnson was appointed receiver. Thereafter, at the April term of court, said Werner took a nonsuit as to her cause of action and the following judgment was entered:

“Christine F. Werner v. Arno Co-operative Irrigation Company et al., No. 1124. In the District Court of Reeves County, Texas, Api'il Term, A. D. 1913.
“On this the 12th day of May, A. D. 1913, one of the days of the regular April term of this court, came on to be heard the above styled and numbered cause, and all the parties hereto appearing either in person or by attorney, and the plaintiff Christine F. Werner, having announced to the court that she desired not to prosecute this cause further, but to nonsuit same, was by the court permitted to nonsuit, and it is ordered by the court that this cause be dismissed, and that all costs in this behalf expended or accrued be taxed against plaintiff, for which defendants and the officers of this court may have execution. And Elmer Johnson, heretofore appointed and qualified as receiver for the property of defendant company, is ordered to make a complete report of property or money coming into his hands, and the disposition thereof, that he might be finally discharged.
“And on this the 29th day of May, 1913, came on to be heard the final report of the said Elmer Johnson, receiver of the Arno Co-operative Irrigation Company, which report included inventory of property received as such receiver, and also his inventory of property turned back to S. B. Pugh, as president of said corporation, and said report having been examined and found correct as to the property received and returned, and the expenditures appearing to be proper and correct, and it appearing to the court that the indebtedness contracted as shown by said report is property and consists of rightful charges, except the item of $250 for attorney’s fees, which, in the opinion of the court, should be only $100, said report is in all things, except said attorney’s fees, approved, and J. W. Parker is allowed the sum of $100 for attorney’s fees. And the said Elmer Johnson is allowed the sum of $250 for services as receiver, and ordered paid the sum of $210, it being shown by the report that he has been paid the sum of $40.
“And it is further ordered by the court that the said receiver do have a lien on the property of the said Arno Co-operative Irrigation Company to secure the payment of said indebtedness, the sum of $480.96, and that, if same is not paid within 30 days from the adjournment of this court, said receiver shall have an order of sale as under execution on a sufficient amount of said corporation’s property to satisfy said indebtedness and the costs of sale.”

Thereafter, on July 8, 1913, order of sale was issued, which directed the sheriff to seize and sell the property of the Arno Cooperative Irrigation Company, described as follows:

_ “All the assets of every character and description, whether same be real, mixed, or personal property, now belonging to it, the said Arno Cooperative Irrigation Company, situated in Reeves county, Texas, same consisting of and being a certain irrigation plant situated in said county on the Pecos river, about 20 miles north of Pecos City, this sale to include the main canal of said corporation, all its laterals, flumes, spillways, wasteways, and reservoirs, laterals and by-laterals, its dam across the Pecos river, all houses and buildings of every character belonging to said corporation, and all implements of every character, consisting of plows, barrows, rakes; buggies, all horses belonging to said corporation, all character of property of every description belonging to said corporation, and all rights of way owned by said corporation, as said receiver’s lien existed on the 12th day of May, 1913.”

It was agreed upon the trial that the order of sale was issued, and that the property described in the order of sale was duly advertised by the sheriff for sale on August 5, 1913. Thereafter, and before the sale took place, the attorney of the irrigation company, Elmer Johnson, receiver, and his attorney, agreed to call the sale off. The sheriff was notified of this agreement and indorsed upon the back of the process:

“Not sold by order of plaintiff’s attorney.
“J. W. Parker.”

The president of the Arno Company was notified by wire that the sale would not take place, and his attorney, relying upon the agreement not to sell, left the city and was not present. On the day the sale was advertised to take place, Leslie A. Needham sought to induce the receiver to go ahead with the sale in the face of this agreement not to do so, and served upon him written demand to proceed with same, and as a matter of inducement, showed the receiver a telegram from the district judge, as follows:

“It is my opinion as a lawyer that the receiver has the right to call off the sale, provided he releases his judgment lien and becomes personally responsible for the indebtedness; otherwise, not.”

The sale was made August 5, 1913, of all of the assets of the Arno Co-operative Company, consisting of dams, canals, laterals, implements, etc., which the uncontroverted evidence shows to be worth $200,000, for the sum of $100..

About the time of this sale, said Need-ham, Zollman, Dandridge, and Pugh organized the Trans-Pecos Land & Irrigation Company, appellant in this case. At the time of this sale, Needham, Dandridge, and Pugh were claiming to be officers of the appellee company and had possession of the property under such claim. Immediately after the sale by the sheriff August 6, 1913, Zollman transferred said property to the Trans-Pecos Land & Irrigation Company.

The first assignment reads:

“The court erred in overruling this defendant’s motion, made at the close of the plaintiff’s case, and prior to the introduction of any evidence for or on behalf of any of the defendants in this cause, to direct the jury to return a verdict in said cause for this defendant, for the reason that the plaintiff, Arno Co-operative Irrigation Company, by its attorney, prior to the time when the said plaintiff had rested its case, and prior to the offer of any evidence in said cause on behalf of any of the defendants herein, did in open court admit that said judgment of the district court in favor of Elmer Johnson, receiver, rendered at the April term of said court, A. D. 1913, in cause No. 1124, the order of sale issued thereon, and the levy thereof, and notice and advertisement of said sale thereunder, by the sheriff, to be in all things regular, valid, and binding; and it appearing that said plaintiff, by its said petition, to wit, its first amended original petition, filed herein on December 8, 1913, alleged, among other things, that all of the property of the plaintiff in controversy in this cause, and which was alleged to have been sold by the sheriff at said sale complained of, held on August 5, 1913, on said date was reasonably worth the sum of $20,000, and which property would have brought said sum of $20,000 if said proceedings therein had been legal and valid, or if said sale had been properly conducted, and also alleged in said petition that all of said property in controversy in this cause and by said sheriff sold on August, 5, 1913, to the defendant Zollman, was, at and prior to the time of said sale, incumbered by a valid and subsisting lien, to wit: A certain trust deed to H. T. Beauchamp, trustee, to secure an indebtedness evidenced by two certain notes, each for the sum of $9,250, payable on demand, dated at Pecos, Texas, June 14, 1911, each of said notes bearing interest from date until paid at the rate of 10 per cent, per annum, and for the payment of the usual 10 per cent, attorney’s fees, if placed in the hands of an attorney for collection, or sued upon, and that suit has been brought upon said notes to foreclose the lien thereof, in the district court of Reeves county in cause No. 1124, wherein said judgment in favor of Elmer Johnson, receiver, was rendered, and under which said sheriff’s sale complained of was held, and that a certain other suit to foreclose said lien had been instituted by Christine P. Werner, the owner and holder of said trust deed and lien, which was then pending in the federal court in and for the Western district of Texas, Pecos division, on said notes, and to foreclose said lien, as against all of the property in controversy in said cause, and that no part of said notes had ever been paid, and by reason of which admissions aforesaid by plaintiff’s counsel in open court, and the admissions by allegation, as aforesaid, of the said plaintiff’s first amended original petition, that it conclusively appeared from the record in said cause that the indebtedness evidenced by said notes and the lien thereby secured exceeded in amount by many thousands of dollars the actual value of all of the property in controversy in this cause, on the day of the said sheriff’s sale, on August 5, 1913, there being no other allegations showing any other right, title, interest, or injury to the plaintiff or proofs admitted on the trial as a part of the plaintiff’s proofs, and that the Arno Co-operative Irrigation Company was not and could not have been injured, or sustained any injury, by reason of any of the alleged irregularities, if any, intervening in the holding of said sheriff’s sale, or by reason of the alleged inadequacy of price obtained thereat, which injury, if any, would be sufficient to entitle the said plaintiff, or to warrant the court, to find any decree in said cause awarding any affirmative relief on behalf of said plaintiff by reason of any inadequacy of price paid for the property in controversy or any irregularities in the manner or time of the holding of said sheriff’s sale, which motion on behalf of this defendant, the ruling' of the court denying same, and the exception by this defendant by its counsel then and there in open court, is fully set forth and made known to the court by this defendant’s bill of exception No. 1.”

The trial court submitted, the cause upon the following special issues:

“No. 1. Was the price paid by the defendant Zollman for the property of the Arno Co-operative Irrigation Company grossly inadequate?
“No. 2. Did J. W. Parker, as attorney for the receiver, Elmer Johnson, prior to the sale, inform J. A. Buck that said sale would not be had on said August 5, 1913?
“No. 3. Did J. W. Parker, as attorney for Elmer Johnson, by any statement of his lead the plaintiff or its attorney to believe that said sale would not take place on August 5, 1913?
“If you have answered each of the foregoing questions in the affirmative, then answer the following question:
“No. 4. Was such grossly inadequate price paid by the defendant Zollman for the property in controversy caused or contributed to by such action of the receiver, Elmer Johnson, or his attorney, J. W. Parker?”

Appellant’s propositions under first assignment are:

(1) “In order to set aside a judicial sale for irregularities and inadequacy of price, the party complaining must allege and prove, not only that he has an interest in the property, but that such interest will be injuriously affected, should the sale complained of be allowed to stand.”
(2) “Where all of the assets of a corporation are sold under a judgment in favor of a receiver for an inadequate sum, and such property is at the time incumbered for an amount in excess of the fair cash value of the property, and which incumbrance is then due, irregularities in the sale and inadequacy of price do not constitute a ground to set aside the sale on the application of the corporation, the irregularities and inadequacy having operated to the injury solely of the mortgagee; the corporation having sustained no injury on the sale being allowed to stand.”

It will be noted that the propositions do not urge the subject-matter of the assignment, the admissions of counsel, but are propositions to the effect that the court erred in entering judgment for plaintiffs below, upon the theory that the pleadings and evidence do not support the judgment, in that no such interest is shown to be owned by the parties as to support it. The allegations that the appellee, Arno Co-operative Irrigation Company, was the owner of the property sold, and that Christine E. Werner was the owner of two promissory notes containing a lien upon the property, are certainly sufficient allegations of interest, and proof that the property sold for $100, when it was reasonably worth $200,000, is sufficient proof that such interest would be injuriously affected.

As to the second proposition, it assumes that the property sold was incumbered In excess of its fair cash value. This is answered by the evidence in the statement of facts, as corrected pursuant to the motion, that the property has a minimum value of $200,000. But appellant contends, under this assignment and the third ' assignment, that the plaintiff below, appellee, will not suffer any injury because of the inadequate price paid at the sale, because in their (appellee’s) pleading it is shown that the bid accepted could not result in injury to them because by said pleadings it is revealed that the property is incumbered for more than its real value. It is true that the plaintiff’s pleadings charge that the property was reasonably worth $20,000, and also that, if they had not been misled toy the breach of the agreement to postpone the sale, it would have brought at said sale $20,000; but we- do not think these allegations preclude appellee’s proof that the property was in fact worth more than that alleged in answer to defendant’s plea that the price paid at the sale was adequate in view of the value of the property and the extent of the liabilities of the company, and therefore do not amount to admissions.

The second assignment is that the court erred in excluding from evidence a certain deed of trust to secure a certain bond issue of $300,000 upon this same plant, offered for the purpose of proving that the price paid at the sale was not inadequate; the proposition being that:

“Where the court orders its receivers to return all the assets of a corporation, and renders a decree in favor of the receiver and against the corporation, a sale of all the assets under such decree passes the title to such property freed, at most, from only those liens or claims held by parties to the proceedings.”

This proposition is not germane to the assignment. The principle invoked would apply in a proper case to sales by receivers, but this is not a receiver’s sale, but an execution sale by the sheriff. As such, being void, not voidable, it is immaterial whether the price it sold for was inadequate or not.

Courts, as a rule, have refused to set aside an execution sale for mere irregularities, as shown by the record, where such sale is not shown to be void by reason of fraud, or void because of irregularities. So in a proper case the appellant’s second proposition under this assignment would be well taken; i. e., if there were simply irregularities in the issuance and execution in the order of sale, not such as to vitiate the whole proceeding, such as fraud, or such material defect, in the process itself, or a failure to follow the law in its execution and the sale thereunder, then the question of inadequacy of price would be a material factor, for courts do not set aside such sales for inadequacy of price where other things are regular, or, if irregular, not such irregularities as vitiate the sale.

This sale was void: (a) Because there was no specific property described in the judgment upon which lien attached and foreclosed; (b) because the judgment does not order execution against any property upon which the lien is declared to attach, but directs “order of sale as under execution issue upon a sufficient amount of said corporation’s property to satisfy said indebtedness and costs of sale”; (c) because the order of sale, at the time of sale, was functus officio, having been returned by the sheriff prior to the sale; (d) because induced by parties interested in violation of an express agreement not to sell the property, and is irregular for many other reasons. Keating v. Live Stock Co., 83 Tex. 467, 18 S. W. 797, 29 Am. St. Rep. 670; Allen v. Stephanes, 18 Tex. 658; Burch v. Smith, 15 Tex. 219, 65 Am. Dec. 154; Stone v. Day, 69 Tex. 17, 5 S. W. 642, 5 Am. St. Rep. 17; Ward v. Duer, 70 Tex. 233, 11 S. W. 116. The assignments are therefore in all things overruled.

This brings us to the appellee’s cross-assignments of error:

First. The court erred in the decree entered in the following respect:

“It is further ordered, adjudged, and decreed by the court that the plaintiff take nothing against the defendant M. J. Zollman and the defendant Elmer Johnson, or either of them, and that they go hence without day, and the defendant Trans-Pecos Land & Irrigation Company recover on their cross-action against plaintiff Christine F. Werner, and cloud be removed from the Trans-Pecos Land & Irrigation Company title”

—because said decree is erroneous, and contradicts the judgment rendered, in that it attempts to quiet title to said property in the Trans-Pecos Land & Irrigation Company, when no proof was offered of title in the Trans-Pecos Land & Irrigation Company, but expressly declares that the only muniment of title under which the Trans-Pecos Land & Irrigation Company claims title is declared to be null and void, and is set aside. Therefore, in that respect, the decree is contradictory and void.

And the court erred in its decree wherein it holds that:

“The Trans-Pecos Land & Irrigation Company have judgment against plaintiff Christine F. Werner, she not having answered said Trans-Pecos Land & Irrigation Company’s cross-action filed herein, and further decreeing in said cause that title in the Trans-Pecos Land & Irrigation Company be quieted, because said finding is not supported by the record and is contradictory,” etc.

And further, by third cross-assignment, that the court erred in its judgment as follows:

“It appearing that the plaintiffs desired to make an election as to which of the plaintiffs, to wit, Arno Co-operative Irrigation Company, or Christine F. Werner, would prosecute said cause as plaintiff heroin, in accordance with the ruling of the court theretofore made on the exceptions of the defendants, and each of said plaintiffs being in court and represented by, counsel, Hefner & Cooke, said attorneys this day elected to prosecute said cause solely for and on behalf of the Arno Co-operative Irrigation Company, it is therefore ordered and adjudged that the cause be and it is hereby further prosecuted by the plaintiff Amo Co-operative Irrigation Company only,_ and the plaintiff Werner by her said election is hereby precluded from having, claiming, or obtaining any advantage or relief by anything set out and pleaded in the plaintiff’s first amended original petition filed”

—the reason given being that there is no such agreement or ruling of the court, nor is there anything in the record showing that plaintiff’s attorney desired to make such an election, but the record shows that the cause was continuously prosecuted by both plaintiffs to verdict and is now being so prosecuted.

The fourth cross-assignment charges that the court erred in decreeing that the clerk of the court pay over to M. J. Zollman the sum of $529.82 tendered by plaintiffs into open court upon the trial of said cause, because said judgment finds that M. J. Zollman disclaimed in said cause any title, and because the proof further shows that the said Zoll-man and Needham by fraud prooured the illegal acts of the sheriff under said void order of sale and obtained no title whatever thereby, and the said Zollman was not entitled to recover said money, and said money should have been decreed to be returned to plaintiffs, and in any event only $100 should be decreed to Zollman, the amount of her bid at the execution sale.

Finding of facts applying to cross-assignments of error:

“Special Issue No. 1. Was the price paid by the defendant Zollman for the property of the Amo Co-operative Irrigation Company grossly inadequate? Answer: Yes.
“Special Issue No. 2. Did J. W. Parker, as attorney for the receiver, Elmer Johnson, prior to the sale, inform J. A. Buck that said sale would not be had on said August 5, 19Í3? Answer: Yes.
“Special Issue No. 3. Did J. W. Parker, as attorney for Elmer Johnson, by any statement of his, lead the plaintiff or its attorney to believe that said sale would not take place on August 5, 1913? Answer: Yes.
“If you have answered each of the foregoing-questions in the affirmative, then answer the following question:
“Special Issue No. 4. Was such grossly inadequate price paid by the defendant Zollman for the property in controversy caused or contributed by such action of the receiver, Elmer Johnson, or his attorney, J. W. Parker? Answer : Yes.”
(See copy of judgment in 1124 above.)

The cross-action of the Trans-Pecos Land & Irrigation Company was answered and denied by the pleadings of the plaintiff Wer-ner, by supplemental petition. Wte find no evidence of an election to prosecute the cause in the name of plaintiff company in the record. The plaintiff Werner alleged, and the judgment in 1124 shows, that it was not a judgment against her, by which any of her interest in the property could be sold. The first and second assignments, therefore, must be sustained for the reasons given therein. The third is sustained because the facts recited therein as a basis for that portion of the decree complained of did not exist.

As to the' fourth cross-assignment, decreeing that the money tendered into court be paid to Zollman, the facts show that the sum of money was tendered into court with the following statement:

“Plaintiff here tenders into court $545 gold coin of the United States, and asks that the court in its decree adjudicate same to plaintiffs, to M. J. Zollman, Leslie A. Needham, Spencer B. Pugh, Trans-Pecos Land & Irrigation Company, or to whomsoever the court determines is entitled to said money, or any part thereof.”

Zollman, to whom the money is decreed, sold the property to the defendant Trans-Pecos Land & Irrigation Company and disclaimed any title or interest in same. The bill of sale shows that Zollman paid $100 for the property at the sale. It further shows that Zollman paid Elmer Johnson full face value of the judgment and took an assignment of it to herself. She pleaded that she was the owner of the judgment, sought by this suit to be set aside, the unsatisfied portion of it, and prayed that same be confirmed by the decree of the court. It will be noted that the court in the decree applied the money tendered into -court to the settlement- of the judgment in cause No. 1124, sought to be set aside in this proceeding, and without any decree confirming the decree in cause No. 1124 or setting it aside, as prayed for by plaintiff, but recited that the said judgment is by said moneys paid and satisfied: There were no pleadings in this case upon which to base such a decree. Therefore it cannot stand. McKey v. Welsh, 22 Tex. 397.

The only judgment that could be rendered was one in accordance with the defendant Zollman’s prayer, viz., that the judgment be confirmed, or that it be set aside and held for naught, as prayed for by plaintiffs. It seems doubtful whether this constitutes a final judgment; however, we think it sufficient to constitute a holding that the decree in cause No. 1124 is confirmed. This court, therefore, must here enter judgment such as should, under the pleadings, verdict, and evidence, have been entered by the trial court.

The judgment of the lower court is reversed, and here rendered in accordance with the verdict of the jury and the views expressed in this opinion.
      other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    SMITH v. TEXAS TRACTION CO.
    (No. 1473.)
    (Court of Civil Appeals of Texas. Texarkana.
    Oct. 28, 1915.)
    1. Carriers <§=>318 — Personal Injury— SUFFICIENCY OF EVIDENCE — ACCIDENT.
    Evidence in a passenger’s action for personal injury while alighting from a street car held to sustain a finding that he fell as the result of an accident without negligence on either the part of himself or the defendant.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. <§=> 318.]

      2.Appeal and Error <@=>731 — Assignment of Error— Construction.
    In such action, and in view of such answer, an assignment of error in refusing to set aside the answer as being contrary to the answers to other questions 'did not raise any question that the jury’s findings as a whole were so conflicting as to make them insufficient to support a judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021; Dec. Dig. <@=> 731.]
    3.Appeal and Error <@=>730-^Assignment of Error — Sufficiency.
    An assignment of error in the court’s instruction on the measure of damages that it was misleading, confusing, and prejudicial was too general under the rules to be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3013-3016; Dec. Dig. <@=> 730.]
    4.Appeal and Error <3=>106¿G-Harmless Error — Instruction—Damages.
    In a passenger’s action for personal injury, an instruction that if, under the findings, plaintiff was entitled “to recover,” the measure of his damages would be as stated, while not approved as proper or necessary, was without injury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. <§=31064.]
    6. Carriers <@=>318 — Personal Injury — Question of Fact — Insufficiency of Eight.
    In a passenger’s action for personal injury while alighting from a street car, on the ground that the defendant failed to furnish a light at a station, where plaintiff’s evidence intended to show that the sole cause of his falling was the starting of the car, evidence held to show that any deficiency of light was only a remote incident, in no wise causing his fall.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. <@=>
    6. Appeal and Error <@=>927 — Presumptions —Submission of Issues to Jury.
    On plaintiff’s appeal from a verdict for defendant, in determining whether the court should have submitted an issue to the jury, the evidence on such issue will be taken at its strongest in favor of plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2912, 2917, 3748, 3758, 4024; Dec. Dig. <@=>927.]
    Appeal from District Court, Grayson County; W. J. Mathis, Judge.
    • Action by B. F. Smith against the Texas Traction Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    The action is by appellant against appel-lee for damages for alleged personal injuries claimed to have been sustained while a passenger on an interurban car. The grounds of negligence alleged in the petition are: (1) Failing to have or furnish a light at Willow Grove station, the night being very dark, to enable plaintiff and other passengers to clearly see how to alight from the car; (2) negligently causing the car to pass beyond the usual stopping place at the station without notifying plaintiff, and causing him in endeavoring to alight to fall at a place where the distance between the ground and the car step was far greater than at the usual stopping place; and (3) knowing that plaintiff was endeavoring to alight from the step of the car, negligently starting the car forward without notice to him, causing him to fall. The case was submitted to the jury on special issues, and the court on the findings and the evidence entered judgment in favor of ap-' pellee.
    Appellant entered the interurban car at Denison at 11:15 o’clock p. m. to go to Willow Grove station; his home being about 400 feet south of the station. The night was dark, and there was lightning and drizzling rain. The car reached Willow Grove station between 11:30 and 11:40 o’clock p. m., and stopped for the passengers to alight at a point beyond the usual and customary place for stopping the car. The distance from the step of the car to the ground at the place of stopping was, according to plaintiff’s evidence, between 3 and 5 feet. On conflicting evidence the jury made the findings that the car stopped and remained standing; that plaintiff had a reasonable time in which to get off before the train started, and the car was not operated and did not start while the plaintiff was on the step; that plaintiff was not thrown or caused to fall by the starting or jerking of the car; and that he did not sustain his injury by reason of the starting or jerking of the car, but that plaintiff fell in alighting from the ear when it was standing still, and his fall was accidental, resulting without negligence on the part of the traction company or the plaintiff himself.
    Randell & Randell, of Sherman, for appellant. Templeton, Beall & Williams, of Dallas, and Head, Dillard, Smith, Maxey & Head, of Sherman, for appellee.
   LEVY, J.

(after stating the facts as above). By the first assignment of error appellant contends that the answer of the jury to question 3 is against the undisputed testimony. It is not thought that the answer is a material fact affecting a judgment, in view of the other findings to the effect that appellant was not guilty of negligence. And, properly construing the answer of question 3 in connection with the answer to question 4, it is thought that the jury meant to find the full facts as follows: That at the time plaintiff was on the steps for the purpose of alighting he knew that the car had passed beyond the usual and customary place for stopping cars, but he did not know or discover that the ear had passed beyond the usual and customary place of stopping until he got upon the steps of the car.

The seventh assignment of error complains of the refusal of the court to set aside the answer of the jury .to question 16 and grant a new trial. The objection to the answer is that it is a finding against the preponderance of the evidence and contrary to the answers made to other questions. Question 16 reads:

“Was the fall sustained by plaintiff, if you find from the evidence he did fall, the result of an accident? In explanation of the above question you are instructed that by an ‘accident’ is meant that the fall, if any was sustained by plaintiff, resulted without negligence on the part of either the defendant or the plaintiff.”

The jury answered the question: “Yes.”

The conductor testified that the car came to a full stop, and he then saw the plaintiff get off the steps of the car; that plaintiff got off while the ear was standing still, and he did not fall from nor off the steps while the car was moving. Willson, a passenger, testified that he was to get off at the same station, and that after the car came to a standstill he saw plaintiff going to the steps to get off the car, but did not see plaintiff as he stepped on and from the lower step. After Willson alighted he, as testified, saw plaintiff in a crouching or douhled-up position on the ground, and he asked plaintiff, “What is the matter?” and plaintiff replied that he had “fallen.” Willson said that the ear did not move until after both plaintiff and he had entirely reached the ground. The jury made the findings that the car was standing still, and was not being operated, while plaintiff was on the steps, that he did not sustain injuries by being thrown or jerked from the car, and that the car remained standing for a reasonable time, and until after the plaintiff had gotten off the car, and that the plaintiff fell from the car when it was standing still. It is concluded that as the record is not without evidence to support the answer complained of, and that as the answer to question 16 is not in conflict with all the findings made by the jury, this court cannot pronounce the ruling of the trial court to be error. The assignment of error only presents the contention that this particular answer to question 16 is inconsistent with other questions, and does not reach to nor raise any question that the findings of the jury as a whole were so in conflict with each other as to make them insufficient to support a judgment. The assignment of error is therefore overruled.

The tenth assignment of error, insisting that the answers of the jury to the questions propounded disclose a prejudice on the part •of the jury towards plaintiff, is overruled.

The eleventh, thirteenth, and fifteenth assignments of error, respecting the instruction of the court on the burden of proof, do not, it is concluded, afford ground of reversal of the judgment.

The twelfth assignment predicates error in the instruction of the court upon the measure of damages. The objection to the charge that it was misleading, confusing, and prejudicial is too general to be, under the rules, considered. And the further objection that it was not proper to use words in reference to plaintiff’s “right to recover” is overruled as being without injury, though the use of such words in special issues is not approved as being proper and necessary. The instruction, as material, reads:

“If, under your findings of fact in this case,' plaintiff is entitled to recover, the measure of his damages will be [here follows the rule].”

The fourteenth assignment of error complains of the refusal of the court after request by appellant to submit to the jury for answer the questions of whether the defendant failed to have or furnish a light at Willow Grove station, and was such failure negligence proximately causing plaintiff’s injury. It is concluded that the court did not err, because under the evidence in the case it was not an issue of whether or not the having or not having a light at the station was the proximate cause of appellant’s falling from the car. The court should have so held, as he did, as a matter of law, under the evidence. The appellant himself testifies:

That the car stopped before he tried to get off of it; that he “got on the lower step and started to step down, but saw we were not at the station. The car overshot the station. When I discovered that, I looked around at the conductor. He was on the rear end. I heard the bell ring, and I saw I was not on the ground, and when I looked around at him, and just as I looked around at him, the car started. I had already overbalanced myself — the car starting— and that is when I fell. I had hold of the left handhold on the left-hand side with my left hand. I do not know how fast it started. It started fast enough to throw me, overbalancing me. I thought I was going to fall under the car, and I pushed myself as hard as I could to get away from the car. I would not have fallen if the car had not started, I would have gotten back on the car. * * * I had one foot on the step nnd was fixing to get off — one foot on the step and hold of the handhold. I saw I was not at the right place, and I started to get back on the car. * * When the car started, I suppose I had just one foot on the step. * * * I do not know how far the ear had gone after it started before my handhold broke loose from it. * * * It jerked me so hard I could not keep from falling.”

It thus appears from plaintiff’s own testimony that the sole cause, agency, or influence of his falling was the starting of the car and jerking his hand loose. Taking the evidence at its strongest in favor of appellant, any deficiency of light was only a remote incident, in no wise causing his falling from the car. Hilje v. Hettich, 95 Tex. 321, 67 S. W. 90.

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

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


author: HUFF, C. J.

text:
    COMMONWEALTH BONDING & CASUALTY INS. CO. v. BARRINGTON.
    (No. 546.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 7, 1914.
    On Motion for Rehearing, April 4, 1914.)
    1. Evidence <®^434 — Parol Evidence — Fraudulent Representations.
    In an action .to cancel the note given and to recover money paid on a stock subscription contract, which provided that no conditions or representations not contained therein should be • binding on the defendant company, on the ground of the fraudulent representations of defendant’s agents, their previous oral representation that the company would loan money to subscribers, inducing the contract, was inadmissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2005-2020; Dec. Dig. &wkey;434.]
    2. Corporations <&wkey;80 — Subscription and Payment eor Stock — Action to Recover— Sufficiency oe Evidence — Fraud.
    Evidence in a suit to recover the amount paid and to cancel a note for the balance due on a stock subscription contract on the ground of fraudulent representations of defendant’s agents inducing the contract, held insufficient to sustain the plaintiff’s burden of showing such fraudulent representations.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 244, 246-264, 1407, 1407% ; Dec. Dig. <&wkey;80.]
    3. Cancellation of Instruments <&wkey;4 — Grounds — Subscription Contract.
    If the promise of defendant company’s agent to loan plaintiff money was part of the agreement when plaintiff signed a stock subscription contract not containing such promise or obligation he should have sought to reform the contract alleging that it did not speak the agreement, and cannot maintain suit to cancel the contract.
    [Ed. Note. — For other eases, see Cancellation of Instruments, Cent. Dig. § 1; Dec. Dig. <&wkey;>4.]
    4. Corporations <&wkey;83 — Subscription Contract-Recovery op Payments — Pecuniary Loss.
    Where plaintiff in a suit to recover the payment made and to cancel his note for the balance due on his stock subscription contract, which were only collateral to the contract indebtedness, did not tender or offer to surrender his stock, he showed no pecuniary loss by any alleged fraudulent representations of defendant’s agent inducing the subscription contract that the company would loan him money, and was not entitled to relief, since the courts do not undertake to deal with the breach of moral obligations without a showing of pecuniary loss.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 328-336; Dec. Dig. <S=w83.]
    6. Fraud <&wkey;27 — Fraudulent Representations — Action for Damages.
    Fraudulent promises of defendant company’s agent to plaintiff to obtain stock subscription contract, not contained in the contract, to the effect that the company would loan plaintiff money, gave plaintiff an action for damages.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 8; Dec. Dig. <&wkey;27.]
    6. Fraud <&wkey;12 — Fraudulent Representations — Promise op Future Perpormance.
    A promise to perform some act in the future, although made by one party as a representation to induce another to enter into a contract, will not ordinarily amount to fraud, though subsequently the promise, - without any excuse therefor, is entirely unperformed.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 14; Dec. Dig. &wkey;>12.]
    On Motion for Rehearing.
    7. Corporations <&wkey;80 — Subscription Contract — Action to Cancel — Waiver.
    The fact that a corporation, to whose stock plaintiff had subscribed, paying part of the amount in cash and the remainder by note, was not organized as first agreed to among the subscribers, while a matter of which plaintiff could take advantage before his subscription had been accepted and acted on by the corporation, would not, in view of the public interest, permit him to defeat his subscription obligation, especially where he had participated to such an extent as would constitute a waiver of the terms of the subscription contract.
    [Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 244, 246-264, 1407, 1407%; Dec. Dig. <&wkey;>80.]
    Appeal from Hale County Court; W. B. Lewis, Judge.
    Suit by M. H. Barrington against the Commonwealth Bonding & Casualty Insurance Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Stephens & Miller, of Ft. Worth, and Cooper, Merrill & Lumpkin, of Houston, for appellant. Austin C. Hatchell, of Plainview, for appellee.
   HUFF, C. J.

The appellee, Barrington, brought this suit in the county court of Hale county, against appellant, the Commonwealth Bonding & Casualty Insurance Company, to recover the sum of $59 paid, with interest thereon, and to cancel a note for the sum of $350, dated December 1, 1910. It is alleged by the appellee that in August, 1910, and prior thereto, R. T. Stuart applied to appel-lee and sought to have him subscribe for stock in appellant’s company and for the purpose of inducing appellee to purchase said stock, represented in effect that as soon as organized the company would begin making loans to its stockholders; that arrangements had already been made by appellant whereby the said company would be in a position to make a loan to the appellee as soon as the charter could be secured. Upon the faith of such representations appellee entered into a written contract to subscribe for said stock, and that the representations were false and fraudulent and made for the purpose of inducing appellee to enter into said contract; that they were material and relied upon by the appellee, and he thereby induced to enter into said contract and to subscribe for stock in appellant company; that later, on the 1st day of December, 1910, Ben F. Allen approached the appellee and made substantially the same representations as did Stuart, and on that day appellee executed the note in question, together with the deed of trust, on certain real estate; that all the representations so made were false and fraudulent and made for the purpose of deceiving the appellee; that in truth and in fact the corporation was not organized under the laws of the state of Texas, and had no authority to mate loans and had no arrangements by which money could be secured to loan ap-pellee. It is charged that Stuart and Allen were the agents of the appellant and if they were not their acts and representations were thereafter ratified by appellant. The appellant, by answer, denied the allegations of ap-pellee and denied that Stuart and Allen were its agents or that it ever ratified their acts or representations; that they had no knowledge of any fraudulent representations, etc. The appellee introduced in evidence the following instrument:

Commonwealth Bonding & Accident Insurance Co.
Capital, $10,000. Surplus, $30,000.
Subscription to Capital Stock.
No. 162. Whereas, Stuart, Harkrider & Co., of Ft. Worth, Texas, are promoting the organization of a casualty, bonding and accident insurance company, to be incorporated in pursuance of the laws of the state of Texas under the name of Commonwealth Bonding & Accident Insurance Company, with an authorized capital stock of $300,000 paid up, and free from organization expenses, all in accordance with a printed prospectus, issued by them and delivered to me: and whereas, by their acceptance of this subscription, said Stuart, Harkrider & Co. agree to endeavor with all reasonable diligence to accomplish on or before December 31, 1910, the organization of said company, with capital stock fully paid as aforesaid, them to defray all expenses of organization and incorporation: Now therefore, I do hereby subscribe for ten one-tenth shares of the par value of $10 each of the capital stock of said Commonwealth Bonding & Accident Insurance Company, and agree with the said company and the said Stuart, Harkrider & Co. to pay therefor the sum of $400, as follows: The sum of $350 I agree to pay in money or securities satisfactory to the Insurance Department with 6 per cent, interest, to said Commonwealth Bonding & Accident Insurance Company, or its trustees (which goes to capital and surplus) at any time after September 1, 19Í0, immediately upon the receipt of notice from said Stuart, Harkrider & Co. that the capital stock has been subscribed in good faith in amount and at rates netting the company at least $200,000 of capital in the aggregate when paid. The remaining sum of $50 I agree to pay and do pay concurrently with this subscription to said Stuart, Hark-rider & Co. in consideration of their agreement heretofore recited and in lieu of any further or other contribution to expenses of organization and incorporating said company. No conditions, representations or agreements other than those printed herein shall be binding on Stuart, Harkrider & Co., or the Commonwealth Bonding and Accident Insurance Company.
Witness my hand this the 9th day of August, 1910. M. H. Barrington,
[Name of Subscriber.]

On the 1st day of December, 1910, appellee executed his note for the sum of $350, payable to the order of the Commonwealth Bonding & Casualty Insurance Company payable at its office in the city of Ft. Worth, Tex., as set out in its pleadings. The appellee also introduced copy of resolutions of August 27, 1912, which purport to have been passed by a meeting of the executive committee of the Commonwealth Bonding & Casualty Insurance Company, held at Ft. Worth, reciting in effect that there was dissatisfaction among the stockholders of the company who have been disappointed in not being able to get loans which they expected to secure, by reason of the fact that funds have not been available with which to meet the loan requirements of stockholders. In order to obtain the cordial support of the stockholders the committee is convinced that a large number of the stockholders favor a policy which will enable the company to meet the loan requirements of its stockholders, and the charter now meets the legal requirements for a general trust and money loaning business. It was therefore resolved to have its business in different lines in which it had been engaged theretofore underwritten upon the best terms obtainable, in such manner that the company’s guaranty funds could be taken down and made available as a loan fund, and thus discontinued the general casualty insurance and surety features theretofore engaged in, and adopting instead trust company features, as authorized by its present charter, which also includes the business of borrowing and loaning money. This resolution was sent by mail to the stockholders and one to the appellee, accompanied by a letter making statement similar to that included in the above resolution. On March 20,1911, at what is designated a special stockholders’ moeiing of the Commonwealth Bonding & Casualty Company, held in the Flat Iron Building, in Ft. Worth, Tex., and which appears to have been held under the following call:

“The Commonwealth Bonding & Casualty Insurance Company is now ready to file its charter and enter the field for business and to facilitate the execution of bonds in the transacting of a bonding business, as well as to cover some other features of a general casualty business, it is necessary to have a by-law passed, authorizing the president or active vice president to appoint from time to time, as the business of the company may demand, resident vice president, resident assistant secretaries, an attorney in fact, to represent and to act for and on behalf of the company. For this purpose and for the further purpose of deciding under what state laws this company shall incorporate a meeting of the stockholders is called by the president and executive committee, to- be held in the home office of the company in the Flat Iron building, in Ft. Worth, Tex., at 10 o’clock a. m., the 20th day of March, 1911. All the stockholders are requested to be represented either in person or by proxy. Should it not be possible for you to be present, kindly sign one of the two forms of proxies which are inclosed herewith. One authorizes the names selected by the executive committee to act, and the other is in blank and can be filled in as you may select.”

At this meeting, it appears that a majority of the stockholders were present or represented by proxies, and by a unanimous vote : of the stockholders a by-law was added to the ! effect that the president or vice president may from time to time appoint a resident vice president, assistant secretary and attorney in fact, to represent and to act on behalf of the company, giving the attorney in fact power to execute bond, recognizance, and contracts of indemnity, etc. At that meeting they also passed the following resolution:

“That the executive committee of the hoard of directors of the Commonwealth Bonding & Casualty Insurance Company be and they are hereby authorized and instructed to incorporate said company under the laws of whatsoever slate or territory that they may deem best for tbe interest of tbe company.”

It further appears from the record that on the same day the executive'committee reported back that they had decided it to be for the best interest for the stockholders to incorporate under the laws of the territory of Arizona. On March 24, 1911, articles of incorporation were filed with the territorial auditor of Arizona, and in June, 1911, the commissioner of insurance and banking for the state of Texas issued a permit to appellant, authorizing it to do business in tbe state as a foreign corporation. The testimony of appellee is to the effect that Stuart and Allen made representations as alleged, that he did not secure a loan, and that he made formal applications therefor. There is no evidence showing that he offered to secure such a loan on real estate or otherwise. The evidence further shows that he received notice of the meeting for March 20, 1911, and that he sent his proxy to some man at Canyon City, the name of whom is not disclosed by the record. It is not shown whether his stock was voted at that meeting or not. The testimony is that Ben P. Allen delivered the stock to appellee December 1, 1910, when the note and deed of trust were executed. The certificate of stock is not copied in the record on this appeal. It appears to have been offered in evidence and evidently omitted, and where called for in the statement of facts the contract of subscription is copied in its place. The record does not show whether stock was issued as paid up stock or not. The trial court submitted the case on the issue as to the representations alleged to have been made by Stuart and Allen. The jury found a verdict as prayed for by appellee, and tbe court rendered judgment canceling the note and in favor of appellee against appellant for the sum of $50, which had been paid to Stuart, Harkrider & Co. at the time of executing the contract of subscription.

This is not a suit to caucel the contract of subscription for stock or the certificate of stock issued, hut is simply a suit to cancel the note and recover the money paid.

The appellant assigns as error the action of the trial court in overruling its general exception and in refusing specially requested charge, asking that the trial court instruct a verdict for the appellant.

It is urged that the representations made before the contract in question was executed were inadmissible because it varied the terms of the contract. The contract has a clause:

“No conditions, representations or agreements other than those printed herein shall be binding * * * on the Commonwealth Bonding & Accident Insurance Company.”

The appellee testified:

“Before I executed the instrument [the subscription contract] Mr. Stuart told me that the purpose of the company was to procure money from the East to loan to its stockholder's, and that the company had already made arrangements in the East whereby it would be able to procure money to loan to its stockholders. This was the inducement that caused me to execute the contract. I believed such representations and statements. I would not have executed the contract had not I relied upon the representations and statements made by Stuart at the time and before the execution of the contract. At the time I executed the agreement above described, I paid R. T. Stuart the sum of $50 and later I gave Ben E. Allen my note payable to the company for $350. I subscribed for tbe shares of stock in the company with the view of getting a loan to get some obligations that I had carried by such company. * * * Allen took the note and deed of trust in December, 1910, or January, 1911, and at the time I told him about the notes that I had on lands owned by me, and he told me, after the company was organized, they would be in a position to take care of such notes for me. At the time he talked with me in December, or January, the company was not then organized, and I understood was to be organized thereafter.”

The petition in this case does not seek to reform the contract on the ground of fraud or allege that as drawn it was not the contract agreed upon, but only that it was procured through fraudulent representations which induced appellee to sign it. It is insisted by appellant that appellee should not have been permitted to prove any other agreement or promise than those contained in the contract itself for the reason that the recitals in the contract that there were “no conditions, representations or agreements other than these” contained therein. We were first inclined to believe the proposition presented by appellant to be sound, but under the authority of U. S. Gypsum Co. v. Shields, 106 S. W. 725, and affirmed by the Supreme Court, 101 Tex. 473, 108 S. W. 1165, in which a like provision was contained in an order, in which it was held such provision did not preclude proof of fraudulent representations inducing the contract, and that such proof did not vary the terms of the contract. This case induces us to conclude otherwise. We might note, however, that the grounds set up to avoid the contract in that case were facts outside the contract and did not purport to be part of the promise or agreement, but were only representations that certain contractors would use the material being sold in the construction of government buildings; and it further appears that the cement ordered by the dealer was for the purpose of sale, and in that particular that case is distinguishable from tbis. The promise by Stuart and Allen that as soon as the company was chartered it would loan money was in effect an agreement. If it should appear that the promise was the consideration for the subscription, upon another trial the case of Moore v. Gross would control. There is no proof that Stuart, Harkrider & Co. had not in fact made arrangements in the East to procure the money, or that their promise to make the loan was not a bona fide promise at the time it was made. It is possible or probable that the company was itself disappointed in failing to obtain money to loan to stockholders. In this case appellee asked the court to relieve him from the payment of his note, and it therefore rested upon him to show fraud in such representations. This we do not think the evidence produced by him established. If the promise to loan ap-pellee money was part of the agreement at the time the contract was entered into, then we think appellee should have sought to reform the contract according to the agreement, alleging that it did not speak the agreement through fraud or mistake. This is not done, and there is no evidence of deceit used to procure appellee’s signature to a contract to which he had not agreed. He admits that he read it over before signing, and he must have known then the agreement to loan him money had been omitted from the writing. The contract signed by him is that there was no other agreement than that contained in the writing. Shall he be permitted to vary the terms or add other terms in the face of the express stipulation that there was no other agreement before or at the time of signing the writing? “Whatever may be said upon the subject prior thereto, it is an elementary principle, that when parties reduce a contract to writing, they are presumed to embody in it the terms and stipulations as finally agreed to, and upon and to which they mutually contract.” Wooters v. Railway Co., 54 Tex. 294. The instrument termed “subscription contract” is more properly a proposition on the part of appellee to appellant to take stock in the corporation when formed, and until it was accepted it was subject to withdrawal by him. It would appear that in making such proposition he should have embodied all the terms and conditions upon which he would take stock and pay for the same.

In this case appellee shows no pecuniary loss by representations. He subscribed for the stock, and by his allegations he does not tender or offer to surrender it. He was liable under his proposition to pay for the stock. The note taken and secured was only collateral to the debt already incurred and which was intended evidently to evidence and secure that indebtedness. He has not shown that he has lost anything by the failure of appellant to loan him the money. If the promises of Stuart and Allen under the evidence! be considered as representations fraudulently made, they belong to that class of fraud for which there is no redress in courts because there was no pecuniary injury resulting from them. Courts do not undertake to deal with the breach of moral obligations. Moore v. Cross, 87 Tex. 557, 29 S. W. 1051.

If, however, the alleged promises were the consideration and had been inserted in the contract, appellee would be required to resort to his action for damages, if any. Moore v. Cross, supra; Mayer v. Swift, 73 Tex. 367, 11 S. W. 378; Railway v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39.

Again, it is said by the courts; “ordinarily a promise to perform some act in the future, although made by one party as a representation to induce the other to enter into the contract, will not amount to fraud in legal acceptation though subsequently the promise is without any excuse entirely broken and unfulfilled. Bigham v. Bigham, 57 Tex. 238; Railway v. Titterington, supra.

On this appeal we have concluded that it is not necessary to discuss the question of the agency of Allen and Stuart or the effect in accepting by appellant the contract obtained by them from appellee. There is a suggestion by the pleadings and by appellee on appeal that the contract made by the ap-pellee, by which he subscribed for stock in a corporation to be formed under the laws of Texas and that appellant corporation was created under the laws of Arizona. This issue does not appear to have been urged in the court below, and is not sufficiently developed in this record to enable us to express an opinion. There is a suggestion that the note is void as being in violation of article 12, § 6, of the Constitution. Without discussing this question further than to say from this record we are unable to say that the note appears to have been given in payment of stock issued to' appellee by appellant. These matters we think if they are issues should be fully developed. It should be noted that appellee, by his pleading, does not seek to cancel his subscription contract, but only the note given, doubtless to evidence and to secure the payment of his subscription. We do not think under the issues presented by the trial court the evidence sufficient to support the verdict and judgment.

The case should be, and is, reversed and remanded.

On Motion for Rehearing.

The appellee contends in this case there is no evidence justifying us in finding that appellee made no application to borrow money from appellant corporation. True he testifies he made a formal application to borrow from Ben B1. Allen when Allen took his note. At that time the corporation was not in existence. Its charter had not even been applied for, and his own evidence shows he made no application for a loan after it was incorporated and when it could act as a corporation. The certificate of stock which appellant claims to have tendered was issued long before there was any company in existence, and until it was in existence we do not see how appellant could have issued to him stock therein.

The fact that the corporation was not ‘organized as first agreed to among the subscribers, was a matter of which appellee could take advantage before his subscription was accepted and acted on by the corporation, but we think on the ground of public interest, he will not now be permitted to defeat his obligation as a subscriber. Especially is this trufe if he has so participated and to such an extent as will constitute a waiver 'of the terms of the subscription contract. He may or he may not be estopped, according as the facts shall develop; but he and his associates, on the face of the record, have induced the state by their subscriptions, represented as bona fide, to grant to the corporation existence and certain franchises, and for aught that appears from this record, may have induced third parties to deal with the corporation as such, or to lend it money and take its obligation upon the faith of the subscription by its stockholders. It would manifestly be unjust to permit stockholders to recover the money paid and to defeat their subscription, when, by their acts, they have brought into .existence the corporation, not only to third parties, but also to their associate subscribers. Cook on Corporations, §§ 88, 183 to 180.

Appellee testifies the promoters promised that the corporation, when organized, would lend him money if he subscribed for stock. If the stockholders do not pay their subscriptions, where did appellee expect it to get the money? It certainly would not fall like manna from heaven. The note and the deed of trust may be merely to secure appel-lee’s subscription and not a payment for stock. We declined to discuss this question in the original opinion because not fully developed in the trial court.

We see no reason for changing our views in this case as heretofore expressed, and the motion will be overruled.
      . ®=jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    BULLOCK v. CRUTCHER.
    (No. 1517.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 18, 1915.)
    1. Appeal and Ebkob <&wkey;854 — Review — Right Decision on Wkong Ground.
    Where the judgment is right on the case made by the pleadings and evidence, the fact that the trial court may have based it on the wrong ground is no reason for reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3403, 3404, 3408-3424, 3427-3430; Dec. Dig. &wkey;>854.]
    2. Vendob and Purchases <&wkey;38 — Remedies oe Vendob — Rescission—Featjd.
    In a- vendor’s suit to cancel a deed and to recover the land, where it appeared that he took in payment a note payable to the purchaser and indorsed by him “without recourse,” secured by a mortgage on a horse sold by the purchaser to the maker, and that the purchaser knew that the horse had an incurable disease of which the vendor was ignorant and concealed it, the vendor, who would not have accepted the note had he known that the mortgage security was worthless, was entitled to cancel the deed and recover the land, notwithstanding the note was so entirely valueless as to justify judgment in his favor on the ground of no consideration for his deed.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 61-65; Dec. Dig. <5&wkey; 38.]
    3. Featjd <&wkey;17 — Misrepresentations—Concealment.
    Each party to a contract is bound to communicate to the other his knowledge of material facts, where he knows the other party is ignorant thereof, and they are not open or equally within his observation, and his concealment of such fact is as much a fraud as if the existence of the fact were expressly denied or the reverse of it expressly stated.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 15; Dec. Dig. &wkey;>17.]
    Appeal from District Court, Franklin County; J. A. Ward, Judge.
    Suit by W. C. Crutcher against G. B. Bullock. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    In June, 1914, appellee sold and conveyed certain land to appellant, taking as payment therefor a note for $100, made by one McGuire February 16, 1914, payable to the order of appellant November 15, 1914, and indorsed by him “without recourse.” The note was for the purchase price of a horse sold by appellant to McGuire. To secure its payment McGuire, at the time it was made, executed and delivered to appellant a mortgage on the horse and on two bales of cotton, which he expected to grow during said year 1914 on land owned by one Burns. The suit was by appellee to cancel the deed he made to appellant and to recover the land. It was commenced November 23, 1914. As grounds for the relief he asked, appellee alleged that appellant represented to him that the horse covered by the mortgage given to secure the note was a sound one, and worth more than the amount of the note; that he relied upon the representation, and thereby was induced to accept the note in payment for the land; that the truth was that the horse was unsound and valueless. Ap-pellee further alleged that McGuire, the maker of the note, was insolvent, and that the note and the security given therefor were worthless. In his petition appellee tendered the note to appellant. The trial court found as facts that McGuire was a negro tenant farmer, that he was insolvent, and that -the note was of no value. The court further found that the horse covered by mortgage made to secure the note was a “locoed” horse, and valueless “for any practical purpose to which horses are customarily and commonly put”; that the disease the horse suffered from was the latent one; and that appellee knew of the condition of the horse at the time he traded the note to appellant and failed to tell him about it. Appellee testified that he did not consider the mortgage, so far as it was on the cotton to be grown by McGuire, to be of any value, because “landlords in this country usually had the cotton (grown by their tenants) all used up in supplies,” and that in conveying the land to appellant he “depended solely on Mr. Bullock’s representation of the value of the security on the note, and that was the horse.” Appel-lee further testified:
    “He [appellant] said the horse was well worth the $100, a young horse, 6 years old, 16 hands high, and in good shape. I would not have executed the deed otherwise. If I had known the true condition of the horse, I would have not executed the deed.”
    Appellant, testifying as a witness, denied that he made to appellee any representation as to the value of the horse, but further testified that he knew, at the time he sold the horse to McGuire and traded the note to appellee, that the horse was a “locoed” horse, and said nothing to either McGuire or appellee about the fact. It appeared from the testimony that a “locoed” horse was one that had become crazy as a result of eating a poisonous weed, and that the affection was incurable. The appeal is from a judgment granting to appellee the relief he sought.
    B. O. Shurtleff and H. L. Wilkinson, both of Mt. Vernon, for appellant. L. W. Davidson and R. T. Wilkinson, both of Mt. Vernon, for appellee.
   WILLSON, C. J.

(after stating the facts as above).

From the trial court’s findings of fact and conclusions of law it appears that he was of the opinion the note was wholly worthless, that the deed to appellant therefore was without a consideration, and on that ground granted to appellee the relief he sought. The finding that the note was worthless was based on evidence showing McGuire, its maker, to be Insolvent, and the horse mortgaged to secure the note to be “locoed,” and therefore practically valueless, and. evidence showing, as the court thought, the security afforded by the cotton mortgaged to be worthless because of the fact that McGuire’s landlord had a lien on the cotton for more than its value, which was entitled to priority over the lien of the mortgage. It is insisted that the testimony was not -sufficient to support a finding, either that the horse was valueless, or that the security furnished by the mortgage on the cotton was of no value. In the view we take of the case it is not necessary to determine whether this contention should be sustained or not, for we are of opinion that it sufficiently appears from the record that if ap-pellee was not entitled to the relief given to him on the ground assigned by the court, he was entitled to it on the ground of fraud practiced on him, whereby he was induced to make the conveyance of the land. If the judgment is right on the case made by the pleadings and evidence, the fact that the trial court may have based it on the wrong ground is not a reason why it should be reversed. Green v. Gross, 79 Tex. 130, 15 S. W. 220.

The trial court found that the disease from which the horse suffered constituted a latent defect. He further found that appellant knew the condition of the horse. We think it sufficiently appears from the record that appellee did not know of the defect, and that appellant knew he did not know of it. Under such circumstances we think it should be held that it was appellant’s duty to advise appellee that the horse was a “locoed” one. That the horse suffered from an incurable (as a veterinary doctor testified) disease which rendered him practically valueless certainly was a fact material to appellee in determining whether he should accept the note in payment for the land or not; for the security furnished by the mortgage for the payment of the note necessarily was diminished to the extent that the disease affected the value of the horse. It further appearing without dispute in the testimony that appellee would not have accepted the note for the land had he known that the security therefor, so far as it depended upon the horse, was practically valueless, it seems to us a case was presented which entitled appellee to the relief he obtained, notwithstanding it may be true that the note was not so entirely valueless as to justify judgment in his favor on the ground that there was no consideration at all for the deed. The rule has been stated to be that each party to a contract—

“is bound in every case to communicate to the other his knowledge of material facts, provided he knows the other to be ignorant of them and they be not open and naked or equally within the reach of his observation.” 14 A. & E. Eney. Law, p. 73.

And by another writer as follows:

“If a party conceals a fact that is material to the transaction, knowing that the other party is acting on the assumption that no such fact exist, the concealment is as much a fraud as if the existence of the fact were expressly denied or the reverse of it expressly stated.” 20 Cyc. pp. 16, 17. And see Smith on Fraud, §§ 9, 10, 11; Rice v. Silverston, 170 Ill. 342. 48 N. E. 969; Elliott v. Clark, 157 S. W. 437; Gordon v. Irvine, 105 Ga. 144, 31 S. E. 151; George v. Taylor, 55 Tex. 101.

The judgment is affirmed.
      &wkey;»Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    BECK v. ARKANSAS MOTOR CO.
    (No. 1531.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 18, 1915.)
    1. Justices oe tiie Peace &wkey;>206 — Certio-rari — Motion to Dismiss — Time—Statutes.
    Rev. St. art. 754, provides that a motion to dismiss a writ of certiorari for want of a sufficient bond shall be made at the first term of the court to which the writ is returnable; article 2399 provides that, whenever a writ of certiorari to remove the cause to the county court is served on a justice, he shall immediately make out a certified copy of the entries on his docket, etc., and transmit it, with the original papers, to the clerk of the county court; and article 2397 requires that such transcript shall, if practicable, be transmitted on or before the first day of the next term of the county court. A writ of certiorari was served on a justice October 15th, three days before the convening of the next October term, one of such days being Sunday, and the transcript was filed on October 20th. Held, that the writ was returnable at the following January term, so that the motion to dismiss the writ was properly made at that term.
    [Ed. Note. — Eor other cases, see Justices of the Peace, Cent. Dig. §§ 800-806; Dec. Dig. &wkey;>206.]
    2. Justices oe the • Peace <&wkey;206 — Certio-rari — Motion to Dismiss.
    Where a motion to dismiss a writ of cer-tiorari was contested, it would not be assumed that the county court’s failure to pass on it at the term to which it was returnable was due to the appellant’s failure to call it up for action.
    [Ed. Note. — Eor other cases, see Justices of the Peace, Cent. Dig. §§ 800-806; Dec. Dig. <&wkey;>206.]
    Error from Bowie County Court; Lee Tid-well, Judge.
    Action by the Arkansas Motor Company against Dr. E. L. Beck. Judgment for plaintiff was rendered in the justice court, and defendant procured a writ of certiorari, from the dismissal of which, on motion, he brings error.
    Affirmed.
    Turner, Graham & Smitha, of Texarkana, for plaintiff in error. Joe Hughes, of Texar-kana, for defendant in error.
   HODGES, J.

On July 30,1914, the defendant in error recovered a judgment in the justice court of precinct No. 1 of Bowie county against the plaintiff in error for sum of $147.-55. In October following the plaintiff in error applied for and procured a writ of cer-tiorari, which was served upon the justice of the peace on October 15th. The amount of the bond was fixed by the county judge at $300, but the bond actually filed by the plaintiff in error was the sum of $147.55, the amount of the judgment. The next term of the county court convened on the 18th of October. The transcript was filed in that court by the justice of the peace on the 20th of October, the third day of the term. The record does not advise us when the citation was served upon the defendant in error. The next succeeding term of the county court convened on the 25th of January, 1915. On that day the defendant in error made a motion to dismiss the writ of certiorari, because of the defect in the bond and other grounds not necessary to discuss. During the latter part of that term the plaintiff in error filed a motion to strike out the motion to dismiss because it came too late. Eor some reason not explained by the record the court took no action upon either motion at the January term, but at the April term the motion to dismiss the certiorari was sustained. This writ of error is prosecuted from that order, and it is insisted that the court erred in sustaining the motion to dismiss, because it was not filed and acted upon at the October term.

Article 754 of the Revised Civil Statutes provides that motion to dismiss the writ of certiorari for want of sufficient cause appearing in the affidavit, or for want of a sufficient bond, shall be made at the first term of the court to which the certiorari is returnable. A failure to make the motion to dismiss at that term will be construed as a waiver of those defects. The question before us is: Was this writ returnable to the October term of the county court? The return term of a writ of certiorari is that term when all the parties are brought within the court’s jurisdiction and it has the power to finally dispose of the case. In order to confer that judicial power it is essential, under our system of practice, that the transcript should be filed on or before the first day of the term and that legal notice be given to the adverse party. Article 2399, under the title (regulating appeals from justice courts, provides that:

“Whenever a writ of certiorari to remove any cause from the justice’s court to the county court shall be served on any justice of the peace, it shall be his duty immediately to make out a certified copy of the entries made on Ms docket, and of the bill of costs, as provided in case of appeals in article 2396, and transmit the same, together with the original papers in the cause, to the clerk of the county court in the manner and within the time prescribed in that and the succeeding article.”

The succeeding article referred to is article 2397, which reads as follows:

“Such transcript and papers shall, if practicable, be transmitted to the clerk of the county court on or before the first day of the next term of such court; but, if there be not time to make out and transmit the same to the first term, they may be so transmitted on or before the first day of the second term of the. court.”

The record shows that only two days intervened between the service of the writ upon the justice of the peace and the convening of the county court, and one of those days was evidently Sunday. It would be ignoring the requirements of notice provided for by the statute in eases of this character to call the October term to which the transcript was returnable. The failure to file the transcript from the justice court on the first day of the term had the effect of making the certiorari returnable to the next succeeding term, which convened on the 25th day of January, the time when the motion to dismiss was filed. If a justice of the peace can, by filing his transcript on the third day of a term, make that the return term, he could accomplish the same result by filing it at any subsequent day,. even though it he the last day of the term.

In view of the fact that this motion was contested, we cannot assume that the failure of the county court to pass upon it at the January term was due to the failure of the defendant in error to call it up and present it for action.

The judgment of the county court will be affirmed.
      «gsxoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    FOUTZ & ZINKLER v. WESTERN PICTURE FRAME CO.
    (No. 485.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 2, 1915.)
    1. Evidence <&wkey;197— Handwriting — Comparison op Signature.
    In an action for goods sold, where the defendant denied having ordered the goods or having signed the order sued on and put in evidence, a letter written by one of the defendants and a bill of lading with his signature, both pertinent to issues involved and not raising any collateral issue, were properly admitted, because not within the rule disallowing the use of a writing as a standard of comparison when not competent evidence upon some other issue in the case.
    Püd. Note. — For other cases, see Evidence, Cent. Dig. §§ 681, 681%; Dec. Dig. &wkey;197.]
    2. Sales &wkey;>52 — Action foe Price — Sufficiency of Evidence.
    Evidence, in an action for the price of goods sold, where defendant denied having ordered the goods or having signed the contract sued on and put in evidence, held, insufficient to sustain a judgment for plaintiff.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 118-144, 1045; Dec. Dig. &wkey;52.]
    'Appeal from El Paso County Court; Adrian Pool, Judge.
    Action by the Western Picture Frame Company against 'Foutz & Zinkler. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    A. W. Norcop, C. W. Croom, and C. M. Wilchar, all of El Paso, for appellant. Loom-is & Knollenberg and J. D. Hubbard, all of El Paso, for appellee.
   HARPER, C. J.

This suit was filed by the Western Picture Frame Company for $205, which is alleged to be the reasonable value and the contract price of certain pictures alleged to have been shipped and delivered to appellants, Foutz & Zinkler, pursuant to a written contract. Foutz & Zinkler denied that they ordered the goods, and denied, under oath, signing the contract sued on and introduced in evidence. The cause was tried by jury and resulted in verdict for plaintiff for $205, judgment entered accordingly, from which this appeal is perfected.

The letter admitted to have been written by defendant Foutz and the bill of lading with the signature, admitted to have been written by Foutz thereon, were properly admitted in evidence, because they do not come within the rule which disallows the use of a writing as a standard of comparison when not competent evidence upon some other issue in the case, because both were pertinent to issues involved in the case and in no wise tended to raise any collateral issue. Smith v. Caswell, 67 Tex. 567, 4 S. W. 848; section 556, Jones’ Blue Book on Evidence, and cases there cited.

The first, second, third, and fourth assignments, being directed to the same matters referred to, are overruled.

Assignments 5, 6, and 7, urge that this cause should be remanded for a new trial because the verdict of the jury is against the weight and contrary to the preponderance of the evidence. While the statement of facts is meager in the extreme, we take it that it is a fair statement of all the evidence adduced upon the trial upon the controlling issue raised by the defense, to wit, the execution of the order for the pictures relied upon by plaintiff as the basis of its cause of action. It contains very slight, if indeed any, evidence of probative force tending to prove that either of the partners signed the order, or that they authorized any person else to do so.

The order for the pictures was sent in to plaintiff by its traveling salesman, one Bunt-man. They were shipped to the defendants and delivered by the railway company to defendants. Upon discovering that the pictures were not such as were ordered, being more expensive, defendant Foutz, of the firm, immediately reshipped them to the plaintiff, appellee. It will be seen from this brief statement that the sole question to be determined by the jury was:

“Was the order, calling for the class of pictures shipped relied upon by appellee, signed by either of the partners or authorized to be signed by them?”

Each of the defendants testified that he did not sign it; no witness testified that either of them were seen to sign it; and the sole evidence in the record that it was signed by either of the defendants is the signature in evidence to be compared by the jury and that of witness Russell Rokahr, which, copied verbatim from the statement of facts, is as follows;

“Russell Rokahr, on behalf of plaintiff, testified as follows: That he was then and had been for the last three or four years employed by the Rio Grande Valley Bank & Trust Company as one of its tellers, and that he was qualified for passing on the genuineness of signatures; that Foutz & Zinkler had an account at the Rio Grande Valley Bank & Trust Company, and that there was at said bank a signature card showing the official signature of Foutz & Zinkler upon which checks against said account were to be paid; that he did not know who signed the signature card of F'outz & Zinkler at said bank, and that he had never seen the defendant Eoutz sign the name of Eoutz & Zinkler. Plaintiffs then submitted the written order sued upon, marked ‘Exhibit A,’ to said Rokahr for comparison with the signature signed by the said Eoutz on the blank piece of paper in open court and for comparison with the signature of said Eoutz & Zinkler upon the bill of lading and the letter, and plaintiff’s counsel asked the said Rokahr if in his opinion the signature to the written order was the genuine signature of Eoutz & Zinkler. Said Rokahr stated that if a check had been presented to him in his capacity of teller at the Rio Grande Valley Bank, bearing the name of Eoutz & Zinkler as it appeared upon the written order marked ‘Exhibit A,’ he would have paid the cheek. Upon cross-examination, the said Ro-kahr’s attention being called to the fact that the admittedly genuine signatures of Eoutz & Zink-ler, as they appeared upon the slip of paper signed by the said Eoutz in open court and upon the letter and bill of lading, had appended thereto the initial ‘E’ or the initials ‘C. F.,’ in each instance, then stated that if a check had been presented to him in his capacity as teller of the Rio Grande Valley Bank with the name of Foutz & Zinkler signed thereto as it appeared upon the written order, marked ‘Exhibit A,’ he would have sent such a check back for the reason that the signature was ‘incomplete.’ Upon redirect examination, the said Rokahr then stated, as he had upon his direct examination, that he believed he would have paid such a check if it had come to him bearing the name of Eoutz & Zinkler written as it was upon the written order marked ‘Exhibit A.’ ”

In addition to the testimony of the two defendants denying the signature, appellants introduced three witnesses, who qualified as experts, who testified that the signature upon the order in their opinion was not the same as those admitted to be genuine, and gave their reasons for the opinions expressed. It is also notable that there is no testimony from appellant’s salesman Buntman, who It is charged took the order, who certainly could have testified whether in fact the order was signed by Foutz as it purported to be.

It cannot consistently be held that such evidence is sufficient to be the basis of a judgment for money. If the expert opinion of the witness Rokahr had been positive and unqualified, which it was not, in view of all the evidence in this case, it would be weak and uncertain; but, in the form in which it appears in the statement of facts, it is not a positive opinion that the signature to the order is genuine, and is entitled to slight, if any, weight. The statement that “he would have paid the check” is not equivalent to stating that in his opinion the signature is genuine. The judgment is alone supported by a comparison of signatures by the jury.

The eighth and ninth assignments, complaining of certain remarks of the court in the presence of the jury and of the court communicating with the jury outside the courtroom, do not appear to be error, but, if they be technically so, will not likely occur upon another trial.

Because the proof is manifestly insufficient to sustain the verdict, the judgment must be reversed and remanded, and it is so ordered.
      <@=a>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes