author: HIGGINS, J.

text:
    KANSAS CITY, M. & O. RY. CO. OF TEXAS v. OATES.
    (No. 540.)
    (Court of Civil Appeals of Texas. El Paso.
    April 13, 1916.
    Rehearing Denied May 18, 1916.)
    1. Appeal and Erkor <§=^1040(10) — Review —Harmless Error.
    In an action for the killing of a cow, where the petition generally averred negligence and 1 recovery was based on the failure of the engineer to maintain a proper lookout in approaching the crossing, defendant was not harmed by the overruling of its special exception complaining of the petition’s failure to specify the negligence complained of, as the engineer was present and testified to the lookout maintained therefor under rule 62a (149 S. W. x), and the error must be disregarded.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4098, 4108; Dec. Dig. <©=> 1040(10); Pleading, Cent. Dig. §§ 2S4, 400.]
    2. Appeal and Error <©=>934(2) — Presumptions — Special Verdict— Sufficiency.
    Under Rev. iSt. 1911, art. 1985, declaring that upon appeal or writ of error, an issue not submitted and not requested by a party shall be deemed as found by the court in such manner as to support the judgment, provided there be evidence to sustain such finding, the failure of the jury, in an action against a railroad company for the killing of a cow, to find that the failure of the engineer to keep a lookout was the proximate cause of the injury, is no ground for objection, where the evidence warranted the conclusion, for it will be presumed that the court so found.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3777; Dec. Dig. <©=>934(2).]
    3. Appeal and Error <©=>1068(5) — Harmless EteitoR — Instructions—Refusal.
    In an action for the killing of a cow at a railroad crossing, where, in response to a special issue as to whether the engineer of the train used ordinary care on approaching the crossing, in looking out for any obstruction on or near the crossing, the jury found that the engineer did not use ordinary care, the refusal of a requested charge that the burden of proof was on plaintiff to show by a preponderance of the evidence that the employes of the railroad company were negligent in killing the cow was not error.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 4230; Dec. Dig. <§=>1068(5);. Trial, Cent. Dig'. § 475.]
    4. Railroads <§=>447(3) — Killing Animals— Instructions — Burden op Proof.
    A requested charge that the burden of proof was upon plaintiff by a preponderance of the evidence that the employes of the defendant railroad company were negligent in striking and killing his cow is incomplete, and may be refused for that reason.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1645; Dec. Dig. <©=>447 (3).]
    5. Appeal and Error <©=>216(2) — Instructions — Request.
    Where the case was submitted on special issues, a party desiring instructions defining the terms used must .request such instructions, or he cannot complain of failure of the court to give them.
    [Ed. Note. — For other cases, see Appeal and Error, Dec.Dig. <©=>216(2); Trial, Cent. Dig. § 628.]
    6. Appeal and Error (<©=>1070(2)1 — Special Verdicts — Answers.
    In an action tried on special issues, the refusal of the court to strike an answer to an issue is no ground for reversal, though the answer was not responsive where it was immaterial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4232, 4233; Dec. Dig. <©=> 1070(2).]
    7. Trial <©=>352(1) — Special Verdicts — Special Issues.
    In an action tried on special issues, the refusal of a special issue which was on the weight of the evidence was argumentative, and was immaterial, was not error.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. § 840; Dec. Dig. <©=352 (1).]
    8. Evidence <©=>18 — Judicial Notice —Attorney’s Fee.
    In an action for the killing of a cow begun in justice court, appealed to county court, and finally appealed to the Court of Civil Appeals, the court may take judicial notice that an award of $15 as attorney’s fees was not excessive.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig.. § 22; Dec. Dig.' <⅞=>18.]
    Appeal from Pecos County Court; Howell Johnson, Judge.
    Action by J. S. Oates against tbe Kansas City, Mexico & Orient Railway Company of Texas begun in justice court and appealed to county court. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    H. IS. Garrett, of San Angelo, and Williams & Jackson, of Ft. Stockton, for appellant. R. D. Blaydes, of Ft. Stockton, for appellee.
   HIGGINS, J.

This is an appeal from a judgment of the county court of Pecos county for $75 damages resulting from the death of a cow killed by one of appellant’s trains and for an attorney’s fee of $15. The ease originated in the justice court. The case was tried before a jury and submitted upon special issues. Many issues, or rather eviden-tiary facts, were submitted and found, and in disposing of tbe appeal we will state sucb findings only as may be material to a proper consideration of the various assignments.

The animal was struck by a train running at a speed of about 30 miles an bour at an open private crossing in tbe inclosure and pasture of appellee. The right of way was fenced upon either side of the crossing. The crossing was put in for the benefit of appel-lee. The jury found: That the engineer did not exercise ordinary care in approaching the crossing, and did not use “ordinary care in looking out as to whether or not there was any obstruction on or near tbe crossing." That he had proper control of the train as it approached the crossing. That the cow was about 25 feet from the track when it was first discovered by tbe engineer,, and he could have discovered it earlier by the use of ordinary care. He could have stopped his train in 400 yards. By the use of ordinary care, a person situated as was the engineer for one mile could have seen the cow on or near the crossing. The cow was about 80 yards from tbe track when she could have been first seen by the engineer. The engine was about 150 yards from the crossing when the cow was first discovered by the engineer. That the engineer was negligent at the time and place of injury to animal by his failure to keep a proper lookout.

Plaintiff in his .petition alleged in general terms the negligence of the defendant, and error is assigned to the.action of. the court in overruling a special exception complaining of the failure to particularly specify the negligence complained of. Under the findings of the jury recovery was properly allowed, based upon the failure of the engineer to maintain a proper lookout in approaching the crossing. The engineer, whose duty it was to maintain the lookout, was present and testified, so the defendant was not deprived of a proper opportunity to meet the issue of negligence raised by the evidence. The erroneous action of the court in overruling the exception thus becomes harmless, and constitutes no ground for reversal. Rule 62a (140 S. W. x).

The second and third assignments question the sufficiency of the evidence. They are overruled. The engineer had an open and unobstructed view for a mile before he reached the crossing, and the jury was warranted in finding that he failed to maintain a proper lookout. It is true there is no finding by the jury that the failure to maintain a proper lookout was the proximate cause of the injury, but under the evidence such conclusion is warranted, and in support of the judgment, it is to be presumed the court so found. Article 1985, R. S.

Complaint is made of the refusal of a special instruction requested by defendant as follows:

“You are instructed that in this case the burden of proof is upon the plaintiff by a preponderance of the evidence that the employés of the defendant railway company were negligent in striking and killing the cow of plaintiff.”

Ordinarily, the refusal of this charge would present reversible error, if a proper charge upon the burden of proof be not contained in the general charge. But in this case the issue with respect to maintaining a lookout by the engineer was submitted in this language:

“State whether or not the engineer of the train in question used ordinary care in approaching' said crossing and ordinary care in looking out as to whether or not there was any obstruction on or near said crossing.”

And the jury answered:

“He did not use ordinary care.”

In view of the form in which the issue of negligence was thus submitted — i. e., whether ordinary care was used in maintaining a lookout — the requested charge as to the burden of proof of negligence would not have been of any practical value to the jury. An appropriate charge, as applied to the submitted issue, would have been that the burden of proof was upon plaintiff to show that defendant’s employés failed to exercise ordinary care in maintaining a proper lookout for animals while approaching the crossing. There was no definition of negligence given. In view of the manner in which the issue of negligence was submitted in the instant case, the refusal of the requested charge is not regarded as reversible error.

It may also be remarked that the charge, in its requested form, is incomplete. In the form requested, it does not convey a clear idea of its meaning, and this, alone, would justify its refusal.

Error is also assigned to the failure of the court to define negligence and ordinarj' care. As stated, the case was submitted upon special issues. If appellant desired instruction given defining the terms indicated, it should have prepared and requested a proper charge. Not having done so, the failure of the court to define the same was not affirmative error, but one of omission and is not ground for reversal. Tel. Co. v. James, 31 Tex. Civ. App. 503, 73 S. W. 70; Ellerd v. Campfield, 161 S. W. 392.

The eighth assignment complains of the refusal of the court to strike out a part of the jury’s answer to issue No. 4. The answer was not responsive, but it does not affect the liability of defendant based upon the-failure to maintain a proper lookout, and is. immaterial. The error is harmless.

The answers of the jury to issues 7 and 8 are not contradictory, for which reason the ninth assignment is overruled.

The court did not err in refusing to submit the charge or issue referred to in the fifth assignment. It was upon the weight of the evidence and argumentative. Furthermore, it presented an immaterial issue in view of the evidence that the engineer had an unobstructed view for more than a mile before reaching the crossing. Had he maintained a proper lookout, there would have been, no occasion to use tlio emergency brake in order to avoid striking the cow.

Judgment was rendered in favor of plaintiff for $15, which the jury found was a reasonable attorney’s fee in the case. It is-objected there was no evidence to show that $15 is a reasonable fee. There is no evidence of its reasonableness. The only evidence upon this phase of the case is the testimony of plaintiff that he had agreed to pay liis attorney a fee of $15 in the case. AVe are of opinion that judicial knowledge might safely be taken of the fact — and the jury without affirmative evidence thereof might safely find —that $15 was a reasonable fee for the services of an attorney in representing plaintiff in this case before two trial courts and one-appellate court.

Finding no reversible error, the judgment, is affirmed.
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source: Caselaw Access Project

author: MIDDLEBROOK, J.

license: Public Domain

text:
    MOTT et al. v. SCURLOCK et al.
    (No. 56.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 2, 1916.)
    1. Courts <S=>247(2) —Jurisdiction—Courts of Civil Appeals.
    In a suit in trespass to try title in the district court of Sabine comity, when on the perfection of the appeal the Ninth Court of Civil Appeals was not in existence, the appeal to the First Court of Civil Appeals was proper, whence it would have taken its course under order of the Supreme Court transferring eases from the-First Court of Civil Appeals.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 757; Dec. Dig. <⅞=»247(2).]

      2. Appeal and Error <©=o627(3) — Transcript —Time eor Filing — Affirmance.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 160S, requires transcripts to be filed with the clerk of the appellate court within 90 days from the performance of an appeal, and authorizes the appellate court to permit a later filing for good cause shown; article 2084 declares an appeal to be perfected when the appeal bond is filed and approved; and article 1610 provides that, if the appellant does not duly file the transcript of the record, the appellee may file with the clerk a certificate of the clerk of the lower court stating when such appeal was perfected. whereupon the Court of Civil Appeals must affirm the judgment, unless good cause is shown why the transcript was not filed. Judgment was entered April 20th, the district court for that term adjourning April 24th, an appeal bond was filed and approved May 13th, and the statement of facts was filed in trial court 92 days after adjournment, reaching the Court of Civil Appeals 91 days after perfecting appeal. Held that, whore appellant, after perfecting his appeal to the First Court of Civil Appeals, forwarded the transcript to the Ninth Court of Civil Appeals, supposing fhat the cause had been transferred to it, and after its clerk had refused to file it, because too late, made no further efforts, except to resist the appellees’ motion to affirm on certificate, no reasonable excuse was shown why the record was not duly filed in the trial court or in the Court of Civil Appeals, and hence that, where the transcript showed the trial court’s jurisdiction, the motion to affirm its judgment on certificate would be granted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2744-2747, 2749; Dec. Dig. €=627(3).]
    3. Appeal and Error <©=1127 — Failure to File Transcript — Affirmance on Certificate.
    In view of Courts of Civil Appeals rule 11a (142 S. W. xi), where an affirmance is asked on a certificate filed, a failure to file the statement of facts in time will be noted by the Court of Civil Appeals, although the appellee does not raise the question.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4432-4440; Dec. Dig. <©= 1127.]
    Appeal from District Court, Sabine County; H. C. Howell, Special Judge.
    Trespass to try title between F. G. Mott and others and J. A. Scurlock and others. Judgment for Scurlock and others, and Mott and others appeal.
    Affirmed.
    W. F. Goodrich, of Hemphill, W. B. Powell, of Jasper, and T. O. Mann, of Laredo, for appellants. Rufus Price and Davis & Ramsey, all of San Augustine, S. W. Blount, of Nacogdoches, and J. W. Minton, of Hemp-hill, for appellees.
   MIDDLEBROOK, J.

This is a suit in trespass to try title. It was tried in the district court of Sabine county, and judgment entered April 20, 1915. The district court for that term adjourned by statute April 24, 1915. Appeal bond was filed and approved May 13, 1915. The statement of facts was filed in the trial court July 24, 1915, 92 days after adjournment, and reached this court August 13, 1915, 91 days after perfecting appeal, exclusive of the day of filing the appeal bond in the district court, and the day the record reached this court. The appeal was perfected to the First Court of Civil Appeals at Galveston, but appellants forwarded the transcript and statement of facts to this court. The clerk of this court refused to file the record in this court, because it reached him too late, and so notified appellants’ counsel.

On January 24, 1916, appellees filed motion and transcript in the First Court of Civil Appeals for affirmance on certificate. On February 8, 1916, appellants filed “motion resisting appellees’ motion to affirm judgment on certificate” in the First Court of Civil Appeals. On February 10, 1916, the First Court of Civil Appeals entered its order transferring the motions and transcript to this court; and on February 28, 1916, the clerk of the First Court of Civil Appeals certified the record to this court, same reaching here February 29, 1916. The full 90 days was allowed by the trial court for preparing and filing statement of facts.

Article 1608, Vernon’s Sayles’ Civil Statutes, provides that transcripts shall be filed with the clerk of appellate courts within 90 days from perfection of appeal, and that the appellate court may permit later filing for good cause shown. Article 2084, Vernon’s Sayles’ Civil Statutes, provides that appeal is perfected when the appeal bond is filed and approved. Article 1610, Vernon’s Sayles’ Civil Statutes, provides as follows:

“In case the appellant or plaintiff in error shall fail to file transcript of the record, as directed in this chapter, then it shall be lawful for the appellee or defendant in error to file with the clerk of said court a certificate of the clerk of the district or county court in which * * * such appeai or writ of error may have been taken, attested by the seal of his court, stating the time when such appeal was perfected o.r such citation was served; whereupon it shall be the duty of the Courts of Civil Appeals to affirm the judgment of the court below, unless good cause can be shown why such transcript was not filed by the appellant or plaintiff in error. If a copy of the bond accompanies such certificate of the clerk of the district or county court, the judgment shall, in like manner, be affirmed against the sureties on such bond.”

When the appeal was perfected, the Ninth Court of Civil Appeals was not in existence, and was not until its organization, June 19, 1915. The appeal to the First Court of Civil Appeals was proper, and appellants should have forwarded the transcript and statement of facts to that court, instead of to this court, and then it would have taken its course under order of the Supreme Court transferring cases to this court from the First Court of Civil Appeals. After appellant was notified by the clerk of this court that the transcript had reached him too late to be filed, no effort was made showing any cause why it was not filed sooner; and nothing further was done until appellees filed their motion in the First Court of Civil Appeals to affirm on certificate, and all that is presented in said motion, resisting the motion to affirm on certificate, is that, intervening time of performance of the appeal and the end of the 90 days allowed by the trial court for filing the record in the appellate court, the Ninth Court of Civil Appeals was organized, and that they were under the impression that the cause had been transferred to the Ninth Court of Civil Appeals, and therefore forwarded the record to this court, and that they knew naught to the contrary, and had begun to prepare a motion requesting this court to permit said record to be filed in this court, and while in the preparation of said motion they were legally served with notice of appellees’ motion to affirm on certificate.

Our opinion is that diligence is lacking on the part of appellants, that no reasonable cause is shown why the record was not filed in the trial court as required by law, and the same is true as to filing in this court, even though the appeal had been perfected to this court. The transcript accompanying the motion of appellees to affirm on certificate shows all of the statutory requirements as to jurisdiction of the trial court, etc., and we are of the opinion that the motion to affirm the judgment of the trial court on certificate is well taken, and should be granted.

It has been held by our appellate courts that failure to file the statement of facts in time will be noted by the Oourts of Civil Appeals, although the appellee does not raise the question. McKenzie v. Beason, 140 S. W. 246. Authorities: Rule 11a, Courts of Civil Appeals (142 S. W. xi); Insurance Co. v. Clancey, 91 Tex. 467, 44 S. W. 482; Blackman v. Harry, 45 S. W. 610; Bird v. Lester, 163 S. W. 658. The judgment of the trial court is therefore in all things affirmed, and the costs of this appeal are awarded in favor of the appellees against appellants, and also against the sureties on the appellants’ appeal bond.

Affirmed.
      «gs^Por other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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text:
    FIRST NAT. BANK OF SNYDER v. PATTERSON.
    (No. 568.)
    (Court of Civil Appeals of Texas. El Paso.
    May 4, 1916.
    Rehearing Denied May 18, 1916.)
    1. Banks and Banking- @=3140(2) — Payment of Checks — Liability.
    Where an insurance company, which drew its checks to its state and local agents, notified the 'bank to which the check was sent to secure the local agent’s indorsement and forward the check to the state agent, and the state agent further notified the bank that the entire sum was due him, the bank was liable to him in the amount- due him when it permitted the local agent to indorse both names and paid him the amount of the check, although that procedure had been followed before; the agents being treated and acting as partners, the rule permitting payment of a check to either member of a firm not applying under express instruction to the contrary.
    [Ed. Note. — For other eases, see Banks and Banking, Cent. Dig. § 383; Dec. Dig. <®= 140(2).]
    2. Trial @=>259(2) — Requests for Instruc- • TIONS.
    'It is not error to refuse requested instructions, which are signed neither by the party nor by his counsel.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 649; Dec. Dig. @=>259(2).]
    3. Appeal and Error @=499(3) — Scope of-Review — Preservation op Exceptions.
    Bills of exceptions to the exclusion of evidence, which fail to state the objection urged to the evidence, present no question for review as to the trial court’s action.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2297; Dec. Dig. ’@=>499(3).!
    Appeal from Scurry County Court; G. R. Buchanan, Judge.
    Action by W. H. Patterson against the First National Bank of Snyder. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Higgins & Hamilton, of Snyder, for appellant. Perkins & Perkins, of Snyder, for ap-pellee.
   HIGGINS, J.

Patterson brought this-suit against appellant to recover the sum. of $233.40, on account of the alleged conversion of a check dated July 5, 1913, in the principal sum of $233.40, drawn by the Missouri State Life Insurance Company upon the National Bank of Commerce of St. Louis, payable to the order of A. M. Avant, Ida A. Avant, and appellant. Patterson was the state agent of the Missouri State Life Insurance Company,- ¡with office and ‘head!-qnarters in Dallas. A. J. McDowell was a subagent of the insurance company, doing business in Scurry county and counties adjacent thereto. He was engaged in writing insurance and making loans for the insurance company as Patterson’s subagent.

It is contended by appellant that Patterson and McDowell were partners in that business, and for the purposes of this opinion it will be assumed that they were. McDowell had written a policy of insurance upon the life of A. M. Avant, and had negotiated a loan to him and his wife, Ida A. Avant. The amount of the check mentioned represented the commission due by the insurance company to Patterson and McDowell for writing the policy and negotiating the loan, plus a rebate of $30.35, which was due the Avants by Patterson and McDowell. On July 5, 1913, the insurance company sent the check mentioned to appellant at Snyder, Tex., with instructions to have the payees therein indorse the same to the order of W7 I-I. Patterson and A. J. McDowell, and after the same had been so indorsed to forward the check to Patterson at ’Dallas. The appellant was named as one of the payees in the check for safety in transmission through the mails. Upon receipt of the check by appellant, the Avants indorsed the same to the order of W. H. Patterson and A. J. McDowell. McDowell then signed his own name and Patterson’s name upon the back of the check, and the bank paid the check to McDowell. Such indorsement of Patterson’s name was made with the knowledge of the bank’s cashier. McDowell paid to the Avants that portion of the check representing the rebate due them. At that time McDowell was indebted to Patterson in the sum of $225.03, which has never been paid. Prior to July 5, 1913, McDowell had authorized Patterson to retain any money passing through the office and credit his indebtedness therewith. The insurance company gave the instructions mentioned to the bank at Patterson’s request, and same were given for his benefit. Patterson, or some one in his office at Dallas, had also instructed the bank to forward the check to him at Dallas after its indorsement. This instruction was given for. the purpose of enabling the general agent to get a record of the business and to prevent McDowell from getting the proceeds of the check or any part thereof. McDowell and Patterson were sharing the profits and dividing losses in the insurance and loan business in Scurry and other counties. Prior to the cashing of the check, McDowell had been receiving insurance premium checks payable to himself and Patterson, and had been cashing these checks at appellant’s bank, and sending Patterson his portion of the proceeds. McDowell’s share of the check in controversy was $65.99. Prior to the time it was cashed McDowell had agreed with Patterson that Patterson should have the interest of McDowell in the commission upon the Avant policy and loan.

This appeal is prosecuted by the bank from a judgment in favor of Patterson for $203.05, which was the amount of the check less that portion belonging to the Avants. We will not undertake to discuss in detail all of the assignments presented, but for the most part will confine ourselves to a statement of the legal principles controlling the rights of the parties; a detailed disposition of assignments being made only where deemed proper or necessary.

As to the merits of the case, we think there is no doubt that the bank is liable to Patterson upon the facts detailed. The bank seems to rely upon the proposition that it should be protected in the payment of the check to McDowell, because Patterson and McDowell were partners in the insurance and loan business, and this check represented funds earned in the partnership capacity and belonging to them as partners, and by reason of dealing between the parties whereby the bank had paid to McDowell checks covering like funds; he accounting to his partner. Of course, it is true that the drawer of a check in favor of a firm is authorized to pay it to either member of the firm when properly indorsed. But we think it is equally clear that the drawee of a check payable to A. and B. jointly would have no authority to pay the proceeds of that check to B. simply because A. and B. were partners and the check represented funds earned by the partnership, when the fact was that B. had agreed with A. that A. should have B.’s interest in that particular check, and the drawer of the check and A. had both given the drawee instructions which precluded the idea that B. had the right to receive payment of the check. When appellant received and accepted the check, it impliedly accepted the instructions which it had received from the drawer and Patterson to forward it to Patterson at Dallas after it had been indorsed. If it saw fit to violate this instruction, it did so at its own risk, and, the facts disclosing that Patterson was entitled to receive the entire amount of the check, it became liable to him for the unauthorized delivery and payment to McDowell.

A number of assignments complain of the refusal of requested instructions. The instructions were not signed by appellant or its counsel, for which reason the court did not err in refusing same. Smith v. Fordyce (Sup.) 18 S. W. 663; Ry. Co. v. Mitchell, 26 S. W. 155; Redus v. Burnett, 59 Tex. 576.

The error, if any, in the admission of the 'testimony complained of in the fourth assignment, does not present reversible error. Bule 62a (149 S. W. x).

We are not clear that the remarks of counsel for appellee complained of in the fifth and sixth assignments were altogether improper. In any event, they are not regarded as presenting reversible error, especially in view of the court’s instruction whereby a portion of the remarks were eliminated from considera! ion.

Assignments 13, 15, and 17, complain of the exclusion of certain evidence. The bills of exception taken to its exclusion fail to state the objection urged to the evidence, for which reason the action of the trial court cannot be reviewed. Railway Co. v. Jarrell, 86 S. W. 632; Grinnan v. Rousseaux, 20 Tex. Civ. App. 19, 48 S. W. 58, 781; Bank v. Smith, 160 S. W. 311; Railway Co. v. Holzer, 127 S. W. 1062.

The sixteenth assignment complains of the admission of testimony. In part the evidence was admissible, and as to that part which was incompetent its admission was harmless error.

All the other assignments presented by appellant have been examined and considered. They are regarded as without merit and are overruled.

Affirmed.
      <©^»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. ELLISON.
    (No. 1615.)

    (Court of Civil Appeals of Texas. Texarkana.
    April 19, 1916.
    Rehearing Denied May 4, 1916.)
    1. Release <®=»57(2) — Impeachment — Evidence — Sueeiciency.
    In a servant’s action, where he impeached a release on the ground that he had been overreached, evidence held to support a finding that the release was invalid for fraud.
    [Ed. Note. — For other cases, see Release, Cent. Dig. § 108; Dec. Dig. <®=»57(2).]
    2. Master and Servant <®=>279(4) — Injuries to Servant — Negligence.
    In an action by a freight conductor who was thrown from the train by a sudden start by the engineer, evidence held to warrant a finding that the engineer was guilty of negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 978; Dec. Dig. <S¿>279(4).]
    3. Appeal and Error ©=31161(1) — Verdict-Correction.
    In a servant’s action, where he had been induced to execute a Felease, by the master’s fraud, the charge on the measure of damages informed the jury that they should allow such a sum as would reasonably compensate for the servant’s sufferings and permanent injuries, 'but that the sum already received as consideration for the release with interest should be deducted from any award. The jury awarded a lump sum as damages, and there was nothing to indicate whether it was for all the damages or for those damages for which the servant had not been compensated. Meld, that as the charge did not directly require the jury to make the deduction, the court on appeal will treat their award as a general award, and from it deduct the amount of compensation already received, and enter the judgment that should have been entered below.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4499-4505; Dec. Dig. <⅜==> 1151(1).]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by D. C. Ellison against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Modified and affirmed.
    Appellee, the conductor, was on top and near the end of a box ear, for the purpose of directing the movements of a freight train which had been stopped or stalled on a heavy grade on the main line, and the locomotive was suddenly moved and gave the train a violent jerk, which threw appellee to the ground below, grievously injuring him. He brought the suit against the appellant company for damages for the injuries, alleging that the engineer operating the locomotive negligently moved the front end of the train without direction or signal to do so, and without warning, and with too great force. Appellant pleaded negligence of appellee as sole cause of injury, and contributory negligence and assumed risk. Appellant also pleaded payment and acceptance in full satisfaction of his injuries, and the execution of a formal release. Appellee, in avoidance of the release, replied that he was induced to make the settlement by false and fraudulent representations made to him about his physical condition. After the train stalled on the grade the engineer whistled for the flagman to go back and protect the rear end of the train; and the appellee, after setting the caboose brake, got out of the caboose and on top of the car and walked forward to direct the head brakeman in respect to uncoupling the train. The conductor directed that the train be divided into two parts, so as to be able to ascend or make the grade in that way. The head brakeman was, according to directions, uncoupling the car, and the appellee, standing on top of the car, was looking down, telling the brakeman to set the air on the rear end so as to hold it on the grade; and there is evidence to support the finding that at this time the engineer, seeing appellee on the car, suddenly, and without warning or signal, moved forward part of the train with such force that it gave the train “a heavy lunge,” throwing or jerking appellee down and causing him to fall from the train to the ground, grievously injuring him. Appellee was carried to the hospital at Sedalia, Mo., and treated for his injuries by appellant’s surgeons there from May 21,\ 1913, to September 23, 1913. According to appellee’s testimony, at the time of and the day before his discharge from the hospital he had a conversation with the surgeon and house surgeon about his condition, and they each told him that he was well and able to go to work, and “they wasn’t able to find or discover any permanent injury to him.” Appellee testified that he told the physicians that he had a weakness in the hijl and left side, and the doctors told him he only needed exercise. It appears that ap-pellee was given a sealed discharge letter, signed by the surgeon and addressed to the general claim agent. In accordance with instructions appellee delivered the discharge letter to the claim agent, and negotiations looking toward a settlement for the injuries began. The discharge letter stated that:
    “Judging from his present condition, it will probably be — cannot tell — before he is able to resume his old employment.”
    According to appellee, the claim agent stated to him that he had talked with the hospital physicians, and that they had told him he was well and able to work. There is evidence that the appellant made it the duty of the surgeons to furnish to the claim department information as to the condition of injured men. Relying upon these statements of his physical condition, the appellee, as he says, made the settlement on September 30, 1913, for all injuries received by him. Appellee came back and worked for appellant for about half a month; and, because his physical condition grew worse, he was compelled to lay off. Since February 5, 1914, appellee, as shown, has been under constant treatment for permanent injuries. The verdict of the jury involves the findings of fact that appellee was overreached in the settlement of September 30, 1913, and that tbe engineer was, as alleged, guilty of negligence proximately causing tbe injury in moving tbe engine suddenly and without warning or signal. As there is evidence to support these findings of tbe jury, such findings are here adopted.
    C. C. Huff, of Dallas, and Dinsmore, McMahon & Dinsmore, of Greenville, for appellant. Yates, Sherrill & Starnes and Clark & Leddy, all of Greenville, for appellee.
   LEVY, J.

(after stating the facts as above). Appellant contends by its third assignment of error that the requested peremptory instruction should have been given, because the evidence conclusively „ shows that the settlement made between appellee and appellant on September 30, 1913, was fairly and honestly made, without any fraud or deceit. Considering the entire testimony, it is believed that this court may not hold that, as a matter of law, there are no circumstances of overreaching shown in effecting the settlement, and for that reason the trial court properly passed the question to the jury for decision. Railway Co. v. Huyett, 49 Tex. Civ. App. 395, 108 S. W. 502; Railway Co. v. Reno, 146 S. W. 207; Railway Co. v. Brown, 69 S. W. 651. See principle, Railway Co. v. Jowers, 110 S. W. 946. And it is further concluded that this court may not properly disturb the finding, as involved in the verdict of the jury, that plaintiff had been overreached and induced to relinquish a claim for further compensation. French v. De Moss, 180 S. W. 1105. Therefore assignments of error numbered 4 and 5 are overruled.

In the facts it is thought that the jury may find negligence on the part of the engineer, and that the verdict should not be overturned, and therefore assignment of error No. 6, contending that there is no negligence shown in the case, should be overruled.

The court charged the jury as follows:

“If you find for the plaintiff, the measure of his damage will be such sum as will now in cash reasonably compensate him for the physical pain and mental anguish which he has suffered, if any, and such further sum as will now in cash reasonably compensate him for physical pain and mental anguish which he will reasonably and probably suffer in the future, if any, and for his diminished capacity to labor and earn money from the date of the injury to the time of the trial, if any; and if you find that his injuries, if any, are permanent,- then you will allow him such further sum as will now in cash reasonably compensate him for his diminished capacity to labor and earn money in the future, if any. However, $1,320, the sum received by plaintiff from defendant, with 6 per cent, interest from date of payment, should be deducted from such sum, if any, that you may find.”

The jury returned the following verdict:

“We, the jury, find for the plaintiff, and assess his damages at $7,500.00.”

And the court refused the appellant’s motion to enter judgment on the verdict of the jury in favor of the plaintiff for the difference between $1,320 and interest thereon and $7,500. Appellant contends, by proper assignment of error, that such ruling of the court was erroneous because the verdict of the jury was clearly a general finding only of the aggregate amount of the damages suffered by appellee, and was not a finding of only the difference found due after deducting the payment of the $1,320 and interest thereon. The verdict does not clearly show a finding of only the difference after deducting the payment, and it is thought that, under the circumstances of this particular case, it is more reasonable to assume that the jury did not, rather than that they did, intend to make the finding of only the difference after deducting the $1,320 and interest thereon. The charge of the court generally states to the jury that the deduction should be made, but it does not expressly say to them that they must do so. It may be that the jury could reasonably have interpreted the instruction as meaning that the court, and not the jury, should make the deduction. In this view, and considering the wording of the verdict, it is concluded that the verdict should be construed in this particular case as a general verdict only naming the amount of damages found- due appellee. It is believed the court should have made the deduction and allowed judgment for the difference. This court may enter the judgment in this respect that the trial court should have entered. Therefore the judgment will be modified so'as to allow recovery by appellee of the difference after deducting $1,320 and interest thereon at 6 per cent, per annum from September 30, 1913, from'$7,500. Appellee will pay cost of appeal.

We have considered all the assignments not mentioned above, and think they should be overruled.

Modified and affirmed.
      <g=s>Por other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    BOLLINGER v. BAYLOR.
    (No. 5661.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 3, 1916.)
    1. Vendor and Purchases <§=265(3)—'Ven-dor’s Lien—Assumption—Liability.
    The first grantee of land, who conveyed to a second party, who in turn conveyed to a third, both assuming the vendor’s lien note as part of the purchase price, had a cause of action against the 'third grantee, whose failure to pay the note occasioned the loss to the first grantee of the part of the land covered by the vendor’s lien note, but not sold by him.
    [Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. § 709: Dec. Dig. <§=3265 (3).]
    2. Vendob and Pubchaseb <§=265(3)—Ven-dos’ s Lien — Assumption op Note — Default—Damages.
    In an action by the first grantee of land against the grantee of the party to whom he conveyed, both grantees assuming the vendor’s lien note as part of the purchase price, for •damages sustained by the third grantee’s failure to pay the note, the measure of damages was the value of that part of’ the land which the first grantee had not sold, but which was covered by the lien and so lost to him.
    [Ed. Note — For other cases, see Vendor and Purchaser, Cent. Dig. § 709; Dec. Dig. <§=>265 (3).]
    Appeal from District Court, Uvalde County; R. H. Burney, Judge.
    Suit by A. S. Baylor against D. B. Bol-linger and another. From a judgment for plaintiff, the named defendant appeals.
    Judgment affirmed.
    Love & Ellis, of Uvalde, for appellant. L. Old, of Uvalde, for appellee.
   SWEARINGEN, J.

This is a suit brought in the district court of Uvalde county, Tex., by the appellee, A. S.. Baylor, against T. A. Wilson and D. B. Bollinger, defendants, D. B. Bollinger being the appellant here, and the plaintiff in his first amended original petition asked a judgment against both defendants, Wilson and Bollinger, jointly and severally for damages, based on the proposition that, according to his allegations, on the 24th day of July, 1907, he owned certain lands situated in Uvalde county, Tex., fully ■described in said petition, and that on that day he executed a note for $5,000, payable to one Elizabeth Ellis, who is in no wise a party to this suit, and to secure the payment thereof he executed a deed of trust on his land, among which was included a part of the Pedro Ximenes survey No. 92, which deed of trust was duly executed; that thereafter, while the said note was still unpaid, the said A. S. Baylor sold a part of the said land so covered by the deed of trust to one T. A. Wilson, and as a part of the consideration for said deed, and as a part of the purchase money, the said T. A. Wilson assumed the payment of the said note, and accepted the deed, conveying the said land to him. Two hundred ninety-seven acres of the land covered by the debt was not conveyed to the said T. A. Wilson; that thereafter, while the said note was still unpaid and the said lien a valid lien, T. A. Wilson sold the same to D. B. Bollinger, and executed to him a deed, in which, among other considerations, the said D. B. Bollinger assumed the payment •of this same note, and accepted and placed on record, as had Wilson already done, the deed, containing the recitation that he did assume the payment of said note, and in the said deed the said 297 acres of land was not conveyed; that thereafter both defendants, D. B. Bollinger and T. A. Wilson, defaulted In the payment of said note, which was secured by a deed of trust on all of the land, including the 297 acres, and then A. M. •Crisp, the trustee in the deed of trust, sold the land for the benefit of the payee in the said note, Elizabeth Ellis, which sale was In accordance with law; and that in said sale all of the land which was conveyed in the deed of trust was sold, the said 297 acres as well as the other.

Plaintiff brought suit and alleged the value of the 297 acres of land to be $20 per acre, and prayed for judgment for the value of the land, the 297 acres which was lost to him by reason of the failure on the part of the defendants to pay the note, as they had agreed to do, and a trial was had before the district court of Uvalde county, Tex., without the intervention of the jury, and a judgment rendered in favor of the plaintiff, A. S. Baylor, for the sum of $1,400 jointly and severally against T. A. Wilson and D. B. Bol-linger, from which judgment T. A. Wilson did not appeal, but the appellant, D. B. Bol-linger, appealed.

The court found the following conclusions of fact admitted to be correct by both appellant and appellee, viz.:

“Findings of Fact.
“(1) I find that on the 24th day of July, 1907, for the purpose of securing a note for $5,000, payable to Elizabeth Ellis at Uvalde, Tex., five years after date, with interest at the rate of 7 per cent, per annum, the plaintiff herein, A. S. Baylor, executed and delivered to A. M. Crisp, trustee for the said Elizabeth Ellis, a deed of trust on the following described lands, lying and being situated in Uvalde county, Tex., then owned and held by, said A. S. Baylor, to wit: Survey No. 192, H. M. Lewis, assignee of Pedro Ximoniz, 640 acres; survey No. 7S3, J. B. Wadleigh, assignee' of Texas Central Railway Company, 640 acres; survey No. 603, L. Polk, assignee of Gulf, Colorado & Santa Fé Railway Company, 640 acres; survey No. 661, L. Polk, assignee of Gulf, Colorado & Santa Fé Railway Company, 640 acres — save and except out of said tract of land 200 acres out of survey 192, which was reserved by the plaintiff as a homestead, and 3 acres which he had theretofore sold to Belle Faires. Also in said deed of trust was included the equity of the plaintiff in the following surveys of land:- Survey No. 724, certificate 1622, Gulf, Colorado & Santa Fé Railway Company, 640 acres; survey No. 664, certificate No. 1751, Gulf, Colorado & Santa Fé Railway Company, 640 acres; section No. 782, certificate No. 1277, Texas Central Railway Company, 640 acres; south one-half of section No. 784, Texas Central Railway Company, certificate 1620, 640 acres; also was conveyed lease on survey 781, Texas Central Railway Company, 640 acres, which said deed of trust is duly recorded in the deed of trust records of Uvalde county, Tex., on page 122, Volume 8.
“(2) I find that on the 25th day of May, 1910, this plaintiff sold to the defendant T. A. Wilson and executed to him a warranty deed conveying the following described tracts and parcels of land, to wit: West ¾ of survey No. 192; south ¾ of survey No. 783; all of said survey No. 663; all of said survey No. 661; all of said survey No. 664 — all of which land was covered by the said deed of trust, and, in addition to same, conveyed at same time and in said deed 640 acres of land known as survey No. 897, script No." 171, J. C. Gibson, original grantee, which-was not included in said deed of trust.
“(3) I find that, as a part of the consideration for the execution of the said deed by the plaintiff, A. S. Baylor, to the said defendant T. A. Wilson, and as a part of the consideration for the price of said land so sold and conveyed by the plaintiff to the defendant, it was mutually agreed and understood that the said defendant T. A. Wilson should assume and pay off in full the said $5,000 note, principal and interest.
“(4) I find that the deed so executed by the said plaintiff, A. S. Baylor, to the said defendant, and accepted by him, recited that the said assumption of the payment of the said note was ¡ a part of the consideration of the said deed, and I further find that the said T. A. Wilson received said deed, and placed the same on record in the deed records of Uvalde county, Tex., and went into possession of said land. ¡
“(5) I find that on the 25th day of March, 1914, the said defendant T. A. Wilson sold to the defendant D. B. Bollinger, the land conveyed to him, T. A. Wilson, by the plaintiff, which is fully described in the answer of the said defendant, T. A. Wilson.
“(6) I find that ¿ part of the consideration for the execution of the said deed from the defendant T. A. Wilson to the defendant D. B. Bol-linger was the assumption of the payment by him, the said defendant IX B. Bollinger, of the above-described $5,000 note.
“(7) I find that T. A. Wilson executed a deed to the said D. B. Bollinger conveying the said land to the said defendant Bollinger, and that the said deed recited that a part of the consideration was the assumption of the said note, and I further find that the said D. B. Bollinger received the said deed and placed the same on record in Uvalde county, Tex., and went into possession of same.
“(8) I find that the said defendant T. A. Wilson paid $500 on the principal of the said note, and paid the interest up until June 23, 1913, and I further find that he failed to pay the balance of the note when due.
“(9) I further find that D. B. Bollinger did not pay anything on said note when due.
“(10) I further find that on the 7th day of November, 1914, that there was due and payable on said note, principal and interest, the sum of $5,081.62, plus 10 per cent, attornev fees, a total of $5,589.78, and I further find that on said date A. M. Crisp, the trustee in said deed of trust, advertised the said land for sale in accordance with law.
“(11) I further find that a sale of all of the land included in the said deed of trust was made on the 1st day of December, 1914, and that at said sale V. E. Scearce became the purchaser, bidding therefor the full amount due on the said note, and that said sale was made for the satisfaction of the balance due on said note, to wit, $5,589.78 principal, interest and attorney fees.
“(12) I further find that after the sale, on the 9th day of December, 1914, the said A. M. Crisp, as such trustee, for Elizabeth Ellis executed and delivered to Y. E. Scearce a trustee’s deed for all of the land covered in said deed of trust, except survey No. 724, certificate 1622, Gulf, Colorado & Santa FS Railway Company, 640 acres, which is not involved in this suit, and I find that the said V. E. .Scearce received the said deed and placed the same on record.
“(13) I find that of the said land conveyed in said deed of trust there were 440 acres out of survey No. 192, Pedro Ximeniz.
“(14) I find that out of said survey No. 192, Pedro Ximeniz, the plaintiff in this ease would have had left, out of the lands conveyed in the said deed of trust, free from incumbrances, 297.7 acres of land which were not included in the deeds to Wilson and Bollinger, but was embraced in the said deed of trust, and was sold and conveyed by said Crisp, trustee, to said Y. E. Scearce, described as follows, to wit: ‘Beginning at a stake on the south line of said Sur. No. 192, at the S. W. cor. of the A. S. Baylor homestead tract; thence along the west line of said tract as follows, to wit: N. 13° ¿O' W. 195 vrs., N. ¿8° 45' W. 294 vrs. to stake from which a L. O. 12" in dia. brs. N. 4° W. 6 vrs., do stump 9" in dia. brs. N. 40° W. 11 vrs., N. 18° E. 256 vrs. to a stake from which a L. O. 9" in dia. brs. N. 75 W. 20¾ vrs., do. 24" in dia. brs. S. 27° W. 44 vrs., N. 57° .30' E. 10 vrs., N. 2° ¡ E. 460 vrs. to a stake on the north line of sur. No. 192; thence S. 70° W. with the N. line of said -Sur. No. 192, 1991.4 vrs. to a stake on ¡ same, the N. E. cor. of the west one-quarter of Sur. No. 192; thence S. 20° E. 977 vrs. to a stake on the south line of Sur. No. 192 to S. E. cor. of the west one-quarter of said Sur. No. 192; thence N. 70° E. with the south line of Sur. No. 192, 1,378.4 vrs., to the place of beginning.’
“(15) That had the said defendants or either of them paid the said note that the said .297 acres of land jvould have been left to this plaintiff free from incumbrances; and I further find that by reason of their failure to pay the said note, as called for and stipulated in said deed, that the said 297 acres was lost to the plaintiff, and was conveyed in said trustee’s deed to the said V. E. Scearce.
“(16) I further find that at the time of the sale of the said lands under the said deed of trust, to wit, on the 1st day of December, 1914, the said 297 acres of land was of the market value of $1,400.
“(17) I find that the market value on December 1, 1914, of the 2,560-acre tract sold by A. S. Baylor to A. T. Wilson, and by Wilson to D. B. Bollinger, was $7,680.”

Appellant contends in his first and second assignments that appellant, by purchasing land from Wilson, who purchased it from Baylor, who first purchased from the lienholder, was under no equitable or contractual obligation to Baylor by reason of Bollinger’s failure to pay a vendor’s lien note executed originally by Baylor in favor of Ellis, though the mortgagor and each succeeding grantee had expressly promised to. assume the said vendor’s lien note as part of the purchase price of the land, possession of which each successive purchaser acquired. The reason assigned by appellant is that there was no privity between the first grantee, Baylor, and the third grantee, Bollinger.

“There are two theories of law upon which a mortgagee may base his right to hold a purchaser who has assumed the payment of his mortgage personally liable for the mortgage debt: First, the theory of equitable subrogation, by which a creditor is entitled to all the collateral securities which his debtor has obtained to reenforce the primary obligation; and, second, the theory that, if one person makes a promise to another for the benefit of a third person, that third person may maintain an action on the promise.” Wiltsie on Mortgage Foreclosures, p. 276, § 226; Closner v. Chapin, 168 S. W. 371, and authorities therein cited.

The case of Ayers v. Dixon, 78 N. Y. 318, is cited with approval by Judge Gaines in the case of Gunst v. Pelham, 74 Tex. 586, 12 S. W. 233.

In the Ayers Case, supra, it was held substantially that, if the mortgagor paid the amount assumed by the subsequent grantee, he would be entitled to subrogation to the rights of the mortgagee, or in case of a foreclosure could require the mortgage to be paid out of that portion of the premises conveyed to the subsequent grantee, and for the amount paid voluntarily or on compulsion-could obtain satisfaction by suit against the subsequent grantee.

In the case at bar appellee, Baylor, paid by compulsion a part of the debt secured by lien on the land purchased by appellant, which, lien and debt appellant had expressly assumed and defaulted. The trial court properly held that appellee had a cause of action against appellant under the facts as found by the court.

Appellant’s third assignment is as follows :•

“The court erred in holding that the plaintiff’s measure of damages, if any be sustained, is the market value of the 297.7 acres of land lost by plaintiff.”

In the ease of Gregory v. Green, 133 S. W. 481, it is held that the mortgagor’s right to maintain an action against the subsequent grantee did not accrue until the trustee’s sale which deprived appellee herein, the mortgagor, of the property retained by him.

In Wilcox v. Campbell, 108 N. Y. 325, 12 N. E. 823, it is said:

“If by the default of the defendant [appellant here] he [appellee here] was deprived of his land, the value of the land is the fair measure of his claim against the defendant [appellant].”

In the case of Haas v. Dudley, 30 Or. 355, 48 Pac. 168, this same rule of the measure of damages under a similar state of facts as the case at bar was announced in the following language:

“It was by the default of the defendants that he was deprived of Ms property, and the value thereof is the rightful measure of his demand against them.” 3 Sedgwick on Damages (9th Ed.) p. 2011, note 201.

• The measure of damages used by the trial court was correct. The third assignment is overruled.

There being no error in the judgment of the trial court,' the judgment is in all things affirmed.
      itesFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    HARRIS et al. v. McGUFFEY.
    (No. 1633.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 20, 1916.)
    1. Landlord and Tenant <§=>223(1) — Action —-Payments.
    In a landlord’s action against his tenant, where the tenant claimed a set-off of certain amounts against the landlord, who admitted payment on an item of $4.50, instead of $4.97, as claimed by the tenant, the court should have allowed the amount so admitted as a credit in favor of the tenant.
    [Ed. Note. — For other eases, see Landlord and Tenant, Cent. Dig. § 885; Dec. Dig. <§=>223(1).]
    2. Landlord and Tenant <§=>252(1) — Landlord’s Lien — Judgment.
    In a landlord’s action against Ms tenant, and against third parties for the value of cotton grown 'by the .tenant on which the landlord claimed a lien, where it appeared from the contract and from the landlord’s letters that the tenant was authorized to sell the cotton purchased by such third parties, they were not guilty of a conversion when they bought and used it.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1002, 1022; Dec. Dig. <§=>252(1).]
    Appeal from Henderson County Court; C. D. Owen, Judge.
    Action by R. M. McGuffey against C. Harris, W. A. Owenby, and J. W. Caldwell. Judgment for the plaintiff against defendant Harris for $141, and against defendants Owenby and Caldwell for $93.85, and defendants appeal.
    Judgment against Owenby and Caldwell reversed, and judgment rendered that plaintiff take nothing against them, and judgment against defendant Harris reformed and affirmed.
    W. R. Bishop and A. B. Coker, both of Athens, for appellants. Miller & Miller and Frank Faulk, all of Athens, for appellee.
   WILLSON, C. J.

Appellee, plaintiff in the courts below, sought a recovery (1) against appellant Harris, alleged to be his tenant, of $91 as rent due for land he let to Harris, and of $104.82 for supplies he alleged he furnished Harris to enable him to make, secure, and market crops grown on the land, and (2) against appellants W. A. Owenby and J. W. Caldwell of $93.85, alleged to be value of cotton grown by Harris on which appellee claimed a landlord’s lien,- and which he claimed Owenby and Caldwell purchased of Harris and converted to their own use. The appeal is from a judgment in appellee’s favor (1) against Harris for $141, and (2) against Owenby and Caldwell for $93.85.

The trial court found that Harris was to cultivate the land “on the halves,” and owed appellee $66.88, the value of his part of crops grown on the land, and $86.22 for supplies furnished — a total of $153.10, against which he allowed Harris credits he claimed amounting to $12.10. The court refused to allow other items which Harris claimed a right to have set off against the sum found to be due by him to appellee. Among these items was one for $4,97, part of the proceeds of a sale of cotton grown on the land made by Harris, which he alleged he paid to appellee. The latter, testifying as a witness-, admitted the payment, but said it was $4.50 instead of $4.97. The court should have allowed the amount so admitted to have been paid as a credit against the $66.88 he found to be the value of appellee’s part of the crops. The judgment in appel-lee’s favor against Harris will be so reformed as to give him the benefit of the payment. On the record before us we think Harris’ contention as to the other credits claimed by him and refused by the court should be overruled.

So far as the judgment is in appellee’s favor against appellants Owenby and Caldwell, it is clearly wrong. Harris, by the terms of the contract between him and ap-pellee, and also by letters the latter wrote him, was authorized to sell the cotton purchased by Owenby and Caldwell, and therefore they were not guilty of a conversion thereof when they bought and used it, as found by the court. Gilliam v. Smither, 33 S. W. 984; Planters’ Compress Company v. Howard, 80 S. W. 119; Keahey v. Bryant, 134 S. W. 409.

The judgment, so far as it is in favor of appellee against Owenby and Caldwell, will be reversed, and judgment will be here rendered that appellee take nothing against them; and so far as it is in appellee’s favor against Harris, will be so reformed as to adjudge a recovery by appellee of the sum of $136.50, instead of $141, and as so reformed will be affirmed.
      <®=^For other oases see same topic and KEY-NUMBER in all Key-Numbered-Digests and Indexes


text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. REED.
    (No. 1625.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 20, 1916.)
    Cabriers <§=»3¾2(7) — Carriage of Passengers — Wrongful Ejection — Damages.
    In an action by a railroad passenger for ejectment from Ms train at a flag station, eight miles from destination, after his refusal to sign a scrip sufficient to cover his fare before its detachment from the book, the condition of the contract being that he should write his name on th.e scrip, “whenever detached by the conductor,” judgment for $800 was excessive by $700.
    [Ed. Note. — Eor other cases, see 'Carriers, Cent. Dig. § 1490; Dec. Dig. <§=>382(7).]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by O. M. Reed against the St. Louis Southwestern Railway Company of Texas. Prom a judgment for plaintiff, defendant appeals.
    Judgment reformed and affirmed.
    Crosby, Hamilton & Harrell, of Greenville, for appellant. Evans & Shields, of Green-ville, for appellee.
   WILLSON, C. J.

Appellee was a passenger on one of appellant’s trains from Pitts-burg to Mt. Pleasant. When called upon for his ticket he handed to the conductor a “Texas Scrip Book” from which to detach scrip sufficient to cover the fare to Mt. Pleasant. The scrip book was sold to appellee on conditions printed on the cover thereof, one of which was that he should write his name on the scrip “whenever detached by the conductor.” Instead of detaching scrip representing the fare and having appellee then to sign it, the conductor, without detaching same, asked appellee to sign it. Appellee refused to sign the scrip unless the conductor first detached it. The conductor refused to detach the scrip unless appellee first signed it, and, because appellee would not do so, ejected him from the train at a flag station about eight miles from Mt Pleasant. In his suit against appellant for damages appellee recovered judgment for $800.

All the assignments except the one attacking the judgment as excessive are overruled. That one is sustained, and the judgment will be reversed unless a remittitur of $700 of the amount thereof is filed with the clerk of this court within 15 days from this date, in which event the judgment will be so reformed as to adjudge a recovery by appellee of $100, and, as so • reformed, will. be affirmed.


text:
    RAMSEY v. GIBSON.
    (No. 1643.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 11, 1916.)
    1. Brokers <§=>8(3), 86(4) — Actions —Evidence — Procuring Cause.
    Evidence held to support finding of employment of plaintiff as broker, and that he was the procuring cause of sale of the property.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 9, 117; Dec. Dig. <§=>8(3), 8©(4).]
    2. Brokers <§=>53 — Compensation—Procuring Cause.
    Where plaintiff, employed as broker, was the procuring cause of sale, although the property was for sale by other agents, and plaintiff knew that it was, he was entitled to compensation.
    [Ed. Note. — Eor other cases, see Cent. Dig. § 74; Dec. Dig. <§=>53J Brokers,
    3.Trial <§=>219 — Instructions—Definition of Terms — Efficient and Procuring Cause.
    Un brokers suit for commissions, it was Rot eiior to refuse to instruct as to meaning of efficient and_ procuring cause,” as the words are not technical, but are in common use.
    £fete- — ■For other eases, see Trial, Cent. Dig. § 489; Dee. Dig. <§=219.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by F. O. Gibson against J. S. Ramsey. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    In July,-1913, appellant was the owner of a farm consisting of 289.8 acres of land in I-Iili county, 21 or 22 miles from Hillsboro, which he had “listed” with real estate brokers in Grandview and Itasca for sale at $60 per acre. Afterwards he also authorized appellee to sell the land at that price, agreeing, if ap-pellee did sell it, to pay him a commission of 5 per cent. Joe P. Thompson and Guy Tarl-ton, as partners, were real estate brokers in Hillsboro. Appellee took up with Hawkins and West, of Hillsboro, and also with one Cunningham, of the same place, the matter of buying the land, and induced them to agree to go and look at it. He arranged to himself go with Hawkins and West, and with Thompson to go with Cunningham, to the land on the same day. The understanding between appellee and Thompson, which induced the latter to go With Cunningham, was that he (Thompson) would be “paid for his trouble” by appellee if Cunningham purchased the land. On the day agreed upon the two parties went from Hillsboro to appellant’s farm. Appellee, with Hawkins and West, arrived there first, and with appellant went over the land. Thompson, with his partner and Cunningham and his wife, reached appellant’s place about the time appellee, Hawkins, and West were ready to leave there on their return trip to Hillsboro. According to the testimony of appellee and Thompson, which is denied by appellant, appellee before leaving requested 'appellant to show the land to Cunningham and the party with him. A few days later appellant and appellee met each other in. Grandview. Appellant said he thought Cunningham would buy the place. Appellee replied that Hawkins and West wanted the refusal of it, and suggested that they be given time to determine whether they would buy it or not. Appellant suggested to appellee that he communicate with them over the telephone and ascertain if they wished to buy. Appellee did this, and on being told by Hawkins and West that they had not determined whether they wished to buy or not, and that he need, not wait further on them, told appellant that “it was immaterial to him [me] who bought it, and if Mr. Cunningham wanted it to let him have it.” A few days later appellant sold the land to Cunningham for $60 or more per acre, and on terms which were satisfactory to him. At a time not directly shown by the testimony, but which, it inferentially appears, was when he, with his partner, Thompson, and Cunningham and his wife, were at appellant’s looking at the farm, as stated above, Tarlton was authorized by appellant to sell the land. The deeds made by appellant to Cunningham were prepared and executed in Tarlton and Thompson’s office in Hillsboro, as was also an agreement in. writing, executed by appellant, Cunningham, and the Guy Tarlton Company, which was the firm name of Tarlton and Thompson, reciting that Cunningham was to retain $900 of the purchase price he had agreed to pay appellant, with which he was “to settle with Guy Tarlton Company for their commission for making the sale,” and in which' it was further recited that “the matter of the commission settlement is a matter left entirely with the said C. L. Cunningham and Guy Tarlton Company.” Appellant testified that, before he sold the land to Cunningham, Tarl-ton told him that Cunningham “wanted him (appellant) to take care of Gibson,” and that he replied he did not “suppose Mr. Gibson wanted anything out of this trade.” Thompson, Tarlton’s partner, testified:
    “The way I came to take Mr. Cunningham out there to see the place, I met Mr. Gibson on the south side of the square, and he says to me, ‘Joe, I have got some prospective buyers for a place up between Grandview and Itasca,’ and it seems to me like it was 289 acres, and he says, T believe one of the parties will buy,’ and he says, ‘Now, I am going with Mr. Hawkins and Dick West,’ I believe it was, and he says, T have put the proposition up to them, and also to Mr. Cunningham, and if you will go and take Mr. Cunningham over there, if we make the deal I will pay you for your trouble,’ or something to that effect. Well, I told him ‘All right,’ and so the next morning I went out there with Guy Tarlton and Mr. Cunningham and Ms wife to the place. * * * I did not tell Mr. Ramsey, that morning that he showed Mr. Cunningham over the farm, that Mr. Cunningham was our client, and not Mr. Gibson’s. I did not at any time learn that Guy Tarlton was trying to make the trade over Fred Gibson. Guy got it, just' like I did, through Fred Gibson. Of course, you understand, we were partners, and Guy went with me when we earned Mr. Cunningham up there, and he was in the trade, just -like I was.”
    Appellant testified that he first met and became acquainted with Tarlton on the occasion mentioned above, when he came with. Thompson and Cunningham and his wife to look at the farm. He further testified that “no one other than Guy Tarlton ever told him [me] that Mr. Cunningham wanted to buy the land,” and that he told appellee, when he met him at Grandview on the occasion when appellee telephoned Hawkins .and West as stated above, that Tarlton “was going to sell the place to Mr. Cunningham.”
    Tarlton did not testify as a witness, and if he had anything to do with the sale made to Cunningham, further than has been stated, the record does not show it.
    This suit was by appellee against appellant to recover $795, which the former claimed was the amount due him by the latter as commission on the sale made of the land. On special issues submitted to them the jury found: (1) That appellant agreed with appel-lee to pay him a commission of 5 per cent, on the purchase price of the land if he found a purchaser for it at $60 per acre on terms suitable to him, appellant; (2) that appellee was the “efficient or procuring cause of the said Cunningham purchasing the property”; (3) that Guy Tarlton was not “the procuring cause” of the sale made to Cunningham; (4) that appellant, at the time the sale was made, “had his land for sale in the hands of several agents”; and (5) that appellee knew that the land was “for sale in the hands of other agents.” On these findings the court rendered judgment in appellee’s favor against appellant for said sum of $795.
    M. S. Wood, of Itasca, and Morrow & Morrow, of Hillsboro, for appellant. ShurtlefE & Cummings and Wear & Frazier, of Hillsboro, for appellee.
   WILLSON, C. J.

(after stating the facts as above).

It is apparent from the statement above that there was testimony amply sufficient to support the findings made by the jury; and it is further apparent that the findings warranted the judgment rendered. The court did not err, we think, in refusing-to instruct the jury as to the meaning of the phrase “efficient or procuring cause.” The words are not technical, are in common use, and presumably their meaning was as accurately known to the jury as to the court.

The judgment is affirmed.
      <©s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    REINERTSEN v. E. W. BENNETT & SONS et al.
    (No. 544.)
    (Court of Civil Appeals of Texas. El Paso.
    April 27, 1916.
    Rehearing Denied May 18, 1916.)
    1. Courts <§=>23 — Jurisdiction—Consent.
    Consent cannot confer jurisdiction, and where the court did not have jurisdiction, the judgment, is a nullity, though the parties consented.
    [Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 75, 75½, SI; Dec. Dig. <®=>23.]
    2. Courts <©=40 — Parties <©=>47 — -Intervention — Rights oe Intervenir — Jurisdiction.
    The rights of an intervener are limited, and where the court has no jurisdiction over the action, it has no jurisdiction over the intervention proceedings.
    [Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 157-161; Dec. Dig. <§=>40 ; Parties, Cent. Dig. § 74; Dec. Dig. <©=>47.]
    •3. Garnishment <©=>204G-Abatemeno>-Right to Seek.
    Where plaintiff garnished moneys belonging to defendant, and thereafter others were allowed to intervene in the action, their garnishments against the same fund being consolidated with that of plaintiff, plaintiff’s garnishment could be quashed for irregularities in the bond and affidavit only at the instance of defendant, or the garnishee, and the interveners could not question its validity, for if it fell, their rights fell with it.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 396; Dec. Dig. <©=>204.]
    4. Garnishment <g=>193 — Proceedings—Consolidation.
    Where the garnishee and defendant treated the fund garnished by plaintiff as a trust fund to be awarded to those who would come in and establish their priority in the garnishment suit, the proceedings being consolidated, the validity of plaintiff’s garnishment was immaterial.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 381, 382; Dec. Dig. <⅜=193.]
    5. Garnishment <©=>204 — Consolidation — Right to Intervene. ■
    A party claiming a prior right to a fund garnished may intervene, and holders of orders on the fund presented before garnishment may have the cases consolidated, or may intervene and have the issues determined at one time.
    [Ed. Note. — For other eases, see Garnishment, Cent. Dig. § 396; Dec. Dig. <§=>204.]
    6. Garnishment <§=>108 — Priority — Prior Rights.
    A garnishor’s rights are determined by his priority in point of time.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 22ÑL-226; Dec. Dig. <§=>108.]
    7. Appeal and Error <§=>916(2) — Presumptions.
    In a garnishment suit where a number intervened and judgment went for some of inter-veners, the appellate court cannot, where the record did not show any pleadings by such in-terveners, though it may be presumed that pleadings were filed, assume that the pleadings showed priority as to such persons, and on that theory uphold a judgment against the original gar-nishor.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3701; Dec. Dig. <§=>916(2).]
    Appeal from District Court, Pecos County; W. O. Douglas, Judge.
    Action by Jonas Reinertsen against the Baker Manufacturing Company, a copartnership, and against the Zimmerman Land & Irrigation Company as garnishee, consolidated with several other actions by E. W. Bennett & Sons and others against the same garnishees, in which numerous persons intervened, asserting claims to the fund. From the judgment, said Reinertsen appeals.
    Reversed and remanded.
    Howell Johnson, of Ft. Stockton, and J. F. Woodson, of El Paso, for appellant. R. D. Blaydes and Williams & Jackson, all of Ft. Stockton, and W. A. Hadden, of San Antonio, for appellees.
   HARPER, C. J.

On May 29, 1915, Rein-ertsen filed suit in the district court of Pecos county against the firm of Baker Manufacturing Company, a copartnership, and the individual members thereof, to recover sum of $2,398.82. This is suit No. 1139. On the same day, he sued out a writ of garnishment against Zimmerman Land & Irrigation Company, a corporation, which writ was served on May 31, 1915. This garnishment proceeding is numbered cause No. 1140. On October 1, 1915, in cause No. 1139, a judgment was rendered in favor of Reinertsen for the amount sued for. The proceedings and judgment rendered in this cause are not appealed from, and are not before us for consideration. The judgment was a simple recovery for $2,398.82, without lien or preference of any kind. So far as that judgment is concerned, Reinertsen stands in the attitude of a simple judgment creditor of the Baker Manufacturing Company, and if he is to be accorded any prior right to any funds in the hands of the Zimmerman Land & Irrigation Company, belonging to the Baker Manufacturing Company, it is by virtue alone of the garnishment proceedings • against said Zimmerman Land & Irrigation Company.

It appears that cause No. 1140, was consolidated with a number of other causes pending in the district court of said county, in which causes certain parties were claiming an indebtedness against the Baker Manufacturing Company, and were seeking, ’ by garnishment and otherwise, to subject to the payment of their claims certain moneys in the hands of the Zimmerman Land & Irrigation Company. It is not apparent just when these causes were consolidated. Among the causes so consolidated was garnishment cause No. 1143, of Bennett & Sons v. Zimmerman Land & Irrigation Company, Garnishee. No. 1143 was ancillary to cause No. 1142, of Bennett & Sons v. Baker Manufacturing Company. Also garnishment cause No. 1146, of N. Winkler v. Zimmerman Land & Irrigation Company, Garnishee. Said cause No. 1146 was ancillary to cause No. 1145 of N. Winkler v. Baker Manufacturing Company. Also 'cause No. 1167, Sweatt & Carr, Plaintiffs, who were claiming an indebtedness against the Baker Manufacturing Company, and claiming a contractor’s lien to secure its payment upon the funds in the hands of Zimmerman Land & Irrigation Company. In said consolidated cause, a number of individuals, designated as inter-veners, had intervened. One of the interven-ers Givens, was claiming an assignment from tbe Baker Manufacturing Company of a portion of the said funds in the hands of the Zimmerman Land & Irrigation Company, and the interveners John Flemister and 19 others were claiming various amounts against the Baker Manufacturing Company, and claiming laborer’s liens to secure its payment upon said funds in the hands of the Zimmerman Land & Irrigation Company. It also seems that the First National Bank of Ft. Stockton was claiming a portion of said fund by virtue of an order given by the Baker Manufacturing Company.

From recitals in certain of the pleadings, it appears that Bennett & Sons and N. Win-kler on September 8, 1915, were impleaded in cause No. 1140 by the garnishee therein. On September 25, 1915, they answered the bill of interpleader. They first moved to quash the garnishment proceedings for certain defects in the affidavit and writ. Bennett & Sons further averred that on June 14, 1915, they filed suit in said court against the Baker Manufacturing Company to recover $2,000, cause No. 1142, and on same date filed ancillary suit No. 1143, Bennett & Sons v. Zimmerman Land & Irrigation Company, and procured the issuance of a writ of garnishment therein, which was served upon the Zimmerman Land & Irrigation Company on June 14, 1915. Winkler averred that on June 16, 1915, he filed suit in said court against the Baker Manufacturing Company to recover $631, with interest, penalty, and costs, cause No. 1145, and on same day filed ancillary suit No. 1146, Winkler v. Zimmerman Land & Irrigation Company, and procured the issuance of a garnishment therein, which was served upon the Zimmerman Land & Irrigation Company on June 16, 1915. In their said answers, Bennett & Sons and Winkler also set up the pendency of Reinert-sen’s suit and other suits in said court, wherein the plaintiffs were seeking by garnishment or direct suits to establish prior rights to funds in the hands of the Zimmerman Land & Irrigation Company in satisfaction of the claims of such parties against the Baker Manufacturing Company. They then averred that they (Bennett & Sons and Winkler) had acquired a prior right to such funds by virtue of their said garnishment proceedings against the Zimmerman Land & Irrigation Company, and asked that all suits by the various claimants, including cause No. 1140, be consolidated, so that the priorities of the respective parties to the funds in the hands of Zimmerman Land & Irrigation Company might be determined and fixed. The said answers of Bennett & Sons and Winkler to such bill of interpleader then concluded with prayers that their claims against the Baker Manufacturing Company asserted in causes Nos. 1142 and 1146 be given priority of right, and ordered paid first 'out of said funds, by virtue of priority acquired by the garnishments in causes Nos. 1143 and 1146. It seems that consolidation of such suits was then made.

, On October 1, 1915, the Zimmerman Land & Irrigation Company answered in consolidated causes Nos. 1140, 1143, 1146, et al. In said answer it stated that it had a certain sum of money in its hands which was owing to the Baker Manufacturing Company. This answer set up that the Baker Manufacturing Company had delivered to the garnishee written orders as follows: On May 17, 1915, in favor of Bennett & Sons, for $314.75; on May 18, 1915, in favor of First National Bank of Fort Stockton, for $510; on May 20, 1915, in favor of Bennett & Sons, for $700; on May 21, 1915, in favor of R. A. Given, for $122.90. In this answer, it is stated that the writ of garnishment in cause No. 1143 (Bennett & Sons v. Zimmerman Land & Irrigation Company, Garnishee) was served June 14, 1915, and in cause No. 1146 (Winkler v. Zimmerman Land & Irrigation Company) was served June 16, 1915. This answer in effect was a full disclosure of its indebtedness to the Baker Manufacturing Company, and prayer that the fund be adjudicated to the various claimants so that its rights would be preserved and it protected from double recovery.

On October 16, 1915, judgment was entered in the aforesaid consolidated causes. By this judgment the exceptions of Bennett & Sons and Winkler to the sufficiency of the Reinertsen affidavit and writ of garnishment were sustained, and the garnishment proceedings quashed and held for naught. The judgment also disposed of the fund in the hands of the Zimmerman Land & Irrigation Company, belonging to the Baker Manufacturing Company. It was distributed among the claimants thereto above named. To Bennett & Sons was decreed $860 under the garnishment in cause No. 1143, which was ancillary to No. 1142, Bennett & Sons v. Baker Manufacturing Company. To Winkler was decreed $710.40, under the garnishment in No. 1146, which was ancillary to No. 1145, Winkler v. Baker Manufacturing Company. Reinertsen was awarded no part of the fund, his garnishment having been quashed and he showing no other right to any part of the same. From this judgment Reinertsen has appealed, assigning only as error the action of the court in sustaining the exceptions of Bennett & Sons and Winkler to the sufficiency of his affidavit and writ in cause No. 1140 and quashing the proceedings. His contention being that since the original defendant, Baker Manufacturing Company, and the garnishee, Zimmerman Land & Irrigation Company, did not question the sufficiency of the garnisliment proceedings, the same could not be attacked, and vacated at the instance of Bennett & Sons and Winkler.

The question narrows itself down to this: Can Bennett & Sons and Winkler, creditors of the Baker Manufacturing Company, with garnishments subsequent to Rein-ertsen, and who were impleaded in cause No. 1140 by the garnishee, question the sufficiency of Reinertsen’s garnishment proceedings, or is the right to question the same limited to the original defendant, Baker Manufacturing. Company, and the garnishee, Zimmerman Land & Irrigation Company?

Appellees urge that it was the duty of the court to examine the affidavit and bond in garnishment, and if either was found to be defective, because one or both did not conform to the statute, to quash the writ, whether there were exceptions or objections or not, and further contends that the same rule does not apply to garnishments as applies in attachments, for the reason that attachment proceedings are regulated by statute as to who shall be permitted to object to irregularities in the bond and affidavit, in that it provides that they may be quashed only at the instance of the defendant. In Goodbar v. Bank, 78 Tex. 461, 14 S. W. 851, the Supreme’ Court held that the rule applied in the absence of statute.

Upon what theory the court would have authority, or it would become his duty to examine the papers and determine their sufficiency, is not suggested, but supposedly it is upon the theory that they are necessary to the court’s jurisdiction over the funds. If the affidavit and bond are jurisdictional in garnishments, so they must be in attachments. No case has been found, and none cited, holding that an intervener can quash an attachment, on account of defects in affidavit or bond, neither can a case be found holding that a garnishment can be quashed by such intervener for such cause.

The courts have said that attachment or garnishment .was void by reason of the absence of a proper affidavit or bond, but the word “void” was improperly used. This must be so, for if the garnishee and defendant answer, or fail to answer, they have submitted to the jurisdiction of the court, and we think no court would hold that, under such circumstances, with neither the defendant nor the garnishee objecting the judgment rendered would be a nullity. Net, if the proceedings were void for lack of jurisdiction, the judgment would be a nullity, for consent cannot confer jurisdiction. The distinction is clearly stated in Slade v. Le Page, 8 Tex. Civ. App. 403, 27 S. W. 952:

“Although it is an expression commonly met with in decisions of our own court, as well as others, that an insufficient affidavit or bond vitiates the writ, this has generally, if not always, been in cases where the defect was being claimed in the same proceeding. The great weight of authority appears to sustain the view that the judgment of foreclosure is not subject to be opened by defendant, and for less reason by others, in a collateral proceeding, to admit evidence of the existence of a vice in suing out the writ.”

The rights of an intervener are limited. If, because of a jurisdictional matter, the fund is not before the court, the intervener cannot come in. The court’s jurisdiction of the property or fund must therefore be conceded, for he gets his right to intervene because of the fact that the fund or property is before the court. So it follows that to say that, because of the absence or an insufficient affidavit or bond, the court had no jurisdiction of the fund is equivalent to saying that there has been no intervention.

The object of allowing a third party to intervene as claimant of property or money garnished is to protect the garnishee and the intervener, and he is let in for the purpose of determining whether he has such an interest in the property that the plaintiff cannot have his judgment condemning it to his claim against the principal defendant. The sole issue is whether it is his property. Buckingham v. Shoyer, 86 Ill. App. 370; Rood on Garnishment, § 343; Fleming v. Shields, 21 La. Ann. 118, 99 Am. Dec. 719.

“The issue which may be formed between the garnishment creditor and the claimant of the debt, or demand, or fund sought to be subjected to the garnishment, is collateral to the suit against the debtor, and the suit by garnishment. It does not involve the regularity of the proceedings in either of these suits; and the purpose of compelling its formation and trial is the summary determination of the right of the claimant as against the garnisheeing creditor, whether his right is superior to that of the claimant.” Winslow v. Bracken, 57 Ala. 368.

So we conclude that the right to abate an attachment or garnishment on account of defects in affidavit, bond, etc., irregularities, is restricted to defendants, and is not allowed to creditors subsequently taking out writs. Goodbar, White & Co. et al. v. Bank of S. Springs, 78 Tex. 461, 14 S. W. 851.

But the matter of the sufficiency of the affidavit and bond is of no importance in the instant case, for the record shows that the plaintiff, Reinertsen, the defendant manufacturing company and the garnishee treated the garnished fund as a trust fund to be awarded to those who would come in and by proper pleadings and evidence show a right thereto. Where such is the case, the garnishment becomes of no importance. Railway Co. v. McFaddin, 105 Tex. 19, 142 S. W. 1162.

But a party claiming a prior right to the fund may intervene in the suit, and holders of orders on the fund presented prior to the attachment or garnishment may have cases consolidated, or may intervene and have the issues tried at the same time. Kelley Grain Co. v. English, 34 S. W. 651; Ragsdale v. Groos, 51 S. W. 256; Hardware Co. v. Duff, 54 Tex. Civ. App. 285, 117 S. W. 440; Smith v. T. & P. Co., 39 S. W. 969; Foy v. Bank, 28 S. W. 167; Foeke v. Blum, 82 Tex. 437, 17 S. W. 770.

Applying the rules of law above quoted to the instant case, appellant, Reinertsen, is entitled to recover, as against the fund in the hands of the garnishee, Zimmerman Land & Irrigation Company, the whole of the debt for which he has judgment against the Baker Manufacturing Company, $2,398.-82, unless, after paying other claims which are supported by proper assignments, or liens, mechanic’s or attachment or garnishment (which latter two are the same, Foeke, Wilkins et al. v. Blum, 82 Tex. 436, 17 S. W. 770), there is not enough of the funds left to cover the amount. For the reason that the defendant Baker Manufacturing Company, nor the garnishee, Zimmerman Land & Irrigation Company, have sought to abate or quash the garnishment proceedings because of the irregularities, therefore those seeking a portion of the funds in the hands of the Land & Irrigation Company, as garnishee, who have not prior liens to that of Reinert-sen, by one of the means above enumerated, cannot participate in the distribution of the funds until his (Reinertsen’s) judgment lien has been satisfied.

There is no statement of facts nor findings of fact in the record, and the record is so meager, in that the pleadings of the parties have not been incorporated in the transcript, that we cannot here determine the question of priority of the claims of the parties.- For instance, the First National Bank of Ft. Stockton is awarded a judgment for $510, and there is nothing in the transcript to show that it was ever a party to this suit. By the judgment, Sweatt & Carr are awarded a sum of money, and we find no pleadings in the record to show that they have any claim or right to any portion of the funds. If we concede that, in the absence from the record of the pleadings in the case, it will be presumed in support of the judgment that pleadings were on file as held in Holloway v. 1-Iall, 151 S. W. 895, we would not be justified in indulging in the further presumption that such pleading showed a prior right to the moneys in the hands of the garnishee to that of Reinert-sen. So in view of the incomplete record, the cause is reversed and remanded for a new trial, that the trial court may inquire into the rights of the parties to the funds, as above indicated, and distribute accordingly.
      <&=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TOM EADS & CO. v. HONEYCUTT et al.
    (No. 1635.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 28, 1916.
    Rehearing Denied May 4, 1916.)
    Agriculture <©=3ll — Chattel Mortgages and Priority.
    In the absence of compliance with the statutes, a farm hand, who contracted to work as such for wages to be paid out of the cotton produced by his labor when the same was sold, had no lien for such wages on the cotton,_ and its acquisition in kind by the farm hand in payment of his services was subject to a registered chattel mortgage on the crop.
    I Ed. Note. — For other cases, see Agriculture, Cent. Dig. §§ 15-30; Dec. Dig. <@=>11; Chattel Mortgages, Cent. Dig. §§ 228, 229, 231-236; Dec. Dig. <@=>138(1).)
    Appeal from Henderson County Court; C. D. Owens, Judge.
    Suit by Tom Eads & Co. in assumpsit and to foreclose a chattel mortgage lieu against T. B. Honeycutt, in which John Gregory intervened. From, a judgment for plaintiffs against Honeycutt for the debt and foreclosure of the mortgage lien, but decreeing certain cotton to the intervener, plaintiffs appeal.
    Judgment modified and affirmed.
    Miller & Miller, of Athens, for appellants. W. R. Bishop and A. B. Coker, both of Athens, for appellees.
   LEVY, J.

T. I-I. Honeycutt on January 15, 1914, executed a chattel mortgage to the appellants, covering two horses, a wagon, and a crop to be grown during the year 1914. The appellants sue in assumpsit and to foreclose this mortgage lien. On the day the suit was filed, March 22, 1915, a writ of sequestration was levied on the personalty and three bales of mortgaged cotton. Appellee John Gregory, by next friend, intervened in the suit and set up claim to the three bales of cotton, averring that on January 1, 1914, he made a verbal contract with appellee Honeycutt to work for him as a farm hand during the year 1914, and for his wages to be paid out of the cotton produced by his labor when same was sold. When the crop was made, appellee Honeycutt delivered to John Gregory, in satisfaction of his claim for wages, the three bales of cotton in suit. John Gregory did not make duplicate accounts of the service rendered by him to appellee Honeycutt, nor cause a copy to be filed in the office of the county clerk. A judgment was rendered for the plaintiffs for the debt against Honeycutt, and for foreclosure of the chattel mortgage lien on the horses and wagon, but decreeing the three bales of cotton to John Gregory.

The case of Peacock v. Morgan et al., 128 S. W. 1191, clearly, decides that in the absence of any compliance with the provisions of the statutes no lien could be created; and in this case it conclusively appears that the intervener, Gregory, had not fixed a lien, and, not having a lien, the acquisition of the cotton by John Gregory, which was merely taken over by him in payment of his services, would be subject to appellants’ registered mortgage. The judgment of the trial court is therefore modified, in so far as to entitle the appellants to have their chattel mortgage lien foreclosed in priority on the three hales of cotton, as well as the other property, and to deny intervener, John Gregory, any right to the three bales of cotton superior to the lien of the appellants. Intervener Gregory will he taxed with the costs of appeal and all costs incurred by him in the trial court.

Judgment modified and affirmed.
      <g=»Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    WINNSBORO COTTON OIL MILL CO. v. AZBELL.
    (No. 1613.)

    (Court of Civil Appeals of Texas. Texarkana.
    April 20, 1916.
    Rehearing Denied May 4, 1916.)
    Master and Servant <®=286(6), 288(1), 289(1) — Injuries to Servant — Actions — Evidence.
    In an action by a servant, who was hurt when a board from a cotton conveyer turned, the question whether he was furnished a safe place of work, as well as the questions whether he assumed the risk, or was guilty of contributory negligence, held, for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1010, 1017, 1068. 1069, 1087-1089; Dec. Dig. @=2SG(6), 288(1), 289(1).]
    Appeal from District Court, Wood County; W. R. Heath, Judge.
    Action by Carl E. Azbell against the Winns-boro Cotton Oil Mill Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Dee, Domax & Smith, of Ft. Worth, and M. D. Oarlock, of Dallas, for appellant. J. H. Beavers and W. G. Russell, both of Winns-boro, for appellee.

      Application for writ of error pending in Supreme Court.

   HODGES, J.

This is a suit for personal injuries, instituted by the appellee against the appellant. It is alleged that the appellant ivas the owner of and was operating, in January, 1913, an oil mill for crushing cotton seed; that appellee was employed ,to feed the seed conveyor, and that while so doing he stepped upon a loose plank placed as a covering over the conveyer; that the plank turned, and his foot slipped down into the machinery, and the injuries complained of were sustained. The negligence charged was the placing of a loose plank, with long nails protruding on the under side, as a covering for the conveyer. A trial before a jury resulted in a judgment in favor of the appel-lee for the sum of ⅞1,000.

In this appeal it is contended that the evidence was insufficient to support the finding of the jury. This defense is presented in different forms, and based upon different propositions. It is insisted that there was no evidence of negligence, and that, if there was any danger in the situation attending the injury, it was assumed by the appellee, and also that he was guilty of contributory negligence in the matter in which he was performing his work. It is undisputed that the ap-pellee was injured as alleged. No other person was present, and his testimony is the only evidence to which the jury could look in determining the issues of fact. He testified that his employment began on the day of the injury; that he worked until noon at unloading seed; that in the afternoon he was put in the seedhouse and directed to shovel seed into the conveyer. The seedhouse, had a concrete floor, through the center of which ran a trench, in which the conveyer, a spiral or auger-shaped shaft, revolved. The conveyer, he says, was covered at the end where he began work with a large grain door; an opening at one end of the door was left, into which the seed were to be thrown. He worked along, feeding from each side of the conveyer, until he reached a point beyond the grain door, and there found that the conveyer was covered by short pieces of plank lying crosswise. It became more convenient for him to use his hands in pulling the seed down from the walls on each side, and while so doing he placed his foot on one of the planks across the conveyer for the purpose of reaching up higher, and when his weight was placed upon that foot the plank turned, and his foot slipped and went down among the machinery. Examination disclosed the fact that the plank upon which he had stepped had large nails in each end of it, driven entirely through and protruding on tbe other side; and this was the cause of the plank’s turning. No contention is made that the court erred in the manner in which the issues of fact involved in the case were presented.

We are of the opinion that the testimony was of such character that the jury was justified in concluding that the appellant had furnished the appellee an unsafe place in which to perform his work. According to his testimony, he was an inexperienced man, and knew nothing about the situation, except what ordinary, observation would disclose as he proceeded with his work. We are also of the opinion that the conditions were not such that we could say, as a matter of law, that the appellee assumed the risk, or that he was guilty of contributory negligence in the manner in which he was performing his work.

The judgment is therefore affirmed.