author: HALE, J.

text:
    COMMONWEALTH BONDING & CASUALTY INS. CO. v. CURRY et al.

    (No. 884.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 19, 1916.
    Rehearing Denied Feb. 23, 1916.)
    1. COBPOBATIONS <&wkey;448 — PROMOTER’S AGREEMENT — Effect oe.
    # The promoter of two corporations sold plaintiffs stock in one of them; plaintiffs giving two notes for the purchase price, one of which was to constitute part of the surplus. The directoróte of the two corporations and the officers were practically the same, and thereafter defendant corporation, in which plaintiffs refused to purchase stock, having ratified the promoter’s contracts, received without consideration the note which was to constitute part of the surplus of the other. Held, that in such case, defendant corporation in accepting the benefits of the promoter’s contract accepted its burdens, and, not being a bona fide holder of the note, the promoter’s contract could be proven in an action to cancel the note.
    [Ed. Note — Eor other cases, see Corporations, Cent. Dig. §§ 1709, 1789-1792; Dec. Dig. &wkey; 448.]
    2. EvidbNcb &wkey;>471 — Conclusion on? Witnesses — Admissibility.
    In such case, the promoter might testify that defendant understood the plan of organization after it was incorporated; such testimony not being a conclusion.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. &wkey;471; Witnesses, Cent. Dig. §§ 833-836.]
    3. CORPORATIONS <&wkey;170 — STOCK—SUBSCRIPTIONS.
    In such case, as plaintiffs refused to purchase stock in defendant corporation, the fact that it obtained possession of their note and issued stock to them does not make them shareholders; for, in order to charge subscribers, it must appear that their subscriptions were made to the particular corporation on account of which liability is claimed.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 624-632; Dec. Dig. &wkey;170.]
    4. Corporations <&wkey;92 — Subscription to Stock — Notes—Validity—Failure op Consideration-Estoppel.
    Plaintiffs, who purchased stock in the B. Company, executed two notes, one for the par value of the stock and the other for its surplus. The stock was issued, but the surplus note was delivered to defendant, another corporation; defendant issuing its own stock to plaintiffs receiving as collateral the stock of the B. Company. Plaintiffs thereafter assigned defendant’s stock. Held that, as the issue of defendant’s stock was invalid, plaintiffs, though estopped from setting up fraud or denying their subscription, might secure cancellation of the note for the surplus, and recover either the stock of the B. Company received for the par value note, or its face value, on the ground of want of consideration.
    [Ed. Note. — Eor other cases, see Corporations, Cent. Dig. § 366; Dec. Dig. <&wkey;92.]
    5. Corporations <&wkey;92 — Purchases op Stock — Ratification—Estoppel.
    As Const, art. 12, § 6, forbids the issuing of stock save for money actually paid, a transaction whereby corporate stock is issued in consideration of a note cannot be ratified, and furnishes no basis for estoppel. [Ed. Note.' — For other cases, see Corporations, Cent. Dig. § 366; Dec. Dig. <&wkey;>92.]
    Appeal from District Court, Potter County; Hugh D. Umphres, Judge.
    Action by Thomas and J. J. Curry against the Commonwealth Bonding & Casualty Insurance Company and another. From a judgment for plaintiffs, the named defendant appeals.
    Affirmed. •
    Speer & Brown, of Ft. Worth, and A. A. Bumpkin, of Amarillo, for appellant. Kim-brough, Underwood & Jackson, of Amarillo, and H. A. Turner, of-Ft. Worth, for appellees.

      Application ior writ o£ error pending in Supreme Court.

   HALE, J.

Thomas and J. J. Curry filed this suit against the appellant company and R. T. Stuart, seeking to cancel a certain promissory note, in the sum of $1,875, and to require the delivery to them of 62 ⅛ one-tenth shares of stock in the Bankers’ Trust Company, alleged to be in the possession of the defendant, Commonwealth Bonding & Casualty Insurance Company. They prayed in the alternative for judgment for the value of said stock, in the sum of $625. It is alleged that the contract for the purchase of this stock was entered into with R. T. Stuart, in August, 1910; that payment therefor was made by one note for $625 and the note for $1,875, mentioned above, and that said stock in the Bankers’ Trust Company was to be issued and attached to the last-named note as security; that they refused to purchase, and would not purchase, stock in the said Comm,onwealth Company. The grounds alleged as a basis for the cancellation of the note and the recovery of the stock, or its value, were that Stuart, as agent and promoter of the Bankers’ Trust Company, fraudulently induced plaintiffs to take stock in the Bankers’ Trust Company and to execute in payment therefor the notes above described; that said Stuart subsequently fraudulently delivered the note for $1,875 to the defendant Commonwealth Bonding & Casualty Insurance Company, together with plaintiff’s stock in said Bankers’ Tfust Company, which was attached to said note as collateral. The particular allegations of fraud are that Stuart represented that the Bankers’ Trust Company would be organized under the laws of Texas with a capital stock of $100,000, and a surplus of $300,000, for the purpose of loaning,. borrowing, and reloaning money on real estate in Texas, and that said Trust Company and said Stuart would furnish to plaintiffs $100,000 in loans, according- to the proposed plan. It was further alleged that the Bankers’ Trust Company, when organized, had a capital stock of only $100,000, and that it had no surplus fund whatever, whereby plaintiff’s stock in-said company was worth only $625, instead of $2,500 as it would have been had said company possessed a surplus of $300,000; that plaintiffs had procured customers who desired to borrow money on good and sufficient securities, and that application was made to defendant Stuart to furnish such money with which to supply such customers; but that said Stuart and Bankers’ Trust Company refused to furnish any money whatever. That the officers and managers of the said Commonwealth Company knew that plaintiffs had not subscribed for stock in said company; and that, on learning that the said Commonwealth Company held their note for which it had issued to them its stock, plaintiffs immediately notified it of said false and fraudulent representations made to them, and informed it that they would not accept stock In It and would not pay therefor, and demanded the release, cancellation, and delivery to them of said note.

The Commonwealth Company answered, denying specially plaintiffs’ allegations of fraud and notice; alleging that it purchased said note of $1,S75 from the Bankers’ Trust Company for a valuable consideration before maturity and in the regular course of trade, without knowledge of any fraudulent representations made to the plaintiffs by any person, and without knowledge of any infirmity, and was therefore an innocent holder thereof, together with the securities attached to the same. Further, by way of es-toppel, it is alleged that the plaintiffs, after the issuance to them of its stock, and after the purchase by it of plaintiffs’ said note, and after plaintiffs were notified and after plaintiffs had full knowledge of the issuance to them of the stock in the defendant company, and of its ownership of their said note, plaintiffs exercised and asserted ownership of and title to said certificate of stock, and waived any right to complain of the matters set forth in their petition.

By supplemental petition, plaintiffs pleaded that they never knew of the issuance of stock in the Commonwealth Company at the time of its issuance and for a long time thereafter; that they never at any time, with knowledge of the facts, asserted ownership or title to said stock; nor gave defendant company any instruction as to the management or disposition of said stock; that if any such instruction was received from) plaintiffs it was procured by misrepresentation, fraud, and concealment; that at the time this note was delivered to defendant it knew the purpose and consideration for which said note was given; that it was given in payment of stock; that the transaction was illegal and void, and that the issuance of stock by the Commonwealth Company for and in consideration of the delivery to them of the note in controversy, was a transaction illegal and void; that the consideration for which said note was given had utterly and totally failed, in that the Bankers’ Trust Company was not organized so that its capital stock would be worth four for one, but was organized with only $100,000 capital and without any surplus, so that its stock was only worth the face value.

The case was tried before a jury and submitted on special issues. Upon plaintiffs’ motion for judgment, the court decreed'the cancellation of the note, rendered judgment against the Commonwealth Company for the delivery and possession to them of the shares of stock, and in the alternative, that if said shares of stock were not delivered to plaintiffs they should recover from the Commonwealth Company the sum of $625, with 6 per cent, interest from date.

It is insisted that the court erred in permitting Thomas Curry to testify, over appellant’s objection, that he told R. T. Stuart, the promoter of the two companies, that he did not want any stock in the Commonwealth Company; that Stuart had told him that $300,000 surplus had been paid into the Bankers’ Trust Company; that the company would loan money to Curry’s customers at 1 per cent, more than it cost the company to get it, taking deeds of trust on Western lands as security for the loans; that the company would be a Texas corporation and that the said Bankers’ Trust Company would buy stock in the Commonwealth Company to such an extent as would enable the first-named company to control the latter. The objection urged was that Stuart was a promoter and his representations could not bind the company until it was shown that the company had notice. Stuart testified that before the completion of the sale of the stock of the two companies, the. stockholders thereof had a meeting and entered into temporary organization of the Commonwealth Company, at which time Mr. Scarborough was elected president, Mr. Mills, secretary, Mr. Brandon, treasurer, and Mr. I-Iarkrider, active vice president. That when the Bankers’ Trust Company was organized Stuart was elected president and Scarborough and Hark-rider, vice presidents. That he did not know whether Mills was a nominal vice president or not, but that he was one of the directors; that Brandon was also a director; that after the Commonwealth Company was chartered, he (Stuart) was a director, and sometimes met with the other directors; that after the organization was perfected, the same officers were elected, with additional directors; and after organization, the company took over the contracts and notes of the temporary organization and ratified them. They understood the plan of the organization of the two companies, were parties to it, and all were stockholders in the Bankers’ Trust Company; some of them being also officials. This was sufficient to raise the issue of notice and prove ratification on the part of the company after its organization; and the objection was properly overruled. It was further shown that the Commonwealth Company never "paid any consideration for the note and was not a bona fide holder. The jury found that the Commonwealth Company knew the note for $1,875 was to be and constitute a part of the surplus of the Bankers’ Trust Company, at the time they accepted the note; and this finding is not directly assailed by the appellants. Under these conditions, we think the appellant company, in accepting the benefits of the contract, must also take over its burdens, and is bound by the representations and promises of Stuart, the promoter. American Home Life Insurance Co. v. Compere, 159 S. W. 79.

Appellant further insists that the court erred in permitting the witness Stuart to testify that the Commonwealth Company understood the plan of organization after It was incorporated. The objection was made that snch a statement was a conclusion of the witness. We think the trial court was correct in its ruling, and that the witness merely stated a fact. Rotan Grocery Co. v. Tatum, 149 S. W. 342; First State Bank & Trust Company of Hereford v. Southwestern Engineering & Const Co., 153 S. W. 680.

Under the fifth assignment it is contended that the court should have directed a verdict in favor of appellant because the evidence failed to establish fraud and sustain the plaintiffs’ allegations. It is true, fraud is alleged; but fraud is not the sole issue set up by plaintiffs, upon which they would be entitled to recover. They alleged a failure of consideration, and that they refused to purchase stock in the Commonwealth Company. Thomas Curry testified that they told Stuart they would not purchase stock in the Commonwealth Company. Stuart testified that neither he nor the Bankers’ Trust Company received any consideration from the Commonwealth Company; that the note was never turned into the Bankers’ Trust Company as a part of its $300,000 surplus; and that the proceeds of none of the notes of the various subscribers have gone into such surplus; that the Bankers’ Trust Company was never organized with a surplus fund of any amount. Stuart further testified that he had no authority to turn these notes over to the Commonwealth Company or to have stock issued to plaintiffs individually. It is uncontroverted that the plaintiffs, at no time, subscribed for, or contracted to purchase, stock in the Commonwealth Bonding & Casualty Insurance Company; that the issuance of said stock in the name ’of J. J. Curry, for the note executed by plaintiffs, and made payable to Stuart, as trustee, was not in compliance with the contract signed by plaintiffs, and not in accord with the understanding between Stuart and plaintiffs; nor was it in accordance with the agreement between Stuart and Mills., In the light of this testimony, the court would have erred in peremptorily instructing a verdict in favor of appellants. In Thompson on Corporations, par. 513, it is said:

“In order to charge subscribers, it must appear that their subscriptions were made to the particular corporation on account of which the liability is claimed, or that they have in some manner recognized their liability.”
Id. par. 45:
“The rule is not only founded in reason, but it has been expressly decided, that no person can be made a stockholder of a corporation without his consent, express or implied.”

The further point is raised by appellees that the Commonwealth Company issued its stock to them and that the only consideration therefor was the note in controversy. This note was intended by the makers to be turned into the Bankers’ Trust Company, and, when paid, to be a part of the proposed $300,000 surplus of that company. It had been diverted by Stuart, and taken by the Commonwealth Company in payment for shares of stock issued by that company. If it was understood that the note was taken in payment for the stock, both the note and the stock are clearly void, under the Constitution. Mason v. Bank, 156 S. W. 366; Sturdevant v. Falvey, 176 S. W. 908; San Antonio Irrigation Co. v. Deutschmann, 102 Tex. 201, 105 S. W. 486, 114 S. W. 1174. The transaction as between Curry and the Commonwealth Company cannot be considered as a subscription for stock, since they positively refused, when solicited by Stuart to do so, to take any stock in that company. So we think, regardless of the question of fraudulent representations, the issues should have been submitted to the jury.

Appellant contends that because Thos. and J. J. Curry executed an instrument, assigning 48.8 shares of stock in the Commonwealth Bonding & Casualty Insurance Company, to the Bankers’ Guaranty Company, reciting that it was all the stock they owned, and in the same instrument appointed one Allen to make the transfer on the books of the corporation, they are estopped to recover the $625 paid, or to cancel the $1,875 note, and have thereby waived the right to set up fraud. This contention is the fourth proposition under the fifth assignment The fifth assignment is that the court erred in refusing to direct a verdict for the appellant company. If we should concede that the proposition is a correct statement of the law, we think ap-pellees were entitled to cancellation of the note for $1,875, upon the ground of failure of consideration, regardless of the question of fraud. Furthermore, they would be entitled to recover as damages the value of the stock for which they had paid $625, even though the transfer should be treated as an affirmance of the act of the Commonwealth Company in issuing the stock. Grabenheimer v. Blum, 63 Tex. 369.

The act of appellees in executing the transfer of the shares of stock as one of the elements of an estoppel cannot be relied upon as such by the Commonwealth Company. The issuance of the stock, in consideration of the note, being an illegal transaction, and inhibited by the Constitution (article 12, § 6), cannot be ratified. State Nat. Bank v. Fink, 24 S. W. 939; Rue v. Ry. Co., 74 Tex. 474, 8 S. W. 533, 15 Am. St. Rep. 852; Elliott on Contracts, §§ 457, 1091.

What is here said disposes of the various contentions in appellant’s brief. We find no reversible error, and the judgment is affirmed.
      <®s=>Eor other oases see same topie and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: CONNER,

license: Public Domain

text:
    FIRST NAT. BANK OF FT. WORTH v. HENWOOD.
    (No. 8310.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 22, 1916.
    On Motion for Rehearing, Feb. 19, 1916.)
    1. Appeal and Eebob <&wkey;'569 — Agreed Statement oe Facts — Faieube oe Judge to Sign oe Apeeove — Eeeect.
    Where appellant brought up on appeal what purported to be a statement of facts proven on the trial, agreed to and signed by the attorneys for both parties, but not signed or approved by the trial judge, the statement cannot be considered.
    (Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2530-2545; Dec. Dig. <&wkey; 569.]
    2. Judgment &wkey;>456 — Default—Equitable Relief after Teem — Laches.
    Plaintiff alleged that it had been assured by defendant that under certain circumstances no judgment by default would be taken. The assurance was such as to entitle plaintiff to have the default set aside had it moved therefor in time. Plaintiff did not discover the default until after two days had elapsed after the rendition of judgment. Though several weeks of the term still remained, plaintiff failed to move to set aside the judgment during the term, but commenced this action in the following term to enjoin the enforcement of the judgment. Held, that it was not entitled to such relief in view of the fact that, with proper diligence, it might have moved for a new trial during the term, since a suit to set aside a judgment after the expiration of tie term of its rendition is in the nature of a new suit, in which plaintiff must show that it exercised diligence in pursuing its remedy or an excuse for its delay.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 863-866; Dec. Dig. <&wkey;456.]
    3. Judgment <&wkey;447 — Suit to Set Aside aft-eb Teem — Requisite Showing.
    A suit to restrain enforcement of a judgment after the expiration of the term is in the nature of a new suit, in which the plaintiff must not only show sufficient cause to authorize the court to set aside the judgment, but must also show a good defense to the action.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 849-851; Dec. Dig. <&wkey;447.]
    4. New Tbial <&wkey;119 — Dibectoby Statute.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2023, requiring motions to set aside judgments to be made within two days of their rendition, is directory only.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. § 243; Dec. Dig. &wkey;>119.]
    5. New Tbial &wkey;>119 — Tbial — Statutes — Court’s Discretion.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2019, providing for the granting of new trials and setting aside of judgments, and article 2023, limitirfg the time in which motions for new trial, etc., shall be made, it is within the court’s discretion to grant motions for new trials after the two days specified by article 2023 have elapsed.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. § 243; Dec. Dig. <&wkey;>119.]
    Appeal from Tarrant County Court; Chas. T. Prewett, Judge.
    Action by the First National Bank of Ft. Worth against B. E. Henwood to restrain an execution of a default judgment. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Ike' A. Wynn, of Ft. Worth, for appellant. F. M. Brantly, of Ft. Worth, for appellee.
   CONNER,

C. J. This was a suit by injunction to restrain the execution of a judgment by default in favor of appellee, Henwood, against the appellant, the First National Bank of Ft. Worth, for the sum of $226.05, rendered on November 7, 1911. It was alleged that prior to the rendition of the judgment appellant had been assured by the ap-pellee under circumstances specified that judgment would not be so taken' against it. The case was submitted upon special issues, and the jury found facts sufficient to excuse appellant from its failure to answer ■in the suit in which the judgment was rendered, but further found that knowledge of the fact of the rendition of the judgment had been obtained by the officers of the appellant bank several weeks prior to the adjournment of the term of court at which the judgment was rendered. Both parties moved the court for the entry of judgment, but the court granted the motion of appellee, and appellant has appealed.

Appellant has not brought up with the record a statement of facts that we can consider. What purports to be a statement of the facts proven upon the trial has been filed, agreed to and signed by the attorneys for both parties, but it is not signed nor approved by the trial judge. The statement therefore cannot be considered. See Vernon’s Sayles’ Texas Civil Statutes, art. 2068; Stone v. McClellan & Prince, 36 Tex. Civ. App. 364, 81 S. W. 751; Rawls v. State (Cr.App.) 150 S. W. 431; Railway Co. v. Keen, 73 S. W. 1074; Railway Co. v. Looney, 42 Tex. Civ. App. 234, 95 S. W. 691.

We have found but one question that can be considered in the absence of a statement of facts. The question is substantially raised under the fifth to the eighth assignments, inclusive, and is whether the trial court erred in rendering judgment for appel-lee, and thus denying appellant’s right for a new trial in the original case, on the findings of the jury. The findings are such as entitle appellant to the judgment, save for the fact that the verdict shows that knowledge of the judgment by default was brought home to the officers of the bank 'in time for relief in the court below several weeks before the adjournment of the term, as above stated.

Article 2019, Vernon’s Sayles’ Texas Civil Statutes, provides that:

“New trials may be granted and judgments may be set aside or arrested upon motion for good cause on such terms and conditions as the court shall direct.”
Article 2023 reads:
“All motions for new trials, in arrest of judgment, or to set aside a judgment, shall be made within two days after the rendition of the verdict, if the term of court shall continue so long; if not, then before the end of the term.”

Appellant’s insistence is that, in view of the fact found in this case that more than two days had elapsed after the rendition of the judgment before knowledge of the judgment was obtained, it is immaterial that its petition for a new trial was not filed until a subsequent term of the court. We do not feel prepared to adopt this contention. It is well settled that a suit to set aside a judgment after the expiration of the term is in the nature of a new suit, and that the plaintiff, complaining of the judgment, must not only show sufficient cause to authorize the court to set it aside, but must also show a good defense to the action. But we know of no case in which the courts have indulged such new suit and upheld the remedy by an appeal to the extraordinary writ of injunction, where it plainly appears that the facts might with proper diligence have been presented to and determined during the term by the court rendering the judgment. Diligence must be shown, the appeal to the equitable powers of the court must be reasonably prompt, or an excuse shown for delay.

It is to be observed that article 2019, quoted, is in general terms; the court, on motion, for good cause, is granted general power to set aside' judgments rendered by it ; and, as ordinarily construed, article 2023 is directory, and not mandatory. Numerous cases might be cited upholding the action of the trial.court in granting motions for new trial filed after the two days specified in the statute. Indeed,- we think it generally held that the court has the discretion to do so. See Dallas Oil & Refining Co. v. Portwood, 68 S. W. 1017; Railway Co. v. Kelley, 99 Tex. 87, 87 S. W. 660; Berhns v. Harris, 150 S. W. 495. Had appellant, therefore, upon its discovery of the rendition of the judgment by default now complained of, promptly presented the facts upon which it now relies to the trial court, it would, upon the proof of such facts, doubtless have granted relief. This was not done; and because of such failure it is evident that the court below denied relief in this action. In so doing we are unable to say that the trial court erred.

All assignments of error are overruled, therefore, and the judgment is affirmed.

On Motion for Rehearing.

Counsel for appellant in an able manner presented the contention, in substance, that article 4643 of our Revised Statutes, authorizing the issuance of injunctions, as construed by our Supreme Court in the case of Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994, authorized the writ of injunction involved in this case because of the equitable matter which is set up in his petition, regardless of whether appellant made application for new trial in the court below during the term. In other words, his contention is that, if the matters alleged by him constituted such equitable grounds as would authorize the court to set aside the judgment of which he complains, his most appropriate remedy, and indeed the only adequate remedy that he had, was to institute an independent suit, as he did do at the succeeding term of the court, to set aside the judgment. As stated in our original opinion, we think there can be no doubt but that the facts alleged by him, and indeed found in this case below by the jury, would in equity have entitled appellant to set aside the judgment by default of which he complains, and to have a new trial in that case. See Fox v. Robbins, 62 S. W. 821, and authorities therein cited. But say our Supreme Court in Vardeman v. Edwards, 21 Tex. 739, 740:

“The principles which govern the granting of new trials, upon application by petition after the term, are the same in our practice as those which govern similar applications made during the term. * * * The application, whether made before or after the term, is addressed to the same court, having cognizance of both legal and equitable causes; and there can be no reason why it should not be governed by precisely the same principles in the one case as the other; only with this qualification, that as the rule of law requires that the application be made during the term at which the verdict is rendered, if this be not done, the party must show an equitable excuse to entitle him to a hearing of his application after the terms” — citing a number oi cases.

The case of McGloin v. McGloin, 70 Tex. 634, 8 S. W. 305, was one where the appellant sued to set aside a judgment of a preceding term of the court, and the court say:

“The only question is as to the sufficiency of the petition. This is tested by the inquiries: First. Does it show a meritorious defense? Second. Does it show that by fraud, accident, or that by act of the adverse party he was prevented from making his defense on the trial? And, third. Has sufficient legal excuse been shown for not making the application during the term?”

These cases, as also the cases of Caperton v. Wanslow, 18 Tex. 125, Ragsdale v. Green, 36 Tex. 194, Bryorly v. Clark, 48 Tex. 345, and Rodriguez v. Espinosa, 25 S. W. 669, all support the conclusion announced by us in our original opinion that it was necessary that appellant, in order to have availed himself of the fraud of which he complained, should have presented the matter to the trial court during the term at which the judgment by default was rendered, and that, not having done so, and not having presented any excuse for his failure in this respect, he was not entitled to relief in a new and independent suit therefor, as this one was.

The motion for rehearing will be overruled.
      @uwFor other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    JOHNSTON et al. v. REYES et al.
    (No. 5608.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 9, 1916.)
    1. Wells <©=440 — Construction—Intention op Testator — Construction as a Whole.
    The intention of a testator as manifested by the language of the will taken as a whole controls any particular paragraph.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 956; Dec. Dig. <&wkey;>440.]
    2. Wills <&wkey;538 — Construction — Estate Conveyed — “In Case She Dies.”
    Where a will leaves property in fee to several legatees, and other property to the only legatee referred to in endearing terms, with the provision that “in case she dies” it shall pass to others, the quoted phrase refers to her death before that of testator, and where she survives him she takes in fee.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1162, 1302-1309; Dec. Dig. &wkey;538.
    For other definitions, see Words and Phrases, First and Second Series, In Case of Death.]
    3. Wills &wkey;>683 — Construction—Trust.
    Where the third paragraph of a will leaves certain real property and improvements thereon to the heirs of testator’s son, the fourth paragraph gives certain real and personal property to a granddaughter, and in case she dies to others, a portion of the fifth paragraph, directing that “this property bequeathed” shall be placed in trust and its revenue equally divided among beneficiaries named, applies only to the property described in the fourth paragraph and only in case of death of the legatee therein named before that of testator.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1603-1606; Dee. Dig. &wkey;683.]
    Error from District Court, Maverick County; W. C. Douglas, Judge.
    Action by Ninfa Johnston Garcia Reyes and husband against Adolfo G. Johnston and others. From judgment for plaintiffs, defendants bring error.
    Reformed and affirmed.
    J. R. Murray, of Eagle Pass, for plaintiffs in error. Sanford & Wright, of Eagle Pass, for defendants in error.
   FLY, C. J.

This is a suit instituted by Nin-fa Johnston Garcia Reyes, joined by her husband, Garcia Reyes, against Adolfo G. Johnston, Charles G. Johnston, Ricarda Faz de Johnston, and Alex Lyall, guardian of seven minors, for the purpose of procuring the construction of a certain will executed by C. S. P. Johnston, deceased, on December 4, 1909. Defendants in error claimed that under the terms of the will she was bequeathed certain property in fee simple and unincumbered by any trust. The opposite of this was asserted by plaintiffs in error. The will was construed as contended for by defendants in error.

The will, omitting the introductory part and the first and second paragraphs, which provide for payment of debts and burial expenses, and the clause providing for the appointment of Mrs. Ed. Schmidt as executrix, and the clause providing for a substitute executor, is as follows;

“3. I do give and bequeath to my dear children as follows: To my son Frederick P. Johnston, legal heirs out of lot 77½, block 3, range 3 (in the town of Eagle Pass, county and state aforesaid), 78 ft., fronting on Jefferson St. (a little more or less), 'beginning on the southeast corner of the dividing line joining Andres Flores property and running north; thence running west, 72 feet along the line of the house now occupied by Juan B. Garcia, thence south 78 ft. to Andres Flores line; thence east 72 feet to the place of beginning, with all improvements — to take possession following my death.
“4. I do give and bequeath to my dearest adopted granddaughter. Ninfa G. Johnston, daughter of my deceased daughter, Annie Johnston, the remaining parts of lots 77 and 77½ aforesaid, together with all improvements and household and kitchen furniture, and all other real, personal or mixed property which I may possess or be entitled to; and in case she dies ½ of her interest to fall to the legal heirs of my deceased son Fred P. Johnston and the other ½ to be equally divided between my adopted sons, Adolfo G. Johnston and Charles G. Johnston, her brothers. And when these 2 last named, Adolfo G. Johnston and Charles G. Johnston die, their interest to fall to the above heirs of Fred P. Johnston.
“5. I do direct that this property bequeathed shall be placed to drawing an income to the best advantage possible, and its revenue be used to defray all expenses, taxes, repairing or improvements on same, and whatever surplus accumulates, if any, to be duly and equally divided among said beneficiaries to help their support —until all of them become of lawful age.”

Very little light is thrown on the execution of the will, the agreement as to the facts not even indicating when the testator died, nor any other facts, except that the will was made during his last sickness; that at the time Ninfa Johnston was a minor, but is now over 21 years of age; that the testator was of sound mind and Ninfa was in good health when the will was drawn. There is nothing to indicate whether the testator realized that it was his last sickness or not, and that his death was imminent when he executed the will. It is not stated whether the will was a holograph one, although witnessed by only one witness. In fact, but little effort seems to have been made to secure facts which might have assisted in properly construing the will.

The intention of the testator must be ascertained from the language of the will, looking to all parts of it to ascertain the intention. All rules of construction are intended to aid in ascertaining the desire and intention of the testator. The Intention of the testator as manifested and indicated by the instrument taken as a whole will control any particular paragraph of a will. Schouler, Wills, § 462; Crosson v. Dwyer, 9 Tex. Civ. App. 482, 30 S. W. 929; McMurry v. Stanley, 69 Tex. 227, 6 S. W. 412.

By the third paragraph of the will, 78 feet out of lot 77⅜, block 3, range «3, fronting on Jefferson street in Eagle Pass, and fully described, is devised in fee simple to the heirs of Frederick P. Johnston, deceased son of the testator, and they were authorized to take possession immediately aftér the death of the testator. This absolutely and unconditionally vested the title to the land in the dev-isees and gave them immediate possession. In no subsequent part of the will is there any desire evinced to in any way disturb or limit that clause of the will.

In the fourth clause the only terms of affection or endearment used in the will are those describing Ninfa G. Johnston as his “dearest' adopted granddaughter.” He describes her as the daughter of his deceased daughter as well as his “dearest adopted granddaughter,” and it may be inferred that she had been taken into his household, and that he had the greatest affection for her. As indicating his love, he devised and bequeathed to her the remaining parts of lots 77 and 77½, together with all other property real, personal, or mixed that he might possess or be entitled to. The bequest is followed by the proviso that “in case she dies” the property should go to the others named therein. Those words, “in case she dies,” are obscure and are the prime cause of this litigation; the contention on the part of plaintiffs in error being that it was the intention of the testator to vest only a life estate in Ninfa Johnston. It will be noted that the estate devised to his son’s heirs, for whom no attachment was indicated by the language of the bequest, was in fee simple and to hold that the granddaughter who had been adopted by him, who was described as “my dearest'adopted granddaughter,” to whom he bequeathed all of his estate with the exception of the one parcel of land given to his son’s heirs, had only a life estate vested, would be to render nugatory the intention to give to his granddaughter the bulk of his estate in fee simple. To make the words, “in ease she dies,” mean when she dies, would not be consistent with other parts of the paragraph, and undoubtedly defeat the desires of the testator. It is much more reasonable, and more in conformity to the language used in making the bequest, to con.strue the words “in case she dies” to mean in case she died before the testator died. No one would use the term “in case she dies” except in. reference .to the happening of some ■other event, and that is shown in the very paragraph under consideration where it is provided that the property of Adolfo G. and Charles G. Johnston, that might come to them from their sister Ninfa, should “when they die” go to the heirs of Frederick P. Johnston. It is not disclosed when the testator died, nor whether he expected to die during the sickness from which he died, and it may be presumed that, like most other men under like circumstances, he knew he might die, but felt that he might recover and Ninfa might die before he did, and, in case she died before he did, he desired to make provision as to the property. It would be unreasonable to hold that the testator would use the words, “in case she dies,” to mean when she dies. He knew she would die at some time, and he did not desire to prepare for that; but, in. case she died before he did, then he desired to dispose of the property.

The trust intended to be created in paragraph 5 of the will had reference only to the property bequeathed to Ninfa, and only then in case she died and the property passed to the other legatees named in the paragraph. The testator had concluded his will as to the property bequeathed to his son’s heirs, and by “this property bequeathed” he meant that which might reach the hands of his minor grandsons, because he makes no provision for the trust as to the property if it passed to Ninfa, but it is to be put in trust for beneficiaries and not for a single beneficiary.

With no extrinsic evidence as to the age and domestic relations of the testator, without knowledge of how long the last sickness of testator continued, with nothing to guide the court except the simple language of the will, we are of the opinion that the intent of the testator will be attained by holding that the land given to Ninfa was not a life estate, but was a devise of the title in fee simple. It would not be contended that only a life estate in the personal property was intended, for in a few years much of it would wear out and become useless, and the same language is used in the will in regard to the personal property as to the real estate. We must conclude that the testator intended .to give the absolute title to all of his property, except that given to his son’s heirs, to the only one mentioned in the will in terms of love and affection.

In the paragraph directing that the property be so used as to produce an income no trustee was named, and it was merely the expression of a wish without being mandatory. If it referred to the property while in the hands of his granddaughter, the trust has been executed, for she is over 21 years of age and entitled to the property.

We differ from the trial court in the conclusion as to the words, “this property,” referring to all the property, and the judgment will be reformed in that respect, and as reformed will be affirmed.
      ^rsjFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. THOMPSON.
    (No. 5542.)

    (Court of Civil Appeals of Texas. Austin.
    Dec. 22, 1915.
    Rehearing Denied Feb. 2, 1916.)
    1. False Imprisonment &wkey;>15 — Acts o» Agent — Scope of Authority.
    Where a detective of a railroad company procured the arrest of plaintiff, an employs, on a charge of larceny, the railroad company was liable for all damages resulting; the arrest being unlawful, because without a warrant, and the detective acting within the scope of his authority.
    fBd. Note. — For other cases, see False Imprisonment, Cent. Dig. §§ 5-67; Dec. Dig. <&wkey;> 15.]
    2. False Imprisonment t&wkey;25 — Actions— Evidence.
    In an action for damages for unlawful arrest and incarceration on a charge of larceny, evidence as to plaintiff’s reputation for honesty is properly admitted; the injury to reputation being the principal one.
    [Ed. Note. — For other cases, see False Imprisonment, Gent. Dig. § 102; Dec. Dig. <&wkey;> 25.]
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge. "
    Action by Henry Thompson against • the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff* defendant appeals.
    Affirmed.
    Spell & Sanford, of Waco, for appellant. Russell H. Kingsbury, of Waco, for appellee.

      Application ior writ of error pending in Supreme Court.

   Findings of Fact.

JENKINS, J.

This is a suit by appellee to recover of appellant damages for wrongfully causing his arrest upon a charge of theft and having him confined in jail. Ap-pellee worked for appellant at Belle Meade, about four miles from Waco, where there were a number of employés. Each employé had a locker in which he placed his clothing. Several thefts of clothing had been committed. Appellant had employed one W. A. Johnson as a detective or special agent whose business it was to prevent depredations upon appellant’s property, and report any theft of such property, and have the parties guilty of such theft arrested, and also to report any irregularities upon the part of appellant’s employés. On the night of March 16, 1914, N. L. Smitham, the master mechanic of appellant at Belle Meade, told Johnson that it had been ascertained who the party was who was stealing at Belle Meade. He told him that Geo. Hirshman, an employe at Belle Meade, had found some of his clothing that had been stolen in the locker of appellee, and had positively identified the same, and suggested to him to take charge of the matter and get an officer and arrest the party, and that the party’s name was Henry Thompson, and that he was at work out at Belle Meade. This was between 10 and 11 o’clock at night. Hirshman testified that, about 6 o’clock at night, he made a similar statement to Smitham, and afterwards reported the same to Johnson, stating that he had lost a pair of overalls, a jumper, a pair of gloves, and a pair of trousers, and that he had broken into appellee’s locker and found his property which had been stolen, and positively identified the same. Johnson, at about 11 o’clock saw Lee Jenkins, a deputy sheriff, and related the facts as they had been stated to him, and further stated that, as the party’s locker had been broken open, he would probably discover that he had been caught up with, and that he had better arrest him immediately. Jenkins asked Johnson to go with him and point out the party to be arrested. Johnson replied that he did not know the party by sight, but that Mr. Moore, foreman of the roundhouse at Belle Meade, would point him out. Jenkins asked Johnson to go with him and assist in making the arrest, which he did. Johnson was a deputy sheriff. Upon arriving at Belle Meade they inquired of Moore for Thompson, and Moore pointed him out. Jenkins and Johnson arrested him and put him in jail. Some two or three hours later Hirshman phoned Smitham that they had arrested the wrong man, and Smitham reported this fact to the sheriff. The sheriff told the deputy Jenkins that they had arrested the wrong man, but the deputy suggested that he might be important as a witness, and they would keep him in jail until morning. It appears from the evidence that another man, Holland, was engaged in the same character of work as appellee, and that he was the man in whose locker the stolen articles had been found/ Upon receiving this information the sheriff arrested Holland and placed him in jail. The next morning appellee was turned out of jail, but taken to the courthouse as a witness in the case against Holland. No affidavit was made against appellee. ’When he was placed in jail he was put in the runaround with some Mexicans and negroes, and remained there all night. The jailer, upon receiving appellee from the deputy sheriff and Johnson, made the following entry upon his record: “200. Thompson, Henry, S — 16—14, petty theft, Jenkins.” Next morning he added the following: “Released, 3 — 17. Released by W. A. Johnson.” The case was tried before the court without a jury, and judgment rendered for the appellee for $1,-000.

Opinion.

Johnson was acting within the scope of his authority. He requested Jenkins to arrest the party pointed out by Moore, and Jenkins did so. No complaint having ever been made against appellee, the arrest was clearly wrongful, and the appellant is liable for whatever actual damages appellee sustained thereby. No exemplary damages were asked.

The court did not err in admitting the testimony as to the appellee’s reputation for honesty. One of the chief elements of damage in a case of this kind is injury to reputation. Testimony as to such reputation’s being good is not limited to the time of the trial; but the plaintiff may, if he can, prove that his reputation has been good all of his life.

There is no merit in appellant’s assignments as to newly discovered testimony concerning appellee’s reputation. No sufficient' diligence is shown in the effort to discover such testimony prior to the trial. The matters alleged are hearsay as to the witness’ making the affidavit, and they do not relate to the general reputation of appellee for honesty.

No error appearing of record, the judgment of the trial court is affirmed.

Affirmed.
      <&wkey;For other eases sea same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      (S^oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    SIMPSON v. INTERNATIONAL & G. N. R. CO.
    (No. 5537.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 2, 1916.)
    Appeal and Error <&wkey;>1135 — Record—Questions Presented.
    Where the record contained no assignment of error, motion for new trial, or bill of exceptions, and no fundamental error is suggested or observed, the judgment will be affirmed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4454, 4455; Dec. Dig. <&wkey;> 1135J
    Error from McLennan County Court; Tom L. McCullough, Judge.
    Action between T. W. Simpson and the International & Great Northern Railroad Company. From the judgment, Simpson brings error.
    Affirmed.
    Edgar & Chas. Witt, of Waco, for plaintiff in error. Wilson, Dabney & King, of Houston, and Neff & Taylor, of Waco, for defendant in error.
   KEY, C. J.

While counsel for the plaintiff in error have presented in their brief two alleged assignments of error, counsel for defendant in error Railway Company have objected to a consideration of the questions sought to be presented in plaintiff in error’s brief, because the record contains no assignment of error, no motion for new trial, or bill of exceptions. An examination of the transcript confirms that statement, and as no fundamental error has been suggested or observed, the judgment of the trial court is affirmed.

Affirmed.


author: BUCK, J.

text:
    MAGNOLIA COTTON OIL CO. v. CONTINENTAL OIL & COTTON CO.

    (No. 8306.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 15, 1916.
    Rehearing Denied Feb. 19, 1916.)
    1. Sales <&wkey;81 — Delivery—1Tike.
    Ordinarily, where delivery is to be made within a certain period, as within a designated month, the seller has until the last day of the month to make delivery.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 217-223; Dec. Dig. <&wkey;81.]
    2. Sales <&wkey;81 — Duty of Buyer to Furnish Cars — Performance.
    Where the buyer of goods has the right within a designated period to furnish cars or other receptacles for receiving the goods sold, delivery of the receptacles by him to the seller at any time before the expiration of the designated period, at most allowing a reasonable time for loading, is a compliance with the contract.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 217-223; .Dec. Dig. &wkey;81J
    3.Sales <&wkey;81 — Duty oe Buyer to Furnish Cars.
    AVhere ten tank cars of cotton seed oil were sold for shipment in January, the sale being made subject to the rules of the Cqtton Seed Crushers’ Association, which obligated the buyer to furnish at the seller’s mill empty tank cars for the delivery and shipment of the oil in time for its loading within January, and giving the seller 48 hours to load after delivery of the cars before he could be held in default, the seller had the right to cancel the contract as to five tank cars which did not reach it in time for it to have 2 full working days of 48 hours for loading them within the month of January.
    [Ed. Note. — For other cases, see Sales, Cent. ⅞⅛. §§ 217-223; Dee. Dig. &wkey;81J
    Appeal from District Court, Taylor County ; Thomas L. Blauton, Judge.
    Action by the Magnolia Cotton Oil Company against John Guitar, doing business as the Continental Oil & Cotton Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and Kirby, Scarborough & Davidson, of Abilene, for appellant. Hardwicke & Chambers, of Abilene, for appellee.

       Application for writ of error pending in Supreme Court.

   BUCK, J.

Plaintiff, in its petition, alleged that the defendant sold to the plaintiff 10 tank cars, or 1,600 barrels of 50 gallons each, of Bleach-able Prime Summer Yellow cotton seed oil, at a price of 31½ cents per gallon. It was alleged that the contract was made through W. L. Alderson & Co., brokers, Dallas, Tex.; said contract providing that the shipment was for January, 1915, and further providing, “sale made subject to the rules of the Texas Cotton Seed Crushers’ Association.” It was further alleged that, in partial compliance with the terms of said contract, defendant had delivered to plaintiff 5 tank cars, but had failed and refused to deliver the other 5, for which damages were sought in the sum of $6,600.

Defendant answered, among other things, that it had not breached said contract, in that, by the terms of the written memorandum of the brokers, which, with the rules of the Cotton Seed Crushers’ Association applicable thereto, constituted the entire contract, plaintiff was to furnish at defendant’s mill empty tank cars for the delivery and shipment of said oil in time for the loading of the same within the month of January, and that under the terms of the rules of said association the seller had 48 hours after the delivery of cars before he could he held in default. In the statement of facts the memorandum of contract is set out as follows:

“Contract No. 860.
“Dallas, Texas, October 22, 1914.
“Continental Oil & Cotton Company, Seller.
“Magnolia Cotton Oil Company, Buyer.
“Gentlemen: Per our exchange of telegrams and telephone conversations between Continental Oil & Cotton Company, of Abilene, Texas, and Magnolia Cotton Oil Company, at Houston, Texas, and ourselves, we beg to confirm having this day sold to Magnolia Cotton Oil Company for the account of Continental Oil & Cotton Company ten (10) tank cars (1,600 barrels) Bleachable Prime Summer Yellow cotton seed oil, all at 31½ cents (thirty-one and one-half cents) per gallon, loose f. o. b. Abilene, Texas.
“Shipment, January.
“Tanks to be furnished by buyer-seller’s routing.
“Capacity of tanks, 160 barrels each.
“Exchange free to buyer.
“Terms: Weights and quality guaranteed at destination. Sight draft bill lading attached. Sale made subject to the rules of Texas Cotton Seed Crushers’ Association.
“Commission to be paid by seller; namely, 10 per cent, per barrel of 50 gallons.
“This contract is made in triplicate, one copy being sent to the buyer, one to the seller, and one retained on file in this office.
“Yours very truly,
“W. L. Alderson & Company, “As Brokers Only.”

And it is further shown that by letter of December 23, 1914, defendant notified plaintiff that it was ready to begin delivery of the oil at any time and could load the entire 10 tank cars on arrival, asking that plaintiff give defendant some of the tanks at the earliest possible moment. By letter dated January 7, 1915, defendant wrote plaintiff as follows:

“We wrote you some time ago asking you to furnish us tanks as soon as possible to move the Alderson contract. The only routing we insist on is to have the tanks come to us over the Texas & Pacific, and if going to Houston, we would like to have them over the Katy or Santa PS.”

Pour tanks were forwarded by plaintiff and loaded out and shipped during the first half of January, 1915. One empty tank car was forwarded so that in ordinary course of transportation it should have arrived at Abilene prior to January 28, 1915; but, by reason of delay en route, it did not reach Abilene until January 30th. By reason of the delay occurring by no fault of plaintiff, defendant waived any question arising by reason of its construction of the terms of the contract, and loaded and shipped this tank; so that, it is only as to the other five that any issue is presented. Of these, one tank reached Abilene on January 29, 1915, 9 o’clock a. m., and was placed at defendant’s mill between 8 and 11 o’clock a. m. January 30th. Pour others arrived at Abilene January 30th, at 3:50 o’clock a. m., and were placed at defendant’s mill on the 31st between 4 and 5 o’clock p. m. Defendant did not load or ship any of these five tanks, but on January 29, 1915, notified plaintiff that the time of shipment of said tanks would not admit of their reaching Abilene within contract time, and that therefore defendant had elected to cancel said contract. January 31st was Sunday, and it is admitted in the statement of facts that none of the tanks not filled reached Abilene in time for the defendant to have two full working days, or 48 hours, for loading the same within the month of January. It is further agreed that if the contention of the defendant, to wit, that it should have two full working days before the expiration of the month of January in which to load and ship said tanks, is correct, the judgment of the trial court should be sustained. But, on the other hand, if plaintiff complied with the terms of the contract by delivering the empty tank cars at Abilene at any time before the expiration of January, then a judgment should be rendered for it in an agreed sum. Ordinarily, where delivery is to be made within a certain period, as within a designated month, the seller has until the last day of the month to make delivery. 35 Oyc. 177. And likewise, where the buyer has the right within a designated period to furnish cars or other receptacles for receiving the commodities, which are the subject of the sale, a delivery by him at any time before the expiration of the designated period or, at most allowing a reasonable time for loading, is a compliance with the terms of the contract. So that, the question before us is reduced to the one issue, to wit, whether by the terms of the contract defendant was entitled to the 48 working hours within the month of January in which to load and ship the oil.

We think from the terms of the broker’s memorandum, heretofore set out, that the time therein specified, to wit, January, within which the stipulations of said contract should be complied with, should not be extended beyond said month, and, upon demand by the buyer within a period prior to the expiration of the month sufficient for the seller to load and ship the oil within the specified time, the seller was obligated so to do. The term “January” relates to the time of shipment of oil by the seller, and not to the time of forwarding of the cars by the buyer. Rule 22, § 1(d) reads:

“Specified forwarding. — Tank cars shall be forwarded by buyer in such time that under the ordinary course of transportation they shall reach the seller before the expiration of contract time, and seller in all cases shall have up to forty-eight hours after delivery of each tank at destination in which to load and ship.”

Section 2 of said rule is as follows:

“It is understood that this entire rule refers to the forwarding of empty tank cars by the buyer, and does not refer to the movement of the oil by the seller.”

Rule 23, § 1, reads:

“Specified shimnents of oil or soap stock in buyer’s tanks shall be made within the time specified in the contract.”

Section 2:

“It is understood that for any of the above shipments of oil or soap stock in buyer’s tanks, the tank cars shall be forwarded by buyer in such time that under the ordinary course of transportation they shall reach the seller in time to allow him to make delivery as per contract, and seller shall have up to forty-eight hours of delivery of tank or tanks in which to load and ship.”

Rule 25, § 1, is as follows:

“.Failure on the part of buyer to forward ears in the proper time and give due notice thereof, shall entitle the seller, at his option, to cancel the contract, or to exact demurrage at the rate of two dollars per tank car for every day’s delay, or, upon notice, the right to sell the oil for the account of the buyer within forty-eight hours, Sundays and legal holidays not included, through any cotton oil broker in good standing, at the best obtainable price, holding the buyer for losses. Sale to be for earliest obtainable shipment, original buyer to pay demurrage for all delays. But in case of forwarding tanks for specified forwarding (paragraph d, rule 22) when it is shown that the tank cars were forwarded in due time as above specified, and delayed en route, the seller must fill them, charging the buyer two dollars per day per tank car as above specified, and the buyer must accept them under the contract. In case the seller elects to cancel, he must, after he has acquired the right to cancel any contract or part thereof, notify the buyer by wire of his intention to do so, it being understood that the contract is in force until such notice of cancellation has been given by the seller, and that the provisions of this rule apply to the movement of individual tank cars, and delay in regard to any number of tank cars embraced in one contract shall not influence action in regard to such tanks as may have been forwarded in proper time. Failure to give such notice shall operate as a renewal of the contract and shall extend the time of same as many days as seller allows to lapse before giving such notice.”

Rule 27, § 1, reads:

“Seller shall in all cases load tank cars within forty-eight hours of arrival at destination. In case the seller does not load the tank cars within forty-eight hours after arrival he shall pay the buyer two dollars for each tank car for every day’s delay beyond forty-eight hours. Or if at the expiration of forty-eight hours after the expiration of contract time of shipment, the tank ears have not been loaded, the buyer shall have the right to cancel or purchase the quantity of oil due on contract for account of seller at lowest obtainable price, through any cotton oil broker in good standing, holding the seller for the loss sustained.
“Note: It must be understood that this rule is intended only for the protection of the buyer after his tank cars have arrived at the mill, and in no case shall it be taken to extend the time of delivery under the contract, or to limit or interfere with the measure of damages that may arise under the contract.”

We think, under the rules quoted, it was undoubtedly contemplated that the empty tank cars should arrive at the point of loading within such time as to allow the seller 48 working hours for loading and shipping before the expiration of the time specified in the contract. In the case of Farmer v. Thrift, 94 Iowa, 374, 62 N. W. 804, the Supreme Court of Iowa held, in an action by the buyers of cattle to recover a part payment on account of the seller’s failure to deliver, where cattle contracted for were “to be weighed up on full feed and shrunk 3 per cent, any time” between certain dates, that the phrase “at any time” was qualified by “on full feed,” and that the defendant had the right to put them in that condition before weighing. In this case the plaintiff paid $300 on the purchase price of said cattle and some hogs, and the time of delivery under the contract was between the 1st and 20th of May. On the 17th day of May the plaintiff went to the premises of the defendant and informed him of his readiness to accept the cattle, but the defendant stated that it was just before feeding time in the evening, and that the cattle were not on “full feed,” and had not been fed since morning, and he then informed plaintiff that he would feed and water the cattle and put them in a condition to be weighed under the contract, etc. The court held that he had the right so to do, and that his refusal to deliver the cattle to plaintiff upon demand under the circumstances stated did not constitute a breach. In Larimore v. Hornbaker, 21 Ind. 430, the court held that, where the time and place of delivery are fixed by contract, a tender of property to be delivered, to be valid, must be made a reasonable time before sunset on the given day, and must be continued until that time, unless the party who is to receive the property tendered appeared sooner. See, also, Townes v. Oklahoma Mill Co., 85 Ark. 596, 109 S. W. 548.

We fail to find any error in the action of the trial court, and all assignments are overruled, and the judgment is affirmed.
      i&sjFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    CISCO OIL MILL v. SHEPHERD.
    (No. 557.)
    (Court of Civil Appeals of Texas. El Paso.
    April 13, 1916.)
    BANKRUPTCY i&wkey;431 — EFFECT OP DISCHARGE— Sureties on Appeau — Liability.
    Where after appeal by defendant from an adverse judgment of a justice he was adjudicated' a bankrupt, his discharge in bankruptcy, which precluded judgment against him in county court, also protected the sureties on his appeal bond; the bond being conditioned that the sureties would pay and satisfy any judgment that might be rendered against the principal.
    [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 783-786; Dec. Dig. &wkey;431.]
    Error from Callahan County Court; L. L. Blackburn, Judge.
    Action by the Cisco Oil Mill against M. A. Shepherd, begun in justice court, and appealed by defendant to the county court. From a judgment of the county court in favor of defendant, plaintiff brings error.
    Affirmed.
    See, also, 176 S. W. 822.
    F. S. Bell, of Baird, for plaintiff in error. Dallas Scarborough, of Abilene, for defendant in error.
   HARPER, C. J.

This suit originated in the justice court of Callahan county. There the Cisco Oil Mill, plaintiff, secured a judgment against M. A. Shepherd, defendant, for $107.60, upon open account. Within the time prescribed by law Shepherd perfected his ap-. peal from said judgment to the county court, by filing an appeal bond with J. N. Shepherd and W. C. Lasley, as sureties, February 20, 1912.

Thereafter appellee, M. A. Shepherd, filed proceeding in bankruptcy, and upon the 7th day of July, 1913, the United States District Court entered its order of discharge:

“That said Michael Andrew Shepherd be discharged from all debts and claims which are made payable by said acts against his estate which existed on the 25th day of February, 1913, on which day the petition for adjudication was filed by him, except such debts as are by law excepted from the operation of a discharge in bankruptcy.”

On the 19th day of September, 1914, the cause, as on appeal, was called for trial in the county court, and defendant Shepherd pleaded his discharge in bankruptcy in defense to the rendition of any judgment against him, and upon hearing before the court judgment was entered in favor of defendant, M. A. Shepherd, and the sureties upon the appeal bond, that plaintiff take nothing by its suit, from which it comes to us upon writ of error for review.

The appellant contends that he ,was entitled to a judgment against the principal and his sureties; if not against the principal, M. A. Shepherd, which could be collected, then a judgment against him, with an injunction restraining its execution, with judgment against the sureties for the payment of the debt.

The debt of the principal has been discharged by the order in bankruptcy. The liability of the sureties is limited to or by a strict construction of „their bond; for there can be no liability as to the surety unless a judgment is procured in the action against the principal. Their bond was to pay off and satisfy any judgment that might be rendered against their principal and them as sureties in the county court, and there could be no judgment rendered in the county court against their principal, for the reason that he is released from his debt, for which the suit is prosecuted by his discharge.

In the case of Wolf v. Stix, 99 U. S. 1, 25 L. Ed. 313:

“Section 5118, R. S., provides that: ‘No discharge shall release, discharge or affect any person liable for the same debt for or with the bankrupt, either as partner, joint contractor, in-dorser, surety, or otherwise.’ The cases are numerous in which it has been held, and we think correctly, that if one is bound as surety for another to pay any judgment that may be rendered in a specified action, if the judgment is defeated by the bankruptcy of the person for whom the obligation is assumed, the surety will be released. The obvious reason is that the event has not happened on which the liability of the surety was made to depend. Of this class of obligations are * * * appeal bonds.”

The rule might be different, as held in St. Louis W. Publ. Co. v. Rialto Grain & S. Co., 108 Mo. App. 479, 83 S. W. 781, if the judgment in the county court had been entered prior to the order of discharge, or again as held in Slusher v. Hopkins, 124 Ky. 44, 97 S. W. 1128, where the bond was given after final judgment, and the sureties obligated themselves to pay the judgment if affirmed by the appellate court, etc. But the distinction between the instant case and those relied upon by appellant is apparent. In this case the debt was discharged by the release in bankruptcy before it was established by judgment. It having been released, the county court had no authority to enter a judgment for the amount.

The judgment therefore must be affirmed; and it is so ordered.


author: HENDRICKS, J.

text:
    HALL v. NUNN ELECTRIC CO. et al.
    (No. 958.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 5, 1916.
    On Motion for Rehearing, April 26, 1916.)
    1. Garnishment &wkey;>40 — Property Subject— Unliquidated Damages — Breach oe Contract.
    Uncertain and unliquidated damages, resulting from breach of a contract, are not subject to garnishment.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 82; Dec. Dig. <&wkey;40.]
    2. Contracts <&wkey;280(5) — Performance.
    A contract to bore a well to supply 1,100 gallons of water per minute is not performed by furnishing a well supplying 450 to 500 'gallons per minute.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1258; Dec. Dig. &wkey;280(5).]

      3. Garnishment <&wkey;13 — Position of Plaintiff.
    Plaintiff' in garnishment steps into the shoes of his judgment debtor, and if nothing is owing the latter, the former is entitled to nothing ; -the writ appropriating whatever the garnishee owes at the time of the service of the writ and his answer.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 21-24; Dec. Dig. &wkey;13.]
    4. Garnishment &wkey;>109 — Transfer by Debt- or Before Answer — Accruing Debt.
    A debtor cannot transfer an unmatured and accruing debt owing to himself between the service of the writ of garnishment and the answer of the garnishee to give his transferee title.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 227-220; Dec. Dig. &wkey;109.]
    5. Garnishment <&wkey;40 — Property Subject— Claim on Contract — Effect of Nonperformance.
    Where a landowner contracted for the boring of an irrigation well to furnish 1,100 gallons of water per minute, and the well actually furnished 500 or less, such landowner was not subject to garnishment by the creditor of the contractors.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 82; Dec. Dig. ©¿>40.]
    6. Garnishment <&wkey;109 — Extinction of Rights of Garnishor.
    When the assignee of contractors to bore an irrigation well assigned to a third person its claim for the work and its alleged lion on the land securing the same, no lien or quasi lien being in existence against any fund in the landowner’s hands on account of the contractors’ failure of performance, the rights of file garnishing creditor of the contractors and their assignee were cut off.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 227-229; Dee. Dig. &wkey;100.]
    7. Garnishment <&wkey;>50 — “Possession” of Garnishee — Statute .
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 294, 295, providing in substance that if a garnishee has effects in his possession, and the court so adjudges, he shall deliver them to plaintiff to satisfy execution, etc., where contractors to bore an irrigation well left machinery 'on the landowner’s premises, contemplating that it should be connected with the well in fulfillment of their contract with the landowner, who, however, did not claim the property or assume to do so under his contract, or to take control of it for any purpose, the landowner did not have such “possession” of the property as to subject him to writ of garnishment by the judgment creditor of the contractors.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 92; Dec. Dig. ©s=>50.
    For other definitions, see Words and Phrases, First and Second Series, Possession.]
    On Motion for Rehearing.
    8. Contracts &wkey;>198(6) — Special Guaranty —Construction.
    Where the special guaranty of the equipment of an irrigation well stated that notes “are not to be delivered to the parties of the first part unless * * * they turn the well and machinery over to the party of the second part pumping 1,100 gallons of water regularly every minute,” such guaranty was that the well should deliver 1.100 gallons of water, and not that the equipment over the well should be able to do so.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 872; Dec. Dig. ©¿3198(6).]
    Error from District Court, Hale County; R. C. Joiner, Judge.
    Garnishment proceedings by the Nunn Electric Company against L. C. Wayland, in which Ira W. Hall intervened. To review a judgment for the garnishee, the intervener brings error.
    Reversed and remanded.
    Veale & Lumpkin, of Amarillo, and Cooper & Merrill, of Houston, for plaintiff in error. Kimbrough, Underwood & Jackson, of Amarillo, and Mathes & Williams and Graham & Graham, all of Plainview, for defendants in error.
   HENDRICKS, J.

On September 20, 1913, L. C. Wayland and wife entered into a contract in writing with Whyman Bros., a co-partnership, by the terms of which they were to dig, and equip with machinery, an irrigating well upon Wayland’s property, that would flow at least 1,100 gallons of water per minute, in consideration of which Way-land was to pay the sum of $3,400, and by the terms of the contract a lien was created on 160 acres of land (upon which the well was to be dug) to secure said sum of money.

On January 16, 1913, Wbyman Bros, transferred their right and interest in said contract to W. I. Busby, as well as the lien securing the same, which transfer was recorded in the deed records of Hale county, Tex., where the land was situated. Subsequent to the assignment to Busby, the Hick-cox-Whyman Engineering Company succeeded to all the interest and assets of Whyman Bros., continuing the well-drilling contracts of said firm, and the assignment to Busby, by Whyman Bros., was in reality in trust for the benefit of said engineering corporation, at that time in contemplation, and thereafter organized.

On June 20, 1913, the Nunn Electric Company, defendant in error, caused Wayland to he served with a writ of garnishment ancillary to a suit in the district court of Potter county, against Whyman Bros, and said Hickcox-Whyman Engineering Corporation, for the sum of $1,140, in which suit judgment was thereafter obtained for said sum.

On the 8th day of July, 1913, W. I. Bushy, to whom said well-drilling contract had been transferred by Whyman Bros., transferred the indebtedness arising out of said contract to one Ira W. Hall, which was in reality for the benefit of the Foos Gas Engine Company, who was also a creditor of Whyman Bros, and said engineering corporation, to the amount of about $13,000; the assignment of said interest in said contract having been made as security for said indebtedness.

On July 27, 1913, L. C. Wayland made a settlement of said contract with Ira W. Hall, by tlie terms of which Hall transferred the machinery which was to go over the well under the terms of the contract between Way-land and Whyman Bros., and Hall also released the lien upon said quarter section of land; Wayland agreeing to pay for said machinery and the release of said lien the sum of $2,050. By the terms of this agreement between Hall and Wayland, the sum of $1,-140 was to he placed in the hands of the district clerk of Potter county, and by him held until the disposition of this suit and then paid to the party — that is, the Nunn Electric Company or Hall- — entitled to the same.

This agreement between Hall and Way-land was made with the concurrence of the Nunn Electric Company, subject to the condition as to the payment of the $1,140 to the clerk of the district court of Potter county, to abide the litigation as to the ownership of said fund.

The contract between Wayland and Why-man Bros., as to the digging and completion of the well, provided that $400 cash, and certain notes, evidencing the balance of the $3,400, should be deposited in the Citizens’ National Bank of Plainview, Tex., in escrow, “and there to be held until said improvements are completed according to the terms of this contract and plans and specifications referred to as a part thereof,” etc. Connected with the specifications this special guaranty by Whyman Bros, was:

“Equipment is guaranteed to deliver 1.100 gallons per minute, measured over a weir into the ditch, and to be satisfactory in every respect, which means that notes are not to be delivered to parties _ of the first part unless by February, 1013, they turned the well and machinery over to the party of the second part, pumping 100 [1,100] gallons of water regularly per minute.”

Hall, who was the assignee of the contract from Busby, for the benefit of the Eoos Gas Engine Company, intervened in the garnishment suit, claiming the $1,100 deposited with the district clerk of Potter county, setting up the assignment of the Wayland well-drilling contract to Busby, the assignment by Busby to him, and asserting that at the time the writ of garnishment was served upon Way-land, for the purpose of impounding the money under the Wayland-Whyman Bros, contract, “the amount due under the terms of said contract was uncertain and could not be ascertained,” and that said well-drilling contract by Whyman Bros, had never been fulfilled and completed.

The garnishee, Wayland, denied indebtedness, or that he had effects in his possession belonging to Whyman Bros, or the engineering corporation at the time of the service of the writ of the filing of the answer, or that he knew of any other person so indebted, or so possessed of effects; also setting up the assignment by Whyman Bros, to Busby, by Busby to Hall, and his original contract with Whyman Bros., their noncomplianee with same and a settlement with Hall for the machinery and a release of his land— Wayland testifying that the conveyance of the machinery and the release of his land was, in the main, the actuating consideration of said settlement, for which he paid the sum of $2,125. He said, when they quit work on the well in April, 1913, the well was in an incomplete condition and would only pump from 450 to 500 gallons per ■ minute; that while he did not claim any damages in said settlement with Hall, he considered that he was entitled to the same as the contract specified the well would be completed by February 1, 1913, and he had prepared his land, and was “knocked out of a crop, he might have irrigated” for that year. He said, “All I figured in the settlement was that the well was practically worthless to me, and the machinery would possibly be worth the money if I could buy itthat he had worked twice on the well since he had settled with Hall and the best he was able to get out of it was between 800 and 850 gallons per minute. “I have used it a short time since then. It is questionable whether I will throw it away or use it, as there is more expense attached to it, the way it is, than, profits. The engine is all right, but the pump is no good and the well is no good.” He testified he did not use the well up to the time he made the settlement with Hall and considered that he was not legally bound to accept the same but did say he was “going to pay them according to contract and let them take everything off.”

Busby, Whyman, and Hickcox, all officers and stockholders of the engineering corporation, were witnesses in behalf of the plaintiff, the Nunn Electric Company, and were never asked, nor testified as to the fulfillment of the contract between Whyman Bros, and Wayland for the digging and equipment of said well. The trial court, without a jury, found for the garnishee.

Hall, the intervener, plaintiff in error herein, assigns that the evidence shows that at the time the writ of garnishment was served and the filing of the answer, if garnishee Wayland owed Whyman engineering corporation any sum, the same was an indeterminable interest and not subject to garnishment. The Nunn Electric Company denies this contention, but, if it is true, the argument is that the debt thereafter became determinable, and, furthermore, the evidence warranted the court in finding that “Wayland, the garnishee, had in his possession effects (the engine, pump, etc.) belonging to Hickcox-Whyman Engineering Corporation at the time the writ was served; and the $1,140.55 having been paid into court by agreement, between all parties concerned, took the place of such effects and plaintiff was entitled to recover.”

Damages resulting from the breach of a contract in their nature uncertain and un-liquidated are not subject to a garnishment.

“The sound basis for the rule is that the garnishee is required by the statute to answer under oath ‘What, if anything', he is indebted’ to the defendant; and it is unreasonable that he should be compelled to sv¡ ear to the amount of the demand which is not capable of being ascertained by a calculation made from data furnished by the contract itself considered in connection with the breach.” Grocer Co. v. Texas & Pacific Ry. Co., 95 Tex. 488, 68 S. W. 236, 59 L. R. A. 353.

Chief Justice Gaines further said in that case, quoting from Hugg v. Booth, 24 N. C. 282:

“The attachment could only be served on one ‘indebted’; and the judgment to be ‘upon his examination only’ — which yet more clearly evinces that it could only apply to such demands, of which the garnishee could conscientiously and with reasonable certainty state the amount on his oath, and not to a case of uncertain damages, of which there is no standard until assessed by a jury.”

Also see Medley v. American Radiator Co., 27 Tex. Civ. App. 384, 66 S. W. 86; McClellan v. Routh, 15 Tex. Civ. 344, 39 S. W. 607; American & Eng. Enc. Law, vol. 14, 765; Lumber Co. v. Surety Co., 35 Tex. Civ. App. 346, 80 S. W. 238; Mensing v. Engelke, 67 Tex. 537, 4 S. W. 202; Eikel v. Frelich, 1 White & W. Civ. Cas. Ct. App. § 1117; Holmes & Co. v. Pope & Fleming, 1 Ga. App. 338, 58 S. E. 281; Southern Flour & Grain Co. v. Northern Pacific Ry. Co., 127 Ga. 626, 56 S. E. 742, 9 L. R. A. (N. S.) 853, 119 Am. St. Rep. 356, 9 Ann. Cas. 437; Drake on Attachment (7th Ed.) par. 517 et seq.

The testimony shows without contradiction that at the time of the service of the writ of garnishment upon Wayland that, viewing the contract, as to its fulfillment, between Whyman Bros., as to the digging and completion of the well, there was a lack of substantial performance upon the part of Whyman Bros, and their successor, the engineering corporation, that Wayland was not indebted at said time. There seems to be no attempt to show, though plaintiff made the officers of the engineering company its witnesses, that there was any compliance by said corporation of said contract, according to its terms. Wayland denied indebtedness or that he had effects in his possession, setting up the contract between him and Why-man Bros., averring nonc-ompliance. The contract is susceptible of the construction that 1,100 gallons of water per minute, over a weir, running into the ditch should be regularly afforded from the well under construction, before any liability whatever attached to Wayland. A well pumping 450 to 500 gallons per minute is not such a well. The engineering corporation seems to have totally abandoned the project in the condition mentioned.

It is a fundamental rule that the plaintiff in garnishment steps into the shoes of his judgment debtor — if nothing is owing to the latter, the former of course, is entitled to nothing. A writ of garnishment appropriates whatever the garnishee owes at the time of the service of the writ and at the time of the garnishee’s answer.

It is true that it is held in this state that a debtor cannot transfer an unmatured and accruing debt, to some third person between the service of the writ and the answer of the garnishee; and, as in the actual case, if the defendant assigned rent not yet due accruing from a tenant after the latter was served with the writ and before the garnishee’s answer, the purchaser took nothing. Gause v. Cone, 73 Tex. 240, 11 S. W. 162. However, in the above case, the garnishee was really indebted to the garnish- or’s debtor. In this case, at least at the time the writ of garnishment was served, we can see no obligation of indebtedness from Wayland to Whyman Bros, or the engineering corporation. It may be said that if Wayland was not indebted to Whyman Bros, or the engineering corporation, that Hall, who took the assignment of a purported chose in action, received nothing. Hall received a transfer, technically, of the purported lien on Wayland’s property, and, while it is true that Wayland might have removed the lien in an action against the parties, according to this record, it was a matter with Wayland entirely optional, whether he should pay any sum or litigate. On account of the fact that he proposed to pay something, in order to get rid of the lien on his property and acquire the machinery and well in the condition as stated, does not militate against the legal proposition that, according to our conception of this record, he was not required to respond.

Chief Justice Willie said, in the case of Mensing v. Engelke, 67 Tex. 537, 4 S. W. 204:

“It is a cardinal principle in the law of garnishment that the service of the writ cannot have the effect of changing the nature of a contract between the defendant and the garnishee.”

We think no lien ever attached by virtue of the levy of the writ of garnishment upon any fund purported to have been owing by Wayland to Whyman Bros, or the engineering corporation for the reason that no such fund, in legal contemplation, was in existence.

When Hall, of the Eoos' Gas Engine Company, received an assignment of the lien, and the purported chose in action from the engineering corporation, no lien or quasi lien being in existence against any fund, we think the rights of the garnishor, in law, were cut off.

Appellees’ third counter proposition quoted, asserting that the evidence warranted the court to find that Wayland, the garnishee, had in his possession certain effects belonging to the engineering corporation, and that the money represented such effects, is not sustained by plaintiff in error’s statement sustaining such an enunciation.

The following is the statement of the testimony, marshaled on this proposition:

“Wayland testified: ‘And the original contract was abandoned and declared forfeited some time between May 2d and May 20th.- At the time the contract was declared forfeited there was no. agreement and I claim that whatever equities were in there I got by my transfer. At the time of making the settlement Mr. Hall sold me the machinery that I considered was on the place, the engine that had been installed and everything that was on the place. I didn’t make any claim to it myself and I didn’t file any claim against them.’ Hall testified: ‘Besides the 40 H. P. engine and pump, there were a few other things around there that amounted to a few dollars; the engine was shipped by the Poos Gas Engine Company. It was not shipped to Dr. Wayland. ⅜ ⅜ ⅜ It was shipped to one of them [Whyman Bros, or Hickcox-Whyman Engineering Company] and delivered to them. The contract of settlement between Hall and Wayland purported to ‘transfer and convey to Wayland from Hall said machinery, engine pump, etc., and provided that the money, $1,140, should be paid into court to be held subject to this suit. It was admitted upon the trial that plaintiff knew of the settlement arranged, and agreed it might be made if said money was so paid into court.”

There is really no denial by the garnishor, the Nunn Electric Company, of the garnishee’s answer, asserting that he had no effects in his possession belonging to the defendant debtor; simply an assertion that the money; deposited in court represents such effects.

The character of possession, under the authorities, imposing the responsibility upon the garnishee to a writ, is rather hard to define. Articles 294 and 295, Vernon’s Sayles’ Civil Statutes, contemplate that if the garnishee has effects in his possession, and the court so adjudged, that he shall deliver the same to the sheriff for the purpose of satisfying an execution; and if he fails to deliver after it having been adjudged that he has such effects in his possession, he is liable for contempt Rood on Garnishment, §§ 53 and 54, asserts that actual possession is not necessary, provided the personal property is within the power of the garnishee. Wade on Attachment, vol. 2, § 412, says:

“ ‘Control’ guides one to a more definite comprehension of the intention of the statute than the word ‘possession.’ It is understood to mean that the party having control has some power to direct the disposition of the property in question and we are not required to look critically into the question of possession.”

We are not disposed to attempt a correct enunciation of what is meant by possession under this statute, but we think that appel-lee does not show that Wayland had such possession contemplated by the above articles as would charge him as a garnishee. The property was simply left upon his land, and while it was contemplated by Whyman Bros, and the engineering corporation that said machinery would be connected with the well, as a fulfillment of their contract with Wayland, however, Wayland was not claiming the property, or assuming to do so under said contract, or assuming control of the same for any purpose; at least defendant in error’s statement does not show the fact

Wayland’s statement that he would have paid according to the contract and allowed the judgment debtors to remove the machinery off the land is merely an after declaration of an undisclosed intention, which is not a part of the contract as a matter of law. He may or may not have done so, and according to our interpretation of the obligatory features of the contract, he was not required to pay anything.

It is assigned that the trial court erred in taxing the fee against intervener, in favor of the garnishee, for the reason that the answer in garnishment was controverted. In view of another trial, such an assignment is probably immaterial. However, article 307, Vernon’s Sayles’ Revised Civil Statutes, and decisions annotated and cited thereunder, will afford a criterion in the event of a further contest and judgment.

Unless the evidence upon another trial is stronger upon the question of possession by Wayland, of the machinery, than exhibited by appellee in this record, we think Hall, the intervener, should have a judgment.

The cause is reversed and remanded.

On Motion for Rehearing.

We differ fundamentally with the defendant in error, Nunn Electric Company, as to the meaning of the special guaranty, quoted in the original opinion, bearing upon the obligation of Whyman Bros, and their successor, the engineering corporation, and the rights of Wayland, arising upon the well contract. The contention is made that the guaranty is relevant only to the ability and capacity of the equipment over the well as to the delivery of “1,100 gallons of water per minute, measured over a weir into a ditch,” and that said contract is devoid of any obligation that the well of itself shall have such capacity. The' contract on its face rath'er interprets itself; as to the guaranty of the equipment it further says that it “means that notes are not to be delivered to the parties of the first part unless * * * they turn the well and machinery over to the party of the second part, pumping 1,100 gallons of water regularly every minute.”

As a practical consideration, unless the well was developed to the capacity mentioned, the test could never be made that the pump and equipment could deliver 1,100 gallons of water per minute “measured over a weir into a ditch”; and it would mean, construed in its entirety, as it reads, that the well, as to its capacity, was to be turned over affording the water stated.

But, yielding the point, and assuming that at the time the writ of garnishment was issued, that Wayland owed something, by virtue of the contract, he, of course, did not owe the notes in the hands of the escrow. A 450 or 500 gallon well is not a 1,100 gallon well. Appellee would apply the rule of the measure oí damages, as applied to ,a building contract when abandoned, or violated by a building contractor, before the completion of the building. The record in this case excludes the idea that a 1,100 gallon well per minute could be developed by Wayland, the owner of the land when left in the inadequate condition stated — an 850 gallon well, after Wayland settled with Hall, is the testimony as to the limit of its development. Appellee was upon notice by the intervention of Hall, setting forth portions of the answer of the garnishee as to the noncompliance of the contract by the engineering corporation, months before the trial of this case; but no effort whatever was made to produce testimony in contradiction.

It must be borne in mind that the garnishee is required to “answer upon oath' what, if anything, he is indebted to the defendant.” Article 274, R. O. S.

The contract in this case contemplated a completed job with a depth of the well of 120 feet for $3,400, providing for a rebate of $3 per foot, if the lower stratum of water is struck at a less depth and an additional amount at the same rate if deeper. However, if this well could not be developed to a 1,100 gallon well, according to contract, could you apply the rule of what it would cost to finish it? This record excludes, rather than it suggests, that Wayland could ever get what he contracted for; hence, could you say that $3,400 entered into his obligation as an element of recovery against him, or $3 per foot as applied to the character of improvements? Would the contract as to the amount of recovery or demand furnish any data upon which the same could be calculated?

The cases of Capes v. Burgess et al., 135 Ill. 61, 25 N. E. 1000, and Hugg v. Booth, 24 N. C. 282, quoted from, by Chief Justice Gaines, in the case of Grocer Co. v. Railway Co., 95 Tex. 487, 68 S. W. 265, 59 L. R. A. 353, and relied upon as authority by him, in support of the doctrine announced in the Texas case, upon analysis of the contracts and the essential facts embodied in those cases, and the real holding of those courts, bearing a strong analogy to the contract and the question involved in this record. The North Carolina case is peculiarly applicable because the statute is the same; the construction of the Illinois Supreme Court makes their statute in effect the same.

We are following what we conceive to be the trend of the logic deducible from the Supreme Court case, supra, in holding that the character of damages, if any recoverable, is of such an unliquidated nature as not to be subject to garnishment.

The contention is further made, as upon the original hearing, that the unliquidated damages were liquidated' previous to trial, by the agreement between Hall and Wayland.

“It was said, however, that the attachment bound after the damages had been liquidated by the award of the jury. The obvious answer to this proposition is that Saylor assigned his claim to Selheimer before the award.” Selheimer v. Elder, 98 Pa. 158, 159.

The motion for rehearing is overruled.
      <SS=jFor other cases see same topic and KEY-NÜMBEK in all Key-Numbered Digests and Indexes

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