author: MORROW, J. PRENDERGAST, J.

text:
    BOHANNON v. STATE.
    (No. 5037.)
    (Court of Criminal Appeals of Texas.
    June 28, 1918.)
    1. Criminal Daw <§=>507½ — Accomplices— ÜORROB ORATION.
    In a prosecution for incest, evidence held to require the court to* instruct, as matter of law, that the testimony of the prosecuting witness would not support a conviction, unless corroborated.
    2. Criminal Law <§=>1172(6) — Accomplices— Corroboration.
    In a prosecution for incest, error in permitting the jury to determine whether prosecutrix was an accomplice was necessarily prejudicial where court instructed that, if the jury found her to be an accomplice, corroboration was necessary to sustain the conviction; there not being sufficient facts to comply with the law requiring corroboration.
    3. Incest <§=>13 — Evidence—Other Acts.
    Other acts of intercourse or circumstances showing familiarity between the parties is admissible when relevant to some controverted issue.
    4. Criminal Law <§=>507½ — Evidence—Admissibility.
    In a prosecution for incest, evidence as to previous acts of intercourse was admissible on the question of involuntary submission to defendant.
    5. Witnesses <§=>240(4) — Leadin® Questions.
    In a prosecution for incest, a question to prosecutrix by the district attorney whether she went to defendant’s bed every time because she was afraid of him. held objectionable as leading.
    Prendergast, J., dissenting.
    Appeal from District Court, Baylor County ; J. H. Milam, Judge.
    J. B. Bohannon was convicted of incest, and appeals.
    Reversed.
    J. A. Wheat, of Seymour, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of incest, and his punishment assessed at ten years’ confinement in the state penitentiary.

The prosecutrix, Mrs. Sutton, daughter of appellant, testified appellant had sexual intercourse with her in July, 1915; that it occurred about 9 o’clock at night at 'their home, a residence of , three rooms, two of which were bedrooms; that she was not occupying the room with appellant, but was asleep on the porch, when he came and woke her up and wanted her to come to his bed, which she did. While she was on the witness stand she was examined in the absence of the jury, and the court, after learning the purport of her testimony, to which appellant ohjectéd, held it admissible, and upon recalling the jury she testified that she hated to tell it, but that appellant had not treated her as a father, and that one time when she was about 16 years of age he threatened her life and split her dress with a knife because she would not give up to him, and that when she was about 18 years of age “he taken his gun one time to kill me; I knew he meant to kill me.” The district attorney then asked the following question:

“Now, at the timo you testified to here, about the time you went in his room in July, 1915, state whether 'or not you did that because you were afraid of him? A. Yes, sir; I was afraid of him. Q. That is the reason you went to his bed every time? A. Yes, sir; it was.”

Based upon this evidence, the court* refused to instruct the jury that the rule of accomplice testimony was to be applied to Mr.s. Sutton, but told them that, in substance, she would be an accomplice if she had sexual intercourse with him “voluntarily and of her own free will without fear on her part,” and further told the jury that, if there was any evidence of other acts of intercourse between said witness and- appellant, it was admitted only upon the question as to whether she submitted thereto from fear produced by threats or bodily injury made by the appellant.

Dora Bohannon, sister of Mrs. Sutton, testified :

“In July, 1915', I did hear something happen between my father and my sister. I heard a noise; I don’t know what kind of racket it was. I heard him kinder whisper through his teeth. That was about 10' o’clock at night. I was in bed, and my father, J. B. Bohannon, was also in bed. At the time I heard this noise my sister was in my room. When he made the noise my sister wont to his bed; then I heard the bed springs mashing or rattling. I don’t know how long that lasted. I don’t know whether they had intercourse or not.”

She said that she and her sister were sleeping in the same room, the north room, and the south room adjoining the boys’ room was occupied by appellant. Only the home folks were there;. She did not know whether her brother Walter was at home or not, and that her brother Bill was not. There were some little children sleeping with witness, some with her sister, and one boy sleeping with appellant upon a single bed. She did not see her father, nor see her sister get up and leave the room, and did not know whether she did so or not.

At the time the alleged act of intercourse took place the prosecutrix was 28 years of age. There were a number of other persons in the house, one sleeping in a single bed with her father. If she was sleeping on tire porch, and her father came to her and woke her up, and she- went to his bed as she claims, the circumstances indicate that she was careful not to arouse the other members of the family. If, as her sister claims, she and prosecu-trix were occupying the same room and appellant was in his own room and bed and made a noise, and, responding to the noise, the prosecutrix left the room which she and her sister were occupying and went to her father’s room, the same precaution with reference to disturbing other members of the family or l.etting her purpose be known must have been taken.

It is manifest that these circumstances were sufficient to require the court to instruct the jury as a matter of law that her testimony would not support a conviction unless corroborated. Pate v. State, 93 S. W. 556; Gillespie v. State, 49 Tex. Cr. R. 530, 93 S. W. 556; Burford v. State, 68 Tex. Cr. R. 295, 151 S. W. 538; Skidmore v. State, 57 Tex. Cr. R. 497, 123 S. W. 1129, 26 L. R. A. (N. S.) 446; Wadkins v. State, 58 Tex. Cr. R. 114, 124 S. W. 959, 137 Am. St. Rep. 922, 21 Ann. Cas. 556; Yernon’s C. C. P. art. 801, and notes, p. 732; Wharton, Crim. Ev. §-.

The state insists, however, that the evidence quoted above with reference to the previous conduct of the appellant towards the prosecutrix, and her testimony with reference to her fear of him, was such as to authorize the court to charge the jury, as he did, that the rule of accomplice testimony would not apply if she submitted because of fear. Mr. Branch on this subject says:

“A general statement of the prosecutrix that the accused 'had carnal knowledge of her without her consent, or ■ that she resisted, or that it was had through force, fear or threats, must be considered in connection with her other testimony and all the other facts in the case in determining whether or not her testimony given in behalf of the state is accomplice testimony, and if the proof shows that the act of intercourse alleged to be incestuous could not have occurred without her consent or that she did not oppose it, she is an accomplice witness.”

• See Mercer v. State, 17 Tex. App. 465; Dodson v. State, 24 Tex. App. 514, 6 S. W. 548; Coburn v. State, 36 Tex. Cr. R. 258, 36 S. W. 442.

In Burford v. State, 68 Tex. Cr. R. 295, 151 S. W. 538, the court used the. following language :

“While it is true that the prosecuting witness testified that she submitted through fear at the time she says the act of intercourse took place on which this prosecution is based, yet, if her testimony is to be accepted as true, the relations had existed for more than three years. Appellant had taken her to El Paso with him, had taken her to the Dallas fair, had taken her to Et. Worth, where they stopped at the Richelieu hotel, both occupying the same room, and at no time had she made an outcry. ■ These facts, as she had voluntarily gone with appellant on these trips, would, where the course of conduct had lasted for such great length of time, make her an accomplice in law, and the paragraph of the court’s charge complained of should not have been given, but the jury should have been instructed that she was an accomplice, and her testimony must be corroborated in a way tending to connect defendant with the offense on the occasion alleged.”

Considering her testimony, in connection with the other facts in the case showing her age and conduct, and the proximity of other persons, we believe the proof tends to show that the alleged act of intercourse could not have occurred without her consent, and that the court was not justified in authorizing the jury to determine that it was controlled by fear. If this be doubtful, it is clear that, taken in connection with the fact that the only testimony which would lead to the conclusion that her act was controlled by fear of appellant was developed by a leading question detailed above, admitted over appellant’s ■objection, the charge complained of was not proper. At the time the prosecutrix was cross-examined by state’s counsel and the damaging testimony quoted adduced through ■a leading question, the prosecutrix was a married woman 30 years of age, living with her husband in Van Zandt county, while the appellant resided in Knox or Baylor county. There is nothing to suggest that she was under constraint or otherwise within any of the exemptions which permit a party to cross-examine his own witness. We discern nothing to bring her within the rule permitting leading questions to a hostile, unwilling, or reluctant witness. Branch’s Ann. P. O. § 168.

Permitting the jury to determine whether Mrs. Sutton was an accomplice or not was necessarily prejudicial error under the record for the reason that, in connection therewith, the court instructed the jury that, if they found her to be an accomplice, corroboration was necessary to sustain the conviction, and in our opinion there are not sufficient' facts to comply with the law requiring corroboration. It is not clear that her sister testified to the same transaction that was detailed by the prosecutrix. This follows from the fact that the prosecutrix says that she was sleeping on the porch and her father came to her and woke her up and she then went to his bed. Her sister, the only corroborating witness, says that at the time it occurred she and the prosecutrix were occupying separate beds in the same room, that appellant was also in bed in his room, and that he made a noise following which she heard the bed springs rattling in the manner described, and assumes that her sister went to his -room, though the witness declares that she did not see her do so, did not see appellant, and does not know whether in fact she did go to the room occupied by her father. There are cases in which it has been decided that the fact that the court submitted to the jury the question as to whether a witness was or was not an accomplice was not reversible error, even though the evidence was such as to justify a charge that he was an accomplice as a matter of law. In these cases it will be found that there were facts proved or in evidence which would have authorized the jury to have concluded that the witness, if an accomplice, was sufficiently corroborated. These cases are distinguishable from this one by reason of tire fact that here, if the jury determined that the prosecutrix was an accomplice, there is an absence of sufficient corroborating testimony to support the verdict. In other words, in this case, if the jury determined, in response to the charge, that the prosecutrix was not an accomplice, their finding could be supported alone upon evidence which was illegally admitted. If they found that she was an accomplice, the verdict could not stand, because the evidence of corroboration was insufficient.

Appellant insists that, in so far as the evidence tends to show other acts of intercourse, it was improperly admitted. Upon the admissibility of suc-h testimony the writer is not disposed to disagree with the statement made by Judge Ramsey in Skidmore v. State, 57 Tex. Cr. R. 502, 123 S. W. 1129, 26 L. R. A. (N. S.) 446, wherein he says that such testimony should be rejected “unless so related in point of time it would throw some light on or tend to explain or corroborate the particular act relied upon”; in other words, other acts of intercourse or circumstances showing familiarity between the parties in the trial of sexual crimes, should be received when relevant to some controverted issue in the case. Bradshaw v. State, 198 S. W. 942.

As the record is presented, Mrs. Sutton testified to an act of intercourse with appellant, giving the time and the place and the circumstances. There was no evidence introduced to controvert its truth. There was no cross-examination of Mrs. Sutton, no evidence whatever introduced by appellant, and it cannot be said that her testimony as to the act 'upon which the prosecution is founded was controverted. Her own testimony as to previous acts could not of itself be used to corroborate her testimony. The learned trial judge, however, does'not seem to have been of the opinion that other acts of intercourse were relevant in this case, except in so far as they may have tended to show that the prose-cutrix was so brought under the influence or subject to the fear of appellant as to render her submission to him involuntary and to relieve her testimony of the impediment relating to accomplice testimony. Upon this issue we think such evidence would not be inadmissible. We think the leading manner in which it was sought to be introduced was subject to just objection, and there were not sufficient facts upon the subject developed to support her conclusion or statement that her act was the result of fear. It is possible upon another trial this phase of the case may be differently presented and supplemented by additional facts.

The errors pointed out require a reversal of the judgment of the lower court, which is accordingly so ordered.

PRENDERGAST, J.

(dissenting). The majority opinion herein holding that the lower court was wrong in submitting to the jury the question of whether or not the complaining witness, Mrs. Sutton, the daughter of appellant, was an accomplice, and in holding that the court should have taken the question away from the jury and peremptorily instructed that she was an accomplice, is clearly wrong. The former holding of this court in numerous cases, and down to the present time, has been the reverse of the holding of the majority in this case.

Mrs. Sutton, appellant’s own daughter, testified that he had sexual intercourse with her in July, 1915; the date was fixed at about July 8th. She testified:

“Before my father had sexual intercourse with me in July, 1915, he had made threats to me. I hate to tell it, but he never has been a father to me; he taken a knife and split down my dress, because I wouldn’t give up to him; then he taken his gun one time to kill me; I knew he meant to kill me. At the time.I testified about I went in his room in July I did that because I was afraid of Mm; that is the reason I went to his bed every time. When I went to his bed he had intercourse with me just as though I was his wife, forced me to.”

In Zollicoffer v. State, 16 Tex. App. 317, one Green, as is stated, was “unquestionably an accomplice.” He was indicted for the same offense, and turned state’s evidence in order to avoid being prosecuted himself. The court in that case, under that state of fact, submitted the question to the jury to decide whether he was an accomplice, and, if he was, he had to be corroborated. The appellant therein contended that that charge was error, and that the court should have expressly told the jury that he was an accomplice and had to be corroborated. The court held:

“It is insisted by appellant that the court erred in submitting to the jury the question as to whether or not the witness Green was an accomplice ; that the court should have directly charged the jury that he wasj an accomplice, the evidence being so conclusive of that fact. Whilst it would not, under some facts, be improper for the court in its charge to assume, and to instruct the jury, that a witness is an accomplice (Williams v. State, 42 Tex. 392; Barrara v. State, 42 Tex. 260), still we do not think it is error to submit the question to the jury. It has been the practice in such cases to submit this issue to the jury, and, believing the practice to be a safe and proper one, and in harmony with the spirit of our system of procedure, we are not disposed to change it.”

In Williams v. State, 33 Tex. Cr. R. 135, 25 S. W. 629, 28 S. W. 958, 47 Am. St. Rep. 21, it was complained that the court in that case erred in not instructing the jury that Mrs. Humphreys was an accomplice. The court said that:

“If the criminal connection with the unlawful aet is an admitted fact, the court may charge that the party so connected is an accomplice, and should be corroborated. If, however, there is any question about it, then it should be left to tlie jury to say whether the witness is an accomplice.”

The court therein referred to quoted from and approved the holding in the Zollicoffer Case, supra, and cited other cases to the same effect.

In Armstrong v. State, 33 Tex. Cr. R. 423, 26 S. W. 829, Judge Hurt held:

“If there be an issue raised by the evidence whether a witness be an accomplice or not, in such a case the court should leave the issue to be decided by the jury under proper instructions.”

To exactly the same effect are the cases of White v. State, 30 Tex. App. 652, 18 S. W. 462; Elizando v. State, 31 Tex. Cr. R. 237, 20 S. W. 560; Freeman v. State, 11 Tex. App. 92, 40 Am. Rep. 787; Rios v. State, 48 S. W. 505; McGrew v. State, 31 Tex. Cr. R. 336, 20 S. W. 740; Lockhart v. State, 29 Tex. App. 35, 13 S. W. 1012; Hankins v. State, 47 S. W. 992; Martin v. State, 38 Tex. Cr. R. 462, 43 S. W. 352.

In Creech v. State, 70 Tex. Cr. R. 239, 158 S. W. 277 this court, in discussing said question, held that, where there was no doubt, and the proof was certain that any witness was an accomplice, the court should so tell the jury, and held:

“But, even where that is 'the case, as said by Judge White in section 1000 in his Criminal Procedure: ‘Where a charge on accomplice testimony announces the rule with regard to such testimony, as provided in approved forms which are well established, it is sufficient, though the jury are not told in so many words that any particular witness who has testified in the case is an accomplice. McGrew v. State, 31 Tex. Cr. R. 336 [20 S. W. 740]; Lockhart v. State, 29 Tex. App. 35 [13 S. W. 1012]; Hankins v. State, 47 S. W. 992; Martin v. State, 38 Tex. Cr. R. 462 [43 S. W. 352]. So Mr. Branch in his Criminal Law (section 320, p. 183), says: ‘It is not error to leave it to the jury to say whether a witness is an accomplice, though such fact be apparent. Dill v. State, 28 S. W. 950; Carroll v. State, 62 S. W. 1061; Ransonm v. State, 49 S. W. 582; Zollicoffer v. State, 16 Tex. App. 312; Hankins v. State, 47 S. W. 992.’ ”

Other decisions even later could be cited holding the same thing, but it is unnecessary.

Judge White in his Ann. C. C. P. § 992, subd. 5, lays down unquestionably the true principle in this matter, saying:

“In incest, where the evidence tends strongly to show that the female knowingly, voluntarily, and with the same intent which actuated the defendant, united with him in the commission of the pífense, she is an accomplice. On the other hand, if she was the victim of force, threats, or fraud, or undue influence, so that she did not act voluntarily, nor join in the commission of the act with the same intent that actuated the accused, she is not an accomplice. Mercer v. State, 17 Tex. App. 452; Stewart v. State, 35 Tex. Cr. R. 174, 32 S. W. 766, 60 Am. St. Rep. 35; Tipton v. State, 30 Tex. App. 530, 17 S. W. 1097; Schoenfeldt v. State, 30 Tex. App. 695, 18 S. W. 640; Blanchette v. State, 29 Tex. App. 46, 14 S. W. 392; Dodson v. State, 24 Tex. Anp. 514, 6 S. W. 548; Freeman v. State, 11 Tex. App. 92, 40 Am. Rep. 787. See Jones v. State, 23 Tex. App. 501 [5 S. W. 138].”

The statute just as plainly and clearly makes it incest of the daughter to have sexual intercourse with her father as of the father to have intercourse with the daughter. In other words, if the act is voluntary and with the same intent committed by the father and daughter, the daughter is a principal precisely the same as the father, and she could be indicted, prosecuted, and convicted of incest under those circumstances just as well as her father could he. P. C. arts. 486 and 488. Suppose in this instance this daughter of appellant, Mrs. Sutton, had been indicted for incest instead of her father, or in addition to her father, and she had been on trial and had testified exactly the same in her own case as she testified in this case against her father, there can be no sort of doubt that the lower court under such circumstances could not legally have charged that from her testimony alone she was guilty of incest with her father and require the jury to convict her. This court, and every member of it, under such circumstances, upon proper objections by her to such charge, would unquestionably hold it was reversible error for the court to so charge. If the court in that instance would have no right to take the question away from the jury and to peremptorily instruct the jury that she was guilty of incest and to so convict her, neither can the court, when the father was on trial, take the question away from the jury and tell them she was guilty of incest, which the court by the opinion herein, if it prevails, will actually do.

Appellant’s bill objecting to what he claims was leading questions to Mrs. Sutton is wholly insufficient under all of the decisions of this court. In section 159, 1 Branch’s Ann. P. O., he lays down a correct proposition and cites many cases of tins court so bolding, to wit:

“A bill of exceptions taken because of leading questions must affirmatively exclude any idea that under the peculiar circumstances of the particular case the court was justified in permitting the state to ask leading questions, and if it does not do so no error is shown.”

And on page 90 lie lays down this further correct principle, citing many authorities of his court so holding, to wit:

“Permitting a leading question improperly will not be reversible error in the absence of a showing of prejudice thereby.”

Oases by the score decided by this court in addition to those cited by Mr. Branch could be collated. Both these, propositions are unquestionably the law of this state, or at least have been up to now, and should be adhered to. They are both particularly applicable to the bill and to the questions in this case. No case, and particularly this one, should be reversed because a leading question is asked. To do so, in my opinion, is inexcusable. It is to ignore and abandon the real substance, and wrongfully go off after a mere imaginary shadow.

The testimony of the two sisters, which was all of the testimony in this ease, wherein Mrs. Sutton says that the appellant called her to his bed at said time, and had intercourse with her, “forced her to,” and the testimony of her sister, Miss Bohannon, to the effect, even as stated by the prevailing opinion herein, unquestionably referred to the same transaction and no other. So that, if the jury had even decided under the correct charge given to them by the court that Mrs. Sutton was an accomplice of her father, then undoubtedly she was corrobo^t-ed by her sister in the testimony she gave. The testimony of the two sisters did not refer, and could not reasonably be construed to refer, to different transactions', but to the same identical transaction.

This case was undoubtedly tried without any reversible error having been committed. The proof is absolutely convincing and true that appellant 'had sexual intercourse with his daughter on the occasion she testified he did, and she was fully and completely corroborated by her sister, Miss Bohannon, as shown. This case should not be reversed, but should be affirmed.
      <g^}For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    SULLIVAN v. STATE.
    (No. 4676.)
    (Court of Criminal Appeals of Texas.
    May 29, 1918.)
    1. Attorney and Client — Criminal Law <S=661 — Necessity of Proof — Waiver.
    While counsel cannot agree to waive the introduction of criminative facts, accused may if the waiver is warranted by law.
    2. Intoxicating Liquors <⅜=>39 — Local Option — Evidence.
    In a prosecution for violation of the Local Option Law (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5715-5730), the fact that local option was in effect in the county would not he considered as a criminative fact, so that, in the absence of objection, the admission in evidence of an agreement of counsel that the felony local option law was in effect in the county was not error.
    3. Intoxicating Liquors @=»39 — Local Option — Proof.
    Local option may be shown by oral testimony or agreement in the absence of objection.
    4. Criminal Law <S=>404(4) — Admission of Evidence — Reversible Error.
    In a prosecution for violation of the Local Option Law, the admission, over objection, of the supposed bottle of whisky turned over to the deputy sheriff liy the state’s witness, where the evidence as to the identification of the bottle as that purchased was not clear, was reversible error.
    Appeal from District Court, Grayson County; C. T. Freeman, Judge.
    Frank Sullivan was convicted of violating the Local Option Law, and he appeals.
    Reversed and remanded.
    H. P. xlbney and B. F. Gafford, both of Sherman, for appellant. -E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of violating the Local Option Law (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5715-5730), his punishment being assessed at one. year’s confinement in the penitentiary.

The state’s case, in substance, is that Roberts, a deputy sheriff, gave the witness Gate-wood a dollar bill with which to purchase intoxicants. He testifies that he took the number of the bill and later during the day recovered it from appellant. Gatewood testified that Roberts gave him the dollar bill, and that he went with another, witness named Craven to appellant and bought whisky and paid for it with the dollar bill given him by Roberts. There is testimony of another witness for the state,' who was a constable in one of the outlying precincts, to the effect that he saw the witness Gatewood come from appellant’s place of business, and later they got the whisky from his person. Gatewood says there were two or three other parties in the house at the time he made the purchase, but these witnesses were not used on the trial. Craven testified that Gatewood came to a barber shop and gave him a drink of whisky out of a. bottle which he had then in his possession; that this was before Gatewood claimed to have gone to appellant’s place of business. In fact, Craven denies the testimony of Gatewood, and shows that Gatewood had the whisky before he saw appellant, and that he (Craven) borrowed 50 cents from Gatewood, and Gatewood informed him he had no money except this dollar bill, which he handed to Craven, and Craven went to appellant’s place of business and changed it and got in return two half silver dollars. This accounts, from defendant’s standpoint, for the whisky, and for the fact that appellant had the dollar bill. Appellant’s theory seems to be, from this testimony, that this was a sale by Gatewood to Roberts for the dollar hill, and that he did not purchase the whisky from appellant, but had it in his possession, and later gave the whisky to Roberts in return for the dollar bill.

There is an agreement set out in quotations in the record to the effect that the felony local option law was in force in Gray.-r son county, and had been since 1910 up to the present time. There was no objection urged to this testimony at the time it was offered. Had an objection been made, the court would have sustained it. We are of opinion under the authorities, as the matter is presented, it does not constitute reversible error. While counsel cannot agree to waive the introduction of criminative facts, the defendant may if the waiver is warranted by law; but the fact that local option was in effect would not be considered as a crimina-tive fact, and in the absence of objection we are of opinion this was not error. This matter came for decision in Morton v. State, 37 Tex. Cr. R. at page 133, 38 S. W. 1019. The opinion was written by Judge Hurt, in which the proposition was laid down that local option may be shown by oral testimony or agreement, in the absence of objection. The same proposition is laid down in Eoff v. State, 75 Tex. Cr. R. 245, 170 S. W. 707. Also in this connection see Bills v. State, 55 Tex. Cr. R. 541, 117 S. W. 835.

A bill of exceptions was reserved to the admission of the supposed bottle of whis-ky turned over to Roberts by Gatewood. The •evidence as to the identification of the bottle as that purchased is not clear and is seri•ously contested; but the bill recites, substantially, that over several objections by appellant the bottle was- permitted to go to the jury as well as its contents. We are of •opinion this was not only error, but, under the circumstances of this case, of sufficient importance to require a reversal of the judgment. See Dane v. State, 36 Tex. Cr. R. 86, 35 S. W. 661; Parker v. State, 75 S. W. 31; Branch’s Ann. P. C. p. 702; Alexander v. State, 204 S. W. 644, recently decided.

For this error, the judgment will be reversed, and the cause remanded.
      <©=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    ÆTNA INS. CO. v. LEWIS.
    (No. 5907.)

    (Court of Civil Appeals of Texas. Austin.
    June 5, 1918.)
    1. Insubance <9=319(1) — 'Warranties.
    Where a policy insured a gin plant, including buildings and personal property, failure to •operate gin during ginning season, as provided in a promissory warranty clause, voided policy as to buildings, but not as to personal property, unless the breach increased -the hazard or contributed to the loss. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4874a.
    2. Insubance <S=319(1) — Construction of Policy.
    A clause, in a fire insurance policy covering a gin plant, that policy should be void if building described become vacant or unoefcupied for ten days, could mean no more than that building should be used for purpose of ginning during ginning season.
    3. Insubance <§=319 (1) — Fire Insurance— Warranty.
    Under a fire policy covering a gin plant, assured warranting to operate gin plant during ginning season, it was no defense, regarding failure to operate plant during a season, that crop was so short that plant could not have been operated without loss.
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    Action by J. V.. Lewis against the JEtna Insurance Company. Judgment for plaintiff, and defendant appeals.
    Affirmed in part, and in part reversed and rendered.
    Thompson, Knight, Baker & Harris and Will C. Thompson, all of Dallas, for appellant. A. R. Eidson, of Hamilton, for appel-lee.

      Rehearing denied October 9, 1918.

   Findings of Fact.

JENKINS, J.

On May 5, 1916, appellant issued to appellee an insurance policy for 12 months, as follows: $350 on cotton gin building, valued at $1,000; $50 on frame boiler room, valued at $200; $900 on machinery, valued at $2,750; and $600 on engine and boiler, valued at $1,750. Total value of property, $5,700; total insurance, $1,900. It was stipulated in the policy that all the property therein insured, except the buildings, was agreed by the parties to be personal property. The policy contained, under the head of “Warranties by the Assured,’’ the following:

“Operation of Q-m Plant. That the property described herein will be in active operation during the ginning season, and that no machinery on storage, or not installed for use in said gin, is covered under this policy.”

The warranty clause contained an agreement that the breach of any of the undertakings therein should render the policy null and void, unless a waiver of such breach was indorsed on the policy, and extra premium paid for the increased hazard. The owner of the gin owned another gin situated within a mile thereof. On account of short cotton crop, he did not operate the gin which was insured during the cotton season of 1916. The evidence showed that, while the crop was very short, there was some cotton, perhaps about 50 bales, situated nearer this gin than any other, and which would have probably been ginned thereon had it been in operation. The ginning season opened in August and closed about November 1st. The fire occurred December 20th.

Opinion.

It is the contention of appellant that the policy was voided by failure to operate the gin as contained in the promissory warranty clause. We sustain this contention, in so far as it involves the buildings, one of which was insured for $350, and the other for $50; but we overrule it as to the machinery, for the reason that the same was agreed in the policy to be personal property, and the evidence shows that it was. The promissory warranty clause in the policy does not apply to personal property, unless the breach thereof increased the hazard, or contributed to the loss. Vernon’s Sayles’ Ann. Civ. St art. 4874a. This issue was submitted to the jury, and they found thereon in favor of appellee. The evidence sustained such finding. It is well established, by the decisions of this state and elsewhere, that a breach of promissory warranty voids a policy, and, as this rule of law is not changed by statute in this state as to real property, we hold that appellee cannot recover as to the houses.

Appellant further insists that the policy was rendered void by reason of the following clause:

“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied, and so remain for ten days.”

Appellant’s assignment with reference to this proposition is that:

The “undisputed evidence shows that the buildings described in the policy, and each of them, were unoccupied during a time when they were required to be occupied, and so remained for ten full days.”

It is apparent from this assignment that appellant does not contend that the buildings should have been occupied at all times, but only “during a time when they were required to be occupied.” The building being a gin, it was not in contemplation of the parties that it should be occupied, in the sense that any one should reside or do business therein. This reference to occupancy can mean no ■more than the building should be used for the purpose of ginning during the ginning season. ,

It is the contention of appellee that the promissory warranty as to ginning was not breached, for the reason that there was no ginning season during the year 10-16, the period covered by the policy. In support of this he argues that, inasmuch as the evidence shows that only about 50 bales would have been ginned on this gin, it would not have paid to operate it, and therefore, as to that gin, there was no ginning season. We do not concur in this view of the matter. Ap-pellee warranted that the gin should be in operation during the ginning season, and the fact that to operate it would have incurred a loss on his part does not change his obligation incurred by the warranty clause.

Appellee in the court below recovered judgment for $2,000. The judgment of the trial court is here reformed, so that appellee shall recover judgment for $1,500, the value of the machinery, with 6 per cent, interest from the date of the judgment in the court below, and that he shall take nothing by reason of the destruction of the gin buildings. As thus reformed, the judgment of the trial court is affirmed.

Affirmed in part, and in part reversed and rendered.
      <§=For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    LEE v. DURHAM.
    (No. 5944.)
    (Court of Civil Appeals of Texas. Austin.
    June 22, 1918.)
    1. ContRacis <&wkey;51 — .Consideration — Benefit to Promisor.
    Whqre D. accepted, in renewal of J.’s note, note signed by J. and L. as principals, D.’s agreement, with L.’s consent, made at the time of extending the renewal note, that D. would let J. work off the debt on D.’s farm, was without consideration, where it did not appear that any advantage accrued to D. on account of such promise.
    2. Estoppel <&wkey;78(5) — Contract.
    Where debtor, J„ gave note to D., secured by chattel mortgage and to meet unsecured obligation.1 due L., all parties agreed, to a renewal note signed by L. and J., as principals, and release of mortgage, and a subsequent agreement was made, on extending the renewal note, whereby D. was to let J. work off debt on a farm, which _ agreement was superseded, because of inability of J. to got supplies, by contract to work farm, D. to furnish supplies and to be reimbursed therefor, D. heU not estopped by original contract from suing L., where the bill for supplies exceeded the amount of work J. did.
    Appeal from Hamilton County Court; H. E. Trippet, Judge.
    Action by J. J. Durham against R. E. Lee. From a judgment for plaintiff, defendant- appeals.
    Affirmed.
    H. E. Chesley, of Hamilton, for appellant. A. R. Eidson, of Hamilton, for appellee.
   KEY, C. J.

This suit originated in a justice of the peace court, and was appealed to and finally tried in the county court, where the plaintiff obtained a judgment against the defendant upon a promissory note, which the defendant admitted he executed. This is the second time the case has been in this court, and a fuller statement of it will be found in Lee v. Durham, 156 S. W. 1135. At the last trial the case was submitted to a jury upon special issues, and, after verdict, judgment was rendered for the plaintiff, from which judgment the defendant, Lee, prosecutes this appeal.

The undisputed proof shows: That one W. L. Jones was indebted to appellee, Durham, upon a promissory note, which was secured by mortgage on Jones’ team, cotton crop, and an organ. At the same time Jones was indebted to appellant, Lee, which debt was not secured. That the three parties entered into an agreement, by which appellee, Durham accepted a renewal note for the debt Jones was owing him, which note was signed by W. L. Jones, appellant, R. E. Dee, and two other persons, all signing as principals. Thereupon Durham released his mortgage on the property referred to, and Jones sold it and applied part of the proceeds to the payment of the debt he owed appellant, Lee. The note just referred to, signed by appellant, Lee, and others, fell due in October, 1007, and soon thereafter an agreement was entered into extending the time of payment for one year; and as W. L. Jones and his son and son-in-law were about to become tenants upon a farm belonging to appellee, Durham, the latter promised' to let W. *L.. Jones do work on his farm to pay off the note, and Jones agreed to do so. This agreement was entered into at the suggestion, and- by the consent, of appellant, R. E. Lee. It does not appear that any advantage accrued to appel-lee, Durham, on account of such promise upon his part, and therefore we hold that it was without consideration, and not binding upon him. However, and be that as it may, the undisputed proof shows that before the written contract of agency was entered into, and after the verbal agreement just referred to, W. L. Jones and his associates ascertained that, as they could not get any one to furnish them, the necessary supplies to run the farm, they could not carry out their verbal agreement, and in view of that fact another and different rent contract was entered into, by which appellee, Durham, was to furnish them feed for their teams, and certain other supplies to enable them to make a crop, and was to be reimbursed therefor by the products of the land cultivated, and such labor as Jones and his associates might perform for Mr. Durham. Jones and his associates remained on the farm and cultivated the same for the years 1908 and 1909, and in a final settlement made in 1910, after allowing credit for all the labor they had performed for Mr. Durham* they owed him over $500 for feed and other supplies furnished under the rent contract. The foregoing facts being undisputed, the court might well have instructed the verdict for the plaintiff Durham, and therefore the judgment in his favor must be permitted to stand.

Appellant’s contention that the note in in question had been paid, because W. L. Jones performed more than enough labor on Mr. Durham’s farm to pay off the note under the original verbal agreement, and the ' further contention that Durham should be ; held to be estopped and denied the right to ; apply such labor to the discharge of Jones’ ; indebtedness under the rental contract sub- • sequently made, are without merit. The verbal agreement referred to was superseded by the subsequent contract, by the terms of i which appellee, Durham, had the right to j apply whatever compensation he owed Jones * ■ for labor performed to the satisfaction of Jones’ indebtedness to him under the subsequent contract, and there was no contract existing between appellant and appellee that would deny to the latter the right to make the subsequent contract. As before said, if at the- time appellee granted an extension of the payment of the note he promised to apply whatever labor Jones might perform to its satisfaction, such promise was without consideration, and not binding upon him.

As to the question of estoppel, which always rests upon the doctrine of equity, we find nothing in appellant’s favor. On the contrary, the equities seem to be in favor of appellee, Durham. In the first place, he released a mortgage in order that Jones might sell the mortgaged property and apply part of the proceeds to the payment of an unsecured debt he owed appellant, Lee. In the second place, if he had not released Jones from the original verbal agreement to rent the farm, the latter and his associates would have abandoned the same, and would not have performed the service which Lee now contends constituted payment of the note sued on. In other words, appellant’s plea of estoppel is based upon the original verbal agreement, which was abrogated and set aside by the subsequent agreement entered into, because of the fact that Jones and his associates could not perform their part of the original agreement. Hence we hold that the trial court did not commit error in striking out the plea of estoppel, and we also hold that under the terms of the second contract appellee had the right to have the labor performed by Jones and his associates applied, as was done, to the discharge of their indebtedness to appellee under that contract, and appellant has no right to have it applied to the discharge of the debt involved in this suit.

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

Affirmed.
      «SssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    EARLY-FOSTER CO. v. MACKAY TELEGRAPH CO.
    (No. 5926.)
    (Court of Civil Appeals of Texas. Austin.
    May 8, 1918.)
    1. Evidence <⅞=>174(2) — Books oe Account —Ledgers—Books oe Obiginal Entby.
    ' ; ; A ledger account for sending and receiving telegrams, made up from the telegrams themselves, and in which for the first time are entered the amount of the charges, held admissible as book of original entry, notwithstanding a counter blotter in which was made a partial record of telegrams.
    • 2. Telegraphs and Telephones &wkey;33(%) —Action eob Charges — Pleading and Evidence.

      i j * The proof in action for transmitting telegrams being that the charges were the usual and customary rates, recovery must be regarded as had on a quantum meruit; and it is immaterial that plaintiff, pleading it was under Interstate Commerce Commission’s jurisdiction, and charges based on its order, but at trial waiving this contention, did not prove charges were based on Commission’s order and filed in office.
    3. Telegraphs and Telephones &wkey;>66(l)— ERROR in Transmission—Damages—Proof.
    Though price at which agent was authorized to sell was less in telegram as transmitted than in message filed, it is necessary, for recovery from company, to prove the value of goods exceeded the amount realized from agent’s sale.
    Appeal from McLennan County Court; Jas. P. Alexander, Judge.
    Action by the Maekay Telegraph Company against the Early-Foster Company. From a judgment for plaintiff, on appeal from a justice, defendant appeals.
    Affirmed.
    Nat Harris and Allan D. Sanford, both of Waco, for appellant. Edgar & Chas. Witt, of Waco, for appellee.
   RICE, J.

This suit was brought by the Telegraph Company against the Early-Foster Company to recover a balance on open account, amounting to $191.73, for services rendered them in sending and receiving over its lines certain telegrams during the months of January and February, 1914. Early-Foster Company pleaded a general denial, and in addition a cross-action, wherein they claimed to have been damaged by reason of appellee’s mistake in the transmission of a message from them to their broker in Chicago, authorizing him to sell Brazos linters at 3⅛ cents per pound, which message, on account of ap-pellee’s negligence, was construed by the broker to mean 3 cents per pound, thereby causing him to sell 300 bales of linters at 3. cents instead of 3⅛ cents resulting in a loss of $191.70. There was a judgment in the justice court, denying the right of either party to recover, from which judgment appellee appealed to the county court, where, on a trial de novo before the court without a jury, judgment was rendered for the Telegraph Company on its cause of action for $191.73, but denying appellants the right to recover on their cross-action, from which judgment appellants have prosecuted this appeal.

During the trial, appellee, over appellants’ objection, was allowed to introduce in evidence a duplicate copy of the account sued on; the abjection being that it did not come from the book of original entry, claiming that each and every item of said account was first recorded in the counter blotter, which was kept by persons other than the bookkeeper, and its absence was not accounted for. It is true that a counter blotter, consisting of loose leaves, was kept, in which a partial record of the telegrams was made; 'but it is shown from the record that the' ledger account from which the statement was taken was made up by the bookkeeper from the telegrams themselves, and not from the counter blotter, and that the counter blotter did not contain the amount of charges, as shown by the court’s explanation to appellants’ bill of exception, which were for the first time entered on the statement introduced in evidence. It is true that the counter blotter was a part of this system of bookkeeping, but this alone did not constitute it a book of original entry. It also appears from the testimony that copies of this statement prior thereto, had been sent to appellants, and they made no objection to its correctness. F'or which reasons, we overrule the first assignment of error.

While it is true that appellee pleaded that it was under the jurisdiction of the Interstate Commerce Commission, and the rates charged based upon its order, still, its failure to prove that such charges were authorized by the Commission and filed in the office at Waco did not, in our judgment, constitute reversible error, because it appears from the evidence that appellee’s attorney stated that he waived this contention, and the proof shows that tjhe rates charged were the usual and customary rates for such service, and recovery must be regarded as had upon a quantum meruit. Besides ■ this, there is no complaint on the part of appellants that the rates charged were excessive. For which reasons, we overrule this assignment.

By the third assignment it is urged that the court erred in finding against the appellants on their cross-aption, because the undisputed evidence in the record shows that by reason of the negligence of appellee in transmitting the message delivered to it by appellants they were damaged in the sum of $191.73. We overrule this assignment, because there is no proof in the record showing, or tending to show, that the linters in question had any value in excess of the amount realized from the sale of same. The burden was upon appellants to show this before they were entitled to recover.

Believing that substantial justice has been reached, and no reversible error has been shown, judgment of the court is in all things affirmed.

Affirmed.
      ©=»For otlier cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MILLER et al. v. CITY OF BALLINGER.
    (No. 6034.)
    (Court of Civil Appeals of Texas. Austin.
    May 22, 1918.)
    1. Appeal and Error <&wkey;164(3) — Orders Appealable.
    Neither the filing of an answer nor a motion to dissolve the injunction deprives defendant in an injunction proceeding of the right to appeal from a temporary writ granted upon an ex parte hearing.
    2. Injunction &wkey;>118(l)—Petition.
    In order for a party to be entitled to an injunction, his petition must not only state facts showing a prima facie case, but must also negative every reasonable inference, arising from'the facts stated, that the plaintiff may not be entitled to the relief
    3. Waiters and Water Courses &wkey;>197 — Municipal Water) Rights — Injunction:
    A municipal corporation, owning a waterworks system, is not entitled to injunction restraining others from using water from a stream, unless it shows that it has that right as' a riparian owner, or by limitations, or by permit, under Acts 33d Leg. c. 171, and chapter 172 (Vernon’s Sayles’ Ann. Oiv. St. 1914, arts. 5107 — 1 to 5Í07 — 105), and Acts 34th Leg. c. 138, with reference to use of public water.
    Appeal from District Court, Runnels County; J. O. Woodward, Judge.
    Proceeding by the City of Ballinger to enjoin C. S. Miller and others from pumping water out of the Colorado river. Erom an order granting a temporary writ of injunction, defendants appeal.
    Writ dissolved.
    Snodgrass, Dibrell & Snodgrass, of Coleman, for appellants.
   JENKINS, J.

This is an appeal from a temporary writ of injunction, granted upon an ex parte hearing, wherein appellants were enjoined from pumping water out of the Colorado river. Appellee moves to dismiss the appeal, for the reason that appellee’s petition was filed in' the district court April 8, 1918, and appellants were duly cited to answer the same, and thereafter, to wit, on April 18, 1918, appellants filed their answer, and on same date filed a motion to dissolve the temporary writ of injunction, and the same'was set for hearing on April 19 th, and that the appeal bond herein was filed on April 20th, subsequent to the date on which said motion was set for hearing, from which ap-pellee asks that it should be presumed that the court heard and overruled the motion to dissolve. Appellants filed an affidavit herein, showing that the court below did not act on said motion to dissolve the writ of injunction, for the reason that appellee claimed the full 10 day’s service of said motion, which would have placed the hearing of the .same more than 15 days after the writ of injunction herein was granted, and appellants would thereby have lost their right of appeal.

Neither the filing of an answer herein, nor the motion to dissolve the injunction, deprived appellants of their right of appeal. Young v. Dudney, 140 S. W. 802; Birchfield v. Bourland, 187 S. W. 422; Townsite Co. v. McFaddin, 56 Tex. Civ. App. 611, 121 S. W. 716; Houston Co. v. Park Co., 155 S. W. 965.

In order for a party to be entitled to an injunction, his petition must not only state facts showing a prima facie case, but must also negative every reasonable inference, arising from the facts stated, that the plaintiff may not be entitled to the relief sought. Gillis v. Rosenheimer, 64 Tex. 243; Carter v. Griffin, 32 Tex. 213; Paris v. Sturgeon, 50 Tex. Civ. App. 519, 110 S. W. 459; Weaver v. Emison, 153 S. W. 923; King v. Driver, 160 S. W. 415; Kell v. Bank, 168 S. W. 46.

Appellee’s petition for injunction alleges that it is an incorporated city under the laws of this state, and that it owns and operates a waterworks system, through which it furnishes its inhabitants with water for domestic purposes and for the prevention of fire; that its main supply of water is from Elm creek, but that it has been pumping water out nf the Colorado river from time to time as occasion required since 1905; that on account of severe drought its supply on Elm creek has been exhausted, and that it had been pumpingi from the Colorado river 39 days prior to the filing of the petition herein; that appellants have a pumping station on said river, about 1,000 feet above ap-pellee’s pumping station, and that they are pumping or threatening to pump water out of the same hole from which appellee pumps; and that if permitted to do so, said water will be exhausted in a short time, and the inhabitants of the -city of B'allinger will be without water.

These allegations do not show any right In the city of Ballinger to pump water from the Colorado river. It is not alleged that ap-pellee is a riparian owner.’ The allegations as to user would not be sufficient, in any event to establish a right by limitation; but the allegation that appellants are upper riparian owners shows, that appellee would acquire no rights by limitation, by reason of the fact that it had been using the water below appellants’ pumping station. Irrigation Co. v. Vivian, 74 Tex. 174, 11 S. W. 1078. The only right which appellee could have to the water of the Colorado river, aside.from the rights of riparian owner or of limitation, would be such as might have been acquired under a permit issued under the acts of 1913 (Acts 33d Leg. c. 171, and chapter 172 [Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5107 — 1 to 5107 — 105]) and 1915 (Acts 34th Leg. c. 138), with reference to the use of public wa; ters in this state. Appellee does not allege that it has sought or obtained any such permit. Failure to do so within 12 months after the passage of the act of 1913 would have barred it of any prior rights which it might have acquired by use.

Appellee’s petition, not only does not negative any right of appellants to said water, but inferentially shows such right, in that, if not positively, it is at least inferentially, stated that appellants are the owners of lands contiguous to said river, and therefore would have the rights of riparian owners to such water. It further alleges that appellants are claiming that they have a permit from the board of water engineers, authorizing them to pump said water. It is not denied that they have such permit. Had appellants’ petition for a permit been contested by appellee, it might have prevailed upon the,ground that to grant such permit to ap~ pellants was injurious to public interest; but it does not appear that appellee contested appellants’ right to a permit, and, if it did, the decision of the board of water engineers would be final on said issue, in the absence of an appeal.

For the reason that appellee’s petition does not show it entitled to the temporary writ of injunction granted herein, said writ is here dissolved; and this decision'will be certified to the court below for further action in the premises in accordance herewith.
      tgr^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      t&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    STROUD et al. v. MILLER.
    (No. 5921.)
    (Court of Civil Appeals of Texas. Austin.
    May 1, 1918.)
    Principal and Surety <&wkey;112 — Discharge or Surety — Payment by Principal.
    Where the principal maker of a note pays it with money secured from a third person, and takes it up without any ássignment of it being made, the debt is discharged, and the person who furnishes the money cannot recover on the note against the surety therein.
    Appeal from Bell County Court; M. B. Blair, Judge.
    Suit by W. H. Miller against Willie E. Lis-senbee and J. L. Stroud. From judgment for plaintiff, defendant Stroud appeals.
    Reversed and rendered.
    G. M. Felts, of Belton, for appellant. Sam D. Ware and Clem 0. Countess, both of Bel-ton, for appellee.
   RICE, J.

This suit originated in the justice court, and was brought by W. H. Miller against Willie E. Lissenbee and J. L. Stroud on a note executed by them, payable to the order of John H. Graves, of date January 1, 1915, for the sum of ?110, due October 1,1915, bearing interest, and providing for payment of usual attorney’s fees. Appellant Stroud answered, denying liability, pleaded, surety-ship, and payment by Lissenbee to the original payee, John H. Graves, after maturity. The trial in the justice court resulted in favor of appellant, from which an appeal was prosecuted by Miller to the county court, where the case was again tried, and judgment rendered in favor of appellee Miller, from which appellant, Stroud, alone has prosecuted-this appeal.

The facts, briefly summarized, show that, after the maturity of the Lissenbee-Stroud note, Miller, who had a note against Graves which he had been unable to collect, ascertained from Lissenbee that he and Stroud owed Graves the note in question, and arranged with Lissenbee to purchase it of Graves by turning over to Lissenbee his (Miller’s) note against Graves, and the difference in cash. Lissenbee thereafter saw Graves and paid off his note to Graves by turning over to him the toiler note and the difference in cash, s_p furnished him by Miller. Graves thought that Lissenhee was paying off his own note, and delivered it to him, who after-wards turned it over to Miller. The uncon-troverted evidence shows that Stroud was surety for Lissenbee, which fact was also known to Miller. There was no indorsement, transfer, or assignment by Graves of the note in question.

The case was submitted to the jury on one special issue alone, and that was whether Lissenbee was acting as the agent of Miller in the purchase of the Lissenbee-Stroud note, payable to John H. Graves; and the first assignment challenges the right of the court to submit this issue, on the ground that there was no pleading upon which to base it; hence no question of agency could arise in the case. A sufficient answer, we think, to this contention, is that appellant’s brief, itself, states that the case was carried to the county court for trial de novo, where appellee Miller orally alleged that in the payment of said note to Graves, Lissenbee acted as Miller’s agent, for which reason we overrule this assignment.

The second assignment urges that the court erred in refusing to give special charge No. 1, requested by appellant, as follows:

. “Gentlemen of the Jury: In this case the uncontroverted evidence shows that Willie B. Lissenbee was the principal maker of the note sued upon, and that J. L. Stroud was surety on said note,, and that said Lissenbee paid the same to John H. Graves, the original payee, after its maturity, and that said note was not taken by W. H. Miller in due coursei of dealing, and you are instructed to find for the defendant J. L. Stroud.”

We think appellant is right in this contention, and the charge should have been given. In Brandt on Suretyship, § 333, it is said:

“Where the principal in a note pays it with money furnished him by a third party, and takes it up without any assignment of it being made, the debt is discharged, and the party who furnishes the money cannot afterwards recover on the note against the surety therein.”

Again, in Pingrey on Suretyship, § 94, it is said:

“Payment of the debt by the principal discharges the surety. Whenever the principal debtor is released, the surety or cosureties are also discharged, and it is immaterial by whom the debt is paid, Thus, if the creditor receives money from the principal as payment, the surety is discharged, although the money was that of a third party, who had made the principal his agent to buy the note and not to pay it.”

We think the facts show that the note was paid off, and the appellant was discharged from further obligation thereon, for which reason the charge should have been given, and the court erred in failing to do so. This, in our opinion, necessitates a reversal, and rendition of the judgment in favor of appellant ; and it is so ordered.

Reversed and rendered.
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text:
    LION BONDING & SURETY CO. v. TRUSSED CONCRETE STEEL CO. OF TEXAS et al.
    (No. 5905.)
    (Court of Civil Appeals of Texas. Austin.
    April 17, 1918.
    Correction of Findings of Fact and Judgment, May 1, 1918.)
    1. Munich?At Corporations &wkey;>347(2) — Contractor's Bond — “Liens” — Liability ox Surety.
    Despite Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6394f-6394j, where bridge contractor’s bond was conditioned on completion according to specifications and delivery to city free from all liens, which completion was had and delivery free from liens made to city because no one can have a lien on public works, surety was not liable to materialmen; “liens” having its usual signification, and not meaning “claims.”
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Lien.l
    2. Contracts <&wkey;167 — Construction.
    The law must be read into every contract.
    3. Evidence <&wkey;S7 — Presumptions—Expect— Performance ox Duty by Officers.
    The presumption that public officers do their duty prevails, in the absence of proof, and not against it.
    • Appeal from District Court, Bell County; F. M. Spann, Judge.
    Suit 'by the Trussed Concrete Steel Company of Texas and others against the Hess & Skinner Engineering Company and the Dion Bonding & Surety Company. From Judgment for plaintiffs, the Bonding & Surety Company appeals.
    Reversed and rendered in part, and in part affirmed.
    A. B. Wilson, of Houston, and M. E. Mon-teith, of Belton, for appellant. Thompson, Knight, Baker & Harris and Alex. F. Weis-berg, all of Dallas, and Sam D. Ware, of Belton, for appellees.
   Findings of Pact.

JENKINS, J.

Tlie city of Belton, a municipal corporation under the laws of this state, entered into a contract with Hess & Skinner Engineering Company for the construction of two bridges in said city, in accordance with certain specifications, for which it agreed to pay a certain price. The contractor was to furnish all material and labor. In so far as said contract related to a bond to be executed by the contractor, it was as follows:

“Said contractor agrees to execute a good and sufficient bond, acceptable by the said city, conditioned upon the faithful performance of this contract by the said contractor, said bond to be in the sum of twenty-one thousand ($21,000.00)-dollars, and payable to Neal Bassell, mayor of the said city of Belton, at Belton, Texas. * * ⅜ saj<j contractor shall so execute the bond for faithful performance of this contract as to also cover guarantee that all labor and ma-terialmen’s liens shall be paid by the said contractor.”

The contractor executed a bond in the amount and payable to the party recited in the contract, which, in so far as it bears upon the condition of same, is as follows:

“Whereas, said principal has entered into a certain written contract, a copy of which is hereto attached and made a part hereof, bearing date the 20th day of May, 1914, for the construction and completion of two reinforced concrete bridges in the city of Belton, Texas: Now, therefore, the condition of the foregoing is such that, if the said principal shall well, truly, and faithfully comply with all the terms, covenants, and conditions of said contract on said principal’s part to be kept and performed, according to the tenor thereof, then this obligation is to be null and void; otherwise, to be and remain in full force and virtue in law.”

The contractor became indebted to appel-lees in the amount for which judgment was rendered for material used in the construction of said bridges, for which payment has not been made. The case was tried before the court without a jury, and judgment was rendered against the contractor for the amount found to be due, and also against the bondsman, the appellant herein, for the sum of $155.55. The court filed its findings of fact and conclusions of law. Error is assigned upon the court’s conclusion of law that the appellant was liable to appellees by reason of having executed said bond.

'Opinion.

Upon the authority of Campbell v. Smith, 148 S. W. 1195, Glass Co-, v. Iron Co., 147 S. W. 620, Smith v. Bowman, 32 Utah, 33, 88 Pac. 687, 9 L. K. A. (N. S.) 889, and authorities cited in the notes of the last above mentioned case, we have reached the conclusion that this case should be reversed and rendered in favor of appellant. -As was stated in reference to the bond in Glass Co. v. Iron Co., supra, 147 S. W. 623, the bond herein sued upon has two conditions. One is that the bridges should be completed according to their specifications, and the other that they should be delivered to the city of Belton free from all liens. Both conditions were complied with.

Appellees insist that, inasmuch as no one could have a lien on public works, the latter clause, if construed to mean what it says, is meaningless, and cite in support of their contention, Snider v. Greer, 51 Ind. App. 348, 96 N. E. 960. In that case the court so held in reference to a clause in favor of lienors; the law in Indiana being, as here, that no one was allowed a lien oh public works. The conclusion reached by the court in that case was:

“The 'bond must therefore be treated the same as though such words had been omitted.”

This application, which we think is correct,. is against appellees, for, if the clause with’ reference to lienors be omitted, the only obligation which appellant assumed was that the work should be done in the manner and time required by the. contract. In the case last above cited, recovery upon the bond was permitted, for the reason that, after rejecting the clause held to be meaningless, there still remained, in addition to the clause, that the contractor “shall in all things stand to, and abide by, and well and truly keep and perform, the covenants, conditions, and agreements of the above-mentioned contract, and shall duly and promptly pay and discharge all indebtedness that may be incurred by the said Edward S. Petra [the contractor] in carrying out the said contract.” No such clause is contained in the bond in the instant case. In fact, the contention of appellees is not that we should strike out the meaningless clause, but tliat we change the same so as to make “all labor and materialmen’s liens” read "all labor and materialmen’s claims.”

Appellees cite various passages from R. O. L. to the effect that the intention of the parties must be ascertained and enforced, and that rules of construction are to be resorted to in order to ascertain such intention. These rules are to be -resorted to when the language used admits of different meaning, but not otherwise. That excellent work states:

“This statement of the general rule [that the intention of the parties must prevail] necessarily implies that explicit and positive language, importing a different purpose, cannot be overruled, but must -be given its obvious meaning.” 6 R. C. L. 837.
“Accordingly, it is said that the agreement of the parties is to be ascertained from the plain language used by them, and such agreement is to be enforced, no matter what the intention may have been, and that, where the meaning of a contract is 'plain, another meaning cannot be added by, implication or intendment.” Id. 841.

The word “lien,” both in its ordinary and technical signification, has a fixed and well-understood meaning, and in the absence of fraud, accident, or mistake the parties must be presumed to have intended such meaning, and not a very different thing.

It is true, as asserted by appellees, that the law must be read into every contract. The law relied upon in the instant case is found in Vernon’s Sayles’ Ann. ,Civ. St. arts. 6394f to 6394j. These articles' of the statute made it the duty of the authorities of the city of Belton to require of the contractor a bond for the protection of those who furnished labor and material for the construction of the bridges, and the contract should not have been awarded without such bond. But it was. The presumption that public officers do their duty prevails in the absence of proof, and not against it. The law did not require appellant to execute such a bond, or any bond, unless it voluntarily chose to do so. It cannot be held to a liability that it did not assume, simply, for the reason that it was the duty of the public authorities to have demanded of the contractor a bond covering such liability. Whether or not appellant would have signed such a bond, had it been requested to' do so, we have no means of knowing;' but we do know, from the record herein, that it did not do so.

The bond herein sued on is not the statutory bond required by the articles of the statute above referred to, and the obligor therein is liable on the same only as com mon-law obligation. Jacobs v. Daugherty, 78 Tex. 682, 15 S. W. 160; Bank v. Hazard, 73 Tex. 542, 11 S. W. 626; Reid v. Fernandez, 52 Tex. 379; Jones v. Hays, 27 Tex. 1; Marshall v. Bailey, 27 Tex. 686; Johnson v. Erskine, 9 Tex. 1; Hanks v. Horton, 5 Tex. 103; Hillman v. Mayher, 38 Tex. Civ. App. 377, 85 S. W. 818; Mariany v. Lemaire, 83 S. W, 215.

For the reason stated, the judgment of the trial court against appellant is reversed, and here rendered for appellant. In all other respects the judgment is affirmed.

Reversed and rendered in part, and in part affirmed.

Correction of Findings of Fact and Judg- • ment.

This court having discovered an error in .the findings of fact in the opinion heretofore rendered herein, in that it does not correctly state the judgment of the trial court, the same is here'now on our own motion corrected, so as to show that judgment was rendered by the trial court against the contractor,for the amount alleged to be due, and .against appellant in favor of R. L. Henderson, receiver, for $155.55, in favor of the Trussed Concrete Steel Company for $1,644.-67, and in favor of Trinity Portland Cement Company for $2,384.78.

The judgment is here now reformed, so as to show that thfe judgment of the trial court, in so far as it was against appellant, is reversed and rendered in favor of appellant, but in all other respects it is affirmed.
      &wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HAYS v. DEELEY et al.
    (No. 5929.)

    (Court of Civil Appeals of Texas. Austin.
    May 29, 1918.)
    1. Trial <&wkey; 143 — Questions for Jury.
    Where evidence is conflicting, questions of fact are for jury.
    2. Appeal and Error <&wkey; 1039(16) — Harmless Eeeoe.
    In action by broker on contract, and in the alternative against another, on ground that he falsely represented himself to be agent, court did not err in overruling plea in abatement for misjoinder of causes of action, where it directed verdict for first defendant on contract;1 such action being equivalent to sustaining the exception and directing an election. •
    3. Principal and Agent ⅞=^355(4) — Commissions of Broker.
    Where broker relied on statement of defendant that ,he was agent for landowner, and entered into a contract with him, and found a purchaser ready, aible, and willing to purchase, broker was entitled to recover from defendant personally.
    Appeal from McLennan County Court; Jas. P. Alexander, Judge.
    Suit by F. W. Deeley and another against T. Mioore Hays and another. Judgment for plaintiffs against the named defendant, and he appeals.
    Affirmed.
    Tirey & Tirey, of Waco, for appellant.

      Rehearing denied October 9, 1918.

   RICE, J.

This suit was brought by E. W.

Deeley and R. E. O’Connell, real estate agents, to recover commissions against Mrs. Ida M. Hays and her son,'T. Moore Hays, alleging that T. Moore Hays, claiming to be agent for his mother, listed with them for sale or exchange a certain farm in McLennan county, and about the same time Chas. N. Smith and John B. Fisher also listed with them for sale or exchange certain lots in the city of Waco, each agreeing to pay a commission of $300, in the event a sale or exchange of said property was perfected; that subsequently through their efforts the respective parties entered into a contract of exchange of their said properties, T. Moore Hays executing said contract in the name of his mother. Appellees sought recovery against Mrs. Ida M. Hays oft the alleged contract, and in the alternative againát T. Moore Hays, on the ground that he falsely represented himself to be the agent of his mother, and sought recovery of damages agajnst him in the sum of $600, based on the alleged tort.

As shown from appellant’s brief, he and his mother, Mrs. Ida M. 1-Iays, filed a plea in abatement, and further pleaded special exceptions to plaintiffs’ petition, on ' the ground that it was a misjoinder of causes of action, and further pleaded general demurrer and general denial, and specially answered that the said Mrs. Ida M. Hays had never given the authority to T. Moore Hays, or any one else, to sell said real estate, nor had she authorized him, or any one else, to bind her in a contract to sell the same, which answer was adopted by appellant. To Moore Hays further pleaded in his special answer the facts concerning his authority, alleging that he informed appellees, and the parties they represented, of all the facts touching his authority, and that, therefore, he could not be bound, even though his mother was not bound under the contract executed by him in her name.

At the conclusion of the evidence the court instructed the jury to return a verdict for the defendant Mrs. Ida M. Hays, which was done, and submitted the case to the jury against the appellant, T. Moore Hays, alone, on the theory that he represented that he had authority to bind his mother in the contract. There was a jury trial, resulting in verdict and judgment in behalf of appellees in the sum of $300, from which this appeal is prosecuted.

The first assignment of error urges that the verdict and judgment is contrary to the law, for the reason that the testimony shows that the defendant T. Moore Hays fully disclosed to the plaintiffs, and to the said O. N. Smith and 'John B. Fisher, the facts concerning his authority, and therefore plaintiffs and the said C. N. Smith and John B. Fisher had the same opportunity to judge of the sufficiency thereof as the said T. Moore Hays did himself. By his proposition thereunder it is asserted thal, where the agent fully discloses to the third person facts concerning his authority, so that the latter may have the same opportunity of judging tfe sufficiency thereof as the agent himself, or if the third person himself has acted with presumptive knowledge of those facts, the agent cannot be held personally liable, even though tire principal is not bound. This involves a question of fact, which was submitted to the jury for their consideration. It is true the evidence is conflicting on this issue, but the determination of the question wart for the jury, who saw proper to resolve it against appellant; and since the evidence, •in our judgment, amply supports the verdict, we see no reason to disturb their finding in this respect.

It is urged that the court erred in overruling appellant’s plea in abatement to appellees’ first amended petition, as well as his several special exceptions addressed thereto, based on the contention that it contained a misjoinder of causes of action, in that the action against Mrs. Ida M. Hays grew out of a breach of a written contract, and the action against T. Moore Hays was for recovery of damages sounding in tort, based on the assumption that he wrongfully represented that he had authority to represent his mother in making a contract for the exchange of lands. We do not think the court erred in the respect complained of, for the reason that this question was eliminated by the action of the court in directing a verdict in behalf of Mrs. Ida M. Hays. It was equivalent to sustaining the exception, and directing an election as to which party appellees should proceed against, for which reason we overrule the several assignments referred to.

Appellant requested, and the court refused to give, the following special charge, which is assigned as error:

“You are instructed that, if you find from the evidence in this case that the representations, if any, of the said T. Moore Hays to the plaintiffs as to his powers and authority to bind his mother in the contract set out in plaintiffs’ first amended original petition, were such as to put the ordinarily reasonably prudent man on notice of the extent of his authority to bind his mother in the contract set out in plaintiffs’ first amended original petition, and you further find that plaintiffs made no inquiry as to appellant’s authority, then, if you so find, you will find for the defendant T. Moore 1-Iays, and say so by your verdict.”

As we view this case, there is no question of notice involved in it; but the sole inquiry was whether or not appellant represented to appellees that he had authority to bind his mother to the contract executed by him for the exchange of the land. If he did, and plaintiffs relied thereon, and found a purchaser therefor, who was ready, able, and willing to trade for said land on the terms of said contract, then appellees were entitled to recover; otherwise, not. This issue was clearly presented for the consideration of the jury by the charge of the court, who found against appellant thereon, for which reason we think the special charge was properly refused.

■The remaining assignments have been duly considered, and are overruled. No reversible error having been pointed out, the judgment of the court is in all respects affirmed.

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


text:
    TAYLOR COTTON OIL CO. v. EARLY-FOSTER CO.
    (No. 5904.)
    (Court of Civil Appeals of Texas. Austin.
    May 1, 1918.)
    1. CORPORATIONS &wkey;>371 — AUTHORITY.
    A corporation has implied authority to do whatever is reasonably necessary to carry out the purposes of its existence.
    2. Corporations &wkey;>458 — Powers—Contract to Sell Output.
    Under Rev. St. 1911, art. 1140, providing corporations have power to sell such personalty as their purposes may require, company chartered to do Cotton oil business had power to estimate year’s output of “linters,” estimate being reasonable and in good faith, and to contract to sell output on such estimate, being bound to deliver number of bales estimated.
    3. Sales <&wkey;172 —Failure, to Deliver — De-pense.
    A cotton oil company which manufactured from 850 to 900 bales of “linters” during the season before which it contracted to sell 850 to 950 bales, took its chance as to any drought, and cannot defend the buyer’s action for failure to deliver part of the contracted amount because the estimate fell short on account of drought.
    4. Sales &wkey;>l(4) — Uncertainty in Amount.
    A cotton oil company’s contract to sell and deliver from 850 to 950 'bales of “linters,” being enforceable as to the minimum amount, was not void for uncertainty.
    5. Sales &wkey;>52(5) — Mistake—Sueeiciency oe Evidence.
    In action against cotton oil company for failure to deliver contracted number of bales of “linters” sold by it, evidence held not to show that contract was entered into by mutual mistake, at least by mistake on part of oil company.
    6. Contracts <&wkey;03(5) — Mistake — Mutuality.
    Mistake of one party to a contract is no defense, unless induced by fraud of other party.
    7. Contracts <&wkey;147(2) — Intention oe Parties — Language.
    Where there is no ambiguity in a written contract, the intention of the parties is to be gathered from the language used.
    8. Appeal and Error <&wkey;1033(5) — Harmless Error — Too Favorable Ruling.
    Defendant appellant cannot complain of a ruling of the trial court unduly favorable to it, in that the action was for breach of contract, and an instruction allowed ⅛ the benefit of a mistake not mutual.
    9. Sales <&wkey;88 — Construction oe Contract —Duty oe Court.
    It was the duty of the trial court to construe the contract of sale in suit.
    Appeal from District Court, McLennan County; E. J. Clark, Judge.
    Suit by the Early-Foster Company against the Taylor Cotton Oil Company. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Melasky & Moody, of Taylor, and Sleeper, Boynton & Kendall, of Waco, for appellant. Nat Harris and Allan D. Sanford, both of Wttco, for appellee.
   Findings of Fact.

JENKINS, J.

Appellant and appellee entered into a contract whereby the appellant agreed, to sell to appellee from 850 to 950 bales of linters, the estimated output of appellant company for the year 1915-16, at a stated price, subject to the rules of the Texas Cotton Seed Crushers’- Association. Only a part of such linters were delivered. Appel-lee brought suit for the difference in the price agreed upon and the market price for such linters July 31, 1916, which, according to the rules of said association, was the end of the season of 1915-16, and was therefore the date on which appellant breached its contract. Judgment was rendered for appellee for the difference in the market price in the number of bales to be delivered according to said contract, less 15 per cent, thereof, and the number which were delivered.

Opinion.

Appellant’s first assignment is to the effect that the contract was ultra vires, in this: Its entire output of linters for the season of 1915-16 was 338 bales, all of which it delivered to appellee, and that it had no authority under its charter to contract for the sale of more bales of linters than it produced during the season.

Appellant is a corporation chartered for the purpose of doing a cotton oil business. A part of this business is shown to be to produce linters from cotton seed in the process of making cotton seed oil.

A corporation has implied authority to do whatever is reasonably necessary to carry out the purposes of its existence. Our statutes (Revised Statutes, art. 1140) provide that corporations have power “to purchase, hold, sell, mortgage, or otherwise convey such real and personal estate as the purposes of the corporation shall require.”

We do not think that appellant had the power, under its charter, to enter into the business of buying and selling linters on speculation; but, as it undoubtedly had the right to sell such linters as it manufactured, we think it had the power to estimate its output for a year, where such estimation is reasonable and made in good faith, and to contract to sell its output on such estimate, and in such event that it wotfLd be bound to deliver the number of bales estimated.

We do not think there is any merit in the contention that the estimate fell short by reason of the unprecedented drought in the community where the oil mill is situated. The appellant is shown to have manufactured from 8S0 to 900 bales of linters during the previous season, and when it estimated that it would manufacture that number of bales in 1915-16 it took the chance as to the season.

Appellant contends that the contract is void for uncertainty. With this we do not agree. A contract to deliver a number of bales, stating the minimum and maximum amount, is enforceable as to the minimum amount. Feuchtwanger v. Manitowoc, 187 Fed. 713, 109 C. C. A. 461; Indianapolis Cabinet Co. v. Herrman, 7 Ind. App. 462, 34 N. E. 579; Schreiber v. Butler, 84 Ind. 576.

Appellant also alleged that the contract was entered into by mutual mistake, and, if not by mutual mistake, then by mistake upon the part of appellant.

The contract provides for the sale of “850 to 950 bales (output) clean mill runs linters”; and further provides: “This contract is made subject to the rules of the Texas Cotton Seed Crushers’ Association (rule 23, section 3 omitted).” The evidence shows that rule 23, section 3, related to the sale of oil', and not to linters; and that the rule- relating to the sale of linters is rule-15, section 3, of said association. The secretary and president of appellant testified that they had conversation with Mr. Foster, of appel-lee company, over the phone, in which they agreed to sell linters to appellee at a price then agreed upon; that thereafter they received the written contract, and in reading it over discovered that rule 23, section 3, of the Cotton Seed Crushers’ Association referred to the shipment of oil, and that they thereupon supposed that the party drafting the contract had made a mistake and intended to insert “rule 15, section 3 omitted,” instead of rule 23. They did not, however, call appellee’s attention to the supposed mistake, but signed the contract as it was written. This does not tend to show any mistake upon the part of appellee. Ap-pellee testified that the contract was written upon a printed form intended to be used in the purchase of oil, and that there was no mistake on its part in inserting therein “rule 23, section 3 omitted.” However, as rule 23, section 3, has no application to linters, the contract must be read as if this statement had been omitted therefrom, unless rule 15, section 3, should be inserted in lieu thereof.

There is no ground for the contention of mutual mistake, and certainly there was no mistake upon the part of appellant, as it knew just how the contract read. A mistake on the part of one party is no defense, unless the same was induced by the fraud of the other. Finks v. Hollis, 38 Tex. Civ. App. 23, 85 S. W. 463; May v. Townsite Co., 83 Tex. 505, 18. S. W. 959; Brown v. Levy, 29 Tex. Civ. App. 389, 69 S. W, 255; Moore v. Studebaker, 136 S. W. 571; Box Co. v. Spies, 109 S. W. 432.

Where there is no ambiguity in a writ-. ten contract, the intention of the parties thereto is to be gathered from the language used. However, the court in its instruction to the jury allowed appellant the benefit of the supposed mistake. Rule 15, section 3, of the Cotton Seed Crushers’ Association provides as follows: " -

“When a sale is made of season’s or a balance of season’s output of linters, the seller must ship, and the buyer must receive, all of the linters seller makes to the end of'the season; provided, that when estimated number of bales is stated in contract, or any confirmation of sale or purchase, the buyer may demand, and the seller must ship-, or make shipment whether demanded or not, 15 per cent, in excess of estimated quantity, if he makes a sufficient number of bales to enable him to do so, and buyer must receive and pay for same at contract price. Bhoxild seller not make the quantity estimated, he shall deliver the number of bales made. A shipment of 85 per cent, of the estimated quantity shall be deemed a fulfillment <jf the contract.”

As stated, the court gave the appellant benefit of this clause, and gave judgment for the difference between the number of bales shipped and 85 per cent, of 850 bales, tne number estimated. Appellee does not complain of this ruling of the court, and certainly the appellant is in no condition to do so.

The contract sued upon is subject to the rules of the Cotton Seed Crushers’ Association or it is not. If by reason of the fact that the rule with reference to oil was inserted, .when the rule with reference to lin-ters should have been inserted, the entire reference to the rules of the Cotton Seed Crushers’ Association should be eliminated, then the contract is one absolutely to deliver the minimum of 850 bales. If the court had so construed it, it would have been more onerous on appellant than as construed. If only that part with reference to the Cotton Seed Crushers’ Association referring to rule 23, section 3, be stricken from the contract, then appellant would not have been entitled to the 15 per cent, reduction which the court gave it by applying said rule.

It was the duty of the court to construe the contract, and it did so most favorably to the appellant.

The court peremptorily instructed the jury to return a verdict for appellee, and in this there was no error.

For the reasons stated, the judgment of the trial court is affirmed.

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