author: BUCK, J.

text:
    FIRST NAT. BANK OF LAFAYETTE, IND., v. FULLER et al.
    (No. 8496.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 6, 1917.
    Rehearing Denied Feb. 10, 1917.
    On Motion for Rehearing, Feb. 10, 1917.)
    1. Appeal and Ebror &wkey;>742(l) — Assignment oe Error — Untenable Reason.
    Since the reasons given to support an assignment of error constitute no part of the assignment itself, the assignment may be good, though the reasons urged in its support are .untenable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 8000; Dec. Dig. &wkey;>742(l).]
    2. Appeal and Error <&wkey;729 — Assignment oe Error— Sufficiency— Statute.
    Where the evidence is undisputed, an assignment complaining of the giving of the peremptory instruction for defendants sufficiently shows ground of plaintiff’s complaint, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612, prescribing the requisites of assignments of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2998, 3013; Dee. Dig. <?&wkey; 729.]
    3. Evidence t&wkey;441(9) — Parol Evidence Ae-eecting Writing — Sale oe Horse.
    Where parties to the sale of two stallions made two written contracts, one concerning the purchase of a stallion and the other concerning a stallion taken in exchange for him, the date for any exchange for defects of stallion specified by each contract controls any prior oral agreement.
    [Ed. Note. — For other casos, see Evidence, Cent. Dig. § 1787; Dec. Dig. &wkey;441(9).]
    4. Sales <&wkey;113 — Contracts—Breach.
    Where the parties specially limited the buyers’ remedy to a return of the horse within a time specified, the buyers were limited to the relief agreed upon, in the absence of fraud in securing the contract.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 286⅛ 287; Dec. Dig. &wkey;113.]-
    5. Sales <&wkey;168]£(8) — Return oe Property. A letter notifying the sellers that the second
    horse exchanged for the first had proven a failure, written after April 7th, was not a compliance with the contract that the horse be returned by April 1st.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 416; Dec. Dig. &wkey;168}£(8).]
    On Motion for Rehearing.
    6. Evidence &wkey;>71 — Presumptions—Receipt oe Letter.
    In suit against buyers of stallion by contract stipulating for return by certain date, evidence of defendants’ counsel held presumptive evidence that letter offering to return horse had been received by sellers.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 92; Dee. Dig. &wkey;>71.]
    Appeal from District Court, Tarrant County; R. B. Young, Judge.
    Suit by the First National Bank of Lafayette, Ind., against William Fuller and others. From a judgment for defendants, plaintiff appeals.
    Judgment reversed and rendered.
    Wm. J. Berne, of Ft. Worth, for appellant. L. R. Callaway, of Dallas, for appel-lees.
   BUCK, J.

May 18, 1911, defendants, residing at Kerens, Tex., purchased for breed-lug purposes from J. Crouch & Son, residing in Indiana, a certain stallion named Elector. At this time Crouch & Son had a stable leased at Ft. Worth, Tex., where they kept a number of stallions. The contract of guaranty under which this horse was sold reads as follows:

“In the Matter of the Sale of the Imported German Coach Stallion Elector, 5443. Hoof
No. 92.
Guaranty.
“We have this day sold the imported German coach stallion Elector, No. 5443, to the Kerens Horse Improvement Company, of Kerens, Tex., and we guarantee the said stallion to be a satisfactory sure breeder, provided the said stallion keeps in as sound and healthy condition as he now is and has proper care and exercise.
“If the said stallion should fail to be a satisfactory sure breeder with the above treatment, we agree to take the said stallion back, and the said Kerens Horse Improvement Company agrees to accept another imported German coach stallion or other stock of equal value in his place, the said stallion Elector No. 5443 to be returned to us at our stables in as sound and healthy condition as he is now by April 1, 1912.
“[Signed] J. Crouch & Son.
“Accepted:
“The Kerens Horse Improvement Company, “[Signed] G. C. Simmons, I’res.
“Hated at Kerens, Tex., this 22d day of March, 1911.”

Across the face of this written instrument was written or printed in red ink the following :

“Agents not permitted to change, modify, or sign any contract.”

The horse, proving unsatisfactory for the purposes for which it was bought, was returned to the Ft. Worth stables of Crouch & Son within the time specified, and another horse, named Moser, was delivered to ap-pellees, under a written contract identical in words with the former, except in the change of the name and number of the horse, and the date of return stipulated was April 1, 1913, and with the addition of the following paragraph:

“If the above-named stallion should become disabled before he is delivered, the said pux-ehas-ers agree to accept another German coach stallion of equal value in his place.”

Also the contract was shown to be dated at Ft. Worth, Tex., March 19, 1912.

On April 24, 1911, Crouch & Son sold the first note for $1,000 to the City National Bank of Lafayette, Ind., and it was by the bank subsequently transferred to Chas.. W. Hickman. On May 22, 1912, appellant, First National Bank of Lafayette, discounted the note due December 15, 1913, and on April 9, 1913, discounted the note due December 15, 1914, and in both instances passed the proceeds as credits to the account of Crouch & Son.

On April 7, 1913, Hickman filed suit against Wm. Fuller and others, makers of the notes, on the note held by him, and, the appellant bank having been made party plaintiff by agreement, both parties sought to recover, claiming to be innocent purchasers for value, before maturity.

Defendants denied that either plaintiff was an innocent purchaser, and further pleaded a failure of consideration, in that the stallion Moser had not proved a satisfactory breeder, and further pleaded an oral agreement between defendants and one Jas. A. Hill, acting for Crouch & Son, whereby defendants would have until August 1, 1913, to exercise the right to exchange the horse Moser in case he should prove an unsatisfactory breeder; that defendants gave Crouch & Son this notice prior to August 1st, and the vendors failed to make the exchange, whereby the contract was breached by the vendors, and defendants were released from liability.

Plaintiffs denied that the oral agreement had been made, and further pleaded that, if made, it had been superseded by the subsequent written contract, requiring both horses, if unsatisfactory, to be returned to the vendors, that the first horse had been returned and the second given in exchange, and that the second horse had never been returned, nor had any tender been made within the time prescribed in the written contract.

Judgment was obtained by plaintiff Hickman for the amount claimed, and no complaint is made by defendants on account thereof. Judgment was rendered for defendants as to the two notes held by plaintiff bank, and the bank appeals. The verdict rendered was in response to peremptory instructions as to each plaintiff’s claim.

Since it was admitted by counsel for appellant on the submission of this case that the appellant is not in the attitude of an innocent purchaser, we may simplify the discussion of the one question involved in this appeal by going directly to the issue of whether under the facts of this record defendants could have legally interposed, as against the vendors, Grouch & Son, tlie defense of an alleged oral agreement, made prior to the written contract, and in effect varying its terms as to the time in which an exchange of the last-purchased horse could have been made, in the event he proved unfit for the purposes for which he was sold. For if such defense would have been maintainable against Crouch & Son, under the facts shown in this record and under the admission made by appellant’s counsel, the judgment denying the plaintiff bank a recovery should be sustained.

At the outset it is proper for us to consider appellees’ objection to the consideration of appellant’s single assignment, to wit, that the court erred in refusing to peremptorily instruct a verdict for plaintiff bank. In its motion for new trial appellant urged in three separate paragraphs the alleged error of the trial court in refusing a requested peremptory instruction for it, and in nine other paragraphs error was urged in the giving of a peremptory instruction for defendants as against plaintiff bank. In the body of these several paragraphs the reasons were given which appellant deemed sustained its contention of error in the action of the court: (1) In refusing the requested peremptory instruction in its behalf; and (2) in giving the peremptory instruction for , defendants. In its brief appellant relies on the first ground urged in the trial court, and ■sets out in the form of propositions substantially some of the grounds assigned in its motion for new trial. We think the assignment is good, and not subject to the criticism urged by appellees.

The reasons given to support the assignment constitute no part of the assignment itself. The ruling or action of the ■cpurt is the subject of the complaint, and •constitutes the basis of the assignment. The assignment may be good, though the reasons urged in its support are untenable. Brackenridge v. Claridge & Payne, 91 Tex. 527, 535, 44 S. W. 819, 43 L. R. A. 593. In Land Co. v. McClelland Bros., 86 Tex. 179, 23 S. W. 576, 1100, 22 L. R. A. 105. Justice Gaines sought to lay down the rule for the guidance ■of courts and bar upon this somewhat difficult question of when an assignment should be held bad for generality and when not, •and, after a rather lengthy, discussion, said:

“Where an assignment of error is sufficiently specific to enable the court to see that a particular ruling is complained of, it should be held good, although it should fail to state the reason why such ruling is claimed to be erroneous. An assignment may be brief and yet specific, and brevity in such a case is commendable and accords with good practice. The reasons by which allegations of error are sought to be sustained find their * ⅜ * place in the propositions, statements, and authorities required to be set forth in the brief under and in support of the respective assignments.”

Hence the Supreme Court held that, as to form, an assignment was good reading:

“The court erred in overruling the defendant’s general demurrer to plaintiffs’ original petition.”

In the instant case there are no material conflicts of testimony. That the two horses were both unsatisfactory for the purposes for which they were bought, and that no effort was made by defendants to return the second horse or to effect an exchange, until after April 1, 1913, was uncontroverted by the evidence; and only one witness, T. E. Parker, one of the defendants, testified as to the oral agreement claimed to have been had between him, on behalf of the defendants, and Hill, for Crouch & Son, changing the date before which defendants were to notify Crouch & Son of the unsatisfactoriness of the horse from April 1st to August 1st. Such purported agreement was before the making of the first contract, and, as shown by Parker’s testimony, was during the preliminary discussion or negotiations leading up to the purchase 'of the horse Elector.

Hence, eliminating the question of appellant’s being an innocent purchaser, with which we need not now concern ourselves, there was practically no issuable fact for submission to the jury. Therefore it may be held, so far as the case now before us is concerned, that the evidence is undisputed, and the issue is one of law upon such uncon-troverted facts, and that" an assignment complaining of the giving of the peremptory instruction for defendants sufficiently apprises the appellees and this court of the ground of appellant’s complaint. If. it fulfills this office the assignment is good. Article 1612, Vernon’s Sayles’ Texas- Civil Statutes; Fuqua v. Pabst Brewing Co., 90 Tex. 298, 38 S. W. 29, 750, 35 L. R. A. 241; Railway Co. v. McArthur, 96 Tex. 65, 70 S. W. 317; Haight v. Turner, 44 Tex. Civ. App. 595, 99 S. W. 196; Frontroy v. Atkinson, 45 Tex. Civ. App. 324, 100 S. W. 1023; Railway Co. v. Walters, 49 Tex. Civ. App. 71, 107 S. W. 369, 372; Ry. Co. v. Williams, 111 S. W. 196; Railway Co. v. White, 97 Tex. 493, 80 S. W. 77; Wigglesworth v. Uvalde Live Stock Co., 126 S. W. 1180. Therefore we overrule appellees’ objections to the consideration of appellant’s assignment.

It is elementary that all preliminary oral negotiations leading up to a written contract are presumed to have been merged into the written instrument, and especially is this true where the prior alleged agreement, if given vitality, would tend to vary the terms of the written contract. The partiés, appellees and Crouch & Son, having entered into two written contracts, one concerning the purchase of the horse Elector and the other concerning the horse Moser, taken in exchange, and by the terms of each contract a date for exchange different’ from that claimed by virtue of the oral agreement having been specified, it must be held that the subsequent written contracts should control.

Furthermore, the parties having specially agreed upon and limited the remedy to a return of the horse within the time specified in said last written contract, the defendants would be limited to the relief thus agreed upon, and cannot, in the absence of fraud alleged and proven on the part of Crouch & Son in the securing of the contract, be permitted to resort to a rescission, or other remedies. Oltmanns v. Poland, 142 S. W. 653, writ denied, Holbert v. Sanzenbacher, 159 S. W. 1054; Walters v. Akers (Ky.) 101 S. W. 1179, and the following Arkansas cases; Highsmith v. Hammonds, 99 Ark. 400, 138 S. W. 635; Crouch v. Leaks, 108 Ark. 322, 157 S. W. 300, 50 L. R. A. (N. S.) 774; Holland Bank Co. v. Haynes (Ark.) 187 S. W. 632; Harrison v. Walker (Ark.) 188 S. W. 17.

But it is contended by appellees that Crouch & Son had, prior to April 1, 1913, abandoned their stables in Ft. Worth, and moved the residue of the horses held there, and other property owned in Texas', to Indiana, and hence the appellees could not make the desired exchange within the time specified in the written contract. But, even though it be conceded that, because the horses actually delivered to defendants, and especially the horse Moser, were delivered by Crouch & Son at the latter’s stables in Ft. Worth, and that because such stables were maintained at Ft. Worth at the time of the making of both written contracts, appellees had the right to rely on Ft. Worth’s being the place where further exchanges could be made, as the necessity therefor might arise, yet neither by pleading nor evidence did defendants show that they had offered to return said horse to Et. Worth, or to any other place till after April 1, 1913. In their first amended answer, filed November 30, 1915, they aver:

“That said Crouch & Sou are nonresidents of the state of Texas, and reside, so defendants are informed, somewhere in the state of Indiana; that they own no property in Texas,. nor have they any office, agent, or place of business in Texas, or any barn to which defendants may deliver said horse, or any place anywhere within the confines of said state where said horse can be taken by defendants and delivered to them or any person authorized to receive the same for them ; that said horse is in possession of defendants at Kerens, Tex., and that they are able, ready, and willing to deliver the same to plaintiffs, or to said Crouch & Son, at any reasonable time or place designated by them, and hereby tender the said horse to plaintiffs and offer to deliver the same to them, at such reasonable time and place as the court may direct, and authorize, upon the cancellation and delivery to defendants of the notes sued on herein.”

The evidence suggests that by letter written by defendant’s counsel, after the filing of this suit, which was April 7,'1913, notice was sent to Crouch & Son at Lafayette, Ind., that the second horse had proven a failure, and requesting a further exchange. Even if this letter was in fact mailed, which is not shown, yet it did not constitute a compliance with the stipulation contained in the written contract that the horse should be returned by April 1, 1913. No offer to return the horse by said last-named date is shown to have been made. Hence we conclude that the defendants failed to establish by proper pleading or proof the contention that they were prevented from returning the horse within the time specified, because of the abandonment of the stables theretofore maintained by the vendors at Et. Worth.

After a careful examination of the entire record, we conclude that appellant’s assignment should be sustained, and that the judgment of the trial court should be reversed, and here rendered for appellant for notes Nos. 2 and 3, together with interest, attorney’s fees, and costs of suit, and it is so ordered, and the judgment in other respects is undisturbed.

Reversed and rendered.

On Motion for Rehearing.

We have carefully examined appellees’ motion for rehearing and fail to find anything therein which would justify a change in the disposition of the case heretofore made. However, said motion calls our attention to a bit of evidence which we apparently overlooked, and which, if given its proper effect, would probably render inaccurate the statement contained in our original opinion that the evidence failed to show that the letter written by defendant’s counsel, after the filing of this suit, to Crouch & Son, at Lafayette, Ind., had been mailed. There was testimony to. the effect that this letter, written by counsel for defendants, had been handed to a boy in the office of counsel with instruction to register it, and that a fee for registration had been given the boy for said purpose. The boy was not a witness in the case, and no one testified that the boy actually mailed the letter. But it appears that defendants’ counsel testified that he had received the return registry receipt of such letter, though he had misplaced it in his office, probably by reason of his having moved his office since writing the letter. This evidence, we think, would make a prima facie showing that the letter had in fact been received by Crouch & Son, and our statement or suggestion that there was a lack of evidence to establish the mailing of the letter is withdrawn. However, since this letter was written subsequent to the filing of the suit, and subsequent to the date of return of the horse stipulated in the contract, the mailing of the letter by defendants’ counsel containing the notice did not affect the rights of the parties under such contract, nor would it impair any rights of appellants, or of Crouch & Son, which had theretofore become fixed.

The motion for rehearing is overruled.


source: Caselaw Access Project

license: Public Domain

text:
    ADAMS v. CRITTENDEN et al.
    (No. 8506.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 20, 1917.)
    1. Sales <&wkey;355(l) — Evidence—Pleadings.
    In an action on a note given for the price of a stallion, where the guaranty accepted by defendants from the sellers limited their remedy to a return and exchange of the horse by a fixed date, and there was an utter absence of pleading by defendants to support a defense of waiver of return, testimony of a defendant tending' to show waiver was inadmissible.
    [Ed. Note. — Por other cases, see Sales, Cent. Dig. §§ 1025, 1027-1035; Dec. Dig. &wkey;355(l).]
    2. Sales <&wkey;426 — Special Guabanty Limiting Remedy — Eeeect.
    Where the buyers, by accepting the sellers’ contract of guaranty, limited their remedy for breach to a return and exchange of the horse by a fixed date, a plea that the horse had proved worthless would avail them nothing, when sued on their note, unless they complied with the contract, or were prevented from complying by the sellers.
    [Ed. Note. — Eor other cases, see Sales, Cent. Dig. § 1209; Dec. Dig. &wkey;426.]
    Appeal from Tarrant County Court; Chas. T. Prewett, Judge.
    Action by Grace D. Adams against W. R. Crittenden and others. Prom a judgment for defendants, plaintiff appeals.
    Judgment reversed, and cause remanded for new trial.
    Wm. J. Berne, of Et. Worth, for appellant. Wynne & Wynne, of Wills Point, for ap-pellees.
   BUCK, J.

Grace D. Adams sued appel-lees on a note in the principal sum of $400, dated December 20, 1909, alleging that defendants liad executed a note in favor of Oltmanns Bros., and that they later had transferred said note in blank, before maturity, for value, and without notice, to plaintiff.

Defendants denied that plaintiff was an innocent purchaser, for value, without notice, and the jury found in favor of this defensive pleading, and the appellant has not attacked this finding, and in the oral argument her attorney conceded that appellant was not in the position of an innocent purchaser. Hence we will discuss the issues.presented in the light of such concession.

The.cause was submitted to the jury on special issues, and the jury found: (1) That the plaintiff did not purchase the note in controversy for a valuable consideration; (2) that the note was purchased after maturity; (3) that defendants, prior to March 1, 1912, offered to return the horse for which the note in question was given in part. Upon this verdict the court rendered judgment for defendants, and the plaintiff has appealed.

It is somewhat difficult, because of apparent contradictions and inconsistencies in the defendants’ pleadings and in the evidence, to determine just what the facts are in some respects; yet we have concluded the following to be the substantial facts, to wit:

December 20, 1909, defendants, having organized themselves into an association styled “the Horse Improvement Company of Forney, Tex.,” purchased from Oltmanns Bros, a stallion and gave this note in part payment. This horse proved unfit for the purposes for which he had been bought, and in the following October died. Fourteen hundred dollars had been paid for him in cash, either in addition to or including the $1,200 collected under an insurance policy on the horse and paid to Oltmanns Bros, concerning which question the evidence is not very clear. Upon the first horse’s death and the delivery to Oltmanns Bros.’ agent, one Eurton, of the insurance money, defendants secured a second horse, presumably the delivery thereof being made at Oltmanns Bros.’ barn at Ft. Worth, or at the defendants’ place of residence, Forney, Tex. The note in question was one of a series of three of like amount given in part payment for the first horse, and upon the death of said horse and the delivery of the second horse it was agreed by all parties that the three notes theretofore given should stand and be considered as part consideration for the second horse. The other two notes were paid by defendants upon maturity, and do not enter into this ease. With the second horse Oltmanns Bros, delivered, and defendants accepted, the. following contract of guaranty, to wit:

“Landschaftsrat
“O. V. Oltmanns, Gebli. Oltmanns,
“Leer, Germany. Watseka, Illinois.
“Oltmanns Bros.,
“Pioneer Importers and Breeders of German, Hanoverian and Oldenberg Coach, Perdier-on and Belgium. Draft Horses.
“Watseka, Illinois, December 20, 1910.
“Guarantee on the Imported German Coach Stallion Albanus.
“We have this day sold the imported German coach stallion named Albanus, No.-, to the - Horse Improvement Company of Forney, Tex. And we guarantee the said stallion to be a satisfactory and sure breeder, provided he has proper care and exercise and remains in as healthy and sound condition as on date of delivery. If said stallion fails to be as represented above, we- guarantee to- take the said stallion back and give to the said company another stallion of equal value, provided he is returned to us at our barns in as sound and healthy condition as he is now, by March 1, 1912.
“This bill of sale contains all the agreements of warranty or guaranty made by us in the sale of the above-mentioned horse, and it is expressly provided that we shall not be liable for any claim that may hereafter be made alleging any verbal agreement of ourselves or agents in the sale of said horse.”

The second horse also proved to be unsatisfactory, and prior to the agreed date of return, March 1, 1912, defendant W. R. Crit-tenden came to Ft. Worth and met Mr. Eur-ton at the Union Depot and told him of the unsatisfactoriness of said horse, and' that the defendants desired to return him and get another in exchange, under their aforesaid contract. Eurton told Crittenden that Olt-manns Bros, did not have 1 any stallions at that time at their Ft. Worth barns; that they usually shipped 15 to 20 in a shipment from their stables at Watseka, Ill., and when the next shipment arrived, he (Eurton) would notify Crittenden by phone so that he could come to Ft. Worth and make the desired exchange. No notification was received by Crittenden, or by any of the other defendants, of the arrival of such a shipment. In the fall of 1912 Eurton was at Forney with another horse for sale, and again defendants told him of the worthlessness of the horse Albanus, for breeding purposes, and Eurton promised upon his return to Watseka to take the matter up with his principals, and get another horse for defendants in exchange, but no further word was ever received from Eurton or Oltmanns Bros., with reference to such exchange. Prior to March 1, 1912, Crit-tenden also wrote to Oltmanns Bros, at Ft. Worth with reference to such exchange, but received no reply.

Plaintiff objected to the testimony of Crit-tenden as to the alleged statements and promise made by Eurton on the occasion of their meeting at the Union Depot at Ft. Worth, and appellant urges such objection in her second assignment. The asserted grounds in support of said assignment are: (1) That it was within the knowledge of each of defendants that Eurton was merely a salesman, and had no authority to vary or change any contract between defendants and Oltmanns Bros.; (2) that defendants knew that Olt-manns Bros, had a manager, other than Eur-ton, in charge of its Ft. Worth barns.

The appellees answer that, under the facts in this case, Eurton is shown to have had the the authority of a general agent, that he not only sold horses, but made adjustment of claims, collected insurance on horses sold, etc., and that therefore the acts shown and promises given in the evidence objected to reasonably came within the actual or apparent scope of his authority, i. e., within the authority theretofore shown to have been exercised by him and ratified and confirmed by his principals.

Upon this phase of the question there might be some room for appellees’ contention, if they had any pleadings as a basis for such testimony. The special guaranty limited defendants’ remedy to a return of the horse by March 1, 1912, and the securing of another horse in exchange therefor. There might be some room for doubt as to where this exchange should take place, whether at the Ft. Worth barns, or at the main stables at Watseka, Ill. It will be noted that the contract is headed “Watseka, Illinois,” but it is not specified where the barns are located to which such return should be made. From the heading of the contract it would appear that one of the Oltmanns lived in Germany, while the other was located in Illinois, and the evidence aliunde the written contract of guaranty suggests that the delivery of the horse was made at Ft. Worth. Hence, under proper pleadings, possibly parol evidence would have been admissible to explain the seeming ambiguity or uncertainty as to the place of exchange agreed upon by the parties. However, the issue presented here is one of waiver, in the nature of an estoppel, and there is an utter absence of pleading to support such a defense, and to authorize the evidence of which complaint is made. Defendants in their first supplemental answer did plead as follows:

“They immediately notified Oltmanns Bros, at Ft. Worth, Tex., and at Waureka, Ill., that the horse was no good. They came to Ft. Worth, Tex., and found that Oltmanns Bros, had left the state and could not be found. They brought the horse to the station where he could be shipped, but there was no one to whom they could ship the horse. The Oltmanns were notified, and would not answer, and up to this date they have never answered, and have never been where the defendants could make the said Oltmanns Bros, take back the horse. The defendants have always tendered the horse back, and have asked for the guaranty to be made good, but all to no avail. The date for the return of the horse had not expired when Olt-manns Bros, left the state of Texas, and in the guaranty made there was no time limit.”

But the admitted evidence is not in support of the plea that Oltmanns Bros, bad left the state prior to March 1, 1912, and could not be found, and did not give the defendants instructions where to ship the horse, etc. The evidence admitted is merely upon a question of waiver of time. The same witness who testified as to Eurton’s statements also testified:

“Eurton was a salesman and sold the first horse. Mr. Boekhoff was the manager of Olt-manns Bros, at that time in Ft. Worth, and he was manager the last I knew of it, and I knew of no one who succeeded him.”
40 Oye. p. 254, says:
“A waiver takes place where a man dispenses with the performance of something which he has a right to exact, and is a technical doctrine introduced and applied by the' courts for the purpose of defeating forfeitures.”

In Underwood v. Farmers’ Joint-Stock Ins. Co., 57 N. Y. 500, 505, the court said:

“The doctrine of estoppel lays at the foundation of the law, as to waiver. While one party has time and opportunity to comply with a condition precedent, if the other party does or says anything to put him off from his guard, and to induce him to believe that the condition is waived, or that % strict compliance with it will not be insisted on, he is afterward estopped from claiming nonperformance of the condition. Unless there is some consideration for a waiver or some valid modification of the agreement between the parties which contains the condition, I think there can be no waiver of a condition precedent, except there be in the case an element of estoppel.”

One sued for the price of articles cannot avoid the limitation of time in which to return said articles if not satisfactory by showing a waiver thereof, unless he pleads such waiver. Cement Co. v. Havard Co., 155 S. W. 656; Ginners’ Mut. Underwriters’ Association v. Wiley & House, 147 S. W. 629, and cases there cited.

We are therefore of the opinion that error was committed in admitting this testimony over the objection of defendant.

Defendants seems to rely, both in their pleadings and in their evidence, upon a failure of consideration. But since they, in the contract of guaranty accepted, limited their remedy to a return and exchange of the horse by March 1, 1912, a plea and showing that the horse had proved worthless for the purpose for which he was sold would avail them nothing, unless they should show a compliance on their part with the terms of the contract of guaranty, or that they were prevented from so complying by mason of the. act of or by reason of conditions brought about by Oltmanns Bros. Oltmanns Bros. v. Poland, 142 S. W. 653, writ denied; Holbert v. Sanzenbacher, 159 S. W. 1054; Walters v. Akers (Ky.) 101 S. W. 1179; and other cases cited in First National Bank of La Fayette, Ind., v. Fuller (No. 8496) 191 S. W. 830, decided by this court January 6, 1917, not yet officially reported.

For the error indicated, the judgment in this case must be reversed, and the cause remanded for a new trial. We do not feel justified in rendering judgment for appellant, inasmuch as the evidence tends to show that Oltmanns Bros, had abandoned their barns in Ft. Worth and removed their horses and other property from the state prior to March 1, 1912, and inasmuch as the contract of guaranty does not clearly and specially designate the place where an-exchange of horses could be made under the contract. Hume v. Sherman Oil & Cotton Co., 27 Tex. Civ. App, 366, 65 S. W. 390.

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


author: CONNER, C. J.

text:
    ANDERSON v. FIRST NAT. BANK OF LA GRANGE.
    (No. 8499.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 13, 1917.
    On Application for Leave to File Motion for Rehearing, Feb. 10, 1917.)
    1. Bills and Notes &wkey;>444 — Guaranteed Notes — Duty of Holder.
    Mere knowledge on the part of a bank, holder of notes, that a third party was an indemnitor and had agreed to pay the same, did not impose on the bank any obligation to pursue the third party and exhaust securities owned by him and in the bank’s hands before suing the maker.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1287-1293; Dee. Dig. <S=w 444.]
    2. Pleading <&wkey;34(3) — Demurrer.
    In testing the sufficiency of the answer as against general demurrer, all reasonable in-tendments in its favor will be indulged in.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 69 ; Dec. Dig. &wkey;34(3).] '
    3. Contracts <&wkey; 105 — Legality.
    Where the organizer of a bank induced defendant to subscribe for stock and gave a note, agreeing to purchase defendant’s stock and to pay the note, which was in the hands of a bank, such agreement was not unenforceable, as violat-ive of the laws of the state governing the incorporation of state banks, or as contrary to moral and public policy.
    . [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 477, 478, 480-497;, Dec. Dig. <&wkey;>105.]
    4. Corporations <&wkey;65 — Corporate Stock— “Property.”
    Stock in a corporation is “property.”
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 165-171; Dea Dig. &wkey;65.
    For other definitions, see Words and Phrases, First and Second Series, Property.]
    5. Contracts &wkey;>10(l) — Mutuality—Agreement to Pay Stockholder’s Note.
    Where the organizer of a bank induced defendant to subscribe to its stock, agreeing to purchase .defendant’s stock on request, and to pay the note executed by defendant for it, such agreement was not unenforceable for a want of .mutuality on the ground that, while the organizer of the corporation was obligated to pay the note to the holder bank on defendant’s request, there was not reciprocal obligation on defendant’s part to request the payment of the note to the bank.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 21; Dec. Dig. <&wkey;10(l).]
    6. Banks and Banking &wkey;>39 — Contracts— Consideration.
    Where the organizer of a bank induced defendant to subscribe to its stock and execute his note, agreeing to purchase defendant’s stock, promising to pay defendant’s note on request and to indemnify defendant against all loss, the organizer’s promises' were supported by sufficient consideration.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 11-48: Dec.Dig. <&wkey;>39.]
    7. Frauds, Statute of <&wkey;148(2) — Pleading.
    Ordinarily, where a contract can only be enforced if written, an allegation that it was made, without stating whether it was in writing or by parol, will, as against general demurrer, be sufficient; the presumption being that the pleader intended to set forth an enforceable contract, placing on defendant the burden of pleading the statute of frauds.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 354; Dec. Dig. &wkey;U48(2).]
    8. Frauds, Statute of <&wkey;23(l) — Indemnity Contract.

      A contract of the organizer of a corporation to indemnify a subscriber to its stock, who executed a note against all loss, was merely collateral to that evidenced by the note, and so was not subject to the statute of frauds.
    [Ed. Note. — For other cases, see Frauds, Statute^ of, Cent. Dig. §§ 18, 19; Dec. Dig. <&wkey;23
    9. Limitation of Actions <&wkey;>56(2) — Statute of Limitations — Contract of Indemnity.
    The liability of the organizer of a corporation, under his _ contract to indemnify against all loss. a subscriber to its stock who executed a note, did not begin, and was not intended to begin, until after the subscriber had suffered loss or damage, because of the execution of the note to which the contract of indemnity related.
    [Ed. Note. — For other eases, see Limitation of Actions, Cent. Dig. § 308; Dec. Dig. <&wkey;56 (2).]
    10. Appeal and Error <C^>754(1) — Affirmance-Waiver of Error.
    Where the numerous special exceptions urged to appellant’s answer were substantially general demurrers, being mere reasons why the general demurrer was well taken, though a special exception includes a general demurrer, and tíiough the action of the trial court in sustaining the special exceptions has been waived by failing to assign error thereto, the judgment will not be affirmed, regardless of the trial court’s action on the general demurrer.
    [Ed. Note. — For other cases, sec Appeal and Error. - Cent. Dig. §§ 3086-3089; Dec. Dig. &wkey;754(l).]
    11. Appeal and Error <&wkey;917(2) — Presumption — Amendment of Petition.
    Where the trial court has sustained a general demurrer, the Court of Civil Appeals ordinarily will presume that the litigant against whom the ruling was made will not feel called upon to amend his petition as called for by some special exception intended to reach some informality only, though the special exception is well taken.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3707, 3709; Dec. Dig. <&wkey;> 917(2).]
    On Application for Leave to File Motion for Rehearing.
    12. Appeal and Error &wkey;>833(3) — Rehearing — Time to File Motion — Excuse.
    Where counsel for appellant “charged his mind that February 3d was the last day on which motion for rehearing could be filed,” and moved his law offices, so that his affairs were in disorder, with the result that motion for rehearing was presented to the clerk February 2d, whereas the 15 days for filing motion under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1641, expired January 28th, application to file motion for rehearing will be denied; appellee opposing on account of the crowded condition of the docket of the Supreme Court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent Dig. § 3232; Dec. Dig. <&wkey;>833(3).]
    Appeal from District Court, Tarrant County; B. M. Terrell, Judge.
    Suit by the First National Bank of La Grange against A. J. Anderson, who pleaded over against William Beeves. From a judgment for the bank and for Beeves on Anderson’s cross-action, the latter appeals.
    Affirmed in part; reversed and remanded in part.

      Chas. T. Rowland and Mike E. Smith, both of Ft. Worth, for appellant. Stanley Boykin and Bryan, Stone & Wade, all of Ft. Worth, for appellees.
   CONNER, C. J.

As tried, this suit was one by the First National Bank of La Grange against A. J. Anderson to recover upon two promissory notes executed by Anderson and made payable to the bank, aggregating $5,-000, and wherein the appellant, Anderson, in addition to the defenses presented to the plaintiff’s suit as hereinafter shown, also pleaded over against one William Reeves, who had been made a party to the suit That part of appellant’s answer and cross-petition material on this appeal is as follows:

“(5) The defendant Wm. Reeves having been made a party to this cause and having answered herein, for cause of action against the defendant Wm. Reeves, and for further special answer, this defendant shows: That on or about the 17th day of February, 1908, the defendant, Wm. Reeves, being desirous of organizing and incorporating, under the laws of this state, a trust company and banking company under the name of First State Bank & Trust Company of Ft. Worth, Tex., and desiring to secure shareholders therein of good standing and credit, sought this defendant and solicited him to subscribe to $5,000 of the capital stock of said proposed corporation, which this defendant consented to do, but upon the following condition, to wit: That it was agreed by and between this defendant and the said defendant Wm. Reeves that this defendant would execute his personal promissory note to the said Wm. Reeves in the sum of $5,000, and the said Wm. Reeves would negotiate said note for the money with which to pay for said shares of stock that this defendant’s name would be entered, and he was to become a subscriber to 50 shares of capital stock of said corporation representing $5,000 thereof, and that the money so realized from the negotiation of said note would be appropriated and applied in payment for the shares of stock so subscribed for by this defendant. That prior to and at the time of the execution of said note, and in order to induce this defendant to execute same and subscribe for said stock, the said defendant Wm. Reeves promised and obligated himself to this defendant, whenever so requested by this defendant, to fully pay off and discharge said note and procure this defendant’s releqse therefrom, and agreed and obligated himself that he would at all times indemnify and hold this defendant harmless against the execution of said note, and that the said defendant AVm. Reeves, when said stock was issued io and in the name of this defendant, would retain the possession of the same, so that, when so requested so to do by this defendant, he would pay off md discharge said note and become the owner of said shares of stock in consideration of the payment so made by him, the said Wm. Reeves, all of which this defendant is ready to verify.
“(6) That in pursuance of the contract and agreement set forth in par igraph 5 hereof the said Wm. Reeves did assign and negotiate said note of $5,000 executed to him by this defendant. either to the First National Bank of Caldwell or the First National Bank of La Grange, secured the cash thereon, and appropriated and applied the proceeds thereof to the payment in full for the shares of stock in said banking corporation subscribed for by this defendant, caused said shares of stock to be issued to and in the name of this defendant, and retained possession of the same under and by virtue of the agreement between him and this defendant, as alleged in paragraph 5 hereof. That the said Wm. Reeves thereafter and from time to time procured a renewal of said original note, and the same w-is finally transferred to the First National Bank of La Grange and divided into two notes, one for the sum of $1,000 and one for the sum of $3,500, being the notes sued on herein, the amount having been reduced from $5,000 to $4,500, all of which was done by the said Wm. Reeves without any payment thereon by this defendant. This defendant merely executed the several renewal notes at the instance and request of the said Wm. Reeves.
“(7) That this defendant, at the time of the execution of the said original $5,000 note and'at all times since, did and has fully relied upon the original agreement so made and entered into by him and the said Wm. Reeves, and the said Wm. Reeves has at the time of the several renewals of said note and at all times since recognized and ratified the said agreement to hold this defendant harmless therefrom, and did not indicate his intention of repudiating the same until a short time prior to the institution of this suit. That in executing said original $5,-000 note, and all subsequent renewals thereof, this defendant believed the representations of the said Wm. Reeves made, as aforesaid, to be time. That he relied thereon, and was induced thereby to subscribe for said shares of stock and execute said note, as well as each and all of the renewals thereof, in the absence of which representations and contract this defendant would not have executed said original and renewal notes and subscribed for said shares of stock as herein set forth. '
“(8) That by reason of the foregoing facts the defendant Wm. Reeves promised and became bound and obligated to pay off and discharge the notes herein sued on and to procure this defendant’s release therefrom, yet, though often requested by this defendant so to do, the defendant Wm. Reeves has failed and refused, and still fails and refuses, to keep and perform his said contract to hold this defendant harmless therefrom, to the damage of this defendant in the sum of six thousand ($6,000) dollars.
“(9) This defendant denies that the plaintiff herein is an innocent holder of the notes therein sued on for a valuable consideration, before maturity, in good faith, and without notice of the equities of this defendant, as herein set forth, and avers that the plaintiff and the First National Bank of Caldwell had knowledge, or were chargeable by law with notice, of the nature of "the transaction or agreement so made between this defendant and the said Wm. Reeves, and had knowledge of said original $5,000 note, and that, as between this defendant and the said Wm. Reeves, the said Wm. Reeves was bound and obligated to pay off and discharge the same.
“(10) This defendant alleges on information and belief that at the time of the execution of each and all of said notes the said defendant Wm. Reeves procured the execution thereof, and acted for and as the representative of the First National Bank of Caldwell and of the plaintiff, the First National Bank of La Grange.
“(11) This defendant is informed and believes, and alleges on information and belief: That at the time of the execution of the notes herein sued on plaintiff held a written guaranty, executed to it by the defendant Wm. Reeves, whereby the said Wm. Reeves was bound and obligated as a guarantor on said notes, and that at the time of the maturity of each of said notes held collateral securities or effects belonging to the said Reeves of value more than sufficient to fully pay said notes. That plaintiff either holds said collateral securities, or has wrongfully and without the consent of this defendant, and with notice of this defendant’s rights and equities, and with the intent to shield the said Reeves, and to the injury of this defendant, wrongfully released said collateral, or secreted or disposed of the same in some manner unknown to this defendant, or that plaintiff has heretofore applied said collateral securities to the payment of said notes, whereby this defendant was and is released from liability thereon to the plaintiff herein. If this defendant should be mistaken in the allegations that the plaintiff has released or disposed of said collateral securities, and the same have not been applied to the payment of said notes, then the same should be now so applied, for which this defendant prays.
“(12) That on March 26, 1912, the defendant Wm. Reeves for a valuable consideration purchased all the outstanding stock of the First State Bank & Trust Company not then owned by him, took over all of the assets of said bank, and agreed to pay off and discharge the liabilities of the several stockholders therein by reason of their subscriptions to the capital stock thereof, including the notes herein sued on, whereby he became bound and obligated to pay and discharge the said notes, which, though often requested, he has heretofore failed and refused to do.
“Wherefore this defendant prays that he be dismissed and go hence without day, but, if it should be held that the plaintiff is entitled to recover anything against this defendant, then that he have judgment over against the said Wm. Reeves in a like sum; and he prays judgment for costs, and for such other general and special relief as he may be entitled to, either in law or in equity.”

The plaintiff bank and Wm. Reeves presented general demurrers and numerous special exceptions to the answer of the defendant Anderson, all of which were sustained by the court, and Anderson, having declined to amend, suffered a judgment in favor of the hank for the sum of $5,463.33, and in favor of Reeves upon Anderson’s cross-action, and Anderson prosecutes this appeal.

We do not feel prepared to hold that the court erred in sustaining the demurrers of the plaintiff bank. Appellant says, quoting from his brief, that:

“It is not contended that the cross-petition is a defense against the plaintiffs’ cause of action on the notes, except in so far as the facts set forth in paragraph 11 of Anderson’s amended cross-petition may be a defense.”

By a consideration of this clause of appellant’s answer, which we have quoted, it will be seen that it was not alleged that Reeves was a party to the execution of the notes sued upon, as indeed from the record it is undisputed that he was not. The relation of principal and surety, therefore, as between Anderson and Reeves, existed, if at all, by reason of, facts and circumstances disassociated from the notes upon which the plaintiff declared. In other words, the complaint in said paragraph of appellant’s answer is, substantially, only to the effect that Reeves was obligated to appellant as a guarantor, of which the bank had knowledge, and that the bank held collateral securities or effects belonging to Reeves of value sufficient to pay the notes. It is not alleged, in that clause of the answer or elsewhere, nor is it contended on this appeal in behalf of Anderson, that there was any contractual relation between Anderson and the bank to the effect that such collateral, if any, should be applied to the payment of the notes sued upon. Nor is it alleged or pretended that Reeves was insolvent, or that for some other sufficient reason equity would require the bank to first exhaust the securities owned by Reeves before pursuing its remedy upon the notes against Anderson. Mere knowledge on the part of the bank that Reeves was guarantor of the claim would not impose upon the bank any obligation to first pursue the indemnitor and exhaust the securities owned by him before prosecuting its suit against the maker of the note. For aught that appears in appellant’s answer, or otherwise in the record, Wm. Reeves is solvent and able to fully respond in damages, if it be true, as appellant alleges, that he contracted to indemnify him against loss because of the execution of the notes. We therefore conclude that the court committed no error in sustaining the demurrers of the bank, and that the judgment in its favor against appellant, Anderson, must be accordingly affirmed.

We are of opinion, however, that the court erred in sustaining the general demurrer of the appellee Wm. Reeves. Appellee Insists that the agreement set up in the twelfth paragraph of the appellant’s answer, to the effect that the defendant Reeves, for a valuable consideration, had purchased all of the outstanding stock of the First State Bank & Trust Company, took over the assets of the bank, and agreed to pay off and discharge the liabilities of the several stockholders by reason of their subscriptions to the capital' stock, including the note sued on, is in violation of the laws of this state governing the incorporation of state banks, and contrary to good morals and to public policy. It may be, and is doubtless, true that it would be contrary to public policy to permit the Bank & Trust Company to do business otherwise than as specified in the laws relating to such corporations, or to have its business or assets managed or controlled by a single stockholder, instead of by directors, as provided in such laws. Such an effort, indeed, might authorize a dissolution of the corporation; but it does not appear from the answer excepted to that the corporation as such either did or was attempting to do anything forbidden by the statutes. The ease presented in the clause of the answer under consideration was merely one in which one of the stockholders in the First State Bank & Trust Company purchased “all of the outstanding stock,” presumably including that owned by appellant, and as consideration therefor agreed to pay off and discharge, not the liabilities of the corporation, but the liabilities of the several stockholders incurred by reason of their subscription to the capital stock, including the notes declared upon in this case.

In testing the sufficiency of the answer as against a general demurrer, all reasonable intendments will be indulged; and if Reeves, as at least inferentially alleged, purchased appellant’s stock, and in consideration therefor agreed to pay the note sued upon in this case, we see no valid reason why the agreement is not enforceable. The agreement in no wise lessens the obligation of the corporation to its creditors generally, nor relieves the stockholders of the corporation of any liability under which they may rest for the payment of its debts. In this state it has been held that a corporation may contract to purchase its own stock. See Howe Grain & Mercantile Co. v. Jones, 21 Tex. Civ. App. 198, 51 S. W. 24; Hardware Co. v. Sanger, 151 S. W. 1104. In the latter case the court said:

“There is no provision in the charter prohibiting the purchase of its stock by the corporation, nor is such action prohibited by the statutes of Texas, and in the absence of such provisions in charter or statute the general rule, as applied * * * by the weight of authority, seems to be that a solvent corporation has the authority to purchase its own stock, where the purchase is made in good faith. It was so held in Howe Grain & Mercantile Company v. Jones, 21 Tex. Civ. App. 198, 51 S. W. 24, and that case has been cited with approval .in several state courts, and the doctrine of that'case is recognized and sustained in a large majority of the states of the Union.” j

If the corporation may purchase its own stock, we see n'o reason why an individual stockholder may not purchase the stock of other stockholders. Stock in a corporation is property, and the subject of free sale and delivery, and we know of no provision of the statutes which would inhibit a purchase by a stockholder, as it was alleged Reeves was. Nor do we think it can be said that other portions of appellant’s answer setting up the alleged agreement on the part of Reeves are subject to the objection that it was against public policy and v'oid for that reason. In the case of Morgan v. Struthers, 131 U. S. 246, 9 Sup. Ct. 726, 33 L. Ed. 132, it was held, quoting from the headnote, that:

“A contract, fair and honest in itself, and untainted with actual fraud, entered into by a subscriber of stock with other subscribers, to the effect that they will purchase the same, and pay to him the amount paid by him, if at a time specified he chooses to sell the same, is not contrary to public policy, and can be enforced against the party to it.”

In that case it appears that the promoters of a corporation sold to J. P. Morgan 400 shares of the stock, agreeing that if at the end of a year Morgan should-desire to sell the shares at the price paid by him, the promoters-, Blair, Struthers, and Foster, would purchase the same at the price paid with interest. At the end of the first year the agreement was extended another year, and then Morgan notified Blair and Struthers that he desired to avail himself of the terms of the agreement to resell the stock to them. The parties refused to comply with the contract to repurchase, whereupon Morgan instituted suit." The circuit judge, among other things, instructed the jury, in effect, that if other subscribers were not informed that plaintiff had this agreement as a part of'his subscription contract, then the agreement was in the eye of the law a fraud upon the other subscribers, who did not receive and were not informed of the existence of such an agreement, and would be contrary to the policy of the law, and that in such event plaintiff could not recover, and, further, that if the jury found that the agreement sought to be enforced in that suit was not made kn'own to other subscribers, and if they were not afforded an opportunity to avail themselves of like.security, the contract was void and could not be enforced. The Supreme Court of the United States held that this instruction was erroneous, and, among other things, said:

“We cannot concur in this conclusion. We are not prepared to affirm that there is a public policy which operates such a restraint upon the transfer of stock in a corporation as to render the contract in question, conceded to be valid and fair in itself, fraudulent as to the cosub-seribers with the plaintiff for the 6,000 shares sold by the company and to render it invalid against the party to it, who, it is admitted, has no equity or justice in his favor. Nor do we assent to the proposition upon which this conclusion rests. That proposition is that, when a man purchases or subscribes to shares of stock in an incorporated joint-stock company, there is upon him, in addition to the express terms of the subscription- contract, an implied obligation, incident to the common enterprise, which restrains him from making any engagement with other individuals to secure his own stock against risk, unless the other subscribers are informed of it and put upon an equal footing as to such security. * * * Counsel for defendant urges that, notwithstanding this right to make an absolute sale of his stock belongs to each subscriber, the policy of the law'forbids one of them, whose act of subscription may be hold out as an inducement for others to subscribe, from making a contract of future sale with a view to secure his investment, and renders such a contract void, because many costockholders ‘may have been chiefly induced to subscribe by a knowledge that so prominent and successful an operator was willing to risk his money in such an adventure, and who, had they been told that he had exacted a private security or guaranty which availed to give him the benefit of both the experiment in business and of getting back his money, with interest, If it did not succeed, would assuredly either have refused to subscribe or have demanded a similar guaranty. Moreover, they had a right to suppose that the new firm was to have the countenance of Mr. Morgan, and probably his assistance in the future.’ This is a palpable misconception of the nature of the transaction. There was nothing in the prospectus, or in the subscription contract, or in the nature of the enterprise, to justify such a presumption or expectation on the part of the other stock subscribers. It is just in this respect, especially, that an incorporated joint-stock company differs from an ordinary co-partnership. In the latter, the individual members of the firm are presumed to, and in general actually do, contribute to the common enterprise, not only their several shares of partnership capital, but also their individual experience, skill, or credit, no member having the right to sell out his interest or to retire from the firm without the consent of the copartners, and if he does either, the act amounts to a dissolution of the partnership. Pars. Partn. 171. The very reverse, as we have said, is the case of a joint-stock corporation, in which each stockholder, whether by purchase or original subscription, has the right, unless restrained by the charter or articles of association, to sell and transfer his Shares, and, by transferring them, introduce others in their stead. * ⅝ ⅜ The conclusions to which we have come on the questions discussed dispense with any consideration of the other, point presented by the plaintiff in error, viz. that the defendant should be estopped from setting up the invalidity of the contract sued on because he is a party to it; for, as we have found the contract valid and legal, the question of estoppel does not arise.”

The Supreme Court of Iowa, in Wisconsin Lumber Co. v. Greene, 127 Iowa, 350, 101 N. W. 742, 69 L. R. A. 968, 109 Am. St. Rep. 387, upheld, the contract of a telephone company to repurchase the stock of a subscriber in event the company sold any of its connections, franchises, or business. It was held, quoting' from the syllabus:

“A corporation has power to make valid contracts for the repurchase of its own stock in the absence of charter restrictions,” and “a corporation cannot refuse to carry out its contract to repurchase the stock of certain subscribers upon certain contingencies on the ground that other stockholders were not given the same light to return their stock.”

Nor do we think the contract set up in paragraphs 5, 6, 7, and 8 of the defendant’s answer unenforceable, as appellees insist, because of a want of mutuality; the contention being that, as alleged, while Reeves was obligated to pay the note to the bank upon request of Anderson, there was no reciprocal obligation on Anderson’s part to “request” the payment of the note to the bank. In discussing the subject of mutuality of contracts, the editors of 6 R. O. L. § 93, p. 686, note the fact that in many judicial decisions language is to be found to the effect that in order that a contract may be enforceable there must be mutuality, but say that if by mutuality of obligation it is meant that a contract must be binding on both parties, so that an action may be maintained by each against the other, the statement that mutuality of obligation is essential to every contract “is too broad.” In the following section it is further said:

“If mutuality, in a broad sense, were held to be an essential element in every valid contract, to the extent that both contracting parties could sue on it, there could be no suda a thing as a valid unilateral or option contract, or a contract evidenced by a subscription paper, or a contract to enforce a reward offer, or a guaranty, or in many other instances readily put in ordinary business affairs. As a unilateral contract is not founded on mutual promises, the doctrine of mutuality of obligation is inapplicable to such a contract. If the promisor has received a consideration, his promise is binding, and may be aptly termed an obligation; but, as there is no promise on the part of the promisee, there can be no mutual obligations. Accordingly, whore one makes a promise conditioned upon the doing of an act by another, and the latter does the act, the contract is not void for want of mutuality, and the promisor is liable, though the promisee did not at the time of the promise engage to do the act; for upon the performance of the condition by the promisee, the contract becomes clothed with a valid consideration, which relates back and renders the promise obligatory. An option, supported by a consideration, furnishes another illustration of a contract which is valid notwithstanding the lack of mutuality. It is no objection to the validity of the contract that the holder of the option is under no obligation to exercise it. Similarly the privilege of purchasing given a lessee, in case the lessor makes a sale of the premises, is not invalid on the ground that it is wanting in mutuality, since this privilege is part of the consideration for accepting the lease.”

The text quoted seems to be supported by the authorities cited in the footnotes, and it is to be further noted in this connection that, as alleged, the contract by Reeves was of a twofold character: One was a promise to pay the note upon request; the other, an agreement to indemnify appellant against all loss. And as it seems to us a sufficient consideration for the promises of Reeves is presented in the pleading. It is said in Lane v. Scott, 57 Tex. 367:

“We believe the doctrine to be well settled that, to constitute a consideration valid in law, it is not essential that it should be mutually beneficial to the promisor and the promisee; that it is sufficient if one or the other is to receive a benefit, or to be injured by it. In Townsley v. Sumrall, 2 Pet. 182 [7 L. Ed. 386], it is said by the Supreme Court of the United States ‘that damage to the promisee constitutes as good consideration as benefit to the prom-isor.’ ”

See, also, Hendricks v. Snediker, 30 Tex. 306.

In Rose v. Railroad Company, 31 Tex. 60, it is said:

“Indeed it may be stated as among the elementary principles and maxims of law ‘that if a benefit accrues to him who makes the promise, or if any loss or disadvantage accrues to him to whom it is made, at the request or on motion of the promisor, although without benefit to the promisor, in either case the consideration is sufficient to sustain assumpsit.’ ”

The Missouri Court of Appeals, in the case of Scriba v. Neely, 130 Mo. App. 258, 109 S. W. 847, states the law on this subject in the following language:

“Consideration means not so much that one party is profited as that the other abandons some legal right in the _ present, or limits his legal freedom of action in the future as an inducement for the act or promise for the first. It does not matter whether the party accepting the consideration has any actual benefit thereby or not. It is enough that he accepts it, and that the party giving it does thereby undertake some burden or lose something which in contemplation of law may be of value.”

In the case of Patrick v. Barker, 78 Neb. 823, 112 N. W. 358, the petition alleged in substance that plaintiff is the surviving member of a copartnership under the name of Patrick Bros.; that defendant and one Johnson, president and cashier, respectively, of a state banking corporation doing business in the city of Omaha, in order to convert said state bank into a national bank, solicited the partnership to purchase 200 shares of stock in the proposed national bank at par, and to induce the partnership to do so. agreed with and guaranteed the partnership that the bank would receive certain notes and mortgages held by the partners, valued at $20,000 or more, in full payment for said stock, and guaranteed to them that the bank would not hold them liable under their contracts of indorsement or otherwise for any other or further amount in payment for said stock. To the petition a general demurrer was sustained. On appeal it was held that the contract set up was an independent obligation, by which the defendant undertook to hold plaintiff harmless for any action that thereafter might be taken by the bank requiring the payment of any other or further consideration for the stock so purchased than the notes exchanged therefor. It was also contended in that case that the alleged contract was without consideration. In answering this contention it was said by the court:

“The petition alleged, in substance, that 'plaintiff is the sole surviving member of a late partnership doing business in this state under the name and style of Patrick Bros.; that in 1888 the defendant and one Johnson were the president and cashier, respectively, of a state banking corporation doing business in the city of Omaha; that in July of that year, in order to convert said bank into a national banking association under the name of the National Bank of Commerce, the defendant and Johnson each solicited the partnership to purchase 200 shares of the capital stock of their proposed national bank, at and for the par value of $100 per share, and, in order to induce the partnership to make such purchase, orally agreed with and guaranteed to them that the bank would receive certain notes and mortgages held by the partners, at that time under-stood to be worth $20,-000 or more, in full payment for the said stock, and agreed with and guaranteed to them that the bank would not hold them liable, upon their contracts of indorsement or otherwise, for any other or further amount in payment for said stock. * * * It is claimed, however, that the agreement is void for want of any consideration to support it. We do not so understand it. If Barker agreed with the plaintiff and his partner that, if they would take and pay for the stock, and thus aid Mm in converting his state bank into a national bank, he would protect them from any liability as indorsers, or otherwise, upon the paper which it was agreed they should turn over in full payment for the stock, and plaintiff and his partner did, as alleged, actually purchase the stock, and pay for the same as thus agreed upon, such purchase was a sufficient consideration to support the agreement, and it cannot be said to have been made without consideration.”

In Hendrick v. Lindsay, 93 U. S. 143, 23 L. Ed. 855, it is said that any damage, suspension of a right, or possibility of a loss occasioned to plaintiff by the promise of another is a sufficient consideration for such promise, and will make it binding, although no actual benefit accrued to the party promising. Section 207, Elliott on Contracts, states the rule as follows:

“A valuable consideration is generally defined as ‘some right, interest, profit, or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other.’ There is danger, however, of misunderstanding this definition. The term ‘benefit’ does not refer necessarily to a money p;ain arising out of the transaction, but has reference to any advantage or benefit, slight, but recognizable at law, derived by the promis- or in return for his promise. Nor does the term ‘detriment’ refer to any pecuniary loss. Any act done by the promisee, at the request of the promisor, by which the former sustains any loss, trouble, or inconvenience, even of the most trifling description, if not utterly worthless in the eye of the law, constitutes a valuable consideration for a promise.”

As alleged, it is evident that Beeves, at the time of his promises, was endeavoring to promote the formation of a corporation, in which enterprise it can but be presumed he was personally interested, and if he made the alleged promises to induce Anderson to subscribe for the stock of the proposed company, and to execute his note for money with which to pay for the same, and Anderson accepted the proposition, and in reliance thereon acted upon it, the contract became complete and binding.

In this connection we will also note a contention of appellee Reeves in some of his counter propositions that the petition fails to allege that the promise of Reeves was in writing, and that, as presented, the cause of action arising thereon is barred by the two-year statute of limitation. But we think these contentions must be overruled. Ordinarily, even in cases where, under the statute of frauds, a contract can only be enforced when written, an allegation that such a contract was entered into, without stating whether the contract was in writing or in parol, will, as against a general demurrer, be held to be sufficient; it being presumed in such cases that the pleader intended to set forth an enforceable contract, placing upon the defendant the burden of pleading the statute of frauds, if he wanted that issue presented. See James v. Fulcrod, 5 Tex. 512, 515, 55 Am. Dec. 743, and like eases. Besides, it does not affirmatively appear on the face of the pleadings that the contract of Reeves to pay the note might not have been performed within the year of its making, or of its renewal, as alleged. Moreover, it certainly cannot be reasonably contended that to be enforceable it was necessary that Reeves’ contract of indemnity — to hold appellant harmless by reason of the execution of the notes described — should have been in writing, or that, as presented, the cause of action arising thereunder is barred by limitation.

The contract to indemnify was merely collateral to that evidenced by the note to the bank executed by appellant, and so plainly not subject to the operation of the statute of frauds as not to require elaboration or the citation of authorities, and it is evident that Reeves’ liability thereunder, if any, did not begin, and was not intended to begin, until after appellant had suffered loss or damage ■because of the execution of the note or notes to which the contract of indemnity related ; and this, it is evident from the pleadings, has not yet occurred. Indeed, we are inclined to the view that, as alleged, the agreement of Reeves to pay the note executed by Anderson to the bank is to be construed merely as one method adopted by th& parties for the fulfillment of the agreement to indemnify, and not as a distinct agreement, to be enforced without reference to, and regardless of, the indemnifying phase of the contract as alleged.

We should, perhaps, also note that one or more of the contentions on the part of appellee above noted were presented to the trial court in the form of special exceptions to the answer, and, as already stated, the court sustained the special exceptions, as well as the general demurrers, and the action of the court in ruling upon such special exceptions has not in some instances been brought forward by assignments of error urged before us. Appellees, therefore, contend that, inasmuch as a special exception includes as well a general demurrer, and inasmuch as the action of the court under the rules in sustaining the special exceptions has been -waived by such failure to assign error thereto, that the judgment should be affirmed, regardless of the action of the court on the general demurrers that we have discussed. We are of the opinion, however, that, under the circumstances of this case, at least, the contention cannot be indulged. We will not set forth the numerous special -exceptions that were urged to appellant’s answer, but they have-been examined, and all ibut one, we think — which was a special exception to the answer, because it did not state whether the contract alleged was in writing or in parol — are substantially, general demurrers, and as we construe them mere reasons why the general demurrer was well taken; the questions presented being proper for consideration in ruling upon the general demurrer even without the special exception.

In this connection we also deem it proper to state that, where the trial court has sustained a general demurrer, this court ordinarily will presume that the litigant, against whom the ruling is made will not feel called upon to amend his petition as called for by some special exception, which is intended to reach some informality only, even though the special exception is well taken. It has accordingly been our practice in such cases, where we have determined that the general demurrer was not well taken, to reverse the ruling, notwithstanding the fact that it may also have appeared that some special exception had been sustained that was well taken, in such cases contenting ourselves with merely pointing out the necessity of an amendment to meet the special exception.

We conclude that the court erred in sustaining the demurrers to the appellant’s answer, as against the appellee Reeves, and as between those parties the judgment is reversed, and the cause remanded; the judgment in favor of the bank being undisturbed, as here-inbefore noted.

Affirmed in part; reversed and remanded in part.

On Application for Leave to File Motion for Rehearing.

Appellant, Anderson, presents an application for leave to file a motion for rehearing of the judgment in favor of the First National Bank of La Orange. Our opinion and judgment affirming the decree of the lower court in favor of said bank against Anderson was rendered upon January 13, 1917, and due entry thereof made upon the minutes of this court the same day. The 15 days thereafter within which motions for rehearing are permissible under article 1841, Vernon’s Sayles’ Texas Civil Statutes, expired on January 28th, and the application to file the motion for rehearing referred to was not filed in this court until February 3, 1917. The motion for rehearing that appellant desired to have filed accompanies the application, and therein he attacks that portion of our original opinion to the effect that we found no error in the. trial court’s ruling that the defense presented by appellant as against the bank was subject to general demurrer, in consequence of which ruling on our part the judgment in favor of the bank against Anderson was affirmed, as before stated.

The reasons presented in behalf of appellant for the failure to have filed his motion for rehearing within the proper time are, in substance, that since the rendition of our opinion counsel representing him had been moving their law offices, in consequence of which their files had been disarranged, and the ordinary facilities of the office impeded, and that the counsel presenting the application—

“had charged his mind that Saturday, the 3d day of February, was the last day on which said motion could be filed, and with that idea in view on Friday a. m., the 2d day of February, presented this motion to the clerk, when he was informed that the time for filing the same had expired, which was the first information he had calling his attention to such fact.”

The appellee the First National Bank of La Grange opposes the application to file the motion for rehearing, insisting that to so permit will, in all probability, because of the crowded condition of the docket of our Supreme Court, result in long-continued delay in the enforcement of their judgment, and we feel it to be our duty to sustain ap-pellee’s contention in this respect, because of a want of a sufficient showing for the failure to file the motion for rehearing within the proper time. The counsel who presents the application was present on the original hearing of this case, participated in the argument upon that occasion, and it is to be observed that no reason is given in the application for the fact therein stated that the counsel—

“had charged his mind that Saturday, the 3d day of February, was the last day on which said motion could be filed.”

This court, feels every disposition t'o enforce the rules provided for the dispatch of business liberally, but we cannot hold, as' against the right of a litigant, that, with all the facilities for information available to counsel participating in the disposition of a cause in this court, he may, in the exercise of due diligence, rely upon a mere idea or loosely formed recollection of the proper time within which, voider the law, he is required to complain.

In the case of Sams v. Creager et al., 85 Tex. 497, 22 S. W. 399, it was distinctly held that the rule requiring persons to file within the proper time motions for rehearing must be enforced. In that case, as here, an excuse was attempted for a failure to file the motion for rehearing in time, but the Supreme Court held that the excuse was insufficient, stating:

“If it had been shown that the failure to file the motion within the time prescribed by law resulted from accident, or cause other than neglect of applicant, this court might consider the application, notwithstanding that the Court of Civil Appeals had not acted on the motion for a rehearing.”

That ease was one that was appealed from this court, and we now have before us the original record in which the excuse presented by the counsel in that case was made. It was to the effect that counsel was — .

“a subscriber to the Ft. Worth Daily Gazette, and examined each issue to ascertain what disposition had been made of said cause by this court, and also requested a member of the bar at this place (Amarillo) to notice said paper for any information.to said cause appearing in it.”

It was further alleged that:

“Without fault on his part, he never discovered that any opinion had been handed down by this court until said opinion was published in full in the Gazette of the - day of February, 1893. That on the morning the Gazette containing said opinion reached this place, affiant left for Deaf Smith county on professional business and was absent four days. That on his return home a motion was presented by mail to the clerk of this court for rehearing. in said cause, in behalf of appellant Sams. * * * Affiant says that he used due diligence in his efforts to learn the opinion of the court on said cause as soon as the same was handed down, and his said motion for rehearing was presented to the clerk of this court as soon as possible after learning that said cause had been disposed of.”

The Supreme Court, as stated, held the excuse insufficient, and declined to assume jurisdiction over the cause. We accordingly conceive it to be our duty to overrule the application for leave to file the motion for rehearing, particularly in view of the fact that the appellee bank’s judgment is based upon a plain promissory note executed by appellant, Anderson, and as against which we concluded on the original hearing, and still think, appellant presents no sufficient defense.
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