author: HENDRICKS, J.

text:
    HARP v. HAMILTON.
    (No. 788.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 15, 1915.
    On Motion for Rehearing, June 5, 1915.)
    1. Animals <&wkey;26 — Agister’s Lien.
    One pasturing cattle for a purchaser, who had given a note and a chattel mortgage for the purchase money, and who had agreed to pay $600 on account of pasturage, had a lien upon the cattle remaining in his possession, as against the purchaser, as security for his debt.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 54-69; Dec. Dig. &wkey;26.]
    2. Frauds, Statute of <&wkey;32 — Promise to Answer for Debt of Another.
    Upon the surrender of a debt against another in consideration of a third person’s promise to pay it, only the promise and the debt of the promisor remain, and the primary debt is discharged, so that there can be no collateral liability, within the statute of frauds, which relates to promises which are distinctly collateral to the undertaking of the party originally liable.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 49; Dec. Dig. <&wkey;>32.]
    3. Frauds, Statute of &wkey;>23 — Promise to Pay Debt of Another — Original or Collateral Promise.
    "Where cattle were sold by defendant, and payment secured by chattel mortgage, and the purchaser became indebted to plaintiff for their pasturage, and upon a settlement agreed to pay plaintiff $600, and defendant, after his transfer of the mortgage, acting with the purchaser, sold the cattle remaining in pasture and promised to pay the amount, in consideration of their possession, the plaintiff relinquishfed a lien or right to possession, and defendant acquired possession, to which he was not otherwise entitled, so that the defendant’s promise, though not extinguishing the original indebtedness, was an original promise, not within the statute of frauds; and even if defendant was a mere agent of his assignee, yet where he was interested in the mortgage, and admitted that he was obliged to pay it, his parol promise to pay the amount out of the proceeds of sale was not within the statute, so that plaintiff might recover thereon.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 18, 19; Dee. Dig. <&wkey;23.]
    4. Contracts <&wkey;51 — Consideration—“Benefit” to Promisor.
    A valuable consideration for a promise may consist of a benefit to the promisor; “benefit” meaning that the promisor has, in return for his promise, acquired some legal right to which he would not otherwise have been entitled.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 223, 224; Dee. Dig. &wkey;51.
    For other definitions, see Words and Phrases, First and Second Series, Benefit.]
    5. Contracts <&wkey;52 — Consideration—“Detriment” to Promisee.
    A valuable consideration for a promise may consist of a detriment to the promisee; “detriment” meaning that the promisee has, in return for the promise, forborne some legal right which he otherwise would have been entitled to exercise.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 223, 224; Dec. Dig. &wkey;?52.
    For other definitions, see Words and Phrases, First and Second Series, Detriment.]
    On Motion for Rehearing.
    6. Pledges <&wkey;ll — What Constitutes.
    While an actual delivery usually accompanies and constitutes a. pledge of personal property, yet, where property is already ill the hands of a creditor, an agreement that it may be held as collateral security still leaves the transaction a “pledge.”
    [Ed. Note. — For other cases, seei Pledges, Cent. Dig. §§ 28-35; Dec. Dig. <&wkey;>ll.]
    7. Frauds, Statute of <&wkey;33 — Consideration — Benefit to Promisor.
    Where the seller of cattle took a chattel mortgage on them which permitted foreclosure only by public sale, assigned his mortgage, and, in order to get possession from one to whom the purchaser had agreed to pay a certain amount for pasturage, in order that a private sale might be made, agreed to pay such amount or to pay it out of the proceeds of the sale, his interest in the mortgage, which he admitted he was “behind,” together with his possession of the cattle, were a benefit sufficient to sustain his promise to pay the amount due for pasturage.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ SO1^, 56; Dec. Dig. 4&wkey; 33.]
    Appeal from Floyd. County Court; Chas. H. Veale, Special Judge.
    Action by R. N. Hamilton against A. E. Harp and others. Judgment for plaintiff, and defendant Harp appeals.
    Affirmed.
    Martin, Kinder, Russell & Zimmerman, of Plainview, for appellant. A. P. McKinnon, of Floydada, and Mathes & Williams, of Plainview, for appellee.
   HENDRICKS, J.

C. W. Morgan pastured

certain cattle with R. N. Hamilton, the ap-pellee. On account of some dispute, with reference to the pasturage bill, Morgan and Hamilton had a settlement; the former agreeing to pay the latter the sum of $600, on account of said pasturage. Previous to that time, the cattle had been purchased by Morgan from the son of A. E. Harp; the latter negotiating the sale of said cattle for his son.. Morgan executed a note to A. E. Harp, the appellant herein, also a chattel mortgage on the cattle, representing the purchase money, which mortgage also covered certain feed. The note and chattel mortgage became considerably overdue, and.a majority number of the cattle were sold, and shipped, with 23 head left in Hamilton’s pasture; the latter claiming that said number were retained by him as an agistment for the payment of the pasture debt. The mortgage and note held by Harp in the meantime had been transferred to one Wilkins, of Oklahoma City.

Harp, who had transferred the mortgage and note to AVilkins, acting with Morgan, sold the remnant of the cattle to one Cox, and Hamilton alleges that Harp, claiming a mortgage on the cattle, obtained the possession of the same from him upon the agreement that Harp would weigh and deliver the cattle to the purchaser, and pay the pasturage debt out of the proceeds of the cattle; that he (Hamilton) had refused to deliver said 23 head of cattle to Harp and Morgan until said debt for pasturage was paid, but finally delivered the same upon the representation and promise of Harp.

■ The application of the statute of frauds, as to the promise of Harp to pay the debt of Morgan, is the real issue in this cause.

The jury, upon the submission of special issues by the trial court, found every issue in favor of Hamilton and against Harp and Morgan, finding against Harp that he agreed to pay the sum owing by Morgan for pasturage at the time of the delivery of the 23 head of cattle by Hamilton, also finding more specifically that the cattle were taken from plaintiffs possession upon the promise and agreement that Harp would hold $600 out of the proceeds of their sale, if Hamilton would deliver the cattle.

In support of the judgment, we conclude that Harp was interested in the mortgage on account of statements testified to by witnesses claimed to have been made by Harp with reference to the chattel mortgage, coupled with the testimony of Harp that he stood behind the mortgage.

Hamilton had a second lien upon the cattle and was entitled to the possession of the same as security for the payment of his debt. There is a contention by Harp that, as the agent of Wilkins holding the mortgage, he had the right to take possession of the cattle after the maturity of the debt and default by Morgan. However, this right, under the peculiar provision of the mortgage, was not existent, except for the purpose of selling the property at public vendue. He did not have the legal right to obtain, over Hamilton’s protest, the possession of said cattle to effectuate a private sale of the same. Neither did Morgan, the owner of the cattle, have the right to demand and take possession of same from Hamilton, destroying the agister’s second lien, without the payment of the debt; and Hamilton had a right to hold the cattle until they were taken by one entitled thereto under proper legal process.

Appellant asserts a proposition, as a final test, that if the original debtor is not discharged, and if the original debt continues to subsist, the promise is within the statute. Appellant is evidently deducing this proposition from some expressions by our own courts, not, however, applicable in the slightest to the status of cause presented here.

The courts, of course, have always held without any contradiction that upon surrender by one of an obligation against another, in consideration of a promise by a third person to pay that debt, though the promise, when made, is in a sense an obligation to pay the debt of another, however, when the primary debt is discharged, there is no such thing as another’s debt; there is only one promise and one debt remaining (the promis- or’s), and there can be no collateral liability. That was the condition disclosed by the case of Warren v. Smith, 24 Tex. 486, 76 Am. Dec. 115, cited by appellant. The Supreme Court, however, announced this rule in that case, which has always been the primary principle in connection with this statute:

“It is well settled that the clause of the statute of frauds, which relates to promises to answer for the debt * * * of another person, has reference to promises which are distinctly collateral to the undertaking of the party originally liable”

—and which rule is really the principal basis of the opinion of Justice Dunklin, in the case of Williams v. City National Bank, 166 S. W. 130, cited by appellant in Ms brief, and argued to the court, as sustaining his position. As disclosed by that case, the promise, whatever may be said of the consideration moving to Williams, the promisor, was distinctly one of a collateral- nature.

But appellant would be unable to find a case by our Supreme Court, or any other considered case by any other Supreme Court, that if a third party promises a creditor that he will pay such creditor the antecedent debt of another person, upon a sufficient independent consideration moving to the promisor, where the promise and liability to pay are primary, and not collateral, such á promise is within the statute of frauds, because the original debt continues to exist. In Muller v. Riviere, 59 Tex. 642, 46 Am. Rep. 291, the court distinctly announced that it is not essential in all cases that the original liability should have been extinguished by virtue of a plaintiff’s promise to pay the debt of a third person; the court meaning that there are promises upon independent considerations- creating an independent duty upon the part of the promis- or to pay the debt, though the original debt is still existent, and that such promise is not within the statute.

Afc; we interpret this record, appellant’s contention that, if the original debt continues, the promise is within the statute, if sustained, would really place us, in principle, in opposition to the line of cases, where a third party promises to pay a creditor another’s debt, upon some valuable consideration, extended by the debtor to him (the promisor). In those cases, though the promisor becomes the principal, and the debtor becomes the surety, as between themselves, however, to the creditor, they are both primarily liable, not one for another, and the original debt is not discharged, but the promisor, upon an independent consideration to him, on account of a business concern of his own, makes the debtor’s obligation his obligation. Spann v. Cochran & Ewing, 63 Tex. 242; Morris v. Gaines, 82 Tex. 257, 17 S. W. 538; Lemmon v. Box, 20 Tex. 333.

Appellant says, however, that the case oí Starr v. Taylor, 56 S. W. 543, by the San Antonio court, “is exactly in point, especially where there is no agreement to discharge the original debtor.” If, in that cause, Miller, the debtor of Taylor’s, turned over a crop to Starr, in consideration that Starr would pay Miller’s debt to Taylor, and the promise was one of primary liability, and not collateral, it is in direct conflict with the Supreme Court, according to the rule announced in the cases cited; and if the status of the ease is as stated by us, in principle, it is really in conflict with tire case of Lyons v. Daugherty, 26 S. W. 146, decided by the same court and the same judge. Reading the Starr-Taylor Case, we are unable to definitely state the nature of the promise finally considered. There is, however, an intimation, in the opinion, that the promise is a collateral one. .

“ * * * There are two kinds of promises of extensive use in the dealings of community, which, in form and effect, very much resemble each other; each being to answer or pay a debt already due or owing from a third person, yet wholly different in respect to the motive and consideration. In the one class the prom-isor has no personal interest nor concern, and his undertaking is made solely upon some fresh consideration passing between the creditor and his debtor. This class is within the statute. In the other, the promise may be in the same form, and, when performed, may have the same effect, but it is made as the incident of some new dealing in which the promisor is himself concerned and upon a consideration passing between the creditor or the debtor and himself. This class, which may include a great variety of particular examples, is not within the statute.” Mallory v. Gillette, 21 N. Y. 420.

This is a clear, general presentation of the two classes, though we are not adopting the particular statement; with reference to the second class, when it is said that the promise in that class may be in the same form as the promise in the first class. This we tried to make plain, inefficiently perhaps, in the cause of Enterprise Trading Co. v. Bank of Crowell, 167 S. W. 297, a case where a corporation had turned over the principal corpus of its property to a stockholder and director as a managing trustee, and for aught we know, upon a reasonable compensation for his services, to sell said property for the purpose of concluding the affairs of the corporation. This trustee, with the knowledge of the other directors, was about to remove the property to another portion of the state and convert it into the stock of a new corporation; and the bank, as pledgee of some of the stock to another’s debt, intending to enjoin the removal by this managing trustee of said property for said purpose, forbore this right in consideration of the promise of the managing trustee to pay the debt. We held that this particular managing director and trustee, in possession of said property, being equitably interested in the goods as a stockholder and of any surplus remaining after its debts were paid, and entitled to reasonable compensation for his services, and having obtained a right against the promisee to remove the goods, which the latter could have compelled him to relinquish, the transaction embraced a sufficient moving consideration to the promisor to sustain his promise, which was primary, not collateral, to pay said debt. The promis- or acquired a right which he would not have enjoyed if the bank had not relinquished the right it possessed. The detriment to the promisee merged into a benefit to the prom-isor. Though not cited, the ease in principle is sustained by the cases of Emerson v. Slater, 22 How. 28, 16 L. Ed. 360, and Davis v. Patrick, 141 U. S. 479, 12 Sup. Ct. 58, 35 L. Ed. 826, where stockholders of corporations made certain promises.

When Hamilton delivered the cattle to Harp and Morgan, for the purpose of effectuating the previous contract of sale, he relinquished a right which Harp could not otherwise have extinguished, except by taking possession of the cattle for the purpose recited in the mortgage, not for the purpose of private sale. Harp, being behind the mortgage and interested, acquired a legal right to the possession of the property, which, under the law, he did not theretofore possess.

To go back to elementary principles for a moment:

“A valuable consideration for a promise may consist of a benefit to the promisor or a detriment to the promisee. * * * Benefit, as used in this rule, means that the promisor has, in return for his promise: acciuirefl some legal right to which he would not otherwise have been entitled. Detriment means that the prom-isee has, in return for the promise, forborne some legal right which he otherwise would have been entitled to exercise.” Page on Contracts, vol. 1, § 274.

When Hamilton, under the conditions, relinquished his possession, and really his lien, he relinquished a legal right. Harp obtained one he did not theretofore possess. Why, in law, is not such a condition as presented in this record a detriment to the promisee, also in law the acquisition of a right constituting a benefit to the party promising?

If Harp made a promise to pay the debt, it was not a collateral promise, but he was independently liable, though Morgan was still liable. The clearest enunciation we have of this principle is by the Court of Appeals of New York, in the case of White v. Rintoul, 108 N. Y. 222, 15 N. E. 320, quoted by us in Enterprise Trading Co. Case, and which we will again quote:

* * * Where the primary debt subsists, and was antecedently contracted, the promise to pay it is original, when it is founded on a new consideration moving to the promisor and beneficial to him, and such that the promisor thereby comes under an independent duty of payment, irrespective of the liability of the principal debtor.” •

However, if the promise was one, as indicated by a finding of the jury, and sufficiently supported by the testimony, as to the real issue in this cause, that Harp agreed to hold $600 out of the proceeds of tbo sale and pay the debt, it plaintiff would deliver the cattle, for other reasons the contract would not be within the statute of frauds.

We rather lengthily discussed the other phase because appellant and appellee, in their briefs, follow the same line, and we desired, if we were able, to clarify the positions.

Our statute of frauds is based, of course, upon the English statute. The leading case of Williams v. Leper, 3 Burr., as extracted from the books and the reports, was one where:

“The landlord had a legal pledge. He enters to distrain. He has the pledge in his custody. The defendant agrees that the goods shall be sold, and the plaintiff paid.” Browne on Statute of Frauds, § 206, p. 264.

That author says:

“It seems * * * that the English courts have clearly apprehended the force of William v. Leper as embracing mere cases of a trust assumed by the defendant in regard to property in the hands or under the control of the plaintiff, and in which the discharge of the third person’s debt was merely incidental to the execution of that trust.” Section 209.

He also says (section 206):

“The judges really treat it, not as a promise to pay the debt, in consideration of the forbearance to distrain, * * * but as a transaction by which certain goods were intrusted out of the landlord’s constructive possession, and put in Leper’s hands, for the purpose of his converting them into money wherewith to pay, among other debts, that due to the landlord. It was a mere case of agency or trust.”

In that cause Leper, as an agent of other creditors, having notice of the landlord’s intention to distrain the goods, and obtaining constructive possession of the property, promised the landlord to pay the arrear of rent if he would desist from distributing, and was held liable. There are numerous cases, English and American, following this particular case, to the effect that where the plaintiff has relinquished an advantage in consequence of the defendant’s promise, and that advantage has inured to the benefit of the defendant, especially if the promise is primary and not collateral, the statute of frauds does not apply. Browne on Statute of Frauds, § 205, notes.

“From the circumstances that the goods in question passed into the hands of the defendant when the lien was relinquished, it might be inferred that it inured to his benefit.” Browne, § 205.

In this case Harp contends that he was merely an agent. He could, however, be an agent for Wilkins and also interested in the subject-matter of the mortgage. We presume from his statement that he was behind the mortgage; that he meant that he was obligated to pay it. He was certainly interested, and when Hamilton delivered the cattle, knowing that the same wére to be sold, he necessarily lost his agister’s lion when Harp delivered them to Cox; and 1-Iarp obtained a right, under this agreement, he would not have otherwise been entitled to; and, upon the finding of the jury that Harp promised to pay the agister’s debt out of the proceeds of the sale, upon that phase of the case Hamilton should also recover.

Before leaving this subject, we will say that we might have decided the case of Fletcher v. Puckett, 170 S. W. 830, upon the sole question of collateral liability, without the discussion of what constitutes a sufficient benefit to the promisor, as a new consideration to him. We had not the question before us in that cause whether, if the consideration to the promisor had been sufficient, but this promise being collateral and not primary, the promise would not be within the statute. We only considered the question of the sufficiency of the benefit as a consideration to the promisor, and, holding it not sufficient, held that the statute applied. The case may leave the impression that if the benefit to the promisor had been sufficient, though the promise was collateral, the statute would not apply. That is an undecided question by this court. Neither do we decide this question: If the promise to pay the debt of another is one of assumed primary liability, not collateral, to pay such debt, but is based, not upon a consideration as a benefit to the promisor, but merely a detriment to the promisee, whether the promise is within or without the statute?

There are no other assignments deserving mention, and we order an affirmance of the judgment.

On Motion for Rehearing.

We desire to correct the statement in the original opinion, characterizing the lien of Hamilton upon the 23 head of cattle as an agister’s lien. Upon the testimony of Hamilton, and upon a finding of the jury, the record develops a pledgee’s lien, secondary, of course, to the mortgage lien, but the change of the form of the security does not assist the appellant in the case.

It is true that an actual delivery usually accompanies and constitutes a pledge of personal property; but, where property is already in the hands of a pledgee, an agreement that it may be held as collateral security by the person who has the possession still constitutes the transaction a pledge. Jones on Pledges, § 25, p. 20.

On the question of the benefit to Harp, based upon the record, to sustain a consideration to him, as the promisor to pay the debt of another, the testimony of his declarations of his interest, though of a general nature, added to his own testimony that he was behind the mortgage, coupled with the acquisition of the possession of the cattle, for the purpose of consummating a sale of the cattle made by himself and Morgan to Cox (a right which was theretofore not possessed), are amply sufficient for that purpose..

The motion for rehearing is overruled.
      <S^>For other cases see same topic and KEY-NUMBER. In all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WALTHALL, J.

license: Public Domain

text:
    HUMPHREYS v. DOUGLASS.
    (No. 465.)
    (Court of Civil Appeals of Texas. El Paso.
    June 3, 1915.)
    1. VENDOR AND PURCHASER <&wkey;296, 316 — Remedies oe Vendor — Lien—Amount.
    Where plaintiff had conveyed a lot to defendant by warranty deed, part of the purchase price being represented by notes secured by a vendor’s lien, and agreed to give defendant immediate possession, but defendant was compelled to buy an outstanding tax title, and after one year plaintiff took possession of the premises from defendant’s tenant, neither party can succeed in trespass to try title, nor can either rescind, but the plaintiff can recover the balance due on the purchase price, less the amount paid by defendant for the outstanding tax title, and the rental value of the property during the time plaintiff was in possession, and can foreclose a lien therefor.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 832, 932, 933; Dec. «Dig. &wkey;3296, 316.]
    2. Vendor and Purchaser <@=o285 — Remedies of Vendor — Lien—Attorney’s Fee.
    A vendor cannot recover an attorney’s fee provided for in vendor’s lien notes on default in making payments, where no part of the debt was due at the time suit was brought.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 800-807; Dec. Dig. &wkey;285J
    3. Vendor and Purchaser &wkey;s285 — Vendor’s Lien — Interest.
    Where vendor’s lien notes, payable in weekly installments, provided for interest thereon, a judgment of foreclosure of the lien for the balance due after deducting the amount paid by the purchaser for an outstanding tax title and the rental value during the time the vendor was wrongfully in possession, should include interest on such balance.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. .§§ 800-807; Dee. Dig. <&wkey;285J
    Appeal from District Court, Harris County ; Norman G. Kittrell, Special Judge.
    Action by Delilah Humphreys against Vincent Douglass and Joe Johnson, in which the latter disclaimed. Judgment for part only of the relief claimed, and plaintiff appeals.
    Reversed and rendered for plaintiff.
    Van Velzer & Lewis and W. J. Howard, all of Houston, for appellant. Green & Boyd, of Houston, for appellee.
   WALTHALL, J.

This suit was brought by appellant against appellee and Joe Johnson, in form of trespass to try title, with a count for title and possession under a rescinded contract of sale as an alternative remedy, and by supplemental petition recovery in debt and foreclosure was prayed.

Defendant Johnson disclaimed. Defendant Douglass answered by admitting his purchase from plaintiff, alleged the purchase of an outstanding title from a third person, filed a cross-action in trespass to try title, and prayed for damages for the value of use of the premises while they were in the possession of appellant. The ease was tried without a jury.

The trial court denied both counts in trespass, denied a rescission, allowed recovery to the vendee for the amount paid to acquire the outstanding (tax) title, awarded damages to defendant on his cross-action against plaintiff while the premises were occupied by her after sale to defendant, and rendered judgment in favor of plaintiff for what the court estimated to be the balance of the unpaid purchase money with foreclosure against defendant with writ of possession in favor of defendant, pending foreclosure sale. The trial court filed no finding of fact, except the findings stated in the judgment.

Findings of Fact.

• On the 27th day of February, 1912, Delilah Humphreys was the owner of lot 6, block 116, Bruner addition to the city of Houston, the property in controversy, and on that date, sold and conveyed the property by general warranty deed, to Vincent Douglass, for a consideration of $100 paid in cash, and a promissory note for $400 to be paid in 65 installments, each month, to begin with April 1, 1912, of $6 per month, and one installment of $10; the unpaid balance of the purchase money was expressed in the deed and note, and in said deed and note a vendor’s lien was expressly retained to secure the payment of the said unpaid balances of the purchase money. The note provided for the payment of 6 per cent, interest and on default, 10 per cent, on principal and interest then due as collection fees, and a failure to pay any installment of principal or interest would mature all unpaid amount of principal at the option of the holder. None of the deferred payments were made on the notes. At the time of the conveyance, appellant was in possession of the premises through a tenant. Nothing was said between seller and buyer as to the possession of the premises before final payment of the purchase money, nor is there anything in the deed as to possession of the premises. About April 6th, after the execution of the deed and notes, appellee found that the property had been sold for taxes on December 19, 1910, under an execution and order of sale in consideration of $29.63, and against appellant. Appellee redeemed the property by paying to the purchaser $75 on April 6, 1912. Shortly after the purchase from appellant (time not fixed) appellee, without objection from appellant and with her knowledge, had the renter of the premises to attorn to him for rent and collected rent and continued to hold possession by tenant for about one year, when appellant, without appellee’s consent, moved into and took possession of the premises, and appellee’s tenant then moved out. To our minds, the evidence discloses an implied agreement that the appellee should have possession of the premises from the date of the purchase. The appellant was in possession about 26 months. Appellant in her brief filed, admits that the $75 paid to redeem from tax sale should be allowed. No part of the debt was due at the time of filing the suit.

Conclusion.

We reach the conclusion that bot)h counts in trespass should be denied, the rescission of the grant should be denied, a recovery to the vendee for the $75 paid for redemption of the property from tax sale should be allowed, and that appellant should have judgment for the balance due on the purchase price, with interest thereon at the rate of 6 per cent, per annum, less the value of the rent, which we hold to be appellee’s measure of damage, in this case, for the unlawful detention of the premises during the time appellant has occupied the premises.

We conclude that appellant should not be allowed the attorney’s fee of 10 per cent, on the amount of principal and interest due at the time of bringing the suit, as there was no part of the principal due at the time of filing suit — no default in the payment of the principal had then been made. We conclude the amount of the unpaid balance of the purchase price of the property at the time of the rendition of the judgment to be $210.59, calculating by partial payments, instead of $169, found by the trial court. The appellant, we think, is entitled to interest on the $210.59 at the rate provided in the note, 6 per cent, per annum, from the date of the judgment until same is paid, and that she should have a foreclosure of the vendor’s lien against the property, and an order of sale directing a sale as under execution.

The conclusion we reach of the issues of fact stated above, necessarily overrules appellant’s first, fourth, fifth, and sixth assignments of error, discussing the question as to the right of possession of the premises before final payment of the purchase price. The third assignment must be overruled. There was no part of the principal due at the time suit was filed. The contract to pay 10 per cent, additional as attorney’s fee was based on a default to pay principal when it became due, and as there was no default, appellee should not be charged with the collection fees.

Appellant’s second assignment complains of the refusal of the trial court “to allow plaintiff a recovery of interest on the purchase money as the contract provided therefor.” The judgment of the court for $169 did not include interest. The note provided for the payment of interest from date at the rate of 6 per cent, per annum. The appellant, we think, should have recovered interest. ■ We sustain the second assignment of error, reverse the case, and here render judgment for appellant, Delilah Humphreys, that she do have and recover of and from the appellee, Vincent Douglass, the sum of $210.-59, together with interest thereon from the 12th day of August, 1914, at the rate of 6 per cent, per annum until paid; and for a foreclosure of the vendor’s lien against the property described in plaintiff’s petition, viz., lot No. 6 in block No. 116, of the Bruner addition to the city of Houston, Harris county, Tex., and that the clerk of the district court of Harris county, Tex., do issue an order of sale directed to the sheriff or any constable of said Harris county, commanding him to seize and sell said property as under execution and apply the proceeds thereof to the satisfaction of this judgment, interest, and costs of suit, and any excess remaining pay to appellant. That the officer place the purchaser in possession and that defendant Joe Johnson be dismissed on his disclaimer.

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


author: HIGGINS, J.

text:
    UNITED S. S. CO. v. HOUSTON PACKING CO. et al.
    (No. 464.)
    (Court of Civil Appeals of Texas. El Paso.
    May 27, 1915.
    Rehearing Denied June 17, 1915.)
    1. Venue &wkey;>32 — Privilege—Waiver.
    A defendant, proceeding to trial on the merits without invoking the court’s action on its plea of privilege to be sued in the precinct of its domicile, thereby waives the privilege.
    [Ed. Note. — Eor other cases, see Venue, Cent. Dig. §§ 47-50; Dec. Dig. &wkey;32.]
    2. Appeal and Eeeoe <&wkey;916 — Petition — Mis,toindee op Causes of Action — -Waiver.
    Where an exception to a petition for mis-joinder of causes of action was not called to the court’s attention and no action was taken thereon, the court on appeal will presume that the exception was waived.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3699-3705; Dec. Dig. <&wkey;> 916.]
    3. Carriers &wkey;> 177 — Carriage oe Freight— Liability.
    Where containers were suitable and proper, and goods were delivered by the initial carrier to the terminal carrier in good condition, and on arrival at destination the goods were damaged and the containers leaking, the terminal carrier was liable.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 775-789, 791-803; Dec. Dig. &wkey; 177.]
    4. Carriers <&wkey;180 — Carriage oe Freight-Liability.
    Where a shipment was improperly handled by a terminal carrier and injury occurred while in its possession, it was liable without reference to a provision in its bill of lading exempting it from liability for injuries not occurring over its own line.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 815-828; Dec. Dig. &wkey;180.J
    Appeal from Harris County Court, at Law; K. C. Barkley, Special Judge.
    Action by the Houston Packing Company against the United Steamship Company and another. From a judgment for plaintiff against defendant named, it appeals.
    Affirmed.

      Stewarts and R. W. Houk, all of Houston, and J. E. Quaid, of El Paso, for appellant. Hutcheson & Hutcheson, Baker, Botts, Parker ■& Garwood, and W. A. Parish, all of Houston, for appellee.
   HIGGINS, J.

The Houston Packing Company brought this suit in a justice court of Harris county against the United Steamship Company and Galveston, Houston &' Henderson Railway Company to recover damages alleged to have been sustained to 50 tierces of lard shipped from Houston, Tex., to Caibairen, Cuba. From the justice court an appeal was taken to the county court at law, where judgment was rendered against the steamship company, from which it prosecutes this appeal. The shipment moved from Houston to Galveston over the Galveston, Houston & Henderson Railway Company, from Galveston to Havana, Cuba, in a boat of the steamship company and thence by rail to Caibairen. Separate bills of lading were issued by the defendants.

By its first assignment appellant complains of the overruling of its plea of privilege, claiming its right to be sued in Precinct 1 of Galveston county, where it was domiciled. The record discloses that it proceeded to trial of the case upon its merits, without invoking the action of the court upon the plea. It was therefore waived. Watson v. Baker, 67 Tex. 48, 2 S. W. 375; Blum v. Strong, 71 Tex. 321, 6 S. W. 167.

The exception to the petition based upon misjoinder of causes of action does not appear to have been called to the attention of the court, and no action thereon was taken. In this condition of the record it would be presumed that the exception was waived. But in any event, the allegations of the petition do not present a case of misjoinder of causes of action. The petition upon its face is sufficient to show a joint liability.

The third assignment questions the sufficiency of the evidence, it being asserted that all of the evidence indicated that all of the damage to the shipment was due to the insufficiency of the tierces containing the lard or the jolting they received in transit from Houston to Galveston. There is ample evidence in the record that the tierces used were suitable and proper containers; that they were delivered in good condition to the steamship company and upon arrival in Havana they were damaged and leaking. This is sufficient to fix responsibility for the damage upon appellant, and the assignment is without merit

In view of the evidence just noted and the finding of the jury that the shipment was improperly handled by the steamship company and the injury and damage occurred while in its possession, it becomes unnecessary to pass upon the fourth assignment, asserting that:

“A provision in the bill of lading of a steamship company engaged in foreign commerce, exempting it from liability for injuries to goods not occurring while such goods were in transit over defendant’s own line, is valid and binding on the shipper.”

The damage and injury occurred while the goods were in possession of the steamship company, and not a connecting carrier. The proposition urged therefore has no pertinency under the evidence and findings of the jury.

The fifth assignment is overruled because the evidence and jury’s findings establish that the damage was caused by appellant’s negligence.

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


author: HALL, J.

text:
    CHICAGO, R. I. & G. RY. CO. v. RATLIFF et al.
    (No. 782.)

    (Court of Civil Appeals of Texas. Amarillo.
    May 8, 1915.
    Rehearing Denied June 5, 1915.)
    1. Taxation &wkey;>611 — Assessment — Action to Set Aside Assessment — Evidence.
    In a suit by a railroad company to restrain collection of taxes, evidence held insufficient to show that the assessment against it was based upon full value of the property, while that against other property was based on a third of its value.
    [Ed. Note. — For other cases, Cent. Dig. §§ 1242, 1245-1257; 611.] see Taxation, Dec. Dig. <&wkey;>
    2. Taxation <&wkey;611 — Assessment — Valuation.
    In a suit by a railroad company to restrain collection of taxes, evidence held insufficient to show an agreement by the board of equalization to undervalue certain property in violation of Const, art. 8, § 1, requiring all property to be taxed according to its value.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1242, 1245-1257; Dec. Dig. &wkey; 611.]
    Appeal from District Court, Carson County; F. P. Greever, Judge.
    Suit by the Chicago, Rock Island & Gulf Railway Company against Fayette Ratliff and others to restrain the collection of certain taxes. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    N. H. Lassiter, of Ft. Worth, and Gustavus & Jackson, of Amarillo, for appellant. Ree-der & Dooley, of Amarillo, and J. Sid O’Keefe, of Panhandle, for appellees.

       Writ o£ error pending in Supreme Court.

   HALL, J.

Appellant railway company filed this suit March 12, 1914, against the county judge, county commissioners, and the tax collector of Carson county to restrain the collection of certain taxes assessed against it. Briefly stated, the railway company’s claim is that it was the custom by common consent to assess property in Carson county for taxation on a basis of one-third of its actual value, and that the intangible property of the' railway company, as determined by the state tax board was assessed at its full value in Carson county, and taxes were assessed against it and attempted to be colleet-ed on the basis of its full value instead 'of on the common basis of one-third of its value. This it is claimed amounted to a discrimination and lack of uniformity in taxation, operating against appellant, and from which it prayed to be relieved. The amount of this excess tax to be collected, was alleged to be $1,700.59. The defendants denied that it was customary in Carson county to assess property at one-third of its real or fair market value, and claims that all property was assessed at its full and true value, except the property of the railway company in Carson county, which had probably been assessed at less than its full and true value, rather than overvalued by the board of equalization. There was a trial before the court, and from a judgment rendered against the plaintiff, this appeal is prosecuted.

Appellant offered evidence to show that the rough and unimproved lands of Carson county, adapted to grazing purposes, were of the reasonable value of $3 to $6 per acre, but that these lands were accepted for taxation purposes at from $1 to $2 per acre; that the better lands, smooth and improved and adapted to cultivation and in cultivation, were of the reasonable market value of $10 to $25 per acre, but that they were assessed at from $3 to $6 per acre. It was further alleged that the average value of lands throughout the county, belonging to resident owners, was $3.42 per acre, and for lands belonging to nonresidents, $2.41 per acre; that the horses and mules in said county were of good quality and in good condition, and worth from $100 to $200 per head; that the cattle were in the main of good breed and' worth from $40 to $60 per head; that horses were assessed at an average value of $40 per head, and cattle at $13.41 per head.

Nearly all of the assignments raise the question of the sufficiency of the evidence to support the court’s judgment. The county judge and the county commissioners, who acted as the board of equalization, testified at great length with reference to the values of the real and personal property in the county on the 1st day of January, 1913. They stated that they had investigated the matters pertaining to the duties devolving upon them, and the result of their investigation was that no lands were selling about that date; that they had not been able to learn of any cash sales, and had concluded that land in that county on the 1st day of January had no market value. Then it was decided that under the law the board was required to assess the land at its real cash value; that 10 or 12 days were consumed in prosecuting their inquiries along this line; that the lands were first classified into plains land, rough or broken lands, raw lands, and improved lands, and when each individual piece of property was ■ taken up in turn, the board considered its distance from town; its physical condition; whether it had any lakes, draws, or brakes; whether it was rough or smooth, and its condition with reference to improvements and passed upon each rendition separately; that after determining that the lands had no market value, then in ascertaining its true cash value, a number of elements were considered, among which was the rental value, and from a consideration of all these matters, assessed it at what they considered to be its full cash value; that the same course was followed in estimating the value of cattle, horses, and every other species- of property taken up; that in determining the value of cattle, due consideration was paid to the condition of the cattle on January 1, 1913. Cattlemen appeared before the board and discussed values and answered inquiries. They stated that they did not take into consideration the prices at which cattle were sold for delivery later in the year; that on the 1st day of January, the cattle were poor and not in a marketable condition, and that practically no cattle were being shipped to market from that county at that time. The condition of the cattle required expense and trouble to carry them through the hard season, and the value assessed was what the members of the board thought the cattle were worth in their then condition under all the circumstances upon the 1st day of January. They found that there was no cash market value for horses at that time of the year, and decided that the only thing they could do was to estimate the true money value of the horses under all the conditions and circumstances. The county judge and each member of the board denied positively that there was any agreement or understanding that any of the property in the county should be assessed for anything less than its full cash value or its full market value on the 1st day of January, 1913. Appellant attacks this position by a great deal of testimony, some of which tends to show that the market value of the various kinds of property, as well as its real value on the 1st day of January, was more than its value as fixed by the board of equalization and listed by the assessor. The effect of this testimony is simply to raise an issue of fact, which has been decided by the trial judge against appellant. One or two witnesses for appellant testified that two of the commissioners had stated that they were making an effort to equalize property in the county at one-third of its value. 'The commissioners denied this statement. It was admitted by some of appellant’s witnesses on the question of value that only one section of land had sold during the year 1913; that no settlers had come into the county during the previous year for the purpose of acquiring homes; that about the 1st day of January, 1913, conditions were rather serious, as there had been practically a crop failure in 1912, and that the future of the country was thereby rendered uncertain. As declared in Lively v. M., K. & T. Ry. Co., 102 Tex. 545, 120 S. W. 852. If an undervaluation of certain property in the county is made with a deliberately adopted policy and other property is assessed at its full valuation, it is a violation of Const, art. 8, § 1, requiring all property to be taxed in proportion to its value.

There is certainly no direct evidence in this ease of any agreement or design on the part of the board of equalization to violate the law in this particular, and while it may be inferred that lands and possibly personal property have been listed at something less than we might declare to be its actual value, the trial judge having held otherwise, we are not authorized to reverse his decision. No arbitrary or fraudulent discrimination has been shown upon the part of the commissioner’s court in the performance of their duties.

Appellee insists that even though the evidence should show a low valuation upon the property of individuals in the county, that the board of equalization has also placed a value on appellant’s property proportionately lower than that placed on property generally; and in support of this contention they show that, according to a computation made by the railroad commission in 1910, the value of appellant’s property in Carson county was $423,890.25. According to the statement filed by appellant’s officials with the tax commissioner of the state on February 12, 1913, betterments to the extent of 50 per cent, had been added to the value of appellant’s property since the valuation made by the railroad commission; that the actual assessment against appellant for the year 1913, in Carson county, shows a valuation of tangible property amounting to $1S9,540; that its intangible property was valued at $268,515,- and rolling stock of the value of $57,335, making a total of $515,390.

The court filed no findings of fact and conclusions of law, but, according to this evidence showing 31.59 miles of road in the county, a full valuation of appellant’s property 'for 1913 would have been $635,677.05. We are inclined to the view that this contention merits consideration. It is true appellant’s property, as listed, is not affected by unfavorable crop conditions in the same proportion as would be the real estate and personal property belonging to the individuals of the county.

We have carefully reviewed all the evidence, and while the rendition is not exactly as we would have made it, appellant has not presented such a case as would warrant this court in reversing the judgment.

It is contended under the sixth assignment that the board of equalization acted upon false, illegal, and unauthorized circumstances, in deciding that lands, cattle, horses, and other property had no cash market value on January 1, 1913, and in holding that such properties should be valued upon their revenue producing qualities. As heretofore stated, the county judge and commissioners decided that there was no cash market value for such property on that date, and that its real value must be the basis of the assessment. We think the court did not err in arriving at what was a fair cash value for the property in taking into consideration the rental value of the land and the revenue producing qualities of all property. Lufkin Land & Lbr. Co. v. Noble, 127 S. W. 1093.

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


author: FLY, O. J.

text:
    FRIEDMAN v. HUNTSVILLE COTTON OIL CO. et al.
    (No. 5497.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 2, 1915.)
    1. Appeal and Error <§=733 — Questions Reviewable — Assignments op Error — Suf-FI CIENO Y.
    Assignments of error that a judgment is contrary to the law and the evidence, is unsupported by the evidence, and is unsupported by a preponderance of the evidence, are too general to be considered.
    [Ed, Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3025-3027; Dec. Dig. &wkey;> 733.]
    2.Appeal and Eeeoe <§=>724 — Questions Reviewable — Assignments op Eeeoe — Suf-piciency.
    An assignment of error not followed by a statement, but by, “See plaintiff’s petition,” “See bond,” and, “See contract,” with references to pages of the transcript, will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022; Dec. Dig. <&wkey;724.]
    3. Appeal and Eeeoe <&wkey;724r — Questions Reviewable — Assignments of Eeeoe — Peop-ositions.
    An assignment of error, which is vague and indefinite and not followed by a proposition, but submitted as a proposition without disclosing the proposition of law involved, will not be considered.
    [Ed. Note.- — For other eases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022; Dee. Dig. &wkey;724.]
    4. Appeal and Eeeoe <&wkey;742 — Assignments of Eeeoe — Findings of Fact.
    An assignment of error complaining of a finding of fact supported by testimony will be overruled in the absence of any attempt in any statement to show wherein the finding is incorrect.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. <§=>742.]
    5. Appeal and Eeeoe <&wkey;719 — Questions Reviewable — Assignments of Eeeoe.
    The court, on appeal in an action on a bond, cannot, in the absence of a proper assignment raising the question, decide that the act of the obligee in settling with the principal debtor by accepting a note released the surety from liability.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. <§=^719.]
    Appeal from Walker County Court; W. A. Leigh, Judge.

      Action by the Huntsville Cotton Oil Company against I. Friedman and another. From a judgment for plaintiff, defendant named appeals.
    Affirmed.
    Ri. E. Minton, of Groveton, for appellant. Dean, Humphrey & Powell, of Huntsville, for appellee.
   FLY, O. J.

This is a suit instituted by the Huntsville Cotton Oil Company against appellant and S. L. Platt to recover on a bond given by them to insure the faithful performance of his duties as a cotton seed buyer for the Cotton Seed Oil Company. A breach of the bond by Platt was alleged, in that he had fraudulently converted to his own use the sum of $418.41 out of money furnished him by appellee, with which to buy cotton seed for appellee. The court rendered judgment for appellee against Platt and Friedman for $370.18.

The first, second, and third assignments of error are too general to be considered. The first is, “The judgment of the court is contrary to the law and the evidence.” The second is, “The judgment of the court is unsupported by the evidence.” And the third is, “The judgment of the court is unsupported by a preponderance of the evidence.”

The fourth assignment of error is not followed by the statement required by the rules. “See plaintiff’s petition,” “See bond,” and “See contract,” with references to pages of the transcript, is not a compliance with the rules.

The fifth assignment of error is without merit. The special exception was properly overruled. The petition sufficiently set forth the terms of the contract.

The sixth assignment is vague and indefinite and is not followed by a proposition. It is submitted as a proposition, but what proposition of law is involved therein does not appear.

The seventh assignment of error is overruled. There was testimony to support the finding of fact complained of. No attempt is made in any statement to show wherein the finding was incorrect.

The eighth and ninth assignments of error complain of certain findings of fact of the trial judge; but, if they be sustained, the validity of the judgment is not affected thereby.

There is no assignment which attacks the judgment on the ground that the uncontroverted evidence showed that appellant was a surety on the bond and that appellee settled with Platt by accepting his promissory notes for the money he had converted, and this court cannot decide that such action upon the part of appellee released appellant from all obligation on the bond, in the absence of a proper assignment raising that question. That is the only point in this case.

There is no merit in any of the assignments of error, and the judgment is affirmed.
      <§=For other cases see same topic arid KEY-N UMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    SHAW et al. v. THOMPSON BROS. LUMBER CO.
    (No. 5495.)

    (Court of Civil Appeals of Texas. San Antonio.
    June 2, 1915.)
    1. Pleading &wkey;>412 — Verification—'Waiver.
    Though defendants’ pleas of limitations were not denied under oath, yet, where the case was tried on the theory that the issues of limitations were made by the pleadings, and evidence was introduced without objection, defendants, who did not ask for judgment on the pleadings, must be held to have waived the error, and cannot on appeal contend that judgment should have been rendered for them on the theory that their pleas were confessed.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1387-1394; Dec. Dig. &wkey;412J
    2. Advbkse Possession <&wkey;85 — Running oe Statute — Evidence.
    Evidence held insufficient to establish defendant’s title by limitations not showing that the defendant in possession notified plaintiff of his attornment to the other defendants.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 313, 498-503, 656, C57, G60, 668, 688-690; Dec. Dig. &wkey;85.1
    3. Appeal and Eriror &wkey;>738 — Assignments oe Error — Sufficiency.
    An assignment complaining of two distinct rulings, one relating to the admission and the other the sufficiency of evidence, is too general, and will not be considered, particularly where it does not contain the evidence complained of.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3033; Dec. Dig. &wkey;738.]
    4. Trial <&wkey;392 — Findings—Requests.
    Where defendants are dissatisfied with the court’s general conclusion, they should ask for findings upon specific points.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 916-919; Dec. Dig. &wkey;392.]
    5. Judgment <&wkey;684 — Res Judicata — Persons Concluded.
    Where defendant in a previous suit in which plaintiff recovered the land disclaimed any interest, although he remained in possession, his secret attornment to his codefendant during the pendency of that suit would not be the basis of any title by limitations which he himself could not assert under Rev. St. 1911, art. 7758, providing that the judgment in the action shall be conclusive as against any title procured pending the action.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1207; Dec. Dig. &wkey;684.]
    6. Adverse Possession &wkey;>97 — Color oe Title-Deeds.
    Where a landholder parted with the title acquired by a deed to him, such deed cannot be made the basis for a claim by his heirs of title by limitation under the five-year statute.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 537-541; Dee. Dig. 97.]
    Appeal from District Court, Walker County; S. W. Dean, Judge.
    Action by the Thompson Bros. Lumber Company against B. S. Shaw and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Adams & Young, of Crockett, for appellants. Hill & Elkins, of Huntsville, and Townes & Vinson, of Houston, for appellee.

       writ of error pending in Supreme Court.

   MOURSUND, J.

This is an action of trespass to try title, instituted on April 24, 1914, by appellee against B. S. Shaw, Mrs. Ella Murchison, Mary B. Murchison, Ella High-tower, and husband, Cullis Hightower, seeking to recover 87 acres of land in Walker county. Defendants answered by general denial, plea of not guilty, and also pleaded the five and ten year statutes of limitation. Judgment was rendered in favor of plaintiff, and at defendants’ request findings of fact and conclusions of law were duly filed. The findings of fact are long, and only such portions thereof as are deemed material will be stated by us.

The record title to the land is in plaintiff, and it is entitled to recover unless defeated by limitation. In the year 1900 B. S. Shaw took possession of the land, inclosed it, and used it exclusively for the purpose of pasturage. He did this of his own volition, and not as a tenant of his codefendants, who are the heirs of W. J. Murchison.

On August 26, 1903, Wade Allen and others instituted a suit in the United States Circuit Court for the Southern District of Texas, at Houston, against Charles R. Parmalee et al., to recover the Jose Ortega upper two-league grant in Walker county, of which land ,th§ 87 acres in controversy in this suit is a part, and B. S. Shaw, defendant herein, was also a party defendant in said suit. W. J. Murchison was dead at the time said suit was instituted. His heirs were never made parties to such suit. On October 24, 1913, Shaw disclaimed in said suit as to all land except a tract the title to which is not involved in this case. In February or March, 1904, Shaw, being still in possession of the land in controversy in this suit, was called on by Col. Adams, counsel for the Murchison heirs, and told that, unless he surrendered his possession and agreed to hold possession of said land for the Murchisons, immediate steps would be taken to oust him from such possession. Shaw agreed that he would hold possession of the land as a tenant of the Mur-chisons. He remained on the land and continued to hold possession just as he had prior to this conversation. He did not move off of the land and then move back, or change his previous occupancy in any manner. This agreement between counsel for the Murchison heirs and the defendant Shaw was made during the pendency of the case of Wade Allen et al. v. Chas. R. Parmalee et al., 142 Fed. 354, 73 C. C. A. 402, in the United States Circuit Court at Houston, and without any notice to any of the parties to said cause. Shaw, since February or March, 1904, has held continuous, actual possession of said land, having the same under fence and using and enjoying it as a tenant of the Murchi-sons.

Some three, or four, or five, or may be eight, years ago, Ben Gibson approached B. S. Shaw in regard to his possession of the land in controversy, and was informed by said Shaw that he was holding same for Col. Earle Adams. Adams was, at the time, and had been for years, claiming the same for the defendants the Murchison heirs, and was acting for them in his transactions with the said Shaw.

On April 14,1909, a judgment was rendered by agreement in said case of Wade Allen et al. v. Charles R. Parmalee et al. By said judgment the J. M. Thompson Lumber Company, the immediate grantor of the plaintiff in this suit, recovered from all of the parties, plaintiff and defendants and interveners, including the defendant in this case B. S. Shaw, the Jose Ortega upper two-league grant which, as stated, embraces the land in controversy. B. S. Shaw has paid taxes on the land in controversy for each year since 1904.

In April, 1869, R. W. B. Martin conveyed to Thomas S. Robinett and Emma K. Robin-ett 320 acres of land, of which the land in controversy is a part. The defendants introduced in evidence the judgment in the suit of Murchison v. Emma Robinett and the order of sale showing that the land was regularly advertised and sold by deed dated June 6, 1876, and that on June 6, 1876, J. J. Elkins, sheriff of Walker county, sold to W. J. Murchison an undivided one-fourth interest in the 320 acres of land as described in the deed from R. W. B. Martin to Thomas S. Robinett and Emma K. Robinett, which said 320 acres is set out by field notes. W. J. Murchison placed this deed on record some time in 1876, and it has been continuously of record since that date. In the year 1888 or the year 1889 W. J. Murchison sold and conveyed the 87 acres of land in controversy to a man by the name of Arrington. The records show that Murchison did not pay any taxes upon said land since the year 1884, and the testimony shows that Murchison died some time in the 90’s.

The first assignment of error reads as follows:

‘•The court erred in not rendering judgment for defendants on their pleas of limitation, because limitation was found as a fact by the court, and plaintiffs filed no pleading showing why limitation was not an absolute bar to their action, and, in the absence of such pleading by plaintiffs, defendants’ pleas should have been taken as true, and judgment rendered thereon.”

The only proposition under this assignment is to the effect that the pleas of limitation under the five and ten years statutes, not having been denied under oath, should be taken as confessed. The case was tried upon the theory that the issues were properly made by the pleadings. Evidence was introduced without objection, and it does not appear that defendants asked for judgment upon the pleadings. Under these circumstances, the failure to deny the pleas may be treated as waived by defendants. Railway v. Pennington, 166 S. W. 464; Railway v. Tomlinson, 169 S. W. 217; Hill County Cotton Oil Co. v. Gathings, 173 S. W. 598. However, we do not think the act of March 3, 1913, applies to pleadings in trespass to try title cases, which are governed by the statutes specially relating thereto.

There is no second assignment of error.

The third assignment reads as follows:

“The court erred in his finding that Gibson was not an agent for plaintiffs when he asked Shaw, eight years before this suit, to give a tenancy contract, because the evidence taken as a whole, clearly shows Gibson was an agent of plaintiffs, and notice to him was notice to plaintiffs, and the court erred in his finding of fact that plaintiffs had no notice of defendants’ claim and possession.”

The record does not contain any finding to the effect that Gibson was not an agent for plaintiffs when he asked Shaw to give a tenancy contract, nor does it appear that he was requested to make a finding on this point. It is impossible to tell from the assignment just what finding is sought to be complained óf. The court made a finding that none of the parties to the case of Allen v. Parmalee had notice of the agreement of Shaw to at-torn to the Murchison heirs. In the last portion of the assignment it seems that finding is sought to be attacked. Appellants contend that such notice was given in a conversation by Shaw to Gibson. Aside from the inconclusiveness and vagueness of the testimony relied upon to show agency and notice of at-tornment, Shaw’s testimony was to the effect' that the conversation occurred three, four, or five years, or maybe eight years, prior to the trial. This testimony was so uncertain that the court could not fix afiy definite time, and did not, but followed the language of the witness. It is too plain for argument that defendants failed to show notice for any period which would be sufficient to make good either of their pleas of limitation. The assignment is overruled.

The fourth assignment reads as follows:

“The court erred in his twelfth finding of fact that in 1888 or 1889 W. J. Murchison sold this land, because no deed from Murchison to any one was produced, nor accounted for, and oral testimony to establish same was not admissible, and, even if it had been the oral testimony adduced was not sufficient to establish any such sale.”

This assignment is also too general. It complains of two distinct rulings — one relating to the admissibility of evidence; the other to its sufficiency to support a certain finding. The only proposition is:

“No oral evidence of deed can be received until loss of deed is shown.”

It does not appear that any objection was made to the admission of the testimony now sought to be objected to. The statement does not contain the testimony referred to in the assignment of error, but is merely an argument. The assignment is overruled.

The fifth assignment is as follows:

“The court erred in holding that limitation did not run from the date of the federal court judgment, but only began to run 20 days after such date, and erred in holding that the Murchison heirs were affected by such judgment, after finding that they were not parties to the suit, and had no notice of such suit, which the court must have held before he could give judgment for plaintiff.”

The court did not make any conclusion of law to the effect that limitation did not run from the date of the federal court judgment. His conclusion of law was that defendants did not establish their pleas of limitation. If defendants were dissatisfied with that general conclusion, they should have asked for conclusions upon specific points. The only question which could have been raised by appellants was whether or not the court erred in holding that they had not acquired title by limitation. That is really the question we are asked to decide, and without any assignment of error raising it. While we overrule the assignment, now under consideration, and there is no assignment which attacks the judgment of the court as erroneous on the ground that a limitation title was established by defendants, and there is none which attacks the conclusion of law to the effect that no limitation title has been proven by them, we will say that said conclusion of law is correct. The secret trade between Shaw and Colonel Adams, whereby Shaw agreed, after the suit in the federal court against him was pending, to attorn to the Murchison heirs, cannot be the basis of any limitation title which Shaw himself could not assert. The judgment against him was rendered five years and ten days prior to the filing of this suit. It is therefore clear that the ten-year statute does not apply. Article 7758, Revised Statutes 1911; Stout v. Taul, 71 Tex. 439, 9 S. W. 329.

It is equally clear that the five-year statute cannot be taken advantage of by appellants. W. J. Murchison sold and conveyed the land in controversy, and, having parted with the title acquired by means of the deed to him, such deed could not be the basis for a claim by his heirs of title by limitation under the five-year statute. Voight v. Mackle, 71 Tex. 78, 8 S. W. 623; Harris v. Hardeman, 27 Tex. 247; Daugherty v. Tates, 13 Tex. Civ. App. 650, 35 S. W. 937; Doom v. Taylor, 35 Tex. Civ. App. 253, 79 S. W. 1086. The question whether possession by Shaw, as tenant of the Murchison heirs, should be estimated as beginning on the date of the judgment against him in the case of Allen v. Parmalee or from such time as a writ of possession could be issued upon such judgment, need not be decided.

The judgment is affirmed.
      cgrxoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, C. J.

text:
    PECOS & N. T. RY. CO. v. ROSENBLOOM et al.
    (No. 2364.)
    (Supreme Court of Texas.
    June 26, 1915.)
    Commerce cg^27— Interstate Commerce — “Engaged in Interstate Commerce.”
    A railroad yard clerk required to check up cars in trains and take their numbers to make a proper report thereof is not, while walking through the yard, engaged in interstate commerce within the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8605J), in the absence of anything to show his connection with an interstate freight train in the yard or anything to show his purpose in ' walking-through the yard, or character of work done by him.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. <S=27.
    For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]
    On motion for rehearing.
    Overruled.
    For former opinion, see 173 S. W. 215.
   PHILLIPS, C. J.

The opinion delivered in the case by the late Chief Justice Brown on the original hearing, in its statement of the ease, is corrected in the following particulars so as to conform to the findings of fact made by the honorable Court of Civil Appeals: At the time of Rosenbloom’s death a freight train of the plaintiff in error was leaving its yards in Amarillo upon track No. 4, moving out slowly upon the track. Just before his death Rosenbloom was walking between track No. 4 and track No. 5, immediately adjacent, in the same direction the train was moving. The Court of Civil Appeals has found that the testimony did not disclose foi* what purpose Rosenbloom was walking between the tracks by the side of the moving train, or what he had been doing, if anything, just .before the accident. This freight train was composed of cars which had come in from New Mexico over the linó of the railway company and were destined for points without the state of Texas, except one car destined for a point within the state of Texas. The original opinion was possibly further inaccurate in stating that the space between the tracks was so narrow that one standing between them with cars upon one of the tracks was in danger of being knocked down by passing oars upon the other.

It is urged by the railway company that Rosenbloom, as its employé, was engaged in interstate commerce at the time of his injury, subjecting the asserted cause of action to the government of the federal Employers’ Liability Act. This contention is based upon the fact that the freight train by the side of which Rosenbloom was walking just before the accident carried interstate freight, and that Rosenbloom was a yard clerk whose duties included the examination of such a train and the making of a record of the numbers and initials on the cars, and the inspection and making of a record of the seals on the car doors, etc. From this it is insisted that, while he was engaged in that character of work, and until he had returned to the office of the company from such work, with respect to the train in question, he was employed in interstate commerce. The cases of St. L., S. F. & T. Ry. v. Seale, 229 U. S. 156, 33 Sup. Ct 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156, and N. C. R. Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159, are cited upon the question. In our opinion, the evidence did not raise the issue. Neither of the cases cited can be held to reach this case. In the first Seale, whose duties were similar to those of Rosenbloom, was proceeding at the time of his injury through the yard of the railway company to one of its tracks to meet an incoming train engaged in the movement of interstate freight, for the purpose of obtaining the numbers of the cars and otherwise performing his duties in respect to them, and he was held to have been engaged directly in a duty connected with the movement of interstate freight. In the other case it was held that an employe’s act in preparing an engine for a trip to move freight in interstate commerce was the act of one engaged in interstate commerce, and that he was still on duty and employed in such commerce in temporarily leaving his engine and going to his boarding house preparatory to departing upon his run with the engine. It was not shown here that Rosenbloom had been engaged in any service connected with the interstate freight train, and in the state of the evidence his walking through the yard cannot be said to have had any association with a duty in respect to it. The finding of the Court of Civil Appeals is definite to the effect that the evidence did not disclose for what purpose he was walking through the yard, or what character of work he had been engaged in just before his injury. The distinction, therefore, between the present case and those cited, is obvious.

The motion for rehearing is accordingly overruled.


text:
    BARFIELD et al. v. EMERY et al.
    (No. 8248.)
    (Supreme Court of Texas.
    June 26, 1915.)
    Appeal and Error <§=^1071 — Conclusions op Trial Judge — Failure to File.
    Failure of the trial judge to file his conclusions in the statutory time does not warrant a reversal, it not preventing a proper presentation of the questions involved on the appeal, or operating to appellants’ prejudice in the appellate court.
    TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4234 — 4230; Dec. Dig. 1071.]
    Action by F. H. Barfield and others against S. E. Emery and another. Judgment for plaintiffs was reversed by the Court of Civil Appeals (156 S. W. 311), and defendants petition for writ of error.
    Reversed and remanded to Court of Civil Appeals.

      J. M. Wagstaff, of Abilene, for plaintiffs in error. Ben L. Cox and Eugene De Bog-ory, both of Abilene, for defendants in error.
   PHILLIPS, C. J.

An answer having been filed by the defendants to the petition for writ of error, we are enabled to decide the case. It is one in which the Honorable Court of Civil Appeals for the Second District has reversed the judgment of the trial court there rendered in favor of the plaintiff in error because of the failure of the trial court to file his findings of fact and conclusions of law upon the motion of the defendants in error within 10 days after the adjournment of the term. A bill of exception contains an explanation of the trial judge of his omission to file his conclusions within the statutory period, due, as stated by him, to the fact that his home was under quarantine during the period necessary for their preparation; this explanation, however, being controverted by opposing affidavits. Although the conclusions of the trial judge were not duly filed, it appears that a statement of facts was duly prepared and filed and accompanied the record on the appeal.

We agree with the view expressed in the dissenting opinion of Chief Justice Conner that It does not appear that the omission of the trial judge to duly file his conclusions prevented a proper presentation of the questions involved in the appeal, or that it could have operated to the prejudice of .the appellants in that court. We are of opinion therefore that it did not in itself warrant a reversal of the judgment.

Since it appears that the judgment was reversed upon this ground, in reversing the judgment of the Court of Civil Appeals, the case is remanded to that court for further consideration. A more extended opinion will be later filed.
      (g^jPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    O’NEAL et al. v. BUSH & TILLAR.
    (No. 3403.)
    (Supreme Court of Texas.
    June 26, 1915.)
    On motion for rehearing.
    Granted, and original judgment set aside, and case continued for determination.
    Eor farmer opinion, see 173 S. W. 869.
   PHILLIPS, C. J.

AYe are not satisfied with the decision of this case as made on the original hearing. The motion of the defendants in error for a rehearing is granted, and our original judgment set aside; the ease being continued for determination at the next term.

It should be said that the inaccurate statement in his opinion as to the disposition made of the case by the Court of Civil Appeals was intended to be corrected by Judge Brown before it was filed, and this was not done only through oversight. While the statement was erroneous, it was not one of vital importance.


author: PHILLIPS, C. J. HAWKINS, J.

text:
    Ex parte MITCHELL.
    (No. 2633.)
    (Supreme Court of Texas.
    June 23, 1915.
    Motion for Rehearing Overruled June 26, 1915.)
    1. Constitutional Law <@=>65 — Distribution os' Powers — Delegation os Legislative Eunctions — Prohibition os Pool Ro oms — Statutes .
    Acts 33d Log. c. 74 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6319a-6319n), providing that the qualified voters of any county or political subdivision thereof may determine by an election to be held for that purpose on petition of 10 per cent, of such voters of a county, or of 20 per cent, of such voters of a political subdivision thereof, whether or not pool rooms or pool halls shall be prohibited in such county or subdivision, is unconstitutional as amounting to a delegation by the Legislature of its own proper power, imposed upon it by the Constitution, which it alone may exercise, and which it may not commit to any other agency.
    [Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. § 116; Dee. Dig. <@=> 65.]
    2. Statutes <@=>75 — Suspension—Constitutionality.
    Acts 33d Leg. c. 74 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6319a-6319n), providing that the qualified voters of any county or political subdivision thereof may determine by an election to be held for that purpose, on petition of 10 per cent, of such voters of a county, or of 20 per cent, of such voters of a political subdivision thereof, whether or not pool rooms or pool halls shall be prohibited in such county or subdivision, is violative of Const, art. 1, § 28, providing that no power to suspend laws in this state shall be exercised except by the Legislature, since it authorizes the suspension by the voters of a county or subdivision of the general statute licensing the operation of pool halls within the state.
    [Ed. Note. — Eor other cases, see Statutes, Cent. Dig. § 77; Dec. Dig. <@=>75.]
    Hawkins, J., dissenting.
    Habeas corpus on the relation of A. H. Mitchell against the sheriff of McLennan County.
    Relator discharged.
    Williams & Williams, of Waco, for relator.
   PHILLIPS, C. J.

The case presents the

question of the constitutionality of the referendum act of the Thirty-Third Legislature, authorizing the qualified voters of any county, or certain political subdivisions of a county, to determine by an election whether pool rooms or pool halls should be prohibited therein, and making it an offense to there operate or maintain them if the result of the election be in favor of their prohibition.

The constitutionality of the act is assailed upon two grounds: (1) That it amounts to a delegation by the Legislature of its own legislative power, imposed upon it by the Constitution, which it, alone, must exercise, and which it may not commit to any other agency; (2) that it authorizes the suspension of a general law of the state-by the voters of a county, or subdivision of a county, namely, the statute licensing the operation of pool halls generally within the state, in violation of article 1, § 28, of the Constitution, which is, “No power of suspending laws in this state shall be exercised, except by the Legislature,” an amendment of previous Constitutions which permitted such suspension under “the authority” of the Legislature.

The act is plainly unconstitutional, in our opinion, for both of these reasons. We largely rest our decision as to the first question upon State v. Swisher, 17 Tex. 441, where an act of the Legislature, in no way dissimilar in its effect from this one, was, upon this ground, held unconstitutional by the first Supreme Court of the state. That decision has never been overturned, and is the law upon the question. The second question is equally well settled, according to our view, by Brown Cracker & Candy Co. v. City of Dallas, 104 Tex. 290, 137 S. W. 342, Ann. Cas. 1914B, 504.

A full opinion in the case will be later filed, the preparation of which has been prevented by the approaching close of the term. This, however, indicates the ground of the decision.

The relator is discharged from custody.

HAWKINS, J.

(dissenting). State v. Swisher, 17 Tex. 441, was decided after the statute there in question had been repealed. The judgment therein merely dismissed the appeal because the record was defective. This court therein declared that it had not exhaustively investigated the question as to the constitutionality of that statute, and contented itself with the assertion of a proposition of law which nobody, anywhere, denies • — that the Legislature cannot delegate its legislative powers.

The question in the case at bar is, Has the Legislature done that in this pool-hall statute? In my opinion the decision of the majority herein is contrary to the settled decisions of this court and of the Court of Criminal Appeals, and to the clear and great weight of authority, decisions and text-books, throughout the United States. San Antonio v. Jones, 28 Tex. 32, decided prior to the adoption of- our present Constitution; Werner v. Galveston, 72 Tex. 27, 7 S. W. 727, 12 S. W. 159; Johnson v. Martin, 75 Tex. 38, 12 S. W. 321; Stanfield v. State, 83 Tex. 321, 18 S. W. 578; Ex parte Francis, 72 Tex. Cr. R. 304, 165 S. W. 147, and authorities therein cited.

I think the statute here in question should be held valid.

When opportunity offers I will state my views more fully.
      <@5=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HOUSTON & T. C. RY. CO. v. WALKER et al.
    (No. 3402.)
    (Supreme Court of Texas.
    June 23, 1915.)
    Appeal and Eebob <§=1092 — Review—Taxation of Costs on Appeal — Discbetion of Couet.
    Taxation of costs of an appeal to the Court of Civil Appeals is within the discretion of the court, and the Supreme Court will not reverse it where not inequitable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4312-4321; Dec. Dig. <§=> 1092; Costs, Cent. Dig. §§ 327, 820, 821.]
    Motion to retax costs.
    Granted, and order for direction of costs revised.
    For former opinion, see 173 S. W. 208.
   PHILLIPS, C. J.

When our order was made directing that the costs of the appeal in the Court of Civil Appeals be taxed against the plaintiff in error, we did not note that upon a motion that court had directed that the costs of such appeal be taxed against the defendants - in error. That was a matter within the discretion of that court, and, since its order was not inequitable, we do not believe we should reverse it. It doubtless proceeded from the fact that the appellees, the defendants in error here, remitted in that court a portion of the judgment which amounted to the appeal prevailing in a substantial part. The plaintiff in error, under our disposition of the case, likewise prevailed here on a substantial question as against two of the defendants in error, Camille Walker and Fount Walker.

Our order is therefore revised so as to direct that the costs in the Court of Civil Appeals be taxed against all of the defendants in error, and that the costs in this court be taxed against Camille Walker and Fount Walker.


text:
    BOGUE v. TEXAS TRACTION CO.
    (No. 3398.)
    (Supreme Court of Texas.
    June 26, 1915.)
    1. Masteb and Seevant @=3-243 — Violation of Rule by Servant — Contbibutoey Negligence.
    The violation of a rule of the employer by a servant under ceilain circumstances may amount to contributory negligence as a matter of law as fully as any other conduct.
    [Ed. Note.- — For other cases, see Master and Servant, Cent. Dig. §§ 682, 759-775; Dec. Dig. <§=5243.]
    2. Master and Servant <§=>243 — Violation of Rule by Servant — Conteibutoby Negligence.
    Where plaintiff motorman, driving defendant street railway’s car, knew that there was a car ahead of him, and, in approaching a cross-street, violated the rule of the company requiring that he stop until the car ahead, which reached it first, had passed over, before himself attempting to pass, and also the rule that in passing a car at a standstill on an opposite track the speed of his own car should in no event exceed three miles an hour, and his car be under absolute control to make possible an instant stop, plaintiff, on the contrary, keeping on across the cross-street without stopping at a speed of six or seven miles an hour at least, striking the rear of the car ahead of him because the headlight of the car at a standstill on the opposite track blinded him, he could not recover for his injuries received in the collision; for under the circumstances his violation of the rules of his employment amounted to contributory negligence.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 682, 759-775; Dec. Dig. <®==>243.]
    On motion for rehearing.
    Motion overruled.
    Eor former opinion, see 173 S. W. 875.
   PHILLIPS, C. J.

It was not the purpose of the court to announce, in the opinion rendered by the late Chief Justice Brown on the original hearing of the case, that the violation by an employe of a rule of the master for the government of the particular employment amounts, in itself, to negligence per se, as the counsel for the defendant in error seem to have understood; nor was it so stated in his opinion. It was only intended to declare — and reading the statement of Judge Brown on the question in association with the rest of his opinion it is so revealed —that under the state of the evidence and the circumstances shown by it the violation by Bogue of the rules referred to amounted to contributory negligence on his part as a matter of law, as held by the Honorable Court of Civil Appeals in its disposition of the case. We adhere to that view. It is needless to say that a violation of such a rule under certain circumstances may amount to negligence as a matter of law, as fully so as any other conduct; and that this court has the authority to so hold without in any wise invading the province of the jury. It simply proceeds from the duty as well as the authority of the court to declare the law under a given state of facts.

Bogue knew that the interurban car, into which he ran the car he was operating as a motorman, was proceeding just ahead of him on the same track in the same direction with his car, without, according to his testimony, any light on its rear end, because he saw it plainly. It was brilliantly lighted with electric lights on the inside. The collision occurred at the intersection of .Swiss avenue with Peak street, along which the two cars were moving. An outgoing or north-bound interurban car had approached Swiss avenue from the south on a parallel track, and had stopped on its south side, with its headlight brilliantly burning. Bogue knew this when he approached Swiss avenue from the north. Under rules of his own company which were binding upon him, it was required that under such conditions he stop his car on the north side of the avenue so as to permit the outgoing interurban car, which had first reached it, and therefore had the right of way to cross it, to pass over it before attempting to cross the avenue with his car; and that in passing a car at a standstill on an 'opposite track the speed should in no event exceed three miles an hour, and the car be under absolute control so as to make possible an instant stop. Bogue did not stop his car on' the north side of Swiss avenue so as to permit the outgoing interurban car to cross over. Neither was the speed of his car reduced to three miles an hour as it approached and entered upon Swiss avenue, nor was it under absolute control. ■ Instead, he kept right on across Swiss avenue without stopping, and, according to his own testimony, entered Swiss avenue at a speed of six or seven miles an hour — at one place in his testimony it is stated as ten or twelve miles an hour — and crashed into the rear of the interurban car ahead of him, which had stopped on the south side of the avenue, and which he must have known was just in front of him. He says he did not see the car just in front of him, at the immediate time, because the brilliance of the headlight of the outgoing interurban car, then standing on the south side of Swiss avenue, blinded him. He knew, however, that that light was shining in his face,- and, if it did blind him, that it interfered with his vision; and, with his knowledge that the other car was in front of him, that condition made it all the more necessary, as an act of ordinary caution, that he observe for his own safety both the rule requiring him to stop his car on the north side of Swiss avenue, and to reduce its speed so as to put it under absolute control, in any event.

It is the practice of this court to defer to the finding of a jury where the facts are in issue. But if, under the circumstances shown in this case, it may be held that Bogue, in disregard of rules framed for his own protection under such a condition as was presented at the time of this collision, could plunge ahead with Ms car and take the risk of its smashing into the rear of a car which he knew was just ahead of him, and then be relieved of the consequence of his act, it might as well as announced in the same connection that in this jurisdiction the law of contributory negligence no longer has any force.

The motion for rehearing has been carefully considered, and is overruled.
      (gr^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes