author: RASBURY, J.

text:
    REAGEN v. NATIONAL EQUITABLE SOC. OF BELTON.
    (No. 7827.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 2, 1918.
    Rehearing Denied March 30, 1918.)
    1. Building and Loan Associations &wkey;>26 — Unauthorized Representations of Ageno> — Liability of Principal.
    Where plaintiff, when he signed written application for a loan contract in defendant a co-operative loan contract society, and paid installments, knew that false representations of defendant’s agents were unauthorized, he could not recover the installments on the ground that they were obtained by such representations, defendant not having led plaintiff to believe that representations were authorized or later ratified them.
    2. Building and Loan Associations <&wkey;26 —Unauthorized Acts op Agent — Ratification.
    That defendant loan contract society retained installments paid by plaintiff upon conditions and terms of application for loan contract and the contract itself would not amount to a ratification of unauthorized false representations of its agent made in procuring the application.
    Appeal from Navarro County Court; R. R. Owen, Judge.
    Suit in justice court by C. W. Reagen against the National Equitable Society of Belton. Judgment for plaintiff was reversed by the county court on appeal, and plain- ■ tiff appeals.
    Affirmed.
    W. W. Ballew, of Corsicana, for appellant. A. E. Firmin, of Dallas, for appellee.
   RASBURY, J.

Appellant sued appellee to recover $165 alleged to have been obtained upon certain false and fraudulent representations. Appellant secured judgment as prayed in justice court. In county court, whence appeal was taken, judgment was for appel-lee. From that judgment this appeal is prosecuted.

No issue arises upon the pleading, and a statement of same is therefore unnecessary. It is also undisputed that appellee is a cooperative savings and contract loan institution incorporated under the laws of Texas, and received the money sued for. The conditions under which it received the money is, however, in dispute. The facts proven by appellant in support of the issues raised by him are, in substance, that appellant, who desired to borrow $1,500 on lands he owned, was approached by agents of appellee, who said they wanted to make loans in Navarro county, and represented to him that appellee would loan upon lands 85 per cent, of their value at 5 per cent, per annum interest, and complete such loans in from 30 to 40 days, the amount borrowed to be repaid in monthly installments of $15. Appellant advised such agents that if he could borrow $1,500 upon his property at once,' he would “give them the business,” to which the agents replied that all that was necessary was for appellant to sign an application for membership in appellee society, pay a fee of $15, and advance in cash 10 monthly payments, or $150, and furnish an abstract of the title to his land. Acting and relying upon such representations, appellant signed a written application for the loan, paid the agents the membership fee of $15, forwarded his abstract of title, and mailed his check for $150 to appellee, who accepted both. Appellee never did make the loan, though repeatedly requested to do so by appellant over a period of several months. Finally, when ap-pellee notified appellant that due to its inability to secure money it was uncertain when if could make his loan, appellant demanded a return of his money and his abstract of title. The abstract was returned, but not his money.

The facts relied upon by appellee in defense were, in substance, an application for membership in appellee society signed by appellant, which recites that appellant thereby applies for one of the society’s $1,-500 contracts in accordance with the society’s plans, and had paid to the agent $15 thereon, and would thereafter pay monthly a similar amount as dues on said contract until it was surrendered for paid-up certificate of deposit, or cash surrender value, or until á loan was granted in accordance with the contract. In the application it was also recited that the agents were only authorized to sell contracts, and that appellant had examined and read a copy of such contract, and made the application expressly and solely thereon, and not upon the faith of any statement, promise, or undertaking or guaranty made by the agents, and that such agents were not authorized to collect more than $1 on each $100 of the face value of such contract. Upon receipt of application for membership, appellee forwarded appellant the contract described in the application, which was what is known as an investment contract of the kind issued by the institution already referred to. It has numerous provisions, among them being those which, in substances, provide that the society will deposit 85 per cent, of the money paid upon such contracts to the credit of its loan reserve fund, from which fund, whenever the accumulation is sufficient, the society agrees to loan its contract holders the face value of such contracts, secured by 85 per cent of the value of the acceptable real estate at 5 per cent, per annum, whenever 10 monthly payments have been made upon the contract, either in advance or in the order of their maturity, such loans to be made with reference to priority of applications of its members. At the time appellant signed and forwarded his application he had before him a copy of the contract for which he was subscribing. After his subscription he signed the form of acceptance of said' contract printed thereon which recited that he accepted same with full understanding of the terms and conditions of the contract, which he read at the time he signed same. At trial he admitted the signatures,. and knowledge of both contracts, but says that appellee’s agents represented that such course was necessary in order to secure the loan, and that he relied upon the agents in that respect. Appellee did not authorize any representations by the agents other than the agreements in the application and contract, and repudiated the promises of the agents when discovered. The application for loan took the course provided by the contract, and was never made, for the reason that the society’s funds or accumulations were insufficient.

Counsel for appellants contends, in substance, that the trial court erred in its judgment for the reason (1) that it aijpears without dispute in the testimony that appellant was induced by the false representations of appellee’s agents to pay the money sued for; and (2) that appellee, even though appellee’s agents exceed their authority, ratified the fraud of its agents by retaining appellant’s money after discovering the fraud.

We are of' opinion that the facts related show at most, unauthorized acts and representations of appellee’s agents, upon which appellant in good faith relied, but which appellant knew to be unauthorized, and which appellee, by no act or omission, led appellant to believe were authorized, and which appellee in no respect ratified. As a consequence, the case is, in our opinion, within the ruling in National Guar. L. & T. Co. v. Thomas, 28 Tex. Civ. App. 379, 67 S. W. 454. Appellant knew, notwithstanding the agents’ promises, that the application for purchase of the contract, and the contract itself, which he examined and was familiar with ' before purchasing it, contained no such agreement as he had with the agents; in fact, he states in his. testimony that he signed such papers because the agents said it was necessary in order to secure the loan, and on which representations he relied, notwithstanding he knew the agents were not authorized to make the promises.

The keeping of the money was not, as matter of law, a ratification of the unauthorized acts of the agents, since it was retained upon the conditions and terms of the application for contract and the contract itself, and not upon the unauthorized representations made by the agents, which were repudiated by appellee when made known. However, if it can be said that the testimony raises the issue that appellee induced appellant to rely upon the unauthorized acts of its agents or ratified same, the evidence in that respect raises no more than an issue of fact, which was for the determination of the jury, or the court in case jury was waived. In our opinion, we would be authorized, under no analysis of the evidence, in holding that the evidence without dispute showed a participation in, or a ratification of, the unauthorized acts of the agents so as to make the issue one of law arising upon undisputed facts. The judgment of the court warrants the assumption that no such representations were made, or, if made, that appellant did not rely thereon. The written evidence and the admissions of appellant will support such a finding. We therefore conclude that we are without authority to disturb the judgment, and it is accordingly affirmed.

Affirmed.
      <S=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    ESCUE v. HARTLEY.
    (No. 7852.)
    (Court of Civil Appeals of Texas. Dallas.
    March 30, 1918.)
    Courts &wkey;3l21(5) — Jurisdiction—Amount in Controversy — District Court. .
    As under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4977, providing that on all written contracts ascertaining the sum payable when no specified rate of interest is agreed upon, interest shall be allowed at the rate of 6 per cent, per annum from and after the time when the sum is due and payable, interest, although prayed for, was not recoverable in a suit for damages under contract providing that in event of refusal of either party to comply He would pay to the other $500 as _ liquidated damages, the district court had ho jurisdiction, the amount in controversy being exactly $500.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Suit between R. L. Escue and J. T. Hartley. From judgment rendered, the former appeals.
    Reversed and remanded, with instructions to dismiss.
    Clarke & Clarke, of Hillsboro, for appellant. Shurtleff: & Cummings, of Waco, for appellee.
   TALBOT, J.

At a former day of the present term; of this court we reversed and remanded this case for a new trial. The appel-lee has filed a motion for a rehearing and for the first time contends that the district court did not have jurisdiction to hear and determine the cause, for the reason that the amount in controversy is exactly $500. This contention is supported by the record and must be sustained. The opinion heretofore handed down will be withdrawn, and this opinion filed instead thereof.

It is well settled by the decisions of this state that the district court has not jurisdiction of suits in which the amount in controversy is exactly $500, exclusive of interest, except in eases where property has been seized by execution, attachment, or sequestration and a claimant’s oath and bond for the trial of the right of property have been filed and the property valued at exactly $500. The following are some of the cases construing the provisions of our Constitution relative to the jurisdiction of the district and county courts, and in which it has been held that where the amount involved is exactly $500 the district court has not jurisdiction: Railway Co. v. Rambolt, 67 Tex. 654, 4 S. W. 856; Garrison v. Pacific Express Co., 69 Tex. 345, 6 S. W. 842; Carroll v. Silk, 70 Tex. 23, 11 S. W. 116; Lazarus v. Swafford, 15 Tex. Civ. App. 367, 39 S. W. 389. The exception stated is established by the following cases: Erwin v. Blanks, 60 Tex. 583; Carney v. Marsalis & Co., 77 Tex. 62, 13 S. W. 636; Betterton & Co. v. Echols, 85 Tex. 212, 20 S. W. 63. In the former of the cases cited, the conflict in the provisions of our Constitution fixing the jurisdiction of the district and county courts is pointed out, and the reason for the general rule stated is given; and in the latter the reason for the exception is stated. It would serve no useful purpose to restate those reasons here, and we shall not do so. We shall take occasion, however, to state that in St. Louis Type & Foundry Co. v. Taylor, 6 Tex. Civ. App. 732, 26 S. W. 226, it was held that the county court and not the district court has jurisdiction to try the right of property in cases where the property involved was levied on by virtue of a distress warrant and valued at exactly $500. That case may also be consulted for the reason therein given for the decision made, and it need not be repeated in this opinion. The ruling made in the case is stated simply to show the further construction placed upon the provisions of our Constitution relating to the jurisdiction of the district and county courts of this state.

Are we correct in the statement made above that the record supports appellee’s contention that the amount in controversy in the present suit is exactly $500? We think so. As shown by the original opinion, the appellant sued appellee to recover $500 as liquidated damages for an alleged breach of a contract in writing whereby appellee agreed to convey to appellant upon the terms in said contract specified, a certain tract of land situated in Hill county, Tex.; that the contract recited that as an evidence of good faith for the faithful performance of the contract each party executed and delivered to Sidney Webster, subject to the final consummation of the sale, his check for $500, payable to the order of the other as liquidated damages in the event of a refusal on the part of either to comply with the contract.

The appellant alleged in his petition, in substance, that as a guaranty and security for the performance of the contract on the part of plaintiff and defendant each agreed to pay to the other respectively the sum of $500 as liquidated damages and to evidence the same by the execution by each of his check for $500, payable to- the order of the other. It was further so alleged that appellant had been able, ready and willing to perform everything required of him by the terms of the contract, and had offered to perforin them; that appellee had refused to perform the things required of him by the ■ contract, and had refused to pay the $500 agreed to be paid by him as liquidated damages in the event of a breach of the contract on his part, although he had been often requested to do so. The prayer is that appellant have, judgment for his debt of $500, with interest thereon at the rate of 6 per cent, per annum from the date of the alleged breach of the contract, and is the usual prayer in actions for debt. The decision of the question turns on whether the interest prayed for is recoverable, under the allegations of appellant’s petition, as an element of the damages necessary to the complete indemnity of appellant for the detention of the sum of money claimed to be due him, or as interest eo nomine, under the statute fixing the legal rate for the detention of money. Article 4977 of Vernon’s Sayles’ Texas Civil Statutes provides:

“On all written contracts ascertaining the sum payable, when no specified rate' of interest is agreed upon by the parties to the contract, interest shall be allowed at the rate of six per cent, per annum from and after the time when the sum is due and payable.”

In such a case the interest which may be recovered for a breach of the contract is a creature of the statute and allowed eo nom-ine and not as compensation for the detention of that which is due on account of injury inflicted, as “an element of damages necessary to the complete indemnity of the injured party.” The claim sued upon in this case grows out of and is based on a “written contract ascertaining the sum payable” in case of its breach. That sum, according to the stipulations of the contract and the allegations of appellant’s petition, is $500. The suit is not to recover general damages for the alleged-breach of the contract, but to recover exactly $500 which it is alleged appel-lee agreed by the terms of the contract to pay as liquidated damages for such breach. That is the estimate made and agreed to by appellant and appellee in advance of the damages which either would suffer in case of a breach of the contract by the other, and that estimate, $500, was written in the contract as the measure of either’s damages and the limit of recovery in the event of such breach. The suit is therefore clearly one upon a written contract which expressly names the amount recoverable for a failure or refusal of either party thereto to perform it, and that amount being exactly $500, exclusive of interest, the district court was not clothed with jurisdiction to hear and determine it. The cases cited by appellant in reply to appellee’s motion for a rehearing were essentially different in their facts. The case most libe it is Robinson v. Lingner, 183 S. W. 850. That case, however, is radically different in that the suit was upon a “verbal contract” and not a written contract.

For the reason that the district court had no jurisdiction to try this case, the appel-lee’s motion for a rehearing is granted, the judgment of this court heretofore rendered reversing and remanding the case for a new trial is set aside, and the judgment of the district court reversed and the cause remanded, with instructions to that court to dismiss the same.
      <§=Z3For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BOYCE, J.

text:
    GRAYSON COUNTY et al. v. HARRELL et al.
    (No. 1280.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 13, 1918.
    Rehearing Denied March 27, 1918.)
    1. Appeal and Error <&wkey;719(4) —■ AssignMENTS OP ERROR — FUNDAMENTAL ERROR.
    Any error in overruling a general demurrer to the petition is fundamental error, which will be considered on appeal, even if the assignment of error would otherwise be insufficient because not set out in the motion for new trial.
    2. Counties <&wkey;196(3) — Roads—Bonds—Commissioners’ Court Diverting Funds — Injunction.
    If the proposition for issuance by a county of bonds for improving roads submitted at an election, and voted on, specified the roads that would be improved, the commissioners’ court could be enjoined from diverting the funds to the improvement of other and different roads.
    3. Counties <&wkey;183(l) — Roads—Bonds—Purpose op Election — Oedeb and Notices.
    Under Rev. St. 1911, arts. 627-633, providing for issuance by counties of bonds for roads; that on petition the commissioners’ court shall order an election to determine whether they shall be issued, of which election notice by publication and posting shall be given for specified periods; and that the general laws relative to county bonds, when not in conflict with such articles, shall apply; and article 606 part of such general laws, providing that the proposition to be submitted for the issuance of bonds shall distinctly specify the purpose for which they are to be issued — the purpose of election is .to be determined from the order of the commissioners’ court submitting the proposition, which purpose should appear in the official election notices, and be repeated in the order declaring the result of the election, without regard to mere statements or promises made by the commissioners during the campaign, as to roads to be improved.
    4. Injunction <&wkey;118(l) — Petition— Negativing Ineeeences.
    Petition for injunction should negative fair inferences of facts therefrom, under which facts plaintiff would not be entitled to the relief.
    5. Contracts i&wkey;108(2) — Validity — Public Policy.
    ' Any agreement by the commissioners’ court, tending to preclude it from full and free exercise of its discretion as to the roads to be improved with the proceeds of bonds voted to be issued for improvement of roads generally, would be against public policy.
    6. Injunction &wkey;>76 — Roads — Bonds — Improvement — Enjoining Commissioners’ Court — Fraud or “Abuse of Discretion.”
    The discretionary power conferred on the commissioners’ court to determine the roads to be improved with proceeds of bonds can be interfered with by injunction not for a bad mistake in judgment, but only where the proposed action is fraudulent or a gross abuse of discretion, involving not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency.
    [Ed. Note. — For other definitions, see Words, and Phrases, First and Second Series, Abuse of Discretion.]
    7. Mandamus <&wkey;90 — Oommissxonees’ Court —Improvement op Road.
    Even if abuse of discretion by the commissioners’ court in improving a certain road with the proceeds of bonds issued for improving roads generally be shown, the court could at most enjoin such action, and not by mandamus force the improvement of a certain other road.
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by W. M. Harrell and others against Grayson County and others. Judgment for plaintiffs, and defendants appeal.
    Reversed and remanded.
    B. F. Gafford, of Sherman, for appellants. Wood, Jones & Hassell, of Sherman, for ap-pellees.
   BOYCE, J.

Appellees, citizens and taxpayers of Grayson county, having a financial interest in the improvement of the Celtic road hereinafter -mentioned, obtained judgment in the court below against Grayson county and the commissioners’ court of said county, appellants, enjoining the expenditure of certain funds, the result of the sale of the road bonds of the county, in the improvement of what we shall call the “Luella road,” and requiring by mandamus the expenditure of such funds in the improvement of the “Celtic road.” Appellees object to the consideration of all of appellants’ assignments of error, on the ground that they are not the same as set forth in the motion for new trial, and for many other reasons.

The case is briefed by appellants in flagrant disregard of the statute and rules, and we do not think that we can rightly exercise any discretion to consider any of the assignments except the first. Appellees also object to the consideration of this assignment, but it is not material to' determine whether this objection is well taken or not, since the assignment is as' to the action of the court in overruling the general demurrer to plaintiffs’ petition, and in any event would be considered a fundamental error. City of San Antonio v. Talerico, 98 Tex. 151, 81 S. W. 519; Davis v. Parks, 157 S. W. 452. At a former day of the term we set aside a previous submission of the case, indicating that we would be compelled to disregard appellants’ assignments except as they suggested fundamental error, and set the case for resubmission, requesting the parties to brief the questions of fundamental error suggested by us. Appellant has filed a brief covering not only these matters but other assignments. Under the circumstances, we do not think we should consider such brief except as it is in response to the request of the court. We therefore sustain all of appellees’ exceptions to the consideration of appellants’ assignments except as stated, but will proceed to consider the case on the question of fundamental error.

The plaintiffs alleged that on the 9th day of March, 1915, the commissioners’ court of Grayson county ordered an election to be held in said county on the 17th day of April, 'to determine whether or not the bonds for such county should be issued and sold for the purpose of constructing and building roads, etc., within said county; that said election resulted in favor of the issuance and sale of such bonds in the sum of $862,000; that the election was first ordered to be held on the 10th day of April, 1915, but that, by reason of the fact that the amount of the bond issue sought to be voted would not be sufficient to improve all of the roads of said county, the commissioners’ court and the members thereof demanded that the petitioners for said election specify what roads would be improved for the public good, in order that the people might know where the money would be expended, and thereby vote intelligently, and in pursuance thereof the election was postponed from April 10, 1915, to April 17, 1915; that a body of citizens, known as the “Chamber of Commerce of the City of Sherman,” with a committee of citizens from various parts of the county, were the promoters of the movement to bring about said bond election, and that said chamber of commerce and committee of citizens were requested by said commissioners’ court to specify the roads that would be improved in the event the election should be in favor of the issuance of said bonds, and that in accordance with said request said chamber of commerce and committee of citizens “did prepare a list of the roads in said county, and a map showing their location, upon which it was proposed to expend said money” ; that among the roads that were specified was what is known as the Celtic road, and that said road was reported to said commissioners’ court as one of the roads that would be improved out of said funds; that said chamber of commerce and the said committee of citizens at divers times thereafter announced to the people in the vicinity of the Celtic road that it would be one of the roads improved, and that a map of ° such road prepared by the chamber of commerce and citizens’ committee showing said road was exhibited to the plaintiffs and other persons living in the vicinity of said Celtic road; that after such announcement was made another map was made under the direction of the chamber of commerce, purporting to show the roads that would be improved, and that such map by mistake showed the Luella road, and not the Celtic road, as being one of the roads intended to be improved; that, upon complaint by the citizens of the Celtic neighborhood, the chamber of commerce and citizens’ committee explained to the plaintiffs and Others interested in the Celtic road that such map was erroneous, and that the Celtic road, and not the Luella road, would be improved; that said promises and announcements were made'with the consent and express wishes of the said commissioners’ court and members thereof, and that the plaintiffs and other voters in the Celtic neighborhood believed said statements, and that they were authoritative, and relied thereon, and that but for such representations and the votes of the people of the Celtic community said election would not have carried; “that by reason of the promises made by the said Grayson county, its commissioners’ court and the members thereof, in which it was announced by it that the roads would be improved as designated by the chamber of commerce and the citizens’ committee, * * * said Grayson county and commissioners’ court are estopped from improving the Lud-ia- road in lieu of and instead of the Celtic road.” We will notice later the allegations as to another ground for injunction relied on by plaintiffs, but will first dispose of the sufficiency of the petition on the allegations already detailed.

If the proposition submitted at the election and voted on by the electors specified the roads that would be improved, there can now be no doubt that the court could be enjoined from diverting the funds to the improvement- of other and different roads. Moore v. Coffman (Sup.) 200 S. W. 374; Id., 189 S. W. 94. And the first question is, what was the proposition voted on? and, preliminary to this, how are we to determine what this proposition was? The election must have been held under the provisions of articles 627-633, R. S. These articles provide for the issuance, by counties and subdivisions thereof, of bonds for the'purpose of constructing, maintaining, and operating macadamized, gravel, or paved roads, etc.; that upon petition the commissioners’ court shall order an election to determine whether or not the bonds of such county shall be issued for the purpose of constructing such roads, and that notice of said election shall be given by publication for four weeks, and posting for three weeks, etc. Article 633 provides that the general laws relative to county bonds, when not in conflict with the provisions of this particular act on the subject, shall apply. Article 606, under general provisions for the regulation of the issue of bonds by counties, provides that “the proposition to be submitted for the issuance of bonds shall distinctly specify the purpose for which the bonds are to be issued,” etc. Under these provisions of the statute, we take it that the purpose of the election is to be determined from the order of the commissioners’ court submitting the proposition, which purpose should appear in the official election notices, and would be repeated in the order declaring the result of the election. The voters can have no official notice or knowledge of the proposition submitted to them, except as contained in these proceedings, which are the means designated by law of declaring and making known to the voters the proposition on which they are voting. It would be dangerous to hold that the commissioners’ court could recite in its order for the election one purpose or proposition, and by some other action or order, not made a part thereof, and not referred to in the official notice of the election, inject into the proposition, limitations or conditions so that the actual result of the election would be to carry a different proposition from that actually voted on according to the official record and notices of the proposition submitted. In the opinion of the Court of Civil Appeals and the Supreme Court in Moore v. Coffman, supra, which was a suit to prevent the diversion of the proceeds of the sale of bonds which were voted for the purpose of building a bridge on the Brazos river, “near the Bill Coffman crossing,” to the building of a bridge at some other place, stress was placed on the fact that the election order and notices declared the specific purpose of the election as above stated, and a distinction is1 diawn between such case and the case of Ardrey v. Zang, 60 Tex. Civ. App. 295, 127 S. W. 1116, where certain representations as to the location of certain school buildings proposed to be paid for by the sale of bonds were not embodied in the proposition submitted to the people to vote upon. See, also, City of Austin v. Nolle, 85 Tex. 520, 22 S. W. 674.

It fairly appears from the petition that the order for the election was entered prior to the preparation of the list of roads and maps. It is not alleged that this list of roads and maps was ever filed with the commissioners’ court, or that said court ever made any orders in reference to such matters; plaintiffs’ reliance being placed upon “promises made by the said Grayson county, its commissioners’ court, and the members thereof, that the roads would be improved as designated by the chamber of commerce,” etc. It is not even alleged that these promises were the result of any official order of the court. While the petition is not as specific as it might be, it is a fair inference therefrom that the proposition submitted by the order for the election was general; that is, whether bonds should be issued for the purpose of constructing roads in the county, without particular designation, either in the election order, official notices of election, or order declaring the result. If these were not the facts, the pleader should have negatived these inferences. Gillis v. Rosenheimer, 64 Tex. 245; Paris v. Sturgeon, 50 Tex. Civ. App. 519, 110 S. W. 459; Weaver v. Emison, 153 S. W. 923; Kell Milling Co. v. Bank, 16S S. W. 46. What, then, would be the effect of the said promises, which were not a part of the election proposition, even if such promises were officially made and entered by the commissioners’ court? The power to provide for the improvement of the public roads is a legislative function, which has been delegated to the commissioners’ court. This power is to be exercised for the general good of the public, and not in the interest of any community or individual. The court cannot delegate the exercise of this power and discretion to others, nor can it divest itself of such power by agreements in advance to exercise such discretion in any particular manner. and any agreement, the tendency of which is to preclude the court from a full and free exercise of its discretion as to the particular roads, that were to be improved when the time should come to make such improvements, would be against public policy. Tyree v. Road District No. 5, 199 S. W. 648, 2d column; Dillon on Municipal Corporations, § 245.

We hold, therefore, that the proposition for which the people voted could only be sought through the official records and notices, and not through verbal or even written campaign promises, which did not have the official publication requisite to an election notice, and that such promises as are alleged by the plaintiff to have been made in this case would not bind the commissioners’ court in the subsequent exercise of its discretion. The distinction between this holding and that in the case of Moore v. Coffman, supra, is that in such case there was no self-imposed limitation by the court of the subsequent exercise of its discretion, the election itself imposing this limitation upon the power of the court. Here the election itself appears to have contained no such limitations, but this was sought to be imposed by agreement made independent of the officially declared purpose of the election.

The plaintiffs’ petition also alleged that the said action of the commissioners’ court in selecting the Huella road for improvement “is inequitable, unjust, and oppressive, in that a large number of the taxpayers in the vicinity of the Celtic road are situated in Grayson county road district No. 2, which had voted a special tax for a road improvement, so that the plaintiffs and others similarly situated were paying double taxation for improvement of roads and securing no return therefor; that this condition, with a few exceptions, did not apply to those persons living tributary to the Huella road.” It was also alleged that there is about four times the amount of travel on che Celtic road as on the Huella road, and that by reason of the topography of the country the Huella road would be inaccessible to the travel that goes over the Celtic road. There is no allegation that the decision of the commissioners’ court to improve the Huella road was the result of any corrupt, fraudulent, malicious, or improper motive on the part of the commissioners, or that their decision was not made in good faith. The facts alleged, if true, only show a bad mistake in judgment. In cases of this kind, the discretionary power conferred upon the commissioners’ court can only be interfered with by injunction where the proposed action is fraudulent. Waterbury v. City of Laredo, 60 Tex. 523; City of Austin v. Nalie, 85 Tex. 520, 22 S. W. 676; Johnson v. Holland, 17 Tex. Civ. App. 210, 43 S. W. 71; High on Injunctions, § 1240; Dillon on Municipal Corporations, § 242. The authorities referred to by appellee, to wit, Currie v. Glasscock County, 179 S. W. 1097, and others, hold that injunction is proper where there is a gross abuse of discretion; but it has been held that “the abuse of discretion, to justify interference with the exercise of discretionary power, implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency.” Citizens’ Street Ry. Co. v. Heath, 29 Ind. App. 395, 62 N. E. 107; Anderson’s Haw Dictionary. We do not think the facts alleged are sufficient to show such abuse of discretion or fraud.

Even if an abuse of discretion in the matter of improvement of the Huella road was shown, the limit of the power of the court would be to enjoin such action, and the court could not, by mandamus in such case, force the improvement of the Celtic road. Durrett v. Robinson (Sup.) 131 S. W. 400; Beach v. McKay (Sup.) 191 SC W. 558; Jefferson v. Scott, 135 S. W. 705.

In order to be sure that we have not misconceived the effect of the allegations of plaintiffs’ petition, we have referred to the facts introduced in support thereof, and find that our construction of the pleading fairly reflects the cause of action as made by the evidence. The promise to build the roads reported by the chamber of commerce and citizens’ committee was made to a mass meeting of citizens at Sherman on April 5th or 6th, before the election on April 17th, the promise being made by the county judge after consultation with the commissioners, though the evidence is not definite as to what, if any, order was passed by the court, no evidence being offered as to any order thereon regularly voted upon by the court. The entire record discloses that these proceedings never became any part of the officially declared and entered purpose of the election or notice thereof.

For the reasons stated, the judgment is fundamentally erroneous, and it is accordingly reversed and the case remanded.
      ÉssiFor oilier cases see same tonic and KEY-NUMBER, in all Key-Numbered Digests and Indexes

      <©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    ZEIGER v. WOODSON et ux.
    (No. 807.)
    (Court of Civil Appeals of Texas. El Paso.
    March 7, 1918.
    Rehearing Denied March 28, 1918.)
    1. Depositions <@=70 — Oath op Deponent.
    A witness whose deposition is to be taken in writing in answer to written interrogatories need not be sworn before Ms answers are reduced to writing, such requirement applying only on oral examination.
    2. Appeal and Error <&wkey;74-2(l) — Scope of (Review — Assignments of Error.
    Where assignments of error are not followed by sufficient statement to explain and support the propositions as required by rule 31 (l|2 S. W. xiii), the assignments will not be considered.
    3. Appeal and Error 4&wkey;511(l) — Scope of Review — Preservation of Exceptions.
    If the record fails to show that a bill of exceptions was taken to the court’s'ruling, an assignment of error thereto will not be considered.
    4. Innkeepers <&wkey;ll(12) — Loss of 'Guest’s Baggage — Actions — Pleading — Sufficiency.
    In a guest’s action for loss of baggage, complaint alleging the relationship of the parties, that plaintiff delivered a trunk check to a belí boy at the hotel, that the hotel received the trunk but negligently failed to deliver it to plaintiff, and setting out the items contained in the trunk and their value, was good as against a general exception.
    5. Innkeepers <&wkey;ll(6) — Loss of “Baggage.”
    Baggage of a guest at a hotel is not necessarily defined as such articles as are ordinarily used by travelers stopping at hotels as guests, nor is it necessary to constitute an article as baggage that it be partly or wholly used as an article of clothing.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Baggage.]
    6. Innkeepers &wkey;>ll(12) — Loss of Guest’s Baggage — Pleading Damages.
    Petition, in action for loss of guest’s baggage, was not subject to special exception for failure to show whether the figures set opposite the various articles represented the price, the market value, a reasonable value, or the extrinsic value, since it is enough to allege the damages, the rule as to damage being one of evidence and not of pleading.
    7. Appeal and Error <&wkey;1170(3) — Harmless Error.
    In the absence of showing that, in an action wherein the petition was not divided into separate counts, the issues were severable, and in the absence of showing that the refusal to require a separate statement caused the rendition of an improper judgment, error, if any, in overruling an exception to the petition on the ground that it alleged throe separate causes of action without numbering the counts, was not ground for reversal, in view of rule 62a (149 S. W. x), preventing reversal except for error causing rendition of improper judgment or tending to prevent proper presentation of the case on appeal.
    8. Husband and Wife <&wkey;270(l) — Loss of Baggage — Bigiit to Sue.
    Where a trunk containing baggage of the husband and wife, most of which was community property, and part of which belonged to the wife, was lost by the innkeeper, both husband and wife could sue to recover the damage in the same suit.
    9. Pleading <&wkey;228 — Demurrer — Sufficiency.
    Where a petition for damages for loss of trunk by innkeeper set out each item lost, with its value, each item constituted a cause of action, and a special demurrer to the petition as a whole was insufficient, since each item should have been specifically excepted to.
    10. Witnesses <&wkey;344(l) — Impeachment — Evidence — Admissibility.
    Plaintiff, who testified in his action for damages for loss of a trunk by an innkeeper, could. be impeached only by proof of general bad reputation, and not by an affidavit made by him to the effect that he and his wife were unable to pay or give security for costs.
    11. Trial <&wkey;194(l) — Instructions — Questions for Jury.
    - Instruction that the jury could consider the fact that plaintiff read all the interrogations before making his answers thereto was properly refused as on the weight of the evidence.
    12. Appeal and Error <&wkey;>724(l) — Scope — Assignments of Error — Sufficiency.
    Under Bev. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612), stating the requisites of assignments of error, assignments which do not distinctly specify error are waived.
    13. Appeal and Error &wkey;>301 — Scope — Assignments of Error — Sufficiency.
    The grounds of error must be set out in the motion for a new trial, and must distinctly specify the error complained of.
    14. Appeal and Error &wkey;>302(l) — Scope—Assignments oe Error— Sueficienoy.
    Where motion for new trial was filed May 1st, and overruled May 2d, and bills of exception were not filed until July 18th, reference in the motion to a bill of exception, without stating more, does not distinctly specify the error complained of.
    15. Appeal and Error &wkey;>728(2) — Scope — Assignments of Error — Sufficiency.
    Assignments of error, not followed by concrete propositions,, unsupported by bills of exception, and referring to evidence taken by deposition, but failing to show what parts objected to were read to the jury, cannot be considered.
    16. Appeal and Error <&wkey;742(l) — Scope — Assignments of Error — Sufficiency.
    Assignments of error, in permitting plaintiffs’ attorney in reply argument to refer to evidence referred to by counsel for defendant in his argument, not followed by sufficient statements, and without suggestion of what evidence was referred to or of any harmful -results, should not be considered.
    17. Trial <£fc^>114 — Argument of Counsel.
    Buie 39 of the rules for district and county courts (142 S. W. xx), providing that arguments on the facts should be addressed to the jury, and that counsel must confine argument strictly to the evidence and to the arguments of opposing counsel, and that personal criticism of counsel should be avoided, was not intended to prevent a proper reference in the closing argument to evidence heard, simply because counsel preceding has referred to the same evidence.
    18. Appeal and Error <&wkey;742(5) — Scope — Assignments of Error — Sufficiency.
    Assignments of error to refusal of charges, not followed by appropriate statements showing what the requested issues were, which assignments were grouped in the brief, followed by one proposition, and were not signed by appellant or his counsel, were not to be considered.
    19. Innkeepers <&wkey;ll(3) — Loss of Baggage —“Gross Negligence.”
    Gross negligence of an innkeeper in losing a guest’s trunk is not properly definable as “the omission of that degree of care which the most inattentive and careless person would take about the care of his own property.”
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Gross Negligence.]
    20. Appeal and Error <&wkey;743(l) — Assignment of Error — ¿Reference to Beoobd.
    In action by guest for loss of baggage, where the jury found that plaintiff was a guest, assignment of error to refusal of requested instruction assuming the contrary, and submitting the issue of gross negligence, which failed to show any reference to the record warranting submission of such issue, could not be sustained.
    21. Appeal ahd Ebboe &wkey;109 — Decisions Reviewable — Setting Aside Findings.
    Under Rev. St. 1911, art. 1990, providing that where a special, verdict of the jury is rendered the court shall render judgment thereon, it is imperative on the trial court to render judgment on the facts found by the jury, though it may then grant a rehearing, but error, if any, would be on the overruling of the motion for a new trial, and not on the motion to set aside the findings and render judgment.
    22. Appeal and Ebboe <&wkey;1001(l) — Scope op Review — Findings op Fact.
    The court on appeal is bound by the jury’s findings of fact if there is any evidence to support such findings.
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Action by P. E. Woodson and wife against Charles Zeiger. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Rufus B. Daniel, of El Paso, for appellant. Lea, McGrady' & Thomason, of El Phso, for appellees.
   WALTHALL, J.

P. E. Woodson and wife, Kathryn S. Woodson, brought this suit against Charles Zeiger to recover the sum of §1,300, the alleged value of a certain trunk and its contents. Plaintiffs below alleged that defendant, Zeiger, during October, 1916, was operating a hotel in the city of El Paso, Tex., and that while plaintiffs, with their two little children, were stopping at said hotel as guests, they delivered a trunk cheek to a bell boy then employed at said hotel for the purpose of having the trunk and its contents, then in the baggage room in the Union Railroad Depot in said city, represented by such check, brought to them at said hotel. Plaintiffs alleged that defendant received said trunk and its contents, but failed and neglected to deliver same to them; that defendant, his agents and employes, have so negligently and carelessly handled said trunk, in violation of its contract- to deliver same to plaintiffs, as to allow said trunk and its contents to become lost to them. Plaintiffs stated the items contained in the trunk, giving the value of each item. Defendant demurred generally and specially to plaintiff’s petition, made general denial, answered specially that the first information he had concerning said trunk was some 24 hours after the arrival of plaintiffs at the hotel, and that, if such trunk was lost to plaintiffs, plaintiffs were guilty of contributory negligence in not sooner calling defendant’s attention to their trunks.

On special issues submitted, the jury found the following facts; Long well’s Transfer Company delivered to- defendant, its employés or agents, the trunk and its contents sued for; the agents or employés of defendant in the discharge of their duties misplaced, lost, or delivered said trunk to another than plaintiffs ; the reasonable value to plaintiffs at El Paso, Tex., of the trunk and its contents, was the sum of §950; P. E. Woodson delivered his wife’s trunk check to defendant’s bell boy on Sunday, October 8, 1916; it was within the scope of the authority' of such bell boy, as an employé of defendant, to receive such trunk check; defendánt’s employés either negligently or willfully so handled or assisted in handling or failed to handle plaintiff’s trunk or the check thereof as to cause plaintiffs to lose their trunk; the plaintiffs were guests of room No. 10 of the defendant’s hotel from the morning of October 8th to the morning of October 9, 1916; neither of the plaintiffs made inquiry of Zeiger or the hotel clerk about their trunk on the afternoon of October 8th; in failing to make such inquiry, plaintiffs did not fail to use such care and caution as an ordinarily prudent person under the circumstances would have .used; plaintiffs were not receiving accommodations at the Zeiger Hotel for less than the regular or day rate; plaintiffs did not have any place of abode or residence other than the Zeiger Hotel on October 8th and 9th; there were no articles in the trunk which were not such as are ordinarily used by travelers.

The judgment of the court was for the plaintiffs for the sum of $950, with 6 pey cent, interest from the 9th day of October, 1916, and costs.

Appellant presents 140 assignments:

The first five assignments of error, in various ways, complain of the action of the trial court in refusing to suppress the deposition of P. E. Woodson, claiming that the no-' tary did not make proper certificate, nor show that the deposition was subscribed and sworn to before such notary; that the notary did not properly certify and authenticate his acts of depositing same in the mail; nor require the postmaster to certify that he had received same from the notary; because the witness stated that he had read the interrogatories before making answer thereto; that it does not affirmatively appear that the witness was under oath at the time his answers were taken. The final certificate of the notary shows that the answers were sworn to by the witness before the officer. The law does not require that the witness be sworn before his answers are reduced to writing. Weisgarver v. Yinger, 122 S. W. 925, 128 S. W. 1190. The rule invoked applies only to depositions taken under oral examination. The other objections to the deposition are not well taken. Railway v. Mosley, 103 Tex. 79, 124 S. W. 90; Hartford et al. v. Becton, 103 Tex. 236, 125 S. W. 883; Missouri, K. & T. Railway Co. v. Davis, 53 Tex. Civ. App. 547, 116 S. W. 425.

Objection is made to a consideration of the sixth, seventh, and eighth assignments, and we think the objections are well taken. The assignments are not followed by sufficient statement to explain and support the propositions as required by the rule for briefing. Rule 31 (142 S. W. xiii).

The record does not show that a bill of exception was taken to the court’s ruling on the motion for continuance. Insurance Co. v. Huff, 175 S. W. 465. The assignments are not considered.

The ninth, tenth, eleventh, and twelfth assignments are grouped, and claim error in overruling the general and special exceptions to the petition. Objection is made to a consideration of these assignments under the ruling in Bray et al. v. Sewall et al., 171 S. W. 795, and Pecos Ry. v. Amorillo Railway, 171 S. W. 1103, We will consider the assignments only to the extent of holding that the petition is good as against a general exception.

The thirteenth assignment claims error in overruling special exception No. 5 to the petition, the exception being:

“It does not affirmatively appear that the articles mentioned in Exhibit A thereto attached were such articles as are ordinarily used by travelers stopping at hotels as guests of such hotel. Nor that each and every article mentioned in Exhibit A were upon the occasion mentioned even partly used, or were to be used by the plaintiff as articles of clothing while stopping at defendant’s hotel.”

It was not error to overrule the exception. The petition stated that the trunk contained plaintiff’s “baggage,” and the exhibit itemized the articles and their values. “Baggage” is not necessarily defined as “such articles as are. ordinarily used by travelers stopping at hotels as guests,” nor is it necessary to constitute an article as “baggage” that it was partly used or to be used as an article of clothing. The term “baggage” has a' broader significance than that contained in the exception. Volume 3, Ency. Dig. of Texas Reported Oases, beginning at page 1053 are many cases defining and discussing the term, to which we must for brevity refer.

The fourteenth assignment claims error in overruling an exception to the petition and exhibit, stating the exception that it “fails to show whether the figures sét opposite the various articles represent the price, the market value, a reasonable value, or the extrinsic value of such items,” and refers us to M., K. & T. Ry. Co. v. Hailey as sustaining the proposition. The case is not in point. The rule is stated by Mr. Justice Neill in City of San Antonio v. Pizzini, 58 S. W. 635. The rule as to the damage to be applied is a rule of evidence, and not of pleading.

The fifteenth assignment of error is directed to the overruling of an exception to the petition in that it attempted to allege three separate causes of action, and the paragraphs containing the counts are not numbered, and does not show the term of the court to which it is filed. The petition is not divided into separate counts. Appellant has not shown that the issues are severable, nor even suggested that a refusal of the trial court to require a separate statement of the several counts, giving separate numbers to each paragraph, caused the rendition of an improper judgment, or in any way tended to prevent appellant from making a proper presentation of the case to the appellate court. If it was error to overrule the exception, the judgment should not be reversed for such error unless it had such effect. Rule 62a (Í49 S. W. x).

Sixteenth and seventeenth assignments complain of the overruling of special exception to the petition. It is asserted that, in a suit by the husband and wife for personal property belonging to each, the petition should show how much' of the property is the separate property of each and how much is community property. The petition states that most of the property was community property ; that some few items were the separate property of the wife, specifying- such articles. While we think the husband and wife were entitled to recover in the same suit, and the judgment would be a bar to any second suit, it might be said that the exception does not particularize the items as to which the pleading is claimed to be defective ; that is, the demurrer is too large, and goes to the entire petition. Each item in the petition and exhibit constitutes a cause of action, and the rule invoked requires that each item should have been excepted to. If any of the items be sufficiently pleaded, as they are, a special exception to all, without specifying each in particular, should be overruled. W. M. W. & N. W. Ry. Co. v. Granger, 85 Tex. 574, 22 S. W. 959.

There is no merit in the contentions made in the eighteenth, nineteenth, twentieth1, twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-fifth, and twenty-sixth assignments.

The twenty-seventh assignment complains of the refusal of the court to permit counsel to put in question by his own affidavit the credibility of the witness P. E. Woodson. The affidavit was by Woodson, and to the effect that he and his wife were unable to pay or give security for the costs. Woodson could be impeached only by proof of general bad reputation. Railway Co. v. Creason, 101 Tex. 335, 107 S. W. 527. If the affidavit could be so used, it could be only after the witness had been first interrogated about the affidavit made and given a chance to explain. Jonhson v. Richardson, 52 Tex. 481; Dooley v. Boiders, 128 S. W. 690.

The twenty-eighth assignment is based on the refusal of the court to submit a special charge to the jury. The charge was to the effect that if the jury found that that plaintiff Woodson, whose deposition was in evidence, was permitted to and did read all of the direct and cross interrogations before making his answers thereto, such fact could be taken into consideration in determining the credibility of his testimony. The requested charge was clearly on the weight of the evidence and properly refused.

Assignments from twenty-ninth to sixty-first, and one hundred second to one hundred thirteenth, and one hundred seventeenth, pne hundred eighteenth, and one hundred twentieth, do not distinctly specify error, and are waived under article 1612, as amended by the 33d Leg. c. 136, p. 276.

The grounds of error must be set out in the motion for a new trial and distinctly specify' the error complained of. A reference to the motion for new trial discloses that such has not been done, but the motion simply refers to defendant’s bills of exception by number. The motion for a new trial was filed May 1, 1917, and was overruled May 2, 1917. Bills of exception were not filed until July 18, 1917. In this condition of the records, in our opinion, the reference in the motion to a bill of exception, without stating more, does not comply with the rule.

Assignments 62 to 101 are grouped, and present distinct questions; are not followed by concrete propositions; are not supported by bills of exception; they refer to evidence taken by deposition, but it is not shown that the parts of the evidence objected to were read to the jury. They are not considered. The simple fact that the court permitted plaintiffs to introduce the seal of the notary taking the deposition of the witness Woodson does not of itself show reversible error, as claimed in the one hundred fourteenth assignment.

Assignment 115 is not followed by a state-mént. A reference to the evidence shows that the witness testified that she personally made the original list of items, and, after refreshing her memory, was able to remember the items independently of the list. Cobb v. Riley, 190 S. W. 517.

Assignments 116 to 120 are not followed by an appropriate statement or concrete proposition, but simply refer to bills of exception. They are not considered.

Assignments 121 and 122 claim error “in permitting the attorney for plaintiffs during reply argument to refer to evidence which was referred to by counsel for defendant in his argument.” No sufficient statements follow the assignments, and there is no suggestion of what evidence was referred to, or the reference made, or of any harmful results to appellant from the matter complained of. Rule 39 (142 S. W. xx) invoked certainly was not intended to prevent a proper reference in the closing argument to evidence heard, simply because counsel preceding has made reference to the same evidence. The assignments should not be considered, but are considered and overruled.

Assignments 123 to 130 complain of ■the courts’ refusal to submit special charges, but there are no appropriate statements following advising us of what the requested issues were. The assignments are grouped I in the brief, followed by one proposition, and necessarily present distinct questions. A reference to the requested issues discloses that they are not signed by appellant or his counsel. Bank v. Patterson, 185 S. W. 1018, and cases there referred to. The assignments are not considered.

Appellant’s one hundred and thirty-first assignment complains of the rerusal of the court to submit to the jury the question as to whether the appellant was guilty of gross negligence in handling appellant’s trunk. Appellant in the submitted issue defined gross negligence as “the omission of that degree of care which the most inattentive and careless person would take about the safety of his own property.” The proposition is that “one stopping at a hotel, who is not a guest, could not recover from the proprietor for the loss of his property in such hotel unless the proprietor is guilty of gross negligence towards such personal property.” Gross negligence is not properly defined in the submitted issue.

The proposition, under the assignment, assumes that appellees were not guests at the hotel. The jury in answer to the seventh issue submitted found that appellees were guests of the hotel. The statement under the assignment makes no reference whatever to the record from which we could know that the issue of gross negligence should have been submitted. There was no error in refusing to submit the issue.

Assignments 132 to 140 claim error in the court’s overruling appellant’s motion to set aside the special findings of the jury and render judgment for appellant on the several grounds stated in the motion. Article 1990, R. S. 1911, provides that “in all cases where a special verdict of the jury is rendered, or the conclusions of fact found by the judge are separately stated, the court shall, unless the same be set aside and a new trial granted, render judgment thereon.”

The above article makes it imperative on the trial court to render judgment on the facts found by the jury. The court could then, on motion, grant a rehearing, and, if there was error, it would be on the overruling of the motion for a new trial, and not on a motion to set aside the jury’s findings and render judgment.

Appellant in many of the assignments assumes the fact that appellees were not guests of the hotel. The jury found that they were, and this court is hound by that finding, if there was evidence to support the finding.

Appellant presents a very lengthy brief, 140 assignments, and, while the brief shows much research among, the authorities, sufficient attention to the rules for briefing is not shown. Especially is this true as to rules 31 and 35 (141 S. W. xiii). In reference to the fact that appellant’s brief shows much time and labor spent in briefing, we have considered many of tihe assignments not properly briefed; the fact is, we have very carefully examined the record as to every one. We have found no reversible error.

The case is affirmed.
      <S&wkey;Kor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      d&wkey;For otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KING, J.

text:
    LOCKIN v. JOHNSON et al.
    (No. 302.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 12, 1918.)
    1. Adveese Possession <&wkey;112, 115(1) — Burden oe Proof— Questions for Juisv.
    Though the burden of proving all facts rests on claimant by adverse possession, every presumption being in favor of possession in subordination to the rightful owner, yet where the evidence is conflicting, the weight thereof remains a question for the court or jury trying the issues.
    2. Adverse Possession &wkey;>47 — Interruption of Possession.
    If title of the claimant by adverse possession were not already perfect, a lease within the statutory period of only 8 acres out of a tract of over 160 acres, made by the true owner to a third person, would prevent perfection of the adverse claimant’s title; since the possession of the tenant was that of the real owner and gave constructive possession of the whole tract.
    3. Landlord and Tenant i&wkey;61 — Interruption of Possession.
    " A lease by the true owner to the son of the claimant by adverse possession, who also held as a lessee of his mother, failed to interrupt the adverse possession, upon the same principle as that which prevents a tenant from attorning to another during the term of his tenancy.
    4. Pleading &wkey;259 — Tria:d—Amendments.
    In action to recover lands, where defendant claimed a specific tract by adverse possession, it was not error to permit a trial amendment to the answer praying in the alternative that an undescribed 160-acre tract be set off to her, and that such tract include her improvements.
    5. Trespass to Try Title <&wkey;47 — (Rights of Claimants — Relief.
    One who claims title under the 10-year statute of limitation may claim a specific 160 acres out of a larger tract, and, in the alternative, plead 10-year statute of limitation as to an undivided interest of 160 acres in the tract, the same to include his improvements, and the court may, by proper decree, appoint commissioners to make partition as in other cases of partition, so as to segregate and set apart a particular 160 acres to the party whose title under the 10-year statute of limitation is sustained.
    Error to District Court, Liberty County; L. B. Hightower, Sr., Judge.
    Action by J. C. Lockin against Morian Johnson and another. From the judgment rendered, plaintiff brings error.
    Affirmed.
    O. H. Cain, of Liberty, and Stevens & Stevens, of Houston, for plaintiff in error. W. P. Cruse, of Cleveland, and E. B. Pickett, Jr., of Liberty, for defendants in error.
   KING, J.

Plaintiff in error filed suit in the nature of trespass to try title against Morian Johnson and Archie Johnson to recover a tract of 2,114 acres of land known as the William Hayes survey in Liberty county and San Jacinto county. Archie Johnson, the son of Morian Johnson, filed a disclaimer. Morian Johnson disclaimed except as to 160 acres, which she claimed by limitation. Judgment was rendered in favor of plaintift in error for the land in controversy, with the exception of 160 acres, which was adjudged to the defendant in error, Morian Johnson. From this judgment J. C. Lockin has prosecuted a writ of error to this court.

There are four assignments of error urged, three of which complain as to the sufficiency of the evidence to sustain the findings of fact of the trial court, and the judgment rendered thereon. The other assignment complains of the action of the court in permitting the defendant in error' to file a trial amendment during the trial of the case, asking to recover an undivided interest in the land in controversy so as to include her improvements, and in refusing to permit the plaintiff in error to take judgment against the defendant in error, with the exception of 160 acres described in the answer of Morian Johnson.

The evidence discloses that the defendant in error went upon this land with her husband, according to her testimony, 26 years before the trial of the cause, and, according to all the testimony, she has resided and had several acres in cultivation and continually cultivated the same for a period of time over twice as long as the statutory period of 10 years. It is also undisputed that the plaintiff in error entered upon the 2,114 acres of land for the purpose of cutting the timber, and did actually cut the timber up to defendant in error’s fence which inclosed the land.

The disputed issues are: (1) When did the defendant in error enter upon said land? (2) When did she begin to assert claim to 160 acres? (3) When did the owner enter upon the land for the purpose of cutting the timber?

In his findings of fact, the trial court found that defendant in error moved upon the land and built a house thereon and worked 4 or 5 acres of land, and at once began to cultivate the same in the year 1889, and that they commenced to claim 160 acres thereof as their home when they first entered upon the land, and that she lived continuously with her husband on said land until about 1899, when her husband left her, and made a verbal gift to her of his interest and title in and to the said 160 acres upon which they had settled and had been cultivating, and that she continuously lived thereon until the trial of the case. The court also further found as a fact that the entry of the owner of said land for the purpose of removing the timber was made in 1902 or 1003; the trial court erroneously naming the owners as the Foster Lumber Company, when in fact the then owner, as shown by the record, was the R. O. Miller Lumber Company. Appellant and appellee each concede that this was inadvertently done by the court. There was a mass of conflicting evidence upon these issues, which we find impracticable to set out in full, but there is ample evidence in the record to sustain the findings of the court.

While the rule is familiar that the burden of proof rests on the party relying on a title by adverse possession to prove all the facts necessary to establish such title, and that every presumption is in favor of a possession in subordinaton to the rightful owner, and that title by adverse possession must be established by clear and positive proof, yet where the evidence is conflicting, the weight of the evidence still remains a question for the court or jury trying the issues. 1 B. C. L. 695, § 9. Therefore, by simple calculation, defendant in error had been upon the land for a period of over 10 years at the time found by the court when the owners of the record title took possession for the purpose of removing the timber, and, the court having found from the evidence the existence of all the elements to perfect the 10-year statute of limitation, we hold that the defendant in error had perfected her title to 160 acres of land, including her improvements, before the entry of the record owners for the purpose of cutting the timber.

The record discloses that the defendant in error has continued to reside upon the land claimed by her from the time the owner removed the timber, which was not later than 1903, and up to the time of filing of this suit in 1916, which was more than the statutory period of 10 years, and defendant in error insists that she has perfected her title since that time, even if it should be found that she had not done so at the time of entry by the true owner for the purpose of removing the timber. Plaintiff in error, reasoning from the standpoint that limitation had not been perfected by the defendant in error at the time of the removal of the timber, urges that during the second period the defendant in error’s possession was interrupted by two leases from the true owner, one to Archie Johnson, the son of defendant in error, and the other to Dr. Yictery. Under our holding that limitation had been perfected prior to 1902 or 1903, at the time the timber was removed, these contentions become immaterial,; so far as the result of this appeal is concerned; but, as the matters are raised by proper assignments of error, we hold that the lease to Dr. Vietery in 1906 of eight acres, by the true owner, although the lease was restricted to the eight acres constituting the improvements of Vietery, would have interrupted the possession of the defendant in error, had not her title by limitation been already perfected. The possession of Vietery was the possession of the real owner, and where the real owner is in possession of a part of his land he has constructive possession of the whole tract.

The lease to Archie Johnson, however, of the same day, would not have had the effect of interrupting his mother’s possession, as the trial court found that he was a tenant of his - mother, and that his mother knew nothing of the lease until 1915. He was merely, at most, a tenant at will of his mother, and as such tenant he could not in secret enter into any transaction which would gain possession of the land for himself, or give possession to the other party with whom he was secretly dealing. Juneman v. Franklin, 67 Tex. 415, 3 S. W. 562. The principle which applies to such state of facts is the same as that which prevents a tenant from attorn-ing to another during the term of his tenancy.

As to the assignment as to the trial amendment of the defendant in error, it appears that defendant in error, by her first amended answer, pleaded title under the 10-year statute of limitation to a specific 160 acres out of the tract of land sued for by plaintiff in error, and disclaimed title to all of the land except such 160 acres, but by a trial amendment which the court granted leave to file, she pleaded limitation under the 10-year statute first tó a specific 160 acres, and then, in the alternative, to an interest of 160 acres of land in said tract, the same to include her improvements, and with a prayer for partition thereof by proper orders of the court, and also by said trial amendment, her disclaimer was made to apply to the tract of land sued for, after excepting whatever 160 acres she was given title to by limitation, whether the judgment was for a specific 160 acres or for an undivided interest of 160 acres. The plaintiff in error did not ask for judgment upon the disclaimer contained in the first amended original answer of defendant in error until after the said trial amendment had been filed. This is shown by the judgment of the court, which in part reads as follows:

“And the court having heard the pleadings and the evidence offered by plaintiff on making out his case in chief, and then having heard in part the evidence offered by said defendant Mon-ing Johnson, the said defendant asked for and duly obtained leave of the court to file herein her first trial amendment, to which the plaintiff objected, and such trial amendment having been so duly filed, over the objection of the plaintiff, to which action of the court in allowing said trial amendment to be filed the plaintiff excepted, whereupon the said trial amendment having been so filed upon due leave of the court so to do, the plaintiff asked for judgment on the disclaimer of said defendant Moning Johnson, except the 160 acres specifically described in her original answer, and the said defendant having in her said trial amendment disclaimed title to all of the land sued for by plaintiff of which she may be the owner under the 10-year statute of limitation; thereupon it was ordered, adjudged, and decreed by the court that the plaintiff, J. C. Lockin, should have and recover of and from the said defendant _ Moning Johnson the land sued for in his petition, and being a tract of 2,114 acres of land out of the William Hayes survey, as hereinafter described, except the said 160 acres thereof to which said defendant Mon-ing Johnson may be entitled and the owner of under the 10-year statute of limitation.”

It was not error for the court to permit the filing of this trial amendment, and in refusing to enter judgment against defendant in error as to the specific 160 acres claimed in her first amended original answer. Davis v. Collins, 169 S. W. 1130, and cases therein cited.

We understand the rule in this state also to be that one who claims title under the 10-year statute of limitation may claim a specific 160 acres out of a larger tract, and, in the alternative, plead 10-year statute of limitation as to an undivided interest of 160 acres in the tract, the same to include his improvements, and the court may, by proper decree, as he did in this case, appoint commissioners to make partition as in other cases of partition, so as to segregate and set apart a particular 160 acres to the party whose title under the 10-year statute of limitation is sustained. Wickizer v. Williams, 173 S. W. 1163; La. & Texas Lbr. Co. v. Kennedy, 103 Tex. 297, 126 S. W. 1110; La. & Texas Lbr. Co. v. Stewart, 61 Tex. Civ. App. 255, 130 S. W. 203.

In the Davis Case, supra, plaintiffs, after the evidence was closed, and the argument of counsel had been heard, were allowed to file a trial amendment alleging that if mistaken in their plea of limitation as to a specific 160 acres, then they alleged title to 160 acres of the league, said 160 acres including plaintiff’s improvements, and it was held on appeal that the trial court did not err in allowing the trial amendment to be filed.

We find no error urged that would justify the reversal of the trial court’s judgment, and the same is therefore affirmed.
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