author: HALL, J.

text:
    MOSER v. TUCKER.
    (No. 1169.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 9, 1917.)
    1. Cotjets "&wkey;121(5) — Jurisdiction—Amount in Controversy — Interest.
    In a suit to recover earnest money paid on an optional purchase of realty with interest, the interest is part of the damages, and must be considered as a part of the amount in controversy in determining- jurisdiction of district court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 410, 420.]
    2. Vendor and Purchaser &wkey;>132 — Furnishing Abstract oe Title — “Merchantable Title.”
    Where the parties have stipulated that the abstract shall show a “merchantable title,” it must be construed to mean a good record title, and not such title as may be shown to be good by oral proof, ex parte affidavits, or other writings not subject to registration.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 248.
    For other definitions, see Words and Phrases, First and Second Series, Merchantable.]
    3. Vendor and Purchaser <&wkey;3S2 — Furnishing Abstract oe Title — “Merchantable Title” — Question oe Law.
    The question whether a -marketable title as it appears upon the record has been furnished is one of law.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 1059.]
    4. Vendor and Purchaser &wkey;>130(6) — Abstract Showing Merchantable Title — Evidence.
    In view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3700, providing that instruments recorded for 10 years, whether proved or acknowledged as required by law, shall be admitted in evidence, a vendor’s contract to furnish an authentic abstract showing a good merchantable title is complied with where a deed in the chain of title, with a defective acknowledgment as shown by abstract, has been recorded more than 10 years, and the defect has been cured by deeds of those having right to question the same as well as by a trustee’s deed at a sale under trust deed to secure the purchase money to the grantor in the defectively acknowledged deed.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 246.]
    5. Deeds <&wkey;208(4) — Delivery—Evidence — Registration.
    Registration of a deed is prima facie evidence of delivery to and acceptance by grantee.
    [Ed. Note. — For other cases, see Deeds, Cent, Dig. § 028.]
    Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.
    Suit by A. S. Tucker against C. O. Moser. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    J. J. Eckford, of Dallas, for appellant. Dabney & Townsend and PI. G. Goggans, all of Dallas, for appellee.
   HALL, J.

On October 31, 1913, appellee, Tucker, contracted to purchase from appellant, Moser, certain lots in the Levingstone addition to the city of Dallas, and at that time paid $500 earnest money. The receipt for the money, which is the evidence of the contract, was executed by the agents of Moser, and recited the terms of the sale. It contained this stipulation:

“Conditioned upon an authentic abstract showing a good, merchantable title to the property, and should the title to said property prove not good and cannot be made good within a reasonable time, not to exceed thirty days from the date hereof, then we obligate ourselves to return said $500.00 now paid upon the return and cancellation of this receipt.”

Tucker’s attorney examined the abstract and declined to approve the title, and this suit was instituted in the district court of Dallas county to recover the earnest money, with interest. By his first amended original answer, appellant, Moser, excepted generally and specially to the petition, interposed a general 'denial, and denied specially that the allegations of plaintiff’s petition showed defects in the title to the property described in the contract of sale. The court overruled defendant’s exceptions, and, after the evidence had all been introduced, directed a verdict for the appellee in the sum of $500, with interest at 6 per cent, from the date of the contract.

Under the first assignment appellant insists that the district court did not have jurisdiction of the amount in controversy. This question is settled adversely to appellant’s contention by the case of McNeill et al. v. Casey, 135 S. W. 1130, which holds that in a suit of this character, where the plaintiff prays for interest for the breach of the contract, the interest is part of the damages rer coverable, and must be considered as a part of the amount in controversy determining the question of jurisdiction. ,

As will be observed, the contract does not stipulate that the title shall be merchantable, but that the abstract shall show a merchantable title. A title may be absolutely good, such as a title by estoppel, adverse, possession, or limitations, and yet, as shown by the abstract, it may be utterly worthless. On the other hand, an abstract may show the title to he good on the face of the record, and yet the vendor may not be the real owner of the land. Where the parties have stipulated that the abstract shall show a marketable title, it must be construed to mean a good record title, and not such a title as may be shown to he good by oral proof or ex parte affidavits and other writings not subject to registration. As said by Neill, Justice, in Bowles et al. v. Umberson et al., 101 S. W. 842:

, “The very fact that the one who desires to sell agrees to furnish one who wants to purchase an abstract of title indicates that the title under which he claims is of such character that a complete abstract can be made of it, and that it is not such that must appear outside of such records and instruments as abstracts of title are made from. Such, for instance, as title by limitation of which there can be no record or paper.” Nicholson v. Lieber, 153 S. W. 644; St. Clair v. Hellweg, 173 Mo. App. 660, 159 S. W. 17; Fagan v. Hook, 134 Iowa, 381, 105 N. W. 155, 111 N. W. 981; Bruce v. Wolfe, 102 Mo. App. 384, 76 S. W. 723; Thompson v. Dickerson, 68 Mo. App. 535; Horn v. Butler, 39 Minn. 515, 40 N. W. 833; Lessenich v. Sellers, 119 Iowa, 314, 93 N. W. 348; Kane v. Rippey, 22 Or. 296, 23 Pac. 180; Howe v. Coates, 97 Minn. 385, 107 N. W. 397, 4 L. R. A. (N. S.) 1170, 114 Am. St. Rep. 723; Wiemann v. Steffen, 186 Mo. App. 584, 172 S. W. 472; Mays v. Blair, 120 Ark. 69, 179 S. W. 331.

The parties having contracted for an abstract showing a merchantable title, which we construe to mean a marketable title, as it appears upon the records only, the question under this record becomes one of law. Maupin Mktble. Title (2d Ed.) pp. 710, 749.

Appellee asserts that one of the defects in the title, as shown by the abstract, is in the acknowledgment to the conveyance from A. Levingstone to Kennedy. This instrument was dated June 15, 1891. The certificate of acknowledgment was signed by Chas. F. Bolanz of Dallas county, and recites that Charles F. Bolanz personally appeared before Charles F. Bolanz, and acknowledged the execution of the instrument. The acknowledgment is otherwise in statutory form, and the infirfnity lies in the facts that the notary, Bolanz, wrote his own name in the certificate in the place where the name of the grantor should have appeared. The deed had been recorded for more than 10 years when the contract between the parties was signed. Article 3700, Vernon’s Sayles’ Civil Statutes, provides that every instrument which has been recorded for a period of 10 years in the book used by the county clerk for the recording of such instruments, whether proved or acknowledged in such manner as is required by law, shall be admitted as evidence in any suit in this state without the necessity of proving its execution, provided no adverse claim has been asserted during that period. If, by the assertion of an adverse claim is meant the filing of a suit, the recording of a deed or adverse possession, the abstract in this case is innocent of any defect of that character. If we concede that the effect of this article is to render the deed admissible as evidence only, and that it does not constitute notice under the registration laws, still we think it is not such an objection as renders the title unmarketable, for this reason: At the time of the execution of the original deed Kennedy executed to J. P. Murphy as trustee a deed of trust upon the property described in the contract to secure A. Levingstone in the payment of a vendor’s lien note for $550 described in the conveyance. This trust deed was duly recorded, and the result of the transaction is an executory contract by which the title remained in Levingstone until the payment of the note. Upon default by Kennedy, and about five years after the execution of the note, Murphy, the trustee, advertised the property for sale, and sold and conveyed it to one Beaumont. As shown by the abstract, Beaumont conveyed the property to appellant by duly executed and recorded deed. The record shows that the note for $550 and the vendor’s lien were owned by Levingstone, and that the trustee sold the property at his request. The deed of trust and the trustee’s deed, being duly acknowledged and recorded, constituted notice. The effect of the sale by the trustee was to convey the title held by Levingstone directly to the purchaser Beaumont. By this sale the rights of Kennedy and those claiming under him were extinguished. The question, however, is raised by appellee in this connection of the validity of the trustee's sale.

It is insisted that because it does not appear from the abstract that Kennedy was alive when the sale was made under the power contained in the trust deed, the title is so doubtful as to render it unmarketable. There is nothing in the record to show whether Kennedy was dead or alive at the time of the trustee’s sale. We are not willing to hold that the abstract under the circumstances in this case should show affirmatively that the grantor in the trust deed was alive when the sale was made. The fact of his death, in the absence of administration upon his estate,' or some other court proceeding, would not appear as a matter of record. It is provided by article 5707, Vernon’s Sayles’ Civil Statutes, that any person, absenting himself beyond the sea or elsewhere for 7 years successively, shall be presumed to be dead in any cause wherein his death may come in question, unless proof be made that he was alive within that time. Under this article of the statute no presumption arises of the death of Kennedy until the expiration of 7 years from the date when he was last known to be alive. We think, however, that the question of whether Kennedy was dead or alive at the time of the trustee’s sale is of very little importance. The record shows that Kennedy acquired the title from Levingstone June 15, 1891. We find in the abstract a deed from Kennedy and wife, dated November 11, 1892, conveying the property described therein to E. C. Brown, and C. C. Jones. The trustee sold under the power July 7, 1896. Kennedy had therefore divested himself of all right, title, and interest in the property before the sale. In Wiener v. Zweib, 105 Tex. 262, 141 S. W. 771, 147 S. W. 867, the Supreme Court held that where the trustee sold the premises under the power contained in the deed of trust after the death of the mortgagor, and before the expiration of 4 years, where no administration liad been commenced, the sale was valid, and vested title in the purchaser, subject to be set aside by an administration if one was required; that such sale was not invalid, but was merely void. Afterward, upon motion for rehearing (105 Tex. 282, 147 S. W. 867), the court said:

“The only reason that has been assigned in any of the eases for holding- that the death of the mortgagor suspends the power of sale is that the foreclosure of the mortgage might embarrass the court in the regular administration of the estate. Now, if the foundation upon which alone the rule rests does not exist, then the rule cannot apply to this case. * * * Having no jurisdiction of. the property, the court could not 'have made any order concerning it. The logical conclusion must follow that the sale of the land under the deed of trust was not suspended to await the granting of administration by a court, which had no jurisdiction, and whose order could not affect the property in any way.”

For the reason just stated the death of Kennedy immediately after the- execution of the above-mentioned deed could have no bearing whatever upon the validity of the trustee’s sale, simply because his adminjstrator could not have exercised any power over the property. There is another reason why the defective acknowledgment should not be held to condemn the title: A correction deed, properly acknowledged by Levingstone, November 24, 1913, was duly filed and recorded. Its registration was prima facie evidence of its delivery to and acceptance by Kennedy. It is a copy of the original deed, and in addition contains this recital:

“(This deed is executed in lieu of that certain deed executed by A. Levingstone to James Kennedy, dated June 15, 1891, and recorded in vol. 145, p. 2Í76, deed records of -Dallas county, Texas, for the purpose of correcting a defect in the acknowledgment of said deed.)”

In so far as this link in the chain of title is concerned, we think appellee would have been fully protected as a bona fide purchaser in a contest with one claiming under Levingstone.

Appellee quotes the following rule from Williams v. Bricker, 83 Kan. 53, 109 Pac. 998, 30 L. R. A. (N. S.) 343, and insists that it is applicable here:

“A title need not in fact be bad in order to render it unmarketable or nonmerchantable; the question is whether a reasonably prudent man, familiar with the facts and apprised of the questions of law involved, would accept the title in the ordinary course of business, nor is it enough even that the court on the whole consider it good. If there be doubt or uncertainty sufficient to form the basis of litigation, the title is unmarketable.”

If the terms of the contract of sale in the instant case did not require a marketable title, as shown by the record, the rule would apply. The contract in Hollifield v. Landrum, 31 Tex. Civ. App. 187, 71 S. W. 979, did not stipulate for a title shown to be good by the abstract, and Gill, Justice, held that parol - evidence was admissible to. show that the proffered title was good, and that the prospective purchaser should be permitted to show that facts extraneous to the abstract threatened, and diminished the market value of the property. In such a case the question as to whether a reasonably prudent man, familiar with the facts and apprised of the questions of law involved would accept the title becomes a mixed question of law and fact;. but, in this case, where the contract requires that the title shall appear from the abstract, made up of only such instruments as are entitled , to registration, and where ex parte affidavits, not subject to registration and parol testimony, should not be admitted, the question is, as stated, one for the court, and upon which the opinion of the examining attorney is not even admissible, as held in Brackenridge v. Claridge, 91 Tex. 527, 44 S. W. 819, 43 L. R. A. 593. The abstract furnished appellee did not show a title so clear and perfect that it might never be attacked, and it would be difficult to conceive of a title in such condition; but, in our opinion, if appellee had accepted the title, as shown by the abstract in question, he would have been in such a position that he could have successfully defended it against any one relying upon the defects shown.

The judgment is therefore reversed, and rendered for the appellant.
      =For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGHTOWER, C. J.

license: Public Domain

text:
    VAUGHAN et al. v. SOUTHWESTERN SURETY INS. CO.
    (No. 179.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 3, 1917.
    Rehearing Denied May 23, 1917.)
    Master and Servant <&wkey;388 —Workmen’s Compensation Act — “Legal Beneficiaries” — Statutes.
    Vernon’s S-ayles’ Ann. Oiv. St. 1914, art. 5246kk, of the Workmen’s Compensation Act, provides that if death should result from injury, the insurance association shall pay the legal beneficiaries of the deceased employe a weekly payment of 60 per cent, of his average weekly wages, etc., provided that the compensation shall be distributed according to- the law providing for the distribution of other property of deceased. Article 2461, the Statute of Descent and Distribution, section 3, provides that if there be neither father nor mother, the whole of intestate’s estate shall pass to his brothers and sisters and to their descendants. Article 4698, part of the Death Injury Statute, provides that the action shall be for the sole and exclusive benefit of the surviving husband, wife, children, and parents of the person whose death shall have been caused, and that the amount recovered shall not be liable for decedent’s debts. Held, that the death injury statute must be looked to as indicating whom the Legislature intended as beneficiaries, under the Workmen’s Compensation Act, of an employé, leaving no wife, children, father, or mother, but who had brothers and sisters, the language of article 5246kk indicating that the statute of descent and distribution should merely be the basis for apportionment between the beneficiaries otherwise determined so that the employé’s brothers and sisters were not his “legal beneficiaries” within article 5246kk.

      Appeal from District Court, Jefferson County; E. A. McDowell, Judge.
    Suit by the Southwestern Surety Insurance Company against P. 6. Vaughan, as attorney for Mrs. M. Breen, and others. To review a judgment for plaintiff, defendants appeal.
    Affirmed.
    E. G. Vaughan and Howth & Adams, all of Beaumont, for appellants. Andrews, Street-man, Burns & Dogue, of Houston, for^appel-lee,
   HIGHTOWER, C. J.

This is a suit brought in the district court of Jefferson county, Tex., by the Southwestern Surety Insurance Company, against P. G. Vaughan, as attorney for Mrs. M. Breen, Mrs. George Tuttle, Alfred S. Blood, and Walter M. Blood, and against D. P. Wheat, county judge of Jefferson county, and H. B. Showers and J. B. Synnott, who were justices of peace of pre: cinct No. 1, Jefferson county, and in which suit the plaintiff prayed for and obtained a temporary restraining order against each and all of the defendants, restraining the defendants, P. G. Vaughan, Mrs. M. Breen, Mrs. George Tuttle, Alfred S. Blood, and Walter M. Blood from prosecuting any suit or suits then brought, or bringing any suit or suits and prosecuting same against plaintiff, and restraining the defendants, D. P. Wheat, H. B. Showers, and J. B. Synnott, as judges of their respective courts, from hearing or determining any suit or suits brought or to be brought by said other defendants upon any claim or claims based upon the death of one Ed Blood. Upon the trial of the case, judgment was rendered in favor of the plaintiff, the temporary injunction theretofore granted was perpetuated, and from which judgment respondents have appealed.

The admitted facts are as follows: On about the 13th day of October, 1914, one Ed Blood, who was in the employ of the Merri-mac Oil Company, a corporation, and between whom the relationship of master and servant existed, sustained such injuries while in the due course of his employment that he, as a direct result thereof, immediately died. Mrs. M. Breen, Mrs. George Tuttle, Alfred S. Blood, and Walter M. Blood were the brothers and sisters, respectively, of said deceased, Ed Blood. Ed Blood was unmarried at the time, and had no children, and his. father and mother are both dead. It was contended, therefore, that under the statute “the legal beneficiaries” of the said Blood were and are Mrs. M. Breen, Mrs. George Tuttle, Alfred S. Blood, and Walter M. Blood. The average weekly wage of said Ed Blood was the sum of $21, 60 per cent, of which was $12.60. At the time of the death of said Ed Blood, the Southwestern Surety Insurance Company had a contract with the Merrimae Oil Company for accidents and injuries to its employSs, under the terms and requirements of the “Texas Compensation Law,” and the said Merrimae Oil Company came within the class of persons or corporations which had a right to and whose duty it was to have such insurance. Wherefore it was contended by said claimants that they were the legal beneficiaries under said statute, and were entitled to the sum of $4,536. All of these facts were duly pleaded and were admitted to be true, except as to the construction of the phrase “legal beneficiaries.”

It is also agreed by all the parties to this suit, that the only question involved is whether or not brothers and sisters, under the terms and provisions of the “Workmen’s Compensation Act,” passed by the Thirty-Third Legislature (Acts 33d Leg. c. 179) are entitled to any of its benefits. The question being the construction to be placed upon, the words “legal beneficiaries,” as used in the statute (article 5246kk, c. 5, Vernon’s Sayles’ Tex. Civ. St. 1914), which is as follows:

“If death should result from the injury, the association hereinafter created, shall pay to the legal beneficiary of the deceased employe a weekly payment equal to 60 per cent, of his average weekly wages, but not more than $15.-00 nor less than $5.00 a week, for a period of 360 weeks from the date of injury; provided, that the compensation herein provided for shall be distributed according to the law providing for the distribution of other property of deceased.”

Plaintiff in error contends that the statute of descent and distribution (article 2461, Vernon’s Sayles’ Tex. Civ. St. 1914), and particularly section 3 thereof, should control, and which provides:

“If there be neither father nor mother, then the whole of such estate shall pass to the brothers and sisters of the intestate, and to their descendants.”

Plaintiff further contends that the term or phrase, “legal beneficiary,” or beneficiaries, as used in the said article of the statute, known as the “Employers’ Liability or Compensation Law,” is equivalent to and identical with the term or phrase, “legal heirs,” as provided for under said article 2461, and particularly section 3 thereof, above quoted. The defendant in error contends that the meaning of the words “legal beneficiary,” or beneficiaries, as used in article 5246kk, is identical with the provisions in article 469S of Vernon’s Sayles’ Tex. Civ. St. 1914, same being part of what is known as the “Texas Death Injury Statute,” and which is as follows:

“The action shall be for the sole and exclusive benefit of the surviving husband, wife, children and parents of the person whose death shall have been caused, and the amount recovered therein shall not be liable for the debts of the deceased.”

Article 5246i of this act abolishes all right of action on account of injury to employés of a subscriber, whether such injury results in death or merely incapacitates the employs, and in case of death the beneficiaries of the deceased are deprived of all right of action, and must look solely to the Texas Employers’ Insurance Association. It will be noted that this article uses the phraseology “representatives and beneficiaries of deceased employes” in designating those who are deprived of the 'right of action when the employer is a subscriber. Article 5246Ü of this act uses the same phraseology in providing that:

“The representatives and beneficiaries of deceased employés who at the time of injury were working for nonsubseribing employers cannot participate in the benefits of said insurance association, but they shall be entitled to bring suits, and may recover judgment against such employers, or any of them, for all damages sustained. • * * ”

Article 5246J provides:

“If the deceased employé leaves no legal beneficiaries, or creditors the association shall pay all expenses incident to his last sickness, and in addition a funeral benefit, not to exceed $100.00, provided, where the deceased leaves no beneficiaries as provided herein, but leaves creditors, the association shall be liable to such creditors for an amount not exceeding the amount that would otherwise have been due beneficiaries, which amount paid shall not exceed amount due such creditor or creditors.”

It will be noted that in articles 5246i and in 5246Ü the same words, “representatives and beneficiaries of the deceased employés,” are used. In article 5246i the right of action is taken away, and the “representatives and beneficiaries” are required to look to the insurance association; but in article 5246Ü, the right of action of the “representatives or beneficiaries” is specifically reserved, where the employer has not become a subscriber. That the Legislature did not intend to make brothers and sisters “beneficiaries” under this act is most reasonable, when it is considered that prior to the passage of the act brothers and sisters had no right of action to be abolished. Under the “Texas1 Death In- • jury Statutes,” no right of action existed in favor of brothers and sisters on account of the death of a brother. The only “legal beneficiaries” under the Texas death injury statute are the surviving husband and wife, children, and mother and father, and the statute specifically provides that it shall be for the sole and exclusive benefit of these named ben: ■efic-iaries; and, in order to say that beneficiaries, under this chapter, include brothers and sisters, it would necessarily follow that article 5246i abolishes a right that did not exist, and that article 5246Ü undertakes to create in behalf of brothers and sisters a right which theretofore had never existed.

If the statute of descent and distribution is to be made the test of who are beneficiaries under this chapter, then the mother or father, who depend entirely for their support upon their son would be completely cut off in case the son was married or had children; and we do not believe, considering articles 5246i and 5246Ü together, that the Legislature intended to make these statutes mean that -a mother or father should be cut out of compensation under such circumstances. Therefore we believe the death injury statute (article 4698) should be looked to as indicating who the Legislature intended as beneficiaries, or the result indicated would necessarily follow. Further than this, the very purpo.se of this act was and is1 to make the industries of the state bear a portion, at least, of the hazards of industrial accidents; and to provide in the hour of need for certain ones who were dependent upon the workman who should lose his life; and it is plain that it was not intended that a distant relative of a deceased employé, there being no other nearer of kin, though he might possess great wealth, could come in as a beneficiary, and claim the benefits of this act, and even to the exclusion of the creditors of deceased, for only, as provided, in the event there appears no beneficiary, can the creditors participate. We cannot come to such a conclusion, but would rather attribute to the Legislature the intent to provide for certain ones who would reasonably need assistance, and, if there be none, then to turn the current of compensation to extinguish' the debts of the deceased.

It is our opinion that the language used in the latter part of article 5246kk, “provided, that the compensation herein provided for shall be distributed according to the law providing for the distribution of other property of deceased,” and which has caused some litigation, was intended that the statute of descent and distribution should merely be the basis for apportionment between the beneficiaries otherwise determined.

In looking to the broad scope and purpose of the act, in order to reach the intent of the Legislature, we feel that it would be more reasonable to hold that the articles of the statute, which specifically allow compensation to those/ who are deprived of their common-law right of action, should control the language used in article 5246kk, quoted above, which merely was intended to govern the mattei- of apportionment, and, in the apparent conflict, to adopt the most reasonable construction.

From what we have said, it is apparent that this court is of the opinion that the trial court’s judgment is correct, and therefore it will be affirmed.

The foregoing opinion was prepared by Judge A. E. DAVIS, late Associate Justice’of this court, just before his death, and the verbiage employed is entirely his own, but the opinion was not filed prior to his death. The present members of the court concur in the result reached by their lamented Brother, and the judgment of the trial court is in all things' affirmed.
      <S=jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    TEXAS & P. RY. CO. v. MERCER.
    (No. 695.)
    (Court of Civil Appeals of Texas. El Paso.
    May 10, 1917.)
    1.'Removal of Causes <&wkey;2 — Railroads — Action foe Injuries — Statute.
    Under Act Cong. Jan. 28, 1915, c. 22, § 5, 38 Stat. 804 (U. S. Comp. St. 1916, § 1233a), providing that no court of the United Slates shall have jurisdiction of any action or suit by or against any railroad company upon the ground that it was incorporated under an 'act of Congress, a passenger’s suit for injuries against a railroad incorporated by act of Congress was not removable from the state to the federal court on the ground that it involved a question of law arising under a federal statute, although the cause of action arose prior to enactment of such statute but the action was not brought until thereafter.
    [Ed. Note. — Por other cases, see Removal of Causes, Cent. Dig. §§ 2, 3.]
    2. Trial <&wkey;2G0(2) — Instructions—Duplication.
    It is not error to refuse to give a special charge covering substantially the same issue embraced in another special charge, which was ■given.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. § 652.]
    3. Damages <&wkey;159(2) — Personal Injuries— Loss oe Time — Pleading—Sueeiciency.
    Where passenger alleged that when injured he was a stout, hale, and healthy -man of 40 years of age, free from physical infirmity and sickness of any kind whatsoever, and that he had and enjoyed an earning capacity of $3,000 per year, and that said injuries “have wholly incapacitated him from any and all kinds of physical labor, and that said injuries have become and are permanent in their nature, and that his nervous system has been greatly impaired by reason of said shock, and that he is and will continue to be a physical, as well as nervous, wreck as a result thereof, his pleading was sufficient, in the absence of special exception on the specific ground as an allegation of loss of time, to support recovery therefor, where the evidence disclosed the loss of time.
    [Ed. Note. — Por other cases, see Damages, Cent. Dig. §§ 430 — 135, 437, 438, 440-444.]
    4. Damages ij&wkey;173(l) — Loss oe Time and Earning Capacity — Evidence — Admissibility.
    In passenger’s action for injuries, where he alleged loss of time and avei-age earning capacity of $3,000 per year and defendant on cross-examination showed that he had accumulated no property, plaintiff’s testimony that after his living expenses he had given every dollar to his family was admissible.
    [Ed. Note. — Por other cases, see Damages, Cent. Dig. §§ 490 — 492, 501.]
    5. Evidence t&wkey;553(4) — Expert Testimony-Admissibility.
    Expert testimony as to permanency of injuries to a passenger, predicated upon hypothetical facts the presence of all of which was not shown by the record, was inadmissible.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. § 2373.]
    6. Witnesses <&wkey;374(l) — Impeachment.
    Where a witness had testified as to material facts in a passenger’s action for injuries, it was error to refuse testimony of such witness that the plaintiff owed and had owed him over $2,000 for eight years, since such evidence tended to show the interest of the witness.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. § 1201.]
    Appeal from District Court, Eastland County; Thos. L. Blanton, Judge.
    Action by J. T. Mercer against the Texas & Pacific Railway Company. Judgment for plaintiff and defendant appeals.
    Reversed and remanded.
    Ward Bankhead and H. C. Shropshire, both of Weatherford, and Scott & Brelsford, of Eastland, for appellant. D. W. Odell, of Pt. Worth, and J. R. Stubblefield, of East-land, for appellee.
   WALTHALL, J.

J. T. Mercer, appellee, brought this suit in the district court of Eastland county against the Texas & Pacific Railway Company to recover damages for personal injuries alleged to have been sustained by him while a passenger on one of appellant’s passenger trains, at or near Cisco, Eastland county, Tex. Appellee alleged that said train was negligently caused to collide with another of appellant’s trains while both trains were on the main line; that said collision occurred near 2:30 o’clock on the morning of October 15, 1914, and while appel-lee was lying asleep in a lower berth of a Pullman car attached to the train, and that by reason of the collision appellee was thrown against the wall of the berth, his head, neck, and shoulders jammed against the walls and sides of said berth, causing injuries of which he complained. In due time áppellant filed in said court its petition and bond for removal of said cause to the District Court of the United States for .the Northern District of Texas, and, the court having refused to remove said case, appellee filed' its answer, consisting of general exception and general denial. A trial before a jury resulted in a verdict for appellee.

Appellant’s first assignment questions the correctness of the court’s ruling on the petition and bond for removal to the federal • court. Appellant’s verified petition alleged that the Texas & Pacific Railway Company was, at the time the suit was filed against it, and at the time of its petition for removal, a corporation duly organized and existing under and by virtue of the laws of the United states, to wit: “An act to incorporate the Texas & Pacific Railroad Company and to aid in the construction of its road, and for other purposes,” and acts amendatory thereof, the latest of which was June 22, 1874, unless possibly the act entitled “An ‘act to codify, revise and amend the laws relating to the judiciary,” designated as the Judicial Code, approved March 3, 1911, would have application thereto, and, among other things, changing its name to the Texas & Pacific Railway Company, and pleaded its several rights and privileges under said acts of the Congress of the United States, and that the amount sued for by appellee was within the, jurisdiction of the federal court.

Appellant refers us to a number of cases antedating the passage of section 5 of the act of Congress, enacted January 28, 1915, chapter 22, 38 Stat. 894, in which section it is provided that:

“No court of the United States shall have jurisdiction of any action or suit by or against any railroad company upon the ground that said railroad company was incorporated under an act of Congress.”

This suit was filed in the district court of Eastland county, Tex., on April 26, 1916; the citation was issued and served and made returnable to said court on the first Monday in July, 1915; appellant’s petition and bond for removal was filed and approved by the court on the 5th day of July, 1915.

There was no error in the court’s refusal to grant the petition for removal. We need not extensively discuss the issue presented in the assignment, but will refer to the case of Texas & Pacific Railway Co. v. Sherer, 183 S. W. 404, as expressing our views on tire construction and application of the federal law above quoted. We think the language of the act above quoted clearly inhibits removal of the cause, and destroys the jurisdiction the federal court formerly exercised, and the right of removal to said court in any action oí suit by or against any railroad company solely on the ground that said railroad company was incorporated under an act of Congress. While the cause of action upon which the suit is based occurred prior to the enactment of the federal statute, the suit was filed thereafter, and the right of removal was sought after the federal act became a law and was in force, and the right of removal no Jonger existed. The assignment is overruled.

The court, at appellant's request, had substantially charged upon the same issue as is embraced in its special charge No. 5, and it was not error to refuse to give the second special charge covering substantially the same thing. The second assignment, complaining of the court’s refusal to give the special charge requested, is overruled.

Appellee alleged that:

“At the time of receiving his injuries he was a stout, hale, and healthy man of 40 years of age, free from physical infirmity and sickness of any kind whatsoever, and that he had and enjoyed an earning capacity of $3,000 per year.”

After minutely describing his injuries, he alleged that said injuries—

“have wholly incapacitated him from any and all kinds of physical labor, and tjiat said injuries have become and are permanent in ^ their nature, that his nervous system has been greatly impaired by reason of said shock, and that he is, and will continue to be a physical, as well as nervous, wreck as a result thereof.”

There was no statement in the petition as to appellee’s occupation, trade, or profession or the character of his business or means or manner of earning money, and no other alie* gation seeking to recover or remotely referring to damages for loss of time. The court charged the jury as follows:

“Then in such events, you would find for the plaintiff, and assess his damages, if any, at such sum of money if paid now as would reasonably and fairly compensate the plaintiff for physical pain, if any, suffered by him, and the loss of time, if any, up to the date of this trial.”

The case was submitted to the jury on the general issue and a verdict was returned in favor of appellee for $4,000.

The third error assigned is to the portion of the charge above quoted, authorizing the jury to consider as an element of damage “the loss of time.” Appellant’s contention is that, there being no allegation in the petition seeking to recover damages for loss of time up to the trial, it was error for the court, under the facts in the case, to submit loss of time as an element of damage to be considered by the jury. It will be seen from the portion of the charge quoted that the court submitted for the consideration of the jury as an element of special damage the loss of time from the time of the accident to the time of the trial. Such has been held to be error unless a proper basis for such special damage finds support both in the pleading and proof. G., C. & S. F. Ry. Co., v. Sparger, 11 Tex. Civ. App. 82, 32 S. W. 49. However, when alleged and proved, the rule allowing compensation for loss of time as an element of damage in a personal injury case is universal. The proof shows that at the time of the accident appellee was 40 years of age, and had earned during a series of the next preceding 8 or 10 years not less than $2i,000 any 1 year, and specifying the amounts earned and the business engaged in during the different years. Appellee further testified: ,

“My average earning capacity for the last 10 years has been about $3,000 per year. Since this injury was received, I have not earned a penny. I am not able to earn anything in my present condition [his condition being fully shown].”

The question presented is: Does the pleading of the appellee tender the issue of the item and value of lost time? A majority of the court have concluded that it does, in the absence of a special exception requiring a more specific statement as to lost time. The third assignment must be overruled.

We need not discuss, but are also of the opinion that it was not error to admit, the testimony of appellee that “after my living expenses, I have given every dollar that I have made to the members of my family,” as complained of in the fourth assignment. The evidence is not objectionable in view of the fact that appellant, on cross-examination, drew out from appellee the fact that he had not accumulated property, and the evidence complained of was in reply thereto.

The fifth and sixth assignments are sustained. 'The record does not show the presence of all the hypothetical facts upon which Dr. Campbell was permitted to say that if Mercer has made little or no improvement since he last examined him some months since, and has contracted no new or independent ailment, his injury is permanent. The court submitted as an element of damages to be estimated by the jury, Mercer’s future earning capacity during such time as such diminution shall continue. The evidence was upon a sharply contested issue in the case, and the case was submitted upon the general issue. Hicks v. Railway, 71 S. W. 322; Texas & Pacific Ry. Co. v. Cauble, 168 S. W. 369.

It was error to refuse to admit Martin’s testimony, complained of in the sixtli assignment, that:

“Plaintiffs total indebtedness to us is, at this time, $2,182.75, with interest for two years at 6 per cent. He has been owing the principal part of this amount since 1908.”

Martin had testified by deposition taken by appellee to Mercer’s general good health pri- or to the accident in 1914, and to his bad physical condition since the accident; that witness, prior to the accident, had been connected in a business way with Mercer for some five years. The excluded evidence was an answer to a cross-interrogatory propounded by appellant. The evidence would tend, at least, to show Martin’s interest in the matter of Mercer’s recovery. We believe that the reasoning of the court in Railway v. Coffman, 56 Tex. Civ. App. 472, 121 S. W. 218, and the cases there referred to, would apply to the question presented in this assignment.

As we have concluded that, for reasons given, the case must be reversed and remanded, we think we need not discuss assignments 7 and 8.

Reversed and remanded.
      cfc^For other oases see same topic and KEY-NUMBEK in all Key-Numbered Digests and Indexes

       Forother oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    J. I. CASE THRESHING MACH. CO. v. LOCHRIDGE & DENNY.
    (No. 1163.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 2, 1917.)
    1. Justices of the Peace <&wkey;206(l) — Cer-tiorari — Motion to Dismiss — Statute.
    Motion to dismiss certiorari directed to justice of the peace, under Rev. St. art. 754, allowing such dismissal for “want of sufficient cause appearing in the affidavit or for want of sufficient bond,” must be confined to the statutory grounds.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 802-806.]
    2. Justices oe the Peace &wkey;>206(l) — Cer-tiorari — Motion to Dismiss — Con'clusiveness of Record.
    Neither petition for dismissal of certiorari directed to justice of the peace nor court’s order as to time when writ was ordered can be contradicted by affidavit or oral evidence.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 802-806.}
    3. Justices of the Peace <&wkey;>208(2) — Cer-TIOEABI — COPABTIES — PETITION—JURISDICTION.
    Where a justice of the peace sent up the record on certiorari to county court on one defendant’s petition, where it was filed and writ properly issued thereon, reciting that both defendants had filed petitions, the court acquired jurisdiction of the entire cause, in view of Rev. St. art. 760, providing for trial de novo in such case, although the other defendant failed to file petition within time allowed.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 808-811.]
    4. Justices of the Peace &wkey;>206(l) — Cer-tiorabi — Nonsuit as to One Defendant— Effect.
    Where plaintiff took a nonsuit against one defendant, who had removed case on certiorari, this did not affect the writ as to the other defendant, since the court thereby acquired jurisdiction of the entire cause.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 802-800.]
    5. Sales <&wkey;89 — Action by Buyee — Substituted Conteac.t.
    Where an agent represented to buyers the amount of freight charges if four engines ordered were shipped together, the order being subject to the manufacturers’ acceptance, and they shipped only two engines, which plaintiffs accepted, plaintiffs could not recover excess freight paid, since by accepting two engines, instead of four ordered, with full knowledge of facts and freight rates, they entered into a new contract with the manufacturers, to which the agent’s representations did not relate.
    [Ed. Note. — For other eases, see Sales, Cent. Dig. §§ 251, 252, 259.]
    6. Sales <&wkey;170 — Action by Buyee — Delay —Acceptance of Goods.
    Where a buyer accepted engines shipped by defendant, but not in accordance with original agreement, by paying draft attached to bill of lading, the railway company, and not defendant, was liable for delay occurring thereafter, since, until plaintiff accepted goods, there was no contract to deliver at a particular time or place, and after acceptance defendant was not liable for the railway company’s delay.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 424.] *
    7. Sales <&wkey;178(l} — Symbolical Delivery-Payment of.Draft Attached to Bill of Lading.
    The acceptance and payment of a draft attached to a bill of lading is a symbolical acceptance of the goods, in absence of contract provisions.
    [Ed. Note. — For’ other cases, see Sales, Cent. Dig. § 451.]
    Error from Wichita County Court; Harvey Harris, Judge.
    Action by Lochridge & Denny against the J. I. Case Threshing Machine Company and another. Judgment for plaintiffs in justice court, and defendant named removed the case on certiorari to county court, where plaintiff had judgment, and said defendant brings error.
    Reversed, and judgment rendered for defendant.
    Spence & Haven and W. J. Rutledge, Jr., all of Dallas, for plaintiff in error. J. M. Blankenship, of Wichita Falls, for defendants in error.
   HUFF, C. J.

The first question demanding attention is -defendant in error’s cross-assignment, to the effect that the county court was in error in overruling their motion to dismiss the writ of certiorari granted upon plaintiff in error’s petition, by .which the case was brought into the county court of Wichita county from the justice court of precinct'No. 2 of that county. The defendants in error instituted suit against the plaintiff in error and the Missouri, Kansas & Texas Railway Company in the justice court for damages. In that court a joint judgment was rendered in favor of defendants in error against the J. I. Case Company and the Missouri, Kansas & Texas Railway Company of Texas for $59, and against the J. I. Case Company for $50.15. That judgment was rendered on the 20th day of September, 1915, by default. C. E. Schaff, as receiver of the Missouri, Kansas & Texas Railway Company presented his petition for writ of certiorari to the county judge of Wichita county. This petition was sworn to on the 15th day of December, 1915, and has indorsed thereon the order of the county judge to issue the writ upon the execution of a bond in the sum of $100. The bond was executed on the 15th of December, 1915, ,and it, together with the petition and the order of the judge, were marked “Filed” on that date. The J. I. Case Company presented its petition for writ of certiorari to the judge. This petition was sworn to on the 17th day of December, 1915. It has indorsed thereon the order of the judge to issue the writ, which order is dated December 18, 1915. The bond for $250 was executed in accordance with the order. The petition and bond were filed on the ISth day of December, 1915, and the order dated of that date, as shown by the record. The clerk on December 15, 1915, issued the writ prayed for to the justice of the peace, reciting that Schaff, as receiver of the railroad, and J. I. Case Company, had obtained an order from the county judge for a writ of certiorari to remove the case to the county court. On the 28th day of December, 1915, the clerk issued a writ of certiorari, reciting that the J. I. Case Company had obtained an order for the writ. As shown by the record, on July 8, 1916, the defendants in error filed a motion to dismiss the certiorari on alleged defects, in Schaff’s petition, and on the 11th day of February, 1916, they filed a motion to dismiss the certiorari as to the J. I. Case Company, on the alleged ground that'it was filed more than 90 days after judgment in the justice court. We have been unable to find any order by the court evidencing his action on either of the motions, but on February 11, 1916, final judgment was entered in this cause, reciting that all parties in person, naming them, and by their attorneys, appeared and announced ready for trial. “After announcing ready for trial, plaintiffs made motion to nonsuit against the Missouri, Kansas & Texas Railway Company of Texas and C. E. Schaff, receiver, and said motion, not being contested by J. I. Case Threshing Machine Company, was granted.” And the judgment then recites the issues between the latter company and the plaintiff therein were tried before the court. In the statement of facts we find the purported agreement to the effect that the 90 days' from the rendition of final judgment in the justice court fell on the 18th day of December, 1915; that on that day the petition was not actually presented by the attorney for the plaintiff in error to the county judge, he having left the town and could not be reached that day, but the petition for the writ and bond was filed with the clerk of the court, and upon the judge’s return home some two days after he signed the order granting the writ.

It is urged under article 747, R. C. S., the court could not grant the writ at that, time and he should have dismissed the petition of plaintiff in error. That article provides the writ shall not be issued after 90 days from final judgment of the justice of the peace. Article 754 provides the motion to dismiss at the first term of the court to which the writ is returnable may be presented “for want of sufficient cause appearing in the affidavit, or for want of sufficient bond.” The motion to dismiss the writ of certiorari, as held in Webb v. Texas Christian University, 48 Tex. Civ. App. 264, 107 S. W. 86, should be confined to the statutory grounds. The article “seems to imply that a motion should not prevail predicated upon any other defect in the proceedings than those named in the statute. * * * We are inclined to the opinion these are the only causes for which a party may have to dismiss the certiorari proceedings. The statute has heretofore received the same construction by the courts. Peck v. Reed, 3 Willson, Civ. Cas. Ct. App. § 265; 2 W. & W. § 108.”

It has been held repeated!y that on a motion to dismiss the proceedings by certiorari that the petition must be looked to, and cannot be impeached by affidavit or evidence contradicting the statements therein. Von Koehring v. Schneider, 24 Tex. Civ. App. 469, 60 S. W. 277. For a stronger reason we do not think the order of the court as to the time when the writ was ordered should be permitted to be contradicted by oral evidence.

Again, we do not think this supposed defect should prevail, for the reason that the justice of the peace sent up the record, and it was filed in the county court upon the receiver’s petition, and the order and writ issued thereon, which were filed and issued within the statutory time; the writ thereon reciting that both parties defendant in that court had filed their petition. This appears to us to have given the court jurisdiction of the entire cause. After the case was so carried up by the receiver, the cause should be tried, and was required by the statute to be tried, de novo. Article 760; Miller v. Holtz, 23 Tex. 138.

When the defendant in error, in the county court, took a nonsuit as to the railroad and its receivers, this did not have the effect of a judgment that the writ of certiorari was wrongfully granted. ' The writ still retained its force, and the judgment of dismissal in the county court did not revive the judgment of the justice court, but in effect was an admission that the judgment before the magistrate was erroneous as to the railway and the receiver. Defendants in error were therefore required to establish their claim in the county court against plaintiff in error, and the county court, haying properly granted the writ as to the receiver, obtained jurisdiction to render the judgment which should be rendered against the proper parties. In short, the petition of the receiver, and the order of the court thereon, brought up the entire controversy for adjudication de novo. The county court, therefore, had jurisdiction, and its action on the defendants in error’s motion becomes harmless, even if erroneous, which it was not, as we understand the law. It will also be noted that the motion to dismiss the receiver’s petition was not filed until in July after the final judgment in the county court in February.

The defendants in error, L. M. Dochridge and L. O. Denny, sued to recover damages from the J. I. Case Threshing Machine Company for failure to ship two traction engines under an alleged contract, and that the contract or order was fraudulently procured by one Preston, the agent of plaintiff in error, upon the representation that the freight on each traction would be $45, when in fact it was $70.14, an excess of $25.14, .for each engine shipped; that because of the failure to deliver the engine in the time contracted defendants in error suffered damages, on account of their inability to plow their land and for loss of time and wages paid for help for two days.. The case was tried before the court without a jury. Judgment was rendered for Dochridge for $25.14 on overcharge in freight, $23 for damages to land, and $12 for loss of time and the hire to two extra men; and judgment for Denny, $25.14 excess in freight, $4 loss of one day’s time for himself and an extra man, and $23 for damages to land.

The facts in this case show that one Preston, as agent for plaintiff company, took the joint order of D. M. Dochridge, D. C. Denny, and J. T. and W. W. Overby, on July 8, 1915, for four 10-30 horse power gas engines, agreeing to pay $2,880 for the four engines, and to receive the same on cars on arrival and pay the freight and charges thereon. The order was sent in, signed by the four named parties, and addressed to the plaintiff company. It was stipulated in the order that it was taken subject to approval, and to be sent to the company for acceptance or rejection. The company was directed thereby to ship or deliver at once, or as soon thereafter as it could furnish for transportation or delivery. The plaintiff company, upon receipt of the order notified its dealer at Iowa Park, Tanner, that it did not have four such engines in stock, but shipped to itself at Wichita Falls two engines, and it drew a draft for $1,440, -with the bill of lading attached, which was forwarded to a bank at Iowa Park. Tanner notified the parties executing the orders that the four engines could not be had at that time, as plaintiff did not have them in stock, but that two had been shipped, and the others could be had later. Dochridge and Denny saw the Overbys, and the parties agreed among themselves that Dochridge and Denny should take the two engines so shipped, which they did.

Dochridge testified that Preston told him and Denny, before the order was taken, that if they would get two other men to buy gas tractors, so that all four could be loaded into one car, the freight would be $45 for each of them, and that they could get a cheaper freight rate that way than if less than four engines were shipped. Denny’s testimony is ''substantially the same, and in fact this is unconti’overted. The bank held the draft and bill of lading. In order to got the engine, Dochridge induced Tanner to go with him to Wichita Falls, and took the draft and bill of. lading with him, the bank trusting him therewith, but with the instruction not to deliver them until the draft for $1,440 was paid. After arriving at Wichita Falls, Dochridge offered to pay the freight on both engines, $70.14 each, and to pay for one engine $720 cash, the price of the engine. Tanner refused to accept this, but required the money for both engines, and that the draft be paid before he would deliver the bill of lading. On the next day Dochridge procured Denny to go with him and they then paid the draft, each paying for one engine, and each the freight charges on one engine, and, as we understand, the bill of lading was then delivered to them.

Under these facts, was the defendant in error entitled to recover the difference between $45 and $70.14 each on each engine? Under their written order for the four they agreed to pay the freight charges. The promise of Preston was not a guaranty that the charges should not exceed $45, but simply a statement that, if four were shipped in one car, the freight would be less than if there should not be a carload, and would be for each $45. There is no evidence that this was a misrepresentation or false. So far as the record shows, it was true. The only ground of complaint that we can perceive defendants could make is that the plaintiff did not ship four engines as ordered; but this cannot avail defendants, for the reason that in making the order they expressly stated that the order was subject to plaintiff’s approval, acceptance, or rejection. Plaintiff did not approve or accept the order, but rejected it as made. There was, therefore, no contract; -the parties did not reach an agreement. Summers v. Mills, 21 Tex. 78; Miller v. Dallas, etc., 104 Tex. 57-60, 133 S. W. 866; Whitaker v. Zeihime, 61 S. W. 499; Connell v. Nickey, 167 S. W. 313-320 (6). When the plaintiff shipped only two engines, consigned to itself, with bill of lading attached to the draft, the defendants were under no obligations to take them; but, after receiving notice of that fact, tbey agreed with the other parties to the order that they would take the two engines, knowing then the freight charges exceeded $46. They paid the price of the two engines to the bank and the freight charges to the railroad. In doing this they were not deceived. They were not required to take the engines, and when they did they made a new contract, based upon entirely new .conditions from those stated by Preston when they gave the order. His statement could not have induced them to make the last contract to take the two, instead of four, engines. We are of the opinion that defendants were not entitled to recover the difference in the freight.

It is also contended Preston represented that the engines would arrive in 10 days,' and the trial court finds it was 21 days before they actually did arrive. It was testified by the defendants that there were green weeds and grass on their land, and that they desired to turn under this vegetation, which would have benefited the land to the value of $1 per acre; that the land was in good condition for plowing when the order was given, but after the engines came the ground became dry and hard, and only about six days’ plowing could be had. Under the order as above set out, and the nonacceptance thereof, there could be no recovery up to the time of the execution of the new contract as above mentioned. It appears the trial court allowed for two days which defendants could have plowed and turned the vegetation upon the number of acres which he finds they could have plowed in the two days. After the engines arrived, and while at Wichita Palls, the railroad, through mistake, took the ear in which the engines were loaded, and placed it in a train, and carried it to another point, and kept it out two days. The facts show that after the car came, and the arrangements were made by the defendants to take the engines, Lochridge and Tanner went to Wichita Palls to get the engines, which were then on board the car at that place, ready for unloading. Lochridge at that time refused to pay for but one engine, and Tanner, under direction of the bank, refused to deliver the bill of lading until the draft was paid. The next day Lochridge and Denny returned and paid the draft, procured the bill of lading, and paid the freight, but when they went to get the car for unloading they found it was gone, as above stated.

Under this last contract there could be no contention that there was an agreement to deliver the two engines at that particular time, when defendants paid for the engines by paying the draft, and procured the bill of lading, they were then the owners of the engines. They accepted them on board the cars, and as such they became the consignees. Whatever damage resulted to the property of defendants by the negligence of the railroad belonged to the defendants, and the railroad alone was responsible to them therefor. There was no breach of contract to deliver at that time by plaintiff. The defendants then accepted the engines on board the car; there was no contract-to deliver the engines anywhere, except on the car. The engines were bought and paid for on the car, and the bill of lading effectually transferred the title. In fact, in the original order defendants agreed to receive the engines on cars on arrival. This they did when they received the bill of lading and paid the draft under the new arrangement. The plaintiff was not responsible for the conduct of the railroad, and, the title being in the defendants, they alone could sue the road, while the plaintiff could not, after the defendants became the consignee of the property.

The bill of lading, when assigned or transferred by the consignee, with the intention to pass the title to the goods, was a symbolical delivery of the goods themselves, wherever they may have been in transit. Railway Co. v. Heidenheimer, 82 Tex. 195, 17 S. W. 608, 27 Am. St. Rep. 861. The goods .were shipped upon a bill of lading with draft attached, and when the defendants paid the draft and took the bill of lading they became the purchasers thereof, and the sale was executed. The duty was then on them to see that there was no delay in unloading the car. Landa v. Lattin, 19 Tex. Civ. App. 246, 46 S. W. 48; National Bank v. Citizens’ Bank, 41 Tex. Civ. App. 535, 93 S. W. 209; Chandler v. Fulton, 10 Tex. 2, 20, 60 Am. Dec. 188. The assignment of a straight bill of lading may be verbally made, as may any other chose in action. Cleveland v. Heidenheimer, 44 S. W. 551. The contract of sale having been consummated and delivery • effected when the draft was paid and bill of lading delivered for the engines, and these acts being concurrent, there was no breach by plaintiff by reason of any delay, and hence no damages were occasioned by it. The delay having occurred after the delivery by the railroad, it alone was responsible.

We believe, under the facts in this ease, the trial court was in error in rendering judgment for the defendants for any sum, and we therefore reverse and render the judgment of the trial court, ordering that the defendants take nothing by reason of their suit.

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


author: GRAVES, J.

text:
    SANDERS v. GEORGE M. HESTER COTTON CO.
    (No. 7405.)
    (Court of Civil Appeals of Texas. Galveston.
    April 27, 1917.
    Rehearing Denied May 17, 1917.)
    1. Appeal and Error &wkey;>551 — Statement oe Facts — Bill op Exceptions.
    Where no statement of facts has been filed, the Court of Civil Appeals may examine the bill of exceptions to ascertain the facts upon -which the court below- decided the question of venue.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. § 2157.]
    2. Venue <&wkey;7 — Action on Contract.
    Where plaintiff advanced money upon cotton by accepting a draft attached to railroad bills of lading under a telephone agreement that defendant shippers would protect such advance by margins if cotton prices decreased, an action for the difference between the advance and the cotton’s selling price after defendants failed to margin, is not on a written contract performable in plaintiff’s county, within Rev. St. art. 1830, subd. 5, regulating venue in such cases, although there was a custom, independent of the telephone understanding, authorizing sales where shippers failed to margin on a declining market.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 13-16.]
    Appeal from District Court, Harris County ; Henry J. Dannenbaum, Judge.
    Action by J. W. Sanders against the George M. Hester Cotton Company. Prom a judgment sustaining defendant’s plea of privilege transferring a case, plaintiff appeals.
    Affirmed.
    R. W. Franklin, of Houston, for appellant. A. B. Wilson, Robt. D. C'ole, and Jno. F. Cole, all of Houston, for appellee.
   GRAVES, J.

This appeal is from a judgment sustaining appellees’ plea of privilege, and transferring the case to the district court of Victoria county. No statement of facts has been filed in this court, but the facts relied upon to sustain the venue in Harris county, where the suit was filed, lhay be thus summarized from the conclusions of fact filed by the court, and the bills of exception, which may be looked to for that purpose. Reed v. Robertson, 106 Tex. 56, 156 S. W. 196; Drummond v. Bank, 152 S. W. 740; Garrison v. Richards, 107 S. W. 861.

Appellant, who resided in Harris county, filed the suit in the district court of that county against appellees, who had never resided there,' but at all material times had been and were residents of Victoria county; no one of appellees had ever signed any document or paper which provided specifically. that the indebtedness sued on should be paid in Harris county, Tex., but that they had drawn the two drafts hereinafter set forth and attached thereto the bills of lading hereinafter described, and deposited them for collection with the Victoria National Bank.

Plaintiff introduced in evidence St. Louis, Brownsville & Mexico Railway Company bill of lading No. D-57, dated November 3, 1913, Bloomington, Tex., consigned to the o.rder of G. M. Hester Cotton Company at Houston, Tex., “notify Sanders & Company, Houston, Texas,” covering 122 bales of cotton marked “OXP,” which bill of lading was indorsed, “G. M. Hester Cotton Company, by G. M. Hester.” Also bill of lading for 33 bales of cotton, St. Louis, Brownsville & Mexico Railway Company No. D-45, dated Victoria, Tex., November 12, 1913, consigned to the Victoria National Bank at Houston, Tex., “notify Sanders’ & Company, Houston, Texas,” said cotton marked “LXT,” and said bill of lading indorsed, “Victoria National Bank.”

Plaintiff also introduced in evidence two drafts as follows:

“Customer’s Draft. Bloomington, Texas, November 3, 1913. B/L No. D-57. B/L for 122 bales attached, marked ‘OXP.’ First State Bank of Bloomington: Pay to the order of First State Bank of Bloomington, Texas, $6,408.08 sixty-four hundred eight and 8/100 dollars, value received, and charge same to account of Sanders & Company, Houston, Texas.
“[Signed] G. M. Plester Cotton Co., P. G.”
“Customer’s Draft. Bloomington, Texas, November 10, 1913. B/L No. - for 33 bales At’d. First State Bank of Bloomington: Pay to the order of First State Bank of Bloomington, Texas, $1,948.32 nineteen hundred and forty-eight and 32/100 dollars, value received, and charge same to account of ’Sanders & Company.
“[Signed] G. M. Plester Cotton Co., G.”

Plaintiff also introduced in evidence the following letter:

“July 22, 1913.
“G. M. Hester, Bloomington, Texas — Dear Sirs: We are in receipt of your favor of the. 21st, and in reply beg to hand you herewith our private code together with difference sheet, and in telegraphing you, you will understand our price to be basis middling, landed Houston, weight and grade guaranteed by you. In sending our limits we will only telegraph you one word, lor instance if we send the word ‘Threatening’ you will understand our offer to be 12,‡ basis middling, landed Houston, or if we send. ‘Throttle’ you will understand same to be 12]4 basis middling, landed Houston. Any cotton you buy to bo reported to us by telegraph and you will ship cotton to us at Houston, inserting in the B/L ‘Through Flat’ and draw on us with B/L attached for approximate value of the cotton, and when same arrives in Houston we will have it classed and weighed and send you account sales, together with our check for any balance due you, or if the shipment shows a loss wo will expect your check by return mail. Pleaso let us know when you expect the crop to begin to move, and when you desire us to send you limits.
“Yours truly, Sanders & Company.”

In November, 1913, the defendant, Hester, called the plaintiff by phone, and stated that the company had two lots of cotton which it desired to sell Sanders & Co., but not at the price named by their limits of that date. That he agreed that the said Hester Cotton Company should ship said cotton to him, and should draw on plaintiff as an advancement on the basis of 10 cents per pound, basis middling, landed Houston, and that Sanders & Co. should use the cotton, but that the price of the same should not be fixed until the defendant company decided to s@U it, either on plaintiff’s limits or the market price at Houston, but that the shipment, except for the fixing of the price, should be handled in the same manner ’ as ordinary ■sales provided for in said letter, but that in the event said cotton went down, the defendants were to margin the same, so as to keep the value of said cotton, together with the margin put up greater than the sum of money drawn for, and the freight; otherwise the plaintiff should sell it. The defendants did ship their cotton to plaintiff, and drew the above drafts and attached thereto bills of lading covering the same, which drafts and bills of lading were paid in Houston, Harris county, Tex., by the plaintiff. Said cotton was classed and weighed in Houston, and the freight thereon was paid in Houston.

The market value of the above-described cotton declined, and the defendants failed to keep up the margins on the same, and after repeated demands for them to do so, the said cotton was sold by the plaintiff for 12% cents per pound, basis middling, landed Houston, and the price received therefor was $2,370.27 less than the amount for which the defendants had drawn after paying the freight, and defendants owed plaintiffs said $2,370.27. Womack, Evans, and Darrow, all experienced and qualified cotton men, testified that under the custom in vogue in Houston and throughout Texas in 1913,. where under these conditions a shipper failed or declined to margin the cotton, the party advancing the money had the right to sell the cotton.

It is the contention of appellant that these transactions and this course of dealings, aided by the prevailing customs peculiar to the cotton business, created and constituted a written contract performable in Harris county within the meaning of Revised Statutes, art. 1830, subd. 5. But we áre unable to agree with him. It will be seen from this evidence that the real genesis of his cause of action as sued upon was a purely verbal agreement, to wit, the telephone conversation had between him and appellee in November, 1913, wherein the agreement was made, detailed in the above-recited evidence, to ship the two lots of cotton, one for 122 bales on November 3d, and the other for 33 bales on November 12th, out of which two shipments alone the indebtedness and cause of action sued on arose. It will be further noted that not even this verbal agreement made over the long-distance telephone, to margin the cotton in case of a decline below the amount that had been received on the drafts, specified that this was to be done in Houston, or Harris county.

It is not alleged, nor does it otherwise appear, that the cotton, which was actually received by appellant under these two bills of lading, was not at that time worth upon the market the full amount paid for it upon the drafts. By this verbal agreement under which it was so shipped to him, he was to use the cotton, and it was to be handled in the same manner as an ordinary sale to him, except that the price alone was not to be fixed until appellees later decided to sell it, unless before that time its value fell below the amount they had been so paid for it, in which latter contingency they were to margin it. This fall occurred, whereupon appellant called on them to put up the margin, which they failed to do, and he then, December. I5th, closed out the cotton at its reasonable market value on that date, and sued appellees, upon their violated agreement to put up the margin, for the $2,370.27 deficit thus left between the amount he thereby realized upon his final disposition of this particular cotton and what he had formerly paid appellees for it.

It thus affirmatively appears that the contract or agreement out of which the liability grew was wholly verbal, being a conversation over the telephone, and that no cause of action in appellant arose until the price of cotton had so fallen and appellees had failed to meet his demand that they then margin it, and had thereby breached their implied contract to pay the resulting loss.. It was not a suit upon the drafts or bills of lading, which had been used some time before this indebtedness arose merely as the means of procuring the advance payments on the cotton, and of assuring its safe delivery, both of which purposes had already been fully accomplished; nor even was the suit upon the letter quoted; and if it had been, its requirements as to payment could have been fully met by simply mailing a check for any deficit from Bloomington in Victoria county, the home of appellee Cotton Company.

Neither do appellant’s .pleadings make any different case than that thus shown from the evidence, the entire allegations, except for matter of inducement, etc., being reflected in this statement of the facts shown. It is true, as above stated, that appellant invokes the prevailing customs in the conduct of the cotton business at Houston in aid of his contention; but we do not think these general customs may be thus ingrafted upon a purely verbal agreement, made over the long-distance telephone, for the purpose of thereby creating a contract in writing performable in a particular county, and perforce thereof haling defendant out of the county of his domicile to answer a suit upon it in a different county. And this outstanding and affirmatively shown fact that the suit here was for the breach of a purely verbal agreement, detached from and disassociated with any writings which provided for, or necessarily meant, performance in Harris county, differentiates this case upon its facts from Mangum v. Keller, 161 S. W. 19, cited and relied upon by appellant. In that case no verbal agreement by telephone or .otherwise, is shown to have superseded any preliminary correspondence or writings, and to have--constituted the sole agreement for the breach of which the suit was brought, as was the situation here.

We, therefore, agree with the learned trial judge in holding that the cause of action was not based upon any written contract or obligation performable in Harris county, and cite the following authorities as substantiating the principle applied: Lasater v. Waits, 95 Tex. 555, 68 S. W. 500; Hilliard & Bro. v. Wilson, 76 Tex. 181, 13 S. W. 25; Bigham v. Talbot, 51 Tex. 450; Burkitt & Barnes v. Berry, 143 S. W. 1187; Bomar Cot. Oil Co. v. Schubert, 145 S. W. 1193; Lindheim & Bro. v. Muschamp et al., 72 Tex. 33, 12 S. W. 125; Morrison v. Jalonick, 1 White & W. Civ. Cas. Ct. App. § 778; Cameron v. Webb, 3 Willson, Civ. Cas. Ct. App. § 417; Walthew & Sons v. Milby & Dow, 3 Willson, Civ. Cas. Ct. App. § 119; Borden & Antil v. La Tulle Merc. Co., 32 Tex. Civ. App. 477, 74 S. W. 788; Russell & Co. v. Heitmann & Co., 86 S. W. 75; McCullar Lbr. Co. v. Higginbotham, 118 S. W. 885; Birge v. Lovelady, 145 S. W. 1194; McCammant v. Webb, 147 S. W. 693; Casey v. Carr, 148 S. W. 601; Ogburn-Dalchau Lbr. Co. v. Taylor, 59 Tex. Civ. App. 442, 126 S. W. 48.

It follows that the trial court’s judgment must be affirmed; and it is so ordered.

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

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


author: KEY, C. J.

text:
    WELGE v. JENKINS.
    (No. 5681.)
    (Court of Civil Appeals of Texas. Austin.
    March 14, 1917.
    Rehearing Denied May 23, 1917.)
    1. Breach op Marriage Promise &wkey;>28 — Damages.
    ■For breach of marriage promise, damages are recoverable for plaintiff’s mortification or shame, caused by her becoming the mother of an illegitimate child through her seduction by defendant.
    [Ed. Note. — Eor other cases, see Breach of Marriage Promise, Cent. Dig. §§ 40 — 43.]
    2. Appeal and Error &wkey;>216(2) — Requested Instructions — Erroneous Requests.
    A case will not be reversed when there is no affirmative error in charges given, merely •because of an omission to state the law with more fullness arid accuracy, unless the party complaining of such omission seeks to have it supplied by a requested instruction properly framed.
    [E'd. Note. — For other cases, see Trial, Cent. Dig. § 628.]
    3. Breach oe Marriage Promise <&wkey;28 — Damages for Responsibility for Support of Illegitimate Child.
    In awarding damages for breach of marriage contract, the jury may consider the fact that because of defendant’s breach the plaintiff will be compelled to support a child of which defendant is the father; such fact being a part of the condition in which plaintiff is left by such breach.
    [Ed. Note. — For other cases, see Breach of Marriage Promise, Cent. Dig. §§ 40-43.]
    4. Breach of Marriage Promise <&wkey;7 — Contract of Marriage — Immoral Consideration.
    Where a valid marriage contract is entered into prior to sexual intercourse, and such in-1 tercourse.was not the sole consideration therefor,the marriage contract is not void on account of an immoral consideration.
    [Ed. Note. — For other eases, see Breach of Marriage Promise, Cent. Dig. § 3.]
    Appeal from District Court, Hays County; Frank S. Roberts, Judge.
    Suit by Dora Jenkins against Herman Welge. From judgment for plaintiff, defendant appeals.
    Affirmed.
    E. M. Cape, of San Marcos, and Ramsey, Black & Ramsey, of Austin, for appellant. Will G. Barber and R. E. McKie, both of San Marcos, for appellee.
   KEY, C. J.

This suit was filed by the ap-pellee, Dora Jenkins, against the appellant, Herman Welge, in the district court of Hays county on January 4, 1915. In the plaintiff’s first amended original petition filed September 30, 1915, and upon which she tried her case, she alleged that, on or about July 1, 1914, she and the defendant mutually agreed and promised to marry each other, arid that the defendant then and there agreed to marry her during the month of October, 1914. She further alleged that she truly loved the defendant, and was ready and willing at all times, after she had so promised to marry the defendant, to marry him, but that, notwithstanding the said promises, the said defendant failed to keep the same, and breached his agreement to marry her in the month of October, 1914, and over her protest insisted upon postponing the marriage until about December 1, 1914, and that it was then agreed that they should be married on or about December 1, 1914. She further averred that defendant had wholly failed and refused to comply with his said promises and agreement, and had failed and refused to marry her. Plaintiff averred, in the same connection, that after their first engagement, and during the month of July, 1914, defendant seduced her, and that by reason thereof she became pregnant, and that since the filing of her original petition a child has been born to her, of which child the ’defendant was the father. As tending to show the damages suffered by her in addition to the seduction and resulting pregnancy above averred, plaintiff set up : (a) That defendant was a man of considerable property, owning about 200 acres of land, together with a large number of cattle, and was a man of good social standing, and that a marriage with him would have been advantageous to the plaintiff; (b) that the act of the defendant in refusing to keep his promise to marry the plaintiff has caused her great mental and physical pain and great distress and humiliation ; (c) that the wrongful breach of his promise by the defendant, together with the wrongful seduction of the plaintiff, caused her great public disgrace and consequent humiliation; (d) further, that by reason of the wrongs of the defendant, plaintiff would become a social outcast, and would, all of her life, suffer great mental and physical pain and anguish, distress and humiliation, and will, in the natural course of things, be burdened with the support and care of the defendant’s illegitimate child, of which she is the mother; (e) that by reason of said breach of promise, seduction, etc., she had been deprived permanently of an opportunity to marry any one else. Plaintiff further alleged that:

“By reason of the wrongful breach of his said promises and agreements to marry her, and by reason of his seduction of her, and the consequences thereof, all as herein alleged and all under the circumstances herein alleged, she has ■been and is damaged in the true and full sum of $15,000”

—for which she filed this suit and praye'd judgment. Defendant answered as follows: First, general demurrer; second, special exceptions; and, third, general denial. The case was tried before a jury, and, the jury having returned a verdict .in favor of the plaintiff for $7,500, the court rendered judgment for that amount. Appellant thereupon file'd his original and amended motions for new trial, and said amended motion, having-been duly considered, was overruled by the court, to which the defendant excepted and gave notice of appeal, and thereafter filed his appeal bond, bills of exception, and statement of facts, and in all things duly prosecuted his appeal, and the cause is now before this court for review upon the assignments of error of appellant.

Opinion.

While appellant has presented to this court several other questions for decision, and while they have all been considered and are decided against him, this opinion will be limited to a brief discussion of two questions only, and these are:

1. In different forms and under several assignments of error, appellant contends that the trial court committed error: (1) By telling the jury in the main charge that they might look to the pleadings for the nature and particulars of the plaintiff’s demand and the defendant’s answer thereto; (2) in refusing a requested charge by which the jury would have been instructed “that under no circumstances can any damages be assessed for or on account of the support, maintenance, and education of the child, nor can any damages be assessed or considered on account of the mortification or shame of plaintiff by reason of the fact that she is the mother of an illegitimate child, and this without reference to what you may believe as to who was the father of said child”; and (3) that the court erred in not sustaining appellant’s exceptions to appellee’s petition, for the reason that the same, taken as a whole, is a suit on an alleged breach of promise to marry, a suit in the -nature of an action for seduction, and a suit in the nature of a proceeding in bastardy, whereby, in substance, damages are sought for breach of promise of marriage, for seduction, and also in effect to charge the 'defendant with the-care and support. of the plaintiff’s illegitimate child.

In Daggett v. Wallace, 75 Tex. 352, 13 S. W. 49, 16 Am. St. Rep. 908, it was held by our Supreme Court that in a suit''to recover damages for a breach of promise of marriage, a plaintiff might allege and prove that, after such promise of marriage she had been seduced by the defendant, and that fact might be considered in estimating the damages.

In Huggins v. Carey, 149 S. W. 390, the Ft. Worth Court of Civil Appeals, citing with approval Daggett v. Wallace, among other things, said:

“It cannot be fairly ascertained to what extent the plaintiff is damaged by the breach of the contract or promise without considering the condition in which she is left by the defendant’s conduct which is complained of.”

And in considering whether or not the verdict was excessive, this language was used:

“Neither by pleading nor his evidence did the appellant attempt to show that appellee prior to-his association with her was without the crowning glory of all womanhood, and by well-settled rule of law, therefore, we are required to indulge the presumption that she was of good moral character. * * * Also, as stated, appellee testified that appellant had won her love, confidence, and trust. These wer-e shattered, and ap-pellee was left loveless and penniless, with disappointed hopes, with tarnished character, and' with a nameless girl child to care for. Who-better than the jury can measure, so far as they can be measured by dollars and cents, the magnitude of the misfortune, the humiliation, the depth of despair naturally arising from such a situation and fate? We confess that we are not able to better do so, even if permitted by law.”

The overwhelming weight of authority supports the proposition that, in. cases of this kind, for the purpose of showing the extent of the injury and the amount of damages, which should be awarded, the plaintiff may allege and prove that, on account of the defendant’s promise of marriage, she yielded" to his solicitation for sexual intercourse. 2" Sedg. Dam. (9th Ed.) § 639, and authorities; there cited, and note to Wrynn v. Downey, 4 L. R. A. (N. S.) 616. In the text-book cite'd, it is said:

“Sec. 639. — Aggravation. Seduction under Promise of Marriage. Circumstances which show that the injury was particularly serious, may be shown in aggravation of damages. Thus-it may' be shown, in order to increase the damages, that the plaintiff was seduced by the defendant under promise of marriage, and that she-was delivered of a bastard child. Suph seduction must be alleged in the pleadings. It is not the mere fact of-seduction that aggravates the-damages, but seduction which results from the promise. Thus seduction before the promise of" marriage cannot be shown; nor can loss of time and medical attendance in giving birth to a child, nor. the care and maintenance of the child. Nor-can disease supervening on the intercourse be-shown. In an action for breach of promise, it was held by the Supreme Court of Massachusetts [Sherman v. Rawson, 102 Mass. 395] that, although it might be true that damages for .the-seduction, as a distinct ground of action, could not be added to the damages to which the plaintiff was entitled for the breach of the alleged promise, and those damages must be awarded solely for the suffering which resulted from the defendant’s refusal to perform his promise, yet that it would not follow that the act of seduction was not to be taken into consideration by the jury. The damages, even under this rule, could not be justly estimated without regarding the increased exposure to mortification and distress to which the plaintiff had been exposed by a seduction under a promise of marriage after-wards broken.”

In the case at bar, among other things, the court instructed the jury as follows:

“If from the evidence and under the charges given you, you find a verdict for the plaintiff, then it will become your duty to assess the amount of damage to which she is entitled. In fixing such damage, if any, you are authorized to take into consideration any mental anguish or distress suffered by the plaintiff as result of such breach of marriage promise, if any, upon the part of the defendant, and also any advantage which would have resulted to the plaintiff by reason of a marriage with the defendant. And if you further find that, under and by reason of a marriage agreement between the plaintiff and the defendant, the defendant seduced plaintiff and thereby begot her with child, this fact or condition may be taken into consideration by you in fixing the amount of damage, if any, sustained by her. The amount of damage, if any, to which plaintiff may be entitled will be such a sum as would, if paid now, fairly and reasonably compensate her for the injuries sustained by her on account of defendant’s breach of his promise, if any, ta marry her, taking into consideration only such elements of damage as you are hereinabove authorized to consider.”

There was no affirmative error in the charge quoted, and if it be conceded that in cases of this kind no recovery can be had for the support and maintenance of the bastard child, nevertheless no error was committed in refusing the requested charge upon that subject, because it went further, and erroneously stated that no damage could be assessed on account of the plaintiff’s mortification or shame, caused by the fact that she was the mother of an illegitimate child, although the jury might believe that the defendant was the father of such child. The reverse of the latter statement is the rule of law supported by the weight of authority, although a few decisions in other jurisdictions may support the contrary view.

Appellant’s contention that the case should ho reversed even though the requested ■charge was erroneous because of the fact that it was sufficient to call the attention of the court to the error of omission in the court’s charge cannot be sustained. Since the ruling of the Supreme Court upon that subject in Railway Co. v. Shieder, 88 Tex. 152, 30 S. W. 902, 28 L. R. A. 538, this court, and perhaps all the other appellate courts, has repeatedly held that a case will not be reversed when there is no affirmative error-in charges given, merely because of an omission to state the law with more fullness and accuracy, unless the party complaining of such omission seeks to have the same supplied by a requested instruction properly framed. The court did not instruct the jury that the plaintiff was entitled to recover anything for the support and maintenance of the child, and if appellant desired a specific instruction upon that subject, he should have requested one that was free from error, and, not having done so, he is not entitled to have the case reversed upon that ground. However, in saying this we do not wish to be understood as holding that in awarding damages in this case the jury did not have the right to consider the fact that, on account of the defendant’s broach of the marriage contract the plaintiff would be compelled to support a child of which the defendant was the father. Perhaps it is not necessary in this case to decide that question, but if such decision is necessary, we feel constrained to decide it against appellant. True it is that, under the common law, the father of a bastard child cannot be held legally responsible for its support and maintenance, and that the mother alone is responsible therefor; but in this case we are not dealing with the general liability of a father for the support of his bastard child, but with the question as to what constitutes the proper measure of damages for the breach of the contract of marriage. The weight of authority supports the proposition that, in such cases, in determining the amount of damages to be awarded, it was proper for the jury to take into consideration the condition in which the plaintiff is left by reason of the defendant’s breach of the contract. In the instant case, if the plaintiff told the truth as a witness (and the jury must have concluded that she did) she yielded to the defendant’s solicitations for sexual intercourse because she believed that lie would keep his promise of marriage, in which event the child to which she subsequently gave birth would not have been a bastard, and appellant would have been primarily liable for its support and maintenance. According to her testimony, appellant was apprised of her condition, and knew what would be the result if he breached the marriage contract; but, notwithstanding these facts and his knowledge upon the subject, he refused to comply with his promise to marry the plaintiff, and thereby shifted upon her, not only the shame and ignominy of giving birth to a bastard child, but the legal responsibility for its support and maintenance, which, if he had complied with his contract, would have rested primarily upon him. It may be true that some authorities hold that, in cases of this kind, such damages are too remote, on the theory that they result, not from the breach of the promise to marry, but from the illicit intercourse in which the plaintiff, as well as the defendant, participated.

We do not desire to enter upon a discussion of the perplexing question of proximate cause, and content ourselves with the common-sense assertion that, if the defendant had not breached his promise, he, and not the plaintiff, would have been liable for the support and maintenance of the child which would have been born during wedlock; and therefore his failure to comply with his contract constituted at least one of the causes which relieved him and rendered the plaintiff liable for the support of the child. 'That it is as much the duty of the father as the mother to support and maintain a bastard child is a proposition that cannot be successfully controverted in the forum of conscience; and when the father is sued by the mother for a breach of contract of marriage, and it is shown that on account of such promise the mother consented to the intercourse which resulted in the birth of the child, and that if the father had complied with his marriage contract, the child would not liaye been a bastard, and therefore he would have been liable for its support, and as suits for damages for breach of such contracts are actions sounding in tort, we think the jury, in awarding damages, should be permitted to take into consideration and allow compensation for the fact that, as a result of the breach of the contract, the father has,shifted the sup-liort of the child from himself and placed it upon the mother.

2. The remaining question for discussion in this opinion is involved in appellant’s contention that the marriage contract was invalid, and will not support an action for damages, because the consideration therefor was immoral and against public policy. According to the plaintiff’s allegations in her petition, and her testimony, there was a binding contract of marriage entered into between herself and the defendant prior to the acts of sexual intercourse about which she testified; and while she-stated that she would not have consented to and participated in such intercourse had not the defendant promised to marry her within a short time thereafter, and had she not believed that he would keep his promise, still the sexual intercourse was not the sole consideration for the promise of marriage. In fact, a valid contract of marriage already existed, the consideration for which was the mutual promise of both the plaintiff and the defendant to marry each other. A standard authority states the rule briefly in these words:

“The promises being mutual, each is usually the consideration for the other, but it is not the only possible consideration. It is not sufficient if the sole consideration is immoral or against public policy, but if other promises were made, free from the immoral or unlawful taint, the contract will be upheld on such other promises.” 5 Cyc. p. 1000.

In a note to that text it is stated that the rule that a contract is void, if part of the consideration is illegal or against sound morals or public policy, is not applicable to agreements to marry.

In the instant case the plaintiff’s testimony was sufficient to prove a valid marriage contract prior to the sexual intercourse, and therefore the contract was not void on account of an immoral consideration.

As already stated, all the other questions presented by appellant have received due consideration, and are decided in favor of ap-pellee.

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

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