author: JENKINS, J.

text:
    ALLEN et al. v. KITCHEN et al.
    (Court of Civil Appeals of Texas. Austin.
    Feb. 19, 1913.
    On Motion for Rehearing, April 9, 1913.)
    1. Appeal and Error (§ 757) — Briefs — Court Rules.
    Where appellant’s brief contained nothing to indicate any motion for a new trial in the court below, all assignments of error must be disregarded, under rules for the Court of Civil Appeals (142 S. W. xii) 24 and 25, providing that assignments of error must distinctly specify the grounds of error relied on, and must refer to that portion of the motion for new trial in which the error is complained of.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.]
    On Motion for Rehearing.
    2.Appeal and Error (§ 460) — Supersedeas Bond — Time for Filing.
    Execution may be issued upon a judgment, notwithstanding the perfecting of an appeal by the filing of an appeal bond, or affidavit in lieu thereof, in accordance with Rev. Civ. St. 1911, arts. 2084, 2097, 2098, 2099, and 2100, providing for the perfection of appeals; a super-sedeas bond being required to prevent execution.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2217-2226, 2245, 2246; Dee. Dig. § 460.]
    3.Appeal and Error (§ 468) — Supersedeas Bond — Time for Filing.
    Where an appeal has been perfected by the giving of an appeal bond or the making of a proper affidavit in lieu thereof, the supersedeas bond may be given at any time thereafter pending the appeal; but if no bond, other than the supersedeas bond, be given, it must be filed within the time fixed for perfecting appeals.
    [Ed. Note. — -For other cases, see Appeal and Error, Cent. Dig. § 2229; Dec. Dig. § 468.]
    4.Appeal and Error (§ 1226) — Supersede-as Bond — Remedy on Bond.
    Where a valid supersedeas bond has been given and filed within the time required by law, and the appeal has not been prosecuted to effect, the appellee may sue on such bond as a common-law obligation, but if the supersedeas bond did not also amount to an appeal bond, so as to perfect the appeal, it is without consideration, and will not support an action; for, unless the appeal is duly perfected and a valid supersedeas bond is given, execution may issue, notwithstanding an attempted appeal.
    [Ed. Noté. — For other cases, see Appeal and Error,] Cent. Dig. §§ 4734, 4735; Dec. Dig. §
    Appeal from McCulloch County Court; Harvey Walker, Judge.
    Action by C. D. Allen and others against R. D. Kitchen and others. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    J. É. Shropshire, of Brady, for appellants. Garnett & Hughston, of McKinney, for ap-pellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   JENKINS, J.

In this case the appel-lees object to our considering appellants’ assignments of error, because they do not point out specifically any error committed by the court, and said assignments are in violation of rule 25, Rules for the Courts of Civil Appeals (142 S. W. xii), in that they do not refer to that portion of the motion for a new trial in which the supposed error is complained of, as required by said rule. Rule 24 requires that the assignment of error must distinctly specify the grounds of error relied on. Rule 25: “To be a distinct specification of error, it must point out that part of the proceedings contained in the record in which the error is complained of in a' par-tieular manner, so as to identify whether it be the rulings of the court upon a motion, or upon any particular part of the pleadings, or upon the admission or rejection of evidence, or upon any other matter relating to the cause or its trial, or the portion of the charge given or refused, the fact or facts in issue which the evidence was incompetent or insufficient to prove, the insufficiency of the verdict or finding of the jury, if special, and the particular matter in which the judgment is erroneous or illegal, with such reasonable certainty as may be practicable, in a succinct and clear statement, considering the matter referred to, and must refer to that portion of the motion for new trial in which the error is complained of.” (Italics ours.)

There is nothing in appellants’ brief to indicate that any motion for a new trial was filed in the court below, for which reason the objection to said assignments is sustained, and the judgment of the trial court is affirmed.

Affirmed.

On Motion for Rehearing.

In 1906 O. B. Allen, J. O. Hall, and R. L. Craddock recovered judgment in the county court of McCulloch county against C. V. and E. P. Brown for $350 damages upon a car of oats purchased by Allen and others from the Browns, and which did not meet the warranty of the vendors as to quality. Said case was attempted to be appealed to this court, and upon motion of Allen et al. said appeal was dismissed, for the reason that the appeal bond, which was also a superse-deas bond, was not filed in the time required by law. 135 S. W. 602. Execution was issued out of the county court on said judgment and returned “No property found,” and appellants then instituted this suit against the appellees herein on said bond. Upon trial before the court the court found that C. P. and E. V. Brown were solvent at the time of filing the supersedeas bond above referred to, but that during the pend-ency of said appeal they became insolvent.

The trial court, upon the above facts, found, as matter of law, that the appellees in the former suit were not entitled to stay of execution by virtue of said bond, and that said bondsmen, appellees in this suit, are not liable to appellants on said bond.

Opinion.

On a former day of the present term we affirmed this case on account of failure of appellants to comply with rule 25 for the government of the Courts of Civil Appeals. Upon motion for rehearing appellants have shown sufficient reasons why their brief should not be stricken out for failure to comply with said rule, for which reason we have considered this case upon its merits, and in doing so have reached the conclusion that the judgment of the trial court should be affirmed.

A party recovering a judgment is entitled to execution thereon, unless an appeal be taken from said judgment in the manner prescribed by law. An appeal can be taken only by filing an appeal bond, or an affidavit in lieu thereof, within the time prescribed by-statute. Articles 2084, 2097, 2098, 2099, and 2100, Rev. Stat. 1911. And execution may be issued on such judgment, notwithstanding such appeal, unless a supersedeas bond be given, which may also be an appeal bond, or which may be given subsequent to the appeal bond. If the appeal has been perfected by giving a proper bond, or making proper affidavit in lieu thereof, within the time prescribed by statute, the supersedeas bond may be given at any time thereafter pending the appeal; but if no bond, other than the supersedeas bond, be given, it must be filed within the time prescribed for perfecting appeals.

Where a .valid supersedeas bond has been given and filed within the time required by law, and the appeal has not been prosecuted to effect, the appellee may bring suit on such bond as a common-law obligation. Trent v. Rhomberg, 66 Tex. 249, 18 S. W. 510; Wooldridge v. Rawlings (Sup.) 14 S. W. 667; Michael v. Ball, 8 Tex. Civ. App. 406, 27 S. W. 948.

But if the bond does not perfect the appeal it is without consideration, and will not support an action as a common-law obligation. Grocery Co. v. Savage, 114 S. W. 867, and authorities there cited. Where an appeal has not been perfected by giving an appeal or supersedeas bond, or filing proper affidavit in lieu thereof, the party recovering judgment may. have execution thereon, notwithstanding the attempted appeal, and the clerk is no more justified in refusing to issue such execution than he would be if no notice of appeal had been given, or no bond or affidavit in lieu thereof had been attempted to be filed.

For the reasons above stated, the motion' for rehearing is overruled.


source: Caselaw Access Project

author: RICE, J.

license: Public Domain

text:
    WESTERN UNION TELEGRAPH CO. v. CARTER.
    (Court of Civil Appeals of Texas. Austin.
    March 26, 1913.)
    1. Telegraphs and Telephones (§ 55) — Acceptance op Messages Beyond' Lines — Obligation.
    A teiegraph company need not accept a message for a point beyond its own line and to, a point where it has no office or facilities for delivery, and a suggestion by its agent that a messenger fee will likely be necessary to deliver a message to a sendee residing in the country and requiring a guaranty of such a fee before delivery of the message to a connecting telephone company do not create a special contract binding the telegraph company to deliver the message beyond its own line.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 23; Dec. Dig. § 55.]
    2. Telegraphs and Telephones (§ 55) — Negligence in Delivery oe Messages— Liability.
    A telegraph company is relieved from liability for negligence occurring on its connecting line in the delivery of a message resulting in injury to the sendee, unless otherwise bound by special contract.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 23; Dec. Dig. § 55.]
    3. Telegraphs and Telephones (§ 55) — Limiting Liability — Contracts—Validity.
    A stipulation on a message that the telegraph company is merely the agent of the sender, without liability, in forwarding it over the lines of any other company necessary to reach its destination, is reasonable and valid, and where a message is sent subject to the stipulation, the initial company is protected against liability for the negligence of any connecting company to which the message is transferred.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §' 23; Dec. Dig. § 55.]
    4. Telegraphs and Telephones (§ 55) — Special Contracts — Acts Constituting.
    The mere suggestion by an agent of a telegraph company receiving a message for transmission beyond the company’s lines that a messenger fee will be necessary and the requiring by him of a guaranty of a fee before a delivery of the message to a connecting line for delivery to the sendee do not create a special contract binding the initial company to deliver the message in any event, and do not make it responsible for the negligence of the connecting company in failing to deliver it.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 23; Dec. Dig. § 55.]
    5. Appeal and Error (§ 1175) — Disposition op Case on Appeal.
    Where the evidence fails to show liability against defendant and the case has been fully developed, the court on appeal from a judgment for plaintiff will reverse the judgment and render judgment for defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. § 1175.]
    Appeal from District Court, Milam County; J. C. Scott, Judge.
    Action by John L. Carter against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Hume & Hume, of Houston, and Geo. H. Fearons, of New York City, for appellant. U. S. I-Iearrell, of Cameron, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig, Key-No. Series & Rep’r Indexes

   RICE, J.

This suit was brought by appel-lee, plaintiff below, against the Western Union Telegraph Company and the Southwestern Telegraph & Telephone Company, to recover damages for mental anguish suffered on account of their failure to deliver to him a telegram announcing the death of his father and stating the time of burial whereby he was prevented from attending the funeral. Recovery was sought against the Telegraph Company chiefly on the alleged ground that it had contracted to locaté and deliver said message to him, appellee. The Telegraph Company, after a plea of contributory negligence, mainly relied upon the theory that it had exempted itself from liability for default occurring on its connecting line by a stipulation indorsed on said message as follows: “This company is hereby made the agent of the sender, without liability, to forward any message over the lines of any other company, when necessary to reach its destination.” There was a jury trial, resulting in a verdict and judgment in favor of appellee against the Telegraph Company, but in favor of the Telephone Company, from which appellant alone has appealed.

The facts show that on the morning of the 20th of June, 1910, the father of appel-lee died at his home near Madisonville, and that his stepmother caused to be filed with appellant at its office in Madisonville about 3 o’clock on said day the following telegram for transmission: “John Carter, Buckholts, Texas. Your father died this morning. Will be buried tomorrow. Answer.” It was shown that appellant’s agent, when said telegram was tendered it, informed Mr. Heaton, the agent of the sender, that it had no office at Buckholts, but that Buckholts was on a telephone line, and that it might become necessary, if appellee lived in the country, to pay a messenger fee to said Phone Company to deliver same; whereupon the agent of appellant was referred to a merchant, a friend of Mrs. Carter’s, who guaranteed the payment of any such extra messenger fee. It appears that appellee lived in the country some eight miles from Buckholts, which was his post office address; that the message was promptly sent and received at Cameron, the end of appellant’s line, where it was without delay delivered to the Telephone Company; but that said last-named company failed to deliver same to appellee. If this message had been delivered by the latter company during said day, he could have reached Madisonville in time to have attended the funeral of his father.

The court refused a special charge requested by . appellant to the effect that it had not been shown that it had agreed to do more than transmit the message from Madisonville to Cameron, and to forward same from said point over the line of the Telephone Company to Buckholts as the agent of the sender and plaintiff, and it not being shown that defendant Western Union Telegraph Company was negligent in the performance of this duty, the jury should find for it, which is made the basis of the 5th assignment. We think this charge should have been given. No obligation rested upon appellant to accept a message for points beyond its own line, and where it had no office or facilities for delivery. 37 Cyc. 1664, par. 9; W. U. Tel. Co. v. Hargrove, 14 Tex. Civ. App. 79, 36 S. W. 1077.

It is likewise true that it is absolved from liability for default or negligence occurring on its connecting line, resulting in injury to appellee (see Smith v. W. U. Tel. Co., 84 Tex. 359, 19 S. W. 441, 31 Am. St.Rep. 59; McCarn v. Railway Co., 84 Tex. 358, 19 S. W. 547, 16 L. R. A. 39, 31 Am. St. Rep. 51; Hunter v. Railway Co., 76 Tex. 195, 13 S. W. 190; Railway Co. v. Geer, 5 Tex. Civ. App. 349, 24 S. W. 86; W. U. Tel. Co. v. Sorsby, 29 Tex. Civ. App. 345, 69 S. W. 122, and authorities cited in foregoing cases), unless otherwise bound by special contract.

It is said in Jones on Telegraph & Telephone Companies, at section 446, that “by the analogy to the principle governing the liability of common carriers of goods, the general rule is that a telegraph company is not bound by law to accept and transmit messages beyond the terminus of its own line. In the absence of any agreement, either expressly or clearly implied, for transmission beyond its own line, the common-law duty of an independent company is performed when it safely transmits the message over its own line and delivers it promptly and correctly to the connecting line, and it is not therefore liable for any errors or delays occurring on the other line. If, in such case, the message is to be delivered by the initial line to a connecting line for further transmission, the former is considered as a forwarding agent and is not liable for the defaults of the subsequent line or lines.” “Nor is its status changed merely by reason of the fact that, when a message is to be sent over a connecting line, the initial company receives from the sender all charges for transmitting the message for the entire route.” Same author, § 448.

In addition to this, it will be recalled that the message had . a stipulation indorsed thereon to the effect that appellant was merely the agent of the sender, without liability, in forwarding the same over the lines of any other company, when necessary to reach its destination. The message was sent subject to this provision. Speaking with reference to such stipulations, it is, in effect, said in 37 Cyc. p. 1992, par. 6, that such stipulations are reasonable and valid, and will protect the initial carrier against liability for negligence on the part of any other company to which the message is necessarily transferred, citing a line of our own cases in note 70 thereunder in support thereof. See, also, Jones on Telegraph & Telephone Companies, where the same doctrine is announced.

It is, however, contended on the part of appellee that, notwithstanding this non-liability for default occurring on a connecting line, it is nevertheless true that appellant can, by special contract, as here shown, bind itself to deliver the message, and become liable for failure so to do, even where the default occurred on its connecting line. The principle contended for may be conceded, but it is not applicable here, for the reason that we do not believe there is any evidence-in the record going to show or establish any such contract on the part of appellant. The-mere suggestion that a messenger- fee would' likely be necessary, and the requiring by it of a guaranty of such fee before delivery of the message to the Telephone Company, is not enough to create a special contract binding it in any event to deliver said message- and become responsible for the negligent default of the Telephone Company in failing to deliver same.

It seems that the case has been fully developed, and, the evidence failing to show liability on the part of the appellant, it becomes our duty to reverse and render the-judgment in its favor, and it is so ordered.

Reversed and rendered.


author: HARPER, J.

text:
    CARL v. WOLCOTT.
    (Court of Civil Appeals of Texas. El Paso.
    April 3, 1913.
    Rehearing Denied April 24, 1913.)
    1. Beokeks (§ 85) — Actions foe Commissions—Pleading—Issues.
    Under allegations in the answer, in an action for commissions for procuring the sale of realty, that if plaintiff was instrumental in effecting the sale his services were purely voluntary and without promise of compensation, evidence was admissible that plaintiff and defendant were closely related so as to raise a presumption that the services were gratuitous.
    [Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 106-115; Dec. Dig. § 85.]
    2. Beokeks (§ 82) — Actions foe Commissions — Pleading — Geneeal Denial — Scope.
    Under the general denial in an action for broker’s commissions, defendant could show, in the absence of express objection, that he and-plaintiff were closely related so as to raise a presumption that plaintiff’s services were gratuitous.
    [Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 101-103; Dec. Dig. § 82.]
    3. Tkial (•§ 295) — Instbuctions — Consteu-ing as Whole.
    Instructions should be construed as a whole, [Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.]
    4. Beokeks (§ 88) — Actions foe Commissions — Instbuctions — Natube of Con-teact.
    The court instructed, in an action for broker’s commissions, that one of the essentials of a contract is the meeting of minds by an offer and an acceptance, and that that element must be present in an implied as well as in an express contract, and if absent no obligation is created, and if there was no meeting of the-minds of plaintiff and defendant that plaintiff should sell the property and defendant would pay a commission to plaintiff for making a sale, his efforts to sell would be voluntary, and he could not recover anything of defendant though-he found a purchaser, and that if the commission for making the sale was not particularly stated, if plaintiff’s services were in fact requested, compensation would be presumed unless the agreement was between near relatives, when the law required an express promise to pay, though the amount might not be stated. Hela, that the charge was not erroneous on the ground that the part thereof relating to an implied contract conflicted with the part relating to an express contract.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 121, 123-130; Dec. Dig. § 88.]
    5. Appeal and Error (§ 1033) — Harmless Error — Instructions.
    Where, under the evidence in an action for a broker’s commissions, the court could have charged that there was no evidence of an implied contract, an instruction submitting the question of implied contract was unduly burdensome upon defendant, and hence not prejudicial as to plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.]
    6. Brokers (§ 86) — Actions por Commissions— Sufficiency op Evidence.
    Evidence, in an action for broker’s commissions, held not to show an implied contract to pay commissions.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 116-120; Dec. Dig. § 86.]
    7. Trial (§ 207) — Reception op Evidence-Purpose.
    Where evidence, admissible on one issue, is liable to be improperly considered on another issue, the court should limit its effect, so that where, in a broker’s action for commissions, a receipt admitted for one purpose did not tend to show that plaintiff was employed by'defendant as claimed, the court properly instructed that it could not be considered for that purpose.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 498, 499, 501; Dec. Dig. § 207.]
    8. Trial (§ 260) — Instructions—Requests— Instructions Already Given.
    A requested charge, in an action for a broker’s commissions for procuring the sale of realty, that it was not necessary that the purchaser be introduced to the owner by the broker if he induced the purchaser to apply to the owner to purchase the property, was sufficiently covered by a charge that, if plaintiff’s services were the efficient procuring cause of the sale, the jury should find for plaintiff, and hence was properly refused.
    [Ed. Note. — For other eases, see Trial, Cent Dig. §§ 651-659; Dec. Dig. § 260.]
    9. Witnesses (§ 379) — Inconsistent Statements — Actions por Commissions — Admission op Evidence.
    Where, in an action for commissions for procuring the sale of realty, the purchaser testified that he and plaintiff went to the office of defendant’s agent, and that plaintiff put him in touch with the property and was instrumental in closing the deal, evidence was admissible by defendant’s agent that the purchaser told him that plaintiff had nothing to do with the sale.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209,1220-1222, 1247-1256; Dec. Dig. § 379.]
    10. Brokers (§ 85) — Actions pob Commissions — Admission op Evidence.
    Where, in an action for commissions for procuring the sale of realty, it was in issue whether plaintiff was authorized to sell and whether the purchaser closed the deal through plaintiff, a copy of an earnest money receipt given by defendant’s agent to the purchaser was admissible in evidence on the question of plaintiff’s authority, though not signed by the purchaser.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 106-115; Dec. Dig. § 85.]
    11. Witnesses (§ 406) — Contradiction—Admissibility.
    In an action for commissions for procuring the sale of realty, a copy of an earnest money receipt given by defendant’s agent to the purchaser was admissible to contradict the purchaser’s evidence that he bought the property through plaintiff.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1276-1279; Dec. Dig. § 406.]
    Appeal from District Court, El Paso County; A. M. Walthall, Judge.
    Suit by W. N. Carl against Lennie Moor Wolcott. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Jones & Jones, of El Paso, for appellant. Lewis Maury Kemp and R. T. Neill, both of El Paso, for appellee.

      For otner oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

This suit was brought by W. N. Carl, appellant, against Mrs. Lennie Moor Wolcott, appellee, to recover a commission for the sale of certain real estate, belonging to appellee, by appellant, real estate agent. He alleged: That he was a real estate agent and broker, doing business as such in El Paso, Tex. That Mrs. L. M. Wolcott, as the owner of southwest corner of block 38, Mills’ map of El Paso, listed same with him as a real estate agent and broker for sale, and employed him to sell same for $39,-000, and contracted and agreed to pay him 5 per cent, on the gross price as commission for making the sale. That he sought and found a purchaser in Charles R. Loomis, who was able, ready, and willing to purchase said property; and that said Loomis thereafter entered into a binding contract with plaintiff, who was acting as agent of defendant, to purchase said property upon the terms designated by defendant, and paid down $1,000 as earnest money to bind the contract. That the sale was made by defendant to the said Loomis and J. M. Goggin, who joined Loomis in the purchase after the execution of the contract. That by reason of said sale defendant thereby became indebted to plaintiff for said commission in the sum of $1,950 and failed and refused to pay same, etc. By a second count plaintiff alleged that, if he should be mistaken as to an express contract of employment by the defendant with plaintiff to sell, then he avers that defendant listed her said property with plaintiff for sale and authorized and requested him to sell same, or, in any event, knew that he was seeking customers to purchase said property. Further alleged that he, at the request and with the knowledge, approval, and consent of defendant, and with knowledge, approval, and consent of Maury Kemp, defendant’s duly authorized agent, sought customers to purchase said property during the fall of 1909, and procured Charles R. Loomis to purchase same, and that defendant in person and through her agent and attorney aforesaid, accepted the said customer and closed the sale, and thereby accepted plaintiff’s services and thereby ratified his acts as a real estate agent done and performed for her, and thereby became liable and bound to pay the reasonable and customary commission to real estate agents in El Paso, which he alleged is 5 per cent. Defendant answered by general denial; that plaintiff’s services were rendered voluntarily, and a denial, under oath, of the execution by her of the contract of sale dated November 27, 1909. And specially answered that, if plaintiff was instrumental in effecting the sale, such acts were purely voluntary, without authority from defendant, and without promise of compensation. Tried by jury, and verdict for defendant, from which this appeal is perfected.

The appellant’s first assignment of error complains of the following clause of the fourth paragraph of the charge of the court: “ 'One of the essential elements of a contract is an agreement or meeting of the minds of the parties by an offer on the one hand and an acceptance on the other. This necessary element must be present in an implied contract as well as in an expressed contract. If it is absent in either no obligation is created, and if there was no meeting of the minds of the plaintiff and the defendant, that the plaintiff should sell the property and the defendant would pay a commission to plaintiff for making a sale, his efforts to sell said property would be voluntary, and in that event the defendant would owe plaintiff nothing, though he might have found a purchaser ready, willing, and able to buy. In this connection you are instructed that if the commission for making said sale was not particularly stated or referred to, if the services of the plaintiff in making said sale was requested by the defendant, compensation will be presumed unless the agreement is between near relatives, when the law requires an express promise to pay, although the amount may not be stated.’ Because in the first part of said clause the court attempts to define an implied contract, while in the second part thereof the court tells the jury that the contract must be express when between near relatives, when there was no evidence that plaintiff and defendant were near relatives nor was there any pleading by defendant to that effect, and on the contrary the evidence showed that no such relation existed within the meaning of the law, and said clause was therefore confusing, conflicting, and contrary to the law in such cases, and was not in conformity with the pleadings of plaintiff nor with the evidence adduced thereunder.”

The first proposition under this assignment is that it submits an issue to the jury not raised by the pleadings and evidence, and, following up the proposition, suggests that the question of “near relationship between the parties” had not been pleaded.

It is admitted that it was not pleaded specifically, so the question is: Was it necessary for defendant to plead it specially in order to take advantage of the point as a proposition of law, or could the appellee take advantage of it under her general denial or under any other paragraph of her answer? Eor it is unquestioned that the proposition of law stated is good, and it follows that if the pleading and proof do not raise the question the error is fatal and should reverse this case. It is admitted that the evidence raises the question, plaintiff and defendant both having testified, without objection, that at the time of the sale of the property they were related by marriage, the plaintiff being then married to defendant’s sister. The defendant pleaded “that if plaintiff was instrumental in effecting the sale his services were purely voluntary and without promise of compensation,” under the evidence adduced on the part of plaintiff, the fact that defendant was in his office and expressed a desire to sell the property, and the other things testified to by plaintiff as having occurred, if they had not been related, and had not she been accompanied by her mother and sister, then the wife of plaintiff — in other words, if it had been a business call for the purpose of putting the property on the market, by one not related— would have been strong evidence that he was then authorized to make the sale, although there was no express authorization of plaintiff. But under the facts of this case and the pleading of defendant there is nothing shown more than a voluntary offer to assist his then sister-in-law, and we find that the above answer is sufficient to raise the question and to admit evidence, and the evidence was sufficient to require the court to charge the jury as was done.

And if not raised by the pleading, the general denial, in the absence of express objection to the testimony when offered, was sufficient to enable the defendant to avail herself of this legal qualification or limitation upon the probative force of facts which otherwise might have been sufficient to establish that defendant listed the property with plaintiff and an implied agreement to pay commissions. But this was a question for the jury, and the view we take of it was sufficiently raised by the pleading.

Second proposition under the first assignment of error and the third assignment of error are that, where a paragraph of the charge of a court is material but inconsistent, the first clause conflicting with the latter, it has a tendency to confuse and mislead the jury, and is therefore erroneous. Following this proposition, appellant in his brief copies two paragraphs of the court’s charge, but in no way attempts to indicate by any argument wbat the conflict in the “clauses” consists of. The best we can make of the proposition is that the portion of the court’s charge first quoted is upon the question of what constitutes “implied contract,” and the part next quoted groups the facts and submits the question of express contract as well as implied contract to the jury. If this is the “conflict” referred to, the proposition is not well taken, because the charge must be construed as a whole, and the court’s charge so considered is not subject to the criticism made. The first assignment of error is therefore overruled.

What we have said above disposes of the second assignment of error, because it is addressed to the same proposition.

The fourth and fifth assignments of error complain of the second clause of the fourth paragraph of the charge, because “to constitute an implied contract in this case it was not necessary that defendant should list her property with plaintiff for sale; it was sufficient if the defendant, by her acts and conduct, induced the plaintiff to find a customer for her property and avail herself of plaintiff’s services by accepting the purchaser found by him, and a charge on an implied contract requiring a listing casts too great a burden on plaintiff.”

Under the facts in the record the court would have been authorized to charge the jury that there was no evidence of an implied contract, and the charge complained of was more onerous upon the defendant than it should have been.

The only testimony in the record which in any way tends to show that Carl was authorized to act as agent for Mrs. Wolcott in effecting the sale of her property shows that he was expressly authorized, if at all. The plaintiff and his witness, Gray, testify of the incipient conversation between plaintiff and defendant by which he claims to have been authorized to act as agent for a commission, as follows: Plaintiff: “Mrs. Wolcott came into my office about the 16th or 17th of October, 1909, and listed her property on Overland and Stanton streets for sale, saying to me ‘that she wanted to sell the property, and that she wanted $600 a front foot,’ and said that she would pay 5 per cent, commission out of the gross proceeds, and for me to get busy and sell it. That she wanted to buy an automobile, and that I would have to see Mr. Maury Kemp for terms. I phoned her next day and she said one-third cash and the balance in two and three years.” Gray testified: “I remember Mrs. Wolcott coming into the office to see Mr. Carl, and on that occasion heard her state that she had decided to sell her property, and told him to get busy and sell it.” But there is no contention that the sale was made according to the terms given at that time, but that in November plaintiff found a buyer in Loomis, if price and terms satisfactory. Carl then went to see Mr. Kemp, who he says he knew represented Mrs. Wol-cott in her business, and he testifies that the following conversation occurred: “I asked him (Kemp) the lowest price the property could be bought for, and he said $39,000. I asked him if that was the gross price, and he said yes, and I asked him further if he would pay 5 per cent, commission on that price, and he said yes. And I then asked him, for terms, and he said one-third cash and the balance in one, two, and threei years.”

It certainly cannot be contended that there is anything left for implication in these conversations, for he was expressly authorized to sell, and an express offer to pay in each instance a commission of' 5 per cent, if he made the sale; and there is no other evidence in the record which could be construed into a contract, either express or implied. So if the court’s charge is subject to the construction contended for, “that it required the jury to believe that the property was listed with plaintiff,” it required no more than the plaintiff’s evidence asserted, and no more than he pleaded, but which the jury did not see fit to believe. This disposes of the seventh, thirteenth, and fourteenth assignments.

The sixth assignment complains of the action of the court in giving, at the request of defendant, the following special charge: “The court erred in giving defendant’s special charge No. 1 asked by the defendant, because said special charge told the jury that the earnest money receipt introduced by the plaintiff was. not admitted as evidence and proof that the plaintiff had been employed by defendant, and told the jury they would not consider it as evidence that defendant had employed plaintiff Carl to sell the property, because by said special charge of the defendant the court undertook to define the force and effect of said earnest money receipt as evidence, but failed to tell the jury that it should be considered by them together with all other facts and circumstances in the case, thus rendering said special charge a comment upon the weight of the evidence and practically excluding the same as evidence from the consideration of the jury. That said special charge, ■ as given by the court, had a tendency to mislead the jury and cause them to believe that said earnest money receipt was eliminated as an item of evidence in the case.”

In Missouri, K. & T. Railway Co. v. Collins, 15 Tex. Civ. App. 21, 39 S. W. 150, the court says: “Where evidence admitted is proper on one issue, but is liable to be considered by the jury on another issue as to which it is incompetent, the court should instruct that it is not to be considered on the latter issue, but should not direct attention to the issue on which it may be considered, which might give it undue weight with the jury.” The earnest money receipt did not tend to prove that Carl was employed by defendant; therefore the court did not err in limiting its probative force to that extent.

The appellant’s eighth assignment assigns error in the refusal of the court to give the following special charge requested by him: “Where property has been listed with a broker for sale or authority given the broker by his owner or his duly authorized agent to sell the same, and the broker effects such sale, that is, he has brought the parties together or has made a contract with the purchaser which the owner can legally enforce and within the terms authorized by the owner or his agent, he is the efficient cause, and the fact that the owner negotiates the sale with the purchaser procured by the broker does not affect his right to commission. And in this case you are instructed that the contract introduced in evidence by the plaintiff and signed by Ohas. R. Eoomis, which contract, if it was procured by the plaintiff from said Loomis, was sufficient to bind said Loomis as the purchaser of the property therein described and one which the defendant could have legally enforced. If therefore you believe and find from the evidence that the defendant listed said property with-.plaintiff for sale, or that she authorized and requested him to sell the same for her, either in person or through her agent or attorney, and that in pursuance to her listing and authority to plaintiff to sell said property, the plaintiff found said purchaser, Loomis, and obtained said contract, and that thereafter the defendant, acting by and through her attorney, Maury Kemp, proceeded to complete the terms of said sale and close said sale to said Loomis, then and in that event the plaintiff is entitled to his commission for services rendered in said sale and you will so find.”

The court did not err in refusing to submit this special charge, because it contained matter which it would have been improper to submit; and, besides, the essentials of it were given in the general charge of the court.

Appellant’s ninth and tenth assignments of error-',are as follows: ,

Ninth assignment of error: “The trial court erred in refusing to give plaintiff's special charge No. 3, which told the jury that it was not necessary that the purchaser be introduced to the owner by the broker, so long as the purchaser is induced through the broker to apply to the owner to purchase his property, which the broker is offering to sell. And said special charge should have been given in view of the evidence that plaintiff found Charles R. Loomis, the purchaser of defendant’s property, and sent, or directed said Loomis to defendant’s attorney to negotiate with him with reference to the purchase of said property, and the evidence showed that said attorney of defendant, who was authorized to act for her, closed the sale of said property to said Loomis.”

Tenth assignment of error: “The trial court erred in refusing to give plaintiff’s special charge No. 4, because the evidence showed that plaintiff found a purchaser in the person of Charles R. Loomis, and that thereafter the sale was closed by the attorney for the defendant with the said Loomis,, who was the customer of the plaintiff.”

The court charged the jury “that, if the-services of the plaintiff were the efficient procuring cause of.the sale to said Loomis, you will find for the plaintiff,” which includes all the essentials of the special charge requested, so it was not error to refuse same.

The eleventh assignment complains of the action of the trial court .on permitting witness Kemp to testify as shown in the following bill of exceptions: “Witness Maury Kemp, being on the stand as a witness for the defendant and testifying in her behalf, was asked the following question by counsel for defendant: Q. Mr. Kemp, relative to the-sale of this property to Carl and Loomis, state who represented Mrs. Wolcott. A. I represented her. Q. What, if anything, was said between you and Mr. Loomis relative to the part Carl played in it? Whereupon counsel for the plaintiff objected because anything that Loomis might have said not in the presence of Carl would not be binding upon him. Thereupon counsel for the defendant asked the following; question: Q. What did Mr. Loomis say in reference to whether or not he had been induced to purchase by Mr. Carl? Whereupon counsel for the plaintiff objected because what Mr. Loom-is might have said as to being induced to-purchase under the state of the pleadings would not bind Mr. Carl, and because anything Mr. Loomis might have said to the witness in reference to being persuaded by Mr. Carl calls for a conclusion of the witness and would not be binding upon Carl in his absence. Which objection. was by the court overruled, to which action of the court the plaintiff then and there in open-court excepted,, and the witness was permitted to testify as follows: A. He said this: Mr. Carl had nothing to do with his purchasing the property. I told Mr. Loomis about what Mr. Clifford told me about Mr. Carl wanting to take his part of the commission out in groceries. I could not understand what Mr. Carl was asking for a commission from Mr. Clifford for in groceries. I reminded Mr. Loomis of the fact that he had told me that he and Carl were in on the deal and going to sell Clifford, and they could make so much money if I would authorize it. Loomis said that Carl had nothing on earth to do with this particular deal; that was consummated by the Earnest money receipt of December 24th; and Mr. Loomis called attention at that time to the fact that this other proposition was nothing more than an effort on the part of him on Ms and Mr. Carl’s part to go in and sell the property to Mr. Clifford and make a commission.” Because “under the state of the pleadings and the evidence it was error for the court to permit witness Kemp to testify that the purchaser Loomis told him that the plaintiff Carl had nothing to do with making said sale.”

The plaintiff alleged in his petition that Kemp was the agent and attorney of defendant, and that he acted under his (Kemp’s) specific directions; and that he closed the deal, taking earnest money, and gave a receipt, etc., to Loomis. Loomis testified that he and Carl went to Kemp’s office two or three times; that Carl put Mm in touch with the property, and was instrumental in closing the transaction. It was admissible, if for no other, for the purpose of contradicting this and other testimony of plaintiff’s own witness, Loomis.

Appellant’s twelfth assignment is as follows:

“The trial court erred in admitting a purported copy of an earnest money receipt, purporting to have been given by witness Maury Kemp to Charles R. Loomis, dated the 24th day of December, 1909, for the reason that said purported receipt was not signed by said Loomis as the purchaser, was self-serving, and was equivalent to a self-serving declaration on the part of the defendant and said Kemp, and was not evidence that plaintiff had not procured said Loomis to purchase said property and had a tendency to mislead the jury.” Because “an earnest money receipt not signed by the purchaser, but signed only by the defendant or her agent and attorney, offered in evidence on the trial of a suit for commissions for the sale of defendant’s real estate, where the evidence showed that the plaintiff broker had secured the signature of the purchaser to an earnest money receipt, and that the purchaser closed the sale thereunder, is a self-serving declaration and hearsay and its admission by the court was error.”

“Witness Maury Kemp being on the stand and testifying in behalf of the defendant, the counsel for defendant asked the following question: Q. At the time that deal was closed, state what was done relative to accepting a purchaser found by Mr. (Jarl. To which question the plaintiff by his counsel objected because the question was suggestive and called for a conclusion of the witness, when the jury was entitled to all the facts. The Court: Do you mean at the time it was closed, at the time of the execution of the deed? Mr. Neill: Xes, sir; I don’t precisely mean that, because the deed was executed in Houston; I mean in so far as Mr. Kemp is concerned; that is really what I mean. The Court: That is the circumstance you refer to? Mr. Neill: Xes, sir. The Court: Overrule the objection. And the witness was permitted to testify that nothing was done by the purchaser found by Carl; that Mr. Carl never found a purchaser. Q. That is the answer as you' give it now? A. Xes, sir. Q. Have you a carbon copy of the receipt? A. Xes, sir. Q. Do you recall testimony of Mr. Loomis to-day, this morning, relative to whether or not you gave him the receipt? A. Xes, sir. Q. Did you or not give him such a receipt? A. I gave him a receipt. Q. Have you a copy of it? A. I have; he gave me the $1,000. Q. Is this the receipt? A. He paid that just before Christmas. Thereupon the receipt was offered by counsel for the defendant in evidence, whereupon plaintiff by his counsel objected for the following reasons: Because the tendency of it is to defeat the negotiations, is to defeat the plaintiff in his commission. The present state of the evidence shows that a purchaser was found and negotiations started on the 27th day of November; the receipt is not signed by Mr. Loomis at all. Q. About the $1,000, he has not denied that fact? Mr. Jones: He paid $1,000 on the 27th of November? A. No. He brought me $1,-000 on the day of this receipt; it is not the $1,000 he paid into the Rio Grande Valley Bank. The court overruled the objection, and thereupon counsel for the plaintiff objected on the further ground that the receipt was not a receipt to Mr. Loomis, was simply a purported copy of a receipt; that it is not a binding receipt of sale; it is a receipt for money received on a transaction, but is simply a copy, or purports to have been given to Mr. Loomis.”

A sufficient answer to the reason assigned for the objection is that it was a material inquiry in this case as to whether Carl was authorized as agent to sell to any one, and as to whether Loomis, in fact, bought or closed the deal with him, and the testimony and receipt were admissible upon these questions, and upon the further question of defendant’s contention that she nor her agent, Kemp, ever recognized (Jarl as defendant’s agent, and to contradict the witness Loomis in his testimony that he bought the property through Carl.

No error appearing in the record, the judgment of the lower court is affirmed.


text:
    FISHER v. ATKINSON et al.
    (Court of Civil Appeals of Texas. Austin.
    April 16, 1913.)
    Judgment (§ 17) — Pkocess—Service—Neces-sity.
    Where one was served with citation and certified copy of the petition, but was not made a party nor required, to answer the petition, and was not served with citation on a cross-action, the court did not obtain jurisdiction over him, and a judgment against him was erroneous.
    [Ed. Note. — For other cases, see' Judgment, Cent. Dig. §§ 25-33; Dec. Dig. § 17.]

      Error to District Court, Dee County; Ed R. Sinks, Judge.
    Action by Jack Atkinson against C. M. Fisher, and another, in which defendants filed cross-bills praying for judgment oyer against C. S. Fisher. There was a judgment for plaintiff, and for defendant W. H. Holland against C. S. Fisher, and the latter brings error.
    Reversed and remanded.
    John B. Durrett, of Belton, for plaintiff in error. Wm. O. Bovters, of Giddings, for defendants in error.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RICE, J.

It appears from the record that on the 29th of March, 1909, Jack Atkinson conveyed to C. M. Fisher 80 acres of land out of the Walker league in Dee county, and in part payment thereof said Fisher executed his vendor’s lien note, of even date, payable to, the order of said Atkinson, for the sum of $150, with 10 per cent, interest and 10' per cent, attorney’s fees, which became due on the 1st of January, 1911. Thereafter said C. M. Fisher conveyed said land to plaintiff in error, C. S. Fisher, who, it seems, in part payment, assumed to pay said $150 note. Subsequent thereto, on the 8th of February, 1910, said C. S. Fisher conveyed said land by warranty deed to W. M. Holland, and on the 11th of April, 1911, said Atkinson brought this suit against C. M. Fisher and W. M. Holland; wherein he set out the execution and delivery to him by said Fisher of said note, the maturity and nonpayment thereof, and further alleged that said Holland was making some claim to said land, and prayed for judgment for his debt, interest, and attorney’s fees against said Fisher, with foreclosure of vendor’s lien against both said Fisher and Holland; but plaintiff in error was not made a party defendant to said suit.

C. M. Fisher, answering by cross-bill, alleged his sale of said land to C. S. Fisher, and that in said conveyance, as part consideration therefor, said C. S. Fisher assumed the payment of the note sued on, and thereby became liable to pay same, praying that he have judgment over against said C. S. Fisher.

Holland filed his cross-bill against C. S. Fisher, alleging that said Fisher sold said land to him by warranty deed, and by reason of his warranty, became liable for the payment of the note sued on by plaintiff, and praying that, in the event judgment should be rendered in favor of plaintiff against him he recover on his warranty against said C. S. Fisher for like amount. On September 6, 1911, said C. S. Fisher was served with citation and certified copy pf plaintiff’s original petition, but ho service of citation on either of said cross-actions was ever made upon him; nor was he made party defendant to nor mentioned as such defendant in said original petition or citation.

On the 7 th of May, 1912, the case was tried before the court,-* without a jury, and all of the parties appeared and answered, except C. S. Fisher, who made default. Judgment was rendered in favor of the plaintiff, Atkinson, and against the defendant O. M. Fisher on said note for principal, interest, and attorney’s fees, and against O. M. Fisher, W. M. Holland, and O. S. Fisher for a foreclosure of the vendor’s lien upon said land; and judgment was further rendered in favor of defendant Holland against C. S. Fisher for the amount of the judgment rendered against the defendants O. M. Fisher and W. M. Holland, and for all costs of suit, from which judgment this writ of error is sued out alone by G. S. Fisher, who contends that the court had ho jurisdiction to render judgment against him, either for foreclosure of the vendor’s lien on said land, or for judgment over in favor of Holland.

We think both of these contentions are correct. Notwithstanding the fact that plaintiff in error was served with citation and certified copy of plaintiff’s original petition, yet pot having been made a party to said suit, he was not required to answer thereto; and he was never at any time served with citation as to Holland’s cross-action. The court therefore did not obtain jurisdiction over him, for which reasons the judgment of the court below must be reversed and the cause remanded.

Reversed and remanded.


author: HALL, J.

text:
    RODGERS-WADE FURNITURE CO. v. WYNN.
    (Court of Civil Appeals of Texas. Amarillo.
    April 12, 1913.)
    1. PaRtnebship (§ 241) — Retirement—Dia-bility of Retiring Partner — Notice.
    A partner who retires from the firm by selling his interest tlieréin to another is not liable on a firm note subsequently executed to a payee having notice of the retirement before accepting the note.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 4791/2, 480, 651, 652, 654, 657, 659, 665; Dec. Dig. § 241.]
    2. Partnership (§ 242) — Retirement — Notice— Evidence — Question for Jury.
    Where, on the issue whether the payee of a note given by a firm had, before accepting the note, notice of a partner’s retirement by transferring his interest to another, the purchaser of such latter interest testified that a representative of the payee was informed of the transfer and shown the bill of sale before the giving of the note, the question of notice was properly submitted to the jury.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 500-508, 663; Dec. Dig. § 242.]
    3. Trial ■(§ 295) — Instructions—Construction as a Whole.
    Any error in a charge, that any information" that would put a prudent man on inquiry is notice of a dissolution of a firm, is cured by the statement in the same paragraph of the charge that notice brought home to the agent of a party as to a particular transaction is notice to the party, and that if the person authorized to act for a creditor of a firm had notice of the fact that a partner had sold his interest in the firm the notice was notice to the creditor.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. U 703-717; Dec. Dig. § 295.]
    4. 'Corporations (§ 428) — Notice to Agent.
    Notice to an agent of a corporation, which is a creditor of a firm, that a partner has retired, is notice to the corporation.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1748-1761; Dec. Dig. § 428.]
    5. Pleading {§ 292) — Verification — Accounts — Affidavit.
    A defendant sued on an itemized account due from a firm, in which he had been a partner, who files a sworn plea denying that he was a partner when the items specified in the account were sold, need not file a controverting affidavit of the verified account made, by Sayles’ Ann. Civ. St. 1897, art. 2323, prima facie evidence.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 880; Dec. Dig. § 292.]
    6. Payment <§ 41) — Application.
    Where neither the creditor nor the debtor applies a partial payment to any particular debt or to any part of a single debt, the payment must be applied as the justice of the ease demands.
    [Ed. Note. — For other cases, see Payment, Cent. Dig. § 48; Dec. Dig. § 41.]
    7. Partnership (§ 241*) — Retirement—Liability of Retiring Partner — Notice.
    A partner, _ who retires from the firm, is liable to a creditor for the part of an account charged until notice of the retirement.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 479%, 480. 651, 652, 654, 657, 659, 665; Dee. Dig. § 241.]
    8. Partnership (§§ 238, 239) — Retirement-Liability of New Partner — Assumption of Indebtedness.
    A new partner of an existing firm is, not liable for debts previously incurred, in the' absence of agreement to that effect, express or implied; and a partner transferring his interest in the firm to a third person may, as a part of the consideration, require the third person to assume the outstanding indebtedness of the firm.
    [Ed. Note. — For other eases, see Partnership, Cent. Dig. §§ 487, 488, 491, 492, 495-499; Dee. Dig. §§ 238, 239.]
    9. Partnership (§ 242) — Retirement—Liability of Retiring Partner — Burden of Proof — Application of Payments.
    Where a retiring partner sought to escape liability for firm debts accruing prior to notice of the retirement, he had the burden of showing that the purchaser of his interest in the firm assumed the firm debts; and, where he failed to do so, payments made by the new firm could not be applied to the debts incurred prior to the retirement and notice thereof.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 500-508, 663; Dee. Dig. § 242.]
    10. Appeal' and Error (§ 1002) — Assignments of Error — Review.
    An assignment of error complaining of apparent contradictions and discrepancies in the testimony will not be considered; that being exclusively for the jury.
    [Ed. Note. — For other cases, see Appeal and 1002 ]Cent' Dig' §§ 3935-3937; Dec. Dig. §
    11.Partnership (§ 242) — Actions—Pleadings.
    A creditor of a firm, who declares on a note in which the indebtedness, evidenced by an account prior to his receiving notice of a partner’s retirement, was merged, may not recover for the indebtedness incurred prior to the notice, in the absence of an alternative pleading on the account covering that time.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 500-508, 663; Dec. Dig. § 242.]
    Appeal from District Court, Moore County; D. B. Hill, Judge.
    Action by the Rodgers-Wade Furniture Company against J. C. Wynn. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    A. P. Dohoney, of Paris, and Gustavus & Jackson, of Amarillo, for appellant. Mathis & Kay, of Wichita Falls, for appellee.

      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other oases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HALL, J.

Appellant, a private corporation, of Paris, Tex., brought this suit against appellee, upon a note executed by the W. F. Jourdan Furniture Company of Wichita Falls, Tex., for $800, and an itemized verified account, showing a balance due of $1,063.42. The note was dated April 20, 1908, and provided for interest and attorney’s fees. The items on the account were dated from February 10, 1908, to January 21, 1909. Plaintiff further alleged that during the time of the transaction involved appellee, Wynn, was a member of the firm of W. F. Jourdan Furniture Company; that said firm was bankrupt and that the members thereof, .except appellee, had been discharged in bankruptcy. Defendant’s answer included a plea of non est factum, denial under oath of the justness of the account, denial of the partnership, and alleged that prior to the time of the transactions involved he had sold his interest in the business of W. F. Jourdan Furniture Company and retired from the firm. Appellant’s first assignment is expressly waived.

By its second assignment, it is contended that the court erred in instructing the jury to find for the defendant upon the note in controversy, if they found from the evidence that defendant had retired from the firm of W. F. Jourdan Furniture Company prior to the time of the execution of said note and that plaintiff had notice of such retirement before accepting said note. This question has been settled adversely to appellant’s contention in several cases in this state. Baptist Book Concern v. Carswell, 46 S. W. 85S; Green v. Waco State Bank, 78 Tex. 2, 14 S. W. 253; White et al. v. Hudson et al., 36 S. W. 332; Blanks v. Halfin, 30 S. W. 941.

The first paragraph of the court’s charge submitted to thq jury the question of notice of Wynn’s retirement from the W. F. Jourdan Furniture Company, having been brought to appellant, and this charge is attacked by appellant' in its 3, 8, 10, 11, 18, and 20 assignments. The testimony of Tut-tle upon this question is sufficient to warrant the court in submitting the issue to the jury. He testified: “At the time this note was signed on the day and about the time it was signed, myself and Mr. Jourdan and the representative of the Rodgers-Wade Furniture Company were present. The man I speak of as the representative of the Rodgers-Wade Furniture Company came to Wichita Falls to secure a note from the W. F. Jourdan Furniture Company for the Rodgers-Wade Furniture Company to have a settlement with Jourdan for the Rodgers-Wade Furniture Company. I was introduced to this man. As near as I can remember, we met there after supper, and he asked Mr. Jourdan in what way I was connected with the firm, inasmuch as I was there while the transaction was about to take place, and he told them then that X had a half interest in the W. F. Jourdan Furniture Company, and I also showed him the bill of sale that I had in the safe. The same bill of sale I have here and the note (meaning the note sued on herein) was signed later in the evening, after this information was given and the bill of sale shown him.”

Appellant further insists under its fourth assignment that the court erred in the first paragraph of its charge in stating that any information that would put a prudent man upon inquiry is notice of a dissolution of a partnership. Reference to the charge shows that, if this was error in the same paragraph, the court correctly charged the jury that notice brought home to an agent of a party in regard to a particular transaction is equivalent to notice to the party himself, and that if the jury believed that any person empowered and authorized to act for plaintiff in connection with the settlement, and collection of the debt due plaintiff, at the time of the execution of said note, had notice of or knew of the fact that defendant had sold his interest in the W. F. Jourdan Furniture Company, then that such knowledge or notice to 'such person would be notice to the plaintiff; and this part of the charge is also assailed by appellant insisting that actual notice to appellant of ap-pellee’s retirement from the firm, and not merely constructive notice, is required.

In Gilbough v. Stahl Building Co., 16 Tex. Civ. App. 448, 41 S. W. 535, Pleasants, Justice, said: “To warrant a finding against the plaintiffs on this issue, the evidence must either show actual notice to them or to F. M. Gilbough, or it must establish facts which would charge them with notice—facts which would put one of ordinary prudence on inquiry.” And in the case of Bonnett v. Tips Hardware Co., 59 S. W. 59, appellant’s second contention is denied by the holding in that case that constructive notice is sufficient. The appellant herein being a corporation and its business being transacted with the W. F. Jourdan Furniture Co., through its agent, notice to its agent is ordinarily the only kind which could be given, and we think there is no error in the first paragraph of the charge.

The court submitted, in his charge for the consideration of the jury, the question of the correctness of the verified account. The account was sworn to under article 2323, Sayles’ Civil Statutes, which makes such an account prima facie evidence of the fact that it is just and true, that it is due, and that all just and lawful offsets, payments, and credits have been allowed. In the absence of a controverting affidavit, the introduction of a verified account proves: (1) Its correctness; (2) the sale; (3) the delivery; (4) the price; and (5) the credibility of the affiant. The appellee filed a controverting affidavit sufficient under the statute, and in addition thereto, a sworn plea, denying that he was a member of the firm of W. F. Jourdan Furniture Company when the items specified therein were sold. His denial of partnership having been filed rendered it unnecessary to file a controverting affidavit of the account under the statute. The testimony shows that there was no effort to “deny the account or any item therein,” nor, in fact, to question-any of the matters stated above which the introduction of the account in evidence established. Appellee testified: “I do not know whether the account sued on is correct or not.” W. F. Jourdan’s testimony was taken and he failed to deny the account in any particular. The only question at issue with reference thereto was whether or not appellee was a member of the firm during the time the items of the account were sold. Over appellee’s sworn plea, denying partnership, the introduction. of the account in evidence did not render him liable, and the court should not have submitted to the jury the correctness of the account. Appel-lee’s real defense in no manner affected the justness or correctness of the account against the W. F. Jourdan Furniture Company, as the firm existed upon the dates set out in the statement of account. The fifth assignment is sustained, and what is here said disposes of the sixth and seventh assignments.

The fifth paragraph of the court’s charge is as follows: “You are further instructed that plaintiff in its petition admits a credit on the account introduced in evidence in the sum of $1,097.46, and you are instructed that the amount of such payment will be applied to the satisfaction of the items of indebtedness first accruing as shown by said account.” And the eighth paragraph of the charge is as- follows: “You are instructed to apply the credits of $1,097.46 set out in plaintiff’s petition to the satisfaction of the same amount of the items first accruing in the itemized account introduced in evidence before you, and will consider defendant’s liability or nonliability only with reference to such items of the account, if any, remaining unsatisfied after such application of such credit.” The giving of these instructions is the basis of appellant’s ninth assignment of error. The application of payments in a case like this, where no intention to make the application by either party appears, is a question of considerable diflieulty, and one upon which the courts and text-writers have disagreed. Fairchild v. Holly, 10 Conn. 175; Morgan v. Tarbell, 28 Vt. (2 Williams) 498; Gilmore on Partnership, 260; Allen v. Brown, 39 Iowa, 330; Coleman v. Lansing, 65 Barb. (N. Y.) 54; 2 Am. & Eng. Enc. of Law, 463, note 1; Storey on Partnership, § 157; Thurber v. McIntyre, 9 N. Y. St. Rep. 816; Allcott v. Strong, 9 Cush. (Mass.) 323; 30 Cyc. 617; Burns v. Pillsbury, 17 N. H. 66; Scott v. Kent, 54 N. Y. Super. Ct. 257; Shenks’ Appeals, 33 Pa. 371. It will be observed, however, that most of the authorities cited, whether they hold that the application of the payment will be made to the oldest item of the account or otherwise, announce the doctrine that if equities intervened it is the duty of the court to make such application of the payments as the justice of the case demands. The most usual application made by the courts is to the payment of the earliest debt or item on the account, as was done by the court in the instant case, and this rule is adopted more often in suits upon current accounts. Phipps v. Willis & Bro., 11 Tex. Civ. App. 186, 32 S. W. 801; Id., 93 Tex. 648; Shuford v. Chinski, 26 S. W. 141; Willis & Bro. v. McIntyre, 70 Tex. 34, 7 S. W. 594, 8 Am. St. Rep. 574. Pleasants, Justice, said in the Phipps Case: “The rule, which requires unappropriated payments to be applied to the items in a running account according to their priority, has its foundation, we think, in the presumed intention of the debtor, rather than in the purpose of the court to prevent the bar of the statute. When justice demands it, the court will apply such payments to accounts which are barred; and we must therefore look for some other reason for the rule than the purpose to save the account from limitation, and that reason is, we think, the presumed intention of the debtor, when he made the payments to apply them to the liquidation of the account in the order in which the items of indebtedness were incurred.” It will be observed, however, that in none of the eases cited from the reports of our own state was the question of application of payments made by a new firm to debts due by the old firm, considered. The general law is, as has been announced in the cases cited, that when there are payments made, and neither the debtor nor the creditor applies them to any particular debt or to any part of the debt (when there is but one debt), there seems to be no inflexible rule for applying the payments, but they must be applied as the justice of the case demands. Phillips v. Herndon, 78 Tex. 378, 14 S. W. 857, 22 Am. St. Rep. 59; State v. Middleton, 57 Tex. 185; Taylor v. Coleman, 20 Tex. 772; Proctor v. Marshall, 18 Tex. 63. By reason of the peculiar facts and circumstances in this case, we think this is the rule which we should adopt. The account sued on herein, according to the dates of the several items, began February 10, 1908, and was closed January 21, 1909. Wynn transferred his interest in the firm business to Tuttle on March 30, 1908, and appellant was notified of the transfer April 20, 1908. Under the law, Wynn would be liable to appellant for that part of the account charged during the months of February and March and until April 20th. The effect of the court’s instructions was to apply payments made by the new firm more than a year after Wynn had disposed of his interest in the business to the extinguishment of that portion of the account. The note sued upon executed on April 20, 1908, is shown by the evidence to have been in lieu of the unpaid account against the old firm prior to February 10, 1908. In our opinion, the equities in this case, as will appear from the above statement of facts, make the instructions given by the court to credit the payments upon the first items of the account improper. It has been held by our Supreme Court, in the case of Freeman v. Huttig Sash & Door Co., 153 S. W. 122, that a new member of an existing firm does not become liable for debts already incurred in the absence of an agreement of that effect, express or implied, and that the presumption of law is against the assumption of such liability. Wynn had the right, in transferring his interest in the firm business to Tut-tle, to have Tuttle assume part of the outstanding indebtedness as part of the consideration for the transfer; but this record is silent upon that point, and the presumption, as stated in the above-cited case, is that Tuttle did not assume any of the indebtedness existing against the old firm and for which Wynn was still liable. Neither Tut-tle nor Jour dan are parties to this suit, and, so far as the record shows, are indifferent as to what application the court may make of the payments made by them. The record shows that the firm was thrown into bankruptcy soon after the last payments were made and they have both been discharged by the bankrupt court.

In this state of the case, the pertinent inquiry is: What right has appellee, Wynn, to insist that payments by the new firm be applied by the court so as to extinguish indebtedness for which he is clearly liable? Appellant contends that Tuttle paid full value for Wynn’s interest in the business. In other words, that he paid Wynn one-half of the invoice price of the stock, exclusive of the debts. The bill of sale recites the consideration paid by Tuttle to Wynn 'as $5,600. Appellant introduced in evidence the deposition of Geo. W. Parker, official reporter of the United States District Court, whose testimony shows the evidence of Wynn, during the bankrupt proceedings, to have been as' follows: “Q. What was the consideration of the sale of your interest in that business? A. The consideration was $4,200. Q. Was that consideration paid? A. I had bought a piece of land from Mr. Tuttle — his half interest in a tract of land there — and he was owing me quite a little sum of money, and in the trade he gave me $4,200 for my interest in the business, which was 75 cents on the dollar on what the business was supposed to be worth, what Mr. Jourdan wrote me the business was worth after he had invoiced in January. It amounted to $4,200. That is the amount that he paid me for the business. That is, he was to pay. * * * He didn’t pay.” If as a fact Tuttle paid Wynn for the full value of his half interest, as shown by the invoice, without taking into consideration any of the indebtedness, it would be inequitable for Wynn to escape payment of any indebtedness which accrued prior to April 20, 1908. If he did not get full value, but Tuttle paid him for his half interest less the indebtedness against such interest, then the application of the payments should be made in accordance with the rule announced by the court in the charges quoted. It, will be seen, from the testimony quoted above, that the record is not clear upon this point, and the burden was upon appellee to show the facts bearing upon this issue. Even if appellee has failed’ inadvertently to protect himself in his trade with Tuttle as to the debts of the old firm, this fact should not operate to the detriment of appellant. Appellant is not shown to be at fault in any particular.

We think the case of St. Douis Type Foundry Co. v. Wisdom, 72 Tenn. (4 Lea) 695, should control the disposition of this controversy. In that case it is said: “Previous to the 3d day of August, 1870, W. W. Gates, Don Cameron, and J. T. Hicks were partners in the publication of the West Tennessee Whig, and D. M. Wisdom and two other persons were partners in publishing the Jackson Tribune. About the date mentioned, Gates, Cameron, Hicks, and Wisdom formed a new partnership, bought out Wisdom’s partners, and commenced the publication of a new paper, called the Jackson Whig & Tribune. The style of the old firm as well as the new firm was W. W. Gates & Co. The old' firm had a running account with the St. Louis Type Foundry Company, and the new firm continued to make purchases from the same company. From the 3d of August, 1870, to the 15th day of December, 1870, the purchases of the new firm from the foundry company amounted to $1,248.65, and the payments on the account during the same time amounted to $1,340.00. Gates was the bookkeeper of both the old and new firm, and made all the payments. On the 15th day of December, 1870, Gates closed the account of the foundry company by executing three notes in the name of W. W. Gates & Co. for $658.76 each. The present suit was brought on these notes against Gates, Hicks, and Wisdom, as partners, under the name of W. W- Gates & Co. Gates and Hicks, being equally liable whether the notes were given for the debt of the old firm or new firm, have acquiesced in a judgment against them. Wisdom contested Ms liability under pleas of nil debit payment and non est factum. The cáse was tried by the judge without a jury, who found the issues and. rendered a judgment in favor of Wisdom. The Type Foundry Company appealed in error. As a fact, the account on the plaintiff’s 'books being in the name of W. W. Gates & Co., for the old firm, was continued under the same name for the new firm; but there is nothing to show that this was done with the assent of the members of the new firm. There is evidence that the first large payment after the 3d of August, 1870, was raised and made for the purpose of giving the new firm credit with the plaintiff. The proof is clear that the plaintiff, at the time the notes sued on were given, knew that the account, for the balance of which they were executed, had been contracted by separate firms, and Gates himself proves that neither he when he gave them, nor the agent or members of the Company who received the notes, intended to bind the new firm for the debts of the old firm. The previous payments after the organization of the new firm were made by Gates without any direction as to their appropriation, and it does not appear that the plaintiff then, or at any other time, made a specific appropriation thereof. Three small and two large payments were made between the 3d of August and the 15th of December, 1870. The defendant claims that the two large payments, which together exceed the purchases of the new firm, were made with the assets of that firm. The circuit judge so found as a fact, and, there being evidence to sustain this view, the finding is, like the verdict of the jury, conclusive under the rule of this court. The evidence has been examined, however, and leaves no doubt whatever as to the first of the large items, and very little as to the other. The money which made these payments was furnished by the new firm. The notes were not intended to be binding on the new firm, nor would they be in law, except to the extent of the consideration which inured to the benefit of that firm. If then the payments, which together, exceeded the account against the new firm, be applied to the satisfaction of that account, there would be no consideration to sustain the notes nor the action based thereon. The plaintiff must fail in his é action unless he can show that the payments should be otherwise applied, and the argument on behalf of the plaintiff is that the law will apply them to the oldest items on the whole account, although those items were contracted by the old firm. In other words, the contention is, that, in the absence of any agreement of the parties, the law will apply the money of one person or firm to the payment of the debt of another person or firm. Such a rule would be manifestly inequitable, and can hardly be sound.” The court then announced that where no appropriation has been made by either party the law will apply it according to the intrinsic justice and equity of the case, and then continues: “For, as we have seen, neither the debtor nor the creditor is shown to have made at the time of payment, a specific appropriation of the payments, and it would clearly not be ‘according to the intrinsic justice and equity of the case’ to apply the money of the new firm to the payment of the debts of the old firm. There is another difficulty in plaintiff’s way. The question presented is not one of the application of payments as between debtor and creditor, where each may in turn elect to make the application, and where, in the absence of an election, the law would apply them, but the payment of the funds of one party to a creditor, who has a debt against that party and also a debt against another of the same name. The creditor may elect to apply the payment to any debt of the debtor, or the law may apply it for him. But the creditor, in the absence of an agreement, express or implied, cannot apply the money to the satisfaction of a debt of a third person; nor, of course, would the law ever so apply it. If a payment may, by reason of the peculiar nature of the business, the assumption of a new partner, or a long-continued course of dealings, be applied to another debt than that of the payer, the application can only lie sustained upon the ground of assent, express or implied. No such assent appears in this case. There can be no binding assent by conduct except with full knowledge of all the facts, and the whole doctrine of the appropriation of payments turns upon the ■intentions of the debtor, either express, implied, or presumed. 1 Story’s Equity Jurisprudence, 459c.”

We have quoted from the opinion at length because the facts are peculiarly applicable to the facts of the instant case and the law announced meets our approval. Tuttle had invested his money, his time, and his energy in the 'business of W. F. Jourdan Furniture Company on March 30th; had paid appellee to his satisfaction for his interest therein. Manifestly, the funds acquired thereafter by the firm belonged to Tuttle and his partner, and it would violate every known rule of business and would be unsupported by any facts in this case for us to presume that such funds were paid to appellant upon the debts due by the old firm. And the charge of the court has the effect of applying one man’s money to the payment of another’s debt. The error in giving these two paragraphs of the charge will require a reversal of the case.

In view of another trial, we desire to call the court’s attention to this rule: “What were the intentions of the parties, whether of the debtor or creditor, is a question of fact to be determined by the jury from all the circumstances of the case. When neither the debtor nor the creditor has manifested an intention to make application pf a payment and no such intention can properly be deduced from all the circumstances of the case, the court will direct the application equitably to all parties concerned.” 2 Am. & Eng. Enc. of Law, p. 452.

The twelfth assignment calls to our attentiom some apparent contradictions and discrepancies in the testimony which is a matter exclusively for the jury. This assignment will not be considered.

The brief contains no assignment numbered 13, and the fourteenth assignment is disposed of by what has been said in our discussion of the second assignment.

The fifteenth assignment is based upon the court’s refusal to give appellant’s fourth special charge, instructing the jury that if they believed from the evidence that plaintiff was given actual notice of the sale by Tuttle, at the time of the execution of the note in controversy, nevertheless plaintiff was entitled to recover for all goods sold by it to the W. F. Jourdan Furniture Company during the time Wynn was a member of the firm until actual notice was given to plaintiff. The court did not err in refusing this charge because it limited the notice to actual notice, when, as we have heretofore said, constructive notice was sufficient; and the charge was further improper in that there was no pleading by appellant upon which the jury could have based a verdict for the goods sold to the Jourdan Furniture Company prior to the. time of the execution of the note. Plaintiff’s petition declared upon the note in which the indebtedness evidenced by the account prior' to April 20, 1908, had been merged, and there was no alternative plea upon an account covering the same items and period of time.

The seventeenth assignment of error has already been disposed of by what we have said in our disposition of the third assignment. The testimony of Tuttle tended to show that the party to whom he communicated the fact that he had purchased Wynn’s interest was the representative of appellant who took the note sued upon.

The nineteenth assignment presents the same matter which we discussed under the ninth assignment.

Reversed and remanded.