author: PIUFF, C. J.

text:
    TEXAS SEED & FLORAL CO. v. CHICAGO SET & SEED CO.
    (No. 984.)

    (Court of Civil Appeals of Texas. Amarillo.
    May 10, 1916.
    Rehearing Denied June 14, 1916.)
    1. Contkacts <&wkey;10(4) — Construction—Conditions — Effect.
    A contract for the sale of onions to be grown “subject to crops” is not unilateral and will not excuse reasonable efforts on the part of the seller, since contracts .should provide against hardships and performance will not be excused if the hardship is not anticipated, and the contract is not nonenforeeable when the contingency provided against does not happen.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 37; Dee. Dig. <&wkey;>10(4).]
    2. Contracts <&wkey;10(4) — Construction—Conditions — Effect.
    A contract for the sale of onions to be' grown, providing that the seller should not be held to delivery if the onion sets grown to fill the order were damaged or destroyed from any cause not resulting from its negligence, was not a unilateral contract, but a promise for a promise, and requires no more than the law. employs, _ since where a contract depends upon the continuance of a thing, a condition is implied that its destruction without negligence will excuse performance.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 37; Dec. Dig. &wkey;10(4).]
    3. Contracts &wkey;>134 — Construction—Unilateral Contracts.
    If a contract for the sale of onions to be grown could be defeated by failure of crops or destruction while being held was unilateral, part performance by the buyer in growing a crop and holding it for shipment, being that upon which mutuality depends, relates back and makes the contract good from the beginning, since a contract does not lack mutuality because every obligation is not met by an equivalent counter obligation, because where the act of one. depends upon the act of the other, an obligation to allow the thing necessary for the completion of the contract is necessarily implied.
    [Ed. Note. — For other cases, see Contracts, Gent. Dig. § 722; Dec. Dig. <&wkey;>134.]
    4. Corporations &wkey;>591 — Consolidation — Evidence — Sufficiency.
    In an action on a contract for onions to be grown, brought against a corporation formed upon the consolidation of the corporation with which the contract was made with another, evidence held sufficient to justify a finding that the new corporation agreed to assume the indebtedness of its constituent companies.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2034, 2368-2372; Dec. Dig. &wkey; 591.]
    5. Corporations <§»590(1) — Consolidation —Assumption of Debts — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1137, authorizing the consolidation of two or more corporations under a new corporate name, or the name of either, with the privileges, immunities, and rights of property of. each, . although the mere purchase by a corporation of the franchise of another does not constitute a consolidation, where two corporations consolidated and formed a new corporation, which took the name of one and assets of both, they did not defeat the obligations of the old companies, but both rights and liabilities are common; and, where the new corporation, although nothing was said at the time of consolidation, paid all but the contested debts of the old corporations, there was an implied promise to pay its obligations.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2354, 2361; Doc. Dig. &wkey;590(l).]
    6. Sales <&wkey;339, 369 — Actions for Breach of Contract — Damages.
    Where a contract for the sale of onions to be grown before time for performance was repudiated by the buyer, since one party cannot himself, by renunciation, rescind a contract, the seller could accept the repudiation at the time and sue for damages, or elect to consider the contract as still in force, treat the onions as the property of the buyer, and soil them at the time set for performance, damages being the difference between the price brought and the contract price.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §| 924, 926, 1083, 10S4; Dee. Dig. &wkey; 339, 369.]

      Error from District Court, Dallas County; J. C. Roberts, Judge.
    Action by the Chicago Set & Seed. Company against the Texas Seed & Eloral Company and others. From a judgment for plaintiff and other defendants, the named' defendant brings error.
    Affirmed.
    John C. Robertson and Jas. P. Haven, both of Dallas, for plaintiff in error. Thompson, Knight, Baker & Harris, Short & Feild, Geo. S. Wright, and Alex S. Weisberg, all ■of Dallas, for defendant in error.

      Writ of error pending in Supreme Court.

   PIUFF, C. J.

The defendant in error, Chicago Set & Seed Company, brought this action against plaintiff in error, the Texas Seed & Floral Company, Robinson Seed & Plant Company, C. W. Robinson, W. M. Robinson, E. P. Brown, and A. J. Mayes, for damages upon the alleged breach of contract. The several parties answered, and the ease was tried before the court without a jury, who rendered judgment in favor of the Chicago Set & Seed Company, against the defendant Texas Seed & Floral Company, for the sum of $2,025, and judgment in favor of the defendants Robinson Seed & Plant Company, C. W. Robinson, W. M. Robinson, E. P. Brown, and A. J. Mayes.

It will not be necessary to set out the pleadings and facts further than is stated by the trial court in the following findings of fact and conclusions of law:

First. On January 13, 1910, the defendant Robinson Seed & Plant Company made and executed at Dallas, Tex., a certain written contract and order for the purchase of 2,000 bushels of onion sets from the plaintiff, Chicago Set & Seed Company, which order and contract was as follows:

“A. L. Jones, Pres. & Treas. L. B. Jones, V. P. G. A. Bradt, Sec. Office of Chicago Set & Seed Company, Chicago, Ill. Contract for onion sots, between Chicago Set & Seed Company, of the city of Chicago, state of Illinois, party of the first part and Robinson Seed & Plant Co., city of Dallas, state of Texas, party of the second part: Said party of the first part agrees to grow and to hold for shipment to party of the second part the following amount of onion sets for delivery January, 1911, 2,000 bushels. -bu. dark red sets at $1.30 per 32 lb. bu. - bu. at $- bu. .— bu. yellow sets at $1.20 per 32 lb. bu. -bu. at $-bu. - bu. white sets at $1.60 per 32 lb. bu. -at $-bu. Party of the second part, as buyer agrees to take the sets ordered hereon at times specified, and to pay for them at the net cash prices annexed thereto, upon presentation of sight draft with railroad company’s bill of lading showing the sets have been delivered for said buyer on board cars at Chicago, in good condition by said sellers. All orders are taken subject to approval of Chicago Set & Seed Co., at their home office in Chicago, and providing stock is unsold upon receipt of order. All orders taken previous to receipt of new crop are subject to crop. It is also understood that in ease of damage or destruction of the onion sets held to fill this order, from any cause not resulting from the negligence of Chicago Set & Seed Company, that Chicago Set & Seed Company will not be held to deliver same, and shall not be held liable for the nondelivery of goods while they have any overdue account against the within party. Packages charged extra. Secondhand barrels, 20$ each; one bushel crates, 11$ each; two bushel sacks, 5$ each. Sets to be screened through 1%-inch mesh sieve. Robinson Seed & Plant Co., per C. W. Robinson. Chicago Set & Seed Co., G. A. Bradt, Sec’y. January 13, 1910.”
Second. On the 7th day of April, 1910, defendant Robinson Seed & Plant Company, by written communication to the plaintiff, specified the quantities of the different kinds of onion sots desired by defendant, stipulating 850 bushels yellow sets, 850 bushels red sets, and 300 bushels white sets.
Third. That on January 13, 1910, said order and contract was forwarded through the United States mail to the plaintiff, Chicago, Set & Seed Company, and in due course of mail same was received by plaintiff, Chicago Set & Seed Company, at its home office in Chicago, Ill., at a time when stock was unsold, and said order and contract was duly approved by plaintiff at its home office on or about the - day of January, 1910.
Fourth. That shortly after the approval of the said order and contract for the purchase of the onion sets above described, the plaintiff, pursuant to its duty, began growing and preparing the onion sets described in said order and contract, and thereafter, all said onion sets were grown, and practically all the same had been harvested on or before August 6, 1910.
Fifth. That on August 6, 1910, defendant Robinson Seed & Plant Company wrote a letter to the plaintiff, Chicago Set & Seed Company, as follows: “We are inclosing herewith our contract for onion sets, and beg to advise that our firm has gone out of business, and will kindly ask you to cancel your order.” And in due course of mail, on August 10, 1910, said letter was received by plaintiff at Chicago, Ill.
Sixth. That at the time of the receipt of said letter by the plaintiff, the onion sets described in the order or contract had been sown, grown, and practically harvested, there being only a small portion of same unharvested, and it was necessary for the onion sets that had not been harvested to be harvested in order to prevent their being totally lost and in order that they might be properly preserved.
Seventh. That the plaintiff refused to accept a cancellation of the said contract by defendant Robinson Seed & Plant Company, and so advised said defendant, and after the receipt of the letter of date August 6, 1910, plaintiff completed the harvesting of the onion sets that had not been harvested at the time of the receipt of said letter, stored all the onion sets for the account of defendant Robinson Seed & Plant Company, and notified said defendant that it would hold defendant liable on its contract.
Eighth. That on October 10, 1910, defendant Robinson Seed & Plant Company again refused to perform its contract with plaintiff, and on January 24, 1911, the plaintiff wrote the defendant Texas Seed & Floral Company, advising that plaintiff would attempt to hold the Texas Seed & Floral Company upon the contract of purchase of onion sets made by the Robinson Seed & Plant Company, and also advising that the onion sets were at the time held for the account of the Texas Seed & Floral Company, and any expense incurred in reference to the onion sets after January, 1911, would be charged to the defendant Texas Seed & Floral Company. This letter was received by the Texas Seed & Floral Company, and on January 27,. 1911, C. W. Robinson, who was at that time one of the officers of the Texas Seed & Floral Company, on behalf of the Robinson Seed & Plant Company, answered this letter, and instructed the plaintiff to dispose of the onion sets, and advising that if they. were shipped it would be at the risk of the plaintiff.
Ninth. Meanwhile, continuously from and after the repudiation of said contract by the Robinson Seed & Plant Company, plaintiff diligently tried to dispose of said onion sets, but was unable to sell the red sets. Finally, upon about - it succeeded in selling the yellow and white sets for $605, which was the best price obtainable therefor, and which was the actual cash value of said onion sets at the time and place of said sale.
Tenth. That a reasonable charge for the storage of onion sets during. the time they were held by the plaintiff subject to the order and. for the account of the Robinson Seed & Plant Company, to wit, 5 cents per bushel per month, making a total of $85.
Eleventh. That plaintiff in all things complied with the terms and conditions of the contract aforesaid.
Twelfth. That the Robinson Seed & Plant Company was a corporation, organized under the laws of Texas, and doing business at Dallas, and its officers, directors, and stockholders were C. W. Robinson, W. M. Robinson, E. P. Brown, and A. J. Mayes.
Thirteenth. That the Texas Seed & Floral Company was a corporation organized under the laws of Texas, and doing business at Dallas, and at the time of the execution of the contract aforesaid all its capital stock was owned by R. Nicholson.
Fourteenth. That it was agreed between the stockholders, officers, and directors of the said two corporations, about June, 1910, that said two corporations should be consolidated, and the same was done in the following manner: A charter was obtained from the state of Texas, for a new corporation to be known as the Texas Seed & Floral Company, said new corporation being one of the defendants herein. All of the assets of each of said two constituent companies were by said companies transferred to the new corporation, with the purpose and intent of said constituent companies then and there ceasing to do business, and they did then and there cease to do business. It was agreed and understood that the stockholders in the constituent companies should receive for their respective interests in said companies stock in the new corporation, the amount of said new stock to be determined as soon as the net equity of the stockholders of the said two constituent companies could be ascertained definitely, by said net equity being meant the value of the assets liabilities of said respective constituent companies, and the amount of said net equities being unknown and unascertained at the time of said consolidation. That the open accounts belonging to each of said constituent companies were kept separate by the new corporation, and collections made upon same by the latter, and the proceeds of said collections applied from time to time to wipe out petty liabilities of said constituent companies, as far as the said proceeds would go. That all the other assets of the said two constituent companies, consisting principally of goods, wares, and merchandise, were transferred to the new corporation and commingled together, and were commingled with other goods, wares, and merchandise belonging to the new corporation, and the whole sold from time to time, and the proceeds used in the regular course of business of the new corporation.
Fifteenth. That the new corporation did not, at the time of the making of said agreement, assume in express words the payment of the debts of the constituent companies,, but later the new corporation in fact paid said debts in the manner aforesaid, and all the debts of the constituent companies were in fact paid off by the new corporation, except one or two disputed debts and obligations, among which disputed debts and obligations is the one involved herein, and the new corporation finally assumed the debts of the said constituent companies.
Sixteenth. That the active officers and directors of the new corporation were O. W. Robinson, W. M. Robinson, E. P. Brown, and R. Nicholson, and all the matters and things aforesaid were done by the said persons.
Seventeenth. That the capital stock of the new corporation was $125,000, and all of the same was owned by the old stockholders of the said two constituent companies, except $5,000 thereof, subscribed by William Doran.
Eighteenth. That said stock remained unissued until long after the matters and things involved herein, because there was no agreement ns to or ascertainment of the value of the net equities aforesaid.
Nineteenth. That the new corporation, the defendant Texas Seed & Floral Company, paid nothing to the Robinson Seed & Plant Company, or the old Texas • Seed & Floral Company, for the assets of the said constituent companies, which were transferred to the new corporation, as aforesaid, and said assets were taken over by the new corporation, and appropriated to its own use and benefit. And in the process of consolidation the stockholders in the constituent companies were to be allotted stock in the new corporation, as above stated, in lieu and stead of their stockholdings in the constituent companies, and the business of each of the said constituent companies was, without interruption, merged into the new corporation, as aforesaid; and the managing officers and directors of the said two constituent companies became the managing officers and directors of the new corporation, and they negotiated and carried out the said consolidation, and did collect, sell, commingle, and appropriate the said assets, as aforesaid. That the assets commingled, as aforesaid, were so commingled as to render them indistinguishable and untraceable.
Twentieth. That at the time of said consol-idátion, the assets of the old Texas Seed & Floral 'Company were approximately -, and the liabilities approximately $-, and that at said time the reasonable value of the assets of the old Robinson Seed & Plant Company were $35.000, and its liabilities were approximately $45,000, 'but all parties believed at the time of said consolidation that the assets of the old Robinson Seed & Plant Company would substantially exceed its liabilities.
Conclusions of Law.
. (1) I conclude - that there was a valid and binding contract of purchase for said onion sets, and that the same was breached by the Robinson Seed & Plant Company without just cause, and the plaintiff thereupon became and still. is entitled to the contract price of said onion sets, plus $85 storage, after deducting from said amount the sum received by it for the resale of the yellow and white sets.
(2) I further conclude that said obligation, amounting to $2,025.00, with interest from the -day of-until paid was a valid and binding obligation upon the Robinson Seed & Plant Company, and that by reason of the facts herein shown the new corporation, the Texas Seed & Floral Company, defendant herein, became and still is bound to pay same to the plaintiff.” .

The contract entered into was signed by the Robinson Seed & Plant Company, as will be perceived, and where we refer to plaintiff in error as having made the contract, it is intended to include the contract made by the Robinson Company.

The first and second assignments of error and the propositions thereunder assert the judgment is erroneous for the reason that the contract sued on is unilateral, and lacks mutuality, and therefore unenforceable; that the Chicago Set & Seed Company was not liable under the terms of the contract for nondelivery. Defendant in error agreed to

grow and hold for shipment to plaintiff! in error the amount of onions specified all orders taken previous to the new crop “are subject to crop.” This order was taken before the new crop. The order given and accepted subject to the new crop did not relieve defendant in error from growing and holding for shipment the amount agreed upon and at the price stipulated. The defendant in error could not arbitrarily refuse to grow and ship the onions, but the agreement is that it would undertake to grow and ship. This would not, therefore', relieve it from its obligation to do so. If, after undertaking and using reasonable effort to grow, no crop was made, under the agreement perhaps defendant in error would be relieved. The contract implies that defendant in error will undertake to grow and use reasonable effort to do so. It is bound, on its part, to perform this part of the agreement, as much so as if it had been written into the contract in terms. Jones v. Gammel, 100 Tex. 320, 99 S. W. 701, 704, 8 L. R. A. (N. S.) 1197. If its efforts would not grow a crop, and some natural cause, over which it had no control, prevented a crop, this clause might relieve it. The other portion of the contract, that onion sets held to fill the order, if damaged or destroyed from any cause not resulting from the negligence of defendant in error, that it should not be held to deliver, did not give the defendant in error an arbitrary right to refuse to deliver or to damage or destroy the onions. If they were held for delivery, defendant in error, under the contract, was required to use reasonable care to preserve them from damage or destruction,- and if it did not, it was not excused from delivery. This does not render the contract unilateral. The agreement to perform on the part of defendant in error does not rest upon its will, wish or wants, but is a promise for a promise. A contract whose performance depends upon the continuance of a thing implies a condition that the destruction of the same without negligence shall excuse performance. The Tornado, 108 U. S. 342, 2 Sup. Ct. 746, 27 L. Ed. 747; Howeth v. Anderson, 25 Tex. 573, 78 Am. Dec. 588. The stipulation in the contract if damaged or destroyed by causes not resulting from negligence excuse delivery perhaps require no more than the law implied. The agreement to grow .and deliver the onion sets from new crop, subject to crop, implies if there is no crop not resulting from fault on the part of the defendant in error, there can be no delivery. It is a well-recognized rule that contracts should provide against difficulties and hardships, and the hardship should be anticipated; if not, the party will not be excused from performance, but held to his contract. Where such contingencies are provided against in the contract, the contract by the provision is not thereby rendered nonenforceable, when the contingency did not happen. North Texas Construction Company v. San Jacinto Oil Co., 95 S. W. 706. The performance in part related back to the promise and made a binding contract. The plaintiff in error agreed to take and pay for the onion sets; defendant in error agreed to grow, hold, and deliver them at the specified time and price. Even though the agreement could have been defeated by failure of crop or the destruction while being held, the performance on the part of defendant in error, in growing and gathering being that upon which the mutuality depends relates back and makes the contract good from the beginning if it was not so before. Taber v. Dallas County, 101 Tex. 241, 106 S. W. 332, on page 330; Pagé v. Payne, 41 Tex. 143, on page 146; Rose v. Railway, 31 Tex. 49.

This case is distinguishable from American, etc., v. Kennedy, 103 Va. 171, 48 S. E. 868, cited by plaintiff in error. If the onion sets were not damaged or destroyed, delivery under the contract could be enforced or damages recovered for failure to do so. The defendant in error was bound to use reasonable care not to damage or destroy. Damage or destruction was all that would excuse nondelivery after they were grown. Delivery did not depend upon the will or wish of the defendant in error, but it was bound to reasonable diligence to preserve, and keep them for that purpose. The plaintiff in error also cites Texas Produce Exchange v. Sorrell, 168 S. W. 74, which interpreted the contract then under consideration:

“That there is not a word in the contract which binds the Produce Company to handle the onions, but only limitation upon its liability in the event it should handle them, and giving it powers and privileges.”

We do not interpret the contract in this case as not binding on the defendant in error. On the contrary, it was bound to grow, keep, and ship onions in the quantity and for the price designated. This liability could' only be excused by failure of crop and destruction or damage not caused from the negligence of the defendant in error. We do not. interpret the contract in question as unilateral, but one upon consideration mutually binding. Generally, there is mutuality of obligation where both parties undertake to do-something. A contract does not lack mutuality merely because every obligation of the one party is not met by an equivalent counter obligation of the other. -So, where an act to be done by one party can be done only upon a corresponding act by the other, an obligation by the latter to do or allow the thing necessary for the completion of the contract is necessarily implied. R. C. L. Contracts, § 95, vol. 6; Jones v. Gammel, supra.

In this case the evidence and findings of the trial court show that the defendant in error performed part of its obligation before notice that the plaintiff in error would not take the onions. The order or contract was given and executed a year in advance-The understanding, as evidenced by the contract oí .the. parties, is that the defendant, would have to grow the onions, gather them in season, and hold until the date of delivery. The evidence indicates that after the wort of growing and gathering there is but little market for the product. Orders are taken in advance, so that the output is sold before grown. Defendant, relying upon this agreement, grew and gathered onions, and after this work had been done, and after it had complied with its obligation or the demands of the contract, plaintiff sought to renounce its obligation. We think the rule in unilateral obligations, where the party does the thing or performs in part, at least, the thing to be done, that the promise will relate back to the original contract will apply, and that plaintiff will be bound thereby, even if it should be determined that this is a unilateral contract. Assignments 1 and 2 are overruled.

The third, fourth, and fifth assignments present the propositions: (1) That there is no evidence supporting the fifteenth finding of fact by the trial court that the new corporation assumed the debts of its constituent companies; (2) the new corporation, in the absence of an agreement to assume the debts of the old, would not be liable therefor on account of having purchased the stock of the old; (3) the old company having been dissolved according to law, the officers chereof became trustees to liquidate the debts and dispose of its assets, in the absence of an appointment of a receiver.

If the finding of the trial court has support in the testimony that there was an agreement that the new corporation should assume and pay the indebtedness of its constituent corporations, then the above propositions must fail. The facts and the evidence in this case shows that the Robinson Seed & Plant Company and the old Texas Seed & Floral Company, by agreement of its officers and stockholders, consolidated and obtained a charter for the new corporation, retaining the corporate name Texas Seed & Floral Company, with all the assets of both companies which were placed into the new organization, and the debts and obligation of these old companies were paid therefrom. It is shown by the testimony that, some few months after the new corporation, it borrowed the sum of $75,000 for the purpose, among other things, of paying an indebtedness of the Robinson Seed & Plant Company to one of the banks, of $45,000, and, as expressed by Mr. Nicholson of the old Texas Company, to cover everything. Mr. Nicholson testifies that there was a written contract drawn at the time of consolidation, but this appears to have been lost or mislaid, and was not produced upon the trial. The witnesses, however, testified that there was nothing stated in that contract about the assumption of the debts, and Nicholson says that he could not say that the new company assumed the claim sued on, but further testified:

“Of course these things came up you know, after the consolidation was made and of course the new company I suppose would have to take that up.”

And he also testified in one or two places that, while the contract of consolidation did not provide for assumption, they did later assume the debts; that the merchandise was thrown together, and instead of waiting to realize on the assets or merchandise, they decided to borrow money and take care of the debts.

W. M. Robins testified:

“The general outline of the deal of the consolidation was this: That each side was to throw its assets into the new corporation; that as soon as it could be definitely ascertained what the net equity of each side was, stock was to be issued in the new corporation to the respective sides representing their net equity. * * * All small accounts I presume have been paid. The Texas Seed & Floral Company paid them. There is another debt or two in question that have been paid. There is a dispute about them. All the debts except those in dispute have been paid by the Texas Seed & Floral Company.”

The evidence shows that the stock was to be issued in accordance with the value of the equity of the respective parties in the two old companies, and that equity was to be determined and ascertained from the assets left after the payment of. the indebtedness of the two companies, and in proportion thereto.

We believe the trial court’s finding that there was an agreement to assume the indebtedness of the constituent companies of plaintiff is supported by the testimony. The authorities cited by appellant (Island City Savings Bank v. Sachtlebeen, 67 Tex. 420, 3 S. W. 733, and Cattlemen’s Trust Co. v. Beck, 167 S. W. 753), if they can be construed to hold, as contended by plaintiff, that there must be an express assumption, would not therefore require a reversal in this case, for the reason that we believe the evidence supports the court’s finding. In the first case cited, the Supreme Court says, in substance, that it was not doubted that when the bank was unable to pay its debt it might transfer its assets to a new organization without incurring liability for the debts of the insolvent concern, but such was not the fact in that case. There was, in fact, no new corporation, only a transfer by the stockholders of their interest. There was a mere change of membership, and not a change of the corporation itself. That case does not hold, and we do not think implies, that the liability of the new corporation must be established by an express agreement; the latter case cited by appellant for the statement that:

“The law seems to be that, in the absence of an agreement to this effect on the part of the new company, it is not bound for the obligation of the old.”

The court, in that case, upon rehearing, stated, in effect, that their holding that there was no evidence of assumption, and that it liad not received any benefits or come into possession of any assets from the old company, was error; that the evidence in both these respects shows that there was an agreement and the taking of all the assets of the old company. The case quotes 10 Cyc. 287, which is to the effect that the new corporation will be liable for the obligation of the old:

“(1) Where the circumstances are such as to warrant the construction that the former is not a separate and distinct corporation, but merely a continuation of the latter, and hence the same in law; and (2) where it has, in express terms, or by reasonable implication, assumed debt of the old corporation, where this liability is imposed by the statute under which reorganization takes place, or where such liability is imposed upon it by decree of the court on foreclosure.”

Article 1137, Vernon’s Sayles’ Civil Statutes, authorizes the consolidation of two or more corporations, under a new corporate name, or under the name of either, with all the privileges, immunities, and rights of property enjoyed by each at the date, of the expiration of their charters. In this case the new corporation took the name of the old and the assets belonging to both. Certainly by this act they did not defeat the obligations of the old companies. We cannot conceive that it was ever the purpose of the Legislature to work such a result. The old companies having voluntarily assumed a new name, their rights are common, and their liabilities, it seems to us, should be. They could not be sued in the old name. Property in the new corporation belonging to the old cannot be divested out of the new in the name of the old. The mere purchase of franchise, etc., by one corporation, of that of another, does not constitute a consolidation, but this case presents a consolidation of two corporations, who are the constituents of the new, thereby vesting it with all the rights, property, and immunities of both. This should, it appears to us, be sufficient, with the other facts in this ease, to show an implied promise to pay the obligations of the old, whose representative it is in name and in law. We believe the above proposition is supported by the well-considered case of Atlantic & Birmingham Ry. Co. v. Emma Johnson, 127 Ga. 392, 56 S. E. 482, 11 L. R. A. (N. S.) 1119. The opinion in that case was delivered by Lumpkins, J. We do not quote from the opinion, but believe that the reasons given there which render the new corporation liable for the obligations of the old are unanswerable. We quote the following from the notes under that case, at page 1120:

“Where the corporation incurring the liability ceases to have an independent existence de jure, the consolidated or absorbing corporation is liable at law as well as in equity, the ground of such liability being sometimes stated to be the continuance of the original corporation under a new guise (citing quite a number of cases). It is frequently said that the extent of such liability is to be measured by the assets received, but as such assets are usually, if not always, greater than the claim in litigation, this question cannot be regarded as having been directly decided. Such limitation wotíld seem inconsistent with the theory that the new or surviving corporation is to be regarded as the alter ego pf the corporation, consolidated or merged, but is reconcilable with the implied assumption theory. Where, however, there is an absorption of the business and assets — in other words a merger de facto — by either a corporation formed for the purpose, or one already in business, the liability of the corporation receiving the assets is rested upon the familiar trust fund doctrine. Since such receiving corporation does not stand as a bona fide purchaser for value, in such case the extent of the liability is necessarily determined by the value of the property received.”

The findings of the trial court in this ease establish a consolidation under the statute. The new corporation, we believe, was liable at law for the obligation incurred by one of the old corporations which is a constituent of the new; at least upon the theory of an implied assumption. In the ease of Railway Co. v. Shirley, 54 Tex. 126, it quotes with approval the following, at page 137:

“The consolidated corporation, for the purpose of answering for the liabilities of the old corporations, is deemed the same as each of its constituents, and may be sued under its new name for their debts as if no change had been made in the name or organization of the original corporation.”

The Supreme Court therein says:

“Evidently such a consolidation cannot be accomplished in disregard of the rights of creditors or stockholders, and accordingly, either in the statute authorizing or in the agreement consummating such consolidation, stipulations are inserted for the protection of those rights. And oven if neither statute nor agreement make mention of creditors, the consolidated corporation is held to have assumed the liabilities of its constituents.”

The Court of Appeals follows the rule above announced in 1 White & Willson, §§ 384, 386; 3 Willson, § 97. It is stated in the last cases cited that it is settled in this state that the new corporation is held to have assumed the liability of its constituents upon voluntary consolidation. The evidence in this case, at most, shows that at the date of consolidation there was nothing said about assuming the obligation of the old company. However, it is ample to show that they afterwards did assume and pay them and agreed to do so and borrowed the money for that purpose; that they recognized at the time of the consolidation that, in order to ascertain the equity that each would have in the new company, or the stock to which they would be entitled, the debts must be deducted or paid from the assets of the old companies in determining their interests in the new.

The sixth assignment asserts error on' the part of the company as to the measure of the damages applied. At the time of the repudiation the contract was not wholly completed. The crop had been grown and nearly all gathered. Substantially all that was required to be done was the delivery. The defendant in error could have accepted the repudiation at the time and sued for the damages on the breach, or it could elect to consider the contract as still in force. One party cannot by himself rescind a contract. The renunciation itself does not amount to a rescission. Greenwall v. Markowitz, 97 Tex. 479, 79 S. W. 1069, 65 L. R. A. 302; Kilgore v. North Texas, etc., 90 Tex. 139, 37 S. W. 598. We regard the contract in question more than a mere order for goods. However this may be, defendant had the right to treat the amount of onion sets ordered as property belonging to the plaintiff, and sell them on plaintiff’s account and recover of it the sum representing the difference between the price brought and the contract price. Waples v. Overaker, 77 Tex. 7, 13 S. W. 527, 19 Am. St. Rep. 727; 2 Mech. on Sales, 1645 et seq. While defendant did not have a right, after the order was countermanded, to do anything which would enhance the damages, it was not bound to treat plaintiff’s repudiation of it as ending the contract. It had the right, as it did, to treat the contract as still in force, and to have its damages determined with reference to the condition existing at the time fixed by the contract for performance. Palestine Ice, etc., v. Walter Connally & Co., 148 S. W. 1109, 1112; Mech. on Sales, §§ 1707, 1088, 1090; 3 Suth. on Damages, § 648.

We believe the trial court applied the proper measure of damages under the facts of this ease and the findings of fact made by the trial court. The case will be affirmed.
      (gzsoEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    A. HARRIS & CO. v. GRINNELL WILLIS & CO.
    (No. 7610.)
    (Court of Civil Appeals of Texas. Dallas.
    June 24, 1916.)
    1. Account, Action on &wkey;»12 — Pleading and Proof — 1“Merchandise.”
    Under the statute relating to suits on sworn accounts, a sworn account, not itemized as required by statute, stating defendant’s indebtedness to plaintiff for “merchandise” bought on certain dates, in the absence of a sworn answer, did not prove itself, as the term “merchandise” includes every article of traffic which is properly embraced in a commercial regulation, so that it did not notify the defendant what it was called upon to deny under oath if any of the articles were not right.
    TEd. Note. — For other cases, see Account, Action on, Cent. Dig. §■ 37; Dee. Dig. <&wkey;12.
    For other definitions, see Words and Phrases, First and Second Series, Merchandise.]
    2. Account, Action on <&wkey;14^-DEFENSE— Burden of PRooe.
    The burden was on the plaintiff to make out its case by legitimate evidence, and, until it has done so the Court of Civil Appeals cannot take notice of the defendant’s defense, if it has any.
    [Ed. Note. — For other cases, see Account, Action on, Cent. Dig. §§ 41, 42; Dec. Dig. <&wkey; 14.]
    Appeal from District Court, Dallas County ; W. F. Whitehurst, Judge.
    Action by Grinnell Willis & Co. against A. Harris & Co. Judgment for plaintiff, and de-. fendant appeals.
    Reversed, and cause remanded.
    Cockrell, Gray & McBride and H. P. Edwards, all of Dallas, for appellant. Bennett Hill, of Dallas, for appellee.
   RAINEY, C. J.

Appellee sued appellant on a sworn account for merchandise amounting to 81,357.92. Appellant answered by general demurrer and general denial. A trial resulted in a judgment for the plaintiff, and the defendant appeals.

When the case was regularly called for trial defendant called for a jury, which was denied. The plaintiff then called attention to the answer of defendant, which was not sworn to, and urged the court not to consider it as an answer. The court did not consider the answer, and rendered judgment for plaintiff on the introduction only of the sworn account which was 'made an exhibit to plaintiff’s petition, and is as follows:

A. Harris & Co., Dallas, Texas, to Grinnell Willis & Co., 44 & 46 Leonard Street.
Payable in New York City funds
Dee. 10 To Mdse 2/10 2/10 271 44
10 " 10 606 52
10 “ 10 101 66
17 “ 17 142 74
20 “ 20 105 48
22 “ 22 130 08
1,357 92

' To the introduction of this account, .without any other testimony, and the rendition of judgment thereon, the defendant duly excepted, and assigns said action of the court as error. We think this assignment well taken.

The sworn account sued on and received as evidence is not such an account as contemplated by our statute as proving itself, although no denial to it under oath is presented. It is not itemized, but only designates the purchases as merchandise bought on certain dates. The term “merchandise” is very comprehensive, and includes every article of traffic, “which is properly embraced in a commercial regulation” (Cyc. 27, p. 478), yet as used in the account here sued on, it does not specify the kind of article that was purchased. Hence it did not notify the defendant what it was called upon to deny under oath if any of the articles were not right. Therefore we take it that the account was not itemized as contemplated by our statute, and not such an open account as when sworn to would be admissible to prove itself, although there was no denial under oath to any item. In Glass Co. v. Roquemore, 88 S. W. 449, Mr. Chief Justice James, in passing upon an account similar to the one here, said:

“The court refused to allow plaintiff to introduce in evidence the verified account. In this, we think, the court did not err, the account in itself not indicating the items nor their nature; and hence it could not be told therefrom that it had reference to matters that could be proved by a sworn account under our statute.”

In Hickman v. Grocer Co., 62 S. W. 1081, this court held that such an account as here sued on was subject to demurrer because not itemized. We are of the opinion that the account was not admissible as evidence, and plaintiff’s case was not properly proven.

We deem it unnecessary to discuss the question of not being allowed a jury, presented by appellant, as this matter is not liable to arise on another trial.

Appellee insists that appellant has no defense to the action, and therefore the cause should be affirmed. The burden was on appellee to make out its case by legitimate evidence, and, until this is done, we cannot take notice of the attitude of appellant as to its defense, if any it has.

The judgment is reversed, and the cause remanded.
      <&wkey;>3?or other eases see same topic and KliY-NUMBSK in ail Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    YOUNG v. STATE.
    (No. 4148.)
    (Court of Criminal Appeals of Texas.
    June 23, 1916.)
    Criminal Law <&wkey;1192 — Appeal—Stipulations — Effect.
    Where there is an agreement on file between attorneys that no motion for rehearing would be filed, requesting immediate issuance of mandate, as accused was confined in the county jail, the mandate will be issued immediately on affirmance.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 3231-3240, 3243; Dec. Dig. •&wkey;>1192.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    W. R. Young was convicted of manslaughter, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction of manslaughter, but without a statement of facts or bill of exceptions. Nothing is presented which can be reviewed in the absence of these.

There is an agreement on file herein by the attorneys for both sides, stating that no motion for rehearing will be filed and requesting that the mandate issue at once, as the appellant is now confined in the county jail. Therefore the clerk is directed to issue at once the mandate in accordance with this agreement. The judgment is affirmed.


author: HARPER, J.

text:
    HALEY v. STATE.
    (No. 4139.)
    (Court of Criminal Appeals of Texas.
    June 23, 1916.)
    Criminal Law <&wkey;1097(l) — Review—Bill op Exceptions and Statement of Facts.
    No question for review is presented by a record on appeal which is accompanied by no statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864; Dec. Dig. <&wkey; 1097(1).]
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    Jim Haley was convicted of disturbing the peace, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of disturbing the peace, and prosecutes an appeal from such judgment.

As no statement of facts accompanies the record, there is no question we can review.

The judgment is affirmed.


text:
    HALEY v. STATE.
    (No. 4140.)
    (Court of Criminal Appeals of Texas.
    June 23, 1916.)
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    Jim Haley was convicted of aggravated assault, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of aggravated assault, and his punishment assessed at a fine of $25.

The record contains no bill of exceptions, and no statement of facts accompanies it. Under such circumstances there is no question presented for review.

The judgment is affirmed.


author: DAVIDSON, J. HARPER, J. PRENDERGAST, P. J.

text:
    McPEAK v. STATE.
    (No. 4125.)
    (Court of Criminal Appeals of Texas.
    June 21, 1916.)
    1. Homicide <&wkey;169(l) — Evidence—Admissibility.
    In trial for murder of a drug store clerk, evidence, that accused before the shooting on same day had gotten a bottle of bitters for a friend from deceased, was inadmissible because irrelevant.
    TEd. Note. — For other cases, see Homicide, Cent. Dig. § 341; Dec. Dig. <@¿=>169(1).]
    2. Criminal Law <&wkey;770(3) — Instructions— F'orm.
    Where an issue is in a case favorable to accused, he should have that issue submitted in an affirmative way untrammeled by conditions which are unfavorable to him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. <&wkey;>770(3).]
    3. Homicide <&wkey;304 — Instructions — Accidental Homicide.
    In a murder trial, it is error to instruct that accused, if homicide was accidental, and if it was not negligent or careless, is not guilty; since the jury should not be required to find that negligent homicide was not in the case before they could acquit on the theory of accident.
    [Ed. Note. — For other cases, , see Homicide, Cent. Dig. § 636; Dec. Dig. <@¿¿304.]
    4. Homicide <&wkey;74 — “Negligent Homicide” —Elements.
    For one to be guilty of negligent homicide, there must be apparent danger of killing, but no apparent intent to kill.
    [Ed. Note.- — For other cases, see Homicide, Cent. Dig. §§ 97-101; Dec. Dig. <@^74.
    For other definitions, see Words and Phrases, First and Second Series, Negligent Homicide.]

      5. Homicide <&wkey;304 — Instructions — Negligent Homicide.
    Where there was no direct evidence that accused intentionally shot his pistol, an instruction, allowing accused to be found guilty of negligent homicide if he so negligently and carelessly handled his pistol that it might be discharged and thereby killed deceased, was error.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 636; Dec. Dig. <&wkey;>304.]
    6. Homicide c&wkey;l25 — “Accidental Homicide.”
    If homicide occurs through mistake as to pistol being on safety guard so that it cannot be Bred, or through mistake as to its being loaded, it is “accidental,” not negligent, homicide.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 189, 190; Dec. Dig. &wkey;H25.
    For other definitions, see Words and Phrases, First and Second Series, Homicide by Misadventure.]
    7. Criminal Law &wkey;722(2), 723(3) — Trial-Argument to Jury.
    In a murder trial, statements of district attorney, “If you turn this man loose, you had as well burn up your law books and tear down your courthouse,” and, “You gentlemen of the jury are not going to let men come to town loaded down with whisky and armed with a gun and shoot down your business men,” were improper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1674, 1676; Dec. Dig. &wkey;> 722(2), 723(3).]
    Prendergast, P. J., dissenting.
    Appeal from District Court, Floyd County; R. C. Joiner, Judge.
    Jim MePeak was convicted of murder, and appeals.
    Reversed and remanded.
    Martin, Kinder, Russell & Zimmerman, of Plainview, and T. F. Houghton, of Floydada, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of murder, the jury assessing his punishment at six years’ confinement in the penitentiary. This is not the lowest penalty, five years being the minimum.

Appellant and deceased had been friends from early boyhood, some of the testimony showing about 30 years. This continued to the moment of the firing of the pistol which killed the deceased. The state’s contention is that the killing was murder; appellant’s that it was accidental homicide. There is testimony, it is claimed, suggesting negligent homicide. The court submitted murder, negligent homicide in the second degree, and accidental shooting. Appellant contends the issue of murder is not in the case. There is considerable strength and cogency in this contention. It is also contended that, if negligent homicide is in the case, it is of the first degree and not of the second. It is further contended that the court erred in not submitting negligent homicide of the first degree. The further contention is made the court erred in submitting the issue of accidental homicide to such an extent' that it deprived the defendant of a fair hearing before the jury on that issue.

The state’s theory was that appellant was drinking, and had gone to his friend Bishop, who was in some way connected with a drug store, and wanted Bishop, deceased, to give him a drink of whisky or alcohol, which Bishop promised as soon as he closed the store for the night. As Bishop was preparing to close his business house, appellant was sitting in a chair. His pistol was discharged, striking Bishop in the leg, producing hemorrhage from -which he died. 'Some of the witnesses thought that a firecracker had been exploded. No one saw the pistol when it was fired. No eyewitness saw appellant have the pistol, and the facts justifying the conclusion that he had the pistol and the conclusion that he fired the pistol is the fact that it was fired, Bishop was struck in the leg, appellant’s statement that he had a pistol and that it was discharged accidentally. Appellant was sitting in a chair, and Bishop either standing still or walking about the room. Appellant’s statement with reference to firing the pistol was that he had the pistol in his left-hand pants pocket, and in his sitting position he was afraid the pistol would fall out. He reached down and got it with a view of transferring it to his inside right-hand coat pocket; that in doing so it caught on his coat or something about his person and was falling, and in catching at it it struck the chair and accidentally discharged. 1-Ie stated he had no ill will towards Bishop, who was his life-long friend, and would not have hurt him. He also testified that it was an automatic pistol, and that he thought and believed that the hammer was on the safety guard and it could not be discharged. The evidence further shows that it takes but slight pressure to remove the hammer from the safety guard to place the pistol in a shooting condition; that it could not be shot while on the safety guard. He was not aware that the pistol was in such condition that it could be shot at the time he was transferring the pistol from one pocket to the other, but thought it was not, and that he was so transferring it to avoid the falling on the floor and a subsequent arrest for carrying the pistol. Without going further into details, this, we think, is a sufficient statement of the case to bring in review the law questions.

There is a bill of exceptions reserved to the action of the court permitting testimony to the effect that some time prior to the tragedy, but the same day, appellant, at the request of his friend Honea, had gotten a bottle of bitters for Honea. Various objections were urged to this. This testimony was not admissible. It is not shown to have had any connection with this transaction, was between appellant and third parties, and in no way connected with the homicide or other events which brought about the unfortunate tragedy. A number of cases are cited which sustain appellant’s contention. Hodges v. State, 73 Tex. Cr. R. 378, 166 S. W. 512; Roquemore v. State, 59 Tex. Cr. R. 568, 129 S. W. 1120; Campbell v. State, 37 Tex. Cr. R. 572, 40 S. W. 282. Other cases might be cited, but we think these are sufficient.

A number of exceptions were reserved to the court’s charge and special requested instructions refused which tended to present what appellant thought to be correct propositions of the law, that accidental homicide was in the case is not to be questioned, and the court recognized this by charging the jury as follows:

“I further charge you that if you believe from the evidence, or have a reasonable doubt, that defendant fired the pistol accidentally, that is, without intending to do so, and thereby killed the said S. D. Bishop, and if you believe that he did not intend to kill the said S. D. Bishop, and that defendant was not guilty of negligence and carelessness in firing said pistol, then you will find the defendant not guilty.”

This is- the only charge the court gave with reference to this phase of the law. Without taking up either the special instructions or the reasons urged why this charge is not correct, we will say, where an issue is in the case favorable to the accused, he should have that issue submitted in an affirmative way untrammeled by conditions which are unfavorable to him and requiring the jury before they give him the benefit of his defense they must find other facts which, if true, would deprive him of his affirmative defensive charge. The court gave a separate charge to the jury on negligent homicide and carelessness in that connection.

If the jury should believe the testimony of appellant, he should have been acquitted on the ground of accidental discharge of his pistol, and, whether they should believe it or not, he was entitled to have the matter fairly and squarely presented to the jury untrammeled by other conditions. The court had given the jury a charge on negligent homicide of the second degree. This question, as contended by appellant, has been decided in quite a number of cases, some of which are here cited: Hamilton v. State, 64 Tex. Cr. R. 175, 141 S. W. 966; McCray v. State, 63 Tex. Cr. R. 522, 140 S. W. 442; Chant v. State, 73 Tex. Cr. R. 345, 166 S. W. 513; Egbert v. State, 176 S. W. 560; Windham v. State, 173 S. W. 661; Williams v. State, 45 Tex. Cr. R. 218, 75 S. W. 859; Miller v. State, 52 Tex. Cr. R. 72, 105 S. W. 502; Maldonado v. State, 70 Tex. Cr. R. 205, 156 S. W. 647. Upon another trial the law of accidental homicide will be submitted in accordance with the statute unfettered and untrammeled with conditions requiring the jury to find that negligent homicide was not in the case before they could acquit on the accidental theory. The court charged the jury, if they should find there was no apparent intention on the part of the defendant to kill the deceased, and further that at the time of the shooting the defendant was handling the pistol with which deceased was killed in such a negligent manner as that it might be discharged and thereby kill the deceased, or some other person, and if they further believe from the evidence that at the time of the killing the defendant was not exercising such care and caution, under all the facts and circumstances of the case, as an ordinary prudent person would have exercised under the same or similar circumstances, then they will find the defendant guilty of negligent homicide of the second degree. Many exceptions were taken to this; among others, that it did not properly submit the law of negligent homicide of the second degree. We are of opinion that the criticisms are correct. The statute fixes the criterion by which a party may be guilty of negligent homicide; among others, there must be apparent danger of killing, but no apparent intent to kill. If negligent homicide of the second degree is in the case, it must be by reason of the facts which show that the pistol was fired intentionally in a room with apparent danger of killing, but no apparent intent to kill. As we understand this record, no one saw appellant fire a pistol; it was fired from where he was sitting. No witness swears that he shot Bishop; nobody saw the pistol, and about all they testify is that the pistol was fired, the bullet taking effect in Bishop’s leg, who was in' the room. Appellant testified that the pistol went off accidentally, as heretofore stated. If appellant fired the pistol so that it could not be seen, in a careless way or intentionally, in the room, and the jury should find there was apparent danger of it killing somebody, it might constitute negligent homicide, and the facts, if there be any, which would justify the jury in finding there was apparent danger to kill, would indicate by reason of the surrounding circumstances that the bullet, there being three others besides appellant in the room at the time, might strike or could strike some of those in the room. This we understand to be the only theory upon which negligent homicide of the second degree could be predicated under the circumstances. There was no direct testimony that he fired the pistol intentionally. 1-Iis evidence excludes that idea; but if he did fire it intentionally, and there was apparent danger of the bullet striking some one of those in the room, negligent homicide would be an issue. It would be an unlawful act on his part if he thus fired in the room. We think the charge of the court along this line does not present that issue fairly to the jury. Upon another trial the court will properly instruct the jury.

We have said this much in a general way so that upon another trial the court may submit the law applicable to the facts introduced on the trial. These questions are presented in quite a number of ways and in different forms, and a great number of bills of exceptions were reserved; but, generally stated, tbe court submitted, or undertook to do so, murder, negligent homicide in the second degree, and accidental homicide. We are of opinion the court was in error in the manner in which he submitted negligent homicide and accidental shooting. What is said has been said in a general way without taking up each bill of exceptions and the refusal to give special requested instructions, which would have eliminated or corrected the errors in. the charge given. The writer does not believe that murder is in the case, and has stated enough already to justify his conclusion. There was no evidence of ill will; there was nothing to indicate that appellant wanted to shoot his friend; no witness saw him point the pistol at or towards Bishop, and he was waiting for Bishop to close the store in order that he might give him a drink of whisky which appellant had requested of Bishop and which Bishop had agreed to give him as soon as he closed the store, and was in the act of closing at the time the pistol shot, and as the writer understands the record the firing of the pistol was not intended to kill Bishop, and the offense should not be higher than negligent homicide if he fired the pistol at random. If the pistol went ofiE accidentally, as he claims, the jury should have been told to acquit, and this charge should be unfettered by requiring the jury to first find that he was not negligent in discharging the pistol.

There is another question in the case which it might be well enough to notice. Appellant’s contention is, and the testimony shows, that he believed the pistol was so arranged by being on the safety guard that it could not be fired, and that if the guard was removed in any way he was not aware of it, and that this suggested the theory of mistake. In this we think appellant is supported by the authorities and the decisions of this court. It has been held that where a party striking another over the head with a pistol, the pistol is accidentally discharged, it would not be negligent homicide. Quite a number of cases announcing this proposition might be cited, but we deem it unnecessary. If the safety guard had been so removed that the pistol could be discharged by striking the chair or some object when defendant had it in his hand or was grabbing it as it was falling, he would not be responsible for negligent homicide, but it would be an accident, and, jf the guard was removed in such manner as the pistol was discharged, the defendant believing it to be on the “safety,” this would constitute mistake and require the court to so charge. We might suppose a case: If appellant had pointed the pistol at the deceased, believing that it was unloaded, and it proved to be otherwise, the doctrine of mistake would be in the case. If he believed the pistol was so arranged by being on the “safety” guard as not to be able to be fired and it did fire, there still would arise the question of mistake. This phase of the law should be given in charge to the jury upon another trial.

Some exceptions were also taken to the argument and speeches of the prosecution. Appellant sought to eliminate these features by special charges to the jury to disregard them. These the court refused. It is shown that this occurred in a county where local option is in force and the feeling of the county seems to be rather acute on that quostion. The state had been permitted to introduce the fact that appellant had obtained a bottle of bitters for his friend Honea, which was disconnected with this case. There is evidence that he was drinking at the time, and also that he was sitting in a chair waiting for his friend Bishop to give him another drink. These matters were used by the prosecution to show the question of malice or reckless disregard of the prevailing sentiment engendered by the operation of local option. We do not believe it is evidence that taking a drink of intoxicants in local option territory is usually malice in a homicide case, unless there is connection shown in the testimony between the drinking of the whisky and the shooting as a reason for the shooting.

Another bill of exceptions' recites that the district attorney said, “If you turn this man loose, you had as well burn up your law books and tear down your courthouse,” and further stated, “Tou gentlemen of the jury are not going to let men come to town loaded down with whisky and armed with a gun and shoot down your business men.” Special requested instructions were asked that these statements be withdrawn from the jury. This was refused. Upon another trial such argument should be avoided.

For the errors indicated, the judgment is reversed, and the cause remanded.

HARPER, J.

(concurring). I think the physical facts and circumstances adduced would authorize a finding by the jury that appellant intentionally shot the deceased, and if so he would be guilty of murder. If under the circumstances' the jury should find that he intentionally fired the pistol, yet had no intention to shoot deceased or any other person present, then appellant would be guilty of negligent homicide. If appellant did not intentionally fire the pistol, and it was accidentally done, accidental homicide would be presented, and appellant would be guilty of no offense. The fact that he was unlawfully carrying a pistol would not render him guilty of any grade of homicide, if it was not intentionally fired, under the facts in this case.

PRENDERGAST, P. J.

(dissenting). It is so late in the term I will not have opportunity to fully study the. record. However, I think the testimony as to tlae 1-Ionea matter was admissible. I think murder was in the case strong, 'and I am inclined to believe no reversible error is in the ease. .
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


text:
    SMITH v. STATE.
    (No. 4142.)
    (Court of Criminal Appeals of Texas.
    June 21, 1916.)
    1. Ceiminal Haw &wkey;>1131(4) — Appeal—Dismissal — Imprisonment.
    An order overruling a motion for a new trial, stating that defendant, having failed to enter into a recognizance, was committed to jail until the decision of the Court of Criminal Appeals, sufficiently evidenced that appellant was confined in jail, so that the motion to dismiss the appeal will be overruled.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2974, 2976, 2977; Dec. Dig. &wkey;1131(4)J
    2. Criminal Law <&wkey;1095, 1102 — Bills op Exceptions — Striking Out.
    In a misdemeanor case, where there was no order in the record authorizing the bills of exception and statement of facts after the adjournment of the court for the term, the motion to strike them from the record will be sustained.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dee. Dig. <&wkey;1095, 1102.]
    3. Criminal Law <&wkey;1133 — Appeal—Rehearing.
    If appellant in term time had an order entered granting him time after the adjournment of the court for the term in which to prepare and file a statement of facts and bills of exceptions, he might make such showing on rehearing, when the record would then be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2984; Dec. Dig. <®=>1133.]
    4. Criminal Law <&wkey;>1090(l) — Appeal—Review.
    Without a statement of the evidence or any bill of exceptions, there is no question presented for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2807, 3204; Dec. Dig. i&wkey;> 1090(1).]
    Appeal from Wichita County Court; Harvey Harris, Judge.
    Dock Smith was convicted of vagrancy, and he appeals.
    Affirmed.
    O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of vagrancy, and prosecutes this appeal.

The state moves to dismiss the appeal, because there is no affirmative showing made that appellant is confined in jail and no recognizance appears in the record. We think the order overruling the motion for a new trial sufficiently evidences that appellant is confined in jail, it stating that, “said defendant having failed to enter into a recognizance, he is now committed to jail until the decision of the Court of Criminal Appeals can be made and received.” Therefore the motion to dismiss the appeal is overruled.

This being a misdemeanor, and there being no order in the record authorizing the filing' of the bills of exception and statement of facts after the adjournment of court for the term, the state moves to strike them from the transcript. This motion, under the law, must be sustained. However, if appellant did in term time have an order entered granting him time after the adjournment of court for the term in which to prepare and file a statement of facts and bills of exceptions, such showing can be made on rehearing, and the record will be then considered.

Without a statement of the evidence, or any bill of exception, there is no question presented we can review.

The judgment is affirmed.


text:
    MOODY v. STATE.
    (No. 4081.)
    (Court of Criminal Appeals of Texas.
    June 21, 1916.)
    Criminal Law <&wkey;917.(2) — New Trial — Refusal of Continuance — Absence of Witness.
    In trial for assault, it was error to refuse new trial where the court refused continuance for absence, because of sickness, of one of accused’s witnesses, whose affidavit as to testimony on new trial was strongly corroborative of accused’s claim of self-defense; it appearing that the attendance of the witness could be secured on another trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2162; Dec. Dig. <&wkey;>917(2).]
    Appeal from District Court, Rusk County; W. C. Buford, Judge.
    Frank Moody was convicted of assault to murder, and appeals.
    Reversed and remanded.
    Futch ,& Tipps, of Henderson, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of assault to murder, and his punishment assessed at four years’ confinement in the penitentiary.

Appellant moved to continue the case, this being his first application, on account of the absence of several witnesses. The witnesses had been subpoenaed, and when his application for a continuance was overruled, he asked for and was granted an attachment to secure the attendance of the witnesses. The attendance of Roxie Renfro was not obtained. The return of the sheriff shows that he found the witness at her home, but she was too sick to be brought to court. On the motion for a new trial, it was shown that she was still too sick to attend court, but her affidavit as to what she would testify was obtained and attached to the motion for a new trial. Under the evidence adduced on the trial her affidavit would show her testimony to be most material.

The injured party testified to a difficulty occurring on Saturday night between appellant and himself and his brother. The details or the merits of this Saturday night difficulty need not be gone into further than to state that, if the state’s theory of the difficulty is true, it would furnish a motive for appellant to commit the crime alleged. On the other hand, if appellant’s theory of it was believed, it would furnish ground to believe that perhaps his contention as to the Sunday difficulty might be correct. As to the difficulty on Sunday morning, the prosecuting witnesses Julius Griffin and Jesse Lewis testified they had gone to Pinehill church, and while waiting for services to begin, they left the church building, and had gone out near the road, and were standing there talking; they heard a saddle screak and a horse’s feet; as they turned appellant rode up and said, ‘‘G-d d-n you, I have come to kill you,” and pulled his pistol; that as appellant did this Julius Griffin started to run, when appellant shot him in the shoulder.

Appellant testified in his own behalf, and said that on account of the Saturday night difficulty he carried a pistol in his coat pocket to protect himself if he was again assaulted ; that as he rode up to the church he saw two men standing near the road; that when he got near they turned around and saw it was Julius Griffin and Jesse Lewis; that Julius Griffin placed his hand in his pocket and began to draw a pistol; that he {appellant) then grabbed his pistol and drew it, and as he did, Julius Griffin “ducked,” and he fired; he then wheeled his horse and ran.

As to whether or not Julius Griffin had a pistol on this occasion was a hotly contested issue on the trial, but none of the witnesses who testified for appellant claimed to have seen the difficulty, but testified to seeing Julius Griffin with a pistol immediately after the shot was fired. He had no witness present who claimed to see the difficulty, and the state had no other witnesses present who claimed to have seen the difficulty other than Julius Griffin and Jesse Lewis and appellant’s father, who claimed to have seen it from the church, and testified in the main as did Julius Griffin and Jesse Lewis. On the motion for a new trial, it was shown by the affidavit of Roxie Renfro that had she been able to attend court she would have testified as follows, being in question and answer form:

“Q. What is your name? A. Roxie Renfro. Q. Whore were you when Frank shot Julius Griffin? A. In the schoolhouse. Q. Where were Frank and Julius? A. Julius and Jesse Lewis were sitting by a pine tree. Q. Whore was Frank? A. Frank was coming up the road on horseback. Q. What taken place when Frank rode up? A. Julius got up and started toward Frank, pulling out his pistol as he went. Q. What did Frank do then? A. Frank pulled his pistol and fired. Q. Was Frank still on his horse? A. Yes. Q. Did you see Frank’s pistol before he fired? A. No. Q. Did you see Julius with a pistol when Frank rode up? A. Yes. Q. What kind of pistol did Julius have? A. A white or pearl-handle pistol.”

This is all the affidavit material to the question under discussion, and by it it is seen that her testimony would be corroborative of the testimony of appellant that the prosecuting witness had a pistol on that occasion,, drew it first, and was advancing on appellant when appellant shot. Under the circumstances, we think the court erred in not granting a new trial when the absent witness swears she would so testify had she been able to attend court, and it is shown that her attendance can be secured on another trial.

Being of this opinion it is unnecessary to discuss the alleged misconduct of the jury, the alleged newly discovered testimony, or the other questions presented, as they will not arise on another trial.

The judgment is reversed and the cause remanded.
      (@^>For other oases see same topic and KEY-NUMBER in all Key-Numbéred Digests and Indexes


text:
    DERRICK v. STATE.
    (No. 4138.)
    (Court of Criminal Appeals of Texas.
    June 23, 1916.)
    1. Criminal Law <&wkey;594(3), 600(8) — Continuance — Absent Witnesses.
    It is not error to deny continuance asked on account of absence of witnesses, where one was a fugitive from justice, and the state admitted truth of testimony the others were expected to give.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1332, 1344; Dec. Dig. <i&wkey; 594(3), 600(3).]
    2. Criminal Law <&wkey;857(2) — Trial — Conduct of Jury.
    It is improper, after jury retires, for jurors favoring conviction to say to those favoring acquittal that conviction will stop disturbances in a certain communityj where there was no evidence on that question.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2055; Dec. Dig. <&wkey;>S57(2).]
    3. Criminal Law <&wkey;719(l) — Trial — Comments of Counsel.
    It is improper for the prosecuting attorney in argument to say that his only witness had, at the first opportunity and consistently, told the same story, there being no evidence to that effect, since that is supporting a witness as to facts not testified.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1609; Dec. Dig. <S&wkey;719(l).]
    Appeal from Kaufman County Court ; James A. Cooley, Judge.
    Chester Derrick was convicted of violating the local option law, a\id he appeals.
    Reversed and remanded.
    Cosnahan & Ashworth, of Kaufman, for appellant. C. C. -McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $25 and 20 days’ imprisonment in the county jail.

There was no error in overruling the motion for a continuance. As to what it was stated was expected to be proven by two of the witnesses, the state admitted such testimony to be true, and it was so stated to the jury. As to the third witness named in the application, he is shown to be a fugitive from justice.

When the motion for a new trial was heard, one of the jurors testified that he and two others first voted for an acquittalthat he (Juror Lindsey) did not think the evidence sufficient to show the guilt of appellant; that the foreman of the jury, Mr. Liston, said to the jury “that he lived near the defendant, and that the negroes down there were accustomed to raising disturbances, and he thought defendant should be convicted, and that would break it up.” It seems that none of the other jurors were called, and this was all the testimony heard. The matter is hardly presented in a way, as the bill was not filed until after term timé, we would be authorized to reverse the case upon this alone; but, inasmuch as we think there is another ground that will necessitate a reversal of the judgment, we call attention to this matter. It was improper to bring such matters before the jury, when there was no evidence in the case upon which to base such remarks.

The state made its case by one witness alone. The defendant denied making the sale, and other witnesses testified to facts rendering it highly improbable that appellant did make the sale to the prosecuting witness. His reputation as a peaceable, law-abiding citizen was testified to by witnesses. Counsel for the defendant in their argument attacked the credibility of the state’s witness, insisting “that the witness had been broken down and the jury could give no credence to his testimony,” etc. In reply to this the county attorney'said:

“Sam Livingston [the prosecuting witness] on the night he was arrested told the officers that he bought whisky from appellant, and this was his first chance to tell where he got the whisky; the next chance was before the grand jury, and if he had told a different story there do you suppose they would have returned a bill: and the witness here now makes the same statement he made to the officers when arrested.”

In the record there is no evidence as to what the prosecuting witness told the officers the night of his arrest, or that any whisky was found on his person, and no evidence as to what he testified to before the grand jury. This was supporting the witness by matters not testified to on the trial, and should not have been permitted.

The judgment is reversed, and the cause remanded.
      <@u=>IPor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes