author: HALL, J.

text:
    BARCUS v. O’BRIEN et al.
    (No. 711.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 14, 1914.
    Rehearing Denied Dec. 5, 1914.)
    1.Garnishment (§ 133) — Claims bt Third Persons — Interpleader.'
    A garnishee, in order to protect himself from having to pay the debt twice, may inter-plead all claimants of the fund in his hands.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig.' § 262; Dec. Dig. § 133.*]
    2. Execution (§ 171) — Equitable IJelief— Injunction — Garnishment in Another Court.
    Where a debtor against whom final judgment had been rendered in the district court was garnished in an action in the county court against Ms judgment creditor and filed his answer in the county court setting up the fact that another was claiming an interest in the district court, judgment as assignee, he might have the collection of the judgment by the assignee enjoined by the district court until the right to the fund had been settled in the county court, under Vernon’s Say les’ Ann. Civ. St. 1914, art. 4643, authorizing injunctions in cases where the applicant shows himself entitled to such relief under the general principles of equity.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 497-518; Dec. Dig. § 171.]
    3. Garnishment (§ 44) — Persons Subject-Judgment Debtors.
    . A defendant against whom a judgment which is final has been rendered is subject to garnishment.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 90; Dec. Dig. § 44.]
    4. Judgment (§ 449) — «Equitable Relief— Garnishment in Another Court — Ténder.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4647, providing that no injunction shall be granted to stay a judgment except so much thereof as the complainant shall show himself equitably entitled to be relieved against, a judgment debtor who had been garnished in an action against his creditor could not ask to have the enforcement of the judgment against him by an assignee restrained pending the outcome of the other action, unless he tendered into court the difference between the amount of the judgment and the amount of the claim in the garnishment proceeding's.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 852, 853, 871; Dec. Dig. § 449.]
    5. Gabnishrnt (§ 44) — Equitable Relief-Final Judgment.
    Where a judgment debtor gave notice of appeal, but did not file an appeal bond, and thereafter abandoned the appeal, and the creditor had secured the issuance of an execution thereon, the judgment was final so as to authorize garnishment against defendant therein.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 90; Dec. Dig. § 44.]
    Appeal from District Court, Deaf Smith .County; D. B. Hill, Judge.
    Suit for injunction by W. O.' O’Brien against G. W. Barcus and others. Judgment for plaintiff, and defendant Barcus appeals.
    Reversed and remanded.
    G. W. Barcus, of Waco, and Knight & Sla-ton, of Hereford, for appellant. W. H. Russell, of Hereford, for appellee.

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

   HALL, J.

This is an injunction proceeding by appellee O’Brien against appellant, Henry Hicks,' and the sheriff of Deaf Smith county, to restrain the collection of a judgment obtained by Hicks against O’Brien, in the sum of $362.22, in the district court of Deaf Smith county, November 10, 1913. After answer filed by Barcus, alleging that he was the owner of the judgment, the injunction was granted. The application for injunction states, in substance., that the judgment had been transferred to appellant Bar-cus ; that Barcus and Hicks had obtained an execution and were threatening to levy upon the property of O’Brien; that O’Brien had been garnished by the First National Bank of Herefgrd, said garnishment based upon a judgment obtained by said bank in the county court of Deaf Smith county against Henry Hicks; and that a balance remained unpaid thereon of $129.90, with costs and interest. The prayer was for an injunction preventing the collection of said judgment until it could be ascertained in the county court of Deaf Smith county to whom said judgment belonged.

The holding in Dobbin v. Wybrants, 3 Tex. 457, is to the effect that the plaintiffs in a garnishment proceeding, who had recovered a judgment against defendant, should have been made parties to the suit upon the note and the judgment in garnishment enjoined until it is ascertained to whom the debt is due. We find the same holding in Iglehart v. Moore, 21 Tex. 501, and Iglehart v. Mills, 21 Tex. 545. The doctrine is too well established in this state to require further citation of authorities that a garnishee, in order to protect himself from having to pay the debt twice, is entitled to interplead all claimants of the funds in his hands.

The first proposition submitted by appellant is that the district court has no right or authority to enjoin the collection of a judgment in the district court pending a settlement of an entirely different suit in the county court, and we are cited to the ease of Foy v. East Dallas Bank et al., 28 S. W. 137, to sustain the proposition. In that case Lightfoot, Chief Justice, said:

“The sixth assignment complains that the court considered the proceedings in the case of E. A. Allen & Bro. against M. A. and E. F. Archibald and J. E. Lett, garnishee, pending in the county court, and suspended the judgment obtained by appellant until said cause was finally determined. It was shown that said E. A. Allen & Bro. had brought suit in the county court against the Dallas Grocery Company and had garnished the appellee bhnk, and that it had filed an answer in said cause. The bank could have interpleaded E. A. Allen & Bro. as it did the other litigants, and required them to come in and settle the question of their rights, but did not do so, and they are in no sense parties to this suit. The court erred in suspending the judgment obtained by appellant until the county court case could be disposed of, and in this respect the judgment below should be reformed. The remedy of the bank for its protection is ■clearly pointed out in the authorities cited under the first assignment above.”

The authorities cited under the first assignment and referred to by Judge Light-foot hold that a stockholder may require claimants to the fund to interplead. As we construe it, the holding of Judge Lightfoot is that, if the bank had interpleaded Allen & Bro. in the county court suit, it would have been entitled to the relief asked. In the instant ease O’Brien has answered in the garnishment proceedings in the county court setting up the fact that appellant Barcus is claiming some sort of an interest in the judgment by reason of a transfer from Hicks and praying that Barcus be required to interplead. It is settled law in this state that a defendant in a judgment which is in every sense final is subject to garnishment. Burke v. Hance, 76 Tex. 76, 13 S. W. 163, 18 Am. St. Rep. 28; Kreisle v. Campbell, 89 Tex. 104, 33 S. W. 852; Waples Platter Grocer Co. v. Railway Co., 95 Tex. 486, 68 S. W. 265, 59 L. R. A. 353.

We agree with appellant that the county court could not have enjoined the issuance and levy of the execution based upon the district court judgment; but we think the garnishee, in order to save himself from a double judgment, had the right to ask the district court to stay the collection of its judgment until the question of the right to the fund had been settled in the county court. Henderson v. Garrett, 35 Miss. 554; Preston v. Harris, 24 Miss. (2 Cush.) 247; Morgan v. Peet, 8 Mart. (N. S. La.) 396; Weems v. Jennings, 2 Brev. (S. C.) 92; Paxson v. Sanderson, 8 Leg. Int. (Pa.) 54; Skipper v. Foster, 29 Ala. 330, 65 Am. Dec. 405; Montgomery Gaslight Co. v. Merrick & Sons, 61 Ala. 537; Rieden v. Kothman (Civ. App.) 73 S. W. 425.

We think under the liberal provisions of article 4643, Vernon’s Sayles’ Civil Statutes, the case generally as presented is one entitling the applicant to equitable relief; but we agree with appellant that the application is in some respects deficient.

Article 4647 provides that no injunction shall be granted to stay any judgment or proceedings at law except so much of the recovery or cause of action as the complainant shall in his petition show himself equitably entitled to be relieved against and so much as will cover the costs. We think this article applicable to this case. The application for injunction shows that the district court judgment sought to be enjoined is in the sum of $362.22, and that the balance of the judgment in the county court against Hicks is only $129.90, with 10 per cent, interest from June 12, 1912, and costs in the sum of $27.40. There is no tender of the amount over and above the total sum due as principal, interest, and costs of the county court. This should be done. Smith v. Smith, 75 Tex. 410, 12 S. W. 678; Twichell v. Askew, 141 S. W. 1072; Shannon v. Hay, 153 S. W. 360.

Appellant contends that, because 12 months has not expired since the date of the district court judgment against O’Brien, it is not such a final judgment as will permit a garnishment against the defendant therein. The application shows that, although notice of appeal was given, no appeal bond was ever filed, and it is alleged that the applicant, O’Brien, had no intention of prosecuting this appeal, but had abandoned it. Appellant has himself furnished us the best evidence of its finality by the issuance of an execution thereon. The other propositions presented are overruled.

Because of the insufficiency of the petition, the judgment is reversed, and the cause remanded, with instructions to the judge of the district court of Deaf Smith county to dissolve the injunction and make such orders as the nature of the case and the rights of the parties demand.

Reversed and remanded.


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    W. A. LEYHE PIANO CO. v. AMERICAN MULTIGRAPH SALES CO.
    (No. 7229.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 5, 1914.)
    1.. Appeal and Errob (§ 770*) — Questions Presented — Suggestion oe Delay.
    Even though the appellant files no brief, a suggestion by the appellee that the appeal was taken for delay only opens the entire record, and requires the court to reverse the judgment for any material error there may be therein.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3106, 3107; Dec. Dig. § 770.*].
    2. Appeal and Error (§ 1001*) — Review— Verdict.
    Where there was evidence to support the findings of the jury on the controlling issues in the case, the verdict cannot be disturbed, although the evidence was not conclusive.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.*]
    3. Costs (§ 260*) — Frivolous Appeal — Damages.
    Damages for the taking of an appeal for purposes of delay will not be awarded, unless it appears from the record that there was absolutely no just cause for the appeal, and that it was taken for delay only.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 983-996, 1002, 1003; Dec. Dig. § 260.*]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge. '
    Action by the American Multigraph Sales Company against the W. A. Leyhe Piano Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Thomas, Milam & Touchstone, of Dallas, for appellee.
   TALBOT, J.

This case has not been briefed by appellant, and was submitted on the brief of appellee, suggesting that the appeal was taken for delay and asking 10 per cent, damages. From appellee’s brief wfe take the following statement of the nature and result of the suit:

“On April 10, 1913, the American Multigraph Sales Company, an Ohio corporation, with a lawful permit to do business in Texas, brought this suit in the county court of Dallas county at law against the W. A. Leyhe Piano Company, a Texas corporation, upon a signed order for various items, including one multigraph machine and attachments, in the aggregate sum of $365; the same being signed ‘Leyhe Piano Company, by Sidney F. M. Carrogher,’ and approved by F. C. Hill, division sales manager 1 of the American Multigraph Sales Company. The defendant’s first amended original answer was filed on February 4, 1914, claiming, among other things, that the multigraph machine and the attachments were not bought by the defendant, but were-placed at its place of business on trial, and claiming, also, that Sidney F. M. Carrogher, the party who signed the Leyhe Piano Company’s name to the order, was not authorized to do so. The case was tried in the county court at law, February 4, 1914, before the court and a jury, and verdict and judgment rendered in favor of the appellee for the sum of $365’, with interest thereon at the rate of 6 per cent, per annum from January 1, 1913, and foreclosure of mortgage lien.”

Notwithstanding appellant’s failure to brief the ease and assign, error, the suggestion of delay by appellee opens up the entire record, and requires this court to reverse for material error, if such be found.

An examination of the record discloses that there were in the court below, and are in this court, as contended by appellee, but two questions in the case. First, was there a purchase of the machine in question by the appellant from appellee? and, second, did the advertising manager of appellant have authority to purchase said machine from appellee for appellant? These were issues of fact for the determination of the jury. The evidence offered in support of them was not conclusive, but it is sufficient to support the findings of the jury, and they should not be disturbed. It certainly cannot be said as a matter of law, arising upon the evidence, that the controlling issues in the case, and to which we have referred, were not established. This being true, the verdict and judgment must be allowed to stand.

The prayer for 10 per cent, damages, however, will be denied. We are not prepared to say, upon consideration of the entire record and the character of the evidence introduced to sustain appellee’s case, that there was absolutely no just cause for this appeal, and that it was taken for delay only. The judgment of the court below will .therefore be affirmed, without damages. *

Affirmed.


author: CARL, J.

text:
    ZACHRY & GEARHART v. PETERSON & AVANT.
    (No. 5355.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 25, 1914.
    1. Principal and Surety (§ 200) — Right op Action Between Sureties.
    One of two sureties for a debt, having a cause of action against the other only when he has been compelled to pay more than his share of it, and then only for contribution, cannot, when nothing has been done as to payment, maintain an action against the other to compel payment of his share to the principal debtor, for payment to the creditor.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 641-650; Dec. Dig. § 200.]
    2. Corporations (§ 218) — -Stockholders’ Liability — Relation op Suretyship.
    For improvement of the property of a corporation, though made by one under contract with one of the two stockholders, authorized to do so by the other, who had agreed to pay his part of the expenses, the corporation is primarily liable, and the two stockholders are sureties as to each other, as regards right of action by one against the other to compel payment of his share of the debt, though they be principals as to the holder of the debt.
    [Ed. Note. — For other cases, see Corporations, Dec. Dig. § 218.]
    Appeal from District Court, Uvalde County ; R. H. Burney, Judge.
    Action by Zaehry & Gearhart against Peterson & Avant. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    W. D. Love, of Uvalde, for appellants. G. B. Fenley and I. H. Burney, both of Uvalde, for appellees.

      For other 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

   CARL, J.

Appellants, Zaehry & Gearhart, a firm composed of J. H. Zaehry and J. H. Gearhart, sued Peterson & Avant, appellees, another firm composed of Charles Peterson and A. M. Avant, and alleged, substantially: That about January 7, 1912, Peterson & Avant, being the owners of most of the capital stock of the Uvalde & Leona Valley Interurban Company, agreed with appellants that they should have 250 shares of the capital stock of said Interurban Company, and appellees were to have all of the remaining stock, except about 6 shares, that were held by outside parties. The capital stock was $50,000, divided into 500 shares. Appellants agreed to assume one-half of a $21,000 debt against the Interurban Company, held by one Joe C. Kerby, secured by mortgage on the property, and all parties were to sign new notes, with the Interurban Company as principal and the parties signing individually as sureties, and were to give a lien on the property to secure said new notes. (There are other features of this contract which it is not necessary here to state.) That appellants received their 250 shares of stock, and also assumed their one-half of the $21,000 in debts, and joined appellees in executing new notes and security therefor, as provided in the contract, both appellants and appellees signing individually as sureties; but that by the terms of said contract appellants were only to assume one-half of the debt against the property, appellees having obligated themselves to pay the other one-half. That at the time of making said contract it was in contemplation of all the parties that certain improvements were to be made on the Interurban property, such as a freight track, down one street in Uvalde, etc., which would entail an outlay of something like $10,000, which expense was to be borne equally by the parties. That, pursuant to said agreement, appellants made a contract for and did construct said improvements, and that the construction of the same, including depot, etc., cost $20,122.41. That Kerby’s debt was represented by 10 notes, each for $2,100, payable January 1, 1913, and each succeeding year thereafter, with 7 per cent, interest on the whole series, payable annually as it accrues; and that on January 1, 1913, the parties all paid their parts of the first note and the annual interest, and costs incurred in building said track, depot, etc., that accrued first, amounting to $13,991.32, which amount included $3,600 received as bonuses and $2,391.32 earnings, which left the sum of $4,000 paid on said cost of construction by the respective parties to this suit. That when the $2,100 note held by Kerby matured January 1, 1914, and the interest on the whole series, appellees failed and réfused to pay their one-half; but appellants procured and had ready their part of the note and interest, and requested the appellees to pay their share, which they refused to do. That by reason of appellees’ failure to pay their part, said note and interest have matured, and by the terms of said notes all are'’subject to be matured, and suit is liable to be brought on the whole series. Appellants are anxious to meet and pay off their share. That of the cost of construction of the improvements there remains unpaid $6,131.09, of which each side owes $3,065.55, and appellants alleged they were ready to pay their part, but appellees would not do so, although liable therefor under the above-mentioned contract. That by reason of the fact that appellants own one-half of the capital stock of the Interurban Company, and are personally liable on the notes—

“and by reason of the fact that the properties and credits of the Uvalde & Leona Valley Interurban corporation are being impaired and damaged by reason of defendants’ failure and refusal to comply with the terms and conditions of the contract herein described and copied, plaintiffs are personally and peculiarly interested in defendants paying their said obligations, and pray judgment against them that they be required to pay same according to the terms of said contract. Wherefore plaintiffs pray, as they have heretofore prayed, that on final hearing hereof that plaintiffs have judgment against said defendants, as a partnership and individually, jointly and severally, for the sum of $1,-617 to be paid into thé treasury of the Uvalde & Leona Valley Interurban Company, and applied in payment of the above-described claim of Joe C. Kerby, and $3,065.55 to be applied in payment of balance due on said construction work; also for damages, personally to these plaintiffs, in the sum of $10,000, for costs expended in this behalf, for execution, and for such other and further relief as in law or in equity they may show themselves entitled to receive.”

The court sustained, the general demurrer, of appellees to the petition and the following special exceptions:

"(1) The defendants specially except to all that portion of plaintiffs’ first amended original petition, wherein they seek to recover of defendants the sum of $1,617, alleged in said petition to be one-half of one certain note in the principal sum of $2,100, plus one-half the interest accrued upon the whole series of notes signed by them, and held by Joe C. Kerby, and say that the plaintiffs cannot recover of them for the said amount for the following reasons: (a)'It is not shown that the plaintiffs have in any way paid or satisfied the said indebtedness due the said Joe C. Kerby. (b) It is not shown by the said petition that the plaintiffs have any right or authority to sue for the said amount in behalf of, or for the benefit of, the said Joe 0. Kerby, the alleged owner of the said notes.
“(3) The defendants except to all those allegations in plaintiffs’ petition, wherein they seek to recover of defendants $3,065.55, claimed as balance due on construction work and improvements made for the Uvalde & Leona Valley Interurban Railway Company, because: (a) It is not shown to whom said amount of indebtedness is due, or to whom it is to be paid, (b) It is not shown that plaintiffs have in any manner paid or satisfied said indebtedness, and that the same is now due them by the defendants, (c) It is not shown that the plaintiffs have any right or authority to sue for the benefit of the unknown creditor.
“(4) These defendants except to all that portion of the plaintiffs’ .prffyer for relief wherein they pray for judgment against the defendants for the sum of $1,617 to be paid into the treasury of the Uvalde & Leona Valley Interurban Company and applied in payment of the claim of Joe C. Kerby, and $3,065.55 to be applied in payment of balance due on construction work alleged in said petition,, because: (a) The said Uvalde & Leona Valley Interurban Company is not a party to this suit and could not be controlled in any manner by a judgment of this court, (b) It is nowhere shown that the said Uvalde & Leona Valley Interurban Company is solvent, or would be responsible for the said amounts, if the same should be collected from these defendants and turned over to them, (c) The said Joe C. Kerby and the creditors for the said $3,065.55 are not parties to this suit, and it is not shown that the said Uvalde & Leona Valley Interurban Company is authorized in any manner to receive their moneys; therefore this court would have no jurisdiction or authority in law to adjudge that the said moneys should be turned over to the said Uvalde ,& Leona Valley Interurban Company for any purpose in this suit under the allegations in plaintiffs’ petition, (d) It is not shown by the allegations in said petition that the said Uvalde & Leona Valley Interurban Company is in any way indebted to the said creditors for the sums of money prayed for in the plaintiffs’ petition, or that it is liable for the payment thereof.”

Appellants declined to amend, and the court thereupon dismissed their suit, and from that order this appeal is taken.

It will be noted that appellants have not paid any part of appellees’ debt; but, on the contrary, the petition shows that of the payments made, so far, appellees have paid their part. The debt for which recovery is sought is primarily the obligation of the Uvalde & Leona Valley Interurban Company, and the parties to this suit, plaintiffs and defendants, are sureties of and, individually and as firms, liable for that debt. The recovery is sought for a debt appellants have not themselves paid, and for which appellees could only become liable to them' for contribution in case they should be compelled to pay more of said debt than appellees might pay. The Interurban Company might pay its obligation, and in that event neither set of sureties would have anything to pay, and, of course, there would be no cause for contribution. Stranger still, however; is the contention and prayer that appellees be required to pay their share of the debts to the Uvalde & Leona Valley Interurban Company.

For the improvements on- the Interurban Company the corporation is primarily liable, and the parties to this suit are coobligors or sureties as to each other, while principals as to the holders of the debts. It is not alleged that plaintiffs have paid one dollar for which they are entitled to contribution from defendants below. The first assignment is overruled. Twichell v. Askew, 141 S. W. 1072; Wilks et al. v. Vaughan et al., 73 Ark. 174, 83 S. W. 913; Yore et al. v. Yore, 240 Mo. 451, 144 S. W. 847; Hall v. Hall, 34 Ind. 314, 43 L. R. A. 162 (see note on this page); 9 Cyc. 798.

The petition presents the strange anomaly of asking that appellees be required to pay over to the principal in the obligation their share, while plaintiffs below would be left to pay their pro rata at pleasure. It was certainly no more the duty of appellees to pay their part to the Interurban Company than it was the duty of appellants to do the same. • And stranger still is the proposition of law that sureties can be required to pay their pro rata of an obligation to an insolvent principal, to apply to a debt for them on which they are not primarily liable as among themselves. We say insolvent principal, because, if not unable to pay its debts, there would be no occasion for the sureties to pay anything at all. But none of the parties have paid any part of the debt for improvements, nor of the remaining Kerby notes, for which contribution is here sought. As between sureties there is no doubt that one paying more of the obligation of the principal than his just proportion can have contribution from the other sureties. But that is not the case presented to us, because it is not contended that appellants have paid any more than have appellees. A citizen has the right to handle and dispose of his own funds, and, if he owes a debt, the law ■provides a remedy for requiring him to meet it. That remedy, however, does not deny him the right .to pay his money to the one legally entitled to receive it, instead of the party whose default placed upon him the duty of. paying the debt. The Interurban Company was not a party to the suit.

The trial court did not err in sustaining either the general demurrer or the special exceptions. Mateer v. Cockrill, 18 Tex. Civ. App. 391, 45 S. W. 751; Twichell v. Askew, 141 S. W. 1072; Jackson v. Murray, 77 Tex. 646, 14 S. W. 235; Tarlton v. Orr, 40 Tex. Civ. App. 410, 90 S. W. 534; Glasscock v. Hamilton, 62 Tex. 169; Hamilton v. Glasscock et al. (Sup.) 9 S. W. 207; National Bank v. McAnulty, 89 Tex. 124, 33 S. W. 963, 32 S. W. 376; Yore et al. v. Yore, 240 Mo. 451, 144 S. W. 847 ; 9 Cyc. 798, 801.

The judgment is in all things affirmed.


author: RASBURY, J.

text:
    WOOD v. TEXAS ICE & GOLD STORAGE CO.
    (No. 7218.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 28, 1914.)
    1. Monopolies (§ 17) — “Conspiracy in Restraint of Trade” — Sale of Goods.
    A contract whereby a retail ice dealer agreed to purchase all of his ice from a certain manufacturer and wholesaler so long as the latter could supply his demands, and the wholesaler agreed to sell a certain quantity and as much more as possible to the retailer at a fixed price, unless the market price should go below that, when the market price should prevail, is contrary to Rev. St. 1911, art. 7798, subd. 1, which declares that it shall constitute a conspiracy in restraint of trade when any persons engaged in buying or selling any commodity agree to refuse to buy such commodity from, or sell it to, any other person; it not being necessary that the agreement be to refuse both to buy and sell.
    [Ed. Note. — For other eases, see Monopolies, Cent. Dig. § 13; Dec. Dig. § 17.

    For other definitions, see Words and Phrases, First and Second Series, Conspiracy.]
    2. Monopolies (§ 17) — Contracts in Restraint of Trade — Purpose.
    The fact that the retailer was to receive the benefit of the market price, whatever it mieht be. does not render the contract lawful, since the intent of the parties and the actual effect of the contract cannot save it if it is illegal under the terms of the act.
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. § 17.]
    3. Monopolies (§ 17) — Contracts in Restraint of Trade — Sale of Goods — Parties to Contract.
    The fact that one of the parties was a wholesaler and the other a retailer takes the contract out of the statute.
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dee. Dig. § 17.]
    Appeal from District Court, Dallas County ; Kenneth Foree, Judge.
    Action by H. C. Wood against the Texas Ice & Cold Storage Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    George Sergeant and Callaway & Mathis, all of Dallas, for appellant. Etheridge, McCormick & Bromberg, of Dallas, for appellee.

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

   RASBURY, J.

Counsel’s statement of the nature and result of the suit contained in appellant’s brief is not only clear and concise, but is accepted by counsel for appellee ns correct, and we accordingly adopt same. It follows:

“Appellant, a retail dealer in ice in the city of Dallas, sued appellee, a manufacturer of and wholesale dealer in said commodity, on a * * * contract entered into by the parties, whereby appellee agreed to sell appellant, at $3 per ton, ‘as much as six tons, or what his trade may demand, of ice per day,’ and as much more as appellee might be able to supply without conflicting with other arrangements; and appellant agreed ‘to make all his purchases from ap-pellee’ during the term of the contract, provided appellee should be able to furnish the quantity of ice needed. The contract also contains a provision that appellee shall meet the market price in case same should fall below $3 per ton. The petition charges a Breach of the contract upon the part of appellee, in that it refused to-sell appellant any more ice at the contract price, and that appellant was consequently compelled to go elsewhere in the market and purchase ice for his trade at an increased price. He prays damages in a sum equal to the difference between the contract price and the price actually paid by him for ice, laying the amount of damages at $1,163.25. A copy of the contract sued on was attached to and made a part of the petition, which, omitting unimportant and formal portions, is as follows:
“ ‘Dallas, Texas, Oct. 30, 1912.
“ ‘This contract and agreement, this day entered into by D. M. Jones, acting for the Texas Ice & Cold Storage Co., hereinafter called first party, and H. C. Wood, hereinafter called second party, all of Dallas, Texas, witnessoth: That the first party agrees to sell the second party as much as six tons, or what his trade may demand, of ice per day, and as much more as the first party is able to supply, without conflicting with other arrangements, and the second party agrees to make all his purchases from the first party during the term of this contract, provided the first party is able to furnish same as above indicated. The price to be paid for all purchases during the term of this contract, which is one year beginning October 30, 1912, is three dollars ($3.00) per ton on platform, located at 2225 Cedar Springs St., of first party, unless the general market price of ice in the city of Dallas goes below said price, then in that event, during such time, the first party agrees to meet such price so long as first party operates their plant. [Here follow numerous provisions relating to what shall be done in case of closing-appellee’s factory, the quality of ice to be furnished by appellee, and certain other mutual and reciprocal duties of both parties unnecessary to detail.] Witness our hands in duplicate.
“ ‘H. C. Woods,
“ ‘Texas Ice & Cold Storage Co.’ ”

The only question involved in the appeal is whether the contract quoted constitutes a conspiracy in restraint of trade under subdivision 1 of article 7798, R. S. 1911. Stripped of verbiage as applied to the instant case, said subdivision 1 of said article, in substance, declares that it shall constitute a conspiracy in restraint of trade when two persons (firms, corporations, or associations) engaged in buying or selling any commodity agree to refuse to buy such commodity from or sell it to any other person, firm, etc. Such being the literal language of the statute, the contract in question, in our opinion, comes precisely within the statutory definition of the acts denounced thereby, since the declared purpose of the contract is to prevent appellant from buying ice from any other person, firm, corporation, or association. By the statute it is unlawful for two persons to agree that one of them will buy from the other exclusively of a given commodity as it is in like manner unlawful for one of them to agree to sell exclusively to the other a given commodity. It is unlawful to do either or both, and it is not necessary to do both in order to constitute the offense, and the reason therefor is the statute itself. A recent case identical in principle and quite similar in fact is Star Mill & Elevator Co. v. Ft. Worth Grain & Elevator Co., 146 S. W. 604. There appellant undertook to supply appellee a stipulated number of bushels of grain on condition that appellee bought exclusively of “legitimate dealers,” such as appellant, and not from farmers, brokers, or grain elevators. The difference in the facts of the two cases is that by the contract in the case cited the appellee could buy from dealers of like nature with appellant, but not from others, while by the contract in the instant case, appellant agreed to buy wholely from appellee.

But it is argued by counsel in the instant case that the statute does not apply because such contract has no tendency to destroy competition between the parties. In short, that it permits appellant to buy ice at all times at the prevailing market price. Such might be literally true and yet the prevailing market price under such agreement, if general, might create, or tend to create, restrictions in trade or commerce, or destroy competition, which is the declared purpose of other portions of the act to prevent. Article 7796, R. S. 1911.

The letter of the act, as we have said, being so plain and the difficulty of determining just how such agreements may affect trade or commerce being so manifest, a fair rule of interpretation is that announced in Star Mill & Elevator Co. v. Et. Worth Grain & Elevator Co., supra, where it is said:

“The purpóse, we think, as indicated by the scope of the statute and the language used was to denounce as illegal, without reference to the intent of the parties and without reference to its actual effect, every agreement or understanding between parties engaged in buying any commodity, whereby they, or either of them, was to refrain from buying such commodity from any one having same for sale.”

Counsel for appellant, however, further argues that subdivision 1, under which this proceeding was defended, is limited to those persons, firms, etc., who are engaged in the same character of business. In short, that before the statutory rule may be applied to the case at bar, it would have to be alleged and shown that appellant and appellee were both in the wholesale ice business, or the retail ice business. We believe the language of the subdivision is susceptible of no such narrow and restricted construction, and we have been unable to find any reported case that goes to that extent, though counsel for appellee cites Nickels v. Prewitt Auto Co., 149 S. W. 1094, in support of the construction sought to be placed upon the statute. We conclude, however, there is nothing in the opinion to warrant that deduction. After reciting the fact that the case made out in the court below failed to show a monopoly, which was the defense urged, as defined by other provisions of the “anti-trust act,” and after reciting that the pleadings and the evidence were insufficient to show a conspiracy in restraint of trade as defined by subdivision 1 under discussion, the opinion states that: I

“If it had been alleged and proved that the Prewitt Auto Company and appellant Nickels were each and both engaged in the business of buying and selling automobiles, a different question would be presented, and we might hold that the. contract was in violation of the first subdivision of article 7798; but no such allegation or proof was made.”

The opinion, at another place, also holds that the pleading and proof were insufficient, “because it was not alleged or proved that both or either of the parties to the contract were engaged in buying or selling automobiles.” The questions above, and relied upon by appellant, in our opinion sustain and support the conclusions reached by us in the instant case, and that they form no substantial basis for the claim that that court intended to hold that both Nickels and Prewitt Auto Company should be engaged exclusively in either the wholesale business or the retail automobile business, in order to come within the provision of said subdivision 1. According to such construction, wholesalers would be permitted at will to contract with retailers against the use of any commodity other than that of the particular wholesaler, and by which the very thing the act sought to prevent would be rendered judicially easy of accomplishment, notwithstanding the plain and unambiguous language of the act.

Much could be said concerning the reason for and the policy of the law, as disclosed by repeated and able constructions thereof, but to do so would be profitless, and for that reason we content ourselves with directing attention to Mansur v. Price, 22 Tex. Civ. App. 616, 55 S. W. 764, a case similar in many respects to the case at bar.

Finding no reversible error in the record, the judgment is affirmed.


author: WALTHALL, J.

text:
    BARTHOLOMEW et al. v. CULVER.
    (No. 363.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 25, 1914.)
    Appeal and Error (§ 773)— Review — -Questions Presented — Briefs.
    Where the judgment disposed of all the parties and was in conformity with the issues made by the pleadings, it will be affirmed, in the absence of briefs.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. § 773.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action between Ed. Bartholomew and others and Claud Culver. From a judgment for the latter, the former appeal.
    Affirmed.
    Sam, Bradley & Fogle, of Houston, for appellants. Barkley & Green, of Houston, for appellee.

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

   WALTHALL, J.

In this case no briefs for appellants or appellee have reached this court. The judgment rendered by the trial court disposes of all the parties, and otherwise conforms to the issues made by the pleadings, and is affirmed.

Judgment affirmed.


author: HIGGINS, J.

text:
    BISHOP v. JAPHET.
    (No. 346.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 15, 1914.
    On Rehearing, Dec. 17, 1914.)
    1. Conte acts (§ 139) — Illegality — ENFORCEMENT.
    Plaintiff, desiring to eliminate H. from a retail liquor business they owned together, procured defendant to ostensibly purchase the entire business from H., defendant agreeing to hold the same in trust as plaintiff’s agent, and employé, and to conduct the business for plaintiff’s use and benefit. Plaintiff furnished the funds, agreeing to pay defendant a salary of $150 a month as manager. Title was taken in defendant’s name, and he was the ostensible owner of the business and the license, but, having repudiated the contract and claimed the business as his own, and that the advancement made to purchase the same was a loan, plaintiff sued to recover title, and sued out a writ of sequestration which was levied on the property, after which it was replevied by defendant, who filed a cross-action, claiming title. Held, that the contract alleged by plaintiff constituted an illegal attempt on his part to engage in the retail liquor business in the name of another, and since he could not recover without relying on the illegal transaction, the court properly refused to render judgment for him, but erred in failing to sustain defendant’s title, which could be done without reference to the illegal contract, and also in failing to render judgment in defendant’s favor against plaintiff and the sureties on the sequestration bond, since to deny such relief would permit plaintiff to use an extraordinary remedy to indirectly enforce his illegal contract.
    [Ed. - Note. — For other cases, see Contracts, Cent. Dig. §§ 684-700; Dec. Dig. § 139.].
    2. Contracts (§ 138) — Illegal Contract^Enforcement — Pleading.
    The court will not. enforce an illegal contract where the illegality appears in the proof, though not pleaded.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 681-700; Dec. Dig. § 138.]
    3. Contracts (§ 138) — Illegal Contract— Malum in Se — Malum Prohibitum.
    The court will not enforce an illegal contract, whether the illegality is malum in se or merely malum prohibitum.
    [Ed. Note. — For other cases, see Contracts, Cent Dig. §§ 681-700; Dec. Dig. § 138.]
    On Rehearing.
    4.. Sequestration (§ 20) — Action on Bond —Verdict—Value of Property.
    A verdict and judgment against persons who have replevied sequestered property must find the value of the several items of property replevied as of the date of the trial, since the obligors on the sequestration bond are authorized by Rev. St. 1911, art. 7107, to return the entire property, or any portion thereof, in satisfaction of the judgment in whole or in part.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. § 24; Dec. Dig. § 20.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
    Suit by Dan A. Japhet against Fred M. Bishop. From a judgment dismissing both plaintiff’s original suit and defendant’s cross-action, plaintiff appeals.
    Affirmed in part and reversed in part.
    J. V. Meek and Jas. Slyfield, both of Houston, for appellant. Baker, Botts, Parker & Garwood, of Houston, for appellee.

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

   HIGGINS, J.

Japhet filed suit against Bishop, alleging that on September 20, 1911, be purchased and became the owner of a retail liquor business in the city of Houston known as the Houston Liquor Company, and became the owner of a lease upon the building in which the business was located, and Bishop was to manage and control the business at a monthly salary of $150; that on April 15, 1912, Bishop repudiated his contract of employment and appropriated to his own use and benefit the stock of goods and fixtures. Judgment was prayed for the title and possession of the property and premises. A writ of sequestration was issued at plaintiff’s instance and levied upon the property in controversy, and the same was thereafter replevied by Japhet. By amended petition, upon which the cause was tried, it was alleged that on September 20, 1911, Japhet became the owner of a retail liquor business in city of Houston, known as the Houston Liquor Company, and employed Bishop to manage and control the same; that on April 1, 1912, Bishop unlawfully took possession thereof and converted the same to his own use and benefit; that same was of the value of $5,921.76. Judgment was prayed for the title and possession to said property and for damages in the sum of $5,000.

There is no substantial difference between the original and trial petition, except the latter omits the allegations with reference to the employment of Bishop by plaintiff to manage and control the business; the latter being in the ordinary form of an action to recover the title and possession of chattels wrongfully withheld from the rightful owner, and for damages. Bishop answered by general denial and cross-action, alleging that he was the owner of said business and stock of goods, having bought the same with funds loaned him for that purpose by Japhet; that the property had been seized under writ of sequestration, the issuance of which had been unlawfully and maliciously procured by Japhet, and he prayed judgment over against Japhet for his damages, actual and exemplary, occasioned thereby.

The testimony of Japhet discloses that on September 20, 1911, he and J. N. Hirseh owned a retail liquor business known as the Houston Liquor Company, title thereto being in the name of Hirseh, but Japhet owning a half interest therein. Hirseh was' manager of the business, and Japhet was a secret partner. Being desirous of eliminating Hirsch and acquiring his half interest, Japhet had Bishop to ostensibly purchase the entire business, Hirsch selling and conveying same to Bishop, who was to hold same in trust as agent and employé of Japhet and to conduct the business for his use and benefit. Japhet furnished the funds and was to pay Bishop a salary of $150 per month as manager. Title to the business and the stock and fixtures was taken and stood in Bishop’s name, and he was the ostensible owner of the business; the liquor dealer’s license, bond, etc., .all being in Bishop’s name. Upon the whole, it is an admitted fact from Japhet’s standpoint that the whole transaction was colorable, and designed to enable him to engage in the- retail liquor business in the name of another, in violation of law.

The testimony of Bishop was to the effect that the funds furnished by Japhet were leaned him to enable him to 'buy the business, and that he was the bona fide owner of the business and stock of goods. The case was submitted to a jury upon special' issues, the first being:

“Were the goods bought for the benefit of Japhet and were the same to be Ms property, or did he loan the money to Bishop with' the understanding that the goods were to be the property of Bishop, and the business was to be owned by Bishop ?”

—to which the jury answered:

“We, the jury, find the goods were bought with the understanding that they would be Japhet’s property.”

The jury further found that:

“When Japhet gave Bishop the money to buy the business and g'oods of the Houston Liquor Company, the agreement contract between Japh-et and Bishop was that Bishop should take charge of the business and take out the license in his own name and run the business, and buy and sell liquors in his own name for the use and benefit of Dan A. Japhet.”

The judgment of the trial court recites that the jury’s findings establish an illegal contract and agreement between the parties, and that the court would grant no affirmative relief to either. It was therefore decreed that Japhet take nothing by his suit against Bishop, and that Bishop take nothing by his cross-action, and the sequestration bond be canceled and held for naught.

The legal principles governing a proper disposition of this case are stated in Beers v. Landman, 88 Tex. 450, 31 S. W. 805. Landman gave Beers a promissory note in settlement of a balance due upon a gambling transaction arising out of speculation in cotton futures and as collateral security also indorsed and delivered certain negotiable notes. In a suit to enjoin Beers from collecting the principal or collateral notes and for decree canceling the principal note -and ordering surrender of the collateral notes, it was said by Judge Denman:

“In order to properly understand the' point to be determined, it will be well to state- that it does not involve the question as to whether, or under what circumstances, equity will lend its aid to cancel an executory contract founded upon an illegal consideration, as in case of the principal note above referred to; but it involves the sole question as to whether equity will interfere or lend its aid to cancel an executed contract, on the ground that the consideration thereof was illegal. For there can be no doubt that the indorsement and delivery of the negotiable notes to appellants, as security, vested in them the legal title thereto, and a qualified interest therein. Thus Landman, a party to the unlawful transaction, equally guilty with H. and B. Beers, having vested in the latter the legal title and qualified interest in said collateral notes, seeks to have the court of equity divest such title and interest out of the latter and reinvest Mm therewith, on the ground of the unlawfulness of the transaction. He does not seek the aid of a court of equity in making a defense to an executory contract, but seeks its aid in attempting to disturb property rights conferred by him upon his accomplice. Where two persons guilty of participation in an unlawful transaction are in pari delicto, as in this case, neither a court of law'nor a court of equity will aid either to recover or reinvest himself with any title * * * vested in the other, but will leave them in the same condition as to vested interests as they, by their own acts, have placed themselves.
“In Frost v. Plumb (1873) 40 Conn. 112.[16 Am. Rep. 18] discussing the principle under consideration, and following in the line of the English and Massachusetts cases above cited, the court say: ‘We understand the rule to be this: The plaintiff cannot recover when it is necessary for him to prove, as a part of his cause of action, his own illegal .contract, or other illegal transaction; but if he can show a complete cause of action without being obliged to prove his own illegal act, although such illegal act may incidentally appear, and may be important even as explanatory of other facts in the case, he may recover. It is sufficient if his cause of action is not essentially founded upon something which is illegal. If it is, whatever may be the form of the action, he cannot recover.’
“If appellee were to sue in' a court of law for the possession of the notes, and appellants were to answer that the legal title and special interest therein had been vested in them by the indorsement to secure an indebtedness, such answer would be a complete defense to appellee’s suit, without setting up any facts implicating appellants in the unlawful transaction. Therefore, appellants’ defense would not be based upon the illegality. In order to avoid such defense, appellee would be compelled to urge and rely upon his own participation in the unlawful transaction, thus bringing himself directly within the rule laid down in the case of Taylor v. Chester, and other authorities above cited, which prohibit his recovery.”

The legal title to the property in controversy here was vested in Bishop. Japhet sued in a court of law for title thereto and possession. In order to avoid the consequences arising from Bishop’s legal title, Japhet undertakes to show that he is the equitable owner thereof, and in order to do so, he is obliged to prove his participation in a transaction prohibited by the civil and penal laws of our state. Bishop can sustain his title without in any manner relying upon the illegal transaction, as he acquired same by virtue of the conveyance from Hirsch, but with Japhet it is quite different, and he can in no wise connect himself with the title without disclosing and relying upon his own participation in the unlawful transaction. It being impossible for him to recover, except through the medium and by the aid of an illegal transaction to which he was himself a party, the maxim, “When both parties are equally in fault, the condition of the defendant and possessor is better,” clearly applies, and is decisive of the case.

The court properly refused to enter judgment in Japhet’s favor. Beers v. Landman, supra; Eckles v. Nowlin, 158 S. W. 794; Read v. Smith, 60 Tex. 379; Crutchfield v. Rambo, 38 Tex. Civ. App. 579, 86 S. W. 950; Ry. Co. v. Lawson, 89 Tex. 394, 32 S. W. 871, 34 S. W. 919; Wiggins v. Bisso, 92 Tex. 219, 47 S. W. 637, 71 Am. St. Rep. 837; Fugua v. Pabst, 90 Tex. 298, 38 S. W. 29, 35 L. R. A. 241; Seeligson v. Lewis, 65 Tex. 215, 57 Am. Rep. 593.

The authorities cited by appellee are distinguishable. It is urged by appellee that it was necessary for Bishop to plead the illegality of the transaction. The unlawful nature'of the transaction is the basis of the plaintiff’s right, and goes to the foundation of the action. The function of the court is to enforce the law and not permit that which is forbidden; it will not disregard this rule, though not pleaded. Ry. Co. v. Lawson, 89 Tex. 394, 32 S. W. 871, 34 S. W. 919; Pasteur Vaccine Co. v. Burkey, 22 Tex. Civ. App. 232, 54 S. W. 804; Willis v. Weatherford, 66 S. W. 473; Simpkins on Contracts & Sales (3d Ed.) 3S4, 385.

And it is of no consequence whether the matter was malum in se or merely mal-um prohibition. Labbe v. Corbett, 69 Tex. 505, 6 S. W. 808.

The court erred in failing and refusing to enter judgment in Bishop’s favor against .Japhet and the sureties upon his bond for the value of the property sequestered and delivered to Japhet under a replevin bond. Article 7111, R. S. 1911. Blum v. Gaines, 57 Tex. 135; Rea v. Schow, 42 Tex. Civ. App. 600, 93 S. W. 706. A failure so to do permits Japhet to use an extraordinary remedy ■of the court to accomplish his purpose and thus indirectly do what the court will not directly do, i. e., restore to him the title and possession of the property. The original status quo of the parties to this unlawful transaction should not have been in any way disturbed by the court, and since it appears that its process has been wrongfully used for such purpose, the court, so far as it is possible to do, will restore the original status quo and leave the participants in this illegal transaction in the very position in which they voluntarily placed themselves and in which they were at the inception of the litigation. This does not constitute affirmative relief to the defendant, but simply ■enforces the policy of the courts to leave as it finds them participants in unlawful transactions. To do otherwise would practically destroy the wholesome effect of this doctrine and open wide the door to an easy method of avoiding its consequences.

The cause is therefore reversed and remanded, and upon retrial, if the evidence be the same as here presented, the trial court is instructed to enter judgment refusing Japhet the relief for which he prays; that he be directed and ordered to restore to Bishop’s possession the sequestered and re-plevined chattels, and that Bishop have judgment upon the replevin bond, in accordance with the provisions of articles 7107, 7108, 7109, 7111, Revised Statutes, for the value of such of the chattels as Japhet should fail or refuse to return; that all other relief be refused Bishop.

Reversed and remanded, with instructions.

On Rehearing.

In this cause, the motions for rehearing filed by appellant and appellee are both overruled.

insists that there is no neces-necesto reverse and remand this cause, but that judgment should be here rendered in conformity with the views expressed in the original opinion. In reply to this suggestion, it is sufficient to say that a verdict and judg-judgagainst persons who have replevied sequestered property must find the value of the several items of property replevied, as the obligors have the right, under article 7107, R. S., to return the entire property or any portion thereof in satisfaction of the judgment in whole or in part, and the value of the several items of property must be found as of the date of the trial. The ver-verin this case is defective in that respect. The cause was submitted upon special issues, and there is no finding by the trial court of the value of the various items of replevied property, as is authorized by article 1985, as to issues not submitted and not requested to be submitted, and the evidence in the record is not of that character as would authorize this court to undertake to- find such valua-valuaIt is therefore necessary that the cause be reversed and remanded, with in-inas contained in the original opin-opinfiled herein.

The opinion upon rehearing heretofore filed on November 12, 1914, is -ordered withdrawn, and this opinion is filed in lieu thereof.


author: PLEASANTS, C. J.

text:
    FRANKLIN v. SMITH et al.
    (No. 6834.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 19, 1914.
    Rehearing Denied Dec. 17, 1914.)
    Homestead (§ 57%) — Use oe Property — AGRICULTURE.
    Plaintiff in 1876 purchased certain city lots in controversy, fenced and used them for garden purposes for. several years, and 15 years prior to the suit had built a house on the lots, which was occupied by his son, rent free. The lots were also used to grow plums and to graze plaintiff’s animals when not at work, but tbe amount of produce obtained was not shown, and plaintiff himself, during that time, resided on other property. Reid insufficient, as a matter of law, to sustain a claim that the property was homestead.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 401; Dec. Dig. § 57%.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Special Judge.
    Suit by Henry Franklin against W. E. Smith and others. From a judgment in favor of defendants, plaintiff appeals.
    Affirmed.
    Stevens & Stevens, of Liberty, for appellant. E. T. Chew, of Houston, for appellees.

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

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

   PLEASANTS, C. J.

This is a suit for injunction, brought by appellant against the appellees, to restrain the sale, under a deed of trust executed by appellant, of four lots in the city of Houston, owned by appellant. The two grounds upon which the injunction was sought were that the property was at the time the deed of trust was executed, and is now, a part of appellant’s homestead, and that plaintiff has paid a portion of the indebtedness to secure which the deed of trust was executed, but that defendants have not credited plaintiff with' the payments made by him and are attempting to sell said property for the whole of said indebtedness.

On July 6, 1914, Hon. Norman G. Kittrell, special judge for the Sixty-First judicial district, upon presentation of the petition to him, indorsed thereon the following order:

“The injunction prayed for will issue on plaintiff giving bond in the sum of $100, conditioned as required by law; tbe injunction to be treated as a temporary stay application for injunction, with leave to defendants to move at any time to modify or dissolve.”

On July 8, 1914, the defendants filed the following answer and motion:

“Now come the defendants W. E. Smith and A. W. H. Lee, in the above numbered and entitled cause, and move the court to set aside its order heretofore made in this cause enjoining the defendant A. W. H. Lee from making sale under the deed of trust described in plaintiff’s petition, and that said defendant be permitted to make said sale, because:
“(1) .Defendant W. E. Smith has and will allow plaintiff all the credits on said notes to which he is entitled and, under the terms of said deed of trust, any excess over and above what is due the defendant W. E. Smith, and the expenses of said sale are to be returned to plaintiff, for all of which plaintiff has a remedy, and therefore said ground set out in plaintiff’s petition does not support the injunction herein issued.
“(2) Defendants further alleged that the allegations in plaintiff’s petition, to the effect that the property described in said deed of trust, which is the same as that set out in plaintiff’s petition, is his homestead, is false, and is made for the sole purpose of delaying the sale by said trustee under said deed of trust. Defendants allege: That plaintiff has resided on the corner of Jackson and Leland streets for more than 35 years, and during all of said time has owned said property and made same his home. That plaintiff never resided on the property described in plaintiff’s petition and in said deed of trust, and has never claimed same to be his homestead prior to the allegations in his petition herein filed. Plaintiff has borrowed money on the property described in said deed of trust on many occasions in tbe last few years, and there is now a prior first lien mortgage on said property held by Mr. Ed. S. Phelps, amounting to the sum of $1,700. That the deed of trust given by plaintiff to secure the notes given'the defendant W. E. Smith is a second lien, and it is highly necessary, to preserve his rights, that said property be sold by said trustee, A. W. H. Lee, for, if said sale is not allowed to take place immediately, Mr. Phelps will foreclose his mortgage, which is now due, and the additional attorney’s fees and costs in so doing will limit the chances of the defendant W. E. Smith to get his money out of said property.
“(3) Wherefore defendants pray that they have an immediate hearing, and that said injunction be dissolved and held for naught, and for such other and further relief, both in law and equity, as defendants may show themselves entitled upon the trial hereof.”

Upon a hearing on July 28, 1914, the judge made the following order:

“On this 28th day of July, A. D. 1914, in chambers, before me came on to be heard the plaintiff’s petition for a temporary injunction, as prayed for in said petition, and the court having heard the same, together with the evidence adduced, is of the opinion that said application for said injunction be denied. It is therefore ordered, adjudged, and decreed that the petition of Henry Franklin for a temporary injunction, as prayed for, to restrain W.- E. Smith and A. W. H. Lee from selling the property at trustee’s sale, be denied and refused, to which order of the court the plaintiff, Henry Franklin, excepted and gave notice of appeal to the Court of Civil Appeals. It is ordered, however, that the defendants be restrained from selling _ the property at trustee’s sale, described in. plaintiff’s petition, during the pendency of this appeal, upon the plaintiff executing an appeal bond in the manner, within the time, and as provided by law, in the sum of $1,200, payable to the defendants.”

The hearing was upon the sworn pleadings of the parties and the oral testimony of the plaintiff. The testimony of the plaintiff as to use of the lots in question for homestead purposes was, in substance, that he had lived for about 40 years on two lots on Leland street in the city of Houston, some ten blocks distant from the lots in question. He bought the lots on which he lived in 1876 for $290, and had lived there ever since with his family, consisting of wife and a number of children. He bought the four lots in controversy about 23 years ago, and paid therefor from $100 to $125 per lot. His statements as to the use of the property were as follows:

“When I bought the lots I put a fence around them, at the time I bought them, and after I fenced the ground I made a garden there. I grew corn and potatoes in that garden, and after I raised them I ate them. * * * I built a house on these four lots. That has been about 18 years ago, I think. That house is there yet. My son is living in it. My son does not pay any rent for said house. He has been living there about seven years. I planted some plum trees on said four lots. The plum trees have been there about 15 years or more. They grow plums, and we eat them and use them for the family. I use the corn and potatoes and watermelons that I grow for my family. I have not grown anything this year because there was too much rain, and it knocked us out. We had corn there last year, and year before last we had corn and watermelons, besides the potatoes. We ate the watermelons and potatoes; used them for my family. I have got one horse and four mules. I graze them out on the four lots on Sunday, and they are working during the week. They are hired out during the week. On Sundays we graze them there where there is no crop growing. They have been grazing there this year on Sundays.”

He further testified that he had never claimed these lots as his home, and that he had mortgaged them to Mr. Phelps prior to the execution of the deed of trust to secure the defendant Smith.

We do not think this evidence required a finding by the trial court that the lots in question were a part of the plaintiff’s homestead. The use of the property for household purposes is not shown to have been continuous but only occasional, and such use as is shown seems to have been trivial and unimportant. Giving the testimony its strongest intendment in favor of the homestead claim, it only shows that, at some time after the purchase of the lots 23 years ago, plaintiff fenced them and made a garden on them in which he raised some corn and potatoes, which he ate. Neither the extent of the garden nor the amount of the corn and potatoes raised is indicated. About 15 years ago he planted some plum trees on the lots, and the plums grown thereon are used by plaintiff’s family. Whether there are two or dozens of plum trees, or whether the plum crop amounts to a quart or to many bushels, is not shown. It is equally uncertain what amount of corn was grown last year or what quantity of watermelons and potatoes were grown the year before last. We are of opinion a more definite showing of a substantial beneficial use of the property for household purposes should be made to sustain plaintiff’s claim that the lots in question were a part of his homestead. We thing the evidence justifies the conclusion that for the past seven years at least the principal use of the property has been that of a home for plaintiff’s son, who has lived on the property during said time. The fact that a dwelling house was built on the property 15 years ago would indicate that it was not intended to be used by plaintiff in connection with and as a part of his homestead, situated 10 blocks away. Blum v. Rogers, 78 Tex. 530, 15 S. W. 115.

The testimony as to the credit claimed by plaintiff on the indebtedness for which the lots were advertised for sale is also indefinite and uncertain, and, upon the facts disclosed by the record, the sale should not be enjoined upon the second ground alleged in the petition. These conclusions require that the judgment of the court below be affirmed; and it has been so ordered.

Affirmed.


author: RAINEY, C. J.

text:
    SCATES v. RAPID TRANSIT RY. CO.
    (No. 7198.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 21, 1914.
    Rehearing Denied Dec. 19, 1914.)
    1. Street Railroads (§ 103) — INJURIES TO Persons on Tracks — Discovered Peril.
    •To apply the doctrine of discovered peril, the party injured must be actually discovered in a position of danger by those operating the train or cars, and the fact that the operatives did not keep the required lookout furnishes no basis for an application of the doctrine.
    [Ed. Note. — Eor other eases, see Street Railroads, Cent. Dig. § 219; Dec. Dig. § 103.]
    2. Street Railroads (§100) — Injuries to Persons on Tracks — Defenses.
    Where one run down by a street car received his injuries because of his intoxication, he is as a matter of law guilty of contributory negligence, defeating recovery.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. § 217; Dec. Dig. § 100.]
    3. Street Railroads (§ 98) — Injuries to Persons on Tracks — Contributory Negligence.
    Where an intoxicated man negligently stepped in front of an approaching street car, his would-be rescuer stands in the same position as the intoxicated man, and the negligence of the latter is attributed to the rescuer, so that no recovery can be had against the street car company, though its servants were also guilty of negligence.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig, §§ 204r-208; Dec. Dig. § 98.]
    4. Street Railroads (§ 85) — Injuries to Persons on Tracks — Rights in Streets.
    Street car lines, having franchises to operate their cars in the streets, have rights which pedestrians must recognize, and pedestrians cannot lie down in the street in such a manner as to interfere with the regular running of ears.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 150, 173, 183-185, 187; Dec. Dig. § 85.]
    Appeal from District Court, Dallas County ; Kenneth Foree, Judge.
    Action by J. W. Scates against the Rapid Transit Railway Company. From, a judgment for defendant, plaintiff appeals.
    Affirmed.
    M. M. Parks, J. C. Patton, and Lee Richardson, all of Dallas, for appellant. Thompson, Knight, Baker & Harris, J. Hart Willis, and Geo. S. Wright, all of Dallas, for appel-lee.

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

   RAINEY, C. J.

Appellant sued the appel-lee to recover damages for personal injuries caused to him by being struck with one of appellee’s cars operated along Commerce street, in the city of Dallas, Texas. He alleged that he discovered an intoxicated and helpless man, by the name of Wells, down upon the defendant’s railway track in said street near the plaintiff, and so seeing said Wells, and believing him to be in danger of being killed or seriously injured by the movement of the defendant's street car or cars at or near said point, and appellant believing he could rescue said Wells from being struck by the defendant’s said cars, and from death or serious bodily harm, appellant, being 'in the street, rushed to Ms assistance, and while in the act of attempting to rescue the said Wells from his said position of peril one. of defendant’s street cars ran into and against both the appellant and WMls, seriously and permanently injuring both of them; that defendant saw or could have seen him by keeping a vigilant watch and lookout ahead in approaching the place of accident in time to have prevented the accident, but failed to do so; that the car was run at a speed exceeding the. limit fixed by an ordinance of the city of Dallas; and that appellant discovered his peril on the track in time to have prevented the accident by the use of the means at his command. The ap-pellee answered by general and special exceptions, general denial, and specially contributory negligence. The appellant filed a supplemental petition, denying all the allegations in defendant’s answer, except it admits appellant went upon the track in front of an approaching car.

The' trial court instructed a verdict for ap-pellee, and judgment was rendered accordingly. Appellant complains of the giving of said charge, and contends that:

“A pedestrian upon a street railway track in a public stieet of a city is not in any sense a trespasser, and he has the same right there as have the street cars of the company, and the company owes him the duty of ordinary care not to injure him, and there being no city oi'di-nance or state statute making it negligence per se, or negligence at all, for such pedestrian to be there, and appellant having alleged in his petition both negligence per se and vel non of the defendant, proximately resulting in appellant’s injuries, and having introduced testimony tending to establish said facts, the court erred in not submitting the question of the defendant’s negligent and unlawful acts, as well as the question of contributory negligence on the part of the plaintiff, to the jury for their determination.”

The evidence shows that one Wells, an acquaintance of appellant, was intoxicated and lying on the street car track. Appellant, seeing Wells’ condition, and knowing a street car was coming, went to him and tried to pull him off the track. Wells’ position was about 200 or 300 feet from the point of accident when the car was first noticed. It was night, but the track was straight and light, and by a lookout being kept he could have been seen 75 or 100 feet from the front of the car. Several witnesses testified the ear was running about 15 miles per hour. The prescribed speed by ordinance is 12 miles per hour. The motorman did not see Wells or Scates on the track; but, as stated by one witness, he “was standing in a half turned position as if .talking to some one.” The appellant testified on direct examination, among other things, as follows:

“When I first saw Mr. Wells on the track, the car was south of the Trunk railroad — about 100' yards, or a little over that, south. The car never checked its speed that I know of before it struck us. My object in going to Mr. Wells was that I saw that he was down across the track, and I knew that he had to be moved off the track. I knew the car was coming. I could see the car coming down the track, and I knew it would come on, and I knew he had to be taken off of it some way. I saw his life was in danger, and I went- to his rescue. I tried to-get him away from there to keep him from being injured.”

On cross-examination he further testified:

“I said I saw this car on the night of the-accident in July when it was 300 feet away. I don’t remember any lights, excepting one in the bai-ber shop; 'but it is a small light. I might have seen more, but I don’t remember any more. We were walking down together, and I was just a little bit ahead of .him, and we were going to catch the car together, and go home together, and he fell down just behind' me across the track. I got him on his feet and turned him loose, and he fell down; his clothes slipped some way. I had my arm around him this .way, and his clothes slipped, and I lost my hold on him. He fell down right in the middle of the track, right between the two rails. The car struck him first in the back part somewhere, and it struck me on the side of this leg, and forced me down. I was right down in front of the car in the track. I pulled him away from the track over towards me.”

The evidence clearly shows, we think, that the motorman did not actually see either Wells or the appellant before striking them; hence there can be no liability of theappellee on the theory of discovered peril.. That the motorman failed to keep a lookout, as it was his duty, and by so doing he could have seen their perilous situation, does not change the rule. It is well settled by the decisions of our Supreme Court that, to apply-the doctrine of discovered peril to a railway company, the party injured must be actually discovered in a position of danger by those-operating the train. Railway Co. v. Breadow, 90 Tex. 26, 36 S. W. 410; Railway Co. v. Staggs, 90 Tex. 458, 39 S. W. 295. These-decisions have, since their rendition, been uniformly adhered to and followed by the-Courts of Civil Appeals in many cases.

The evidence showing that the question of discovered peril does not arise in this-case, and the evidence showing conclusively that Wells was guilty of contributory negligence in being intoxicated and lying on the-track, the question arises: Is appellant chargeable with the negligence of Wells, and his right of recovery defeated thereby ?• When intoxication is shown to exist in the-party injured, which is the cause of the injury, it as a matter of law is contributory negligence, and defeats a recovery, though the agency by which he is injured is guilty of negligence. Traction Co, v. Kelleher, 48 Tex. Civ. App. 421, 107 S. W. 64. Wells’ dangerous position being brought about by his own negligence, and the negligence of appel-lee being in no sense responsible therefor, it. follows that appellant’s right of recovery is defeated.

As we understand it, the rule is that, when a party seeks to rescue another from a perilous position, who has negligently placed himself in such position through no fault of the railroad, and the party attempting the rescue is injured, no liability on the part of the railway company exists, and he cannot recover. Linz v. McDonald, 133 S. W. 535; Railway Co. v. Scarborough, 104 S. W. 408; Donahoe v. Railway Co., 83 Mo. 560, 53 Am. Rep. 594. In Linz v. McDonald, supra, in which a writ •of error was refused, this court said, through Mr. Justice Bookhout: .

“The law is that, in an action by a servant to recover on account of injuries sustained in an effort to save the life of a fellow servant, the person whose rescue is attempted must be in a position of peril from the negligence of the defendant. In the case of Donahoe v. Railway Co., 83 Mo. 560, 53 Am. Rep. 594, the law is stated thus: ‘If the railroad company is not chargeable with negligence with respect to the person in danger, the case of the person who attempted to rescue him and was injured must be •determined with reference to the negligence of the company in its conduct toward him and his in making the attempt. In other words, the negligence of the company as to the person in danger is imputed to the company with respect to him who attempts the rescue, and if not guilty of negligence as to such person then it is only liable for negligence occurring with regard to the rescuer, after his efforts to rescue the person in danger commenced.’ See, also, Railway Co. v. Hiatt, 17 Ind. 102; Railway Co. v. Ridley, 114 Tenn. 727, 86 S. W. 606; Railway Co. v. Lynch, 69 Ohio St. 123, 68 N. E. 703, 63 L. R. A. 504, 100 Am. St. Rep. 658. In the case last cited it was held by the Supreme Court of Ohio that the conditions upon which there may be a recovery on account of injuries sustained in an effort to save human life are that the person -whose rescue is attempted must be in a position of peril from the negligence of the defendant. If Holmes was in a position of peril at the time appellee attempted to push him from the idler pipe, it cannot be said his peril was the result of the negligence of appellant. Under the facts we are of the opinion the court erred in refusing the charge requested by appellant instructing a verdict for defendant. The judgment is reversed, and judgment here rendered for appellant.”

In Railway Co. v. Scarborough, 104 S. W. 409, by the San Antonio Court of Civil Appeals, it is said;

“One who imperils his own life for the sake of rescuing another from imminent danger is not chargeable as a matter of law with contributory negligence; and if the life of the rescued person -was endangered by the defendant’s negligence, the rescuer may recover for the injuries which he suffered from the defendant in consequence of his intervention. * . * * This rule rests upon the law having such a high regard for human life it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of a prudent person. * * * It is apparent from the principles enunciated that the sine qua non of recovery in such a case is that the imminent peril from which one is sought to be rescued was caused by the negligence of the defendant. However commendable and praiseworthy may be the voluntary act of benevolence of one who imperils his life to save the life of his fellow man, its costs cannot be charged to and collected from another, unless his negligence -was the occasion of such commendatory act. But wherever the party sought to be rescued from imminent danger could have himself recovered, had he been injured by the negligence of the defendant, he who undertook to rescue him from his peril can maintain his action for any injuries he may have incurred in his undertaking, if he were not so reckless in it as to defeat a recovery.”

Contributory negligence being shown, the failure of appellee’s servants to keep a lookout and the running at a greater rate of speed than permitted by the ordinance does not' authorize a recovery in this case. In Railway v. Staggs, supra, Mr. Justice Brown says:

_ “If deceased was guilty of contributory negligence, his widow and children could not recover for failure to see him upon the track, or to discover his danger, because in such case their right of action would rest upon the negligence of the defendant, to which contributory negligence of the deceased would constitute a good defense.”

In the case of Donahoe v. Railway Co., supra, in addition to the quotation made in the Linz Case, it says:

“It is to be observed that it is only when the railroad company, by its own negligence, created the danger, or through' its negligence is about to strike a person in danger, that a third person can voluntarily expose himself to peril in an effort to rescue such person and recover for an injury he may sustain in that attempt. For instance, if a man is lying on the track of a railroad intoxicated or asleep, but in such a position that he could not be seen by the men managing an approaching train and they had no warning of his situation, and another, seeing his danger, should go upon the track to save his life, and he be injured by the train, he could not recover, unless the trainmen were guilty of negligence, with respect to the rescuer, occurring after the beginning of his attempt.”

The evidence shows that after appellant made the attempt to rescue Wells he was not seen by the railway employes before that time, nor until after he was struck by the car.

It is argued that Wells and appellant, being on the street, were trespassers, but had the same right there as the street cars, and the railway company owed them the duty not to injure them. This is true in a limited sense. While persons have a right to be on the streets, that right must conform to the rights of others using the streets. Street car lines are granted franchises to operate cars along tracks laid in the streets, and it is contemplated that pedestrians will not monopolize the streets; and, as cars have to be operated over the tracks, it is expected that pedestrians will recognize that condition, and not use the street occupied by the tracks for bunking purposes, or so as to interfere with the regular running of cars. Sidewalks are usually made and regular crossings prepared for the use of pedestrians. So the duty to each other is mutual, and the rights of both should be observed.

As we understand the evidence, the parties were on the track at a place other than a street crossing and putting the street to a use never intended, and they were guilty of such negligence as prevents a recovery.

The judgment is affirmed.


author: HARPER, C. J.

text:
    CHILDS et al. v. McGREW.
    (No. 359.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 19, 1914.
    Rehearing Denied Dec. 1914.)
    1. Appeal and Error (§ 837) — Findings as Conclusive — Review.
    In the absence of any findings of fact or conclusions of law by the trial court, the Court of Civil Appeals must look to the record to see if, under the pleadings, there is evidence to sustain the judgment entered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3262-3272, 3274-3277, 3289; Dec. Dig. § 837.]
    2. Guardian and Ward (§ 182) — Guardian’s Bond — Liability op Sureties — Burden op Proop.
    The burden is upon the sureties on a guardian’s bond to clearly establish their defense which would relieve them of liability.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 423, 623-636, 638-652, 65<L663; Dec. Dig. § 182.]
    3. Guardian and Ward (§ 182) — Action against Sureties — Sufficiency op Evidence-Minority.
    In an action on a guardian’s bond for misappropriation of the ward’s money, held that, resolving the facts in favor of the judgment, the evidence sustained a finding that, when the ward gave certain money to the guardian, he was a minor.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 423, 623-636, 638-652, 654-663; Dee. Dig. § 182.]
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Action by Willie McGrew against R. S. Childs, Guardian, and others, as sureties upon the guardian’s bond. Judgment for plaintiff, and the sureties appeal.
    Affirmed.
    M. H. Broyles, of Houston, for appellants.
    L. E. Blanlienbecker, of Houston, for ap-pellee.

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

   HARPER, C. J.

This is an appeal from a judgment for $1,577.95 in favor of Willie McGrew and against R. S. Childs, guardian, and L. W. Woods, Edward Lee, and E. B. Ramsey, as sureties upon the guardian’s bond.

Findings of fact: On March 10, 1910, R. S. Childs, upon his application, alleging that Willie McGrew was a minor, was appointed guardian of his person and estate. He duly qualified with the other defendants above named as sureties on his bond. A short time before the appointment, a judgment had been rendered in the United States court for $1,-560 in favor of the ward, and the money retained by order in the registry of the court. Thereafter, on the 14th day of March, the United States court made its finding that Willie McGrew was of age, and directed the clerk to deliver the money to him in person, which was accordingly done. On the same day, last named, Willie McGrew delivered the money received to defendant Childs, and it was deposited in bank in his name as guardian, and reported its receipt to the probate court, and the guardian had not been discharged when he received the money.

Upon the trial said Childs admitted that he had appropriated the money to his own use. Only the bondsmen appeal from the judgment entered.

Although appellants present three assignments of error, there is only one issue suggested, and that is one of fact, and, there being no findings of fact nor conclusions of law from the trial court, this court must simply look to the record to see if, under the pleadings, there is evidence to susTain the judgment entered by the trial court.

The burden is upon the sureties on the bond to clearly establish their defense which would relieve them of liability (Bopp v. Hansford, 18 Tex. Civ. App. 340, 45 S. W. 744), and this they have not done in this case.

The proposition asserted by appellants is: That the ward had reached his majority — 21 years of age — when the money was given by him to defendant Childs. That, having reached the age of 21 years, the guardianship had ceased, as a matter of law. Therefore the delivery and receipt of the money was a simple transaction between man and man, for which they, as bondsmen, are not liable.

The question in this case is: Was Willie McGrew 21 years of age at the time he delivered the money to defendant Childs? For, if the ward was not 21, then there can be no question that the bondsmen are liable. The county court judicially determined 'that on March 10, 1910, Willie McGrew was a minor. There is no evidence as to the date of his birth, but he and his sister testified upon the trial, about February 11, 1913, that he was then 23 years old. If he was not yet 24 years of age in February, 1913,, he might not have been 21 years of age at the time the money was given to defendant Childs, and the trial court may have so found.

It being our duty to resolve the facts where there is any evidence upon the isSue in favor of the judgment, we must hold that the judgment be sustained and cause affirmed.


author: HODGES, J.

text:
    DE GRAZIER v. LONGINOTTI.
    (No. 1346.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 5, 1914.)
    1. Landlord and Tenant (§ 130) — Suit for Nonpayment of Taxes — Defense—Breach of Covenant.
    Conceding that a landlord consented to subletting, Ms collection of additional rent from the subtenant, who was not disturbed before the end of the term, was not a breach of the landlord’s covenant for quiet enjoyment, constituting a defense to his suit against his tenant for nonpayment of taxes.
    [Ed. Note.' — For other cases, see Landlord and Tenant, Cent. Dig. §§ 470-481; Dec. Dig. § 130.]
    2. Landlord and Tenant (§ 132) — Possession — Disturbance.
    A tenant is not damaged by his landlord’s collection of additional rent from a subtenant.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 460-464, 467-469, 1198; Dec. Dig. § 132.]
    Appeal from District Court, Bowie County; W. T. Armistead, Judge.
    Action by Joseph Longinotti against Tony De Grazier. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Rollin W. Rodgers and R. P. Dorough, both of Texarkana, for appellant. Mahaffey & Thomas, of Texarkana, for appellee.

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

   HODGES, J.

Longinotti sued De Grazier to recover $301.93 as taxes which he alleged De Grazier should have paid on certain property, and for the conversion of some furniture and bar fixtures which had been left in the custody of De Grazier. De Graz-ier answered, denying any liability for the sum sued for, and sought a recovery on a counterclaim against Longinotti. At the conclusion of the evidence, the court instructed a verdict for the plaintiff, Longi-notti, for the sum of $301.93, the amount of the taxes claimed, and against the defendant, De Grazier, on his counterclaim.

There appears to be no dispute about the facts in this case. Longinotti was the owner of a building situated in the city of Tex-arkana, Tex., and on August 1, 1906, leased it, together with some saloon furniture and bar fixtures, to De Grazier for a term of five years; the consideration being $100 per month and the payment of all taxes levied against the property during the term of the lease. The lease contained this provision:

“It is made a condition of this lease that second party (De Grazier) perform each and every covenant and obligation imposed upon him herein, among others to pay said rent promptly on first of each month in the manner stated, to keep said property in good repair, to pay all taxes and assessments against said property, and observe the conditions as to subletting of said premises and all other conditions of this lease. And upon a failure to perform any one of the above conditions to be performed by second party, this lease will, at the option of the first party (Longinotti), be at once terminated, and first party is hereby given the right in such event, without notice or demand, to enter into and upon said premises or any part thereof and expel the lessee or those claiming under him and remove his effects without being taken or deemed guilty of trespass or without prejudice to any remedies which might otherwise be used for arrears of rent.”

The building was used by De Grazier and others for a saloon till some time in 1910, when the adoption of local prohibition made that business unlawful. It appears, however, that during the year 1909 De Grazier had sublet to one Holcombe, and that, after prohibition became effective,, the latter subleased the property to G. W. Schiflin. In June, 1910, O. V. Brown purchased the sublease held by Schiflin and took possession of the building. He made some alterations and began using it for the exhibition of moving pictures. By agreement with Holcombe and De Grazier, Brown paid $100 per month as rent to De Grazier and $20.72 per month to Holcombe as a monthly apportionment of taxes to be paid at the end of the year. Longinotti resided in Hot Springs, Ark., and there is no evidence that he knew anything about these transactions, except what may be gathered from the correspondence that passed between him and De Grazier. On May 9, 1910, De Grazier wrote to Longinotti, telling him that the house had been closed since the 15th of the preceding month, and offered to surrender the lease. He also suggested that a party in Texarkana desired to rent the house for a picture show, and asked Longinotti what should be done with the property. Longinotti replied to this communication a few days afterwards, acknowledging the receipt of the check for the rent, and reminding De Grazier that he (Long-inotti) still held him responsible for the rent, and also mentioned the fact that De Grazier had not explained what kind of a show the people he referred to wanted to operate and what alterations they desired to make in the building, or who the parties were. De Grazier replied, stating that the party who wanted the building was a gentleman and in every way responsible; that he would spend $400 or $500 “fixing up” the building. He stated that the building would be kept in good condition and properly cared for, and would be turned over to the owner in good shape at the expiration of the lease. He expressed a wish that he receive an early answer to his communication. There appears to have been no reply to this letter. Shortly thereafter Brown entered into possession of the building and began using it for the exhibition of moving pictures. Some time in August of the same year, Brown, without the knowledge of De Grazier, made a visit to Hot Springs and had a personal interview with Longinotti in regard to the property. It appears from Brown’s testimony that Longinotti was very much displeased with the conduct of De Grazier in permitting him (Brown) to occupy the building for a picture show, and threatened to sue De Grazier for damages. It was finally agreed, however, between Brown and Longinotti that, if -Brown would pay $50 a month in addition to what Longinotti was already receiving from De Grazier, Brown might continue his occupancy of the premises and would probably have the privilege of leasing the building after the expiration of De Grazier’s lease, which then had about one year more to run. Brown says that he went to see Longinotti for the purpose of securing this new lease upon the building, to begin after the expiration of that .held by De Grazier; that Longinotti did not tell him explicitly that he might have the building after that time, but allowed him to believe that he would, and promised to give him an answer within a few days, but failed to do so. Brown, however, continued to pay to Longinotti the $50 per month and to De Grazier $100 per month, and the taxes to Holcombe, until some time about the 1st of February, 1911. De Grazier then learned for the first time of Brown’s making the payments to Longinotti, and wrote to the latter repudiating his lease and disclaiming any further responsibility under the original contract. He also refused to pay the taxes which had accrued on the property for the year 1910, and which it is admitted amounted to $301.93 and were due. These taxes were subsequently paid by Longinotti. Brown continued in possession of the building, and thereafter paid monthly the $100 rent which had formerly been paid by De Grazier, the $50 which he was to pay Longi-notti, and $20 additional, making $170 per month.

The only defense which De Grazier urges in this suit is the conduct of Longinotti in demanding and receiving the $50 per month from Brown. He contends that this conduct was a breach of the covenant for quiet enjoyment. The proposition is based upon the assumption that Longinotti had consented in the first instance to the subletting of the property to Brown. Conceding that this assumption is justified by the evidence, there is nothing to show that either Brown or De Grazier was disturbed in the possession of the property, or in their rights under the lease. According to his testimony, which is not disputed, Brown desired a continuation of the lease after the expiration of that held by De Grazier, and sought an interview with Longinotti for the purpose of securing it, as well as to prevent any disturbance of his possession under De-Grazier. It is true, as Brown states, Longinotti declined to keep his promise, and finally gave him notice to quit at the expiration of the De Grazier lease, which occurred about the 1st of August, 1911. This, however, was a matter between Brown and Longinotti exclusively, and did not in the least disturb the relations of De Grazier and Brown. De Grazier ascertained by accident that Brown was paying $50 per month to Longinotti. His repudiation which followed seems to have been prompted more by a feeling of resentment at this exaction on the part of Longinotti than by any actual disturbance of his possessory rights as a tenant. The evidence makes it clear that he sustained no damage, and that he was neither actually nor constructively evicted. Im the absence of such consequences, the conduct of Longinotti in thus dealing with Brown is no defense to this action to recover the taxes then due. See 24 Oye. pp. 1059 and 1129, where the authorities are-referred to in the notes.

The suit of De Grazier for damages is without merit. He had no right to collect from Brown more than Brown had agreed to pay him. If by some species of oppression to which Brown did not object, Longinotti procured from Brown an additional $50 a month, that sum did not belong, to De Grazier. The facts do not show that. De Grazier sustained any damages.

The judgment is therefore affirmed.