text:
    NEVILLE v. MILLER et al.
    (No. 672.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 21, 1914.)
    1. Appeal and Error (§ 655) — Motion to Strike Exceptions — Time.
    Where the transcript was filed May 11th, the .30 days after filing the transcript allowed for motions by rule 8 for Courts of Civil Appeals (142 S. W. xi), excluding the day on which the transcript was filed, expired June 10th, and a motion to strike a bill of exceptions filed June 11th was too late to be considered.
    [Ed. Note — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2823-2825; Dee. Dig. § 655.]
    2. Appeal and Eeboe (§ 669) — Bill op Exceptions — Impeachment — Amendment in Lower Court.
    Where the trial judge is misled by appellant’s attorney into signing a bill of exceptions, the bill incorporated into the record cannot be impeached by the judge’s affidavit that he was misled, but. the proper proceeding is to have the record corrected in the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2864; Dec. Dig. § 669.)
    3. Appeal and Eeeoe (§ 648) — Bill op Exceptions— Amendment in Trial Court — Pending Appeal.
    The district court has jurisdiction to correct the record, notwithstanding an appeal has been perfected and the transcript filed in the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2803-2806; Dec. Dig. § 648.]
    4. Appeal and Error (§ 649) — Bill op Exceptions — Motion to Strike — Vacation.
    The district court in vacation may entertain a motion to strike out a bill of exceptions.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2807-2811; Dec. Dig. § 649.]
    5. Appeal and Error (§ 938) — Presumption —Striking Bill of Exceptions — Appeal.
    Order of the trial court striking out appellant’s bill of exceptions filed within the time allowed, and substituting a bill prepared and offered by appellee, made when attorneys for both parties were present and in order to make the record speak the truth, if erroneous, should be directly appealed from, and the objection of appellant’s attorney at the time brought up by affidavit aliunde the record could not be considered in the nature of an appeal, and in the absence of an appeal the court would ásenme that the order was properly made.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3795-3803; Dec. Dig. § 938.]
    6. Appeal and Error (§ 274) — Sufficiency of Exceptions — Excluding Evidence and Materiality.
    In an action against a sheriff and his bondsmen for failure to record an attachment and the return thereon, whereby plaintiff lost his debt and costs, a substituted bill of exception to the exclusion of the writ of attachment and the amended return, which did not show the original return or the amendment, or the property attached, nor contain any copy of the writ and amended return, nor any order authorizing the amendment, was insufficient, because not disclosing what the excluded testimony was and that it was material, since it could not be determined whether the attachment created a lien; and hence the exception would not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1591, 1592, 1605, 1606, 1624, 1631-1645; Dec. Dig. § 274.]
    7. Appeal and Error (§ 1057) — Harmless Error — Exclusion of Evidence.
    In such action, the defendant’s admission, if any, of the issuance and the levy of the attachment on the property alleged, rendered the exclusion of the attachment and the levy by virtue thereof immaterial and harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4194-4199, 4205; Dec. Dig. § 1057.]
    8. Appeal and Error (§ 719) — Reversaí>-Fundamental Error.
    . Error, if any, in instructing a verdict for defendant when the admitted and proven facts entitled plaintiff to a judgment, was fundamental error, as to which no assignment of error is needed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.]
    9. Pleading (§ 376) — Answer—Admission.
    In an action against a sheriff and his bondsmen for failure to record an attachment lien, an answer, alleging that defendant received the writ of attachment and upon a certain day levied upon the land described in the plaintiff’s petition, was an admission dispensing with plaintiff’s proof of the attachment and the return thereon.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1225-1227; Dec. Dig. § 376.]
    10. Sheriffs and Constables (§ ‘ 138) — Action for Failure to Record Attachment Lien — Burden of Proof.
    In an action against a sheriff and his bondsmen for failure to record an attachment lien, issued in an action by plaintiff against one S., the plaintiff had the burden of showing that he lost his lien thereby, and that had the proper record been made he would have secured a right superior to that of a purchaser from S., and that he had not been paid, or that his debt could not b.e collected, with evidence as to the value of the land attached, and that he had no actual notice of the conveyance by S. prior to the attachment.
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 290-296; Dec. Dig. § 138.]
    11. Sheriffs and Constables (§ 130) — Liability— Failure to Record Attachment Lien.
    In such action, plaintiff, if at the time he caused the levy and attachment to be made he had actual notice of its prior conveyance by the defendant therein, could not recover damages for the sheriff’s failure to perpetuate the lien by having it recorded.
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 267-271; Dec. Dig. § 130.]
    12. Attachment (§ 180) — Subsequent Record of Deed — Effect—Statutes.
    Under Rev. St. 1911, art. 267, declaring a writ of attachment to create a lien, it is the levy of the attachment that gives the lien from the date thereof, and a failure to record the attachment does not destroy the lien; and a prior purchaser from the defendant in the attachment suit, merely by recording his deed after the attachment, would not affect the respective rights of the parties.
    [Ed. Note — For other cases, see Attachment, Cent. Dig. §§ 453, 550-575; Dec. Dig. § 180.]
    Appeal from Hartley ■ County Court; R. B. Elkin, Judge.
    Action by B. F. Neville against J. N. Miller and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Jno. W. Veale, of Amarillo, J. S. Bailey, of Dalhart, and Durell Miller, of Channing, for appellant. W. B. Chauncey, of Wichita Falls, and Tatum & Tatum, of Dalhart, for appellees.

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

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

   HUFF, C. J.

This is an action brought by the appellant, Neville, against the appellee J. N. Miller, sheriff of Hartley county and his official bondsmen, for the sum of $369.60, and $11.65 costs, in a certain suit, which sums were sought to be recovered as damages. Appellant alleges: That on the 29th day of June, 1912, he instituted suit in the county court of Dallam county, against G. M. Sharr, for a debt, and at that time sued out a writ of attachment directed to the sheriff or any constable of Hartley county, Tex. The number of the cause on the Dal-lam county docket was 331. That the attachment was placed in the hands of appel-lee J. N. Miller, as sheriff of Hartley county, and that the same was levied on certain land in that county, describing the land, as the property of G. M. Sharr, and that the sheriff failed to make a copy of the attachment together with the return thereon and file with the county clerk of Hartley county, to be recorded in the attachment lien records of that county. That after the levy of the attachment aforesaid on the 25th day of July, one G. S. Davis filed for record in the county clerk's office of Hartley county a deed- to the land in question for record, .which was recorded on the 31st day of July, in the deed records of that county. That the deed from Sharr to Davis was dated the 27th day of May, 1912. The appellant alleges and claims that by reason of the failure to so record the attachment lien there was no sale under a foreclosure proceeding for the land that he has lost his debt, interest, and the costs of that suit. Appel-lees answered this petition, which will not now be set out in detail, but some portions of it noticed later on.

The appellees in this case present their motion to strike out bill of exception No. 1, because: (1) The bill does not set out the documentary evidence which the trial court excluded, and it has not informed the court as to what evidence was offered, etc.; and (2) it does not properly belong in the transcript for the reason that it wms withdrawn by the trial court and does not state the action taken by the trial court. This case was tried in the county court of Hartley county, February 2, 1914; the term of that court ending February 16, 1914. Bill of exception No. 1 shows that:

“The plaintiff offered in evidence a certain writ of attachment issued out of the county court of Dallam county, Tex., together with the return and amendment of the return thereon, said writ being issued June 29, 1912, in cause No. 331, on the civil docket of the county court of Dallam county, Tex., styled B. F. Neville v. G. M. Sharr, directed to the sheriff or any constable of Hartley county, Tex., and the return and amendment of the return thereon being made by J. N. Miller, defendant herein, sheriff of Hartley county, Tex., under the direction of the county judge of Dallam county, Tex.”

The objection urged and sustained by the trial court as set out in this bill is:

“That the amendment to said return was dated February 5, 1913, long after the land attached under said writ had passed out of the hands of the said G. M. Sharr, and a writ of attachment was excluded from evidence.”

This bill appears to have been approved the 6th day of February, 1914. On the 5th day of February, 1914, the motion for new trial was overruled and notice of appeal was given. On the 13th day of March, 1914, the county judge, who presided at the trial, made an order granting 60 days from ad--journment of the February term of court in which B. F. Neville should have “to file his statement of facts and assignments of error,” reciting therein that on the 4th day of February, 1914, appellant was granted 60 days, which was entered on the judge’s trial docket but never “reduced to writing, in a separate order.”

The court on April 3, 1914, prepared and filed what is designated in the record as “bill No. 2,” reciting in the body of the bill the offer in evidence of the writ of attachment, the return, and amendment thereon substantially as did bill No. 1, and contains a further statement:

“And said amended return being made on February 5, 1913, and at the time,” etc. “The objections therein recited are: (1) Because the original, return of the officer on said writ of attachment recited that said writ came to hand the 6th day of July, A. D. 1912, and was executed on the 1st day of July, A. D. 1912, and that * * * such return shows an impossible date of levy. (2) The alnended return dated February 5, 1913, was made by order of the county court of Dallam county that there was no certified copy of the order offered in evidence and it was not shown that it was made in open court and prior to the judgment in cause No. 331, in that court; _ and that the land levied on was conveyed prior to the issuance of the writ but recorded after the writ was issued and long prior to that date on which the original return was amended. (3) Because the return failed to point out and identify the land attempted to be levied upon, which objection No. .1 the court sustained, to which ruling plaintiff excepted.”

Appended to this bill the judge made a statement that the attorneys could not agree upon a bill of exceptions, the return thereon, and the order for the amendment, and that he prepared and filed the above bill, “as a true statement of facts therein, and I have this day withdrawn the bill of exceptions heretofore filed in this case on the 6th day of February, A. D. 1914, and hereby substitute the above bill of exceptions for said former bill of exceptions and hereby approve the above bill.” The appellant controverts the motion to strike out the bill of exception No. 1 and appends thereto the affidavit of the county judge trying the ease, which is to the effect that counsel for plaintiff and defendant failed to agree upon a bill, and on that plaintiff prepared bill No. 1, which he (the judge) signed and filed “within the 20 days allowed by law.” After approving the first bill, on April 3, 1914, counsel for defendant prepared what he said was a bill showing the exact status of the facts as they occurred, and persuaded him to allow same and strike out bill No. 1, which he did and withdrew it, and approved and ordered filed bill No. 2. Counsel J. S. Bailey, for plaintiff, was not present at the time bill No. 2 was approved and filed, but counsel Durell Miller, for plaintiff, was present and protested that bill No. 1 should not be stricken from the record, and that bill No. 2 should not be filed, but that he (the judge) disregarded the protest.

The appellant excepts to the consideration of the motion at this time, because not placed upon the motion docket within 30 days after the filing of the transcript in this court, in accordance with rule No. 8 (142 S. W. xi). The transcript was filed May 11, 1914, and the motion filed June 11, 1914. Excluding the day on which the transcript was filed, 30 days after that day fell on June 10th. Burr v. Lewis, 6 Tex. 76; Lubbock v. Cook, 49 Tex. 96. The motion was not filed within 30 days, and it is too late and cannot be considered under rule 8 for this court; but, as the issue presents a question of practice, we deem it advisable to call attention to the rule established by the courts of this state in preparing bills of exception under circumstances similar to the method adopted in this case.

In the case of Railway Co. v. Elliott, 148 S. W. 1125, the court there held, where the judge of the trial court made an affidavit to the effect that he was misled by appellant’s attorney into signing the bill and that the bill incorporated into the record could not be impeached in that way, “but that the proper proceeding would have been to have the record corrected in the trial court.”

In Stark v. Harris, 106 S. W. 887, cited ' by appellant, it is said:

“Undoubtedly the district court had the right to correct the altered bills of exceptions, and cause them to speak the truth; but it did not have the authority to strike the bills of exception from the record, in the absence of fraud or sharp practice having been used in procuring their approval, simply on the ground that they had been altered after being signed.”

And in that case the Court of Civil Appeals considered the bill of exceptions or such part of the bill as they found had not been interpolated. The Supreme Court, however, upon writ of error, reversed the Court of Civil Appeals, Harris v. Stark, 101 Tex. 587, 110 S. W. 737, holding:

“It does not require the citation of authority to sustain the proposition that the district court had jurisdiction to correct the record of this case as made in that court, notwithstanding the appeal had been perfected and the transcript filed in the Court of Civil Appeals.” '

From the report of the case it appears a motion was made to strike out the bill of exceptions presented to the district court. One of the grounds alleged therefor in a motion to strike out was because it had been altered by blotting out and striking out a great deal of other matter set-out in the motion filed by appellee’s attorney and served on appellant’s attorney. The Supreme Court further said in that case:

“No appeal or writ of error was taken from the order of the trial court, nor was there any resistance offered by the appellant or his attorney to -such action of the court. * * * The judgment of the trial court was conclusive upon the Court of Civil Appeals except upon appeal or writ of error” — citing Wichita Valley Railway Co. v. Peery, 88 Tex. 378, 31 S. W. 619.

In the case of Railway Co. v. Culberson, 72 Tex. 375, 10 S. W. 706, 3 L. R. A. 567, 13 Am. St. Rep. 805, the Supreme Court said:

“The trial court has the power, in a proper proceeding, and upon proper proof, so to amend its records as to make them speak the trutji, even after the jurisdiction has attached in the appellate court.”

In the case of Ford v. Liner, 24 Tex. Civ. App. 353, 59 S. W. 943, cited by the appellant, the court there held the district court could not entertain a motion in vacation to strike out a bill of exceptions. This case does not appear to be supported by the authorities but, as we understand the question, is in conflict with the holding of the Supreme Court. Boggess v. Harris, 90 Tex. 476, 39 S. W. 565; Willis v. Smith, 90 Tex. 635, 40 S. W. 401; Ennis v. Wathen, 93 Tex. 622, 57 S. W. 946; Johnston v. Arrendale, 71 S. W. 44.

In the absence of a direct appeal from the order directing the bill of exceptions No. 2 to be considered as part of the record, we are authorized to presume that the order was properly made. Railway Co. v. Cox, 105 Tex. 40, 143 S. W. 606, 157 S. W. 745. Under the statute, the court had granted 60 days in which to file statements of fact and assignments of error at the request of appellant. The first bill approved was filed during the term of the court, and the other some time after adjournment, April 3, 1014. It appears at the time the last bill was prepared attorneys for both parties were present before the trial court. If the order then entered by the court was erroneous and should not have been made, that order should, under the holdings of the Supreme Court, have been appealed from. We have no right to disregard it upon an affidavit in this court impeaching it; it does not affect the jurisdiction of this court. We should presume, in the absence of a direct attack by aiDpellee therefrom, that the court prepared a correct bill of exceptions and made the proper order substituting it for the one theretofore approved. The trial court had the right to have the record speak the truth, and the actual objections urged and ruled upon presented in the bill. If there was an error in the first bill in stating the proceedings, then before him, he had the right to correct it; that he did so by an order and substituted bill we believe we should presume was properly done when there is no appeal therefrom. The objection of the attorney, at the time, cannot be considered by us as in the -nature of an appeal. It is not brought up in the record in this court, but by an affidavit aliunde the record, and in the absence of evidence impeaching the order of the court, properly brought up in the record, we believe we should presume the facts warranted the action of the court.

The appellant’s first and only assignment of error is to the action of the court in sustaining objections to the admission of the writ of attachment, the return, and the amendment thereof, for the reason that the writ shows to be regularly issued, levied, and returned, and was relevant and material, going to sustain plaintiff’s cause of action, and was indispensable to plaintiff’s cause of action. The assignment purports to set out a literal copy of the writ, the return and amended return thereon, and what purports to be an order of the county court of Dallam county, authorizing the amendment of the return. The statement under this assignment simply sets out bill No. 1, hereinbefore quoted. The appellee objects to the consideration of this bill. As seen from what has been said by us heretofore, the bill cannot be considered by us for the reason that the same was stricken out. In looking to the record we find bill No. 2, in which there are several other objections made to the testimony other than that quoted in bill No. 1. The objection sustained, as set out in bill No. 2, was objection-No. 1, which is that the levy is shown to have been made on an impossible date. The judgment against Sharr in the county court of Dallam county shows to have been rendered February 6, 1913. The bill of exception prepared by the court and by him ordered substituted for the former bill shows the return was amended February 6, 1913, on the same day the judgment was rendered. Neither bill shows what the original return was or what the amendment was; neither bill shows upon what property it was levied; and we find nothing in the record except the judgment of foreclosure, which describes the property, except the pleadings. We find no order authorizing the amendment of return except what is stated in the assignment. The record does not otherwise contain a copy of the writ, return, and the amendment thereof. The assignment itself copies an- affidavit of Miller as to what he had done, but does not appear to have been indorsed by him on the writ as an amendment of his return. Where the bill of exceptions does not disclose what the excluded testimony was and that it was material, it will not be considered. The bill must show the materiality of the evidence. The issue in this case was: Did the levy of the attachment create a lien on the land owned or claimed by appellee? Unless the return of the writ showed a levy on the land and that it was prior to the recordation of appellee’s deed, the levy would be immaterial. We cannot tell from either of the bills just when the levy was made or upon what levied. It has been the rule of the courts of this state from the beginning that the bill should set out the evidence excluded and show its materiality. Beeman v. Jester, 62 Tex. 431; Pennington v. McQueen, 3 S. W. 315; Jones v. Cavasos, 29 Tex. 429. It is contended that because appellant alleged the levy on the land by virtue of an attachment we should therefore look to the pleadings. There is quite a difference in allegation and proof. Because simply it was alleged that the levy was made as shown by the return and amendment on the writ, it will not necessarily follow that the return on the writ offered in evidence showed the levy as alleged. We do not think we are authorized to presume that such return proved the allegation. The case of Fox v. Sturm, 21 Tex. 407, cited by appellant, is clearly distinguishable and is not in point on this question.

The appellant, by proposition 2, asserts that he alleged the issuance of the attachment, the levy, return, and amendment thereof, and that appellee admitted the issuance and the levy thereof on the property in question, and that the lack of descriptive matter in the bill is unnecessary. If this is true, then the exclusion of the attachment and levy by virtue thereof was immaterial and harmless, as the fact sought to be proven thereby was admitted and did not require proof. This is tru.e whether the act of the 33d Legislature, chapter 127 (Vernon’s Sayles’ Ann. Oiv. St. 19Í4, arts. 1827-1829, 1902, 1829a, and 1829b), applies or not. The rule has been and is now that that which is admitted is not necessary to prove. Ogden v. Bosse, 86 Tex. 344, 24 S. W. 798; Ry. Co. v. De Walt, 96 Tex. 121, 70 S. W. 537, 97 Am. St. Rep. 877.

There is no assignment that upon the admitted and proven facts appellant was entitled to a judgment and that the court committed error in instructing a verdict for the appellee. If the court was in error in so instructing a verdict, it is fundamental. This proposition appellant has not seen proper to suggest or to brief. We believe that appellee’s admission in the answer dispensed with the proof of the attachment and the return thereon. The issuance of the attachment, levy on the land, and the amendment of the return was alleged by appellant in the fourth and sixth paragraphs of the original petition, charging that the sheriff, appellee, so levied it.

In the seventh paragraph of the answer it is alleged that:

“Defendants further say that defendant Miller received the writ of attachment, and that upon the 6th day of July, 1912, levied upon the land described in plaintiff’s petition.”

This certainly was all the attachment and return could have shown. It is otherwise shown that the sheriff did not file in the county court a copy of the attachment and the return for recordation as the statute requires in attachment liens. The appellant offered in evidence a judgment of the county court of Dallam county, No. 331, B. F. Neville v. G. M. Sharr, dated February 6, 1913, for the sum of $369.60; the entry simply reciting that the plaintiff therein caused to be issued on June 29,1912, the writ of attachment to Hartley county, and which was executed by levying it July 6, 1912, upon the land in question, describing the land. The lien was not foreclosed or any decree directing the sale of the land to satisfy the judgment. It was shown that a copy of the attachment and return thereon, or the original issue out of the above cause, No. 331, was not recorded in the attachment lien records of Hartley county, where the land was situated. It was admitted by the parties to the suit that G. M. Sharr conveyed the land levied on as the property of Sharr, to O. S. Davis, on the 27th day of May, 1912, and that the deed was filed for record in the county clerk’s office of Hartley county, July 25, 1912, and recorded July 31, 1912. Davis testified to purchasing the land from Sharr, and that at the time of filing his deed he had no notice of the levy. This is substantially all the testimony introduced or offered.

We do not think if the attachment and return had been admitted that plaintiff was entitled to a verdict or judgment under the evidence. In the first place, it is not shown that appellant lost anything by the failure of the sheriff to cause the attachment lien to be recorded. It is not shown that appellant has not been paid, or that his debt could not be collected. There is no evidence as to the value of the land in question. Hurlock v. Reinhardt, 41 Tex. 580; Bernheim v. Shannon, 1 Tex. Civ. App. 395, 21 S. W. 386; Crews v. Taylor, 56 Tex. 461. If the appellant, at the time he caused the levy to be made, had actual notice of the conveyance of the land by .Sharr to Davis, then, as to the sheriff, he could not recover damages for the failure to perpetuate the lien by having it recorded in the lien record. It is not shown whether appellant had actual notice. As between appellant and the sheriff, we think the burden was on the appellant to show he had no such notice in order to show that he in fact had lost a valuable right. In making this holding we do not wish to be understood as holding that as between appellant and Davis the burden would be on appellant to show he had no such notice, neither do we wish to be understood as holding as to creditors the same rule will apply as to the recordation of attachment lien, under article 6858, R. C. S., as has been applied by the Supreme Court, under article 6824, R. C. S. Barnett v. Squyres, 93 Tex. 193, 54 S. W. 241, 77 Am. St. Rep. 854; Turner v. Cochran, 94 Tex. 480, 61 S. W. 923. On the question last suggested we make no holding at this time, as it is not involved in the proper disposition of this cause. If, however, the appellant had proved every allegation in the petition, he yet would have had no right of recovery, in our opinion. This being a suit for damages against a sheriff in failing to record the attachment lien, it became necessary to show that' appellant lost his lien thereby and had the proper record been made he would thereby have secured a superior right over Davis, the vendee of Sharr.

It is the levy of the attachment on the property that gives the lien from the date of its levy. Article 267, R. C. S. The failure to record the attachment does not destroy the lien, but “the attachment lien shall not be valid against subsequent purchasers for value without notice and subsequent lien holders in good faith.” The failure to record the writ of attachment and return in the county where the land is situated will not affect the lien by virtue of the levy. Woldert v. Nedderhut, etc., 18 Tex. Civ. App. 602, 46 S. W. 378; Davis v. Farwell & Co., 49 S. W. 656. Davis in this case was not a subsequent purchaser, and the levy of the attachment between his purchase and the recordation of his deed would preclude him, if under the law the appellant could hold under the rule that his right attached before the recordation and if he can be treated as a lienholder in good faith or for value. In other words, the mere recordation of the deed by Davis would not defeat the right of appellant if he had already attached the land at that time. The recordation or the failure to record the deed subsequent to the levy would not affect the respective rights of the parties. Davis had not been caused to lose anything by virtue of the sheriff’s failure to require the attachment and the return recorded; he had prior thereto paid and parted with the consideration for the land to Sharr.

We find no reversible error, and the case will be affirmed.

Affirmed.


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    WICHITA FALLS & W. RY. CO. OF TEXAS et al. v. ASHER.
    (No. 532.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 28, 1914.
    On Motion for Rehearing, Jan. 2, 1915.)
    1. Commerces (§ 33) — “Interstate Commerce.”
    A shipment of goods which traverses another state, though the points of origin and destination are in the same state, is interstate commerce.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 26, 81; Dec. Dig. § 33.

    For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]
    2. Carriers (§ 91) — Carriage oe Goods— Rates — Erroneous Quotation.
    A wrong quotation by a railway agent as to the freight rate to be charged on an interstate shipment gives no right of action to the shipper for injuries on account of the misquoted rate, though the tariff is not posted at the carrier’s local station.
    [Ed. Note. — For other- cases, see Carriers, Cent. Dig. §§ 338-355; Dec. Dig. § 91.]
    3. Trial (§ 105) — Reception oe Evidence-Admission Without Objection.
    The uncontradicted testimony of a railway freight agent, admitted without objection, that certain rates were in effect on the day of a shipment, though subject to objection as a conclusion, is sufficient proof of that fact.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 260-266; Dec. Dig. § 105.]
    4. Carriers (§ 104) — Carriage oe Goods— Action eor Detention — Admissibility oe Evidence.
    In an action against carriers for the detention of goods until the owner paid the lawful rate thereon, which was more than the rate quoted by the agent at the time of the shipment, testimony by plaintiff that he did not have enough money to pay the additional charges, and knew no one from whom he could borrow it, was immaterial, since the law requires a carrier to collect and a shipper to pay the legal rate.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 439-447, 459-461; Dec. Dig. § 104.]
    5. Appeal and Error (§ 1050) — Prejudicial Error — Admission oe Evidence.
    The admission of such testimony was prejudicial under Court of Civil Appeals rule 62a (149 S. W. x), forbidding reversals unless the error probably caused an improper judgment, where the jury awarded plaintiff $300 damages for the detention of the goods for 100 days.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    6. Carriers (§ 177) — Carriage oe Goods— Liability — Connecting Carriers.
    Where goods are shipped over the lines of connecting carriers, the common-law liability of each is limited to damages accruing on its own line, but any one of them may, by special contract, make itself liable for the entire carriage.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 775-789, 791-803; Dec. Dig. § 177.]
    7. Carriers (§ 187) — Carriage oe Goods— Liability — Question eor Jury.
    Where a shipper claimed a contract by an initial carrier, rendering it liable for the entire carriage, it was a question for the jury whether the oral negotiations between the shipper and the carrier’s agent amounted to such a contract.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 851, 852; Dec. Dig. § 187.].
    8. Carriers (§ 177) — Carriage oe Goods— Liability — Carmack Amendment. "
    The Carmack amendment (Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 [U. S. Comp. St. 1913, § 8592]) to Interstate Commerce Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 386, requiring every common carrier receiving property for transportation from a point in one state to a point in another state to give a bill of lading therefor, and making it liable for all damages to the goods caused by it or any connecting carrier, when strictly construed as a penal law, does not apply to a shipment through another state to a point in the same state as the point of origin, though the evil is the same in such a case as in the cases covered by the express terms of the amendment.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 775-789, 791-803; Dec. Dig. § 177.]
    9. Carriers (§ 139) — Liability as Warehouseman — Reeusal to Pay Charges.
    Where the agent of an initial carrier quoted an incorrect rate to a shipper, and the latter refused to pay the legal rate, the liability of the carrier for the safe-keeping of the goods thereafter would be as warehouseman and not as common carrier.
    [Ed. Note. — For other cases, see Carriers. Cent. Dig. §§ 617-619; Dec. Dig. § 139.]
    On Motion for Rehearing.
    10. Carriers (§ 189) — Carriage oe Goods— Rates — Published Tariee.
    The filed and published freight rates for an interstate shipment, whatever they may be, are conclusive as to the rate to be charged.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 162, 854, 855, 859-865; Dec. Dig. § 189.]
    11. Carriers (§ 193) — Carriage oe Goods— Rates — Published Tariee.
    Where published tariffs, establishing the rates for shipments between certain places, excepted therefrom the lines of a certain carrier which had not subscribed to the tariffs, in determining the rate on an interstate shipment originating on the lines of that carrier the tariff might be used to determine the rate on the other lines, which, in combination with the local rate of the initial carrier, would make the through rate.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 348, 868-869; Dec. Dig. § 193.]
    Appeal from District Court, Collingsworth County; J. A. Nabers, Judge.
    Action by J. C. Asher against the Wichita Falls & Wellington Railway Company of Texas and others. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded, and motion for rehearing overruled.

      Charles C. Huff, of Dallas, and R. H. Tem-pleton, of Wellington, for appellants. J. L. Lackey, of Wellington, and Presler & Thorne, of Memphis, for appellee.

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

   HENDRICKS, J.

The appellee, plaintiff, in the court below, sued the Wichita Falls & Wellington Railway Company of Texas and the Wichita Valley Railway Company for alleged damages to an “emigrant” shipment from Spur, Tex., to Wellington, Tex., claiming that he consummated an oral contract with the agent of the Wichita Valley Railway Company at Spur, Tex., for the shipment of said “emigrant” ear at the agreed freight rate of $50 for the through transportation, and that when said shipment reached Wellington, the destination, the Wichita Palls & Wellington Railway Company of Texas refused to surrender the same to him unless $46 additional freight was paid. This shipment was required to go through a portion of the state of Oklahoma and return into the state of Texas in order to reach Wellington, the destination, and the appellants pleaded specially that the transportation was interstate on this account, and further that the correct and legal rate on the shipment was $96 instead of $50, and that the defendant the Wichita Palls & Wellington Railway Company of Texas was justified in refusing to deliver the shipment to the appellee until the correct freight was paid, and that there could be no recovery of damages for the detention of said shipment. The appellee also claimed damages on account of alleged rough handling and alleged negligent storing' of said shipment, and the jury returned a verdict in his favor for $200 for such alleged damages and for $300 on account of the detention of the shipment.

The appellants assign error that the verdict of the jury, assessing the $300 as damages for detention of the shipment, is erroneous in that the evidence is uncontradicted that the rate of $96, which the carrier demanded at destination, was the legal rate on file with the Interstate Commerce Commission, and was the only rate that could be assessed and collected by the appellants as charges for the transportation; and that until the rate was tendered or paid the appellee was unable to recover upon this issue. The appellants’ special plea that the shipment was interstate is proven in the record; the shipment originating at Spur, Tex., on a branch of the Wichita Valley and moving thence to Stamford, thence over the main line of the Wichita Valley to Wichita Palls over the line of the Wichita Palls & Northwestern Railway Company of Texas to Red river, thence through Oklahoma over the same system, returning into Texas, and thence over the Wichita Palls & Wellington Railway Company of Texas from the state line to • said Wellington, the place of destination.

The appellants contend that by Supplement 24 of Texas Lines Basing Tariff No. 2, issued by the Interstate Commerce Commission, on its face purporting to be effective November 25, 1911, and claimed to have been in effect at the time this shipment was made, the rates between Wellington, Tex., and all Texas points included in this territory, as applied to the Wichita Palls & Northwestern Railway Company, were the same on all classes and commodities, including this character of shipment (excepting lumber and other products not necessary to mention), as then applied between Shamrock, Tex., on the Chicago, Rock Island & Gulf Railway Company, and such Texas points as shown in said tariff, further asserting, however, that the origin of the shipment being upon the Wichita Valley, and that this basis of rates in this territory, by an exception, not applying in connection with the Wichita Valley Railway Company, and certain other roads not necessary to mention, hence a through joint rate, on account of the Wichita Valley having been excepted therefrom, could not be applied by that road, in routing this character of shipment from Spur to Wellington, by using Shamrock as a basing point; hence some other rate necessarily would have to control this shipment, and we add if legally in existence.

Although this through joint rate was not applicable on account of the Wichita Valley, upon which Spur is located, having been excepted from the same, the further reasoning is that the rate from Wichita Palls to Wellington on this character of shipment, as shown by the supplement indicated above, was the same as the rate, whatever it may be, would have been from Shamrock to Wichita Palls, and that, if the rate from Wichita Palls to Wellington is the same as the rate from Shamrock to Wichita Palls— the record again shows that the entire line of the Chicago, Rock Island & Gulf Railway Company, on which Shamrock is located, is situated in what is known as differential territory. — that the maximum rate from Shamrock-to Wichita Palls is 23 cents per hundredweight, as applicable to this character of shipment, and the record further shows that as to a shipment for the distance between Shamrock and Wichita Palls, by applying a differential basis, there should be added a differential of two cents per hundredweight, making an aggregate rate of 25 cents per hundredweight as the rate from Wichita Palls to Shamrock, and that likewise this would be the same rate from Wellington to Wichita Palls, and from Wichita Palls to Wellington, if the shipment had been made exclusively between those points upon the system of Wichita Palls & Northwestern.

As to the rate applicable to this character of shipment between Spur, Tex., and Wichita Palls, Tex., on the Wichita Valley System, it is shown by Texas Basing Tariff No. 2, issued by the Interstate Commerce Commission, that (quoting from the circular):

“On shipments between points on Wichita Valley Railway line north of Stamford and points on the Wichita Valley and points on Ft. Worth & Denver City Railway, and all other lines, rate to apply, two-line rate.”

Spur, Tex., is located north of Stamford, on the line of the Wichita Valley Railway, and including the branch from Spur to Stamford and from Stamford to Wichita Falls, over the main line of the Wichita Valley, make the two-line rate, also shown by the tariff and issued by the Commission; and as it is shown that the shipment comes under the heading of class D, as evidenced by “Texas Line Classification No. 2, Interstate C.om-merce Commission Tariff No. 11, and that rates for 196 miles and over 192 miles, class D, will be 23 cents per hundredweight,” this constitutes the two-line rate applicable to this class of shipment from Spur to Wichita Falls.

It is settled law that transportation, where traversing another state, or a portion of same, though the points of origin and destination are in the same state constitutes interstate commerce. Hanley v. Railway Co., 187 U. S. 617, 23 Sup. Ct. 214, 47 L. Ed. 333.

It is also settled that a wrong quotation, by a railway agent as to the freight rate applicable to an interstate shipment, of a lower rate than that fixed by the published tariff, gives no right of action to a shipper who claims to have sustained injury on account of thp misquoted rate. Gulf, Colorado & Santa Fe Railway Co. v. Hefley, 158 U. S. 98, 15 Sup. Ct. 802, 39 L. Ed. 910; Railway Co. v. Mugg, 202 U. S. 242, 26 Sup. Ct. 628, 50 L. Ed. 1011. And this is the rule though the tariff is not posted in the carrier’s local station. Ill. Cent. Ry. v. Henderson Elevator Co., 226 U. S. 441, 33 Sup. Ct. 176, 57 L. Ed. 270; Kansas City Southern Railway Co. v. Albers Com. Co., 223 U. S. 573, 32 Sup. Ct. 316, 56 L. Ed. 556.

The case of Railway Co. v. Albers Commission Co., supra, was one where grain merchants, Forrester Bros., contracted with the railway company to transport a large quantity of grain from Omaha, Neb., to Tex-arkana, Tex., through Kansas City, Mo., at a stipulated rate; the Commission Company as their judgment creditor garnishing the railway company on the theory that the railway company owed the judgment debtor overcharges in freight above the agreed rate. The Supreme Court of Kansas (79 Kan. 70, 99 Pac. 824), originally deciding the case, said:

“The contract as alleged by the plaintiff having been clearly established, the burden was upon the defendant to show, by way of defense that such contract was for some reason unlawful. If the invalidity resulted from the existence of legally established rates with which the rate relied upon by the plaintiff was in conflict, it was incumbent upon the defendant to allege and prove such fact.”

The court had previously said:

“The contention that each of the roads making the Forrester rate had a legally established local rate is not sustained by the evidence. No such proof was offered. There was some talk by the witnesses of a local rate, and what it ■was on each road, but no proof that such rate had been established under the law was presented.”

The Supreme Court of the United States thought that either one of two rates was established different from the agreed rate, though better testimony might have been preferable, and as to the controlling rate said:

“As it was conceded that there was no established joint through rate, it likewise is a necessary conclusion that the shipments, even if moving on through bills of lading, should have taken these local rates unless the latter was superseded or displaced by the special agreement.”

And, quoting from Justice 1-Iook of the Eighth Circuit Court of Appeals, the Supreme Court of the United States further said:

“If an initial carrier accepts traffic for transportation and issues its bill of lading over a route made up of connecting roads, for which no joint through rate has been published and filed with the Commission, the lawful rate to be charged is the sum of the established local rates published and filed by the individual roads; or if, as was the case here, there is a local rate over one road and a joint rate over the others for the remainder of the route, all published and filed with the Commission, the lawful through rate to be charged is the sum of the local and joint rates. By failing to establish or concur in a joint through rate for traffic accepted for interstate transportation, each participating carrier impliedly asserts that the rate which it has duly established, published, and filed for its own line shall be a component part of the through rate to be charged. It is competent for carriers, if conditions justify it, to make their proportions of a through rate less than the local charges upon their own lines, but in doing so they should observe legal methods, and, if no action to that end is taken, they in effect adhere to the rates established, published, and filed by them as applying, not only to local, but to through, traffic.”

The Circuit Court of Appeals, in the case of Chicago, B. & Q. Ry. Co. v. U. S., 157 Fed. 833, 85 C. C. A. 197 (from which the Supreme Court’s quotation was made), in extending the reasoning as applicable to this question, further used the following language:

“The initial carrier which receives traffic and issues a bill of lading to ultimate destination should be held to have done so in view of the only rates which its connections are authorized by law to charge. This principle was recognized by the Commission as early as March 23, 1889 (2 Interst. Com. Com’n R. 656), when ,it said: ‘When no other tariff is filed, the rates on traffic carried over or upon more than one line will be the sum of the local rates of the individual roads, or of local and joint rates, as the case may be.’ ”

Again the court said:

“By routing and billing the traffic over the connecting lines, the initial carrier adopts and is bound by their lawful rates.”

The appellants also offered in evidence rule 5, issued and promulgated by the Interstate Commerce Commission, as follows:

“Kates on Through Shipments When No Joint Eates Apply.—(a) The practice on the part of carriers of accepting and transporting through shipments, as to which no joint rate applies, upon rates made up by combination of rates of the several carriers participating in the movement, and of collecting, as delivering carriers, the aggregate charges of the several carriers for their portions of such charges, is practically universal. That custom has the same binding effect as a joint rate, both as between carriers themselves and as between carriers and shippers. Therefore carriers may construct rates for through shipments to and from points to and from which there is no applicable published joint rate, by using lawfully published and filed basis, locals or proportionals, in connection with other lawfully published and filed tariffs.”

The witness Fontaine, who was the general freight agent of the delivering line, testified, without contradiction, that these rates were in effect on the Sd day of Janu-uary, 1912, when the shipment was made. Believing that it is the law that a carrier shall place in the hands and custody of its agent, at every station, warehouse, or office at which passengers or freight are received for transportation, schedules of all rates and fares applying from the station, as held by the Supreme Court of North Carolina in the ease of Yirginia-Carolina Peanut Co. v. Atlantic Coast Line Eailway Co., 82 S. E. 1, and that compliance with the Interstate Commerce Act in that respect is made a condition precedent to the effectiveness' of the schedules and the lawfulness of the rate charged thereunder (same case, supra), however, is the conclusion of the witness in this case that these rates were in effect at the time the shipment moved sufficient proof of that fact? We presume, if this testimony had been objected to as a conclusion of the witness, such objection would have been sustained, and as the Supreme Court of the United States said in the Albers Commission Co. Case, supra, in passing upon a similar question:

“This testimony was not the best evidence, but, being offered and admitted without objection, it was evidence which could not be disregarded.”

Under rule 5, introduced by appellants, permitting carriers, where there is no applicable published joint rate, to construct rates “by using lawfully published and filed basis, locals or proportionals, in connection with other lawfully published and filed tariffs,” we think the two-line rate from Spur to Wichita Falls could have been used “in connection with other lawfully published and filed tariffs,” or “basis,” which was the rate from Wichita Falls to Wellington, based upon the rate from Shamrock to Wichita Falls, for the purpose of ascertaining the through rate made up by the combination, and that this case comes within the spirit of the Albers Commission Co. Case and the case of Chicago, B. & Q. Eailway Co. v. United States, and that an “initial carrier, which receives traffic and issues a bill of lading to ultimate destination, should be held to have done so in view of the only rates which its connections are authorized by law to charge,” which in this instance, in connection with the two-line rate, the only rate which the Wichita Falls & Wellington Eailway Company of Texas could charge from Wichita Falls to Wellington, is the rate from Shamrock to Wichita Falls. We sustain the main assignment of appellants complaining of the $300 verdict as damages for detention of the freight; however, it may still remain a jury question whether the rate is a legal rate, and existent as such, at the time the shipment was made.

Appellants’ third assignment of error complains of the testimony of the appellee, Asher, to the effect that, when the railway company refused to deliver his car of goods until he paid $46 more freight, he did not have the money necessary to pay the amount demanded by the agent as additional freight, and that he did not know of any one in the town of Wellington from whom to borrow the money, and that he was a stranger in that community; appellants objecting that said testimony was “immaterial, prejudicial, and was'flaunting the poverty of the plaintiff before the jury,” etc. Under the law, the shipper, as well as the carrier, is arbitrarily bound by the established legal rate, the carrier, for the purpose of preventing discrimination, is required to demand such rate, and the shipper is required to pay the same in order to obtain the goods; otherwise the lien of the carrier as security for the freight, as provided by the Interstate Commerce Act, is in existence. The carrier retained the goods for 101 days when the appellee sequestered the property at the time of the institution of this suit. As stated, the jury awarded $300 damages for detention and $200 damages to the goods.

The answer of appellee to this assignment is in effect that the testimony related to an immaterial matter, and that the court should apply rule 62a (149 S. W. x). We are unable to find a case similar in nature, but believe that the application of the principle in a different character of cases, arguing the inadmissibility of this character of testimony, is proper. For example: In the case of M., K. & T. Eailway Co. v. Ilannig, 91 Tex. 349, 43 S. W. 509, the appellee, suing for damages on account of personal injuries, was permitted to testify that he was a married man, and that his wife had no means of support, except her own labor. The Supreme Court said:

“The evidence in question in this case threw no light upon any issue properly involved in it, and was calculated solely to awaken the sympathy of the jury, and thereby to swell the damages to be awarded by the verdict. Counsel for the plaintiff evidently thought it would have some effect in plaintiff’s favor, else ■ he would not have insisted upon its admission over the objection urged on part of the defendant.”

In the case of Gulf, Colorado & Santa Fe Railway Co. v. Johnson, 99 Tex. 337, 90 S. W. 164, the mother of an injured, minor was suing to recover for the diminution to her in value of her son’s services, and for such expenses as may have been rendered necessary by the injury. In this case the appellee is also suing for the difference in value of his property. The Supreme Court said in the case cited, The mother’s “poverty did not tend to show” the damages, reversing the case on account of the prejudicial testimony. Of course the difficulty of rule 62a is in its application. We are inclined to think, however, that where practically $100 a month for detention of the household goods in question was awarded by the jury and $200 damages to the goods is also given, as applied to this particular case, it is sufficient to say that the testimony is more consistent with affirmative injury than harmlessness.

The appellants in this case, by several assignments of error, are insisting on their written contract containing stipulations limiting the liability of the carrier on each line. The record shows that, upon inquiry by the appellee, the agent of the Wichita Valley Railway Company quoted the $50 rate from Spur to Wellington. Appellee’s son executed the contract of shipment, accompanying the same in the transportation, the contracts containing the usual stipulations limiting the liability of the catrier to damages upon the line of each; the appellee contending, however, that his son had no authority to vary the consummated oral contract previously made with him by the agent. The court submitted the common-law liability of the carrier, as we construe the charge, for damages on account of rough handling, a leaky car, and improper storage of the goods, as well as loss of some of the goods, irrespective of negligence.

In the sixth paragraph of its charge he submitted the issue of the detention of the goods, based upon an oral contract, thereafter informing the jury that, if the oral contract was superseded by a written agreement, the plaintiff could not recover damages for the detention of the goods, also informing them, if there was no valid oral contract prior to the execution of the written contract, to likewise find for the railway companies on said issue.

Supreme Court of the United States has said in Michigan Cent. Ry. Co. v. Myrick, 107 U. S. 102, 1 Sup. Ct. 425, 27 L. Ed. 325, referable to an interstate shipment, that:

“The general doctrine * * * as to transportation by connecting lines, approved by this court, and also by a majority of the state courts, amounts to this: That each road, confining- itself to its common-law liability, is only bound, in the absence of a special contract, to safely carry over its own route and safely to deliver to the next connecting carrier, but that any one of the companies may agree that over the whole route its liability shall extend. In the absence of a special agreement to that effect, such liability will not attach, and the agreement will not be inferred from doubtful expressions or loose language, but only from clear and satisfactory evidence.”

In this case the agent-quoted a rate, it is true, over the whole route, which was an erroneous one.

Of course it is a jury question, eliminating the written contract entirely, whether the oral negotiations in this case amounted to a contract — an engagement upon the part of the actual carrier to carry entirely through to destination. If so, the initial carrier is liable for all the damages. Otherwise, if the contract was not to assume the through transportation, each carrier, when it comes to an interstate shipment, is only liable for the damages upon its own line. In the My-riek Case," supra, the Supreme Court of the United States also said:

“What constitutes a contract of carriage is not a question of local law, upon which the decision of a state court must control. It is a matter of general law, upon which this court will exercise its own

The appellants complain considerably of the court’s main charge to the jury, wherein he informed the jury that if the carriers roughly handled the goods, furnished a leaky car, or improperly stored the same, to find a verdict against both carriers. Of course we could assume from the jury’s verdict that they found an oral contract, but whether the agent contracted for a through shipment, which has to be done, by special agreement, was a question not submitted to the jury. We do not mean to say that we rere-verse the case on this proposition, sugsug-gest it in view of another trial.

Appellees, though predicating their suit upon an oral contract, are insisting upon the application of the Carmack amendment as invalidating the stipulation for limited liability.

“The indisputable effect of the Carmack amendment is to hold the initial carrier engaged in interstate Commerce and ‘receiving property for transportation' from a point in one state to a point in another state,’ as having contracted for through carriage to the point of destination, using the lines of the connecting carriers as its agents.” Atlantic Railway Co. v. Riverside Mills, 219 U. S. 186, 31 Sup. Ct. 164, 55 L. Ed. 167.

The purpose and object and the subject-matter of the act being applicable to through shipments, we are unable to read into the act that where a shipment originates and the point of destination is within the same state, that because it passes through a point in a foreign state in order to return to the state of origin, such would be transportation from a point in one state to a point in another state. It may be that the same reason inducing the act is also applicable to an interstate shipment, where the origin and destination are in the same state, as where the origin and destination of the shipment are in different states; and it is true that the numerous decisions of the Supreme Court of the United States consider the evil intended to be remedied by the act; however, that court, in the case of Denn v. Reid, 10 Pet. 527, 9 L. Ed. 520, as early as 1836, in considering the construction of statutes for the suppression of evils and the advancement of remedies, said: “ * * * Cases may be found where courts have construed a statute most liberally to effectuate the remedy;. but, where the language of the act is explicit, there is great danger, in departing from the words used, to give an effect to the law which may be supposed to have been designed by the Legislature. * * * It is not for the court to say, where the language of the statute is clear, that it shall be so construed as to embrace cases, because no good reason can be assigned why they were excluded from its provisions.”

This act also is a penal one, if we interpret the law correctly. The Supreme Court of the United States, in the case of Adams Express Co. v. Croninger, 226 U. S. 504, 33 Sup. Ct. 151 (57 L. Ed. 314, 44 L. R. A. [N. S.] 257), said that one of the dominating features of the amendment was that:

“It affirmatively requires the initial carrier to issue ‘a receipt or bill of lading therefor,’ when it receives ‘property for transportation from a point in one state to a point in another.’ ”

By another amendment (Act June 18, 1910, e. 309, § 10, 36 Stat. 549 [U. S. Comp. St. 1913, § 8574]), Congress has said:

“That any common carrier subject to the provisions of this act, or, whenever such common carrier is a corporation, any director or officer thereof, * * * or agent, or person acting for or employed by such corporation, * * * shall willfully suffer * * * omit or fail to do any act, matter, or thing in this act required to be done, * * * shall be deemed guilty of a misdemeanor,” etc.

We take it this act is penal as well as remedial, and while the Supreme Court of the United States, of course, has often pursued the rule that an act where a mischief is sought to be remedied, or an evil to be cured, in order to advance the remedy and suppress the mischief, the reason, purpose, and object of its enactment should be resorted to. That tribunal, however, in construction of penal statutes, has also said:

“But this court has repeatedly held that this rule does not apply to instances which are not embraced in the language employed in the statute, or implied from a fair interpretation of its context, even though they may involve the same mischief which the statute was designed to suppress.” United States v. Chase, 135 U. S. 255, 10 Sup. Ct. 756, 34 L. Ed. 117 (a criminal statute under construction).

That court again argued, in the case of U. S. v. Harris, 177 U. S. 305, 20 Sup. Ct. 609, 44 L. Ed. 780, that a penalizing statute would not be given an artificial construction based upon a consideration of the mischief sought to he remedied. The act of Congress of March 3, 1S73 (17 Stat. 584, c. 252), for the prevention of cruelty to animals while in transit by railroad or other means, of transportation,- in imposing a punishment for its violation upon “any company,” was held not to use the word “company” to include a “receiver” of a railroad. The penalty created by the act and recovered in civil actions in the name of the United States was held not to apply to receivers, because, “in order to hold the receivers, they must be regarded as included in the word ‘company.’ ” We have familiar cases in our state where the receiver of a railroad company was attempted to be sued in a death case. The Supreme Court of this state invariably, where the question was raised in any manner, refused to consider the action because it was a case of omission not comprehended within the language of the act, though strong reasons might be advanced that the purpose and object of the law giving a remedy against those denominated in the statute were equally applicable to receivers of railway companies as well as the charterers, owners, or lessees of such railway companies. Turner v. Cross, 83 Tex. 218, 18 S. W. 578, 15 L. R. A. 262. Also see the case of Lipscomb v. Railway Co., 95 Tex. 5, 64 S. W. 923, 55 L. R. A. 869, 93 Am. St. Rep. 804. We are inclined'to think that we would be making the law instead of interpreting it if we read into the act a shipment, where the origin and destination were in the same state, when the act reads “transportation from a point in one state to a point in another state”; and we take it that the construction would be uniform whether the actions were penal or civil.

In view of another trial, if the written contract were made as the contract of the shipper, the stipulations limiting liability would control as the damages upon the line of each. Again, if the railway company properly proves the existence of the $96 rate, and the shipper refuses to pay such rate, the liability of the carrier in holding, the goods would be that of warehouseman, and not as common carrier.

For the errors indicated, the cause is reversed and remanded for a new trial.

On Motion for Rehearing.

The insistence of the appellee that this court was in error in applying the freight rate applicable to the controversy, as shown in our original opinion, actuates the following extension of reasons upon that subject: He says in the argument upon his motion:

“The evidence conclusively shows that the appellant the Wichita Falls & Wellington Railway Company of Texas, and its connecting carriers, had failed to file, print, and keep open to public inspection a separately established local rate applying between Wichita Falls and Wellington, and intermediate stations on said line, and in default of such established local rates direct between Wichita Falls and Wellington, Tex., appellants seek to subject this shipment to 23 cents per hundredweight, established for a haul of 317 miles, by way of Amarillo to Shamrock, and an additional two cents per hundredweight for being in Rock Island differential territory 72 miles (Amarillo to Shamrock), while the shipment proceeded directly from Wichita Falls to Wellington, a distance of about 130 miles, claiming, as authority for thus attempting to construct a local rate between Wichita Falls and Wellington, Supplement No. 24 to Texas Lines Basing Tariff No. 2, Interstate Commerce Commission, effective December 25, 1911, 'which made the rates between Wellington and all other points * * * the same as between Shamrock, Tex., * * * and many other Texas points being named in said tariff.”

If the evidence conclusively shows that, as to the appellants particularly, they had “failed to file * * * separately established local rates applying between Wichita Palis and Wellington,” then it necessarily follows as to an interstate shipment a properly filed and published rate issued by the Interstate Commerce Commission would be the only one applicable. The law (Act June 29, 1900, c. 3591, § 2, 34 Stat. 5S6 [U. S. Comp. St. 1913, § 8569]) now provides:

“That every common carrier * * * shall file with the Commission * * * schedules showing all the rates, fares, and charges for transportation between different points on its own route,” etc.

And further provides:

“Nor shall any carrier charge or demand or collect or receive a greater or less, or different compensation for such transportation of * * * property * * * between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time. * * * ”

In the case of Texas & Pacific Railway Co. v. American Tie & Timber Co., 234 U. S. 146, 34 Sup. Ct. 887, 58 L. Ed. 1255, involving a refusal of the railway company to receive and transport ties- on the ground that it had no established filed rates for that purpose, the Supreme Court of the United States said:

“There is no room for controversy that the law required a tariff, and therefore, if there was no tariff on cross-ties, the making and filing of such tariff conformably to the statute was essential.”

Hence, as the law now exists, the filed and published rate as to an interstate shipment, whatever the combination may be, is conclusive. See Texas & Pacific Railway Co. v. Mugg, 202 U. S. 242, 26 Sup. Ct. 628, 50 L. Ed. 1011.

This would seem fundamental, and we really conceive that appellee’s insistence is that, because the Wichita Vayey Railway Company is excepted from the through tariff indicated, the tariff from Wichita Palls to Wellington as indicated in said supplement, could not be used to show a through rate from Spur to Wellington. Appellee says:

“Appellants claim that this exception prevented the through rate established by the tariff referred to applying between Spur and Wellington, and then seek to use the same tariff to establish a local rate of 25 cents for the haul between Wichita Palls and Wellington, rejecting the tariff rate for one purpose because of the Wichita Valley connection with this shipment, and' seeking to use the tariff for another purpose in handling the same shipment. * * * ”

We attempted to thoroughly consider this reasoning on the original consideration of the case, though not answering it specifically in the opinion.

While the Wichita Valley would not concur in this rate and was excepted from the scope of its operation by the Interstate Commerce Commission, and in consequence the basis between Shamrock, Tex., on the Chicago, Rock Island & Gulf Railway Company, to Texas points, as shown in the tariff, was not applicable to said Wichita Valley as a through rate for the shipment of goods, either from or to points on its line, however, the rate from Wichita Palls to Wellington is an established rate by this same supplement No. 2, promulgating this basis, which rate would have to be used by the road making up the combination for a through rate. It is not excepted from the rate between Wichita Palls and Wellington in making the combination for the through rate.

In our main opinion, though we considered all the assignments in appellant’s brief, we desire to note the second assignment of error and the following proposition thereunder:

“In a suit against carriers for damages, where the carriers pleaded that the shipment had moved under a written contract duly executed by the appellee’s agent, and the testimony of ap-pellee’s agent was to the effect that he signed the contract when it was presented to him, it was error for the court to permit the witness, over the objection of the appellants, to testify that he did not know what was written in the contract, although he signed it, and that he thought he had to sign it in order for the shipment to move forward, and that he did not know the written contract was different from an alleged verbal contract which it was claimed his father had made with the agent prior to the execution of the written contract, for the reason that said testimony had the effect of changing the terms of the written contract, was irrelevant, immaterial, and prejudicial.”

Most of the testimony, on page 20 of appellants’ brief, of the agent who signed the contract of shipment is so clearly admissible as against the objections made, though one of the statements may be questioned; the latter, however, is not separated sp this court could consider it. The preliminary questions and answers of this witness, shown on pages 18 and 19 of the brief, in connection with bis father’s testimony, and of his own in other portions of the record, are relevant upon the question of the agent’s authority to make a contract different from that which the father (the principal) claims was made and consummated between the latter and the agent prior to the shipment. We infer, though not wholly clear, that the son, the agent, testified that he signed the contract of shipment after the goods had been loaded upon the car. In the case of Railway Co. v. Barnett, 27 Tex. Civ. App. 501, 66 S. W. 476, the agent who signed the contract said, “I was authorized and directed by plaintiff to sign said contract;” and the appellate court said there was no evidence when the contract was signed with reference to loading, and also found that plaintiff “contemplated and expected written contracts to be entered into before the cattle left,” which elements are not in the record.

We can see no error in tlie court excluding tlie witness Fontaine from tlie courtroom after tlie rule had been invoked; and as to appellee’s insistence that we committed error in our construction of the Carmack amendment, as not being applicable to this character of shipment, we also have attempted to carefully investigate all federal acts material upon this matter, and we see no reason to change our original opinion on that subject.

The motion for rehearing is in all things overruled.


author: BROWN, C.

text:
    GULF, T. & W. RY. CO. v. LUNN.
    (No. 2374.)
    (Supreme Court of Texas.
    Dec. 23, 1914.)
    Costs (§ 4*) — Attorney’s Fees — Statutes.
    Acts 31st Leg. c. 47, authorizing recovery of attorney’s fees under certain circumstances in actions against railroad companies for overcharges and for loss or damage to freight, etc., is constitutional.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 2, 3, 109; Dec. Dig. § 4.*]
    Error to . Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by Earl Lunn against the Gulf, Texas & Western Railway Company. A judgment for plaintiff was affirmed by the Court of Civil Appeals (141 S. W. 538), and •defendant brings error.
    Affirmed.
    Ben B. Cain, of Dallas, and Sporer & McClure, of Jacksboro, for plaintiff in error. E. W. Nicholson, of Wichita Falls, for defendant in error.
   BROWN, C.

J. Lunn filed a suit in Jack county in a justice court against the plaintiff in error for $3.50, alleging compliance with the act of the Legislature of March 13, 1909, now article 2178, Revised Statutes of 1911. The railway company paid the $3.50. The justice gave judgment for the plaintiff for $10 attorney’s fees, and the judge of the district court of that county granted an injunction against said judgment, but subsequently dissolved the injunction and dismissed the case. The railroad company appealed to the Court of Civil Appeals, which affirmed the judgment of the district court, and this court granted a writ of error on the 2d day of February, 1912. From the entry made on our docket, the writer concludes that the writ was granted upon the assumption that the statute authorizing the recovery of attorney’s fees was unconstitutional.

On November 12, 1912, this court filed an opinion in Railway Co. v. Mahaffey, 105 Tex. 394, 150 S. W. 881, in which the same statute was sustained, as being constitutional. That opinion was subsequently followed by the Supreme Court of the United States in M., K. & T. Ry. Co. v. Cade, 233 U. S. 647, 34 Sup. Ct. 678, 58 L. Ed. 1135.

We therefore affirm the judgment of the Court of Civil Appeals.


author: BROWN, C. J.

text:
    MITCHELL et al v. SCHOFIELD et al.
    (No. 2363.)
    (Supreme Court of Texas.
    Jan. 6, 1915.)
    1. Husband and Wife (J 267) — Community Property — Title in Husband — Notice to PURCHASEBS.
    When land belonging to the community of husband and wife is deeded to both, each has legal title to it, but, when a conveyance or judgment vests the title in one only, the other has an equitable interest only, and such conveyance or judgment is not notice to subsequent purchasers for value without notice of the community interest of the unnamed member.
    [Ed. Note — For other cases, see Husband and Wife, Cent. Dig. §§ 896, 929-938; Dec. Dig. § 267.]
    2. Husband and Wipe (§ 265) — Community Peopebty — Trusts.
    Where land which is community property is conveyed to one member only, that one holds the interest of the other as trustee.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 896, 917-924; Dec. Dig. § 265.].
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Suit by Louisa L. Mitchell and others against J. D. Schofield and others. A judgment in favor of defendants was affirmed by the Court of Appeals (140 S. W. 254), and plaintiffs bring error.
    Affirmed.
    J. J. Eckford, of Dallas, for plaintiffs in error. Chas. A. Rasbury, of Dallas, F. A. Williams, of Galveston, and N. A. Stedman, of Austin, for defendants in error.

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

   BROWN, C. J.

George Lytle, Sr., and his wife Sallie, acquired title to the land in controversy, which was established in the district court of Dallas county on October 19, 1895, by judgment in favor of said Lytle against the Gulf, Colorado & Santa Fé Railway in a suit instituted by the railway against Lytle. Sallie Lytle died in 1895, leaving plaintiffs and others, her children, surviving her. It does not appear that the name of Sallie Lytle was in the judgment, or appeared in any manner in connection with the title to the land.

After the death of the first wife, George Lytle married Annie Lytle, who was living with her husband when he sold the land to defendant in error, Schofield, who had no notice of the former marriage, but asked Lytle if he previously had another wife, to which Lytle answered that he did not. There is nothing in the record from which it can be inferred that Schofield knew anything of the former marriage. There is no dispute about the facts, and but one question of law; that is, Do the facts establish the right of the defendant in error to the protection accorded to a purchaser for value without notice?

The burden was on the plaintiffs to establish a right to recover of the defendant Schofield. The evidence shows that the land was community property of Lytle and his first wife, mother of plaintiffs, which would sustain a recovery if the purchaser had notice of the first wife’s right.

It is thoroughly settled by the decisions of this court that, when land belonging to the community of husband and wife is deeded to both, each has legal title to it, but, when the conveyance is made to one only, the legal title is vested in that one, and the other has an equitable title. Such deed does not constitute notice to subsequent purchasers for value without notice of the community interest of the unnamed member.

That one in whose name the title is conveyed holds as trustee for the other. Patty v. Middleton, 82 Tex. 586, 17 S. W. 909; Edwards v. Brown, 68 Tex. 329, 4 S. W. 380, 5 S. W. 87; Hill v. Moore, 62 Tex. 610.

The authorities cited above are so conclusive upon the issue under discussion that argument would be superfluous. Beyond cavil, Schofield acquired the legal and equitable title to the land by his purchase from Lytle, who had the legal title, and Schofield had no notice of the equity of the former wife or her children. The fact that Ly-tle acquired his title by judgment of a court can'make no difference. It was no less the legal title than it would have been if acquired by deed.

The judgments of the Court of Civil Appeals and of the district court are affirmed.


author: HAWKINS, J.

text:
    TYLER BUILDING & LOAN ASS’N v. BIARD & SCALES.
    (No. 2730.)

    (Supreme Court of Texas.
    Dec. 23, 1914.)
    1. Pleading (§ 214) — Demuebee — Admissions.
    A demurrer admits the truth of the allegations of the pleading demurred to.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214.]
    2. Pbincipal and Agent (§ 76) — Wrongful Act op Agent — Estoppel—Liability.
    Where an agent, in possession of a deed executed by his principal in exchange for a stock of merchandise of the grantee, delivered the deed to the grantee in direct violation of the instructions of the principal, and in pursuance of a scheme to defraud the principal and deprive him of the value of his land, the agent was es-topped to deny that title passed on his delivery of the deed to the grantee, and was liable to the principal for proximate resulting damages.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 158-161; Dec. Dig. § 76.]
    3. Esceows (§ 4) — Deliveey in Escrow— Acts Constituting.
    A deed delivered by the grantor to his agent for delivery to the grantee, in accordance with specific instructions, is not in escrow while in the hands of the agent.
    [Ed. Note. — For other cases, see Escrows, Cent. Dig. § 7; Dec. Dig. § 4.]
    4. Appeal and Eeeoe (§ 360) — Petition poe Eeeoe — Answee—Right to Heaeing.
    • Where defendant in error filed answer to an application for writ of error, as authorized by Supreme Court rule 5 (142 S. W. viii), based on Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1542a-1542c, without reserving the right to be further heard in open court, the court will proceed at once with the case.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1941, 1949, 1953; Dec. Dig. § 360.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by the Tyler Building & Loan Association against Biard & Scales. There was a judgment of the Court of Civil Appeals (165 S. W. 542) affirming a judgment for defendant, and plaintiff brings error.
    Reversed and remanded.
    See, also, 147- S. W. 116S.
    Lively, Nelms & Adams, of Dallas, and Las-seter & Mcllwaine, of Tyler, for plaintiff in error. Lawther & Pope, of Dallas, for defendant in error.

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

       For opinion on motion for rehearing, see 171 S. W. 1200.

   HAWKINS, J.

Petitioner in error, as plaintiff in the trial court, sued defendant in error, defendants there, for damages alleged to have resulted from the unauthorized, wrongful, and fraudulent delivery by defendants, as plaintiff’s agents, of certain deeds to some 4,294 acres of land in Eastern Texas' in exchange for a stock of dry goods in Kansas City, Mo. Said petition alleges, in substance, among other things: That defendants are now, and during the year 1909 were, engaged in business in Dallas, Tex., as real estate agents and dealers. That in March, 1909, defendants represented to plaintiff, a corporation, that they were in position to make for their clients large profits on property turned over to them for trade or exchange. That at said time, and subsequent thereto, plaintiff owned and had possession of 2,888 acres of land in Angelina county, Tex., same being a portion of the Vincenti Michelli grant, describing it, worth $6.50 per acre, or $18,772, and also owned and held possession of 1,406 acres of land in Cherokee county, Tex., same being a portion of the M.- del C. Leigo league grant, describing it, worth $6.50 per acre, or $9,931; a portion of the last-named tract being at the time of the negotiations mentioned in said petition in the name of the estate of Mrs. Susan W. Thorn, deceased, but in truth and in fact belonging to plaintiff. That plaintiff listed said lands with defendants on or about April 1, 1909, for disposition by sale or trade. That defendants thereafter submitted various propositions of trade for said lands, none of which were acceptable to plaintiff. That on or about September 7, 1909, defendants represented to plaintiff that they could trade said lands to Kansas City parties at $15 per acre for a stock of general dry goods, consisting of clothing, shoes, boots, hats, dresses, etc., a stock which was first-class in every respect, and which could be easily handled for cash, whereupon plaintiff advised defendants that it would be willing to trade for same, provided the stock was all right and the goods not damaged; said goods to be traded for to be submitted to inspection by plaintiff and cheeking up of the inventory thereof. That about September 18, 1909, and in reliance upon the representation of defendants, made through said Biard, to the effect that he had 20 years’ experience in the dry goods business, and had examined and handled over 200 stocks of dry goods, and was thoroughly acquainted with the character and quality of dry goods and the value thereof, and was competent to pass upon stocks of dry goods as to kind and quality and price thereof, plaintiff authorized said Biard to go to Kansas City to negotiate a deal of said lands for such a stock of general dry goods, but did not authorize him to enter negotiations to trade said lands for any other kind or character of dry goods. That shortly thereaftér said Biard went to Kansas City, and from there represented to plaintiff that they had been offered for said two tracts of land $60,000 in merchandise, whereupon plaintiff believed and relied upon the representations of defendants, acting by and through said Biard, that said offered stock of merchandise was such as defendants had so represented to plaintiff it would trade said lands for, and such as that for which the plaintiff had authorized defendants to so enter into negotiations by way of exchange. That, immediately after attempting to .enter into a contract on behalf of plaintiff with the Mitchell Dry Goods Company for the exchange of said $60,000 stock of merchandise for said land, Biard returned* to Texas, and thereafter studiously concealed the true character and quality of said stock of merchandise, but represented to plaintiff that he had traded for such a stock of general dry goods as he had represented to plaintiff he would trade for, and inventorying at cost prices the sum of $60,000, and that such sale was subject to inspection of said goods and checking said inventory by plaintiff, and very strenuously and urgently recommended to plaintiff that he accept said trade and close same immediately. That believing said statements so made by defendants to be true, and relying on fheir representations, plaintiff authorized defendants to proceed with closing said deal for the exchange of said goods for said lands; “said trade to be made subject to examination of the goods and checking of the inventory of the same by plaintiff.”

Said petition further avers: “That in pursuance of said trade, as represented to it by defendants, plaintiff prepared, executed, and acknowledged, and caused to be prepared, executed, and acknowledged, deeds for the land in question, conveying same by warranty title to one B. W. Pope, the party designated by said defendants, and turned said deeds over to defendants for safe-keeping, to be delivered when plaintiff had inspected and examined said stock of goods and checked the inventory therefor,” and turned said deeds over to defendants on or about October 23, 1909, down to which time, and ever since the return of said Biard from Kansas City, defendants had studiously and diligently represented to plaintiff that said stock of goods so traded for was a first-class stock of general dry goods, consisting of clothing, dresses, boots, shoes, etc., and had strenuously and diligently concealed from plaintiff the true character of said stock of goods, and up to said time had failed and refused to furnish to plaintiff a copy of the contract which they had entered into on behalf of plaintiff with said Mitchell Dry Goods Company, and had also failed and refused to furnish to plaintiff an inventory of said stock of goods, and plaintiff, when it left- said deeds with defendants, believed and relied upon their said representations that it was to get the kind and character of goods mentioned above. That on October 23, 1909, relying on defendant’s representations that they had traded for said stock of general dry goods, subject to plaintiff’s inspection of same and the checkingi of the inventory thereof, plaintiff employed an expert and experienced dry goods man to go from Texas to Kansas City and inspect said dry goods and check the inventory thereof, and he arrived there on October 25, 1909. That on October 23, 1909, plaintiff turned over its said deeds to defendants, and that on that same day defendants took the fast train out of Dallas for Kansas City, and as soon as they could reach the office of the Mitchell Dry Goods Company after arriving in Kansas City, and on the very day on- which plaintiff’s said expert had arrived in Kansas City, defendants, knowing that plaintiff had employed and sent said expert dry goods man to examine said stock, and knowing that he had not examined same, nor had an opportunity to do so, and in “utter and willful disregard of plaintiff’s rights, and in violation of their authority and against plaintiff’s directions and instructions, turned over and delivered said deeds to the Mitchell Dry Goods Company, without plaintiff’s knowledge, consent, or authority,” and, without plaintiff’s authority to do so, employed one Earnest Lovan to act for it in accepting said stock of merchandise, he being the party who, throughout said negotiations, had represented and was at that time representing said Mitchell Dry Goods Company as its agent, which fact defendants well knew, and that immediately upon receiving said deeds said Mitchell Dry Goods Company caused said land to be conveyed to, an innocent purchaser for value, without any notice. That the stock of goods which defendants received for plaintiff’s land “was not a stock of general dry goods consisting of boots, shoes, dresses, hats, clothing,” etc., such as was represented to it to be, but that the majority of said stock consisted of cheap and worthless jewelry, notions, etc. That in said stock inventorying $60,000 there was about $30,000 worth, of cheap and worthless jewelry, consisting of neck chains, breast pins, collar buttons, and trinkets of, like kind and character, all of which were practically worthless, and $93.95 worth of ladies’ waists. That in said stock there was millinery goods consisting of hats, braids, belting, etc., amounting to over $6,000, while the shoes in said stock amounted to $371. That in said stock of goods were cheap and worthless buttons inventorying over $2,500, and piece goods inventorying only $165. That there was $6,295.11 of ladies’ neck chains and $53.-17 of hosiery and underwear. That said stock did not contain the boots, shoes, clothing, hats, dresses, etc., as defendants had represented to plaintiff it did contain, but same was made up of neck chains stick pins, broaches, breast pins, braids, and trinkets of like kind and character, all of which, at the time plaintiff traded for same, or attempted to trade for same, were practically worthless, and “that plaintiff never did at any time authorize its land to be traded for any such stock of goods, has never agreed to accept the same for its said lands, nor did it authorize or ratify defendants attempted acceptance for it.” That “the defendants knew, or by the exercise of ordinary care and diligence could have known, that plaintiff did not trade for any such stock of goods as was tendered to it, but, notwithstanding this fact, defendant negligently, carelessly, and fraudulently delivered plaintiff’s deeds to the said Mitchell Dry Goods Company, without seeing or attempting to see that plaintiff received the goods for which said defendant agreed to exchange said land,” and that the defendants, “by reason of their fraudulent acts and conduct, intended to and did cheat and defraud plaintiff out of its land without paying value therefor, and, in furtherance of such attempt to so defraud plaintiff, said defendants delivered plaintiff’s deeds to said Mitchell Dry Goods Company, without plaintiff’s knowledge, consent, or authority,” and that “by reason of said fraudulent acts on the part of defendants in turning over and delivering its deeds, as aforesaid, without its authority, and by reason of their negligence and carelessness in not seeing that plaintiff received the stock of goods it was to receive in exchange for said lands, they have deprived plaintiff of its land, without having compensated it therefor, which land plaintiff alleged to be worth $27,811, for which amount it asks judgment, and that plaintiff has demanded of defendants and of the said Mitchell Dry Goods Company a return of the deeds to its said land, which demand has been and is still refused.”

Said petition further alleges that by reason of said willful violation by defendants of their duty in so delivering plaintiff’s deeds, so depriving it of its said lands, it has been compelled to incur and has incurred considerable expense in an effort to regain its said lands, or value therefor, in the way of traveling expenses, attorneys’ fees, telegrams, and telephone calls, etc., to the amount of $2,500, and has been compelled to employ attorneys at an expense of $1,500 and pay their expenses in attending to said litigation in the sum of $500, and has paid out in other expenses, telegrams, telephone calls, hotel bills, etc., the sum of $500, aggregating the sum of $2,500, and which items of expense were brought about and made necessary by defendants’ utter disregard of plaintiff’s rights and willful violation of their authority; that, but for defendants’ acts in the premises, plaintiff would not have had to expend said amounts, and same became necessary by reason of and as a direct result of said acts of defendants.

Said petition prays for judgment against said defendants,, jointly and severally, for the value of said lands in the sum of $27,911, and for its damages in the way of expenses in the sum of $2,500, aggregating $30,411, together with interest thereon from October 25, 1909, and for all costs of suit, and for general and special relief. It does not allege fraud upon the part of the Mitchell Dry Goods Company.

Defendants’ answer included a, general demurrer and also what they denominated their “Sixth Special Exception,” but which is, in effect, a general demurrer, as follows:

“Further answering, the said defendants, by their attorneys, come and say that the said plaintiff’s first amended original petition is insufficient in law because it appears from the allegations therein contained that the deeds to the land which the plaintiff caused to be prepared, executed, and acknowledged, conveying said land by warranty deed to one B. W. Pope, were delivered to these defendants for safe-keeping, to be delivered to the grantee when and not until the plaintiff had inspected and examined said stock of goods and checked the inventory therefor; that afterwards these defendants, without the consent, knowledge, or authority of said plaintiff, and in violation of plaintiff’s authority, and against their express directions and instructions, and with fraudulent intent, and in pursuance of a conspiracy, entered into by and between these defendants and the Mitchell Dry Goods Company to rob, cheat, and defraud the plaintiff out of its lands, delivered said plaintiff’s deeds to the said Mitchell Dry Goods Company.” '

The district court sustained said demurrers, and from that judgment defendants appealed to the Court of Civil Appeals for the Fifth Supreme Judicial District, which affirmed said judgment. 165 S. W. 542. The case is before us upon the application of the association for a writ of error.

We are of the opinion that said petition states a cause of action, and that each of said demurrers should have been overruled. Their effect is to admit the truth of the allegations of said petition.

Plaintiff’s petition alleges, among other things, in substance, that defendants were plaintiff’s agents; that defendants delivered said deeds to the dry goods company, in exchange for inferior goods, of less than stipulated value, and without plaintiff’s knowledge. consent, or authority, and in direct violation of its instructions, and in pursuance of a systematic design and scheme of defendants to rob, cheat, and defraud plaintiff and deprive it of the value of its said lands, and practically confirms said trade while seeking to hold defendants personally liable for damages alleged to have resulted from such unauthorized and fraudulent surrender of its said deeds.

Under these allegations, by which, alone, the merits of said demurrers can be- determined, defendants are estopped to deny that titles to said lands passed upon their surrender or delivery of said deeds to the dry goods company, and therefore are liable to plaintiff for proximate resulting damages.

Consequently issues as to whether the minds of the contracting parties met upon the terms and conditions of the trade, whether the trade was consummated, whether said deeds to the dry goods company, while in the hands of defendants, were in escrow, whether those deeds were “delivered” in contemplation of law and in such manner and under such circumstances as to make them effective to pass titles to the dry goods company, and whether title to said lands passed by subsequent deed of the dry goods company to said innocent purchaser for value, are alike irrelevant and immaterial in this cause.

However, we deem it proper to say that we do not concur in the conclusion of the Court of Civil Appeals to the effect that said deeds to the Mitchell Dry Goods Company were in escrow while in the hands of defendants as plaintiff’s agents.'

Because of the errors indicated, said application for a writ of error is granted.

No. 5 of our “Rules for the Supreme Court” (142 S. W. viii), which is based on R. S. 1911, arts. 1542a, 1542b, and 1542c (Gen. Laws 1911, 1st. Sp. Sess. c, 20, p. 108 [Vernon's Sayles’ Ann. Civ. St. 1914, arts. 1542a-1542c]), provides:

“The defendant in error shall have ten days from the date of the filing of the application in the Supreme Court to file an answer thereto, which must be confined to a reply to the grounds of error presented by the plaintiff in error and to such matter as may be pertinent to show to the court that the plaintiff in error is not entitled to the writ, and in support of the correctness of the judgment of the court below. If the defendant in error shall file such answer, and the Supreme Court shall conclude that the writ of error should be granted, it may in its discretion proceed to finally dispose of the case: Provided, the defendant in error may in his answer expressly reserve the right to be heard in open court, in which event the case will stand for submission in regular course. If such right be not expressly reserved by the defendant in error in his answer, and the court shall deem it proper to finally dispose of the ease upon hearing the application, it shall write such opinion as it may think proper and shall in open court pronounce the judgment of the case and enter the same of record as in other cases.”

Availing themselves of a privilege thus conferred, defendants in error have filed an

answer to the application for a writ of error, without expressly reserving therein the right to be further heard in open court, so we proceed at once to a disposition of this appeal.

Said judgments of the Court of Civil Appeals and of the district court are reversed, and this cause is remanded to said trial court.

PHILLIPS, J., being disqualified, did not participate in the decision.