author: WALKER, Chief Justice.

text:
    LOPEZ v. NAEGELIN et ux.
    No. 2356.
    Court of Civil Appeals of Texas. Beaumont.
    April 27, 1933.
    Chas. T. Haltom, of San Antonio, for appellant.
    M. D. Jones, of San Antonio, for appellees.
   WALKER, Chief Justice.

This suit was instituted in county court at law No. 1, Bexar county, by appellees, Frank Naegelin and wife, against appellant, Mrs. Sarah N. Lopez, a widow, to recover $221 due by appellant to appellees as rent. After filing their suit appellees sued o.ut a distress warrant against appellant and seized the following described property as being subject to their landlord’s lien, to secure the payment of their debt: “1 Mixing machine; 1 wall table; 1 bread mixer; 1 steam box, 1 counter, 5 counter stools; 1 bread safe and counter, 1 oven top; 1 oven rack; 1 gas range; about 15 feet of pipe; 1 cake beater; all parts that belong to baking oven and dough mixer; 1 show case, 2 feet by 5 feet; 1 double deck, 2 feet by 3 feet show case; 1 screened show case for cookies; 2 large counters; 1 glassed-in show case 3 feet by 5 feet; 1 dish rack partition wall movable; 1 large top of baker’s oven; 1 show case about 3 feet by 9 feet; 2 sides of baking oven (porcelain) 1 front end of baking oven; 3 small tables 'about 3½ feet by 4 feet; 70 bread pans; 1 mixing bowl; 8 white stool chairs; 1 electric motor; 8,feet of 1 inch gas pipe; 1 large dough mixing bowl; and 1 large cake pan.” Appellant admitted the justness of the debt sued for, but claimed the seized property as exempt to her under articles 3832 and 3S35, R. S. 1925, exempting from execution for debt “all tools, apparatus and books belonging to any trade or profession.” The judgment was in favor of appellees upon an instructed verdict. The appeal was prosecuted to the San Antonio Court of Civil Appeals, transferred to the Austin Court, then to this court, by orders of the Supreme Court. The only point made by appellant is that, under the evidence, the court should have sent to the jury, under appropriate instructions, her claim that the property was exempt to her.

The facts of this claim are as follows: All this property was situated in the leased premises during the time it was held and occupied by appellant, under her contract with appel-lees. This contract was in writing, and among other provisions authorized appellees, in the event appellant defaulted in her rent payments, “to distrain for any rents that may be due thereon upon any property belonging to the party of the second part (appellant).” Appellant was the head of a family, with two-small children. She testified through an interpreter as follows:

“I rented the premises on South Flores Street from Mr. & Mrs. Naegelin. I moved away from there in May 27, 1931. At the time I moved away from there I owed $221.-20. I had some property taken in charge by an officer right after X moved away. All this property belonged to me. I am a baker by trade. I have been in the bakery business going on two years. I am a single woman and have two children. I have household and kitchen furniture. All the equipment and property that was taken by the officer was pertaining to the business of the bakery, everything belonged to the bakery. I had no restaurant.
“I rented the south side of this building to a man named Gonzales in the months of February and March but he had no sink and he moved out. Everything that he brought in there he took away with him. All the equipment that was levied upon belonged to the bakery. Mr. Gonzales used the stools and counter in the restaurant business there, there were three tables. They were mine. I lived in the inside rooms, the bakery is in the front. I never had any restaurant but I had three little tables and some chairs. ■Five stools were attached to the floor. The long counter was left in its original position. I had twelve chairs.
“I never had a restaurant but I had three tables and the chairs. Mr. Wagner was there about a month.”
“It is agreed that the following is a description of the two main items of the property levied upon by the constable, to-wit:
• “An oven that stands on iron legs 9⅛ inches high. The oven is 61 inches high, and at its widest width it is 61 inches, and at its smallest width it is 39 inches. It is 82 inches in length. There is attached to the oven proper, about three inches above the oven, a metallic roof, which is a steam or heat holder. This roof is 12 inches in height, 82 inches in length, and 56 inches in width; and it is attached by metallic bands holding it above the oven. Tiie oven has a capacity of 96 ordinary square loaves of bread at one cooking. The oven has a revolving compartment inside, which is moved by electrical power, and the heat for the cooking is by gas.
“The mixer is 61 inches in height, including the motor on top, and is 42 inches in width, including the vessel in which things are mixed. The mixer has a capacity of 20 quarts.
“The oven and the mixer, besides other things, have been moved to different premises. They have been in use by the bakery for the last three years. The oven is capable of being operated by hand power.”
“There is a little piece missing from the motor for the oven and you have to move it by hand, and when there is no electric current, you turn it by hand. I have turned it by band many times. I did that Saturday and to-day, I made bread that way. I ran that business by myself, I got up about 2 o’clock every day, 2 or 3 o’clock in the morning, and at 9 o’clock at night I retired. I am selling about 20 or 25 loaves of bread. I have a very small plant and am selling very little now.
“I do not cook the full capacity of the oven. Sure, I need the oven in my business. I make pies and cakes, every kind.
“As to needing the mixer in my business, I worry myself by trying to use it by hand, we had the machine out of order and I had to operate it by hand, it was too much.
“The machinery was intended to be operated by electric power, but it is out of order and I am running it by hand until I can get some money in order to fix it up.”

There was other testimony to the effect that some of the property listed above was’ used in connection with a restaurant that occupied part of the leased premises.

Opinion.

That appellant, by the written contract, authorized appellees “to distrain for any rents” upon any property belonging to her did not authorize appellees to seize this property by virtue of the contract. In other words, this contract did not give appellees a contractual mortgage against appellant’s property.

There is no merit in appellees’ counter proposition that appellant had no right to a jury submission of her defense because she did not designate, among the articles seized, the specific articles claimed by her to be exempt. She claimed that all the 'articles seized were used by her as tools or apparatus belonging to her trade as a baker. Appellees raised the issue against this contention that all of the seized property, except the oven and mixer, constituted a part of the restaurant equipment which was operated in the leased premises. This statement presents an issue of fact. If the seized articles constituted part of the restaurant equipment, then they were not exempt. Simmang v. Penn. Fire Ins. Co., 102 Tex. 39, 112 S. W. 1044, 132 Am. St. Rep. 846. But there is a broad distinction between the trade of a “baker” and the business of operating a “restaurant.” No specific tools are required to operate a restaurant, nor is the keeper of a restaurant required to serve an apprenticeship, while. a baker is required to learn his trade and special tools or apparatus are designed for his use, such as the oven and mixer in controversy herein. Every article claimed by appellant was used by her personally, as she testified, in the operation of her bakery, and she personally did all the work. It seems to us that this statement brings appellant’s claim within the clear language of the statute exempting tools and apparatus “belonging to any trade.” In re Petersen (D. C.) 95 F. 417, 418, the following tools or equipment of the bankrupt baker were held to be exempt under the California statute, exempting “the tools or implements of a mechanic or artisan necessary to carry on his trade”: 50 bread pans, 4 bread peals, 45 dozen molds for bread and cakes, 30 bread boxes, 2 long benches, 1 square bench, 1 square table, 2 triangles for mixing dough, 4 bowie knives, 1 table knife, 2 sieves, 1 lot ornamenting tools, 2 bread scales with weights, 3 scrapers, 2 trainers, 2 yeast barrels, 2 big stone jugs, 40 bread boards, 3 wooden bowls, 3 rolling pins, 2 doughnut kettles with grates. In Harris v. Haynes, 30 Mich. 140, the court held exempt “certain tinner’s tools and machines.” In Harris v. Townley (Tex. Civ. App.) 161 S. W. 5, 6, the court held exempt 1 six-column Quarto County Campbell press, 1 typewriter, certain type and type cases, one desk, iron safe, together with a certain gasoline engine used for the operation of said press, as well as other furniture and fixtures belonging thereto. In Green v. Raymond, 58 Tex. 80, 44 Am. Rep. 601, the court held exempt a printing press and cases used in the printing office and owned by the editor and publisher. In Hinckley-Tandy Leather Co. v. Hazelwood (Tex. Civ. App.) 35 S.W.(2d) 209, 211, the court held exempt one Progressive Finishing Machine, an article sometimes used in shoe and harness shops as a convenience in polishing and finishing shoes and harness, for the purpose of giving said articles worked upon a more pleasing and attractive appearance before delivering to the customer.

The fact that a part of appellant’s baking machinery was operated by electricity did not render such machinery subject to execution. In Harris v. Townley the court said: “We think it is immaterial that the press in this case was not run by hand but by this gasoline engine.” In the last case cited (Hinckley-Tandy Leather Co. v. Hazelwood) it was said: “Certainly to hold that the test of exemption of any tool or apparatus belonging to a trade is to be whether or not it is run by hand or by other power would be entirely o.ut of keeping with the policy' of liberal construction and warranted by nothing-in' the statute itself. It will be unnecessary to comment upon the authorities which we think expressly or in principle sustain this view. We merely cite the following: Betz v. Maier, 12 Tex. Civ. App. 219, 33 S. W. 710; St. Louis Type Foundry v. Taylor (Tex. Civ. App.) 35 S. W. 691; Campbell v. Honaker’s Heirs (Tex. Civ. App.) 166 S. W. 74; Haris v. Todd (Tex. Civ. App.) 158 S. W. 1189; Mueller v. Richardson, 82 Tex. 361, 18 S. W. 693; St. Louis Type Foundry v. International Live-Stock, etc., Co., 74 Tex. 651, 12 S. W. 842, 15 Am. St. Rep. 870; Fore v. Cooper (Tex. Civ. App.) 34 S. W. 341.” This case also cites and distinguishes on the proposition just discussed the opinion by the Supreme Court in Willis v. Morris, 66 Tex. 628, 1 S. W. 799, 59 Am. Rep. 634.

It follows that the judgment of the lower court should be reversed, and the cause remanded for a new trial, and it is accordingly so ordered.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    ZACHRY et al. v. MOODY et al.
    No. 2366.
    Court of Civil Appeals of Texas. Beaumont.
    April 6, 1933.
    Rehearing Denied April 26, 1933.

      Atlas Jones, of Uvalde, for appellants.
    Ditzler H. Jones, of Uvalde, for appellees.
   WALKER, Chief Justice.

This suit was filed in the district court of Uvalde county on the 28th day of February, 1928, by J. H. Zachry and Mrs. Mollie E. Brown, a feme sole, for herself and as survivor of the community estate of herself and her deceased husband, L. G. Brown, against Alma Moody and her guardian, A. R. Moody, to recover a certain tract of land in the city of Uvalde, Uvalde county, containing about one-half acre of land. As grounds for relief, plaintiff pleaded that on or about the 18th day of September, 1914, A. R. Moody, as guardian of Alma Moody, executed to J. H. Zachry and L. Old a deed in writing to the land sued for; that the land was the separate property of Alma Moody, and that the deed had not been recorded and was lost; that Old, on May 7, 1915, conveyed his one-third undivided interest to L. G. Brown, the husband of plaintiff Mollie E. Brown, as part of their community estate. Plaintiffs also pleaded title by ten years’ limitation. Service was had by publication, and on the 31st day of March, 1928, the attorney appointed by the court to represent the defendants filed the following special answer:

“Third: And for further answer herein the defendant A. R. Moody, shows to the Court that Alma Moody his wife is dead, that she died on or about March 20th, 1919, at San Antonio, Texas, and left surviving her, two children, Arthur Edward Moody, a son, and Margaret Irene Moody, a Daughter, both of whom are still living, which two children inherited the property in question from their mother at her death, and defendant A. R. Moody now intervenes, as next friend and as father, for said children, and ask that they be made parties to this suit as they own the property in question and described in plaintiffs petition, and defendant A. R. Moody, now as their father files this plea of intervention for and in their behalf, and ask that they be made parties defendant herein in order that they may defend their title and right to said property.
“Wherefore he ask that said children and heirs of the Alma Moody deceased, be made defendants to this suit, as they own the property in question and have title thereto in fee simple.
“Ditzler H. Jones,
“Attorney for Defendants.”

On the 20th day of August, 1930, the original plaintiffs, joined by H. B. Zachry and E. L. Zachry, a feme sole, filed their first amended original petition, naming as defendants Arthur Edward Moody, Margaret Irene Moody, and A. R. Moody, individually and as guardian of his deceased wife, Alma Moody, who was dismissed from the suit on the allegations that she died on the 20th of March, 1919, that there was no administration on her estate, and none needed. On the 14th and 15th of September, 1981, the defendants answered by special pleas that Arthur Edward Moody and Margaret Irene Moody were the only surviving children of Alma Moody, de'-ceased, who died on the 20th of March, 1919; that the land in controversy was her separate estate; that she was legally adjudged insane before the date of the alleged execution of the deed pleaded by plaintiffs, and was insane continuously to the date of her death on March 20, 1919, and during all this time was confined in a state institution for the insane; that Arthur Edward Moody was born the 19th of January, 1906, and Margaret Irene Moody the 18th of April, 1912, and married Lloyd Hawkins in January, 1930. On these facts the defendants pleaded the insanity of their mother, their minority, and the coverture of Margaret Irene in bar of the statute of limitation. The evidence established without controversy all the allegations of these special pleas by the defendants. All the evidence was without controversy to the effect that in 1914, after the date of the alleged deed, or in 1915, the plaintiffs took possession of the land in controversy, and claimed, occupied, used, and enjoyed it in full compliance with the statute of ten years’ limitation (Rev. St. 1925, art. 5510), and that they perfected a title under that statute, provided they were entitled to its benefits for any period of ten years during their occupancy. The guardianship of the estate of Alma Moody was dismissed and closed on the 22d of February, 1915.

The court submitted to the jury only the issue of execution and delivery by A. R. Moody of the deed to J. H. Zachry and L. Old, which was answered in the negative. The request of plaintiffs to submit the issue of limitation was refused. On the verdict judgment was entered in favor of the defendants and against the plaintiffs for the land in controversy. Only the Zachry plaintiffs appealed from the judgment. Mrs. Mollie E. Brown did not appeal.

The facts clearly support the verdict of the jury on the issue of the execution and delivery of the deed, and all propositions challenging this finding are overruled.

As Alma Moody was insane at the time appellants took possession of her property, the running of the statute of limitation in their favor was suspended by article 5518, R. S. 1925, until her death on March 20, 1919 ; and, as no administration was had on her estate, article 5538, R. S. 1925, further suspended the running of the statute until one year after her death; that is, until March 20, 1920. Under article 5544, R. g. 1925, the disability of insanity of the mother, Alma Moody, could not be tacked to the disability of her minor children, the appellees Arthur Edward Moody and Margaret Irene Hawkins ; therefore the statute of ten years’ limitation began running in favor of appellants against all the appellees on the 20th of March, 1920.

Did appellants have ten years’ occupancy within the provisions of the statute of ten years’ limitation subsequent to and between March 20, 1920, and September 14, 1931, the date appellees filed their amended answer upon which the case was tried? We think this question must be answered in the negative. When appellee A. R. Moody filed the answer, quoted above, on March 31, 1928, appellants were in possession, and under the undisputed evidence had long been in undisturbed possession of the premises. The principle of law controlling the running of the statute on these facts was thus stated by the Austin Court of Civil Appeals in Taylor v. Belcher Loan & Mortgage Co., 265 S. W. 403, 405: “The rule announced on this question is that where a claimant in possession of land brings an action to adjudicate his title and right of possession against another, who is asserting some right of title or possession, such action, when contested, suspends the running of limitation in favor of the occupant pending the final judgment. Article 5680, R. S. 1911; Weiner v. Stearns, 40 Utah, 185, 120 P. 490, Ann. Cas. 1914C, 1175; Miller v. Gist, 91 Tex. 335, 43 S. W. 263; Cavitt v. Amsler (Tex. Civ. App.) 242 S. W. 246.” See, also, the authorities cited by that case and Gibbs v. Lester (Tex. Com. App.) 41 S.W.(2d) 28, 80 A. L. R. 431.

In Gibbs v. Lester it was held that the suit filed by the claimant in possession did not toll the running of the statute because the claimant dismissed his suit without prosecuting it to judgment, and in that case the holding of Taylor v. Belcher Loan & Mortgage Company on the proposition before us was discussed without criticism, but was distinguished with approval. In this case the suit filed by the original plaintiffs remained on the docket until finally disposed of, and no new issue was made by the amended petition filed on the 20th of August, 1930.

We construe the answer filed by A. R. Moody on the 31st of March, 192S, as constituting a contest for all the appellees, and that, from the date of its filing, it suspended the running of the statute in favor of appellants. This conclusion gives appellants less than ten years’ possession. Of course, A. R. Moody had the right to appear as next friend for his minor daughter. But, as Arthur Edward Moody was more than twenty-one years of age at the time the answer was filed, his father could not appear for him as next friend. However, 'the land in controversy was owned by the three appellees as tenants in common, and, as one of the tenants in common, A. R. Moody had the right to take the necessary steps to protect the joint possession against trespassers, as were appellants, on the finding of the jury that the deed pleaded by appellants had not been executed. That he referred to himself in relation to his son as “next friend” was wholly immaterial, because the legal relation necessary to support the answer was disclosed by its fact allegations.

The wife of J. H. Zachry died subsequent to the date of the alleged deed.’ The exact date of her death was not shown. Appellants H. B. and E. L. Zachry were her surviving children, and inherited whatever interest she had in the property. For the children to assert a title, as heirs of their mother, it was necessary for them to show that she died prior to the filing of this suit by their father, which fact was not shown.

It follows that the judgment of the lower court should be in all things affirmed, and it is accordingly so ordered.

Affirmed.


author: BAUGH, Justice.

text:
    STOKES et ux. v. TEMPLE TRUST CO.
    No. 7821.
    Court of Civil Appeals of Texas. Austin.
    April 12, 1933.
    Rehearing Denied May 3, 1933.
    Dibrell & Starnes, of Coleman, for appellants. '
    Jno. B. Daniel, of Temple, and Critz & Woodward, of Coleman, for appellee.
   BAUGH, Justice.

Appeal is from a judgment of the district court of Bell county in favor of appellee against appellants on a series of notes executed by Stokes and wife to the Temple Trust Company, and for a foreclosure of a deed of trust lien on lands in Coleman county, executed by appellants to secure their payment. In due time before trial appellants filed their plea in abatement of another suit pending in Coleman county, brought by them to have said notes declared usurious, to have all prior payments of interest credited upon the principal, and to enjoin the collection by appel-lee of any further interest on said notes. All issues save two hereafter adverted to were decided by this court in favor of appellants and adversely to appellee in Haney v. Temple Trust Co., 55 S.W.(2d) 891, involving the same questions raised on this appeal, to which we refer without further discussion.

The contention is made, among others, in this case that there was not identity of parties to the Bell county suit and the Coleman county suit, for the reason that Mrs. Stokes was not a necessary nor a proper party plaintiff in the Coleman county suit, because the suit there was for usury and as such for community property. Under the conclusion reached and for the reasons given in the Haney Case, supra, we think this contention is without merit. It is made further so, in addition to the reasons given in the Haney Case, because the Coleman county suit related not only to the notes, but to the security given. And,, in the judgment appealed from, foreclosure thereof as against Mrs. Stokes was decreed. She signed with her husband all the notes, interest coupons, and deed of trust. If she were a necessary party defendant, as recognized by appellee in its suit in Bell county, in the foreclosure of its security, clearly we think she would be a proper party in the Coleman county suit litigating the validity and extent of the security she had executed. In any event, however, the judgment rendered in the Coleman county suit, if sustained,, would be res ad-judicata of the matters adjudicated, and binding on all parties to this suit. It involved the same transactions, the same instruments, and the same state of facts involved in this suit. Consequently the Coleman county court having first acquired jurisdiction, the Bell county suit should have been abated.

The other contention made by appel-lee is that the only portions of the record which we are authorized to consider fail to disclose when the Bell county suit was filed; and, there being no evidence that it was filed subsequent to the filing of the Ooleman county suit, the trial court’s judgment overruling appellants’ plea in abatement should be sustained. The case was tried upon appel-lee’s amended petition, filed February 8, 1932. The plea in abatement was filed October 20, 1931. The Ooleman county suit was filed August 26, 1931, and the Bell county suit on October 2, 1931. Appellee contends, however, that, since the original petition in the Bell county suit was not introduced in evidence, and the amended petition did not allege what date it was filed, and since the case was tried on the amended petition, the original petition was abandoned and superseded, is not properly in the record, and cannot be looked to for any purpose, citing, among other authorities, Rules 13 and 14 District and County Courts; Cook v. Williams (Tex. Civ. App.) 32 S.W.(2d) 244; Home Inv. Co. v. Strange (Tex. Civ. App.) 152 S. W. 510; Askey v. Power (Tex. Com. App.) 36 S.W.(2d) 446. Such is the general rule. But it is not without exception. District Court Rule 14 provides that superseded pleadings may be looked to to enable the court to pass upon questions of limitation, “or to enable the court to pass upon some other question presented. * * , * ” 3 Tex. Jur. 412; Texas & N. O. Ry. Co. v. Speights, 94 Tex. 350, 60 S. W. 659. It was the duty of appellee to allege in its amended petition, under District Court Rule 13, the date of the filing of its original petition; and such amended petition was subject to special exception for failure to do so. Rockhold v. Ducky Tiger Oil Co. (Tex. Civ. App.) 4 S.W.(2d) 1046; Allison v. Baird Dev. Co. (Tex. Civ. App.) 292 S. W. 956, 958. APPellee’s amended petition did not allege the date on which its original petition was filed. The trial court was clearly authorized to look to the original petition to determine that fact. There is nothing in the court’s order overruling appellant’s plea in abatement indicating on what ground same was overruled. District Court Rule 14 applies expressly to questions of limitation. That because the time of the filing of the suit is determinative on that question. The same reason applies with equal force to a plea in abatement on the ground of a former suit pending. The cause of action and the parties being identical, and the jurisdiction of either of the trial courts over the parties and subject-matter being authorized by statute, the sole question left would necessarily -be which court first obtained jurisdiction. Clearly, therefore, we can look to the original petition of appellee brought up in the transcript to ascertain that fact.

Regardless of this, however, the record discloses that the plea in abatement was heard and overruled on December 4, 1931, at which time the only pleading of appellee before the court was its original petition, and that trial upon the merits was had on February 8, 1932.- The statement of facts filed relate only to the trial upon the merits. There appears no statement of facts proven at the hearing upon the plea in abatement. The record as to that proceeding is presented only by bill of exception. This bill of exception approved by the trial court expressly recited, however, that at that hearing on December 4, 1931, both the appellants and the appellee introduced in evidence the ap-pellee’s original petition filed in the Bell county suit; and that appellants introduced their original petition filed in the Coleman county suit. All of these instruments appear in the transcript, showing the dates on which they were filed. That being true, the statements appearing in the bill of exception must be taken as true, and when so taken conclusively show that the Bell county suit was filed October 2, 1931, subsequent to the time the Coleman county district court had already obtained jurisdiction. The Bell county suit should therefore have been abated.

The judgment of the trial court will therefore be reversed, as was done in the Haney Case, the cause abated and remanded to the trial court, with instructions to retain it suspended upon the docket until the Coleman county suit is determined, and thereupon to proceed in accordance with the final result of that suit.

Reversed and remanded, with instructions.


text:
    J. C. STOKES et ux., Appellants, v. TEMPLE TRUST COMPANY, Appellee.
    No. 7822.
    Court of Civil Appeals of Texas. Austin.
    April 12, 1933.
    Rehearing Denied May 3, 1933.
    Dibrell & Starnes, of Coleman, for appellants.
    Jno. B. Daniel, of' Temple, and Critz & Woodward, of Coleman, for appellee.
   BAUGH, Justice.

This suit was between the same parties as that appearing on our docket as cause No. 7821, 59 S.W.(2d) 849, this day decided, merely involving a different loan transaction. The same issues are presented in this appeal as were presented in said cause No. .7821, and, for the reasons therein stated, the same order will he entered as in said cause No. 7821.

Reversed and remanded, with instructions.


text:
    SAN ANTONIO PUBLIC SERVICE CO. v. MURRAY.
    No. 2340.
    Court of Civil Appeals of Texas. Beaumont.
    April 26, 1933.
    Rehearing Denied May 3, 1933.
    Templeton, Brooks, Napier & Brown, of San Antonio, for appellant.
    Champe G. Carter, Randolph L. Carter, and H. O. Carter, all of San Antonio, for appellee.
   WALKER, Chief Justice.

This appeal is from a judgment for $1,200 in favor of appellee, C. W. Murray, against appellant, San Antonio Public Service Company, for damages to his automobile and for personal injuries suffered by him, resulting from a collision on the 17th day of March, 1926, between one of appellant’s street cars and appellee’s automobile. The jury found: (a) That at the time of the collision the street car was being operated at a speed exceeding ten miles an hour, and that the rate of speed “directly caused or directly contributed to the collision’’ and the injuries of which ap-pellee complained; (b) that just prior to the collision appellant’s motorman failed to have the street car under control, and that “such failure” constituted negligence “directly causing or directly contributing to the collision” and the injuries of which appellee complained ; (c) that on the occasion of the collision appellant’s motorman discovered and realized that appellee “was in a perilous situation in time to have averted the collision with the means at his command,” that the motorman failed “to use the means at his command to avert the collision after such discovery,” that “such failure constituted negligence, which directly caused or directly contributed to the collision” and to the injuries of which appellee complained; (d) that “the accident in .question was not an unavoidable accident”; (e) and facts acquitting appellee of the charge of contributory negligence; (f) the damage to the automobile was fixed at $500, and appellee was allowed $700 in compensation for his personal injuries. The appeal was to the San Antonio Court of Civil Appeals, transferred first to the Austin Court of Civil Appeals, then to this court by orders of the Supreme Court.

Opinion.

The lower court did not err in overruling appellant’s motion for an instructed, verdict upon the ground that “the great and overwhelming preponderance of the evidence shows that this accident was not caused by any negligence of the defendant.” Appellant makes the following statement of the undisputed facts attending the collision:

“The following facts are admitted and undisputed: South Alamo Street, in the city of San Antonio, runs substantially north and south; it is a paved street; at the place of the accident it is 36½ feet wide, and has on it double street car tracks;
“Market Street runs east and west and crosses South Alamo Street one,block south of Commerce Street, which is one of the main business streets; the collision occurred south of the intersection of South Alamo and Market Streets; just prior to and at the time of the collision, automobiles were parked on the west side of South Alamo Street;
“The accident happened at about noon, on a rainy day, and the pavement was. wet.
“The street car was going north toward the center of town on the east or inbound track.
“The plaintiff was by himself, driving his six-cylinder Buick roadster; he had been going east on Market Street; lie turned to his right to go south on South Alamo Street.
“Just prior to and at the time of the collision, the plaintiff and the street car were approaching each other going in opposite directions.
“Ahead of the plaintiff and on his right, or, on the west side of South Alamo Street, also headed south, were several other automobiles parked on the curb; one of these parked autos moved away from the curb and came out into the street ahead of the plaintiff. The plaintiff did not stop to avoid said other auto; he cut his auto to the left, and got out onto the east street car track, which put the plaintiff’s car over on the wrong side of the street in front of the oncoming street car, and the collision took place. All of these facts are admitted.”

Just prior to the collision Mr. Jesse Jenkins, a witness for appellee, was driving in his automobile behind appellee’s automobile, going in the same direction, with one automobile between him and appellee. Mr. Jenkins testified:

“Q. Well, go on and state what you saw there? A. This Buick roadster was ahead of me, I came in on South Alamo Street; I can’t say whether he turned the corner or whether he did not, because I wasn’t paying any particular attention, but I do know he did swerve out in the street, the street was very slippery because I came around the corner and naturally had to take it slow. He swerved out in the street because of another ear that pulled out from the curb, and as he turned, the street car hit him. * * *
“Q. But you saw it, saw this car move out? A. Yes sir.
“Q. And did you see Murray turn out— A. Yes.
“Q. —and that was the time he was struck, when he turned out? A. Yes sir. * * *
“Q. And just as soon as he swung over there the car hit him? A. That is right. ⅜ *
“Q. But just as soon as he swerved out on the track the accident happened? A. Yes. * * • *
“Q. Do you remember hearing any signal given as the street car approached? A. I don’t remember.
“Q. That was the first time that you yourself noticed the street ear coming — at the time the collision came? A. When they hit.
“Q. Sir? A. When they hit, when they collided.
“Q. You didn’t see it or notice it until they struck? A. Not at all. * * *
“Q. And was the street car coming slow or fast? A. It would be hard to tell at what rate of speed he was coming. * * * I would judge that the car was going about eighteen miles an hour.”

Mr. Davis, a witness for appellant, testified that, at the time of the collision, he was driving his automobile behind the street car and in the same direction, and that “the street car was going I suppose eight or ten miles an hour.” Independent of the verbal testimony, the circumstances in the case raised the issue that the street car was running at a speed exceeding ten miles an hour. For instance, some of defendant’s testimony shows that the collision took place some seventy-five or one hundred feet from the intersection of Market and South Alamo streets. The defendant’s motorman testified that after the collision his street car stopped at a point five or ten feet from the intersection of Market and South Alamo streets. The testimony of defendant’s witness, Mrs. Delaney, tended to show that the automobile was a number of feet north of the front end of the street car after the collision. This evidence raised the issue that the street car ran some seventy-five or one hundred feet after the collision and that after it stopped the automobile was a few feet in front of it, thereby raising the issue that the street ear was traveling at an excessive rate of speed when it struck the automobile. This statement is sufficient to raise the issue of negligence against appellant.

There was no error in receiving in evidence the following ordinance of the city of San Antonio, against the objection that it was “unconstitutional, because the same is too vague and indefinite, and is prejudicial, immaterial and irrelevant”: “Hereafter no electric street car shall be propelled or operated within the limits of the city of San Antonio at a greater speed than is reasonable and proper, having regard to traffic and use of the public streets by others, or so as to endanger the life or limb of any person thereon, providing that the following rate of speed shall not be exceeded: Within the circle of one-half mile from the intersection of St. Mary’s and College Street, 10 miles an hour.”

The objection' was to the ordinance as a whole, and clearly the provision that the rate of speed should not exceed “ten miles an hour” was not vague and indefinite. When the objection.is to the testimony as a whole, overruling objection does not constitute error, if any part of the proffered testimony is admissible. Lamar & Smith v. Stroud (Tex. Civ. App.) 5 S.W.(2d) S24. Again, since no issue was submitted under the other portions of the ordinance, and these other portions were not of a nature to inflame the minds of the jury, or to prejudice in any way appellant’s defense, the error, if any, was immaterial. In the following cases speed ordinances were received in evidence: West Texas Coaches v. Madi (Tex. Com. App.) 26 S.W.(2d) 199; Id. (Tex. Civ. App.) 15 S.W.(2d) 170; Woodward v. Murphy (Tex. Civ. App.) 29 S. W.(2d) S28; Solan & Billings v. Pasche (Tex. Civ. App.) 153 S. W. 672.

On the ground that it was “suggestive and leading,” appellant objected to the fol- . low’ng testimony by Mr. Jenkins: “Q. And was the street car coming slow or fast? A. Apparently it was traveling a little fast.” After-the testimony was. received, appellant added the objection that it was “a conclusion.” Immediately following the testimony objected to, the witness testified, “I would judge that the car was going about eighteen miles an hour.” The testimony showed that Mr. Jenkins was qualified as an expert to testify as to the rate of speed. While evidence to the effect that the defendant was driving “awful fast” has been held objectionable, Morgan v. Maunders (Tex. Civ. App.) 37 S.W.(2d) 791, and that he was “going too fast” has been condemned as a mere opinion or conclusion, Whitney v. Sioux City, 172 Iowa, 336, 154 N. W. 497, and that “the speed was fast, terrible, frightful, greater than ever before” has been condemned as mere conclusions, Baldwin v. Omaha, etc., Railway Co., 105 Neb. 614, 181 N. W. 525, we do not think the evidence objected to in this case should constitute reversible error. While the witness said that the street car was apparently “traveling a little bit fast”, he immediately qualified that by fixing the rate of speed at eighteen miles an hour. We think this specific limitation rendered harmless the indefinite statement complained of and took it out of the rule announced by 19 Tex. Jur. 309.

Question No. 1 was as follows: “Just before this collision, was the street car of the defendant being operated at a rate of speed exceeding ten miles per hour?”

In connection with this charge the following issue was submitted: “If you answer ‘Yes’ to question 1, (but only if you so answer the same), then did such rate of speed directly cause or directly contribute to the collision and to any injuries to the plaintiff which are alleged in the petition?”

Appellant reserved certain exceptions to this charge which we do not discuss because the findings of the jury on the issues of discovered peril, which are before us without objection, are sufficient to support the verdict, even if this charge constituted error; therefore the error in submitting this charge, if error existed, was immaterial.

The following charge was given immediately preceding the charge submitting the issues as to the amount of appellee’s damages, if any, suffered by him as a result of the collision:

“If in response to the foregoing questions you have answered that the defendant’s motorman was negligent and that this negligence caused the collision, and if you have also answered that the plaintiff, O. W. Murray, was not guilty of contributory negligence, then you will answer the following questions.
“If you answer otherwise than as above, then you will not answer the following questions, unless you should answer ‘Yes’ to Questions (3) to (3c), inclusive, relating to discovered peril, in which event you will answer all of the following questions.”

This charge was objected to on the ground that it instructed the jury “as to when it would be necessary and when it would be unnecessary to answer the amount question, and particularly because the way said paragraph is worded suggests to the jury that the court believes that the jury will probably answer ‘Yes’ to the questions of negligence against the defendant; and said paragraph is therefore highly prejudicial to the defendant; and because it is inconsistent with the prior instruction in the charge as to considering each question separately, etc.,” and “because the same is misleading and confusing, is not complete, and is not a correct statement of the law applicable to the particular matter.” The objection that the charge was not complete and was not a correct statement of the law was too general to constitute error. Isbell v. Lennox, 116 Tex. 522, 295 S. W. 920. The other objections as directed against this very charge have been duly considered and overruled by the courts. Texas Landscape Co. v. Longoria (Tex. Civ. App.) 30 S.W.(2d) 423; D. & H. Truck Line v. Hopson (Tex. Civ. App.) 4 S.W.(2d) 1013; D. & H. Truck Line v. Lavallee (Tex. Civ. App.) 7 S.W.(2d) 661. Counsel for appellee has furnished us with briefs by the appellants in these cases and the applications for writs of error in the two last cases, which were refused. These briefs show that appellants assigned error against this very charge both in the Courts of Civil Appeals and in their applications for writs of error. Notwithstanding the vigorous attacks thus made against this charge, it was in all things sustained. For other authorities sustaining this character of charge see Millerman v. H. & T. C. Railway Co. (Tex. Civ. App.) 27 S.W.(2d) 897; Standard Acc. Ins. Co. v. Williams (Tex. Civ. App.) 4 S.W.(2d) 1023, 1026; Tex. Employers’ Ins. Ass’n v. Heuer (Tex; Civ. App.) 10 S.W.(2d) 756, 759; Texarkana & Ft. S. Railway Co. v. Casey (Tex. Civ. App.) 172 S. W. 729; C. E. Parks Grain Co. v. Gwynn (Tex. Civ. App.) 265 S. W. 1071; Missouri O. & G. Railway Co. v. Webb (Tex. Civ. App.) 178 S. W. 728; Ineeda Laundry v. Newton (Tex. Civ. App.) 33 S.W.(2d) 208, 211. In Western Indemnity Co. v. Corder (Tex. Civ. App.) 249 S. W. 316, 317, this eourt said, on this issue: “Every issue raised by the pleadings and evidence should be submitted to the jury, but this does not require that the court must permit or require the jury to answer all the issues submitted. When the jury has all issues before it, it is now the established practice in this state for the trial court to instruct the jury that an affirmative or negative answer to certain issues relieves them of the duty of answering certain .other issues, and that a verdict may be returned under that instruction without answering all issues submitted.”

Our attention has been called to the recent opinion of the San Antonio Court of Civil Appeals in Cannon Ball Motor Freight Lines v. Grasso, 59 S.W.(2d) 337, in which this charge was condemned as being a general charge and because it informed the jury of what the ultimate judgment would be. As we understand appellant’s brief, these two specific objections were not made to the charge in issue and therefore would not be available to it as constituting reversible error, so, from what we have said in sustaining this charge against appellant’s objections, we are not in conflict with the San Antonio Court of Civil Appeals in the last case cited.

Over appellant’s objection that the testimony was immaterial and irrelevant, ap-pellee was permitted to testify that he paid $1,357 for the automobile in issue when he bought it new three years and a half before the accident. The general rule is that “testimony as to the cost of or price paid by the owner for real or personal property is not admissible on an issue as to its market value, especially when remote in point of time, or where it was purchased at another place.” 17 Tex. Jur. 442. This proposition cannot avail appellant because it was not objected to on the ground that it was remote in point of time nor that it was not purchased in San Antonio. The only objection was that it was immaterial and irrelevant. We do not think it was subject to that objection. 17 Tex. Jur. 440.

It follows that the judgment of the lower court should be affirmed, and it is accordingly so ordered.


author: O’QUINN, Justice.

text:
    SHAFFER et al. v. BROWN.
    No. 2377.
    Court of Civil Appeals of Texas. Beaumont.
    April 12, 1933.
    Rehearing Denied May 10, 1933.

      Dean & Humphrey, of Huntsville, and Foster, Williams & Nicholson and Pitts & Liles, all of Conroe, for appellants.
    Crawford & Crawford, of Conroe, and Vinson, Elkins, Sweeton & Weems, of Houston, for appellee.
   O’QUINN, Justice.

Appellant g. O. ghaffer sued appellee, J. B. Brown, in trespass to try title to 44 acres of land in Montgomery county, Tex. Brown answered and impleaded Mrs. M. D. ghaffer, wife of g. O. ghaffer, and J. H. Hudspeth and A. D. Ross, as defendants, each of whom filed answer.

Appellee, Brown, filed his second amended answer and replication, consisting of a general demurrer, general denial, plea of not guilty, and specially that on December 11, 1926, he sold and conveyed the land in controversy to A. L. Ross, one of the defendants, for a cash consideration of $100, and five vendor lien notes, each for the sum of $180 payable to him (Brown). He further answered, in substance: (1) That said Ross was unable to pay for the land, and “in the year 1928” executed a deed reconveying the land to him, which deed was left with defendant J. H. Hudspeth to be delivered to Brown when called for, that Hudspeth refused to deliver said deed to him (Brown), that he (Brown) borrowed $255 from the Farmers’ & Merchants’ gtate Bank of Conroe while he had possession of said notes, and that as security for the loan he transferred said Ross notes to said bank; (2) that a deed was executed, signed, acknowledged, and delivered by A. L. Ross to J. B. Brown for the land in question, of date the-day of-, 1929, conveying said property to J. B. Brown for the cancellation, surrender, and delivery of the said five vendor lien notes, and that said deed had been lost or mislaid or purposely withheld from him by the said Hudspeth, and gave notice to produce the deed on the trial of the case; (3) that after the execution of the reconveyance deed to him by Ross, he (Brown) entered upon the premises on or about February 28, 1930, and was living thereon as his home at the time of the filing of the suit, and that the dealings between him and defendant Hudspeth were a matter of common knowledge to all the parties to the suit; (4) that he (Brown) was the owner of the land in controversy, subject to the debt of $255 which he owed to whoever held the note he had executed to the E. & M. Bank, and offered to pay the amount of said note into court, provided the land was adjudged to him; (5) that appellant S. O. Shaffer, with full knowledge that he (Brown) had conveyed the land in controversy to A. L. Ross for a consideration of $1,010, “as shown by deed of record in Book 116, page 635, Deed Records of Montgomery County, Texas, and retaining five (5) vendor’s lien notes against said land, defendant, S. O. Shaffer, acting in collusion with the other defendants in this cross action, induced A. L. Ross to convey said land in controversy to himself and M. D. Shaffer for a consideration of One Thousand, Twenty ($1,020.00) Dollars, which this defendant here charges is not the true’ consideration for said land but fraudulently inserted in said deed in order to defraud this defendant out of his home and take from him the land described herein” ; (6) sections 9 and 10 of the answer related to fraud, which sections will hereafter be set out in full; (7) that if he (Brown) should be denied a recovery of the land, he should have judgment against A. L. Ross for the amount of the five vendor lien notes, less the amount owed by him on the $255 bank note, and1 for foreclosure of the vendor’s lien against all parties defendant; (S) suit by cross-action against S. O. Shaffer, his wife, M. D. Shaffer, J. H. Hudspeth, and A. L. Ross, for title and possession of the land; (9) pleas of title in Brown under the several statutes of limitation ; and (10) plea of valuable improvements in good faith.

All cross-defendants filed replications in due course to the amended answer and cross-action of Brown. The cross-defendants specially answered:

“Further answering herein, these plaintiffs specially deny that J. H. Hudspeth sought to reconvey a Whippet car to which he had no title. Plaintiffs further say that on or about the - — day of -, A. D. 19 — , the said J. B. Brown, finding himself unable to pay off and discharge the note which he had made to the said Farmers & Merchants State Bank, to which he had attached the vendor’s lien notes executed by A. L. Ross as security, entered into a contract with J. H. Hudspeth whereby, under the terms of which the said Brown promised and agreed to convey and did convey to the said J. H. Hudspeth the said vendor’s lien notes formerly executed by A. B. Ross, in consideration of which the said J. H. Hudspeth paid off and discharged said indebtedness of the said Brown to the said Farmers & Merchants State Bank, and conveyed and delivered toi the said Brown one Whippet automobile and thereby the said J. H. Hudspeth became the owner of said notes, and thereafterwards, for a valuable consideration, conveyed the same to these plaintiffs, who became the legal owners thereof, without any notice that J. B. Brown was asserting any interest or title hostile to their own.”

The erossrdefendant Hudspeth specially answered:

“And for further answer herein this defendant says that he acquired said vendor’s lien notes from the Farmers & Merchants State Bank for consideration of $300.00 pri- or to the acquisition of said notes, J. B. Brown came to this defendant and told him that he, the said Brown, was financially unable to pay off said note upon which the vendor's lien notes were given as collateral. That if the said Hudspeth would pay off the said note in the sum of $300.00 and give to the said Brown a bill of sale to a Whippet automobile the said Brown would make a transfer of all of the said vendor’s lien notes. That this defendant, in line of such agreement, paid off the $300.00 note at the said Farmers & Merchants State Bank and gave the said J. B. Brown a bill of sale to the said Whippet automobile. This defendant says that the said Brown made the proposition above outlined of his own free will and that there was no inducement whatever to get the -said Brown to part with the title in and to the vendor’s lien notes. That said Brown took said automobile, after the said bill of sale had been given to said Brown, drove it off and kept it, and that the title to the said automobile is still in J. B. Brown. That because of said transfer of the said automobile and the extinguishment of said $300.00 note at the Farmers & Merchants State Bank J. B. Brown parted with all title, right and interest in and to said vendor’s lien notes and that title vested in this defendant.”

To this special plea the defendant Brown answered by general denial.

Defendants S. O. Shaffer and wife presented numerous exceptions to Brown’s amended answer, denied all the matters of fact alleged therein, and further pleaded matters in avoidance thereof. The court overruled all of the exceptions.

The case was tried to a jury upon special issues, in answer to which the jury found that A. L. Ross reconveyed the land t» Brown; that the deed of reconveyance from Ross to Brown was delivered to J. H. Huds-peth for safe-keeping for Brown and subject to his order when called for, and to be delivered to Brown when called for; that Hudspeth fraudulently induced Ross and his wife to make a deed to the land in controversy to S. O. Shaffer and M. D. Shaffer about March 12, 1930; that at the time Ross and wife conveyed the property involved to S. O. Shaffer and M. D. Shaffer said Hudspeth was acting for S. O. Shaffer and. M. D. Shaffer in procuring said conveyance; that there was no agreement between Brown and Hudspeth by the terms of which Brown traded to Hudspeth all his right and interest in and to the vendor’s lien notes executed by Ross and payable to Brown.

Upon the answers of the jury to the special issues, judgment was rendered for ap-pellee, Brown, for the land. Motion for a new trial was overruled, and the case is before us on appeal.

Appellants’ first and second propositions challenge the sufficiency of appellee’s pleading wherein he charges fraud and fraudulent conduct on the part of appellants and the defendant J. H. Hudspeth in procuring the deed from A. L. Ross and wife to appellants to the land in question. These propositions urge that fraud is alleged in general terms, to which appellants excepted because the acts or specific facts constituting the alleged fraud were not pleaded, and because it was not alleged that appellees relied thereon and that the court erred in overruling their said exceptions.

The paragraphs in appellee Brown’s answer alleging fraud are:

“8. That after this defendant had acquired title to the land in controversy, as set out herein, and moved upon same and made valuable improvements thereon and was using; said land as a home, the plaintiff, S. O. Shaffer, with full knowledge of this defendant having conveyed to A. L. Ross for a consideration of One Thousand Ten ($1,010.00) Hollars, as shown by deed of record in Book 116, page 635, Deed Records of Montgomery County, Texas, and retaining five (5) vendor’s lien notes against said land, the defendant, S. O. Shaffer, acting in collusion with the other defendants in this cross action, induced A. L. Ross to convey said land in controversy to himself and M. D. Shaffer for a consideration of One Thousand Twenty ($1,020.00) Dollars, which this defendant here charges is not the true consideration for said land, but fraudulently inserted in said deed in order to defraud this defendant out of his home and take from him the land described herein.
. “9. The said J. B. Brown, in this connection, says: That the act of J. H. Hudspeth in taking charge of and retaining the deed executed by A. B. Ross to him and failing to deliver, the same to him when demanded by J. B. Brown was a fraud practiced by J. H. Hudspeth, acting in connection with the other defendants herein. That the defendant J. B. Brown relied upon J. H. Hudspeth treating him right and expected him to deliver his deed to him when he offered to pay him the Two Hundred and Fifty Five ($255.00) Dollar note due by J. B. Brown to the F. & M. Bank but the said J. H. Hudspeth refused to deliver the deed but fraudulently undertook to convey an old Whippet ear which he had no bill of sale for and offered to pay the said J. B. Brown a monied consideration for the land in question, which he thereafter refused to do, and which he at all.times refused to do, all of which was fraudulently done to get a deed made to S. O. Shaffer and M. D. Shaffer in an effort to make them innocent purchasers of said land and thereby defraud the said J. B. Brown out of his home. That the fraud practiced on the defendant, J. B. Brown, was known to the other defendants in this cross action and that in collusion with the said J. H. Hudspeth acted with him and perpetrated said fraud. That in this connection the said J. B. Brown says that he has been greatly damaged by the fraud practiced upon him, as set forth in his pleading herein, in that a suit has- been filed by the plaintiff, S. O. Shaffer, for his home and a determined effort made by him in this cause to take away from him his home, to which he is legally and justly entitled upon the payment of Two Hundred and Fifty Five ($255.00) Dollars and the interest thereon.
“10. The defendant, J. B. Brown, further shows unto the court that if it be shown upon the trial of this cause that S. O. Shaffer and his wife, M. D. Shaffer, were innocent purchasers of the property sued for, which is not admitted but expressly denied, then this defendant, J. B. Brown, says that he has been wronged and defrauded out of his land in controversy by the fraudulent and illegal acts of J. H. Hudspeth in getting him to permit said Hudspeth to hold said deed which he either purposely destroyed or mislaid, and that the said Hudspeth, the defendant in this cross action, on account of said fraudulent acts as complained of herein, upon which this defendant relied, has caused him to be damaged in the sum of Nine Hundred ($900.00) Dollars, the amount of the A. L. Ross note, with interest, less what he is due on the Two Hundred Fifty Five ($255.00) Dollar note which he owed to the F. & M. Bank and for which sum of money he asks judgment against the said J. H. Hudspeth.”

Appellants excepted to the allegations of paragraph 8 because same failed to allege any act on the part of Hudspeth that would constitute fraud, or that resulted in fraud being perpetrated; that paragraph 9 did not allege any representations or statements of fact made by Hudspeth or appellants which would constitute fraud, nor in any manner plead any acts upon the part of Hudspeth ox-appellants amounting to fraud, nor that appellants conspired in the perpetration of the fraud attempted to be alleged, nor did same allege that appellee relied upon such statements or representations. These exceptions were overruled. We think the exceptions should have been sustained. It is well settled that it is not sufficient to allege fraud in general terms. The pleadings should contain specific allegations of the acts, representations, and conduct relied on, and must he definite and certain; the facts constituting fraud must be alleged. 20 Tex. Jur. § 90, pp. 134, 135, and authorities there cited. In addition to stating the specific facts, acts, statements, or representations constituting fraud, the pleader must allege that the defrauded party relied upon such statement or representations and was thereby deceived and induced to act to his injury. 20. Tex. Jur. § 93, pp. 140,141, and authorities there cited.

In addition to what we believe to be the insufficiency of the pleadigs set out above to charge fraud, we think it very probable that the jury’s answers to special issues Nos. 1 and 2 wherein they found that Ross and wife had reconveyed the land to Brown, and the deed of reconveyance was left with Hudspeth for safe-keeping and was to be delivered to Brown when he called for same, were induced by the frequent use of the words “fraud” and “fraudulent”’ by appellee in his answer in relation to the matters in controversy. Fraud was the basis of the theory upon which defendant Brown predicated his defense and ground for recovery in his cross-action, and, there being no sufficient allegation of the acts and representations constituting the fraud attempted to be charged, it is not certain that the jury’s findings were not thereby induced.

Appellants’ sixth, seventh, eighth, ninth, and tenth assignments of error complain of the admission of certain testimony over appellants’ objection as reversible error. The sixth and seventh assignments are that it was error, for the court to permit appellee to testify that at the time of the trial the land in controversy was worth $10,000, and that it could be leased for oil purposes for $200 an acre. This was objected to on the grounds that said testimony was irrelevant and immaterial, and that, if the value of the land was admissible at all it would have to be' confined to its value at the time of the alleged fraud. These assignments are sustained. We do not believe that the value of the land, either when sold by Brown to Ross, or by Ross to Shaffer, or at the time of the trial, was relevant or material to elucidate any issue in the case. The case was one of trespass to try title, and the defense was one founded in fraud. The value of the land involved at any time could not throw any light upon the question of title to the land. The evidence could but have had an injurious effect upon appellants’ asserted cause of action.

The eighth assignment urges that it was error for the court to permit appellee to testify that defendant Hudspeth had traded to him an automobile that was a sorry car and had no valu’e. This testimony was offered by appellee upon the theory that appellant Shaffer was claiming to be an innocent purchaser, and that he (Brown) was attempting to show that Shaffer had not paid value for the land. We fail to find in any of appellee’s pleading any basis for the admission of this testimony, or that any fraudulent representations wore made by Hudspeth to appellee as to the value of said car at the time appellee received same from Hudspeth, or that Shaffer was in any way cognizant of or connected with Hudspeth in the sale of the car to ap-pellee, or that said ear was any part of the consideration Shaffer paid for the land. Moreover, appellee, Brown, in the course of his testimony, several times admitted that he sold the Ross vendor’s lien notes, amounting to $900, to Hudspeth in consideration of his (Hudspeth’s) paying off Brown’s note to the bank in the sum of $255 with interest, and the delivery to him (Brown) of the car in question at a valuation of $400, and Hud-speth’s agreeing to pay him (Brown) the difference of about $245. Hudspeth did pay off the bank note amounting to more than $300, including the interest, and the bank transferred the Ross notes to him, and he (Hudspeth) did deliver the ear to Brown, which Brown accepted and kept and used for some fifteen months, and not .until he was sued herein did he undertake to repudiate the trade with Hudspeth and to carry the car back to Hud-speth, who refused to receive same. In his testimony, Brown repeatedly admitted that, if Hudspeth had paid him the $245 difference in the valuation of the Ross notes on the one hand, and the Brown bank note and the car-ón the other, he would not be urging his defense and right to recover in this suit. So we think it appears without dispute that Brown did trade the Ross vendor’s lien notes, which represented his claim, and all of his claim, to or against the land, to Hudspeth, and knew that Hudspeth had paid the bank note, and agreed to and did accept the car in question at a valuation of $400, and the promise of Hudspeth to pay him the difference of $245. This being established by Brown’s admissions, it would follow, we think, that the only right in Brown to recover would be against Hudspeth for the unpaid balance of $245 for the Ross notes. Hudspeth denied that he agreed to pay the $245, but that was a question of fact to be determined, but was not submitted to the jury. The question of whether Brown sold to Hudspeth all of liis right and interest in and to the Ross notes was submitted, and the jury found that he did not. This finding is directly in the face of the admissions of appellee that he did make such an agreement, and is therefore without evidence to support it. For this reason alone the judgment would have to be reversed.

The ninth assignment is that the court erred in admitting the testimony of the witness Bailey that in 1925 he bought a secondhand car from Hudspeth which was of no value. This testimony was not admissible on any theory of the case. The deal, if it took place, was long before any of the events occurring in the instant case, was wholly unrelated to any issue involved, and it is not even intimated that appellants, the iShaffers, had anything to do with or ever heard of the transaction. Its admission in evidence could result only in prejudice to the right of appellants.

The tenth assignment complains that it was ■error for the court to permit the witness Smith to testify that the car Hudspeth traded to Brown was not in good condition, that “it was pretty bad shot.” The assignment is sustained. The evidence was irrelevant and immaterial.

The twelfth assignment is that the court erred in submitting special issue No. 3 to the jury. The issue reads: “Do you find from a preponderance of the evidence that J. H. Hudspeth fraudulently induced A. L. Ross and wife to make a deed to plaintiffs S. •O. Shaffer and M. D. Shaffer about March 12, 1930, as alleged in defendant’s second amended answer replication and cross action?”

This issue was excepted to by appellants on the grounds: (a) “Because there is no evidence in the record showing, or tending to show, that J. H. Hudspeth, either alone or acting with another fraudulently induced A. L. Ross and wife to make the deed to plaintiffs.” (b) “Because if the evidence does, in truth and in fact, tend to show that J. H. Hudspeth fraudulently induced A. L. Ross and wife to execute the deed referred to, there is no proof whatever tending to show that these plaintiffs were in any way parties to such fraudulent conduct, or had any knowledge thereof.” (c) “Because the pleading of the defendant Brown specially alleged what the fraudulent conduct of J. H. Hudspeth and others consisted of, and fails to allege in any way that any false or fraudulent representations were made to A. L. Ross and wife and because therefore the pleadings do not support said issue.”

We think the exceptions to the issue were well taken. As we understand and interpret appellee’s pleading, he nowhere alleges any false or fraudulent statements or representations made by Hudspeth to Ross and wife to induce them to execute the deed to appellants. Moreover, we fail to find in the record any evidence that Hudspeth made false statements to Ross and wife to induce them to convey the land to appellants, but, if. mistaken in this, we say that there is absolutely no proof that the Shaffers were in any way parties to such fraudulent representations, or that they had any knowledge of same.

By their fifteenth assignment, appellants complain that the submission of special issue No. 4 to the jury was error. Special issue No. 4 inquired whether at the time Ross ana wife conveyed the land in question to S. O. and M. D. Shaffer, Hudspeth, in procuring them to execute said deed, was acting for said S. O. and M. D. Shaffer. The issue was excepted to because there was no allegation in appellee’s pleadings upon which to base same. We sustain this assignment. A careful inspection of the pleadings fails to reveal to us any allegation upon which this issue could be based. In fact, it is specifically alleged by appellee, in the eighth paragraph of his answer, that S. O. Shaffer, not Hudspeth, induced A. D. Ross to convey to him the land in controversy.

Other assignments are urged, b,ut, as the case will be reversed and remanded for another trial, we will not discuss them.

The judgment should be reversed and remanded for another trial, and it is so ordered.

Reversed and remanded.


author: WALTHALL, Justice. HIGGINS, Justice

text:
    RATLIFF v. RUSSEK et al.
    No. 2802.
    Court of Civil Appeals of Texas. El Paso.
    March 23, 1933.
    Rehearing Denied April 27, 1933.

      W. E. Rogers and O. L. Galloway, both of El Paso, for appellant.
    J. U. Sweeney and J. E. Quaid, both of El Paso, for appellees.
   WALTHALL, Justice.

Mrs. Clara X. Russek, joined by her husband J. X. Russek, brought this suit against Elias Hernández, R. M. Ratliff, R. A. Mora, and Louisa M. Gonzalez, a feme sole, to recover on two certain promissory notes numbered 3 and 5, of a series of six; notes numbered consecutively from 1 to 6, each note being for the sum of $1,000, interest and attorney’s fees.

The record shows substantially the following: On March 25, 1927, Louisa M. Gonzalez, by warranty deed conveyed to R, A. Mora the west one-half of the 6.34 acres of land known as the Venice place on the county road and received therefor as part consideration, six promissory notes, each for $1,000, signed by R. A. Mora and made payable to Louisa M. Gonzalez. The notes are designated by their serial number from 1 to 6 and are so referred to in the record. The notes are due and payable beginning one year after date; that is, note No. 1 is due one year after date, note No. 2 is due two years after date, and so on through the series of notes, note No. 6 becoming due six years after date.

The deed conveying the land, and the notes themselves, each retain and express a vendor’s lien on the land to secure their payments. The notes each express the usual accelerating maturity clause, interest, and attorney’s fee if placed in the hands of an attorney for collection. Notes numbered 1, 2, and 4, were paid, and default was made in the payment of note 5 and the series of notes were declared due by the plaintiffs, the holders of note 5.

By proper assignment, indorsement, and transfer of the lien notes Nos. 3 and 5 become the property of Mrs. C. X. Russek.

In the assignment and transfer of notes 3, 4 and 5 and the lien, by Louisa M. Gonzalez, to the mortgage company, she inserted the following: “It is expressly agreed and understood, however, that the lien securing the payment of notes 3, 4 and 5 here transferred shall be in all things prior and superior to the lien securing the payment of the other notes of this series to-wit: Note No. 6.”

The transfer bearing the above quotation was made while Louisa M. Gonzalez was the owner and holder of note 6; the transfer was duly recorded.

There was no notation on note 6 indicating the agreement as above, and nothing to indicate that the lien as to the other notes was to be prior or superior, or to take precedence over note 6.

Plaintiffs allege that Mora made some kind of conveyance of the property to Hernandez, and that Louisa M. Gonzalez is asserting some claim to the property, and that both Pler-nandez and Louisa M. Gonzalez, by reason thereof, are liable on the notes.

Plaintiffs, Mrs. Russek and husband, owned notes 3 and 5, and asked judgment for their debt against all defendants except R. M. Ratliff; that the vendor’s lien on the property be established as against all parties as a first or prior lien and judgment foreclosing said lien to satisfy their debt and costs.

Hernandez and Mora answered by general demurrer ' and general denial.

R. M. Ratliff answered by general demurrer and general denial, and. by special answer asserting ownership of one note (note 6), alleged that Mora and Hernandez assumed the payment of said note and have not paid same and that it is now due and payable, with interest and attorney’s fees.

Ratliff further alleged. that he is a bona fide purchaser of said note (note 6) for a valuable consideration, “without any actual knowledge of any defects or anything that would injure said note or make it inferior to any other note, but that said note is a first lien on the property described in plaintiff’s petition.” Ratliff asked that Mora, Louisa M. Gonzalez, and Hernandez be cited to appear and answer this his cross-action, and that he have judgment against them for his debt, interest, and attorney’s fee. Ratliff filed a motion for a continuance to get service on Mora, Hernandez, and Louisa M. Gonzalez. The court overruled Ratliff’s motion for continuance.

The case was tried without a jury. The court heard the evidence and entered judgment for plaintiffs Russek and wife against Mora and Hernandez for the amount of the debt ($2,214.35), interest, and costs; that plaintiffs have a first and valid vendor’s lien on said tract of land and ordered same foreclosed as to all defendants, including Ratliff; ordered that Ratliff’s cross-action against Mora, Hernandez, and Gonzalez be dismissed “without prejudice.”

The trial court filed findings of fact and conclusions of law.

Briefly, the court found: Plaintiffs were the owners of notes 3 and 5, and Ratliff was the owner of note 6; that the payment of the notes was secured by the land described ; that while the notes were held by Mrs. Gonzalez she sold the notes now held by plaintiffs and designated and declared notes 3 and 5, to be a first lien on the property; that she later transferred note 6 to Ratliff; that her declaration of the notes (3 and 5) as first lien notes was placed of record prior to her sale and delivery of note (note 6) to Ratliff; all notes are past due; Ratliff seeks to have case continued to get service in his cross-action on the maker of the note, the payee, and indorser on the note and Hernandez who assumed to pay the note, but “the delay was denied him for no reason than that the plaintiff had a right to have his hearing on his notes without being required to delay such hearing and determination until the defendant Dr. Ratliff could prepare and present his cross action.”

The court further found that “R. M. Ratliff did not have actual knowledge that the note he claims in this suit was made a second lien by the payee at or before the time the said Ratliff purchased same.”

Ratliff alone prosecutes this appeal.

Opinion.

Two questions are presented.

First: Was it reversible error to refuse Ratliff’s motion to continue the case until he could get service on Mora, Hernandez, and Mrs. Gonzalez, on his cross-action?

Plaintiffs filed their suit on April 18, 1932. The record does not show when defendant Ratliff was served with citation; the record shows that his original answer was filed on May 2, 1932, and his amended answer- was filed on June 18, 1932. Ratliff’s motion for continuance to pass the case until the September term of the court to get service on Mora, Hernandez, and Mrs. Gonzalez, was filed June 28, 1932. The motion for continuance shows that all three of the parties live in El Paso county, and were defendants in the suit and two had filed answers. At the time of filing the motion no steps had been taken to get service and no reason is stated in the motion why defendant in his cross-action had not had service on Mora, Hernandez, and Mrs. Gonzalez for the May term of the court which commenced on May 2d.

We have concluded that sufficient diligence to get service on the parties for the May term of the court is not shown to justify this court in holding that the trial court abused his discretion in overruling the motion. The parties were necessary parties to the cross-action and Ratliff was authorized to make them parties defendant in his cross-action, but “not at a time” so as to “unnecessarily delay the trial of the ease.” The law exacts diligence of a cross-action defendant in bringing in new parties.

Second: The record shows that when the notes were executed and delivered they were equally and alike secured as purchase-money notes of the land described in the plaintiff’s petition, that is, they were all alike vendor’s lien notes.

The court found, and the record shows, that after the execution and delivery of the notes to Mrs. Gonzalez, and while the notes were held by her, she sold the notes 3 and 5, now held by plaintiffs to the First Mortgage Company of El Paso, and by written conveyance transferred to the mortgage company the lien securing same; said transfer contained the following: “It is expressly agreed and understood, however, that the lien securing the payment of notes Nos. 3, 4 and 5, here transferred shall be in all things prior and superior to the lien securing the payment of the other notes of this series, to-wit: Note No. 6.”

Said transfer was duly recorded, and the dates of the transfer and record were prior to the purchase by Ratliff of note 6. All of the notes in the series were paid except the notes involved in this controversy, namely, 3, 5, and 6. .

Appellant, Ratliff, makes the contention that the court erred in “finding that appellant was visited with notice from the County Clerk’s office where the transfer to ap-pellees was recorded showing that they had a prior lien to appellant’s note in view of the fact that appellant showed that he bought said note in due course of business without actual knowledge of any defect whatever of anything that would make said note a second lien on said property subject to the appellee’s lien, and because the appellant was not bound by constructive notice but on actual notice under the statutes of this state.”

We might add that the record shows that Ratliff bought the note in due course of business, paying consideration therefor, and “without actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument (note) amounted to bad faith.” The only notice, knowledge, or information Ratliff had that the vendor’s lien expressed in the note had been made a second lien to notes held by appellees was by reason of the transfer of such lien by Mrs. Gonzalez to the First Mortgage Company and the record of such transfer, as above stated.

The question presented is: Do sections 52 and 56 of article 5935 of our Negotiable Instruments Act have any application under the facts of this case? More specifically and concretely stated, did the act of Mrs. Gonzalez in making the vendor’s lien, then a first lien, expressed in Ratliff’s note, a second lien to that expressed in notes 3 and 5 held by appellees, create such infirmity in Ratliff’s note, or defect in his title to such note, as to make applicable the sections of the above article of the statute. The act of Mrs. Gonzalez in making the lien a second lien affected only the lien expressed in the note. It is clear that the change of the lien in the note did not create a defect in the title to the note. Did it create an infirmity in the note?

We have concluded that the lien although expressed in the note was not such a part of the note that the change made created an infirmity in the note.. If we are not in error in so holding, the conclusion would necessarily follow that the Negotiable Instruments Act has no application, and Ratliff would be charged with the record notice of such transfer of the lien.

A change or release of a vendor’s lien on land is such an instrument concerning land as may be recorded, and subsequent purchasers of such note are charged with constructive notice of the change or release of the lien when so recorded. Revised Civil Statutes, arts. 6626 and 6627; Moran v. Wheeler, 87 Tex. 179, 27 S. W. 54; Lewis v. Ross, 95 Tex. 358, 67 S. W. 405; Biswell v. Gladney (Tex. Com. App.) 213 S. W. 256; Allen v. Hall (Tex. Civ. App.) 52 S.W.(2d) 661, 663, in which it is said: “The owner of a vendor’s lien note may release the lien and negotiate .the note stripped thereof provided the purchaser has notice that the lien has been released.” Such notice is provided in the registration laws, as above.

We think the court was not in error in the holding and judgment rendered.

The case is affirmed.

HIGGINS, Justice

(concurring).

In so far as concerns the priority of liens the Negotiable Instruments Act (Rev. St. 1925, art. 5932 et seq.), in my opinion, has no application. The Registration Act (Rev. St. 1925, art. 6591 et seq.) controls. The priority agreement made by Louisa M. Gonzalez was duly recorded when appellant acquired note No. 6 and under the Registration Act Ratliff had constructive notice of the agreement in so far as it affected the lien which he acquired with the note.

An agreement relating to a vendor’s lion affects the title to land; it is subject to registration and when duly recorded operates as constructive notice to all persons subsequently acquiring such lien and they are bound by such agreement. Lewis v. Ross, 95 Tex. 358, 67 S. W. 405, 406; Moran v. Wheeler, 87 Tex. 179, 27 S. W. 54; Busch v. Broun (Tex. Civ. App.) 152 S. W. 683; Biswell v. Gladney (Tex. Com. App.) 213 S. W. 256; Allen v. Hall (Tex. Civ. App.) 52 S.W.(2d) 661.

Appellant invokes sections 52 and 56 of the Negotiable Instruments Act (Rev. St. 1925, art. 5935) and contends that in order to be bound by the agreement he must have had actual notice thereof; that constructive notice afforded by registration is insufficient.

In Lewis v. Ross, supra, Judge Brown said: “If one who acquires a purchase-money note with an agreement for priority of payment desires to preserve that right as against persons who may subsequently purchase the other notes, he may and should take a written assignment of the note purchased, embodying in it the agreement for priority of payment, and have it recorded; and, failing to do so, one who purchases another of the same series of notes without notice of the prior right will take it subject to the legal effect on the reservation of the lien in the deed, — that is, equality of lien between the several notes.”

When that ruling was made, it had long been the settled law in this state that the ordinary rules as to constructive notice had no application to the purchase of negotiable instruments. Wilson v. Denton, 82 Tex. 531, 18 S. W. 620, 27 Am. St. Rep. 908; Forster v. Ry. Co. (Tex. Civ. App.) 176 S. W. 788; First Nat. Bank v. Chapman (Tex. Civ. App.) 164 S. W. 900; Pope v. Beauchamp (Tex. Civ. App.) 159 S. W. 867; Stephens v. Summerfield, 22 Tex. Civ. App. 182, 54 S. W. 1088; Mulberger v. Morgan (Tex. Civ. App.) 47 S. W. 379; Turner v. Grobe (Tex. Civ. App.) 44 S. W. 898; Hynes v. Winston (Tex. Civ. App.) 40 S. W. 1025.

This being true the rule announced in Lewis v. Ross, is in no wise changed by sections 52 and 56 of the Negotiable Instruments Act (Rev. St. 1925, art. 5935);

A lien is a mere incident of the debt. One acquiring a note secured by a vendor’s lien is charged with notice of all duly recorded instruments affecting such lion and takes the lien, in the status which the records disclose it -to be.

Lewis v. Ross, and the other eases first cited clearly uphold the priority of appel-lee’s lien.


text:
    DIETZEL v. MARTIN.
    No. 2358.
    Court of Civil Appeals of Texas. Beaumont.
    May 3, 1933.
    Rehearing Denied May 10, 1933.
    J. B. Lewright and Guy A. McEarland, both of San Antonio, for appellant.
    S. S. Searcy, of San Antonio, for appel-lee.
   O’QUINN, Justice.

On December 6, 1926, appellant executed and delivered to Wimer-Richardson & Co., an investment corporation, four notes for a total of $10,000, payable to bearer or order, bearing 7 per cent, interest and providing for attorney’s fees. They were numbered 1 to 4, and payable at the office of Wimer-Riehard-son & Co. in San Antonio, Tex., “on or before” one, two, three, and four years from date, respectively. Appellant also executed and delivered to Wimer-Richardson & Co. certain interest coupon notes, payable to bearer or order, at the office of Wimer-Richardson & Co., and to secure the payment of all of said notes he executed and delivered to Wimer-Richardson & Co. a deed of trust covering certain real estate in San Antonio. This deed of trust was duly recorded.

About a month after the execution of the notes, on January 4, 1927, appellee, Virginia Martin, acting through her agent and attorney, O. C. Clamp, purchased from Wimer-Richardson & Co. notes Nos. 2, 3, and 4 of said series of notes, and paid for same the sum of $8,045.11, being $8,000 principal and $45.11 interest which had accrued to that-date, and said notes Nos. 2, 3, and 4 were then delivered by said Wimer-Richardson & Co. to said C. C. Clamp for said Virginia Martin, and by said Clamp delivered to her. There was no written transfer of said notes. If notes sold by said company were payable to bearer or order, as here, the company did not usually give a transfer, unless specially requested.

On December 1, 1927, appellant sold the real estate mortgaged to secure the payment of said four notes, and on said date paid to Wimer-Richardson & Co. the sum of $8,280 as full payment of said notes Nos. 2, 3, and 4, which said Wimer-Riehardson & Co. had, on January 4,1927, sold to appellee, and received from said company a receipt for said sum and a release of the deed of trust lien on the real estate securing the payment of said notes, which recites that Wimer-Richardson & Oo. was the legal owner and holder of the notes in question; that it had received payment in full of same, and had canceled and annulled said notes and the deed of trust lien given to secure their payment, and fully released said real estate “forever free, clear and acquitted of the above described deed of trust lien and vendor’s lien that were made and created, as above recited, to secure the payment of the four notes above described.”

Coincident with the sale and delivery of said notes Nos. 2, 3, and 4 to Virginia Martin, Wimer-Richardson & Co. executed a written guaranty in which it obligated itself to '“protect said guarantee against any loss of any of the principal of said notes * * * and any interest thereon,” and further that “guarantor will collect the principal and interest of said notes for the guarantee without charge,” and would insure the property involved against certain described losses. The issuance of this guaranty was a matter of record in the office of said Wimer-Richardson & Co., and appeared among the files of “Loan No. 2423,” which showed the transaction with Virginia Martin through her attorney, C. C. Clamp.

The interest coupon notes were paid as they matured to the date of the bankruptcy of said company.

On December 4, 1927, when Dietzel paid to Wimer-Richardson & Co. the sum of $8,280, to be applied in full payment of the notes 2, 3, and 4, Wimer-Richardson & Co. accepted the payment for that purpose, and, as before stated, gave Dietzel its receipt therefor and a release of the deed of trust lien securing the payment of said notes, and credited the $8,-280 upon its account with Virginia Martin, but concealed from Virginia Martin and her agent and attorney, Clamp, the fact that it had collected the money and appropriated said money to its own use and benefit. It is conceded that neither Clamp nor Miss Martin had any knowledge of the payment of the money.

On October 22, 1929, Wimer-Richardson & Co. was placed in receivership, and on March 12, 1930, was adjudged a bankrupt. On January 23, 1930, appellant, alleging that he had “only recently been informed” that appellee claimed that she was, and for “several years” had been, the legal owner and holder of the notes 2, 3, and 4 in question, filed this suit with full allegations of the facts relative to the execution and delivery of the notes and deed of trust to Wimer-Richardson & Co. and the payment of same to said company, and its receipt for the money and release of the deed of trust lien. He prayed for judgment canceling the notes and that appellee be required to surrender and deliver said notes to him. Appellee answered, and in a cross-action prayed for judgment against appellant for the full amount of the notes, interest, and attorney’s fees. The case was tried to the court without a jury, and judgment rendered that appellant take nothing by his suit, and that appellee have judgment against appellant as prayed for. The case is before us on appeal.

Appellant presents numerous assignments of error; but as we view the record, the questions are few, and we shall discuss them instead of considering the assignments in the order presented.

Appellant’s allegation in his petition and his insistence that the notes in question were nonnegotiable is without force. The fact that they were payable to bearer does not make them nonnegotiable. Subdivision 4 of section 1 of article 5932, R. S., expressly provides that for an instrument to be negotiable it must be payable to order or to bearer. And article' 5934, § 30, provides that if an instrument is payable to bearer it is negotiated by delivery. In the instant case the notes were payable to bearer and were negotiated by Wimer-Richardson & Co., the owner and'holder, selling and delivering them to appellee by delivering them to her agent and attorney, C. C. Clamp.

The contention of appellant that Wi-mer-Richardson & Co. had express authority, and if not express then implied or ostensible authority, from appellee to accept and receive the money paid to it by appellant in full satisfaction of the three notes, is overruled. The question is one of fact, and we do not believe that there is any evidence in the record to show that Miss Martin had in any manner expressly authorized Wimer-Richard-son & Oo. to act as her agent in receiving money in payment of the notes. To the contrary, Bliss Martin testified that Wimer-Richardson & Co. was never at any time her agent for any purpose. It is without dispute that Wi-mer-Richardson & Co. did not have in their possession the notes in question, but that Bliss Martin had possession of them at all times from the date of their purchase by her, as the ■owner and holder of same.

It is true that Wimer-Richardson & Co. collected the interest coupon notes from appellant, credited appellee’s account therewith, as they were presented by appellee, but this did not make Wimer-Richardson & Co. the agent of appellee for the collection of the principal notes. Cunningham v. McDonald, 98 Tex. 316, 83 S. W. 372, 373; Higley v. Dennis, 40 Tex. Civ. App. 133, 88 S. W. 400; Case Note, 23 L. R. A. (N. S.) 418. In this last citation, the applicable rule is thus stated: “That one other than the holder of securities collected the interest thereon, without the possession thereof,, for the holder, without protest on his part, is not sufficient to raise a presumption or implication of authority to collect the principal without the possession of such securities.” (Citing numerous authorities, including the Texas cases above cited.) See 8 O. J., Bills and Notes, §§ 812, 813, 830, 835, and 837 ; 3 R. C. L., Bills and Notes, §§ 521, 522.

The ease of Cunningham v. McDonald, supra, involved very similar facts and the same question of agency, as in the instant case. There, Judge Brown, speaking for the Supreme Court, said that, if it he “adriiitted that the corporation, acting as the agent-of Cunningham [the owner and holder of the note], collected the interest from McDonald [the maker of the note], that fact would not tend to prove that it had the authority to collect the principal of the note. How can it be inferred from the agency to collect the interest that the agency to collect the note existed? The one fact does not form a basis for the presumption of the other fact.” Moreover, it appears that Miss Martin did not place the interest coupon notes with Wimer-Richardson & Co. for collection, but acting through her agent and attorney, Clamp, placed said interest coupon notes with the Frost National Bank of San Antonio for collection and it presented same to and collected from Wimer-Richardson & Co. Wimer-Richardson & Co. at no time after it sold the notes to Miss Martin ever had the notes or the interest coupon notes in its possession for any purpose.

It is insisted by appellant that Wimer-Richardson & Co.’s agency to collect the principal notes is necessarily inferred from its guaranty of the collection and payment of the whole obligation, both principal and interest. But the contrary is stated to be the law in Cunningham v. McDonald, supra. In that case the Bunnell & Eno Investment Company sold and delivered to Cunningham a note payable to it at its office and executed and delivered to Cunningham its guaranty of the payment of the note and interest, as did Wimer-Richardson & Co. to Miss Martin in the instant case. Judge Brown, in disposing of this contention, said: “The terms of the guaranty relied upon as evidence of authority to collect the principal do not reserve to the Bunnell & Eno Investment Company any control over the note. It provides that after the lapse of a certain time the guarantor shall have the right to take up the note by paying the principal thereof, or, in case the holder of the note should refuse, then the guarantor should be relieved from the guaranty; but this does not in any way tend to prove that the Bunnell & Eno Investment Company retained any interest in or control over the note itself.” It was insisted in the Cunningham-McDonald Case (in the brief of appellee, 98 Tex. 317, 83 S. W. 372) that “the terms of the guarantee given by the investment company to Cunningham having author-ized the company to collect the coupons and note and account to him for the same, the company became his agent, and the court was authorized to submit the issue of agency to the jury, and the jury was justified in finding for appellee on that issue.” The Supreme Court, speaking through Judge Brown, held against this contention, as stated above. This holding controls., the issue of agency contended for herein by appellant, both as to express and ostensible agency.

In the case of John Stuart & Co. v. Asher, 15 Colo. App. 403, 62 P. 1051, the Court of Appeals of Colorado held that where a loan company guaranteed loans made by it, and it was customary for people making loans through it to present interest coupons for payment, which, to protect its guaranty, the loan company paid and thereafter collected from the debtor, such mode of doing business is not sufficient to justify the debtor in paying the principal to the loan company without the possession of the security.

The contention that the clause in the deed of trust (which was of record) securing the payment of the notes and which authorized the trustee, or Wimer-Richardson & Co., to execute a release of the deed of trust, considered in connection with the other papers in said transaction executed and delivered the same date, “in and of itself constituted Wimer-Richardson & Co. the expressly authorized agent of appellee, as the ‘bearer’ of these notes, to accept payment of the notes and to release the deed of trust lien,” is not sound. Aside from the fact that we do not believe that the mere fact that the deed of trust provided that the trustee, or Wimer-Richardson & Co., were authorized by said instrument to execute a release of the deed of trust lien, when the notes were paid, conferred any authority, ostensible or otherwise, upon Wimer-Richardson & Co. to collect the principal notes after said notes had been sold and delivered to appellee, and were no longer the property of nor in the possession of said company, it is not shown that appellee had actual notice of the terms of the deed of trust. The registration of the deed of trust did not give appellee constructive notice of its terms because the constructive notice rule does not apply to the holder of negotiable instruments. Therefore, appellee, who purchased the notes before maturity and for a valuable consideration, could not be bound by any of the provisions of the deed of trust, of which she had no knowledge, either expressly or impliedly, authorizing Wimer-Richardson & Co. to accept from appellant money in payment of the notes held by her. Hassard v. May (Tex. Civ. App.) 152 S. W. 665, 671; First Nat. Bank v. Chapman (Tex. Civ. App.) 164 S. W. 900.

It is contended that appellant acted in good faith. That the notes being executed and delivered to Wimer-Richardson & Co. for a loan to secure which he executed a deed of trust on certain real estate in San Antonio, and the principal notes and the interest coupon notes being payable at the office of Wimer-Richardson & Co., and the interest coupon notes having been paid at said office as they fell due, he was justified in acting on the theory that said Wimer-Richardson & Co. was still the owner and holder of said notes, and authorized to receive payment thereof. The fact that appellant had no actual notice of the sale and delivery of the notes to Miss Martin did not relieve him of the duty to ascertain the true owner and holder of the notes before making payment of same. 3 R. C. L., Bills & Notes, §§ 521, 522. The record does not support his contention of good faith. According to appellant’s own testimony he made numerous and large loans through Wimer-Richardson & Co., amounting to two or three hundred thousand dollars; he did most of his banking business with them; he knew when he executed the notes and deed of trust to Wimer-Richardson & Co. that the notes were payable to bearer, and that said company got them for the purpose of negotiating them; he had access to the books of the company, which reflected the ownership of the notes, but did not look at them to ascertain whether the notes had been sold or not. Moreover, appellant was a stockholder and director of Wimer-Richardson & Co., and was perfectly familiar with the nature and manner of its transactions. He knew when he gave the notes to the company it intended to sell same, and still he admits that he made no examination of its books, or any other investigation to ascertain whether the notes had in fact been sold, but blindly, trusting the company, paid the notes when they had not been owned or possessed by the company since about a month after their execution. The records of Wimer-Richardson & Co. contained full notice of the situation, ownership, and possession of the notes, and, if but scanned by appellant, would have informed him of all the facts. He had access to all of this information, but neglected to exercise any care, while appellee had no such access, but only knew that she owned and held the notes, and was not in any way acting through or relying upon Wimer-Richardson & Co. to represent her. Appellant says he had full and complete faith and confidence in Wimer-Richardson & Co. and its management, and made no inquiry, not even when the notes were not delivered to him when he paid the money, relying upon Kenneth Winter, actively in charge of the company’s business, to deliver the notes in a few days. Appellee had no such relations with the company and looked to it for only one thing — to pay according to its guaranty the notes and interest if appellant failed to do so, to pay its own obligations, not to act for her without her knowledge or consent. Appellant, having trusted most, should suffer most — the judgment against him was proper.

The cases of Boltz v. Graff (Tex. Civ. App.) 43 S.W.(2d) 469, and Hicks v. Hugo (Tex. Civ. App.) 43 S.W.(2d) 471, grew out of similar transactions with Wimer-Richardson & Co. These cases were tried in district court of Bexar county, Tex., resulting in judgment against the defendants; they making, in effect, the same contentions as here. These cases were appealed to the Court of Civil Appeals at San Antonio, and each was affirmed. We think these decisions control the instant ease. It is true that a. writ of error was granted in each case, the notation made by the Supreme Court being that the writs were granted on the assignment that Wimer-Rich-ardson & Co. was the “ostensible” agent of the claimants to collect the debts. We have given careful consideration to this question, and believe that the San Antonio Court of Civil Appeals correctly determined the question. We think that under the facts and circumstances appearing without dispute, and by the great weight of authority, no such authority or agency is shown.

The judgment should be affirmed, and it is so ordered.

Affirmed.