author: LEDDT, Judge. CURETON, Chief Justice.

text:
    MUTUAL INV. CORPORATION v. HAYS et al.
    No. 1436-6080.
    Commission of Appeals of Texas, Section B.
    April 19, 1933.
    A. H. Lumpkin and Saunders, Saunders & Whipple, all of San Antonio, for plaintiff in error.
    Hertzberg & Kercheville, of San Antonio, for defendants in error.
   LEDDT, Judge.

Plaintiff in error, the Mutual Investment Corporation, brought this suit against defendant in error C. L. Quig to recover principal, interest, and attorneys’ fees on a promissory note, executed by the latter for the sum of $1,578.16, and to foreclose a chattel mortgage on an automobile given to secure the payment of said note.

Plaintiff in error obtained possession of the automobile covered by the mortgage under a writ' of sequestration, issued at its instance, and the defendant in error Quig re-plevied the same. The replevy bond was in the sum of $2,000 executed by Quig as principal and E. M. Hays and Stephen Bettley as sureties.

The case was tried by the court without a jury. Plaintiff in error elected to prove the value of the automobile at the time of the execution of the replevy bond as provided in article 6852, R. O. S. 1925. In order to ascertain the damage to the car while in the possession of the defendant in error, plaintiff in error proved the value of the automobile as of the date of the trial.

The trial court rendered judgment in favor of plaintiff in error against defendant in error Quig, and the sureties on his replevy bond for the sum of $1,420.79, with a foreclosure of its mortgage lien on the automobile. It appears from the judgment the court determined that the reasonable market value of said automobilq at the time of the execution of the replevy bond was the sum of $1,-500, and that at the time of the trial such value was $650. It was provided in said judgment that, if the automobile should be surrendered to the sheriff within ten days from the date of the rendition of the judgment, the judgment against the sureties on the replevy bond should be reduced in the sum of $650, the reasonable value of the mortgaged property at the time of the trial, and that the balance of the judgment in the sum of $770.78 should be collected against sureties as under execution. The judgment directed the sheriff to seize the automobile and sell the same as under execution, and that, if the proceeds of such sale should be insufficient to satisfy the judgment, then the officer executing such writ was ordered to make the balance remaining unpaid out of any other property of defendant in error Quig “or his bondsmen.”

The trial court did not file findings of fact or conclusions of law, and the record does not contain any statement of the facts proven upon the trial.

The Court of Civil Appeals held that no judgment was authorized against the sureties on the replevy bond. It reversed the judgment of the trial court as to said sureties, and rendered judgment in their favor. The basis for the ruling made by the Court of Civil Appeals appears from the following quotation from its opinion: “It would be manifestly unjust to render judgment against the sureties for the balance of the debt when the property has been foreclosed upon and taken possession of by the plaintiff. The property in the present case had been returned by the sureties, at least it was in the possession of appellee, and the sureties had fully complied with all conditions of their bond. We conclude that no judgment under the circumstances should have been rendered against the sureties on the replevy bond.”

We fail to find anything in the record justifying the finding made by the honorable Court of Civil Appeals that the automobile had been returned by the sureties to the plaintiff in error, and that there was full compliance by the sureties on the replevy bond with all of the conditions of the bond. As before stated, the transcript contains no findings of fact nor is there a statement of facts accompanying the record. The transcript consists merely of the petition, upon which the case was tried, the answer of the defendant, the judgment of the court, and the proceedings incident to the suing out of the writ of error. There is nothing whatever in the record showing that the sureties on the replevy bond have fully complied with the conditions of their bond. Even if it be assumed that the automobile was delivered to the sheriff -within -the time required by law, still we think that part of the judgment of the trial court awarding plaintiff in error a recovery against the sureties for the damage to the car between the date of the execution of the replevy bond and the date of the trial should be sustained.

Defendant in error insists that under the statute authorizing the replevy of personal property which has been sequestered the sureties on a replevy bond are not liable for depreciation in the property incident to ordinary use. Assuming, without deciding, that this is.a proper interpretation of the statute, the judgment of the court does not disclose that the damage to the car, while the same was in the possession of the defendant in error Quig, was occasioned by ordinary use.

It is an elementary rule that in the absence of facts to the contrary an appellate court will assume that the trial court had before it and passed upon all' the facts necessary to authorize it to render judgment in the manner and form as rendered. Cabell v. Floyd, 21 Tex. Civ. App. 136, 50 S. W. 478; Schulte et al. v. Republic Sup. Co. (Tex. Civ. App.) 297 S. W. 667; Griffith v. Reagan (Tex. Civ. App.) 114 S. W. 1167; Sutherland v. Cabiness (Tex. Civ. App.) 146 S. W. 331.

The trial court adjudged “that at the time of said replevy said automobile was of the reasonable market value of $1,500, and that $650 is its reasonable market value at the i>resent time.” If it were essential for the trial court to have determined that there was special damage to the automobile, nor attributable to ordinary use, in the absence of the testimony proven upon the trial, it must be assumed that there was evidence adduced showing the depreciation in the value of the car was due to special or unusual damage, and not to that occasioned merely by ordinary use. To hold otherwise would be to strike down a judgment by presumption. While a judgment, in the absence of the evidence upon which it was rendered, will be sustained by presumption, it will never be rendered invalid by presumption.

The judgment of the court is erroneous wherein it authorizes a deficiency judgment against the sureties on the replevy bond after the automobile has been returned to the sheriff and sold under the mortgage foreclosure.

It is not necessary to reverse the judgment of the trial court because of this erroneous provision. The judgment will be reformed so as to award a recovery against defendant Quig and the sureties on the replevy bond for the amount found by the trial court with a foreclosure of plaintiff’s mortgage on the automobile described therein with the proviso that, if defendant Quig shall deliver said automobile to the sheriff within ten days from date of final judgment herein, the judgment against the sureties on the replevy bond shall be credited with the sum of $650, and execution will issue against all of the defendants, for any balance of the judgment remaining unpaid, after crediting thereon the proceeds of the sale of the automobile under foreclosure. The judgment will further provide that, if defendant Quig shall fail to deliver said automobile to the sheriff within the time specified, said officer shall seize and sell the same as under execution and credit the proceeds of such sale upon plaintiff’s judgment and any balance remaining unpaid shall be made out of all the defendants as under execution. No costs shall be assessed against the sureties on the replevy bond.

We recommend that the judgment of the Court of Civil Appeals be reversed and the judgment of the district court be reformed as above indicated and,'as so reformed, that it be affirmed.

CURETON, Chief Justice.

The judgment of the Court of Civil Appeals is reversed, and the judgment of the district court is reformed, and as reformed is affirmed, as recommended by the Commission of Appeals.


source: Caselaw Access Project

author: SHARP, Judge. CUR'ETON, Chief Justice.

license: Public Domain

text:
    CITY OF EDINBURG et al. v. ELLIS.
    No. 1657-6118.
    Commission of Appeals of Texas, Section A.
    April 19, 1933.
    Montgomery, Hall & Taylor and Neal A. Brown, all of Edinburg, for plaintiffs in error.
    ICelley, Looney & Norvell and George P. Brown, all of Edinburg, for defendant in error.
   SHARP, Judge.

J. P. Ellis filed this suit against the city of Edinburg, D. C. Abney, as mayor, and A. C. Statham and M. R. Harris, as city commissioners, on certain warrants issued by the city of Edinburg to J. P. Ellis, and also on an open account, alleging that the warrants and open account grew out of an oral agreement between the city of Edinburg and Ellis. It was alleged that by virtue of the agreement the city agreed to purchase from Ellis gasoline, oil, tires, supplies, etc. The city answered that the contract was fraudulent and that it grew out of a collusion between Ellis and Commissioner Dyer. The warrants had been issued for the amounts claimed by Ellis and the city sought to cancel the warrants upon the ground of fraud upon the part of Ellis and Dyer. The trial court peremptorily instructed a verdict for Ellis for $3,606.74, and judgment for that amount was rendered against the city. The Court of Civil Appeals at San Antonio affirmed the judgment of the trial court. 42 S.W.(2d) 291. A writ of error was granted to review the opinion of the Court of Civil Appeals.

It is contended that the Court of Civil Appeals erred in sustaining the trial court’s action in peremptorily instructing the jury to return a verdict for Ellis.

Ellis based his cause of action on an oral contract with the city, whereby the city agreed to purchase from him gasoline and automobile supplies; that the city agreed to pay for these supplies the amount of money that the supplies would amount to in cash at the retail price at the end of each month; that the city issued certain warrants aggregating the sum of $4,134.45, and owed him the further sum of $77.95 represented by an open account.

The city answered that the contract made by Ellis with the city was fraudulent in that Ellis and W. R. Dyer, one of the commissioners, had entered into a conspiracy to defraud the city. It was further, alleged that Dyer was in the business of selling gasoline and automobile supplies to retail - dealers; that Dyer had a lease contract with Ellis for a gasoline station. It was further alleged that the use of Ellis as the seller’ was only a subterfuge, when in fact Dyer had an interest in the contract; that the amounts charged the city wére grossly excessive and incorrect, and the warrants were obtained upon forged' sales slips. It was d.lso alleged that the city was charged with many items purchased and used by persons not for the use of the city, and for which the city was in no way liable.

It is the general rule that municipal contracts in which officers or employees of the city have a personal pecuniary interest are void. 44 C. J. pp. 89 and 90; 6 R. C. L. pp. 739 and 740; Meyers v. Walker (Tex. Civ. App.) 276 S. W. 305. This rule is held to apply to members of the city council. It has long been the public policy of this state to prohibit officers of a city from having a personal pecuniary interest in contracts with the city .and this policy is specifically expressed in both the penal and civil'statutes, See article 373, Penal Code, and article 988, R. O. S. 1925. Article 373 provides that if an officer of a city or town shall' become in any manner pecuniarily interested in any contracts made by such city or town, or shall become interested in the purchase or sale of anything made for or on account of such city or town, he shall be subject to a fine. Article 988 also provides that no member of the city council or any other officer of a corporation shall be directly or indirectly interested in any contract, the consideration of which is paid from the city treasury.

The foregoing rule rests upon sound: public policy. Its object is to insure to the city strict fidelity upon the part of those who represent it and manage its affairs. The rule prohibiting public officers from being interested in public contracts should be scrupulously enforced. The pleadings and proof offered in this case raised the issue of interest in the contract by Dyer, and, if true, brought it clearly under the rule announced by the authorities and statutes above cited. The trial court and Court of Civil Appeals erred in holding as a_ matter of law that the contract was binding upon and enforceable against the city. This was an issue of fact to be determined.

The pleadings and evidence raised the further issue that included in the amount for which city warrants were issued and judgment against the city sought thereon were included items for goods sold to persons in no way connected with the city, and for which the city was not liable therefor. It was error to hold that this testimony was not ad-, missible.

The rule is well established in this state that a city warrant is not negotiable commercial paper, but is only prima facie evidence that the city is indebted to the payee. A city warrant imposes no obligation upon the city to pay if no liability for the debt evidenced by the instrument actually exists. Nor is the city estopped from setting up fraud and collusion in the making of the contract out of which arose the issuance of the warrants. National Surety Co. v. State Trust & Savings Bank, 119 Tex. 353, 29 S.W.(2d) 1027, and authorities cited.

We recommend that the judgments of both the Court of Civil Appeals and of the trial-court be reversed and that this cause be remanded to the district court for another trial.

CUR'ETON, Chief Justice.

The judgments of the district court and Court of Civil Appeals are both reversed, and cause remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


author: SHARP, Judge. CURETON, Chief Justice.

text:
    LINCOLN v. STONE.
    No. 1654-6112.
    Commission of Appeals of Texas, Section A.
    April 19, 1933.
    C. P. Engelking, of Electra, T. R. Boone and Bonner, Bonner & Childress, all of Wichita Balls, and R. G. Storey and J. L. Goggans, both of Dallas, for plaintiff in error.
    Weeks, Morrow, Francis & Hankerson, of Wichita Falls, and B. W. Tipton, of Electra, fbr defendant in error.
   SHARP, Judge.

This suit was filed by Violet Stone, a married woman, not joined by her husband, John Minnick, against W. P. Lincoln, to recover damages for personal injuries alleged to have occurred on October 21, 1929, when, as an occupant of the car driven by Gaston Scott, the ear in which she was riding ran into the back end of a truck going in the same direction and owned by W. P. Lincoln, which she alleged had no tail-light -burning at the time. Scott, her companion, was instantly killed in the collision, and she was injured. By virtue of the answers made by the jury to special issues submitted to them, the trial court entered judgment in favor of Violet Stone and against W. P. Lincoln in tlie sum of $20,000. This judgment was affirmed by the Court of Civil Appeals at Fort Worth. 42' S.W.(2d) 12S. A writ of error brings the cause here. For the sake of brevity, we will refer to the opinion of the Court of Civil Appeals for a more detailed statement of the case, but we will make certain statements from the record as the necessities of this case may require.

Plaintiff in error contends that he was entitled to a new trial because of the misconduct of the jury during their deliberations, in that certain jurors made certain statements of fact not introduced in open court. The writ of error was granted on this contention.

The main issue of negligence against Lincoln for decision by the jury was whether or not the tail-light on the truck was burning at the time of the collision. The testimony upon this point was sharply conflicting. The owner of the truck contended that the taillight on the truck was burning at the time of the collision, and defendant in error contended that on account of its condition that it was not burning and could not be made to burn. The tail-light was introduced in evidence. After the jury retired for their deliberations, they called for the tail-light, and the trial court, without the knowledge or consent of plaintiff in error, permitted the tail-light to be taken into the jury room. The jurors examined it. J. E. Walker, one of the jurors, stated to the jury during their deliberations, in substance, that he was in the garage business and was an expert mechanic. When the tail-light was brought in the jury room, all the jurors examined and discussed it. Being a mechanic, he was familiar with the wiring of tail-lights and headlights; that he knew what it took to make a light burn in the way of electric currents and sockets, and he was familiar with Ford lights, like the one before the jury; that he knew from his long experience as a mechanic and the way the light was wired up that it could not be made to burn. He went into detail with his explanations about the construction of Ford lights and gave his reasons why he knew a tail-light, wired as that one was, could not be made to burn. We will quote his own words: “ * * * I explained that to the jury. As to whether or not the jury, so far as I know, accepted that and said it could not be made to burn, or whether some of them said that it could be made to burn, I will state that I don’t think there was any argument about it. Yes sir, they all accepted the proposition that it not only was not burning, hut could not he made to humj there were several of them did not think it would hum before I said anything about it. In other words, there were some of them that understood it just like I did. Xes, I guess it is right that there were some who did not know one way or the other about the mechanism of the light.' I guess that is right and, as I understand it, there were some did not have any experience, particularly with Ford lights at all. They had some questions on it. * ⅜ * I did understand the theory upon which they burned and understood the wiring, and I just explained to the jury why it was that they could not be made to burn, ⅜ ⅜ » Xes, I explained to them why it would not burn. In the first place, it had the wrong socket. And in the next place it was not grounded properly.” (Italics ours.)

He further testified: “I stated a while ago that there was a fault in the grounding of. that light. The loose socket, right here, that would make a faulty grounding. That matter did not come in the testimony anywhere— I don’t believe that it did. I explained that matter to the jury — that the loose connection would malee a faulty grounding and of course-I made that explanation from my experience-in handling Ford lights. I don’t suppose it. is a matter that an ordinary fellow would: know without having some practical knowledge acquired in working on that kind of ai light. The average man ordinarily would not know anything about the tail-light on a Ford car. I gained my knowledge from my practical knowledge acquired in working on that kind of a light. The average man ordinarily would not know anything about the tail-light, on a Ford car. I gained my knowledge from: my practical experience and told the jury that it had a faulty grounding, based on my experience. The jury asked questions about that and based on my experience, I answered them.” (Italics ours.)

Some of the jurors were called to testify, and stated that there seemed to be several of the jurors who did not know much about tail-lights -and how they operated; that the tail-light was carefully examined and discussed by all the jurors during their deliberations. The record further shows that someone asked Dunn, one of the jurors, if he thought it would burn that way, and*he stated' that he did not think it would; that Walker also explained it to them. After discussing the single contact and double circuit theory, they all agreed that the light not only was not burning at the time of the collision, but it never burned and could not be made to burn.

Plaintiff in error, during the trial, had introduced an automobile mechanic, who testified that he was in the employ of plaintiff in error, and that about three or four days before the collision he placed this tail-light on the truck in question, that the wiring was new and that it would burn, and when the truck left the shop the 'tail-light was burning. The testimony upon this question is= quite voluminous, but the above statement will suffice for the purposes of this opinion,

The primary purpose of the law is to give litigants a fair and impartial trial. Every safeguard is thrown around the trial to accomplish this end. The judge is not permitted to confer with the jury, only in open court. Article 2197, B.. S. 1925. All testimony must be received by the jury in open court, where all parties may hear it. The courts are uniform in holding that it is improper for the júry to receive new testimony during their deliberations. To this end the Legislature enacted article 2234, R. S. 1925.

The rule is now settled that, where it appears that the jury has been guilty of misconduct in receiving new testimony, that upon a consideration of the whole testimony introduced before the trial court it is reasonably doubtful whether or not the new testimony received affected the decision of the jury upon any material issue, it is the duty of the trial court to grant a new trial; if in such case a new trial is not granted by the trial court, then it is the duty of the appellate court to set aside the judgment rendered. Casstevens v. T. & P. Ry. Co., 119 Tex. 456, 32 S.W.(2d) 637, 73 A. L. R. 89; Houston & T. C. Ry. Co. v. Gray, 105 Tex. 42, 143 S. W. 606; Moore v. Ivey (Tex. Com. App.) 277 S. W. 106; St. Louis S. W. Ry. Co. v. Robinson (Tex. Com. App.) 285 S. W. 269, 46 A. L. R. 1507; St. Louis S. W. Ry. Co. v. Lewis (Tex. Com. App.) 5 S.W.(2d) 765; St. Louis, S. F. & T. Ry. Co. v. Rutland (Tex. Com. App.) 292 S. W. 182, 183. The testimony showed that several of the jurors were not familiar with how the current operated in tail-lights and asked questions about it, and the juror Walker explained it to them. We think this record shows that original evidence was introduced to the jury during their deliberations which affected their decision upon a material issue. Applying the foregoing rule to the facts of this case, the judgment should be set aside.

We recommend that the judgments of the Court of Civil Appeals and the trial court be reversed, and this cause be remanded to the district court for another trial.

CURETON, Chief Justice.

The judgments of the district court and Court of Civil Appeals are both reversed, and the cause remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


author: LEDDY, Judge. CURETON, Chief Justice.

text:
    SUPERIOR INCINERATOR CO. v. TOMPKINS et al.
    No. 1391-5998.
    Commission of Appeals of Texas, Section B.
    April 19, 1933.
    Burgess, Burgess, Chrestman & Brundidge and L. E. Elliott, all of Dallas, for plaintiff in error.
    J. J. Collins, A. A. Long, W. Hughes Knight, and H. P. I-Cucera, all of Dallas, for defendants in error.
   LEDDY, Judge.

The board of commissioners of the city of Dallas advertised for proposals for the construction of an incinerator plant. Relator was the lowest bidder for said work. His bid was duly accepted and he was awarded the contract for this improvement on April 15, 1929. By proper resolution adopted by said commissioners, the mayor pro tem. was directed to and did sign said contract for and on behalf of the'city.

On May 1, 1929, alter a change of administrations, the new board of commissioners conducted an investigation as to the advisability of building this incinerator plant. After such hearing, on June 5,1929, the board by a resolution determined that there was no need for the construction of such plant and ordered rescinded all of the orders upon which the contract with relator was predicated.

The city auditor, acting under direction of the city officials, refused to countersign the contract for this improvement. Thereupon relator instituted this proceeding in the district court against the auditor, in which it sought the issuance of a varit of mandamus to compel him to countersign said contract.

The relief prayed for was denied by the trial court and its judgment was affirmed by the Court of Civil Appeals. This writ of error has been granted to determine whether relator is entitled to issuance of the writ prayed for.

The only provision of the city charter as to the duties of the city auditor with reference to contracts of this nature are those contained in article XIV, section 42, which reads as follows: “No contract shall be entered into by the Board of Commissioners until after an appropriation has been made therefor, nor in excess of the amount appropriated, and all contracts shall be made upon specifications and no contract shall be binding upon the city unless it has been signed by the Mayor and countersigned by the Auditor, and the expense thereof charged to the proper appropriation ; and whenever the contract charged to any appropriation equals the amount of said appropriation, no further contracts shall be countersigned by the Auditor.”

After the contract in question had been awarded, the city could not lawfully rescind the same without the consent of the contractor. A contract is just as binding upon a municipal corporation as upon an individual. To determine that such a corporation may annul the obligation of its contract made with an individual would be to allow it a greater power than is possessed by the state which created it. “The right and liability of a city in letting contracts for public improvements,” says the court in Bailey v. Mayor, etc., of City of New York, 3 Hill (N. Y.) 531, 38 Am. Dec. 669, “are to be measured and determined by the same rules as govern individuals or private corporations. It cannot claim exemption or immunity from liability arising out of its contracts on account of its municipal capacity.”

While the city could not lawfully rescind the contract made by its award of this construction work to relator without his consent, it unquestionably had the power to abandon the proposed improvement. This abandonment, however, subjects it to liability for such damages as relator may sustain, provided he is able to establish that his contract has been made in conformity to the provisions of the city’s charter and ordinances governing the execution of such contracts. The action of the board of city commissioners in annulling all orders awarding the contract clearly constituted an abandonment of the improvement covered thereby.

It is a well-settled doctrine that a city has the power to abandon a proposed public improvement, even though in doing so it may breach a contract it has made therefor. In discussing this power the Supreme Court of Washington, in the case of Broad v. City of Spokane, 59 Wash. 268, 109 P. 1014, 1015, used this language: “That the city had power to abandon these proceedings at the time it did abandon them, we think there can be no question, even though such abandonment resulted in a breach of contract with the appellant. The power is deducible from the general powers of the city; in fact, from the power to proceed with the work. If this were not so, there could be no relief from improvident undertakings. The city could not, under the appellant’s view, abandon the work of constructing this sewer on the return of the assessment roll, even though it then discovered that the sewer would not when completed perform its functions and must be immediately destroyed. We cannot think that the city is thus helpless.”

Relator seems to entertain the view that no action for damages against the city could be maintained by it unless the city auditor has countersigned the contract between him and the city. When the city, through proper resolution of its governing body, declared its purpose to abandon the proposed improvement, the contract existing between relator and the city was breached. If relator is in position to establish the regularity of the proceedings upon which his contract is predicated, he has a right of action against the city for whatever damages he has sustained on account of the refusal of the city to perform the contract.

The question here involved is analogous to that presented under a contract where a tender of performance is essential to a plaintiff’s right of action. It is uniformly held that such tender is unnecessary where the opposing party has previously announced his complete repudiation of the contract. Matthews v. Caldwell (Tex. Com. App.) 258 S. W. 810; Norton v. White (Tex. Civ. App.) 16 S. W.(2d) 553; Young v. Watson (Tex. Civ. App.) 140 S. W. 840.

In the case of People ex rel. Lunney v. Campbell, 72 N. Y. 496, a mandamus to compel the commissioner of public works to enter into a contract with him for certain grading, etc., was denied. It appeared that relator was the lowest bidder for the contract and that his bid had been accepted and the contract awarded to him. The court held, how«ever, that the announced refusal of the commissioner to carry out the contract constituted a breach, for which an action for damages would lie, and that in such a case the remedy of mandamus was not available to compel the commissioner to execute the contract. In passing upon this question the court said: “ * * * and there appears to he no question that if the proceedings were all regular and conducted according to law as is asserted, and the relator has in all respects conformed to the provisions of the city charter, that he has a right of action against the city for all damages which he has sustained, ¾y reason of the refusal of the commissioner to execute and carry out the contract. No rule is better settled by the decision of the courts than that in such a case mandamus will not lie.”

A similar ruling was made in the case of People ex rel. Ryan v. Aldridge, Mayor, 83 Hun, 279, 31 N. Y. S. 920. The record in that case disclosed that the common council for the city of Rochester directed a committee to advertise for proposals for certain work and to let it to the lowest bidder, and directed the mayor to execute the contract. After relator’s proposal had been accepted, the council reconsidered its action and indefinitely postponed the matter. The court held that mandamus to compel the mayor to execute the contract did not lie, hut that relator’s remedy was by an action against the city for damages. The court very clearly points out the reason the remedy of mandamus could not be resorted to under such circumstances. -The court said: “It is very clear, we think, that the action cannot be maintained. The writ of mandamus to a public officer to compel the performance of a duty which rests in contract, merely, is in the nature of an action in equity for a specific performance of such contract, and specific performance cannot he compelled of a contract of the nature of that here in question. No person can be compelled, 'by any process of law, to prosecute any enterprise, undertaken for purposes of his own, beyond the point at which he sees fit to discontinue the undertaking; and if he has contracted with another person to do the work for him, and afterwards refuses to have it done, the contractee does not relieve himself from the obligation of the contract, but the remedy of the contractor is confined to his action of damages for its breach. The contract is not abrogated, but, in the nature of things, neither party can compel its specific performance by the other. The rule applies as well to bodies corporate and politic as to individuals, and even to the state, although against it no action for damages can be directly maintained.”

.A similar doctrine was announced in the case of Lord v. Thomas, 64 N. Y. 107, in which the court said: “The State cannot be compelled to proceed with the erection of a public building, or the prosecution of a public work at the instance of a contractor with whom the State has entered into a contract for the erection of a building or the performance of the work. The State stands, in this respect, in the same position as an individual, and may at any time abandon an enterprise which it has undertaken, and refuse to allow the contractor to proceed. * * * That a person who has employed another to perform labor may refuse to allow the other party to proceed, and that the latter cannot thereafter insist upon specifically performing the contract, was decided in Clark v. Marsiglia (1 Denio, 317, [43 Am. Dec. 670]).”

It is clear under all the authorities that the contract in question is one that cannot be enforced by specific performance. The city had the power to abandon the undertaking at any stage of the proceedings, even though the contractor had partially performed the contract. It is true that relator does not seek by this proceeding to compel the specific performance of the contract. Its action, however, is one to compel the performance of the execution of the contract. Inasmuch as the city has the power to abandon the undertaking with relator, and has seen fit to exercise such power, no right to enforce the execution of the contract exists. In the case of People ex rel. Ryan v. Aldridge, supra, a similar situation was presented. It was there determined that such performance could not be compelled by mandamus, and in so declaring the court made this observation: “We think that the principles thus stated are applicable to the case in hand, notwithstanding that the duty here sought to be enforced by mandamus is the execution, and not the performance, of the contract for the survey. * * * We have, then, the action of the committee in awarding the contract to the relator, binding upon the city because taken under the direction of its common council; but no further action on the part of the committee, enforceable by mandamus, because that direction has been revoked. The remedy of the relator, therefore, if any exists, is, as in the cases cited, by action for damages for bread! of the contract actually made, and not to compel the execution of a further contract which the city, by its common council, has decided not to enter into. We think the discretion of the court was properly exercised at,special term in the denial of the motion for a mandamus, and that the order should be affirmed.”

The charter provision requiring contracts of this nature to be countersigned by the auditor was designed to prevent the city entering into contracts for public improvements when sufficient funds were not available to pay the cost thereof. Since the city has declared its purpose to expend no funds whatever on the enterprise, the countersigning of this contract by the auditor could serve no useful purpose and would be but an idle ceremony.

The conclusion reached compels the recommendation that the judgment of the Court of Civil Appeals be affirmed, and it is so ordered.

CURETON, Chief Justice.

The judgments of the district court and Court of Civil Appeals are both affirmed, as recommended by the Commission of Appeals.


author: HARVEY, Presiding Judge. CURETON, Ohief Justice.

text:
    GUGGENHEIM v. DALLAS PLUMBING CO. et al.
    No. 1655-6114.
    Commission of Appeals of Texas, Section A.
    April 19, 1933.
    George T. Burgess, of Dallas, for plaintiff in error.
    J. L. Zumwalt, of Dallas, for defendants in error.
   HARVEY, Presiding Judge.

On March 16, 1927, C. R. Guggenheim conveyed to Carl Wolff a certain lot on Prospect street in the city of Dallas. The lot had a building on it. The deed execute'd by Guggenheim shows that the property was', conveyed subject to an outstanding lien there-described, and that the consideration for the-conveyance was $50 cash paid by Wolff, and the execution by the latter of his note for $3,200. To secure the payment of this note, the vendor’s lien was expressly reserved in the deed, and, in addition, a deed of trust on the property was executed by Wolff. Both, instruments were promptly recorded. The' deed of trust conferred on the trustee therein the usual power of sale. In December;. 1927, the note for $3,200 being unpaid, the> trustee duly sold the property in accordances with the terms and provisions of the deed! óf trust, and Guggenheim became the purchaser at such sale. In the meantime, Wolff had caused extensive repairs and improvements to be made on the building situated oni Said lot. The repairs and improvements so made became an integral part of said builff-ing, and are of such nature that same cannot be separated from the lot and building. Sa-. making such repairs and improvements,. Wolff became indebted to various material-men who furnished material for said work.. These materialmen fixed their liens against: the property in accordance with the statutes., They seek in the present suit to foreclose their said liens, -claiming that their liens were superior to the deed of trust lien of Guggenheim, and therefore were not affected by the foreclosure sale under the deed of trust. As basis for this claim of superiority for their liens, said materialmen alleged that ás part of the consideration for the conveyance of said property by Guggenheim to» Wolff, the latter agreed to make the repairs; and improvements in question. Over the objection of Guggenheim, the materialmen introduced parol testimony to show that such agreement was made as alleged; and from this testimony the jury found that such agreement was so made. There was nothing in the deed or the deed of trust to show that such an agreement was made. Upon the verdict of the jury, in the respect mentioned), the trial court gave judgment for the mate-rialmen and foreclosed their respective liens-on the property. The materialmen contend; that by requiring Wolff to make the agreement mentioned, as part of the consideration for the property conveyed, Guggenheim; subordinated his purchase-money lien to such liens as might thereafter become attached to the property, for material furnished Wolff for the making of the required repairs and improvements. The Court of Civil Appeals, 42 S.W.(2d) 268, as well as the trial court, sustained this contention. The Court of Civil Appeals further held that said material-men were strangers to the deed in question, and therefore were entitled to prove, by parol testimony, that the consideration therefor included the said agreement respecting said repairs and improvements. Whatever may be said regarding the holding of the Court of Civil Appeals as to the effect of an agreement of that sort, it is certain that parol testimony is incompetent to prove that such an agreement was made in the present instance. It is well settled that the contractual terms of a deed or other written instrument cannot be varied by parol testimony, where fraud, accident, or mistake is not involved. Cobb-Hollman Lumber Co. v. Leichty (Tex. Com. App.) 41 S.W.(2d) 18, and authorities cited. The status of the lien of Guggenheim, except in respect to the pre-existing outstanding lien mentioned in the deed, is in no wise qualified by any language appearing in the deed or deed of trust. According to the legal effect of the terms of those instruments, the status of Guggenheim’s lien was superior to that of the subsequent liens of the material-men. The materialmen propose to introduce into the instruments a contractual provision or term which is not there. This they cannot do by parol testimony. They are not strangers to said instruments. Whatever rights they acquired in the property were acquired in privity with Wolff. As lienholders under Wolff, they stood in privity with him, and are bound by the terms of the deed and deed of trust the same as Wolff or Guggenheim would be.

Another phase of the case, relative to the Prospect street lot, needs to be noticed. .Toe E. Lawther, a party to the suit, claims to hold' a lien on the property which he says was superior to the Guggenheim lien, and therefore was not affected by the foreclosure sale under the deed of trust. The facts in this respect are substantially as follows: Wolff, for the purpose of making said repairs and improvements on the property, borrowed $3,000 from the Liberty State Bank and executed a mortgage on the property to secure payment of his note for the $3,000. The borrowed money was used for the purpose for which it was borrowed. Lawther acquired the note and lien from the bank. 1-Ie alleged, and the jury found: (.1) That, about the time the loan was made to Wolff, Guggenheim represented to the bank that he (Guggenheim) had promised Wolff that when the improvements in question were completed, he (Guggenheim) would lend Wolff a sum of money sufficient to cover the cost of said improvements ; (2) that the bank relied on said representation in making the loan to Wolff; and (3) that Guggenheim failed to comply with his said promise to Wolff. Lawther contends that by virtue of these facts, Guggenheim became estopped to assert his prior lien as against the bank. We are unable to discover in the situation any reason for the application of the rules of estoppel to the extent claimed. It may be conceded that, in a proper case, Guggenheim would be estopped, as against the bank or its assignee, to deny that the promise to Wolff was made as represented. But we fail to see that in the present instance either the fact that such a promise was made to Wolff, or that same was breached by Guggenheim, would operate to estop the latter, as against the bank, from, asserting his superior lien against the property. There was no privity of contract between Guggenheim and the bank, respecting the proposed loan to Wolff. Nothing but equitable estoppel is relied on as displacing Guggenheim’s lien. In making the loan to Wolff, the bank necessarily relied on the assumption that Wolff, if he secured the promised loan from Guggenheim, would use part of the borrowed money to pay his note to the bank.

There is another lot and building involved in the case, but the questions relating to that property are materially the same as those which relate to the Prospect street property.

We recommend that the judgment of the trial court and that of the Court of Givil Appeals be reversed, and that judgment be here rendered for the plaintiff in error.

CURETON, Ohief Justice.

The judgments of the district court and Court of Civil Appeals are both reversed, and judgment rendered for the plaintiff in error, as recommended by the Commission of Appeals.


author: GRITZ, Judge. CURETON, Chief Justice.

text:
    HARRIS et al. v. WILLSON et al.
    No. 1652-6105.
    Commission of Appeals of Texas, Section A.
    April 19, 1933.

      Dallas C. Biggers, Roy W. McDonald, Burgess, Burgess, Chrestman & Brundidge, and B. E. Elliott, all of Dallas, and Frank Rawl-ings, of Fort Worth, for relators.
    Collins & Houston, of Dallas, for respondent Houser.
   GRITZ, Judge.

The opinion of the Court of Civil Appeals in the case here sought to be certified is reported in Houser v. Harris, 44 S.W.(2d) 784, and we refer to it for a detailed statement of its facts and issues.

Simply stated, Juanita Harris sued Ed Sproles and John Houser, and in her petition alleges that, while she was riding in an auto operated by John Houser and being driven along a public road in Wise county, Tex., and while Houser was attempting to pass a track belonging to Ed Sproles, she was injured as a result of the separate negligent acts of both Houser and Sproles. Miss Harris sued both Houser and Sproles in the same suit in the district court of Tarrant county, Tex., on the theory that, because she had venue as to the defendant Sproles, who lives.in Tarrant county, Tex., she also had venue as to the defendant Houser, who lives in Wichita county, Tex. Venue thus claimed is asserted under subdivision 4 of article 1995, R. C. S. 1925, and subdivision 29a added to the same article by Acts First Called Sess. 40th Leg. (1927) p. 197, c. 72 (Vernon’s Ann. Civ. St. art. 1995, subd. 29' (a).

The defendant Sproles, who resides in Tar-rant county, answered the plaintiffs’ petition, and also filed cross-action against Houser. The cross-action pleads that Sproles was a passive wrongdoer, and Houser an active one. Also the cross-action seeks relief for Sproles against Houser under the provisions of article 2212, R. O. S. 1925.

Houser answered both the main action and. the cross-action by separate pleas of privilege, and asked that the suit as affecting- him be transferred to Wichita county, Tex., the county of his residence.

The case was heard on the pleas of privilege alone in the district court and both pleas overruled. On appeal by Houser to the Court of Civil Appeals, the judgment of the district court was reversed, and the cause remanded, with instructions to the trial court to order the transfer of the cause, including the cross-action, so far as against Houser, to the proper court of Wichita county, Tex., the county of Houser’s residence.

In its opinion the Court of Civil Appeals finds and holds that Miss Harris’ injuries resulted from acts of negligence amounting to a tort committed by. both of the above-named parties, but that Houser and Sproles in committing the tort, were acting, not jointly upon concert of action, or by simultaneous wrongful acts, or with community of legal responsibility, but separately and for .themselves alone, and without legal obligation to each other.

The Court of Civil Appeals then holds in -Slfect that Miss Harris cannot maintain an action for damages for personal injuries arising out of the above transaction against Houser in Tarrant county by joining him as a party defendant with Sproles.' In this connection the Court of Civil Appeals holds that ordinarily in negligence actions joint tort-feasors may be joined as defendants in the same suit at the will of the plaintiff, but that there cannot be, as respecting venue, proper joinder of several persons as defendants for pure tort where the persons committing the tort were acting as Houser and Sproles were acting as found above. We understand this is the effect of the holding of the Court of Civil Appeals, both in its original opinion and its opinion on rehearing.

Miss Harris and Sproles duly presented ffheir motion for rehearing to the Court of Civil Appeals, which was overruled. They :them presented their motion to certify to the (Supreme Court. The motion to certify contended that the holding of the Court of Civil Appeals was in conflict with 27 opinions of the Supreme Court and Courts of Civil Appeals. The cases cited in the motion as conflicting are the following: Cobb v. Barber, 92 Tex. 309, 47 S. W. 963; Richardson v. D. S. Cage Co., 113 Tex. 152, 252 S. W. 747; Bowers v. Bryant-Link Co. (Tex. Com. App.) 15 S.W.(2d) 598; Wool Growers’ Central Storage Co. v. Edwards (Tex. Civ. App.) 10 S.W.(2d) 577; First State Bank v. Hill (Tex. Civ. App.) 2 S.W.(2d) 1023; People’s State Bank v. National Bank (Tex. Civ. App.) 267 S. W. 992; Alexander v. Alexander (Tex. Civ. App..) 265 S. W. 1072; Childress v. Brooks (Tex. Civ. App.) 265 S. W. 224; First State Rank v. Rice (Tex. Civ. App.) 251 S. W. 284; Scott v. Cassidy Southwestern Commission Co. (Tex. Civ. App.) 240 S. W. 1041; Waxahachie Nat. Bank v. Sigmond Rothschild Co. (Tex. Civ. App.) 235 S. W. 633; White v. Alexander, 62 Tex. Civ. App. 512, 131 S. W. 437; Cardwell v. Masterson, 27 Tex. Civ. App. 591, 66 S. W. 1121; Dublin Cotton Oil Co. v. Robinson (Tex. Civ. App.) 50 S. W. 1054; Harper v. Winfield State Bank (Tex. Civ. App.) 173 S. W. 627; Behrens Drug Co. v. Hamilton, 92 Tex. 284, 48 S. W. 5; Burt & Co. v. Spearman (Tex. Civ. App.) 19 S.W.(2d) 96; Carlisle v. Frost-Llewellyn Lumber Co. (Tex. Civ. App.) 196 S. W. 733; Cotton Concentration Co. v. First National Bank (Tex. Civ. App.) 245 S. W. 118; Fuqua v. Shaw, 119 Tex. 325, 29 S.W.(2d) 319; Kunz W. Ragsdale (Tex. Civ. App.) 200 S. W. 269; Mercantile Bank & Trust Co. v. Schuhart, 115 Tex. 114, 277 S. W. 621; Miller v. Bush, 119 Tex. 53, 24 S.W.(2d) 23; Oakland Motor Car Co. v. Jones (Tex. Civ. App.) 29 S.W.(2d) 861; Oxsheer v. Watt, 91 Tex. 402, 44 S. W. 67; Penix v. Davis (Tex. Civ. App.) 265 S. W. 718; Ward Farming Co. v. Searcy (Tex. Civ. App.) 257 S. W. 653.

The 'Court of Civil Appeals overruled the motion to certify, and this proceeding followed as an original application for mandamus’ in the Supreme Court to compel certification of certain questions relating to the correctness of the above holding of the Court of Civil Appeals.

At this point we deem it expedient to say that the right to the mandamus herein sought is claimed under the provisions of article 1855, -R. C. S. 1925. The article reads as follows: “Where a decision of a Court of Civil Appeals is in conflict with an opinion rendered by the Supreme Cburt of Texas or by some othel Court of Civil Appeals in this State on any question of law, and such Court of Civil Appeals refuses to concur with the opinion rendered by the Supreme Court or such Court of Civil Appeals, the court refusing to concur with the conflicting opinion shall transmit the question of law involved in the cause wherein said conflict of opinion has arisen, duly certified, together with the record or transcript in such cause, to the Supreme. Court for adjudication by the- Supreme Court.”

Before deciding whether the mandamus herein sought should be granted, we deem’it advisable to state certain rules governing mandamus actions under the foregoing article. Such rules are as follows:

First. The Supreme Court will not grant a mandamus to compel a certification under the above statute on an issue of conflict, unless the mandamus is sought in a case in which the jurisdiction of the Court of Civil Appeals is final. In other words, the action for mandamus will not lie in a case over which the Supreme Court has jurisdiction on appeal by writ of error.

Second. The Supreme Court will not grant a mandamus to compel certification under article 1855, supra, simply because it disagrees with the ruling of the Court of Civil Appeals, or believes such ruling is erroneous. In this connection, it is held that an apparent inconsistency in the principles of law announced, or in the application of recognized principles of law, is not sufficient to justify a mandamus under this statute. The ruling must be so far under a similar state of facts that the decision of one case is necessarily conclusive upon the other. This .means that the facts in issue, which are involved in the particular ruling in each of the two cases, must be materially the same in both cases, and the decision in one case as to the legal effect of the facts therein must be contradictory of the other. Layton v. Hightower, 118 Tex. 166, 12 S.W.(2d) 110; Jones v. Hickman (Tex. Com. App.) 48 S.W.(2d) 982. These two cases review the decisions of the Supreme Court and announce the now settled rule on this question.

Third. The application for the mandamus should certainly conform to the well-established rules of pleading, and should therefore definitely and concretely state the facts and holding of the ease wherein the mandamus is sought, and then cite the case or cases which the relator contends conflict therewith. The application should then definitely point out wherein the facts of the case or eases so cited are materially the same as the facts of the case involved in the mandamus and wherein the holding in such case or cases constitute conflicts.

It is apparent that the application in the case at bar comes within the first rule. This is because the appeal in the Court of Civil Appeals is from an interlocutory order of the trial court sustaining the pleas of privilege.

We are of the opinion that the application does not meet the requirements of the third rule for the following reasons: The application is accompanied by “Exhibits to Relator’s Petition For Writ of Mandamus.” This exhibit contains the motion in the Court of Civil Appeals for certification, and this motion contains the cases contended to be in conflict with the opinion in the case wherein certification is here sought. The application itself contains no citation of cases alleged to be in conflict. If we consider the application for certification in the Court of Civil Appeals as a part of the application for mandamus in this court, still there is no definite pointing out of the conflict but merely . a statement of the ruling of the Court of Civil Appeals in the case here involved substantially as already stated by us and then the statement, “whereas the Supreme Court and Court of Civil Appeals have in many instances held that the plaintiff was entitled to join in a case brought in the county of the residence of one defendant, all proper parties defendant to said suit, among which authorities are the following: [Then follows a list of the above-cited eases.]” There is no effort to state the facts of the cases cited or to point out the conflict further. We think this fails to meet the third rule above.

Finally, in spite of the fact that we hold the application insufficient in the matter just pointed out, we have taken the time to carefully examine and read all the above-cited opinions, and find that all of them involve facts so utterly foreign to the facts of the case in which mandamus is here sought that none of them can be said to constitute conflicts within the meaning of the terms of the second rule above announced.

It is out of the question for us to extend this opinion to the length of discussing all of the 27 cases contended to be in -conflict with the case in which the mandamus is here sought, but the first case, Cobb v. Barber, supra, is as near a conflict as any of the others. That case, in so far as any venue question was presented, simply involved the right of the holder of a .promissory note secured by chattel mortgage on cattle to sue those who were alleged to have wrongfully converted the mortgaged cattle under the peculiar facts of that case out of the county where they resided, where the maker of the note was also a party defendant to the suit, and the suit was filed in the county of his residence. This statement of that case demonstrates that its facts are not materially the same as the facts of the case in which certification is here sought. As above stated, the other cases are no nearer in point.

We recommend that the application for mandamus be dismissed.

CURETON, Chief Justice.

The opinion of the 'Commission of Appeals is adopted, and mandamus refused.


author: CRITE, Judge. OURETON, Chief Justice.

text:
    ELLIOTT et al. v. WALLACE et al.
    No. 1659-6122.
    Commission of Appeals of Texas, Section A.
    April 19, 1933.

      F. A. Taylor, of Henderson, and P. A. Sanders, of Nacogdoches, for plaintiffs in error.
    Dee G. Carter and John M. Tipps, both of Dallas, for defendants in error.
   CRITE, Judge.

This suit was filed in the district court of Rusk county, Tex., in the form of trespass to try title, and to partition a tract of 81⅛ acres of land in Rusk county, Tex.

It is shown by the record before us that in the year 1865 William Cooper was married to Martha Elliott, then a widow. The land in dispute in this suit was conveyed for a cash consideration to William Cooper by one Cornelius Cooper on March 24, 1S66. Under the record before us, it was the community property of William Cooper and his said wife, Martha Elliott Cooper.

Síartha Elliott Cooper died in 1898. The husband, William Cooper, died some nine years later, in 1907.

It is shown by the record that S. D. Elliott et al., who were the plaintiffs in this suit in the district court, and the appellants in the Court of Civil Appeals, and who are the plaintiffs in error here, are the children and heirs at law of Martha Elliott Cooper by her former marriage, and claim title to an interest in this land by reason of such heirship.

E. E. Wallace et al., .who were the defendants in the district court, and the appellees in the Court of Civil Appeals, and who are defendants in error here, claim title by mesne conveyances from one R. J. Blackwell to whom the land was conveyed by the children and heirs of William Cooper, deceased, which heirs were also the children and heirs of Martha Elliott Cooper, deceased, by her marriage to William Cooper.

Trial in the district court resulted in an instructed verdict for E. E. Wallace et al. Judgment was entered accordingly. S. D. Elliott et al. appealed to the Court of Civil Appeals, which court in all things affirmed the judgment of the district court. 42 S.W.(2d) 1058. S. D. Elliott et al. bring error.

The record in this case shows that the deed from Cornelius Cooper to William Cooper was to him alone. The title thus acquired, nothing appearing to the contrary, belonged to the community estate of William and Martha Elliott Cooper. Article 4619, R. C. S. 1925. However, as held by the Court of Civil Appeals, the deed operated to vest William Cooper with the legal title, while the title of Martha Elliott Cooper was an equitable one to an undivided one-half interest. Mitchell v. Schofield, 106 Tex. 512, 171 S. W. 1121.

It is shown that after Martha Elliott Cooper’s death, the three children of her marriage with William Cooper conveyed their interests in this land to their father, William Cooper. He, however, did not dispose of it during his life time. This deed gave no notice of any equitable title in Martha Elliott Cooper.

After William Cooper’s death, the three children who had conveyed to their father in the deed just above mentioned conveyed this land to R. J. Blackwell. E. E. Wallace et al., defendants in error here, claim title by mesne conveyances from R. J. Blackwell.

Tire deed to R. J. Blackwell just mentioned contains the following statement:

“Know all men by these presents: That we, Cornelius Cooper & wife Ida Cooper, Mrs. Amanda Pierson, Sallie Worrell, joined by her husband, J. A. Worrell of the County of Rusk and State of Texas for and in consideration of Three Hundred Dollars to us in hand paid by Dr. R. J. Blackwell of Rusk County, Texas, the receipt of which is hereby acknowledged by us have Granted, Sqld and Conveyed, and do by these presents Grant, Bargain, Sell and Convey unto the said Dr. R. J. Blackwell, of Rusk County, State of Texas and to his heirs and assigns forever the following described tract or parcel of land, situated in the County of Rusk *and State of Texas, and described as follows:
“Being a part each of H. Henderson & R. H. Penny Headright surveys of - about 7 miles North West of Henderson and heretofore known as the Wm. Cooper homestead located on the H. Henderson and R. H. Penny headright surveys as fully described by metes and bounds in a deed from Cornelius Cooper Sr., to Wm. Cooper recorded in Book No, 43, pages 255 and 260 Records of Deeds of Rusk County, Texas, and same is also described in Deed from Cornelius Cboper, Jr., Wm. Pierson and wife, Amanda Pierson and Sallie Worrell and -husband J. A. Worrell to Wm. Cooper, recorded in Book No. 54 pages 3 & 4 Records of Deeds of Rusk County, Texas, wherein said -last named parties conveyed their ½ undivided interest in and to said aforesaid tracts of land acquired through the wife of said Wm. Cooper vdio was deceased at the time of said latter conveyance and who was the mother of Cornelius Cooper, Jr., Mrs. Amanda Pierson and Mrs. Sallie Worrell which said metes and bounds included 1'77¾ acres of land but after deducting the quotas sold off said tracts by Wm. Cooper to Worrell and wife Sallie Worrell, leaves a balance remaining of said tracts of 82½ acres more or less which is intended to be conveyed and is conveyed by this transfer and deed.”

From the statement we have made, it is evident that the record title of E. E. Wallace et al. depends on the deed to R. J. Blackwell, and that such deed is directly in their chain of title.

Under the above record, the Court of Civil Appeals holds: “ * * * The legal title being in William Cooper, and the title in Martha Elliott Cooper to an interest in the land being an equitable one only, the burden was on appellants to show that the purchasers of the legal title in William Cooper were not innocent purchasers within the meaning of the law, and as such entitled to protection as against the equitable title asserted -by them (appellants). Ferguson v. Dodd (Tex. Civ. App.) 183 S. W. 391. It follows that, if appellants did not discharge such burden, the trial court had a right to say they had failed to make the case they relied on for relief and to instruct the jury as he did and on their verdict render the judgment he did render, without respect to whether the defenses interposed by appellees to the recovery sought against them were established or not. We have not been referred to, and have not found in the record sent to this court, evidence showing that either R. J. Blackwell, to whom heirs of William Cooper conveyed the land, R. F. Crowley, to whom Blackwell conveyed it, E. B. Alford, to whom Crowley conveyed it, C. H. Gilstrap, to whom Alford conveyed it, W. G. Thrasher, to whom Gil-strap conveyed it, or apjjellees, to whom Thrasher conveyed it, did not occupy the position of. an innocent purchaser for value without notice of the equitable title in Martha Elliott Cooper to an interest in the land.”

We agree with the rule of law announced by the Court of Civil Appeals that the burden in this case rested on the plaintiffs in error to show that R. J. Blackwell and those holding under him were not innocent purchasers within the meaning of the law. In other words, the burden was on S. L. Elliott et al., who are asserting title solely as heirs of Martha Elliott Uooper, to charge R. J. Blackwell with notice of the outstanding equitable title of Martha Elliott Cooper, but we do not agree with the holding of the Court of Civil Appeals to the effect that there is no evidence in the record showing such notice. On the other hand, we think the deed to R. J. Blackwell, which is directly in the chain of title of defendants in error, conclusively, and as a matter of law, charges R. J. Blackwell and those holding under him with notice of the outstanding equitable title of Martha Elliott 'Cooper, deceased. We think a casual reading of the deed will support this conclusion. In this connection, we call attention to the fact that the above deed expressly refers to the deed made by the joint heirs of William Cooper and Martha Elliott Cooper to William Cooper above mentioned, giving the book and page of its rec-ordation. The above deed then, in plain language, tells the grantee R. J. Blackwell that William Cooper, deceased, had a wife, then also deceased, who had a one-half interest in the land at the time of her death. We hold that such statement charged R. J. Blackwell and those holding under him with notice of the outstanding equitable title of Martha Elliott Cooper, deceased, and this as a matter of law. This is the question on which the writ was granted.

In addition to the defense offered by the defendants in error, already’discussed by us, and decided against them, they also, by proper pleadings in the district court, claimed title to this land by force of both the 5 and 10-year statutes of limitation. Articles 5509 and 5510, R. C. S. of Texas 1925.

The Court of Civil Appeals did not pass on such limitation questions, because, under its holding, it was not necessary to do so. With the case in this condition, it now becomes our duty to pass on the law questions involved in these limitation issues.

As already noted, the deed from the joint heirs of William and Martha Elliott Cooper to R. J. Blackwell was executed on October 24, 1907. It was recorded on the same day. This deed purports oh its face to convey the entire title. We gather from the transcript that the suit was filed in the district court on March 22, 1930. No issue of minority is involved. The record before us shows conclusively that R. J. Blackwell'and those holding under him have had actual, peaceable, and adverse possession of this land cultivating, using, and enjoying the same during all the time from, the execution and delivery of the above deed to the filing of this suit. Also they have paid taxes on such land during all this time. Furthermore, the record shows that the land has been under fence during all this time. We can hardly conceive of facts m©re conclusively showing title by both the .5 and the 10-year statutes of limitation.

In connection with the above, we have noted that one of the heirs of Martha Elliott Cooper by her first marriage lived on the above land about 1920, but this fact does not affect the limitation title because he went on the land after title by both the 5 and the 10-year statutes of limitation had fully accrued, and also he went thereon as the acknowledged tenant of a holder of the title' under the R. J. Blackwell chain.

Because we are of the opinion that the record before us shows title by limitation in E. E. Wallace et al., we recommend that the judgment of the Court of Civil Appeals and the district court be both affirmed.

OURETON, Chief Justice.

The judgments of the district court and Court of Civil Appeals are both affirmed, as recommended by the Commission of Appeals.


author: LEDDY, Judge. CTJRETON, Chief Justice.

text:
    BRIGHTMAN, Sheriff, v. SHEPPARD, Comptroller.
    No. 1426-6055.
    Commission of Appeals of Texas, Section B.
    April 19, 1933.
    F. O. Jaye, of De Leon, for relator.
    James V. Allred, Atty. Gen., and Everett L. Looney and W. N. Sands, Asst. Attys. Gen., for respondent.
   LEDDY, Judge.

This is an original mandamus proceeding. The only question presented for determination is whether a duly qualified and acting sheriff, who has been commissioned by the Governor of this state to return a fugitive from another state, is entitled, under the provisions of article 1030, Code of Criminal Procedure, 1925, to the mileage therein provided for his services in going to the state line and returning from such point with said fugitive.

A decision of this questioñ turns upon a proper interpretation of subdivision 4, art. 1030, Code of Criminal Procedure, construed in connection- with articles 1005 and 1006 of the Code of Criminal Procedure of 1925.

Subdivision 4 of the first article reads as follows: “For removing a prisoner, for each mile going and coming, including guards and all other expenses, when traveling by railroad, ten cents; when traveling otherwise than by railroad, fifteen cents; provided, that when more than one prisoner is removed at the same time, in addition to the foregoing, he shall only be allowed ten cents a mile for each additional prisoner.”

The latter articles provide:

“Art. 1005. When the Governor deems it proper to demand a person who has committed an offense in this State and has fled to another State or territory, he may commission any suitable person to take such requisition. The accused, if brought back to the State, shall be delivered up to the sheriff of the county in which it is alleged he has committed the offense.
“Art. 1006. The officer or person so commissioned shall receive such compensation only as the Governor shall allow for such service, to be paid out of the State treasury upon a certificate of the Governor reciting the service rendered and the allowance therefor.”

Article 1006 as it appeared in the Revised Criminal Statutes of 1911 (Code Cr. Proc. art. 1102) read as follows: “The person commissioned by the governor to bear a requisition for a fugitive from justice to another state or territory shall be paid out of the state treasury, a reasonable compensation for his services to be paid upon the certificate of the governor specifying the services rendered and the amount allowed therefor.”

It is the relator’s contention that in going after and returning the fugitive held by the authorities of the state of Montana, he was acting in a dual capacity, that of sheriff and the duly commissioned agent of the governor ; that inasmuch as he served upon the prisoner, when he entered the state at Tex-line, a capias issued under an indictment, he is entitled to the mileage going to and returning from said point which is provided in article 1030; and that for his services in traveling from said point to the state of Montana and returning he can be compensated only by such allowance as may be made by the Governor of the state.

It is the contention of the respondent, through the Attorney General, that when a sheriff or Other person has been commissioned by the Governor as an agent for the purpose of returning a fugitive from another state, the amount of compensation allowable for such service is controlled solely by the provisions of article 1006; that is, such sum as may be determined by the Governor.

A review of the legislation upon this subject compels the conclusion that respondent’s position is sound and must be sustained.

Subdivision 4 of article 1030 appeared in the Revised Code of Criminal Procedure of 1911 as subdivision 5 of article 1130. It read as follows: “For removing a prisoner, for each mile going and coming, including guards and all other expenses when traveling by railroad, ten cents; when traveling otherwise than by railroad, fifteen cents; provided, that when more than one prisoner is removed at the same time, in addition to the foregoing, he shall only be allowed ten cents a mile for each additional prisoner; provided further, that when an officer goes beyond the limits of the state after a fugitive, on requisition of the governor, he shall receive such compensation as the governor shall allow for such services.”

From the date of its enactment up until 1927 the above provision was construed by the comptroller of this state as authorizing him to allow an officer wlm had been commissioned by the Governor to return a fugitive from another state to collect the mileage provided therein, while traveling to and from the state line. We think this was a correct interpretation of the law upon the subject as it existed prior to the adoption of the Revised Code in 1925. The language of the statute in force prior to said date that, “when an officer goes, beyond the limits of the state after a fugitive * * * he shall receive such compensation as the governor shall allow for such services,” refers to the services in going to and returning from the state line to the point where the fugitive is taken into custody of the officer. In other words, the provisions of article 1130, C. C. P. 1911, as well as the amending act of 1923, specifically, allowed the sheriff mileage for conveying a prisoner between any point within this state, and the proviso thereto had reference only to his services in going beyond and returning to the state line with a prisoner. The fees provided in said article for the sheriff covered the former services, while the proviso fixed compensation for the latter.

The Legislature in 1923 (Acts 1923, c. 181) re-enacted article 1130 with its proviso in the identical language it contained when a part of the Code of 1911. If such proviso had been retained in the revision of the Code in 1925, and no change had been made in article 1006, relator’s position would be unassailable. A substantial change, however, was made by the Legislature in adopting the revised Code of 1925. The proviso contained in the act of 1923 was eliminated' and article 1006, which had theretofore provided for “reasonable compensation” for the person so commissioned, was changed by the codifiers by making it apply to the “officer” as well as a person commissioned by the governor and both were confined to “such compensation only” for the services rendered as might be determined by the Governor. These articles seem to have been designed to completely cover the subject of compensation for services rendered by an officer or person commissioned by the Governor to return a fugitive from justice to this state. Article 1005 authorizes the Governor to commission any suitable person to go to another state for the purpose of returning a fugitive from justice. The person appointed may be an officer or he may be a private citizen. Article 1006 in plain and specific terms stipulates that “the officer or person so commissioned shall receive such compensation only as the Governor shall allow for such service.’’ The services referred to in this article are not the limited services covered by the proviso of the act heretofore referred to; that is, while traveling beyond the state line. It has reference to the entire services of the agent in performing the delegated task. In language too clear to admit of doubt it is provided that for “such services” the only compensation which the officer or person shall receive is that which may be determined by the Governor.

The act of the codifiers of 1925 in eliminating the proviso contained in the act of 1923 and substituting in lieu thereof article 1006, with the change heretofore referred to, when adopted by the Legislature, manifested an unmistakable intention upon the part of the lawmaking body to require an officer or other person performing the services of returning a fugitive from justice from another state, under commission from the governor of this state, to look alone for compensation to the provisions of article 1006.

We recommend that relator’s petition for mandamus be denied.

CTJRETON, Chief Justice.

The opinion of the Commission of Appeals is adopted, and the mandamus refused.


author: LEDDY, Judge. . CÜRETON, Chief Justice.

text:
    CITY OF PAMPA v. TODD et ux.
    No. 1423-6046.
    Commission of Appeals of Texas, Section B.
    April 19, 1933.
    Cook, Smith, Teed, Sturgeon & Wade, of Pampa, for plaintiff in error.
    W. M. Lewright, of Pampa, and Ben Baldwin, of San Diego, for defendants in error.
   LEDDY, Judge.

This suit was brought by defendants in error to recover damages from plaintiff in error on account of the death of their daughter, Mickey, a young girl 17 years of age. Her death was alleged to have resulted from the negligence of plaintiff in error in leaving an open ditch on one of its streets unguarded and without warning lights.

The case was submitted to a jury upon special issues, which were answered favorably to defendants in error. Judgment was entered in their favor against plaintiff in error in the sum of $6,900. The case was appealed to the Court of Civil Appeals [39 S.W.(2d) 636], with the result that the judgment of the trial court was affirmed.

The Court of Civil Appeals refused to sustain an assignment complaining that the verdict of the jury was excessive. Notwithstanding this holding, the verdict, when considered in the light of all the facts, is a large one. The parents of the deceased were past 50 years of age. It is shown that this young girl had for the past year been working as a waitress in various restaurants. The amount of her compensation in such employment is not disclosed. When she had employment, she contributed $5 per week to the support of her parents. When not employed at her regular vocation, she assisted them in the performance of household and various other duties.on the farm. It is shown that this case has been tried three times. The amount awarded on this trial is practically double the amount of the verdict on the first trial, and $1,900 in excess of that rendered upon the second trial.

The facts relied upon to support the amount of the verdict rendered by the jury are stated preliminary to our consideration of plaintiff in error’s complaint of improper conduct and argument engaged in by one of the attorneys for defendants in error during' the trial of this case. It is claimed that such improper conduct and argument prejudiced plaintiff in error’s rights so as to prevent it obtaining a fair consideration of its defenses at the hands of the jury.

The testimony discloses that at the time Mickey Todd was killed she was riding in a Ford coupé with her sister, Della, and two gentlemen. In returning from a dance some time after midnight the ear struck a ditch and turned over. Mickey Todd was killed and her sister Della injured and taken to the hospital. There was no testimony in the record showing that Della Todd had sued for and recovered ■ a judgment against the city for the injuries she received in this accident.

While the father of the deceased -was testifying as a witness in his own behalf he was asked to state whether or not his daughter Della was injured in this wreck. Counsel for plaintiff in error interposed an objection to this testimony. Thereupon the court asked defendants in error’s counsel upon what theory testimony with reference to the injury of Della Todd was admissible. In response to such inquiry, counsel for defendants in error made this statement in the presence and hearing of the jury, viz.: “The theory is that I expect to prove by this witness that the girl Della has been doing well to take care of herself because of the injuries received in the wreck; that she has already sued the city of Pampa for and got a judgment.”

Plaintiff in error promptly excepted to this language of counsel, and the court thereupon instructed the jury that the statement of counsel was in the opinion of the court improper and that the jury should not consider it for any purpose in arriving at their verdict.

Plaintiff in error insists that the disclosure to the jury that the sister of the deceased had obtained judgment in a suit against the city of Pampa for injuries growing out of the identical state of facts upon which this suit is based was so prejudicial in character that it constituted reversible error, notwithstanding the admonition of the court to the jury not to consider it for any purpose. We agree with this insistence.

It is reversible error for a jury to be informed of the fact that the plaintiff in a case has recovered a judgment against the defendant upon a previous trial. Attaway v. Mattax (Tex. App.) 14 S. W. 1017; Atwood v. Brooks (Tex. App.) 16 S. W. 535; 38 Cyc. 1492; 2 R. C. L. 425, § 24.

We can see no distinction between such a case and one wherein it is shown that another party has recovered judgment against the defendant under the identical state of facts for which a judgment is sought in the case upon trial. Testimony of this character is reasonably calculated to deprive a defendant of a fair consideration by the jury of his defenses. The average juror considers it manifestly inequitable and unjust for one person to be awarded damages for an injury received in an accident and to deny another a recovery for an injury sustained in the same accident. The injurious effect of this character of testimony is frequently demonstrated in criminal cases, where the evidence shows that two parties are equally guilty in the commission of a crime. It is difficult to convict one of the defendants if the jury receives the information that, under the same state of facts, his codefendant has been theretofore acquitted.

Even though the court admonished the jury not to consider for any purpose 'counsel’s statement in this regard, the fact remains that each juror knew when deliberating upon a verdict in this case that the sister of the deceased had been awarded damages against plaintiff in-error for injuries sustained in the very accident in which Mickey Todd lost her life. If the jurors in their deliberations had reached the conclusion that defendants in error were not entitled to a verdict under the facts, they would have been placed in an awkward attitude in rendering such a verdict, as they would naturally be loath to return a verdict which they conscientiously believed to be unfair and unjust.

We'also sustain plaintiff in error’s complaint that this case should be reversed because of improper argument made by one of defendants’ counsel in the closing argument to the jury. During the course of said argument counsel made the following remarks:

“I have been on it (this case) about three years. You gentlemen have just been on it about three days. I don’t feel and cannot feel that my three yeai-s of labor is going to be lost here, although I well know that regardless of the verdict you gentlemen render, the size of it, or anything else, that the City of Pampa is going to appeal the case. I want to ask you gentlemen at the outset in considering this ease, to disregard that entirely. Whatever you see fit to allow us and I don’t care if it is fifty dollars, or seven thousand five hundred or five thousand dol-lai-s, or what it is, the City of Pampa is going to appeal it and keep these people out as long as they can. The evidence in this case shows that they have done it for three years, and I expect they will try to do it for another three years. * * *
, “I will say this, that I don’t think there is a m'an on this jury but what knows right down in his heart right now, that regardless as to how this Court has framed these questions, and they are all framed to you in accordance with the law, as to what is right and just about this matter — and the right and justice of it is that girl’s life should be paid for by the people of the City of Pampa — but, Gentlemen, remember that just as a sample of it, men, they have got the money to fight us with, and they ai'e doing it, and just as a sample of it, Gentlemen, they are paying this Reporter here right now to take down what I say that in the hopes that in my zeal and enthusiasm in this argument that I will say something to you they can go to the Court of Civil Appeals with — ”
“But, first, Gentlemen of the Jury, I want to get back to what I told you at the outset of my opening argument here. I say to you these questions were concocted for the protection of the corporations ■ and municipal corporations, and I will say to you again tliat the theory of submitting special issues was done for the protection of corporations and municipal corporations.
“With all due respect for Charlie (meaning one of the attorneys for defendant) I will say this right now, Charlie right now knows that these people should have a recovery in this case, knows it and has known it all along, hut for some reason or another the Mayor and City Commissioners won’t pay off, and they have done a pretty good job of it, but, Gentlemen, I will fight them until the lower regions freeze, and all I want is fairness and justice. * * ⅞
“Mr. Cook makes a great play out of the fact that all of those children other than these two practically appear to be worthless. Maybe they were, but there happened to be two of them who weren’t, and what happened to them—the eldest Della was ruined in this very wreck. ⅜ * *
“You don’t know when rheumatism is going to take this old father away; he might live until he is sixty, and he might live until he is eighty cramped up with rheumatism, and you don’t know when she will die. You may gamble that it may be five years, or it may be ten years or fifteen years, twenty-five or thirty years, but if you gamble on it, men, for God’s sake gamble on the side of justice, and give them the benefit of the doubt.”

The bills of exception presented to the alleged improper argument show that no objection was urged at the time this argument was made, or at any time before the filing of the plaintiff in error’s motion for a new trial. The court did not instruct the jury to disregard this argument or any part of it.

It is the general rule that a case will not be reversed on account of improper argument before a jury unless objection is interposed at the time the argument is made.

There is a well-recognized exception to the rule to the effect that a case will be reverse ed because of improper argument, even though no objection is interposed at the time, if the argument complained of is so plainly prejudicial that an instruction by the court to the jury not to consider the same would in all probability be of no avail. Gulf, C. & S. F. Railway Co. v. Greenlee, 70 Tex. 553, 8 S. W. 129; St. Louis & S. F. Railway Co. v. Green (Tex. Com. App.) 37 S.W.(2d) 123; Davis v. Hill (Tex. Com. App.) 298 S. W. 526; Houston & T. C. Railway Co. v. Rehm, 36 Tex. Civ. App. 553, 82 S. W. 526; Ft. Worth & D. C. Railway Co. v. Hays, 51 Tex. Civ. App. 114, 111 S. W. 446; Home Life & Accident Ins. Co. v. Jordan (Tex. Civ. App.) 231 S. W. 802; Prather v. McClelland (Tex. Civ. App.) 26 S. W. 657; Hewitt v. Buchanan (Tex. Civ. App.) 4 S.W.(2d) 169.

In the argument to a jury an attorney is allowed considerable latitude in drawing inferences and deductions from facts proven upon the trial. He will not, however, be permitted, under the guise of argument, to indulge in the use of prejudicial statements which are utterly foreign to the record. Such conduct is reasonably calculated to prevent the opposing party’s receiving a fair consideration of his pleas and the evidence adduced in support thereof. Justice cannot be properly administered unless cases are tried and decided upon the evidence adduced for the consideration of the jury. A verdict wrung from a jury through prejudicial statements by counsel, which are outside of the record and have no bearing whatever upon the real issues in the ease, operates to deny a party that fair and impartial trial which the laws of this state contemplate every litigant should receive.

All of the r emarks complained of are clearly beyond the bounds of legitimate argument. The statements made to the jury by counsel are not fair comments upon any proven facts, nor are they proper inferences or deductions from testimony given by any witness upon the trial of the case. The argument quoted needs no analysis to demonstrate its prejudicial character. This readily appears from a perusal thereof. 'It is reasonably apparent that an instruction by the trial court for the jury not to consider it would have been of no avail. The size of the verdict, when considered in the light of the meager facts proven on the measure of damages, very strongly indicates that the jury were probably influenced by the improper argument.

Plaintiff in error presents several complaints as to the admissibility of certain evidence. After a careful consideration of these assignments, we have concluded that they were properly disposed of by the Court of Civil Appeals, and it is not necessary that we further discuss them here.

We recommend that the judgments of the trial court and the Court of Civil Appeals be reversed and the cause remanded for another trial.

. CÜRETON, Chief Justice.

The judgments of the district court and Court of Civil Appeals are both reversed, and cause remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


author: LATTIMORE, Judge.

text:
    EMERSON v. STATE.
    No. 15795.
    Court of Criminal Appeals of Texas.
    April 5, 1933.
    T. B. Bartlett and J. C. Patterson, both of Marlin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for murder; punishment, seven years in the penitentiary.

There seems no question of the sufficiency of the facts. We think the learned trial judge to be commended for the careful conservation of the rights of the appellant shown by this record. When the case was called for trial, it was made to appear that there was a serious question as to the mental ability of the accused to aid, advise with, and assist his counsel in the trial. The trial court postponed the hearing for six weeks. When the case was again called for trial, it was again presented to the court that the mind of appellant had not sufficiently cleared up to enable him to sanely take an appropriate part in his trial. Thereupon the court directed an inquiry at the hands of a jury properly conducted for the purpose of ascertaining whether or not from the facts, in the judgment of a jury, the accused was of sound mind and able to proceed with his trial. The affidavit of insanity was made by a brother of appellant. The result of this investigation was a verdict of the jury that appellant was sane. Thereupon the case was called for trial, a trial was had, and a verdict of guilty returned.

We find in the record but one bill of exception which complains generally of the fact that the appellant was not mentally or physically able to defend himself properly, and of a refusal to continue the case for this reason. It appears that the application for continuance upon this ground was made after the investigation had before the jury of appellant’s mental condition, and after the verdict of the jury had been returned finding him of sound mind. The application for continuance sets out the various steps taken by the court in regard to the matter, as we have above substantially outlined. We find nothing in the application, or in support thereof, indicating that by a postponement of the case, or a continuance thereof, there would have likely been a betterment in the condition of the accused. We are of opinion the trial court was within his discretion in declining a further continuance. The state filed an affidavit denying that appellant was of unsound mind, and asserting that he was physically and mentally able to participate in his trial. Examining the court’s charge in connection with the other parts of the record, we find nothing to lead us to conclude that upon the trial of this case any plea of insanity was interposed. Under the merciful provisions of our statute one cannot be tried while in a condition of insanity, but in order to avail himself of any supposed error in putting him on trial while in such condition, there would have to be a plea interposed upon which an issue might be formed and a jury decision had. We find no ground for any exception to the court’s charge.

Believing no error appears in the record, the judgment will be affirmed.


author: CALHOUN, Judge.

text:
    SPIRES et al. v. STATE.
    No. 15572.
    Court of Criminal Appeals of Texas.
    April 5, 1933.

      Beall & Beall, of Sweetwater, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

The offense, theft of property over the value of $50; the punishment, two years in the penitentiary.

The record shows that the bill of indictment charged Alex Huffman, L. G. Spires, and Alvin Williams with the offense of theft of 62 sacks of cotton-seed cakes from J. E. Parker. Upon calling of the case for trial, the defendants Huffman and Spires filed their motion for severance as to the codefendant Alvin Williams, with the request that Williams be first tried, which motion was granted by the court and it was ordered that Williams he tried first. The district attorney then dismissed the case against Williams and the case went to trial against the appellants jointly.

It seems from the statement of facts in this case that J. E. Parker, the prosecuting witness, and the appellant Spires had lived near each other for about fifteen years and the appellant Spires performed occasionally different ranch work for the complainant Parker. It is undisputed that on or about the 27th day of December, 1931, the appellants Huffman and Spires, together with Alvin Williams, went to the complaining witness Parker’s ranch, known as the Buchanan ranch, in the nighttime and removed what is known as cotton-seed cakes from the ranch house owned by the complaining witness Parker in Ector county, and that they took it to the home of the appellant Spires; the state contending that 62 sacks of cotton-seed cake belonging to the complainant Parker were taken by the appellants. The taking! was not denied by either of the appellants, but they contended that they had only taken 50 sacks of the cotton-seed cakes. The appellant Spires claimed that Parker owed, him $50 balance on labor accounts and that Parker had agreed to give him 50 sacks of the cotton-seedi cake in payment of the debt and instructed him to go to Parker’s ranch and get same. Parker denied that he sold! the cake to Spires or that he gave his consent to Spires to get same. It was also contended by the appellants that Huffman and Williams, who owned the trucks used to haul the cotton-seed cake, were employed to haul the said cake by the appellant Spires, and the reason such hauling was done at night was that the trucks so used were engaged on the public highway then under construction between Odessa and Andrew and could be so used only when not engaged in work on said public road, and for that reason were used at night.

By bill of exception No. 5 appellants complain of the court permitting the state’s attorney to ask the appellant Spires, while he was testifying in his own behalf, on cross-examination, as to whether he had been under indictment for the theft of cattle. This evidence was clearly admissible for the purpose of impeachment. We quote from Branch’s Ann. P. O. § 167: “The defendant or any other witness, if the impeaching testimony is not too remote, may be impeached by the adverse party by proving by the] witness on cross examination that he had been indicted or convicted or that he is then under indictment for a felony or for a misdemeanor imputing moral turpitude. The judgment of conviction need not be produced when the object is only to impeach and not to disqualify the witness.” See Hamilton v. State, 74 Tex. Cr. R. 219, 168 S. W. 536; Keets v. State, 76 Tex. Cr. R. 384, 175 S. W. 149.

By bills of exception 12 and 13' the appellants complain that the state introduced in rebuttal the testimony of the sheriff G. E. Waldon, and also the testimony of Reeder Webb, sheriff of Ector county, to the effect that after the appellant Huffman had been arrested and while he was in their custody they asked the said Alex Huffman if he had hauled any cake for L. G. Spires, to which question the said Huffman replied that he never hauled any cake for anybody or let his truck out to the said L. G. Spires. The bills show that the appellants objected to said testimony when it was offered on the ground that the same was made at a time while the said Huffman was under arrest and was not provable against him because he was under arrest and it was hearsay as to the appellant Spires. The court qualified both of said bills of exception to the effect that on the direct examination of the witness Huffman he had testified as to a conversation, after he was arrested and the warrant was read to him, between bimself and the sheriff Walden, and on cross-examination the said Huffman was asked if daring the conversation testified about on his direct examination between himself and Walden at the defendant’s house shortly after the arrest, he had not denied to 6. E. Walden in the presence of Reeder Webb and Joe Hogan that he had ever hauled any cake for Spires, and the appellant Huffman answered that he did not think he had made any such statement; that this testimony was not objected to by the defense. The qualification of the trial court further shows that the defense did object before the testimony of the officers complained of was offered as to its being a conversation and statement made by the appellant Huffman while under arrest, but did not object to it on the ground that it was hearsay as to the appellant Spires, and said testimony was admitted by the court for the reason that the appellant Huffman theretofore on his direct examination had testified in eonsidei'able detail as to a conversation with Walden and had also stated on cross-examination without objection that hei did not think he denied to Walden ever having hauled cake for Spires.

It was admitted that at the time said statement was claimed to have been made the appellant Huffman had been arrested and was in the custody of the officers. This testimony was not admissible as original evidence under the facts set out, and not being admissible as original evidence on account of the appellant being under arrest at' the time, it was not admissible to impeach him. We believe that the admission of said testimony was hurtful to the appellant, as it tended to contradict not only the testimony of the appellant Huffman but also the defensive theory of both of the appellants. Under the qualifications of the trial judge to said bills, it appears that this testimony was allowed to be introduced to contradict and impeach the appellant Huffman’s testimony. We quote from Branch’s Ann. P. O. § 74: “Proof of a confession, or of statements or acts amounting to a confession, made while defendant is in custody or confinement, and which would not be admissible as original evidence, is not admissible to impeach him.” See, also, Walton v. State, 41 Tex. Cr. R. 454, 55 S. W. 566; Parker v. State (Tex. Cr. App.) 57 S. W. 668. The fact that the declarations were introduced for the purpose of impeaching the accused does not exempt them from the inhibition contained in the confession statute (Code Cr. Proc. 1925, art. 727). This has been specifically held in many cases. See Hernan v. State, 42 Tex. Cr. R. 465, 60 S. W. 766; Dover v. State, 81 Tex. Cr. R. 549, 197 S. W. 192; Holmes v. State, 100 Tex. Cr. R. 635, 273 S. W. 849; Morales v. State. 36 Tex. Cr. R. 234, 36 S. W. 435, 846; Brent v. State, 89 Tex. Cr. R. 544, 232 S. W. 845; Bailey v. State, 40 Tex. Cr. R. 150, 49 S. W. 102; Lightfoot v. State, 117 Tex. Cr. R. 515, 35 S.W.(2d) 163; Donohoe v. State, 115 Tex. Cr. R. 17, 27 S.W.(2d) 215.

For the error pointed out, the judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.