text:
    RAMIREZ v. STATE.
    No. 15048.
    Court of Criminal Appeals of Texas.
    March 22, 1933.

      Baker & Baker, of Coleman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is transporting intoxicating liquor ; the punishment, confinement in the penitentiary for one year.

The opinion delivered March 16, 1932, is withdrawn, and the following substituted therefor:

Two inspectors of the United States Immi-gratiqn Service, Border Patrol, situated at Del Rio, Tex., were returning from Eden to Paint Rock along a public highway. As they drove down the highway they saw appellant and another Mexican driving toward them. They waved at appellant and his companion in an endeavor to stop them, it being the intention of the officers to interrogate the parties with reference to their status as immigrants. Instead of stopping, appellant, who was driving the car, increased his speed and passed the officers. The officers pursued the parties for about half a mile. Finally, they drove in front of appellant’s ear and compelled him to stop. The officers asked one of the parties to get out of the car. At this point the officers had noticed nothing unusual about the automobile. As one of the Mexicans got out of the car, the officers saw a pistol and a half pint bottle of liquor on the front seat. Also they saw a clear glass gallon j.ug and a funnel in the back seat of the car. They testified that they smelled the odor of whisky about the car. Instituting a search, the officers lifted the seat and found seven and one-half pints of whisky in pint bottles. They carried appellant and his companion to Paint Rock and delivered them to the sheriff. The officers were not armed with a warrant of any character. They were wearing their regulation uniforms at the time" they made the search. At this juncture we quote, in part, the testimony of one of the officers, as follows:

“We stopped their car and made both of them get out. Up to the time we stopped them we had seen no whisky. * * * At that time we had run in front of the defendant in his qar and stopped' him. It was our object to interrogate the Mexicans with reference to their status as immigrants. That was our sole purpose in stopping them at that time.”

A physician testified that he had known appellant for about two years, and had treated him for an enlarged prostate gland.' He said appellant was passing pus, which led him to believe that he was suffering from an abscess. Under such circumstances, in passing urine, there was -intense pain, and in the treatment of such condition, whisky would relieve the pain. Witnesses for appellant testified they had known appellant for a number of years. They said that he was a farmer in Concho county, where he had lived since he was fifteen years of age. Further, they testified that appellant’s general reputation as a peaceable and law-abiding citizen was good. Appellant’s wife testified that appellant had never been convicted of a felony. Further, she testified that physicians had prescribed whisky for use by appellant in relieving his ailment. She said that since receiving such advice, appellant had been using whisky.

It appears affirmatively from their testimony that the immigration officers were not officers of the state of Texas, but were engaged in the immigration service of the United States, and were endeavoring to discover persons violating the alien law. Their purpose in commanding appellant to stop and get out of his car was with the view of ascertaining whether or not he was an alien. The point at which the occurrence took place was apparently in the neighborhood of 175 miles from the nearest point on the Mexican border. Ap•pellant and his companion were citizens of Honcho county and had been residents of that county for many years, although of Mexican birth or extraction. There is no suggestion • that the officers had any knowledge or information that the Mexicans were violators of the law in any particular.

This court is not well informed as to the custom sanctioned by the United States government with reference to the manner of procedure of immigration officers in detecting violators of the law. In correspondence with the officials of the Bureau of Immigration, we have been referred to the following quotation from an opinion of the Supreme Court of the United States, Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 283, 69 L. Ed. 543, 39 A. L. R. 790: “On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. * * * Travelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.”

In Carroll v. United States, supra, it is asserted that the search and seizure of an automobile in the absence of “probable cause,” as that term has been defined, is illegal, the court using the following language: “But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.”

From the testimony in the present case, it is made evident that the officers who searched the appellant’s car had neither information nor suspicion that it contained contraband goods, that is, that it contained intoxicating liquor. Their sole purpose, according to their statement, was to inquire as to the violation of the immigration laws of the United States. They had never seen appellant or his companion before. They had no information with reference to them. There was nothing in the conduct of appellant or his companion at the time they were accosted upon the road which is claimed to have given the officers any information upon the subject of law violation. When appellant and his companion were accosted, they declined to stop and were ultimately forced to stop by the action of the officers, who were th.e witnesses in this case. At the time they were stopped and at the time appellant was commanded to get out of the ear, the officers had no knowledge or suspicion, so far as the record shows, and no probable cause or belief that the car contained intoxicating liquor. Their discovery of the intoxicating liquor resulted alone from the search of the car. That the action of the officers detailed by them was illegal and was in the nature of an assault of appellant and his companion and putting them in restraint is not, in our opinion, open to serious question. As above stated, the only reason for the conduct of the officers, and apparently the only reason existing, was the fact that appellant and his companion were Mexicans, and that this was observed by the officers. As stated hereinabove, the scene of the transaction was in day time on the public road, in the county in which appellant lived and had lived practically all of his lifetime, where he was known as a reputable citizen accoi'ding to the undisputed testimony in the ease, and many miles from the border of the state. In the state of Texas are many Mexican citizens, nearly 700,-000 of them, according to’the latest United States census report. They are distributed in various portions of the state and are perhaps more numerous in the western portion. Many of them are natives of Texas and others are residents of long standing. That an immigration officer has authoxdty, upon the facts detailed in the present instance, to arrest and detain by force a citizen of the state upon no information of a law violation at the time except the fact that he is of Mexican descent is thought cannot be given legal sanction.

The inculpatory evidence' relied upon by the state having been obtained through an illegal arrest of appellant an(l search of the vehicle in which he was riding, its reception in evidence over the objection of appellant was error prejudicial to him. Under the circumstances, the recexxtion of the evidence was in direct opposition to the statutory law of the state set out in article 727a, C. C. P., as amended by Acts 1929, 2d Called Sess., c. 45, § 1 (Vernon’s Ann. C. O. P: art., 727a), in which it is declared that evidence obtained through an illegal seai-ch shall not be reefeived.

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.


source: Caselaw Access Project

author: LATTIMORE, Judge.

license: Public Domain

text:
    STELMAN v. STATE.
    No. 15700.
    Court of Ci’iminal Appeals of Texas.
    March 29, 1933.

      J. R. Anderson, of Center, John Henry Min-ton, of Hemphill, and O. S. Ramsey, of San Augustine, for appellant.
    Eloyd W. Eavidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for murder; punishment, ninety-nine years in the penitentiary.

Prom the testimony we judge appellant was a contractor, having a lot of teams, and that deceased was working for him. It was shown in the testimony that appellant was indebted to deceased several hundred dollars, and the inference is strong that deceased was trying to collect the debt. Appellant had tried to borrow the money from parties who testified.

Discussing the points raised in the order they appear in appellant’s brief, we observe that complaint is made of the admission of statements of appellant to one Burna-man, which statements were made while appellant was in jail, the objection being that he was unwarned, in custody, etc. The state’s claim was that all the statments were admissible- by reason of the fact that part of same were found to be true, and that same conduced to show appellant’s guilt. In the early case of Owens v. State, 16 Tex. App. 448, it is said that if but one fact he stated by the defendant while in custody, etc., which is in-culpatory of him and conduces to show his guilt, the whole confession will be admissible, if as a result of this statement this one fact be found to be true. We find the principle discussed at length in Weller v. State, 16 Tex. App. 208. The holding in the Owens Case, supra, is approved in Collins v. State, 20 Tex. App. 419; Torrence v. State, 85 Tex. Cr. R. 312, 212 S. W. 957, and others. Appellant insists .that all facts stated by him to Burnaman, which might be deemed inculpa-tory, had already been discovered at the time he made the statement. He is mistaken. Without enumerating or discussing all of the facts so stated, appellant told Burnaman that deceased was shot in the back of -the head with a shot gun. At the time this statement was made the body of deceased had not been dug from the place where appellant said he and Johnson put it. During that same day, and after Burnaman had gone from the jail to the point in the woods where the body of deceased was buried, it was exhumed, and it was then found that deceased had been shot in the back of the head with a shot gun. There may be other facts also found to be true, hut the one mentioned is enough to make admissible the whole of the alleged confession.

We see no error in the admission of the testimony as to tracks, under the facts in this case. Appellant was shown to have been a large man with some peculiarity in his gait, and witness NUgent said he knew appellant’s track. Another witness who had recently put a half sole on appellant’s shoe, thus identified appellant’s track. Johnson’s track was identified by reason of having a torn sole on one shoe. Witnesses testified to the softened condition of -the ground made so by recent rains, and that they saw Johnson and deceased start hunting, and saw them go into an old logging road leading into the woods, and in said woods, not far from sa'id road, the body of deceased was later found buried. They testified that soon after Johnson and deceased left going along said road appellant was seen going toward where said road entered the woods, carrying a shot gun. It was shown that that afternoon appellant bought ■two shot gun shells loaded with buck shot, from a witness, stating at the time that he wanted to go squirrel hunting. Upon witness observing that buck shot were not good to hunt squirrels with-, appellant said it did not make much difference as he was not much of a shot. It was also shown that that same afternoon appellant drove three miles over to an adjacent village and bought seven shot gun shells loaded with No. 8 shot; that he borrowed a shot gun, and after having thus obtained these articles he was seen going rapidly toward the old road down which Johnson and deceased had gone into the woods. The tracks of Johnson and deceased, followed by a larger track identified as that of appellant, which latter was observed often to be made in and upon the tracks of .the other two, were followed down to a point in the woods where the trampled condition and other indications testified to showed where men had sat down and where a whisky bottle was found, and some yards distant the body of deceased was later found covered with earth and so concealed by brush and loaves as to be difficult of location. In his statement made in jail appellant admitted that he was present when deceased was killed, and that he and Johnson buried the body the next morning, but he denied having fired the shot, or having known beforehand that Johnson was going to kill deceased.

The court below should have charged on circumstantial evidence. The only thing in this case upon which might rest a conclusion that the case was one of direct evidence, was the statement of appellant which was introduced by the state. In same, however, appellant told how he came to let Johnson have his shot gun, and said that as they were going through the woods Johnson told deceased to walk in front, and then without warning Johnson raised up the gun and shot deceased. Appellant said h,e did not know Johnson was going to do this, but on the contrary affirmed that Johnson had gotten the gun from him on the pretense of using it to shoot squirrels. It thus appears clear that the statement of appellant did not taire the case out of the rule of circumstantial evidence. There were many circumstances introduced by the state raising the inference that appellant had motive to remove deceased. Appellant and Johnson had been down in the same old road in the woods Monday before the killing Tuesday; Monday appellant and Johnson left a shovel near the point in the woods where the body of deceased was found buried; Johnson and deceased had only a 22 rifle when they went down this same road Tuesday afternoon; at a point not far from where the body was found buried Johnson and deceased sat down and waited until appellant came up with his shot gun. It was also in evidence that appellant came back to camp and told people there that he had sent deceased off td look for work in the oil fields, and that he was not coming back. The next morning appellant and Johnson were observed together by a witness who asked appellant what made him so hot, and appellant said he had been down in the woods with Johnson. This witness said he asked, appellant where deceased was and appellant informed him that he was supposed to be down near the railroad track. The indebtedness of appellant to deceased was shown. No motive on the part of Johnson for killing deceased is suggested in the record. However, the fact that appellant himself killed deceased, or that he aided or advised Johnson to kill him, or that he furnished any weapon, etc., was but an inference, and the court should have charged on circumstantial evidence under all the authorities.

The state in proving what appellant said to Burnaman drew out several statements, in effect, that Johnson did the shooting without connivance on appellant’s part. In such case the trial court in appropriate terms should have called the jury’s attention to this fact, and should have told them that unless it was shown by other testimony that this was not true, they should acquit; or else the court should have instructed the jury affirmatively on the defensive issue thus made by the state’s own testimony. The authorities seem to be all one way. Just why the state should put into the record the exculpatory parts of appellant’s alleged confession is not quite clear, but they did so. The court’s charge on the converse of principals is wrong. It was as follows: “If you find from the evidence that the defendant, Jim Stelman, alone, or acting together with Jess Johnson as a principal as the term principal has hereinbe-fore been defined to you, did not kill Guy Lucas as alleged in the indictment, or if you have a reasonable doubt thereof, you will find the defendant not guilty.”

However, we do not see how this could have harmed appellant.

Dor the error mentioned, the judgment is reversed and the cause remanded.


author: HAWKINS, Judge.

text:
    HORTON v. STATE.
    No. 15915.
    Court of Criminal Appeals of Texas.
    March 22, 1933.
    Shurtleff & Shead, of Longview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for unlawfully possessing a narcotic drug, punishment being two years in the penitentiary.

The indictment charges only that appellant possessed a. “narcotic drug,” without further designation of its kind or character. In Baker v. State (Tex. Cr. App.) 58 S.W.(2d) 534, and Baker v. State (Tex. Cr. App.) 58 S.W.(2d) 535, this day decided, similar indictments have been held fatally defective.

In section 171, title 21, Mason’s U. S. Code, vol. 1 (21 USCA § 171), the term “narcotic drug” is defined to mean “opium, coca leaves, cocaine, or any salt,-derivative, or preparation of opium, coca leaves, or cocaine.” The subsequent sections denounce as offenses and affix penalties for possessing and selling and otherwise unlawfully handling such “narcotic drugs.” It will be noticed that the statute is very similar to our own in the respects pointed out. Our attention has been called to no prosecution under the federal statutes where the pleader charged only the illegal use or handling of a “narcotic drug”; but in every instance tlie particular character of the drug was designated, such as opium, or by naming the drug and then averring that it was a derivative of some of the drugs specifically mentioned in the statute. Many indictments such as those designated have been held sufficient. See Sam Wong v. U. S. (C. C. A.) 2 F.(2d) 969; Charley Toy v. U. S. (C. C. A.) 266 P. 326; Wong Lung Sing v. U. S. (C. C. A.) 3 F.(2d) 780; Yip Wah v. U. S. (C. C. A.) 8 F.(2d) 478; Proffitt v. U. S. (C. C. A.) 264 F. 299; Foster v. U. S. (C. C. A.) 11 F.(2d) 100. The forms of indictments found in the cases cited are at least persuasive of what ought to be alleged in prosecutions under our statute.

The judgment is reversed, and the prosecution ordered dismissed.


author: CHRISTIAN, Judge.

text:
    BAILEY v. STATE.
    No. 15586.
    Court of Criminal Appeals of Texas.
    March 22, 1933.
    B. W. Smith and W. A. Anderson, both of San Angelo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin,-for the State.
   CHRISTIAN, Judge.

The offense is assault with intent to murder ; the punishment, confinement in the penitentiary for two years.

Yince Holt was a traffic officer in the city of San Angelo. Receiving a call from Bud Boyd, proprietor of a recreation club, he went to Boyd’s place of business. Appellant and Buddy Norris were in the back end of the building. Norris was drunk and appeared to have received some bruises. Addressing the parties, the officer said: “What is going on here?” Appellant replied that he (appellant) would take care of -Norris. The officer then said that he would take Norris in charge. At this jdneture, Norris said: “Let me get my coat.” • Norris’ coat was under a pool table. The officer reached down and picked it up in his left hand. There were two pints of whisky under the coat. «.Taking the coat in his right hand, the officer reached down and' picked up both bottles of whisky with his left hand. As he raised up appellant struck him. The first blow rendered him unconscious. Immediately after appellant struck the officer, a pairof brass knucks fell on the floor and rolled under a pool table. After the officer had fallen to the floor in an unconscious condition, appellant jumped on him and continued to beat him. A witness for the state testified that while appellant was beating the officer he (the witness) struck appellant several times and finally knocked him off of the officer. Two or three bystanders then held appellant and prevented him from continuing his attack. The state’s testimony was to the effect that, as appellant was pulled off of the officer, he said: “I hope that s- of a b-- on the floor dies.” Another witness testified that appellant addressed the officer as follows: “I hope you die you G-- d- s- of a b-.” Speaking to the witness who knocked him off of the officer, appellant said: “When I get out 1 am going to get you.” Further, there was testimony from witnesses for the state that, in referring to the officer, appellant said: “It is just another d-- ‘law.’ ’’ When officers approached the scene of the assault, appellant fled. Holt, the injured party, was carried to the hospital, where he was placed on the operating taible. It was discovered that he had a cut on his lip “through from the outside to the inside.” This cut was an inch long. He had a cut behind his ear, which went through to the scalp and down to the bone. This cut was about two and one-half inches long, and was ragged. Both eyes were bruised and black. Part of the -nose bones were broken. We quote from the testimony of the physician as follows: “As to the nose wound, we had to get on the inside and prize the bones apart and out to get them, lined up. * * * From my experience I would consider the nose and head wounds rather serious wounds; I have had quite a lot of experience with wounds of that nature. From my experience X will state to the jury that I do not think the wound on the head and wound on the lip could have been made by a bare fist. I treated Mr. Holt (the injured party) for quite a while — probably a couple of weeks in all before I discharged him. At the time I first saw Mr. Holt he was what I would call semi-conconscious— that means half way between. We would get him to do things. He could understand what we wanted but didn’t seem to thoroughly understand.”

The court submitted proper instructions covering assault with intent to murder and aggravated assault. Appellant insists that the conviction for assault with intent to murder cannot be sustained, his position being that the proof on the part of the state shows no higher grade of offense than an aggravated assault. We think the jury were warranted in reaching the conclusion that appellant intended to kill the injured party, and that, when interrupted by bystanders, he was making fair progress toward the accomplishment of his desire to kill. His action in striking the injured party with brass knucks, his persistence in continuing the assault after his victim had already become unconscious, his specific declaration that he hoped the injured party would die, and his flight when officers approached, were all circumstances which it was within the province of the jury to weigh in determining whether there was an intent to kill. The wounds were serious. If it was possible that death might have been inflicted by the weapon appellant used, and he intended to take life, though the weapon was not a deadly weapon, still he might be guilty of an assault with intent'to murder. Branch’s Annotated Penal Code, section 1587; Franklin v. State, 37 Tex. Cr. R. 113, 38 S. W. 802, 1016; Jackson v. State, 48 Tex. Cr. R. 648, 90 S. W. 34; Basquez v. State, 114 Tex. Cr. R. 602, 26 S.W.(2d) 206; Ludie Rose v. State (Tex. Cr. App.) 58 S.W.(2d) 526, opinion on motion for rehearing, this day delivered. It not being necessary to decide the question; we disclaim any intention of holding that brass knucks should be considered to be per se a deadly weapon.

Appellant contends that the state relied upon circumstantial evidence. We are unable to agree with this contention. The testimony was direct that appellant assaulted the injured party.

The judgment is affirmed.

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.


text:
    FREEMAN v. STATE.
    No. 15742.
    Court of Criminal Appeals of Texas.
    March 29, 1933.
    Clyde F. Winn and Y. L. Shurtleff, both of Longview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for assault with intent to murder; punishment being assessed at four years in the penitentiary.

In the indictment the name of the injured party was alleged to be Estelle Lavurn McCain. She testified that she and appellant had been married, but that she had secured a divorce from him; that he had made threats to kill her if she did not come back to him. Without setting out her testimony in detail, it is sufficient to say that it showed an unprovoked shooting of her by appellant, resulting in the infliction of a serious wound. No one was present when the shooting occurred, save the injured party and appellant. His evidence raised the defensive issue that prosecuting witness had the pistol in her possession and that appellant believed she intended to shoot either him or herself; that he seized the pistol to prevent either contingency, and in the struggle for the pistol it was discharged, resulting in the infliction of the wound. The court pertinently submitted this issue in a special charge.

Appellant briefs a complaint based on the overruling of an application for continuance. The point is not preserved by bill of exception, and under the uniform holding of this court the matter may not be considered. Branch’s Ann. Tex. P. C., § 304; Nelson v. State, 1 Tex. App. 41; Nothaf v. State, 91 Tex. Cr. R. 378, 239 S. W. 215, 23 A. L. R. 1374; Texas Jurisprudence, vol. 4, § 151, p. 211; Turner v. State, 109 Tex. Cr. R. 301, 4 S.W.(2d) 58.

The principal point arises from the contention that the state failed to prove the name of the injured party as alleged. She testified that her name was “Estelle Laverne McCain,” exactly as alleged. This was her maiden name. She also said she and appellant were married in 1925, and that she obtained a divorce from him in February, 1930'. She did not testify that in the divorce proceeding her maiden name was restored. She further testified: “I now go by the name of Estelle Laverne McCain. * * * My name is now Estelle Laverne McCain.” She denied that she had lived with appellant after she obtained her divorce. Evidence introduced by appellant showed that the prosecuting witness had, since she claimed to have obtained a divorce, introduced appellant as her husband; that she was known to several witnesses as “Mrs. Freeman,” and sent her laundry out under that name, and was known to some witnesses as “Jimmie Freeman.” She testified that the divorce suit was styled “Jimmie Freeman vs. Robert Freeman,” and was filed in Fort Worth. Appellant admitted that he had signed a waiver in a divorce proceeding and mailed it to prosecutrix, and that she had later told him she had obtained a divorce.

As we understand appellant’s contention, it seems to be that, in the absence of proof that prosecutrix’ maiden name was restored in the divorce proceeding, her name in law by virtue of her marriage would be Estelle Laverne Freeman, and therefore her name as averred in the indictment would not be supported by the proof. Based upon this contention appellant urges that the court should have directed a verdict of acquittal, or at least should have submitted the question of variance to the jury as a fact issue. The charge was excepted to for failure to submit the issue, and a charge upon the subject was requested, to the refusal of which appellant excepted. The special charge was as follows:

“If you believe that the name of the prosecuting witness is not Estelle Lavurn McCain, but that her name is Estelle Lavurn Freeman, you will acquit the defendant and say by your verdict ‘not guilty.’ And if you have a reasonable doubt as to whether her name is Estelle Lavurn McCain, you will acquit the defendant and say by your verdict not guilty.”

The court properly declined to instruct a verdict of not guilty, and we are of opinion no error was committed in declining to give the special charge. It was evidently predicated on an announcement in Freeman v. Hawkins, 77 Tex. 498, 14 S. W. 364, 19 Am. St. Rep. 769, to the effect that, when a woman marries the law confers on her the surname of her husband. The court there was dealing with the question as to whether a party sued under a certain name would be bound by a judgment entered on citation by publication of which suit defendant had no actual knowledge. We think the case has no pertinent application here. If the special charge had been given it would have furnished predicate for the argument that if prosecutrix had obtained a divorce, but that in the decree there was no order restoring her maiden name, then there would be a variance between her name as proven and as alleged in the indictment, and this in the face of that part of article 401, C. C. P., which provides that when a person necessary to be named in the indictment “is known by two or more names, it shall be sufficient to state either name.” In Lister v. State, 1 Tex. App. 739, an objection was interposed to proving the name of deceased in a murder prosecution by the deceased’s dying declaration as to his name. The remarks of Judge White', who wrote the opinion in that case, seem appropriate under the facts of the present case. 1-Ie said: “* * * It is most clearly evident that, had the case been one of assault wiht intent to murder, for instance, and deceased had been sworn as a witness, he would have been competent to testify as to his name, and his testimony as to that fact— a fact most pertinent and most important to the issue to be tried — would have been perhaps more conclusive than if coming from the lips of any other witness; in a word, would have been one of the most certain evidences of that fact. * * * ”

The only other bill of exception reflects the following: A witness by the name of Stevenson, who had long been a resident of Stephens county, Tex., testified that appellant’s general reputation in Stephens county, where he formerly resided, was good. Appellant then proposed to prove by a deputy sheriff of Gregg county that the reputation of Stevenson was good, and complains because he was not permitted to do so. The bill does not show that Stevenson’s reputation was in any way attacked, either directly or in the manner of his cross-examination. The proposal to prove his good reputation seems to have been based on the mere fact that he was a stranger in Gregg county, where the case was being tried. The question seems of little importance under the record. The fact that appellant bore a good reputation was sworn to by a number of witnesses. The state did not undertake in any way to controvert that fact.

We have discovered no error in the record upon which a reversal could be predicated.

The judgment is affirmed.


author: FLY, Chief Justice.

text:
    FITCH v. MAVERICK COUNTY WATER CONTROL & IMPROVEMENT DIST. NO. 1.
    No. 8995.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 15, 1933.
    Rehearing Denied April 12, 1933.
    Dave Watson and J. Franklin Spears, both of San Antonio, David ■ E. Hume, of E'agle Pass, and Boyle, Wheeler, Gresham & Terrell, of San Antonio, for appellant.
    Ben V. King, J. R. Murray, and Van Haile McFarland, all of Eagle Pass, for appellee.
   FLY, Chief Justice.

The statement of the nature and result of the case made in his brief by appellant is admitted by appellee to be substantially, correct, and will be accepted by this court. The statement is:

“This suit was brought by appellant against the appellee to í-ecover on a quantum meruit for services rendered appellee in connection with the organization, formation and Operation of the appellee, Water Control and Improvement District, and in procuring a contract between the appellee, after its organization, with the Central Power & Light Company for the purchase of power from appel-lee by said power company.
“The defendant answered plaintiff’s petition by general demurrer, special exceptions and general denial, and for special defense pleaded Articles 7640 and 7652, Sections 36 and 41 of Article 7880, Articles 3995, 7720 and 7772, of the Revised Civil Statutes of Texas' The general demurrer and special exceptions were by the Court overruled arid the case proceeded to trial before a jury. At the conclusion of all of the’ evidence the trial court granted the defendant’s request for peremptory instruction and instructed the Jury to return a verdict for the defendant and in accordance therewith judgment was rendered that the plaintiff take nothing and that defendant recover its costs.”

The cause having been taken from the consideration of the jury, it automatically a&. sumes the position of a cause tried without a jury by the court. In such cases it would greatly assist the appellate court if the litigants demanded a finding of facts by the trial judge. Not only would this practice assist the courts,’ but it would clarify matters for the parties, and place them in a position to present the facts to the appellate court.

Appellant alleged that he was the active agent in procuring a contract from the Central Bower & Light Company by which the company bound itself to pay for the use of surplus water to be used in generating electric power, the sum of $275,000 per year over a ten-year period, and the sum of $250,000 per year over an additional thirty-year period, and that such service was accepted by appel-lee with full knowledge that appellant expected to be remunerated for such service. There were other allegations of services performed that contributed largely to the success of the undertaking, and which services were accepted by appellee with full knowledge that appellant expected reasonable compensation for the same. It is not contended that appellant did not state a cause of action; the claim being that the allegations were not sustained by any proof. The action of the court and the contentions of the parties necessitate an investigation of the statement of facts, in order to' ascertain if there was proof of any facts which should have been considered by the jury. In the investigation of the evidence, we will follow the rule that the facts must be resolved most favorably for the party against whom the verdict was instructed by the court. The rule in cases in which verdicts have been instructed is thus stated in the case of Eastham v. Hunter, 98 Tex. 560, 86 S. W. 323, and followed in Harpold v. Moss, 101 Tex. 540, 109 S. W. 928: “In determining this question we must consider the evidence in its most favorable aspect for the plaintiffs in error, [appellant] disregarding conflicts and contradictions. They raised the issue of credibility, which was a question for the jury.” If there be any material point in the case, concerning which there is a conflict in the evidence, the case is one for the jury, no matter how much the evidence may preponderate in favor of one party or another. Harpold v. Moss, here-inbefore cited: Wallace v. Ootton Oil Co., 91 Tex. 18, 40 S. W. 399. If it can be reasonably concluded from the testimony that appellant performed the alleged service which was beneficial to appellee, with the knowledge of ap-pellee that he expected to receive remuneration for the same, the case should have gone to the jury. San Antonio v. French, 80 Tex. 575, 16 S. W. 440; 26 Am. St. Rep. 763.

The evidence was sufficient to indicate that important services, which were beneficial to the corporation, were performed for the corporation and accepted by it, and the only question that presents itself is, Was there testimony sufficient to indicate that the appellant would expect a compensation? Did the corporation, through its officers, know, or should it have known, that appellant was expecting remuneration for the important service rendered by him? If so, the corporation is bound, and, if there was any testimony tending to show that the corporation had such notice, a question of fact was created, and the jury alone had the right and authority to answer the question raised by the evidence; the jury being the exclusive judges of the weight of the testimony and the credibility of the witnesses. That there was evidence to establish an implied contract between the parties is fully sustained by the opinion in the case of Sluder v. City of San Antonio (Tex. Com. App.) 2 S.W.(2d) 841, 842:

“Since the decision in the French Case our courts have uniformly announced the doctrine that where a county or municipality receives benefits under a contract, illegal because not made in conformity with the Constitution or statute of the state, or charter provision of the city, it will be held liable on an implied contract for the reasonable value of the benefits which it may have received. In other words, while such contracts are void, and no recovery is permitted thereon, our courts hold that common honesty and fair dealing require that a county or municipality should not be permitted to receive the benefit of money, property, or services, without paying just ■ compensation therefor. Under such circumstances, a private corporation would clearly be liable under an implied contract. There can be no sound reason why the same obligation to do justice should not rest upon a municipal corporation.
“An analysis of the decisions rendered since the decision of the French Case shows clearly that the rule therein laid down has been steadily adhered to.”

The case of City of Denison v. Foster (Tex. Civ. App.) 28 S. W. 1052, goes farther and does not require any notice that the plaintiff intended to charge for his services, but it was only necessary that the services were performed and accepted. The decision is cited with approval in the Sluder Case, and we think, as held by that case, appellee would probably be estopped from denying its liability. Whether we accept that proposition' or not, we hold that there were circumstances and facts which brought to the directors the knowledge that appellant expected remuneration for the services. In view of a reversal, we do not deem it proper to discuss all those facts, but we think the letter written to Mr. Wyche is conclusive, although at that time the corporation had not been organized, and he was only the president of the Eagle Pass Chamber of Commerce, but afterwards became a director of the corporation and its secretary. There is no doubt that the board of directors had knowledge of the contents of appellant’s letter and knew that he would expect compensation for his services. The letter was written to correct a wrong impression created by his son, at that time county judge of Maverick county, as to what his father expected for his services.

We have considered this case on the assumption that appellant’s testimony was true, which is. required of us when considering an instructed verdict. That testimony should have been considered by the jury chosen for that purpose, and not arbitrarily taken away from the jury and the issues decided by the trial judge. To him the evidence may have been deemed worthless, if not untrue, and constituted no basis for the verdict of the jury. In this we are of opinion he erred, and that appellant should have the jury trial demanded by him and guaranteed to him by the organic law.

The judgment is reversed, and the cause remanded.


author: PER CURIAM.

text:
    ELLIOTT et al. v. ELY et al.
    No. 2867.
    Court of Civil Appeals of Texas. El Paso.
    March 9, 1933.
    Rehearing Denied March 30, 1933.
    J. M. Caldwell, of Midland, and Lea, Mc-Grady & Edwards, of El Paso, on appeal only, for appellants.
    James V. Allred, Atty. Gen., A. R. Stout, Asst. Atty. Gen., and Jesse R. Orth and TV. R. Smith, Jr., both of Odessa, for appellees.
   PER CURIAM.

This is an injunction suit in which George D. Elliott, R. T. Reid, D. L. Griffin, and T. S. Armstrong are seeking to prevent the changing of the route of state highway No. 1 from the point where now located to a new and different location. The highway commission of the state of Texas and the state engineer are made parties defendant.

A general demurrer was sustained to the first amended petition of appellant and the suit dismissed, and from that action they have appealed.

Prom the petition it appears that the portion of said state highway No. 1, which is now sought to be changed, begins at a point about two miles east of the city of Odessa, near the east line of property owned by Andy Newnham, proceeds westward along the section line between the Newnham property and the property of H. D. Cody to a point near the east limits of Odessa; that it is there deflected southward to the entrance of Eighth street in said city; that it then runs west along Eighth street to the intersection with Grant avenue, thence south along Grant avenue to Pearl street, and thence west along Pearl street to the west city limits; and that the state highway commission is threatening to change said road to run from the point near the east line of the Newnham property-west along the north side of the Texas & Pacific Company’s right of way to the city limits at the point where Second street intersects, thence west along Second street to the west city limits, thence west along the north side of said right of way to a point about two miles west of Odessa where the said right of way crosses a drain, and thence by means of an underpass under said right of way and there joining the now established roadway; that the four petitioners own property abutting on that portion of Grant avenue now designated and used as a part of said state highway No. 1; that Elliott and Reid are the owners of hotel property, Griffin the owner of hotel and mercantile property, and Armstrong the owner of property used for a filling station; that they are all taxpayers in the city of Odessa and the county of Ector; that they each acquired the properties owned by them subsequent to the designation of the portion of Grant avenue upon which their properties abut, as a part of state highway No. 1; that they thereafter constructed improvements thereon; that during the year 1918 there was a movement started to construct between Texarkana and El Paso, Tex., what is known as the Bankhead highway; that upon proper representations made to the commissioners’ court of Ector county, there was entertained a petition for an election to determine whether or not Ector county would issue bonds to the extent of $30,000 for the purpose of aiding and assisting in building a portion of said highway; that said bonds were, voted, issued, sold, and the proceeds thereof used in the construction of a portion of said highway, which was later designated by the state highway commission, with' the consent of the federal authorities, and the municipal authorities of Ector county, as state highway No. 1, federal highway No. 80; that a portion of said bonds are still outstanding, and that tire petitioners are still being taxed for the purpose of raising sinking funds with which to retire them; that during 1920 and 1921 another bond election, in which $100,000 in bonds of Ector county were voted, was held and the proceeds thereof used in and upon the road, of which the portion now sought to be changed was a part; that subsequent to the calling of such election a contract was entered into between the commissioners’ court of Ector county and the state highway department whereby it was contracted that the road should be built as so located and in accordance with the plans #nd specifications prepared by the state engineer and by the federal engineer in charge; that a large portion of said bonds are still in existence, and that petitioners are still being- taxed to provide sinking funds to retire them and to pay the interest thereon.

After the allegations above set forth, the petition contains the following: “That by virtue of the location and designation of said highway prior to or at the time of the expenditure of said bond money as aforesaid, hnd by virtue of the contracts made between the State Highway Commission and the proper authorities representing the citizenship of Odessa, Ector County, Texas, there was created a contract express or implied that the designation of said highway should remain in and upon the route over which the said designation ran at the date of the voting.of said bonds, at the date of the contract of the Highway Commission with the Commissioners’ Court of Ector County, Texas, and at all times thereafter. That the said bonds were voted, issued and sold upon the express agreement of the Highway Commission which was carried out to designate and locate said Highway No. 1, Federal Highway No. 80, in and upon an exact route upon which the moneys derived from said bond sale were expended (here follows a description of the present route). That the same has so remained undisturbed for a period of more than ten years, and that the property interests and rights of your complainants herein have accrued to them by virtue thereof, in that when they purchased said property they had the right, from the inspection of the record, exhibited herein by certified copies, to expect that the said road would remain as so designated, and that the same would not at the caprice and whim of the State Highway Commission be discontinued, altered and abandoned. That the said rights were and are especial property rights and as such are protected by the constitution of the ’State of Texas and by the constitution of the United States.”

Appellants then allege the enactment of the “State Assumption of Highway Bonds” Act (Vernon’s Ann. Civ. St. arts. 6674q — 1 to 6674q — 11) and that the abandonment of that portion of the highway threatened would render a portion of the bonds issued by Ector county for the construction of said highway ineligible for assumption thereunder, thereby increasing the tax burdens of petitioners.

Then follows this allegation: “That said act is a solemn adoption- by the Legislative body of the said highway as so built and designated and under the terms of said act, the Highway Commission is without power to abandon or to change the routing thereof contrary to legislative enactment and to the detriment and damage of complainants herein.”

Appellants then allege the incorporation of Odessa; the fact that it has exclusive control of its streets, and deny that the highway commission has any control thereover.

The petition then sets forth the action threatened thus:

“1. They are attempting, without warrant of law, to set aside, annul and hold for naught the contractual relations fixed by the authorization, issuance and sale of the bonds of Ector County, and the subsequent expenditure of the moneys derived therefrom upon the roadway designated and located by both State and Federal authorities as a part of the very transaction in which said moneys were used.
“2. In attempting to exercise control over the streets of an incorporated city of more than one thousand inhabitants, of more than 2600 inhabitants according to the last United States census, and of less than 5000 inhabitants, without warrant of law and without the consent of the governing body of such town and in direct opposition to the express wish and action of said governing body.
“3. In attempting to accomplish indirectly control over the .streets of the incorporated City of Odessa and especially over second street in said city by attempting to purchase right of way for and to build a highway to the city limits thereof and designating the same as State Highway No. 1, Federal Highway No. 80, to said city limits, and in attempting to then take up the same at the West City limits without designation of the route within the city but to the end that the designation as at present through said city he abandoned and thus indirectly to deprive complainants of their property rights in and to the designated highway.
“4. To divert all through traffic from the present designated route by constructing about four miles of new highway and by changing the designation and the markers thereof so that such through traffic will pass through the town without passing or stopping at either of the hotels or business houses belonging severally to complainants and thus diverting from each of them its share of patronage of such through traffic and denying to each of the complainants the use and enjoyment of the special easement appurtenant to his property, the same being a material property right entering into the valuation of the property owned by them. * * * ”
“12. By undertaking to build a new road from the point where State Highway No. 1, E'ederal Highway No. 80, diverges from the right of way of the Texas and Pacific Railway east of Odessa to the point of the proposed underpass a distance of about five miles, and to abandon and discontinue approximately five miles of the present designation with full knowledge that the proportionate amount of bonds apportionable to the road so discontinued would thereby automatically become ineligible for payment under the Act of September 17,1932, Acts Third Called Session, Forty-second Legislature, Chapter V, page 15, and thus deprive these complainants of the quantum of relief from tax burden in the relative ratio.
“13. In attempting to reroute the said highway through the City of Odessa on Second Street which street is fifteen blocks in length within the city limits of which only two blocks are paved, thus creating the necessity of paving thirteen blocks by the city with a consequent unnecessary increase of tax burden on complainants herein.”

The petition then specifically alleges the damages which will arise as follows:

“1. In having the funds which they and each of them pay and are paying to meet interest and sinking funds on the bonds voted for and used in constructing the highway as the same is now located and designated, diverted to other uses and purposes to their detriment and damage and in violation of their contractual rights, contrary to the guarantees of the 14th Amendment of the Constitution of the United States and to Art. 1, See. 17, of the Bill of Rights of the State Constitution.
“2. That they and each of them will lose the benefits of the special easement owned by them and each of them in the designation of said highways, which is an appurtenant to the property owned by each of them and a property right protected by the 14⅛ Aniendment to the Constitution of the United States and by Art. 1, Sec. 17, of the State Constitution.
“3. That they and each of them will be forced with approximately one hundred other individuals similarly situated to bring several and separate suits to determine their rights and the violation thereof and in an effort to procure compensation for the injuries thus sustained, which said suits will probably prove futile because of the improbability of setting up and proving their damage by any method allowed by law.
. “4. That they and each of them will be compelled to carry additional tax burden on account of the improvement by the City of Second Street rendered necessary by the unwarranted and fraudulent action of said commissioners.
“5. That they and each of them will lose so much of the advantage and of the taxes purported to be lessened and abated by the Act of September 17, 1932, as is proportionate to the number of miles of said highway abandoned and thus rendered ineligible to participate in the benefits of said act.”

Appellant’s first proposition reads:' “That the location of State Highway No. 1, Federal Highway No. 80, at the place where same is now located, based upon the contractual rights arising out of the issuance and sale of the bonds for the construction of the road upon its designated route, is a solemn and binding contract between the State authorities and the people of Ector County owning property abutting upon said highway and already complete in its nature, and which can not be subsequently impaired by the' action of the State authorities, in violation of Art. 1, Sec. 16, of the Constitution of Texas, and of Art. 1, Sec. 10, of the Constitution of the United States.”

In support of this proposition appellants cite Fletcher v. Howard et al., 120 Tex. 298, 39 S.W.(2d) 32, 40 S.W.(2d) 52; Black v. Strength, 112 Tex. 188, 246 S. W. 79; Moore v. Coffman, 109 Tex. 93, 200 S. W. 374.

A reading of these cases reveals that they, as is admitted in appellant’s brief, have relation to attempts to use bond money before, it has been expended on roads other than those for the construction of which the bonds were voted. We agree with the doctrine announced in those decisions, but we do not feel that it can control the disposition of the case at bar. In those cases by the action taken the.people had been led into voting bonds for a certain purpose, which they might not have done for some other and different one, and the courts very properly held that the money must be spent as it had been represented to the people it would be.

In the case at bar the money was admittedly spent as the people intended, and there is nothing here tó show that the road which was built therewith is to be destroyed or changed, except that a portion of it is to cease to be designated as state highway No. 1, federal highway No. 80.

Appellants attached to their petition a copy of a contract between the commissioners’ court of Ector county and the state highway commission. That agreement recites that it was executed pursuant to the provisions of House Bill No. 2, Acts of 1917 (chapter 190), and that upon the completion of the road called for, the department will pay to the county treasurer of Ector county the sum of $26,676.44, as the share of the state of Texas..

House Bill No. 2 provides that whenever the commissioners’ court of any county should desire to construct public roads constituting a part of the system of state highways as designated by the department, such court may make an application for an allotment of state aid from the state highway fund, and this clearly appears to be what happened in the instant case.

In the agreement above referred to, it was also provided that the county should properly and permanently maintain the road after its construction.

We find no provision in said agreement whereby the commission agreed to restrict the designation of state highway No. 1 to the particular road then constructed.

If it could be said that such a contract arises by implication from the facts and circumstances surrounding the issuance of the bonds by Ector county, then it would be a contract which the commission had no' authority to make, and could not be enforced. Nairn et al. v. Bean et al. (Tex. Com. App.) 48 S.W.(2d) 584; Bowers v. City of Taylor (Tex. Com. App.) 16 S.W.(2d) 520, and cases there cited.

Appellant’s second proposition reads: “That the plaintiffs herein are each of them invested with the special property right and easement appurtenant to the abutment of their properties upon the Highway as so designated and contracted, different from the easement of the general public, and that this special easement appurtenant is a property right of which they can not be deprived without due process of law.”

The decisions cited by appellants in support of this proposition are based upon the abandonment of roads abutting on property, and therefore, would not govern here.

Appellants’ petition, we think, clearly shows that the damages which they are seeking to prevent will arise, not from the abandonment of the road which runs by their places of business, but from the fact that the designation of the proposed road as state highway No. 1, will cause the travelers passing through Odessa to use the proposed road, and in so doing not pass their places of business.

In other words, their contention is that they have a right to prevent the highway commission from designating any other road as state highway No. 1 and thereby divert the traffic from the road upon which their businesses are located, thereby reducing their opportunity to secure the patronage of the users of the road.

In our opinion no person has such a right in the public highways of this state.

As said by Justice Smith in the case of Mosel et al. v. Real et al. (Tex. Civ. App.) 49 S.W.(2d) 475, 476 (writ refused): “The great public highways of the state, such as this, are presumed to be located * * * • and maintained for the benefit of the general public, and not for the special enhancement of the property of occasional landowners in the communities traversed by those highways.”

That appellants will be damaged is to be regretted, but as said by Elliott on Roads and Bridges, No. 1, page 359: “There are many injuries resulting from the opening of streets and roads for which landowners cannot receive compensation. This is true of almost all great public works. It is seldom that a prablic improvement, although benefiting by far the greater number of persons, does not, in some way, cause loss to others. Thus, the opening of a road common and free to all may greatly lessen the receipts of a toll road running between the same places, but for such an injury no compensation can be awarded. Again, the opening of a new street may draw travel from an old one and decrease the business of those having shops on the latter, and in such case, although there is undeniably a resulting injury, there is still no right to legal redress.”

The same doctrine is announced in Corpus Juris vol. 20, page 780.

By their third proposition appellants attack the right of the commission to exercise control over the streets of Odessa.

This control they allege the commission is attempting to exercise indirectly by purchasing a right of way for and building the proposed highway to the city limits on its eastern boundary, designating same as state highway No. 1, then, without making any designation as to that portion of the route within the. city limits, continuing the designation from the western boundary of the city onto where the proposed road joins the present one.

There can be, we think, no question that the commission has full power to designate state highways outside incorporated towns and cities. Nor can the fact that such designation outside such limits would result in the use of certain streets in the city by the traffic coming into the city on said designated highway be said to be an exercise of control over such streets by the commission.

In their fourth proposition appellants assert that the allegations of their petition show an abuse of discretion on the part of the commission in making the proposed change, and therefore the demurrer was improperly sustained.

Haying- heretofore held that the proposed change would not affect any property rights of appellants, it follows that the question of whether or not the commission is acting within its discretion is a matter of which they cannot be heard to complain.

After a careful examination of the record before us, we have concluded that the trial court properly sustained the general demurrer to appellant’s petition.

The judgment is affirmed.


author: WALKER, Chief Justice.

text:
    STAPPER v. RUSCH.
    No. 2349.
    Court of Civil Appeals of Texas. Beaumont.
    March 24, 1933.
    Rehearing Denied March 29, 1933.
    D. H. Zook, of San Antonio, for appellant.
    Briscoe & Morris and Joe L. Hill, all of San Antonio, for appellee.
   WALKER, Chief Justice.

On December 6, 1927, appellant, Herman Stapper, entered into a written contract with appellee, Miss M. Rusch, to sell her certain residence lots in the city of San Antonio, upon which was situated one eight-room dwelling house. The contract set out the conditions of the sale, the consideration to be paid for the property, and bound appellant to deliver to appellee abstract of title to the property within thirty days, and gave her thirty days to investigate the title. Appellee was satisfied with the title and, while the contract was in full force and effect and binding on all parties, asked for the delivery of the title on the terms of the contract. Appellant breached the contract by refusing to deliver title. Thereupon, appellee instituted suit against him for the difference between the contract price and the market value of the property at the time of the breach. Upon trial to the court without a jury, judgment was entered in appellee’s favor for $1,509, from which appeal was prosecuted to the San Antonio Court of Civil Appeals, and transferred to this court by orders of the Supreme Court.

Appellant’s defense is that after the contract was entered into, and before appellee accepted the title, the dwelling house thereon was seriously damaged by fire, thereby “excusing him” from performance. Under the evidence, the house was seriously damaged by fire, for which the insurance company paid appellant, under its policy of insurance, the sum of $1,850. Notwithstanding the fire, appellee, as testified to by appellant’s agent in the sale, “offered to go ahead with the deal at that time,” referring to the morning after the fire. As she was willing to proceed with the execution of the contract according to its terms, the fact that the property had been damaged by fire did not excuse appellant from its performance. If he desired to be excused from performance in the event of the contingency that arose in this case, it was his duty to provide therefor in his contract. 13 O. J. 635.

The amount of the judgment has full support in the testimony.

Affirmed.


author: O’QUINN, Justice.

text:
    BEVIL et al. v. KIRBY LUMBER CO.
    No. 2325.
    Court of Civil Appeals of Texas. Beaumont.
    March 30, 1933.
    Rehearing Denied April 5, 1933.

      Benfro & Keen, of Beaumont, and J. T. Beaty, of Jasper, for appellants.
    A. M. Huffman, of Beaumont, and Andrews, Streetman, Logue & Mobley, of Houston, for appellee.
   O’QUINN, Justice.

Appellants, J. B. Bevil. and Mrs. J. B. Price, a feme sole, brought this suit against the Kirby Lumber Company, claiming to be the owners of T. & N. O. section No. 56 of land in Jasper county, Tex., and to restrain said company from cutting timber on said land. The injunction was granted. The Kirby Lumber Company at the time was engaged in the cutting of the timber.

Kirby Lumber Company answered and filed a cross-action for damages for wrongfully suing out the injunction, and also filed cross-action against the Peavy-Moore Lumber Company on its warranty.

The case was tried to a jury upon special issues, upon the answers to which the court rendered judgment that the injunction be denied and that appellants take nothing as damages; that appellee recover of appellants and the sureties on their injunction bond damages in the sum of $915; that appellee pay to appellants the sum of $146, said sum being for taxes on said property for the year 1927; and that appellee have the period of one year from the date of final judgment herein for cutting and removing the timber on said land; and that appellee take nothing by virtue of its suit against the -Peavy-Moore Lumber Company on its warranty.

Motion for a new trial was overruled, and the case is before us on appeal.

The Miller-Link Lumber Company, formerly owned the land and timber comprising T. & N. O. section No. 56. The receivers of said company, on November 7, 1923, by deed, conveyed the pine timber 8 inches in diameter and upwards on said section of land to the Peavy-Móore Lumber Company. This timber deed, among .other things, provided:

“It is expressly agreed and understood that said Peavy-Moore Lumber. Company, Inc., its successors and assigns shall have' the full period of five years from the date hereof within which to cut and remove said timber from said land. In the event said timber is not removed within said period of five years said Peavy-Moore Lumber Company, Inc., shall have as much of an additional .period of time not exceeding three years as may be necessary to cut and remove the timber from said land. Provided, however, that when the land has been once cut or logging operations thereon once abandoned, all rights of the Peavy-Moore Lumber Company, Inc., to cut and remove said timber shall cease and terminate.
“The Peavy-Moore Lumber Company, Inc., covenants and agrees as a further consideration for the timber rights hereby conveyed that during said period of eight years it will promptly pay to the Receivers of'the Miller-Link Lumber Company, their successors or assigns, on January 1st of each year, all taxes on said land and said timber for the preceding calendar year, provided, however, it shall not be liable for taxes for the years succeeding the year in which it shall have completed the removal of said timber.”

By deed of date January 15, 1926, the receivers of the Miller-Link Lumber Company sold to the Peavy-Moore Lumber Company all the merchantable hardwood timber on said T. & N. O. section 56 of land. This deed provided:

“It is expressly agreed and understood that the Peavy-Moore Lumber Company,- Inc., its successors and assigns, shall have until the 7th day of November, A. D. 1928, within which to cut and remove said timber from said land, and in'the event said timber is not cut and removed by said date, then, in that event, said Peavy-Moore Lumber Company, Inc., shall have as much of an additional period of time, not exceeding three years, as may be necessary to cut and remove the timber hereby conveyed from said land, by paying all taxes properly assessed against said T. & N. O. Section 56 for each year from date, to and including the year in which sáid hardwood timber is cut and removed. And when the hardwood timber has been once cut, or logging operations thereon for hardwood timber once abandoned, all rights of the Peavy-Moore Lumber Company, Inc., to cut and remove hardwood timber from said land shall cease and terminate, and all hardwood timber then remaining on said land shall revert to and become the property of grantors herein.”

March 16, 1926, the Kirby Lumber Company and the Peavy-Moore:Lumber Company entered into an exchange of timber contract whereby the Kirby Lumber Company acquired all the rights of the .Peavy-Moore Lumber Company in and to the timber here involved. This contract contained mutual warranties of title to the timber exchanged.

By deed dated January 31, 1928, the receivers and the special master commissioner of the Miller-Link Lumber Company conveyed to B. E. Quinn, J. Bain -Price, and J. B. Bevil, Sr., among other tracts of land, T. & N. O.‘ section 56. Quinn conveyed .his interest to Bevil.

The title to the land is not involved. The cavil relates entirely to the timber. As set out above, in quoting from the timber deeds from the receivers of the Miller-Link Lumber Company to the Peavy-Moore Lumbei Company, the five years given for removal of the timber would have expired on Novem- - her 7, 1928. The timber not having been removed within that time, the extension of time provided in the conveyance, three years, would have expired November 7, 1931. The record shows that Kirby Lumber Company, about September 3, 1931, entered upon the land and was cutting and removing timber therefrom. This suit was filed and the cutting and removal of the timber stopped by injunction on September 4, 1931.

Appellants’ seventh proposition is based on ten assignments of error, and in effect urges that the court erred in not submitting to the jury the issue of abandonment by appeilee of the cutting of the timber on said land. The timber deeds, as shown above, provide that, when the land has been once cut or logging operations thereon once abandoned, all rights to cut and remove the timber shall terminate. In 1927 .or 1928 Kirby Lumber Company entered upon the land and cut the timber on about 400 acres of the 640-acre tract. The timber was cut on the east side of the tract. There was a slough extending practically north and south through the tract, and the land west of the slough was swampy. Most of the time the slough and • swampy lands were so filled with water and boggy as to be impossible to log through unless a tramroad was built across it. The slough was about a quarter of a mile wide, and the cost of building a tram over it would have been very considerable. When the timber was cut up to the slough, the cutting of the timber was stopped.. The jury found that 300,-000 feet of pine ■ and 240,000 feet of hardwood timber were on the uncut land. On about September 3, 1931, the lumber company, having cut roads and prepared to log the timber west of the slough, began cutting and removing the timber by means of trucks entering from the west side around the slough, when this suit was filed and the removal of the timber stopped by injunction, this on the theory that under the terms of the timber deed, when the land had been once cut or logging operations thereon once abandoned, all rights to cut and remove the timber terminated, and that, as logging operations had ceased from in 1928 up to September, 1931, all rights to cut and remove the timber had ceased to exist, and the timber had reverted to appellants as owners of the land. The facts being without dispute as to the timber deeds, the partial cutting of the timber,- and there being some 200 or more acres of the land upon which the timber had not been cut, the existence of the slough on the land, and the reason cutting in 1928 had stopped, we do not think any question of disputed fact appeared to form an issue of abandonment to be submitted to the jury, and therefore the court did not err in failing or refusing to submit such issue to the jury. The timber deeds gave the purchaser of the timber eight years in which to cut and remove the timber. That timé had not elapsed when cutting was resumed in September, 1931, but had more than two months to run. The timber deeds did not require that all of the timber should be cut at one continuous cutting. There was no attempt to again cut over the land which had been once cut, when cutting was stopped by reason of the slough and surface conditions. The resumption of cutting was only to finish cutting over the tract — the land on the west side of the slough. When all of the undisputed facts are considered in connection with the terms of the timber deeds, we think it clearly appears, as a matter of law, that ap-pellee had not abandoned the cutting of the timber. Cammack v. R-L Lmbr. Co. (Tex. Civ. App.) 258 S. W. 488 (writ refused); Smith v. Jasper County Lmbr. Co. (Tex. Civ. App.) 46 S.W.(2d) 430; Broocks v. Moss (Tex. Civ. App.) 175 S. W. 791. The assignments are overruled.

It is also contended that appellee had forfeited its right to cut and remove the timber because it had not complied with the terms of the timber deeds which obligated the purchaser of the timber to promptly pay, on January 1st of each year, all taxes on the land and timber during the life of the removal of timber period.

The timber deed conveying the pine timber, provided: “The Peavy-Moore Lumber Company, Inc., covenants and agrees as a further consideration for the timber rights hereby conveyed that during said period of eight years it will promptly pay to the Receivers of the Miller-Link Lumber Company, their successors or assigns, on January 1st of each year, all taxes on said land and said timber for the preceding calendar year, provided, .however, it shall not be liable for taxes for the years succeeding the ye?.r in which it shall have completed the removal of said timber.”

The deed conveying the hardwood timber, provided: “It is expressly agreed and understood that the Peavy-Moore Lumber Company, Inc., its successors and assigns, shall have until the 7th day of November, A. D. 1928, within which to cut and remove said timber from said land, and in the event said timber is not cut and removed by said date, then, in that event, said Peavy-Moore Lumber Company, Inc., shall have as much of an additional period of time, not exceeding three years, as may be necessary to cut and remove the timber hereby conveyed from said land, by paying all taxes properly assessed against said T. & N. O. Section 56 for each year from date, to and including the year ih which said hardwood timber is cut and removed.”

The provisions in these deeds relating to the payment of taxes are in effect the same. The one is no more onerous, that is, does not impose a greater obligation on the purchaser of the timber, than the other. The taxes were not paid promptly on January 1, 1928, for the year 1927. January 31, 1928, appellants, together with B. E. Quinn, purchased the land, T. & N. O. section 56. At that time the taxes for 1927 had not been paid, and same were paid by appellants, and it was then claimed and is now urged that, by reason of the failure to pay the taxes as stipulated in the timber deeds, the right to remove the timber was forfeited. As soon as it was made known to appellee that it was being contended that the failure to pay the taxes for 1927 had caused a forfeiture of the right to cut and remove the timber, both the Kirby Lumber Company and its grantor, the Peavy-Moore Lumber Company, at once tendered the amount of the taxes, $146, in gold to appellants, and they refused to accept same. Thereafter the taxes were paid by ap-pellee direct to the tax collector for each and every year. While it is true the payment of the taxes is made a part of the consideration for the conveyance of the timber in each of the timber deeds, still it is clear, we think, that the provision for the payment of the taxes was a covenant and not a ground of forfeiture. If it had been the intention of the parties to the timber sale 'to make the payment of taxes so important as, in the event of failure to pay, to make same forfeit the right to cut and remove the timber, why did they not so express the intent in plain language? There being nothing technical or difficult in so wording such an intent, its being omitted, we think, is clear proof of the lack of any such intent. South Texas Telephone Co. v. Huntington, 104 Tex. 354, 136 S. W. 1053, 138 S. W. 381; Chicago, T. & M. C. Railway Co. v. Titterington, 84 Tex. 222, 19 S. W. 472, 31 Am. St. Rep. 39.

Appellants’ contention that the court committed reversible error in permitting the witness H. M. Seaman, land arid tax commissioner of appellee, and Lee Weathersby, logging superintendent of appellee, to testify that, at the time cutting and logging operations on the land were stopped in 1928, it was not the intention of'appellee'to abandon the cutting of timber on the west side of the slough, is overruled. The objection to the evidence was that it was the opinion only of the witnesses, arid so inadmissible. The .abandonment of an undertaking frequently is as much a matter of intention as it is of outward acts, and, where such is the casé, a witness may state his intention as a fact. Millerman v. Walton (Tex. Civ. App.) 278 S. W. 483. A .corporation can act only by .and through its officers , and agents, and so such officers and agents may testify as to their intent in acting for the corporation in such capacity as to bind. the.corporation.: Fox v. Robbins (Tex. Civ. App.) 70 S. W. 597 (writ refused); Robertson v. Gourley, 84 Tex. 575, 19 S. W. 1006.

Other assignments of error are presented complaining of both the admission .apd ..rejection of testimony. We think some ’of the rulings complained of were error, but as they, relate in the main to the question of .abandonment by appellee of the right to cut and remove the timber, which question has been fully discussed, .and as we have hqld, as a matter of law, no abandonment was shown, the matters of the rejection or admission of the evidence urged become and are immaterial, and no reversible error is shown.

It is complained that the court’s judgment giving an extension of one year after final judgment herein in which appellee may remove the timber, is réversible error, because, appellants say: “There was no evidence to sustain such holding and no issue before the jury to warrant such holding, and the court had refused to submit an issue to . the jury for a finding on this issue, and that such issue was a proper issue for the jury to decide.”

■ Appellee, in its answer, alleged: “That the issuance of this injunction and the restraining of this defendant from cutting the timber covered by the above mentioned deeds prior to the expiration of its time limit ' amounts to a deprivation of this defendant of its property and such time limit should be extended, after such injunction is dissolved, ' for a reasonable period after the dissolution of said injunction and after the termination 'of this suit for a reasonable time to permit .the cutting' and removal of such timber.

Appellee prayed for an extension of time in which to cut and remove the timber, and for general relief.

The undisputed proof shows that appellee was the owner- of the timber in question; that it had until November 7, 1931, in which to cut and remove same; that about September 3, 1931, it was upon the land cutting the timber; .that on September 4, 1931, it was stopped by an injunction sued out by .appellants, from cutting the timber because, ..as asserted by them, of appellee’s.having forfeited and abandoned same. At the time of the institution of this suit, appellee’s mill in the vicinity of the timber was in operation. After the injunction stopped the cut- . ting of the timber, because of the unsatisfactory condition of the lumber market, operations were suspended and the mill shut down. When the injunction stopped the cutting of the timber, appellee had a few days more than two months — September 4th to November 7th —in which to remove the timber. At the end . of that time,- appellee’s right to cut the timber would have, by tbe terms of the contract, terminated'. On this date, March 16, 1933, the litigation commenced by appellants as to the ownership of said timber is still pending, and the end of such litigation is not in sight. The time limit for the removal of the timber has long since expired. The delay in cutting the timber was caused by the acts of appellants. It was testified that, in view of all the facts and circumstances, one year after final judgment would be a reasonable time for the removal of the timber. There was no evidence offered to show the contrary. The question of a reasonable extension of time for the removal of the timber was one of fact. The issue was raised by the pleadings and the evidence. Appellee requested a special issue as to what would be a reasonable time after final judgment in which to cut and remove the timber. This was refused by the court, but in its judgment the court granted an extension of one year. It is insisted that, the question being one of fact, and such issue of fact being raised by the pleading and proof, the court was not authorized to make such finding nor to render such judgment. It is believed that this contention is not sound for two reasons:

(a) Article 2185, R. S. 1925, provides that, in the trial of eases to a jury upon special issues, the court shall submit to the jury only controverted questions of fact. Where the facts are without dispute, as they are here on this issue, there was nothing to submit to the jury, and the court could render judgment on same, and this though a special issue had been requested and refused. Hauser v. Zook (Tex. Civ. App.) 278 S. W. 518; Ewing v. Foley, 115 Tex. 222, 280 S. W. 499, 503, 44 A. L. R. 627; see Notes of Decisions, Subdivision 9, p. 190, under article 2185, vol. 6, Vernon’s Ann. Tex. Stat.

(b) Article 2190, R. S. 1925, in part reads: “Upon appeal or writ of error, an issue not submitted and not requested is' deemed as found by the court in such manner as to support the judgment if there is evidence to sustain such finding.”

The issue as to what would be a reasonable time, after final judgment, in which to remove the timber, was not submitted. Tt was requested to be submitted by appellee, but'was refused. Its "submission was not requested by appellants, nor was the charge objected to by them because of the omission to submit said issue. It is not believed that the refusal to submit appellee’s requested issue is a matter of which appellants can complain. In so far as it affects their rights, it is the same as if no such issue was requested to be submitted, and so was properly found by the court; there being evidence to support such 'finding.

Other assignments are presented, and all of them have been considered. None of them show error, and are therefore overruled.

The judgment should be affirmed and it is so ordered.

Affirmed.


author: HICKMAN, Chief Justice.

text:
    BURCH INV. CO. v. HASSEN.
    No. 1095.
    Court of Civil Appeals of Texas. Eastland.
    March 31, 1933.
    Tom B. Ridgell, of Breckenridge, for appellant.
    B. H. Welch, of Breckenridge, for appellee.
   HICKMAN, Chief Justice.

On December 7, 1931, appellant instituted suit in the county court against appellee for an amount within the jurisdiction of that court alleged to be owing on a rental contract. The next term of court convened on the 4& day of January, 1932. On December 21, 1931, appellee filed his plea of privilege in statutory form to be sued in Eastland county. On January 6, 1932, appellant filed its controverting plea. It did not call the court’s attention to the filing of this plea, and no notice was ever issued to appellant of a hearing to be had thereon. No orders of any character are shown in the record until April 22d, a day of the March term of court, on which date a judgment was entered decreeing that appellee had waived his plea of privilege, and awarding to appellant a recovery on the merits, in accordance with its petition. On the same day this judgment was rendered appellee filed his motion to vacate same and transfer the cause to Eastland county on his plea of privilege. This motion was heard on April 30th, the last day of the March term of the court, and an order entered setting aside the judgment of April 22d, and transferring the cause, on appellee’s plea of privilege, to Eastland county. Erom this last order this appeal was prosecuted.

The order recites that appellant failed to call the court’s attention to the controverting plea, and failed to have notice issued and served on appellee or to have its plea disposed of at the January-February term of court, and further recites that no showing was made by appellant that same could not have been disposed of at said term.

The order entered by the trial court was the only one which it had jurisdiction to enter. Bundrant v. Woodley (Tex. Civ. App.) 32 S.W.(2d) 664; Austin Bridge Co. v. Wren (Tex. Civ. App.) 297 S. W. 654; Box v. Deming Inv. Co. (Tex. Civ. App.) 286 S. W. 956; Davis v. Southland Cotton Oil Co. (Tex. Civ. App.) 259 S. W. 298; Brashears v. Strawn National Bank (Tex. Civ. App.) 57 S.W.(2d) 177.

The judgment of the trial court will be affirmed.


author: STANFORD, Justice.

text:
    LITTLE v. ARMSTRONG MFG. CO.
    No. 1330.
    Court of Civil Appeals of Texas. Waco.
    March 2, 1933.
    Rehearing Denied March 30, 1933.
    Grover C. Morris and Joe L. Hill, both of San Antonio, for plaintiff in error.
    R. L. House, of San Antonio, for defendant in error.
   STANFORD, Justice.

The defendant in error, Armstrong Manufacturing Company, brought this suit against John L. Little on five notes for $541.90 each; three of said notes had certain credits upon them and two of said notes had no credits. The suit does not appear to be on a contract or the order of sale marked Exhibit 6, but was on the five notes above mentioned, which notes were given in Tampa, Fla., and fully set out in the defendant in error’s petition. The Armstrong Manufacturing Company alleged that the consideration for the notes was machinery ordered shipped from Waterloo, Iowa, to Tampa, Fla., and that said notes were given for an interstate transaction. Nowhere in the petition did the defendant in error allege or set out any contract other than the notes sued upon. The plaintiff in error, John L. Little, in his first amended original petition, alleged that defendant in error, Armstrong Manufacturing Company, was a foreign corporation and did not have the right to bring this suit because it was transacting business in the state of Texas in violation of the law, and also pleaded payment of said notes. The plaintiff in error, John L. Little, also in open court, acting through and by his attorney, waived his plea of payment. There was introduced in evidence the five notes sued upon and an order by John L. Little addressed to the Armstrong Manufacturing Company at Waterloo, Iowa, which-.provided that the machinery was to be shipped to Tampa, Hillsboro county, state of Florida, and it was to be received by the purchaser, John L. Little, and that the said John L. Little was to pay freight charges from Waterloo, Iowa, to Tampa, Fla., and was to pay $400 before the machinery was loaded, and $800 in cash upon delivery, and the balance was to be represented by said notes. This order addressed to the Armstrong Manufacturing Company at Waterloo, Iowa, was made subject to the approval of said company at Waterloo, Iowa. The record further shows the machinery was shipped from Waterloo, Iowa, to Tampa, Fla., and the notes sued on were given or signed by John L. Little in Tampa, Fla., and made payable in Tampa, Fla. On motion of the Armstrong Manufacturing Company, the court instructed a verdict in favor of the defendant in error against the plaintiff in error, John L. Little, and rendered judgment for Armstrong Manufacturing Company against John L. Little in the sum of $1,974.30, together with interest on the sum of $1,794.82, being the amount of principal and interest of the notes sued upon at the rate of 8 per cent, per annum, compounded annually from date until paid, and $179.48 at the rate of 6 per cent, per annum from date until paid and all costs of suit.

Opinion.

It is true that an order given in the state of Texas to an Iowa corporation for machinery to be shipped to Florida, as in this case, constitutes interstate commerce. It is further true the Texas statute (Vernon’s Ann. Civ. St. arts. 1529, 1536) requiring a foreign corporation to obtain a permit to do business in Texas, before it has a right to sue in this state, is not applicable to interstate commerce, as involved in this case.

Exhibit 6 of the statement of facts which the plaintiff in error, John L. Little, admitted he signed, and also admitted that it was the only written instrument tha-t was signed, shows that the order was for machinery to be shipped from Waterloo, Iowa, to Tampa, Fla,, as it provides that John L. Little was to pay the freight charges from Waterloo, Iowa, to Tampa, Fla. The order was addressed to the Armstrong Manufacturing Company, Waterloo, Iowa, and the original forwarded to Armstrong Manufacturing Company, and taken subject to its approval. Therefore, it seems to be conclusive that it was approved at Waterloo, Iowa. However, that is immaterial because in any event, whether approved in Iowa or in Texas, it is. interstate commerce. Western Cartridge Co. v. Emmerson, 281 U. S. 511, 512, 50 S. Ct. 383, 74 L. Ed. 1004. The case just cited involves the question of interstate commerce and has the following headnote: “The acceptance of orders for a product to be shipped to other states and foreign countries, and what is subsequently done in filling them, become component parts of interstate or foreign commerce.” Dahnke-Walker Mill. Co. v. Bondurant, 257 U. S. 282, 290, 42 S. Ct. 106, 66 L. Ed. 239, 243; Flanagan v. Federal Coal Company, 267 U. S. 222, 225, 45 S. Ct. 233, 69 L. Ed. 583, 584. For other authorities bearing on this issue, see Lemke v. Farmers’ Grain Company, 258 U. S. 50, 42 S. Ct. 244, 66 L. Ed. 458; Palmer v. Æolian Co. (C. C. A.) 46 F.(2d) 746; Furst & Thomas v. Brewster, 282 U. S. 493, 51 S. Ct. 295, 75 L. Ed. 478.

It will thus be seen that the United States Supreme Court, as well as other federal courts, hold that a purchase in onq state for delivery in another' is interstate commerce, and that it is not necessary for a foreign corporation to comply with the state statutes to be able to maintain a suit in the state courts, as, in so far as said state statutes attempt to regulate interstate commerce or lay a direct burden on the .exercise of the privilege of engaging in interstate commerce, it is void under the Commerce Clause of the Constitution of the United States (article 1, § 8, par. 3). Asher v. State of Texas, 128 U. S. 129, 9 S. Ct. 1, 32 L. Ed. 368.

Not only is it true that the decisions of the United States Supreme Court, which of course are binding on all state courts, in regard to what is interstate commerce and what laws are applicable thereto, holding cases like the one at bar to be interstate commerce and not subject to state statutes, but the courts of Texas have consistently held a transaction similar to the one at bar, to be interstate commerce and not amenable to the Texas statutes, even though the corporation did other business in Texas. Texas & Pac. Ry. Co. v. Davis, 93 Tex. 378, 54 S. W. 381, 55 S. W. 562. See, also, Southern Discount Company v. Rose (Tex. Com. App.) 296 S. W. 482, 483; Alexander Film Company v. Lazeres & Morfesy (Tex. Civ. App.) 7 S.W.(2d) 599, 601; Italy Cotton Oil Co. v. Southern Cotton Oil Co. (Tex. Civ. App.) 13 S.W.(2d) 438, 439, and eases there cited.

In 9 Tex. Jur. 274, § 9, it is said; “A sale, the parties to which are from different states, and which necessarily involves the transportation of goods from one state to another, is a transaction of interstate commerce, whether the contract of sale be made in the one state or the other.” Moronery Hdwe. Co. v. Goodwin Pottery Co. (Tex. Civ. App.) 120 S. W. 1088, 1091.

The United States Supreme Court, in York Manufacturing Co. v. Colley, 247 U. S. 21, 27, 38 S. Ct. 430, 432, 62 L. Ed. 963, 966, 11 A. L. R. 611, involving a contract to change his ice plant to Texas and to supervise installation thereof, held that the same was interstate commerce, and the court said: “That which is intrinsically interstate and immediately and inherently connected with interstate commerce is entitled to the protection of the Constitution of the United States resulting from that relation.”

Since the written instrument marked Exhibit 6 clearly shows that the machinery was ordered by addressing Armstrong Manufacturing Company, Waterloo, Iowa, and taken subject to the approval of said company at Waterloo, Iowa, and since John L. Little was to pay the freight charges from Waterloo, Iowa, to Tampa, Fla., there seems to be no doubt that the transaction, as shown by the written contract, was interstate commerce, and not subject to the Texas statute. No parol evidence given ¡by John L. Little could vary the terms of this written order. There was no pleading to authorize such variation. We think clearly that this case involved interstate commerce, and that the trial court was correct in so holding. If said machinery was bought by the Armstrong Manufacturing Company at Fort Worth, Tex., but was so bought for the purpose of shipment to Tampa, Fla., and same was so shipped, the entire transaction became, and was, interstate commerce.

The record shows clearly that John L. Little waived whatever right he might have had to plead or prove payment, because in open court his attorney informed the court that he would waive said plea of payment and would not, and did not, introduce any evidence on that point.

Having considered all of the questions raised in this case and finding no error, we think said cause should be, and is hereby, in all things affirmed.