author: JACKSON, Justice.

text:
    AMERICAN MORTGAGE CORPORATION et al. v. DUNNAM.
    No. 4008.
    Court of Civil Appeals of Texas. Amarillo.
    April 19, 1933.
    Rehearing Denied May 17, 1933.
    Joiner & Cook, of Plainview, for appellants..
    M. J. Baird and L. D. Griffin, both of Plain- ' view, for appellee.
   JACKSON, Justice.

This suit was instituted in the county' court of Hale county by J. A. Dunnam against H. H. Barnard and two corporations, the American Motors Finance Company and the American Mortgage Corporation, to recover double the amount of the alleged usu-. rious interest, $275.02, paid by plaintiff to the defendants.

The plaintiff alleged: That the American Motors Finance Company was a parent corporation with a capital stock of $150,000. That the American Mortgage Corporation was a dummy corporation with a capita, stock of $1,000, through which the business was transacted and that H. H. Barnard was at all the times alleged the agent iff said corporations-. That the defendants were engaged in a conspiracy and fraudulent scheme to loan money and charge for the use thereof more than 10 per cent, per annum on the amount of the loan. That as a part of such fraudulent scheme, customers, and especially, the plaintiff, were required, in order to secure a loan, to make a written application, give a note and mortgage therefor, and execute a subscription contract for the purchase of bonds of the American Motors Finance Company upon the. terms and conditions set out in the instruments, which were in triplicate and were signed by plaintiff, in blank before they were written out in full.

That pursuant to such fraudulent scheme', on May 5, 1929, the defendants loaned plaintiff the sum of $222.47, for which he executed his note, secured by a mortgage, for $271.-30, payable to H. H. Barnard in ten monthly installments of $27.13 each, with interest after maturity at 10 per cent, per annum. That on March 26, 1930, the defendants loaned plaintiff $81.39 for which he executed his note, secured by a mortgage, for $127.50, payable to H. H. Barnard in six installments of $21.25 each, with interest at the rate of. 10 per cent, per annum after maturity. That on October 16,1930, the defendants loaned plain- • tiff $195, for which he executed his note, secured by a mortgage for $237.40, payable to H. H. Barnard in ten monthly installments of $23.74 each, with interest from maturity at the rate of 10 per cent, per annum.

That plaintiff paid each of said loans and on the first transaction the defendants charged and collected as interest $4S.66; on the second $46.11; and on the third $42.74. That the notes each provided upon the' default in the payment of any installment of principal or interest, the note should forthwith become due and payable and plaintiff received no consideration for either of said notes except the amount advanced him in cash.

The defendants answered by general demurrer and general'denial.

In response to special issues submitted by the court, the jury found, in effect, that the defendants charged more than 10 per cent, interest per annum on each of the loans made by them to plaintiff.

On these findings' judgment was rendered for the plaintiff against the defendants, jointly and severally, for the sum of $274.34, with interest and costs, from which judgment this, appeal is prosecuted.

We deem it unnecessary to discuss separately each of the assignments of error urged by the appellants.

The record discloses that the last transaction was evidenced by a promissory note, dated October 16, 1930, executed by appel-lee for the sum of $237.40 and payable to the order of H. H. Barnard in ten -.monthly installments of $23.74 each. The note provides for interest after maturity at the rate of 10 per cent, per annum and that upon default jn the payment of any installment of principal or interest, the note shall forthwith become due and payable. The mortgage covering a certain automobile, securing the payment of the note, among other things provides :

“I understand and agree to the plan of buying gold bonds of the American Motors Finance Co. of Dallas, Texas, the same having -been fully explained to me, and I hereby authorize you to withhold from the proceeds 'of my note the initial payment on bonds I am purchasing.
“I understand that the interest on this note is calculated on the basis of 8% per annum only and to maturity on each installment.”

The mortgage empowers H. H. Barnard to act as the agent of appellee in selling the note and provides that the holder may carry •insurance on the automobile.

The subscription contract contains, among other things, the following:

“I hereby subscribe and agree to pay for, subject to the conditions hereinafter named, $400.00 of 8% ten year gold bonds of American Motors Finance Co. of Dallas, Texas, at par and accrued interest, which amount represents the total purchase price.
“The initial payment of $35:00 on said total purchase price has been included in a certain note, bearing even dat.e herewith, executed by the undersigned purchaser and payable to or assigned to American Mortgage Corporation of Dallas, Texas, which corporation is hereby authorized to deduct from the proceeds of said note the amount of the initial payment and to deliver same to American Motors Finance Co.”

The subscription contract provides that the balance of the purchase price of the bonds shall be paid in cash or settled by note, the payment of which is secured only by the bonds; that the bonds are not to be issued until paid for, but shall bear interest from the date of the issuance at S per cent, per an-num. That if the bond is not paid for as provided, the American Motors Finance Company shall not be obligated to deliver the bond and at its option may return the initial payment thereon or offer other securities of like value or retain the initial payment as liquidated damages for withholding from the market said bonds, and when either of the three options is exercised, that the subscription contract will be considered discharged without, further liability to either of the corporations or the appellee.

The notes, chattel mortgages, and bond subscription contracts on the two other transactions are identical with the one above set out, except as to amounts, dates, the bonds purchased, and the property covered by the mortgage.

That the American Motors Finance Company was a corporation with a capital stock of $150,000, the American Mortgage Corporation had a capital stock of $1,000, and that H. H. Barnard was the agent representing the corporations in the transactions had with appellee.

The petition was not subject to a general demurrer and the appellants were not entitled to a directed verdict in their behalf.

The instruments, note, mortgage, applicar tion, and subscription contract, evidencing each of the loans, construed together, do not disclose on their face a usurious contract. This the appellee concedes in his brief.

“The rule seems to be that where, as in this case, the contract on its face provides for the payment of no more than legal interest, the burden is on the party pleading usury to show that there existed some agreement, device, or subterfuge to charge usury, and that both parties had this purpose in contemplation. Bank of U. S. v. Waggoner, 9 Pet 378, 399, 9 L. Ed. 163, 171; Henry v. Sansom, 2 Tex. Civ. App. 150, 21 S. W. 69.” Shipman v. Wright (Tex. Civ. App.) 3 S.W.(2d) 519, 521.

To the same effect is the holding in Armstrong et al. v. City National Bank of Galveston (Tex. Civ. App.) 16 S.W.(2d) 954.

The appellee in his pleading recognized that in order to recover it was necessary to show that there was some scheme, device, or subterfuge, by pleading that the appellants were engaged in a conspiracy and fraudulent scheme to loan money and charge for the use thereof more than 10 per cent, per annum on the amount of the loan, and, as the facts were controverted, in order for him to recover, it was necessary to secure a finding of the jury on such issue. International-Great Northern R. Co. v. Casey (Tex. Com. App.) 46 S.W.(2d) 669; Garrett v. State (Tex. Civ. App.) 51 S.W.(2d) 822.

The exceptions of appellants to the charge were sufficient to call the court’s attention to the necessity of submitting such issue.

Unless the testimony on another trial discloses that the two corporations and their agent were conspirators or joint tort-feasors and a jury so finds if the evidence is controverted, a joint and several judgment should not be rendered. 9 Tex. Jur. page 396.

The appellants urge as error the action of the court in permitting appellee to testify, over their objection that it was hearsay, as follows: “I heard Mr. Jester upon the trial of a law suit in Dallas, Texas, testify that he was president of the American Motors Finance Company and president of the American Mortgage Corporation; that American Motors Finance Company furnished money to American Mortgage Corporation with which to buy notes.”

This evidence was offered and admitted as original testimony and should have been excluded under the facts and circumstances revealed by this record. Guarantee Bond & Mortgage Co. v. Bain (Tex. Civ. App.) 16 S.W.(2d) 554.

We are not, however, to be understood as holding that the testimony of a witness made in a different case and at a different time and place would, under all circumstances, ‘be inadmissible as original testimony.

In view of another trial we call attention to the following authorities: 17 Tex. Jur. §§ 228, 229, 230; 22 C. J. 343, § 391; Park v. Sullivan (Tex. Civ. App.) 12 S.W.(2d) 265; Knights of Modern Maccabees v. Gillis, 59 Ter. Civ. App. 109, 125 S. W. 338.

The judgment is reversed and the cause is remanded.


source: Caselaw Access Project

license: Public Domain

text:
    MERCHANTS’ & MANUFACTURERS’ SECURITIES CO. v. WRIGHT et al.
    No. 4005.
    Court of Civil Appeals of Texas. Amarillo.
    April 19, 1933.
    Rehearing Denied May 17, 1933.
    Cooper & Lumpkin, of Amarillo, for appellant.
    Reeder & Reeder, of Amarillo, for appel-lees.
   JACKSON, Justice.

This suit was instituted by the appellant in the district court of Potter county against the appellees R. L. Wright, Mary Alice Wright, executrix of the estate of S. H. Wright, deceased, T. E. Durham, and J. E. Griggs, to recover the sum of $8,291.54 with interest against the Wrights, and to foreclose a chattel mortgage lien against all of the appellees covering certain furniture which is fully described in appellant’s petition.

The appellees answered by general demurrer and general denial.

The case was submitted to the court without the intervention of a jury and judgment rendered that appellant recover from R. L. Wright and Mary Alice Wright, executrix, $9,195.90, with interest and costs; but a foreclosure of the chattel mortgage lien was denied. From the judgment denying a foreclosure, this appeal ⅛ prosecuted.

The record discloses that the furniture covered by the chattel mortgage was purchased! from the Amarillo Furniture Company by- Mr. Fairey and placed in the Resident Hotel of Amarillo. That the consideration for the ‘furniture was $13,291.54, $5,000 of which was paid, leaving a balance of $8,291.54 payable in monthly installments of $460 "each. That .some time after the sale to Mr. Fairey, R. L. and S. H. Wright purchased from him the Resident Hotel and said furniture, assumed the 'balance of the unpaid purchase money therefor, and executed a mortgage to the Amarillo Furniture Company for the payment of said balance, which indebtedness, together with the mortgage securing the payment of same, was, for a valuable consideration, transferred to appellant by said furniture company. That the Amarillo Furniture Company was a corporation, and R. L. Wright and S. H. Wright, before his death, were directors and that J. E. Griggs was a director and vice president of said furniture company in 1929, which position he continued to hold until June, 1930'. That he actively participated in the business of the corporation and had access to the books, records, and papers thereof and attended sqme of the meetings of the directors. That J, E. Griggs purchased the Resident Hotel from R. L. and S. H. Wright on April 17, 1930, together with all the furniture then in the hotel. He testified that he was a brother-in-law of the Wrights. That much of the furniture in said Resident Hotel did not bear the stock number of the articles described in the mortgage. That some of the articles had no stock number on them, and, based on these circumstances, stated' that he did not have in his possession the furniture described in appellant’s mortgage and that ‘he had no knowledge of the mortgage executed to the Amarillo Furniture Company by the Wrights on said furniture and thereafter transferred to appellant.

. The court finds that R. L. and S. H. Wright executed the mortgage sued on on September 25, 1929, and sots out a copy of the contract mortgage which describes the furniture in detail exactly as described in appellant’s petition. He finds that on October 3, 1929, the furniture company transferred to appellant the debt and mortgage and that the mortgage was not filed in the county clerk’s office until August 7, 1930, and not filed forthwith as required by the registration statutes of this state (see Rev. St. 1925, art. 5490). That J. B. Griggs purchased the Resident Hotel on April 17, 1930, from R. L. and S. H. Wright, together with the furniture in said hotel. That S. H. Wright is dead and that Mary Alice Wright is the duly qualified executrix of the estate of S. H. Wright, deceased.

In his judgment he recites: “It is further ordered, adjudged and. decreed by the Court that the plaintiff herein, though having a valid, subsisting chattel mortgage lien upon the property hereinabove described, as against R. L. Wright and the estate of S. H. Wright, deceased, be and is hereby denied any foreclosure thereof as against the defendant J. E. Griggs, who is in possession of the furniture purchased on April 17, 1930,” and decrees that T. E. Durham and J. E. Griggs go hence •without day and recover their costs.

The record indicates that a foreclosure of the lien was denied because the mortgage was not filed forthwith and prior to the time that appellee Griggs purchased the Resident Hotel from the Wrights, together with the property located therein.

Whether or not the mortgage was filed with the county clerk would in no event defeat appellant’s foreclosure of its mortgage lien against the Wrights.

If appellee Griggs, as he testified, had mo knowledge, at the time he acquired the furniture, of the existence of the indebtedness and the mortgage given to the Amarillo Furniture Company and thereafter transferred to appellant, this would not place him in the position of an innocent purchaser for value. He was admittedly a director of the Amarillo-Furniture Company and the vice president thereof during the year 1929 and at the time the mortgage was given to said company and by it transferred to appellant and at the time he acquired the furniture.

“Whatever knowledge a director has or ought to have in his official capacity, he is chargeable with as a private individual. This is similar to the rule which imputes to a corporation the knowledge of its officers. In particular the law charges the individual officer, not only with his actual official knowledge, -but with all matters pertaining to the corporation of which he should have been officially cognizant.” 11 Tex. Jur. 9, § 363. This text is supported by the holdings in College Park Electric Belt Line v. Ide, 15 Tex. Civ. App. 273, 40 S. W. 64; A. B. Seale v. Wm. R. Baker et al., 70 Tex. 283, 7 S. W. 742, 8 Am. St. Rep. 592.

“The law conclusively presumes that the directors of a corporation know its condition, its business, its receipts and expenditures and all the general facts which go to make up that condition and business, as shown by the entries on its regular books. The reason of this is that it is their duty to know these things in the exercise of their official functions. This doctrine is said to be one founded in public policy essential to the safety of third parties in their dealings-with corporations and to the protection of the stockholders interested in the welfare and safe management of corporations.” 3 Thompson on Corporations (3d Ed.) 779, § 2133.

The law imputes to the officer or director of a corporation buying property therefrom on his own account, notice of the action of the board of directors relative to such property, and actual knowledge of such action is not required. Greenville Gas Co. v. Reis et al., 54 Ohio St. 549, 44 N. E. 271. Gay v. Young Men’s Consol. Co. Op. Merc. Inst. et al., 37 Utah, 280, 107 P. 237.

Appellee Griggs contends that the judgment should be affirmed because the testimony shows that he did not have in his possession any of the property covered by the mortgage appellant was seeking to foreclose. This contention cannot be sustained. The record discloses that the furniture involved was originally placed in the Resident Hotel. There is no testimony that any of it was ever removed, and we think a fair interpretation of the testimony of Mr. Griggs himself discloses that he did have in his possession in the Resident Hotel some of the articles described in appellant’s mortgage.

The judgment is reversed, and the cause-remanded. '


author: McClendon, Chief Justice.

text:
    WADKINS et ux. v. DILLINGHAM.
    No. 7844.
    Court of Civil Appeals of Texas. Austin.
    April 19, 1933.
    W. H. Nunn and Wilcox & Graves, all of Georgetown, for plaintiffs in error.
    H. P. Lewis, of Lampasas,'and G. A. Walters, of San Saba, for defendant in error.
   McClendon, Chief Justice.

Appeal (by writ of error) from a default judgment against Wadkins and wife in a suit upon a promissory note, executed by both spouses.

The controlling question here is whether the petition was sufficient to support a personal judgment against Mrs. Wadkins; or, specifically, whether it affirmatively alleged a debt “contracted by the wife * * * for necessaries furnished her or her children.” R. S. art. 4623. We quote in full the pertinent portions of the petition:

“Plaintiff further alleges that on the date of the execution of said note defendant, J. W. Wadkins had no separate estate and that there was no property belonging to the community estate, except such as was exempt to them under law and that said defendant w¿s
©»For other cases see same topic and KEY NUMBER in all-Key Number Digests and Indexes then and is now insolvent; • that the said defendants then lived in Burnet County, Texas, and had no home for a dwelling place of their own for themselves and children and have never since acquired one in Williamson County, Texas, where they now reside, nor elsewhere to the knowledge of this plaintiff; that said note was given for a house in which said Daisy Wadkins and her children were to reside in for their home and for lands which they were to cultivate in order to provide for food and clothing for her said children and for herself, and which were necessaries of life for herself and her said children ; that said dwelling and farm which belonged to plaintiff were rented at her instance and on her authorization, and that said note was executed expressly at her request and on her authority jointly with her husband; and that said debt is a-reasonable and proper charge for the said Daisy Wad-ikins to ineur for herself and for her said •children of which said defendants had some four or five in number living with them at said date of the execution of said note. That said J. W. Wadkins and Daisy Wadkins were ón the date of the execution and delivery to plaintiff of said note, husband and wife.”

We have reached the conclusion that these allegations are fatally defective in failing to aver that the alleged necessaries were actually furnished; and that this defect constitutes fundamental error.

In Trimble v. Miller, 24 Tex. 215, it was held (Roberts, J., writing) that where the petition discloses coverture it will not support a default judgment against the wife unless by affirmative averment facts are disclosed which authorize a judgment against her.

There has been no deviation from this holding. See 23 Tex. Jur., p. 342, § 294, and Speer’s “Marital Rights” (3d Ed.) p. 653, § 530, for other cases on the subject. It is a necessary application of the general rule of pleading in this state which requires the plaintiff to allege facts constituting every essential element of his cause of action.

The statute under which this suit is brought limits the contracting power of the \wife to “necessaries furnished.” This, we think, clearly imports an executed .contract in so far as concerns the furnishing.

“The necessaries -must have been actually furnished, not merely contracted for, and the wife is not liable for breach of an executory contract entered into by her or her husband.” 30 C. J. p. 920. And see Fell v. Brown, 115 Pa. 218, 8 A. 70; Dougherty v. McClelland, 192 Mo. App. 498, 182 S. W. 766.

Appellee contends that since the suit was upon a xn'omissory note (importing in law a consideration), it was not necessary to aver that the contractual consideration had been paid or performed; such being a matter of defense, which must be raised by special plea of failure of consideration. This position would be sound if the wife had general power to bind herself by promissory note or otherwise. But not so under the statute. The form of contract under which she is sought to be held bound is not material. In substance it must embrace the element, essential to liability, of “necessaries furnished”; and this essential element must be alleged.

Indulging every reasonable intendment in-favor of the petition’s sufficiency, it alleges at .most an executory contract to furnish necessaries and not one of necessaries furnished. There is not the slightest suggestion in the petition that appellee ever performed or even tendered performance of the contract, or that appellants ever received the property or used it for the purpose alleged.

Appellants further urge that “lands * » ⅞ which they were to cultivate in order to provide food and clothing for her said children and herself,” are not necessaries within the meaning of the statute.. The cases relied upon are those which exclude from the term rental on property used in a business or profession engaged in by the wife. 23 Tex. Jur., p. 202, note 19.

The authorities in this state and generally hold that “necessaries for the family,” and terms of like import, when not otherwise restricted, include rental on a family dwelling. Harris v. Williams, 44 Tex. 124; 13 R. C. L. p. 1196, § 228; 30 C. J. 922, § 626.

We cannot say, as a matter of law, that a farm which is occupied and used by the family as a place of abode and is cultivated by the family as a means of livelihood, is not in its entirety a necessary within the meaning of our statute. Each case must be judged and classified in this regard by its own peculiar circumstances. See 23 Tex. Jur., p. 200, ⅜ 170. We think the allegations sufficient in this respect, at least as against a general demurrer. In any event, they do not vitiate the petition as regards the dwelling. Hild v. Hellman (Tex. Civ. App.) 90 S. W. 44.

The note provided for 8 per cent, interest. The judgment awarded 10 per cent. Otherwise appellant Wadkins does not assail the judgment. Appellee confesses error in this regard.

As to appellant J. W. Wadkins the judgment is reformed so as to substitute 8 per cent, for 10 per cent, interest, and as so reformed it is affirmed. As to Mrs. Wadkins the judgment is reversed and the cause remanded.

Reformed and affirmed in part; and in part reversed and remanded.


author: WALTHALL, Justice.

text:
    BORSCHOW v. ROSEN.
    No. 2813.
    Court of Civil Appeals of Texas. El Paso.
    April 20, 1933.
    Rehearing Denied May 11, 1933.
    Dea & Edwards, of El Paso, for appellant.
    Sydney Smith and John Penn, both of El Paso, for appellee.
   WALTHALL, Justice.

Max Borschow sued Sam Rosen, alleging that prior, to February 5, 1930, he was the owner of certain land in El Paso county and in Hudspeth county, Tex., and that at the same time Sam Rosen was the owner of certain land in El Paso county, consisting of eight sections, and that about November 30, 1929, Rosen accompanied him (Borschow) out on the Carlsbad road in an easterly direction from the city of El Paso, and pointed out to him certain lands which he (Rosen) represented to him to be the land which he owned and which he represented to be worth $10 an acre and that there was a good market for said land; that he (Rosen) desired to convey his said eight sections of land in El Paso county to him (Borschow) in exchange for the land which he (Borschow) owned in El Paso and Hudspeth counties; that thereafter, about the 5th day of February, 1930, he and Rosen entered into a written contract for the exchange of said lands; that he was induced to act and enter into said contract for said exchange of said lands by reason of Rosen’s said representations as -above previously made, and that but for said representations he never would have made said exchange contract; that thereafter, pursuant to said contract, he (Borschow) conveyed his said land to Rosen, and that Rosen did in fact convey, execute, and deliver to him (Bor-schow) deeds conveying to him eight sections of land in El Paso county, and which he (Borschow) accepted, believing the same to cover the lands which Rosen had pointed out to him as above stated; that thereafter when he made a survey of the lands actually conveyed to him by Rosen he discovered for the first time by said survey that the eight sections of land pointed out to him were an entirely different eight sections, the nearest of which is located some' five miles farther east from the city of El Paso than the land pointed out to him by Rosen; that the land actually conveyed to him by Rosen consists of barren, rocky, mountainous ground of the value of $3.50 per acre and not $10 an acre as represented to him and as he believed the value to be; that each section of land contained 640 acres; that, by reason of the fraud, and misrepresentations, Borschow alleges that he has been damaged in the sum of $46,-080, for which he sues.

Rosen denied that he had made the representations alleged by Borschow, and alleged that Borschow had misrepresented to him the quality, value, and character of the land owned by him in El Paso and Hudspeth counties.

The court sustained Borschow’s exception to Rosen’s answer pleading fraud on the part of Borschow as a defense to Borschow’s suit, whereupon Rosen filed a cross-action against Borschow alleging misrepresentations made to him by Borschow as to the quality, character, and value of the land he owned, and to his (Rosen’s) damage in the sum of $42,-500, for which he asked judgment.

Borschow demurred generally to the cross-action, and by special exception set up the two years’ statute of limitation. The court overruled the general demurrer and special exception, and submitted the case to a jury on special issues. On the special issues subr mitted, the jury found:

(1) Rosen pointed out and represented to Borschow land other than the land thereafter conveyed to Borschow by Rosen as the land the then subject of negotiation between them.

(2) In consummating the exchange of the properties, Borschow did not' rely on ánd believe the land conveyed to him was the same land pointed out to him by Rosen as such land.

(3) Such representations made by Rosen to Borschow as to the location of the land did not operate as a material inducement to Borschow in consummating the exchange of the properties without which Borschow would not have made the exchange.

The court did not submit to the jury any issue on Rosen’s cross-action.

On the jury’s findings, judgment was entered that Borschow take nothing by his suit against Rosen and that Rosen take nothing in his cross-action against Borschow.

Borschow prosecutes this appeal.

Opinion.

The exchange of deeds between Borschow and Rosen for the lands in controversy occurred on February 5, 1930. Borschow filed this suit on July 1,1931, and his first amended original petition on which the ■ trial was had was filed on September 13, 1932. To Borschow’s amended petition Rosen filed his cross-action on September 23, 1932. On September 24, 1932, Borschow filed a supplemental petition in answer to the cross-action, and therein, by special exception, pleaded the statute of limitations of two years in bar of all demands embraced in said cross-action. The court sustained exceptions to portions of Rosen’s amended answer, but overruled the exception, pleading limitation of two years, and to that portion of the answer designated as paragraph No. 7, in which Rosen, in substance, pleaded that, after said land and all of it was deeded to Borschow by Rosen, Bor-schow accepted and ratified said exchange of land and affirmed the contract, that is, that when Borschow first complained to him (Ro-sen) that he was dissatisfied with the property deeded- to him and Rosen offered to deed back said lands, Borschow refused to do so, thus ratifying and confirming said exchange of lands, and that by said refusal Borschow is estopped to claim any damages by reason of said exchange. For some reason unexplained by the record the court did not submit the cross-action to the jury, and permitted Rosen’s said paragraph No. 7 to be read to the jury in connection with the rest of his answer, to which reading Bor-schow excepted.

Borschow submits error in overruling his exception urging limitation of two years. While the court overruled the exception, no part of the cross-action was submitted to the jury, and the court entered judgment that Rosen take nothing by his cross-action. We think reversible error is not made to appear in overruling the exception.

On the trial the court permitted Rosen to introduce in evidence, over objection, descriptions, values, and location of the lands and lots, deeded to him by Borschow in their exchange of lands.

Borschow lfieaded that by reason of certain representations and his reliance thereon he had exchanged his lands for the lands deeded to him by Rosen, and that in said exchange he had been damaged $46,OSO.

To said pleading Rosen answered by general denial and specially denied that Bor-schow had been damaged by reason of said exchange of- properties, and alleged that Borschow had received from him “more value than he had parted with, and for that reason he was not entitled to recover.”

Borschow submits error in permitting the introduction of evidence as to the description, values, and location of the land and lots given by him in exchange. The suggestion is that, where Rosen was sued for damages for fraud in the exchange of lands, it is no defense to such action that Borschow was also guilty of fraud in such exchange of property. Borschow refers us to Chaney v. Coleman, 77 Tex. 100, 13 S. W. 850, and to Blair v. Baird, 43 Tex. Civ. App. 134, 94 S. W. 116. Both of those cases were suits for cancellation of the conveyance on account of fraudulent representations inducing the conveyance, a remedy in equity based upon a dis-affirmance of writing and in which the petitioner seeks to have the instrument set aside on the ground that the execution was induced by fraud, deceit, artifice, or imposition, and in such suits it is held in the cases referred to that the action may not be defeated on the ground that the petitioner himself was guilty of fraud or misrepresentation. The object of such suit, and it is a condition precedent to the granting of relief by cancellation, is that the situation of the parties is such that both parties may be restored to their former position as to the property involved. But it would serve no useful purpose to discuss the rules, or the reason for the rules, that apply to cancellation of contracts. This is a suit at law for damages and not cancellation.

The petition and the evidence show that the parties contracted to and did make an exchange of real estate. In contracting, each of the parties seem to have indicated and estimated to the other a money value be XJlaced upon the property, either by the piece or by the acre, he was putting in the exchange. So that the very gist of appellant Borschow’s cause of action was the false and fraudulent representations as to the location and the value of the land exchanged to him for his property, and upon the truth of which representations he relied to his damage. The representations, whether in a suit for cancellation or in a suit for damages for a breach of contract, must be shown to be false, that he relied upon them as being true, and that he was actually deceived by them. Kirkland v. Rutherford (Tex. Civ. App.) 171 S. W. 1031; 7 Tex. Juris, p. 912, and the cases referred to in the notes.

The Jury found against appellant, Bor-•sehow,'on the issue as to whether Borschow relied on and believed the land conveyed to him was the same land pointed out to him, and that such representation as to the location of the land operated as a material inducement to Borschow in consummating the exchange, and without which Borschow would not have made the exchange.

Appellant, Borschow, in his third point submits that the court erred in permitting a letter written by Rosen to Borschow to be read in evidence over objection. The objection was that the letter was hearsay, self-serving, and irrelevant, and in brief and oral argument it is contended that the letter influenced the finding of the jury on the above-stated issues as to the representations and Borschow’s consenting to the exchange.

The letter is as follows:

“April 16th, 1931.
“Mr. M. Borschow, % The Texas Store, El Paso, Texas.
“Dear Sir: I was surprised today to hear from Mr. Walter Scott of this city regarding the trade you had with me in El Paso.
“When I was in El Paso you said that you would trade back, and if you still desire to do so, then I will trade with you. You to pay me all that I have been out on this property, taxes, interest, paving lien and etc., and other items paid by me, and I will pay you back for whatever interest you have paid to the State, and taxes paid by you.
“If this is satisfactory to you then we will make the return and it will not be necessary for you to spend money on law suits.
“Yours truly,
“[Signed] Sam Rosen.”

We think the letter is not altogether in the nature of a self-serving declaration, but more in the nature of an admission against interest. Borschow had a remedy by cancellation of the deeds and recovery of what he had given In exchange, of a suit for damages, either of which would involve practically the same issues of fact. The letter in effect offers to accomplish without suit what Borschow had the right to do by suit. Again the record shows that Borschow had offered in evidence a number of letters exchanged between the two referring to their exchange of properties commencing back as far as 1929, and the letter objected to seems to have been one in the series of letters passed-bétween them. Where a part of the correspondence on the subject was admitted, justice would seem to demand that the whole between the same parties, where relevant, be allowed in evidence. Werner v. Kasten (Tex. Civ. App.) 26 S. W. 322; New York, T. & M. Ry. Co. v. Gallaher, 79 Tex. 685, 689, 15 S. W. 694; Missouri, K. & T. Ry. Co. v. Criswell, 34 Tex. Civ. 278, 78 S. W. 388.

We think, in a case of this kind, where two remedies are available to the parties, it is a dominant and ultimate right in the vendee at any time pending the controversy and before suit is filed to propose to perform his obligation by performing one of the remedies, where he acts in good faith. Harding v. Garcia (Tex. Civ. App.) 17 S.W.(2d) 859.

We have concluded that the admission of the letter, under the circumstances, does not present reversible error.

We have considered points presented by Borschow not here discussed, and have concluded that they present no reversible error.

The case is affirmed.


author: HICKMAN, Chief Justice.

text:
    FIRST NAT. BANK IN STAMFORD v. JONES.
    No. 1113.
    Court of Civil Appeals of Texas. Eastland.
    May 5, 1933.

      Thomas & Thomas, of Anson, and B. P. Davenport, of Stanford, for appellant.
    E. V.' Hardwick, of Stamford, and Tom Davis, of Haskell, for appellee.
   HICKMAN, Chief Justice.

Appellant sued appellee on two promissory notes aggregating approximately $5,000, besides interest and attorneys’ fees, and caused a writ of attachment to issue and be levied on a tract of 175 ½ acres of land in Jones county, which attachment lien was sought to be foreclosed. The defense was that the land upon which the attachment was levied was the homestead of the defendant and not therefore subject to attachment. No issue of fact was raised by the evidence as to ap-pellee’s liability on the notes. On the homestead question the court in his main charge, after instructing the jury that the word “farm” used in the special issue meant the 175%-acre tract in controversy, submitted the following issue: “Has the defendant Jack Jones at all times since the fall of 1919 in good faith intended to move his family back to the farm and make it a permanent home for him and his family?” To which the jury answered: “Yes.”

The burden of proof was properly placed upon the appellee to establish the affirmative of the issue.

Upon request of appellee the court submitted this additional issue: “Do you find from a preponderance of the evidence that the defendant with his family occupied the farm in question as a home for several years prior to the fall of 1919?” To which the jury answered: “Yes.”

In obedience to a peremptory instruction by the court the jury found in favor of appellant for the principal, interest, and attorneys’ fees on the notes in suit, and on the verdict judgment was rendered in favor of appellant on the notes but denying it -a foreclosure of the attachment lien.

The material facts are as follows: Appellee is a married man with five children, the youngest of whom was twelve years of age when this case was tried. He moved to Jones county in 1906 and lived on the particular tract in question with his family until the latter part of 1913. His father and mother were also living on this land during that period. During the year 1914 he did not live on this tract, but about January 1, 1915, his father came to him and told him to move back to the farm in question and take charge of it; that it was his. He was the only living child of his parents at that time, the others having died while single and without issue. Title to this property during all this time was in appellee’s father, J. R. Jones. Following the invitation of his father he, with his family, moved back upon the premises in January, 1915, and his father and mother moved to the town of Stamford, where they continued to live during the remainder of their lives. During the period from January, 1915, until late in the fall of 1919, appellee and his family lived continuously upon the premises, cultivating and using same as their home. During the month of November, 1919, appellee purchased a house in the town of Stamford, into which he moved his family for ’the purpose of educating his children in the public schools. The family has continued to reside in this home in Stamford to this day, except for a few months in the summer of 1920, when they were on the farm with appellee. 1-Iis youngest child is still attending the public schools. The evidence amply supports the conclusion that appellee’s only purpose in moving his family to town was to educate his children, and that it was his intention at all times for the family to return to the farm as soon as-the purpose of the move to town had been accomplished. Appellee did not establish any business in town, but continued year by year to cultivate the land just the same as when his family resided thereon with him. He retained a portion of the residence on the farm wherein he kept a cook stove, cooking utensils, bed, and other necessary articles of furniture for his use on occasions when he stayed there. He raised his meat on the farm and kept milch cows and other stock thereon. He raised chickens on the farm and would take them in to his family in town to supply their table. His mother died in 1924, and his father in 1929. We presumed they each died intestate, since both briefs so treat the facts. The attachment was levied subsequent to the death of the father. After the year 1915 appellee erected valuable and permanent improvements upon the property, consisting of new barns, sheds, and windmills, all at his own expense. During the year 1928 appellee executed a deed of trust to secure a loan to the John Hancock Life Insurance Company, in which the town property owned by him was designated as his homestead. This deed of trust covered a tract of land owned by him in Jones county, but not the tract here claimed as his homestead. Both he and his wife testified that they did not know this homestead designation was in the instrument when they executed it. No question of estoppel on account of this designation is presented.

The principal contention of appellant is that, under the facts, a peremptory instruction in its favor should have been given. If we have correctly interpreted the record and the briefs, the parties have proceeded upon opposite theories of the applicable law. It seems to have been, and still to be, appellant’s theory that appellee could have no homestead rights in the farm until after he becamé the owner thereof upon the death of his father; that prior to that time he had acquired a home in Stamford and never abandoned this urban homestead after he became the owner of the farm, and therefore acquired no homestead interest in the farm. On the other hand, appellee’s theory seems to have been, and to be, that he acquired the homestead right in the farm prior to the time he acquired the town property in the fall of 1919 and has never abandoned that homestead right. The jury found upon sufficient, if not uncontradieted, evidence that appellee resided upon this property with his family as a home for several years prior to the fall of 1919. This covers the period from January, 1915, to November, 1919. He was not the owner of the property at that time, but he did have such a possessory right therein as would support his claim of homestead. American Nat. Bank v. Gruger. 31 Tex. Civ. App. 17, 71 S. W. 784; Birdwell v. Burleson, 31 Tex. Civ. App. 31, 72 S. W. 446; First Nat. Bank v. Dismukes (Tex. Civ. App.) 241 S. W. 199; Riggs v. First Nat. Bank (Tex. Civ. App.) 24 S.W.(2d) 454; Davis v. Lund (Tex. Com. App.) 41 S.W.(2d) 57; 22 Tex. Jur. p. 243, § 169; Nunn on Exemptions, pp. 114, 115.

It is contended that the possessory right under which appellee and his family occupied the farm during the lifetime of appel-lee’s father, the owner, if regarded as sufficient to support the claim of homestead during that period, terminated upon the death of the father, and that, since that right ceased when the relationship was dissolved by the latter’s death, in order to support his present claim of horqestead it devolved upon him to show that he re-established his right thereto by possession and use after acquiring the fee title to the land. This contention is supported by the decision of the Court of Civil Appeals at Texarkana in the case of First National Bank v. Wallace, 13 S.W.(2d) 176, but the holding in this particular was overruled by the Supreme Court in Wallace v. First National Bank, 120 Tex. 92, 35 S.W.(2d) 1036. Upon the authority of this latter decision we hold that the homestead right acquired by appellee prior to the time when he became the fee owner was not destroyed when he became the fee owner, but, on the contrary, was enlarged by the acquisition of the greater estate. It follows that it was not necessary for appellee to cause his family to move back upon the farm after the death of J. R. Jones and again establish a home there in order to support his claim of homestead therein.

It is contended that the real issue to be determined by the jury was whether the land in question was the homestead of ap-pellee on the date the attachment was levied, and that, since such issue was not submitted to the jury, there is no basis in the verdict for the judgment rendered. We cannot adopt this view. Of course, the determinative question was whether or not the land was appellee’s homestead on the date of the levy; but, in determining that question, the only real fact issue was appellee’s intention. The undisputed facts presented a situation where the question of whether appellee’s homestead consisted of the farm in question or the residence in the town of Stamford was dependent upon his intentions. Had the jury believed that appellee left the farm with no intention to return, or that at any time before the trial, after acquiring the property in Stamford, he formed the intention not to return to the farm, then the urban property became his homestead. On the other hand, if appellee at all times after leaving 'the farm intended to return thereto and make it his permanent home, then he never abandoned the homestead right acquired there before the purchase of the urban residence. The court submitted the question of intention to the jury, and, it having been answered favorably to appellee’s contention, the conclusion readily follows that the farm was appellee’s homestead on the day of the levy of the writ of attachment. No jury finding of that conclusion was essential under the facts of this case.

There is no merit to appellant’s contention that the trial court erred in refusing to grant it a new trial on account of newly discovered evidence. We shall not lengthen the opinion by setting out even the substance of this evidence. It is sufficient to state that it was a matter addressed largely to the discretion of the trial court, and that it is not an abuse of that discretion to refuse a new trial where the evidence was forgotten rather than newly discovered, or where the parties failed to exercise due diligence to discover its existence before the trial. Gregg v. Bankhead, 22 Tex. 245; Hatchett v. Conner, 30 Tex. 104; Griffith’s Heirs v. Eliot, 60 Tex. 334; T. & N. O. Ry. Co. v. Scarborough, 101 Tex. 430, 108 S. W. 804; Kelsey v. Myers (Tex. Civ. App.) 29 S.W.(2d) 855.

' There are many assignments in appellant’s brief. We have not singled them out and discussed them separately, but what has been written disposes of every material contention urged. Not having sustained any of them, it follows that the judgment of the trial court should be affirmed, and it is accordingly so ordered.


author: BLAIR, Justice.

text:
    J. D. McCOLLOM LUMBER CO. v. WHITFIELD et al.
    No. 7842.
    Court of Civil Appeals of Texas. Austin.
    April 12, 1933.
    Rehearing Denied April 26, 1933.
    See, also, 53 S.W.(2d) 77.
    Carter Dalton and J. D. Burns, both of San Angelo, E. I-I. Swaim and Annie Justice Swaim, both of Eden, and Frank Hartgraves, of Menard, for appellant.
    Critz & Woodward, of Coleman, for appel-lee.
   BLAIR, Justice.

This appeal presents the sole question of whether, under the facts proved, the material-man’s lien of appellant, McCollom Lumber Company, for lumber and material furnished to erect a dwelling bouse on homestead land, is superior to the prior existing vendor’s lien of appellees Whitfield, securing the notes given in part payment of the land. The liens arose as follows:

Appellees T. E. Whitfield and wife sold W. H. Flippin and wife 357½ acres of land, retaining a vendor’s lien to secure the notes given in part payment of the land. The Flip-pins immediately occupied the portion of the land involved as their homestead; and later, desiring to improve their said homestead, executed a materialman’s lien and a note for $1,-350 to appellant, McCollom Lumber Company, for lumber and material to erect a six-room dwelling house on the land, which they have continued to use and occupy since its completion as their homestead. The house was not .attached to any existing building on the land, but was a separate and distinct building which the evidence shows to be a frame structure. It is agreed that the materialman’s lien contract was executed in accordance with the provisions of article 16, § 50, of the Constitution, and of article 5460, R. S. 1925, relating to fixing a materialman’s contract lien for improvements on the homestead. The materialman’s contract was duly filed and recorded on the date of its execution, in the mechanic’s lien records, before any' of the material had been delivered; and appellant contended that, by filing and recording its materialman’s contract, it thereby complied with the provisions of article 16, § 37, of the Constitution, and of articles 5452 and 5453, R. S. 1925, with regard to fixing a constitutional or statutory materialman’s lien on the dwelling house or improvements made on the homestead, and which lien appellant contended was made superior to the vendor’s lien by virtue of the provisions of article 5459, R. S. 1925, relating to the priority of a ma-terialman’s lien over all existing liens. This materialman’s lien indebtedness was later renewed and extended by a deed of trust executed by the Flippins to appellant, covering the land involved as well as the improvements thereon.

A trial to the court without a jury resulted in a judgment foreclosing the vendor’s lien, not only as a prior lien on the land, but also as a prior and superior lien on the dwelling house, it being the view of the trial court, as expressed in its finding of fact, that section 16, art. 37, of the Constitution, and articles 5452 and 5453, R. S. 1925, with regard to fixing constitutional or statutory ma-terialman’s liens, had no application to homestead property; and that, since both the vendor’s lien and the materialman’s lien were mere contract liens, the priority of these liens was determinable under the settled law that the first in time is the first in law.

We have reached the conclusion that the trial court erred in not declaring the ma-terialman’s lien superior to the vendor’s lien on the dwelling house itself.

Beginning with the earlier decisions, the courts have uniformly held that all the aforementioned constitutional and statutory provisions prescribe a general plan to be pursued with regard to all liens as are treated in the entire chapter. Cameron & Co. v. Marshall, 65 Tex. 7. The authorities are also uniform in holding that under the provisions of article 16, §§ 37 and 50,- of the Constitution, and the statutes in aid thereof, both contract and constitutional or statutory liens may be fixed or, secured on homestead property by a compliance with the constitutional or statutory mode and manner of fixing or securing these liens. Lippencott v. York, 86 Tex. 276, 24 S. W. 275, 276. And, as was held in the Lippeneott Case, article 16, § 37, of the Constitution, “clearly evidences the solicitude of the people to give protection to the classes named in it as does the former [article 16, § 50] to protect the homestead from forced sale, and from liens upon it for any purposes other than those enumerated.” This authority also declared the distinction between contract and statutory liens upon homestead property, the mode and manner of fixing these liens, as well as the mode and manner of their enforcement; and it also declared with respect to the priority as between different classes of liens on homestead property, as follows: “Mechanics’ and like liens, when fixed and secured, as to the improvements made, will be given priority over a mortgage or like lien existing on the land at the time the facts occur which gave right to such lien, while a lien created by contract solely will attach to improvements subsequently made on the land covered by the lien, and will not give way to a junior lien of the same character coming into existence after the improvements were made.”

This holding of the Supreme Court clearly disposes of the issue of priority of liens in favor of appellant under the undisputed facts in this ease; that is, appellant showed the execution of its materialman’s lien contract with all the formalities required by article 16, § 50, of the Constitution, and of article 5460, R. S. 1925, as fixing a materialman’s contract lien upon the homestead. It further showed a strict compliance with the provisions of article 16, § 37, of the Constitution, and articles 5452 and 5453, R. S. 1925, in aid thereof, by duly filing and recording in the manner and within the time required its ma-terialman’s lien contract, thereby securing, and fixing its statutory materialman’s lien on the dwelling house or improvements made on the homestead land. While it is true that the filing for record of the materialman’s lien contract was not necessary in order to fix the contract lien as between the materialman and the owners, still, as was pointed out in the Lippeneott Case, the purpose or spirit of the constitutional and statutory provisions aforementioned was to also fix and secure a statutory materialman’s lien as well as to establish its priority over all existing liens on the improvements made on the homestead. And article 5459 provides that the statutory lien so fixed or secured “shall attach to the house, building or improvements * * * in preference to any prior lien or encumbrance or mortgage upon the land upon which the houses, buildings or improvements have «been put; ” and that “such house, building or improvement” may be “sold separatelyand we hold that such house, etc., may be removed where the removal will not injure the land.

The cases cited by appellees are not in point. They relate to either contract liens, to which the law gives the first in time priority; or to paving liens; and no statute authorizes the fixing of a materialman’s lien on homestead property for furnishing material to pave an abutting street; hut such a lien is created solely by contract, and is inferior to existing contract liens. State Trust Co. v. Morrison (Tex. Com. App.) 282 S. W. 214; Fuller Construct. Co. v. Hudson (Tex. Civ. App.) 11 S.W.(2d) 541.

Nor do we sustain appellees’ contention that the execution of the deed of trust in renewal and extension of the mechanic’s lien indebtedness constituted a waiver‘of the lien or a failure to enforce the lien within the time prescribed by the statutes involved. This question is settled against the contention of appellee in tlie early case of Myers v. Humphries (Tex. Civ. App.) 47 S. W. 812, where it is held that the enforcement of the original lien would not be barred because the holder of the mechanic’s lien notes took a renewal note and a deed of trust securing it, even though the deed of trust was for additional security, the court holding that, since the debt remained, the lien as an incident to it continued in force as security, and that the mechanic’s lien was not thereby waived.

Appellees contend, however, that no relief can be given appellant in this case, because it failed to prove that the building in question, placed as improvement upon the homestead, could be removed without injury to the land. Appellant pleaded that the house could be removed without injury to the land, but the record does not disclose any proof on the issue, except that the house was a frame house and not attached to any other building or improvement. However, the trial court erroneously concluded that the vendor’s lien was superior to the mechanic’s lien, and the judgment was predicated, according to the findings of fact, upon that conclusion. We are therefore of the opinion that the ends of justice will be better served by reversing and remanding the cause for a trial of the issue of whether the dwelling house may be removed without injury to the land. If so, then appellant will clearly have the right to have the building sold separately and to remove it from the land.

Except as to this issue, the judgment will be in all other respects affirmed. The judgment of the trial court is affirmed in part' and in part reversed and remanded, in accordance with this opinion.

Affirmed in part, and in part reversed and remanded. •


author: FUNDERBURK, Justice

text:
    INDEPENDENT-EASTERN TORPEDO CO. v. HERRINGTON et al.
    No. 1079.
    Court of Civil Appeals of Texas. Eastland.
    March 3, 1933.
    For majority opinion see 59 S.W.(2d) 222.
   FUNDERBURK, Justice

(dissenting).

I find myself unable to concur in the view that the provision- of R. S. 1925, art. 8307, § 6a, that “the association shall not have the right to adjust or compromise such liability against such third person without notice to the injured employee or his beneficiaries and the approval of the board, upon a hearing thereof,” has the effect to prohibit a bona fide transfer, for a valuable consideration, to the insurance carrier of'the injured employee’s entire cause of action against the third party. In this state the right to transfer a cause of action is well recognized. 5 Tex. Jur. 504. The transferee of such may sue in his own name. Cleveland v. Heidenheimer, 92 Tex. 108, 46 S. W. 30. When the transferor has parted with all his title, he has not the right to maintain suit. Amsler v. D. S. Cage & Co. (Tex. Civ. App.) 247 S. W. 669; Winn v. Ft. W. & R. G. Ry. Co., 12 Tex. Civ. App. 198, 33 S. W. 593; East Texas Fire Ins. Co. v. Coffee, 61 Tex. 287. Without the transfer the insurance company had the right, under authority of the statute, to bring the suit in its own name and prosecute it to final judgment. In such a case its right derived from the statute would also be limited by the terms of the statute. Its true position would be that of a statutory trustee for the injured employee. It could not compromise or adjust the claim without notice to the employee and the approval of the Industrial Accident Board. Its beneficial interest in the proceeds of the judgment would be limited to the amount sufficient to reimburse it for compensation paid and expenses. But the transfer in question, if valid, vests in the insurance company the entire cause of action. It is no longer dependent upon the statute for authority to sue. Suppose that, acting under the authority, of the transfer (entirely sufficient unless the statute provides to the contrary), the insurance company had brought the suit and prosecuted it to final judgment, recovering- the same amount, namely, $20,000. To whom would the excess over the amount of compensation paid the injured employee belong- — the insurance com-' pany or the injured employee? The answer to that question, it seems to me, will be determinative of the real question involved. The answer to that question is dependent upon whether or not the statute prohibits such a transfer. I canqot appreciate the force of the argument that such a transfer would constitute a compromise or adjustment of the claim. In the case just supposed there would be no compromise or adjustment, since the judgment would be obtained at the end of the lawsuit. It would not be argued, I take it, that the employee could not transfer his cause of action to one other than the insurance company. If he can, then certainly thei’e would be no law to prevent such transferee from in turn transferring the cause of action to the insurance company. If the transfer is for any reason void, it must be, not because of any prohibitory provision of the statute, but because of some principle of public policy.

I am unable, however, to satisfy myself that to permit such a transfer would contravene public policy. The law permits transfers of causes of action from clients to their attorneys. Galveston, H. & S. A. R. Co. v. Ginther, 96 Tex. 295, 72 S. W. 166. A trustee. may purchase property of the cestui que trust. Scott v. Mann, 33 Tex. 725. There is no absolute prohibition against an executor, administrator, or guardian receiving transfers of property from the estate or ward. In all such cases it seems to be the view that the public welfare which public policy seeks to preserve is taken care of by the application of different rules placing the burden upon the fiduciary to show the good faith and fairness of the transaction.

If the transfer is not void, then it in- no sense, so far as I can see, constitutes a compromise or adjustment of the claim. The prohibition against the insurance company compromising the claim without notice to the employee and the approval of the board has reference necessarily to the claim of the employee. If he has transferred his cause of action, then he has no claim to compromise and there remains nothing upon which the statute can operate. The reason for the statute wholly ceases to exist. It may be desirable that the Legislature prohibit such transfers but I am unable to convince myself that it has done so, by any provision in the statute in question.


author: LESLIE, Justice.

text:
    RUSSELL et ux. v. GENERAL CONST. CO.
    No. 1102.
    Court of Civil Appeals of Texas. Eastland.
    April 21, 1933.
    Rehearing Denied May 19, 1933.
    Scarborough, Ely & King, of Abilene, for appellants.
    Wagstaff, Harwell, Wagstaff & Douthit, of Abilene,'for appellee.
   LESLIE, Justice.

The General Construction Company, a corporation, filed this suit against C. K. Russell and wife, seeking to foreclose a paving lien against their homestead in Merkel, Tex., an incorporated city. The defendants entered a general denial, set up cross-action, claiming damages against the construction company, in that their property had been injured (1) by the negligent raising of the street grade, thereby diverting water from its natural drainage and causing same to flow toward and about defendants’ residence; (2) grading and paving unskillfully and negligently done; (3) failure to construct sufficient drrdns and gutters. Cancellation of the paving certificate was sought on the ground that the company did not substantially comply with the paving contract, which was therefore without consideration.

At the conclusion of the trial, the court directed a verdict for the plaintiff. The defendant appeals, predicating error on five propositions. The controlling contentions proceed upon the theory that the city and the construction company were joint tort-feasors, and that the company was therefore liable for damages alleged. The parties will be deferred to as in the trial court.

The defendants’ main contention is fairly stated in their brief in this language: “The only question in the case was, the plaintiff having constructed the pavement under the supervision of the City -of Merkel, and the City of Merkel having furnished the grade, was the plaintiff liable to the defendants for the damages inflicted upon the defendants’ property?”

An examination of the record discloses without controversy: (1) That the paving was done by .virtue- of a city ordinance enacted under authority of law. Article 1086 et seq.; arts. 1104, 1105, R. S. 1925; (2) the special assessment and certificate conformed to statutory requirements, and the latter contained recitals to that effect; (3) the construction company completed the improvements in accordance with the terms of its contract with the city, which accepted the work; (4) the defendants’ property being homestead, they executed a mechanic's. lien on same, by the terms of which they secured their proportion of the cost of grading and paving; (5) the defendants agreed to .the assessment by the city in favor of the plaintiff “in consideration of excavating, grading and paving and constructing curbs and gutters and otherwise improving the premises in said street under the terms of the contract between the City of Merkel and the General Construction Company and the specifications therein referred to”; (6) the mechanic’s lien was cumulative of the obligation of the assessment and certificate issued thereon; (7) plans and specifications for the paving and improvement were prepared and furnished by the city through its engineer, who, in behalf of the city, supervised the construction of the work for the purpose of seeing that it was done in accordance with the contract; (8) the construction company, in making the grade and in laying the pavement, carried out the plans and specifications of the city of Merkel.

Under the foregoing circumstances, the judgment of the trial court is correct. It is fundamental that the Legislature may establish or change the grade of streets and highways by direct act, or it may delegate that power to municipalities, thereby enabling them to make such changes in that respect from time to time as public necessity and convenience require. 10 R. G. L. p. 97, § 85; 13 R. O. L. p. 97, § 86; article 1086 et seq., and articles 1104, 1105, R. S. 1925. Pursuant to compliance with, the cited provisions of our statute, the city of Merkel, at the time of the acts complained of, had the power to change or establish the grade of its streets and provide for their pavement, etc. Hence, the city being within its legal right in making the public improvement, and the plaintiff construction company having .properly done the work, according to the plans and specifications, there would be no liability for damages against the company, though the street was elevated above the defendants’ property 'and cast water thereon, contrary to the natural flow of the same. The work of the construction company was not its personal act, but that of the city of Merkel, which, under definite conditions, was liable for damages, if any, flowing from the act complained of. Salliotte v. King Bridge Co. (C. C. A.) 122 F. 378 (6), 65 L. R. A. 620 ; 43 C. J. p. 1159, § 1917.

It will be observed that the city of Merkel is not a party to this suit, and we are not here dealing with the question of a property owner’s right to recover damages for injuries to his property as those rights arise under article 1, § 17, of the Constitution, which provides: “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.

There is a further reason why the judgment should be affirmed. In the mechanic’s lien contract executed by the defendants, they obligated themselves to pay for the grading and paving when done in accordance with the plans and specifications determined and agreed upon between the city of Merkel and the construction company. There is no question in this case that the grade, considered from an engineering standpoint, and in view of public necessity and convenience, was not a proper one, nor that the pavement was not properly constructed. Under these circumstances, it is not believed that the law would permit the defendants to recover from the contractor damages for injuries which were incidental to the doing of the work according to “specifications” agreed to by all parties. City of Texarkana v. Talbot, 7 Tex. Civ. App. 202, 26 S. W. 451. Under the facts stated, the agreement should be treated as a consent to the grade, etc., and therefore a waiver of the incidental damages resulting Article 1, § 17, Constitution, supra.

The authorities relied on by the defendants deal with the liability of the city for damages to abutting property owners when their property has been taken of damaged for public purposes contrary to the above provision of the Constitution. A different principle applies in such cases, and they are not controlling here.

For the reasons assigned, the judgment of the trial court is affirmed.


author: MURRAY, Justice,

text:
    I. & G. N. WOOD & COAL CO. et al. v. SCHILLING.
    No. 9061.
    Court of Civil Appeals of Texas. San Antonio.
    April 26, 1933.
    Rehearing Denied May 17, 1933.

      J. B. Lewright and Walter M. Groce, both ■of San Antonio, for plaintiffs in error.
    H. C. Carter, Champe G. Carter, Randolph L. Carter, and Perry J. Lewis, all of San Antonio, for defendant in error.
   MURRAY, Justice,

P. E. Schilling instituted suit against I. & G. N. Wood & Coal Company, Lloyds America, and Elliott Jones, as attorney in fact for Lloyds America.

The suit asked damages for the negligent killing of Schilling’s seven year old daughter, by a truck owned and operated by I. & G.- N. Wood & Coal Company. Lloyds America and Elliott Jones, attorney in fact, were joined as defendants as the liability insurance carriers of the wood and coal company.

The defendants below urged misjoinder of ■causes of action and misjoinder of parties defendant, by verified pleas and also by special exceptions, all of which were overruled by the court below. This action of the trial court was excepted to by the defendants.

There was error in this action of the trial court. Cuellar v. Moore (Tex. Civ. App.) 55 S.W.(2d) 244; Ray v. Moxon (Tex. Civ. App.) 56 S.W.(2d) 469; Cannon-Ball Freight Lines v. Grasso (Tex. Civ. App.) 59 S.W.(2d) 337; and Lander v. Jordan (Tex. Civ. App.) 59 S.W.(2d) 959.

Defendant in error contends that the pleas in abatement were waived because not acted upon at the proper time. We do not agree with this contention. At the term of the court at which these pleas in abatement were filed the following order of continuance was entered: “Be it remembered that on this October 28, A. D. 1931, at a regular term of this court, counsel for defendants in the above numbered and entitled cause brought to the attention of the court the pleas of alleged mis-joinder of causes of action and of alleged misjoinder of parties defendant herein, heretofore filed in this cause by defendants, this being an appearance ease at the present term of this court, and it appearing to- the court that because of other business of the court no trial herein upon said dilatory pleas can be had during the present term of the court, and it further appearing to the court that it is agreeable to counsel for plaintiff herein and counsel for defendant herein that this cause may be continued until the next regular term of the court, but wholly without -prejudice to said dilatory pleas or either of them, it is accordingly ordered by the court that this cause be, and it is hereby, continued until the next regular term of the court but wholly without prejudice to any of the rights of the defendants herein, or either of them, under their said dilatory pleas now on file in this cause.”

It is clear from this order that these pleas were called to the attention of the trial court at the same term at which they were filed and by the court passed without prejudice. Rule No. 24 for District Courts (142 S. W. xix) reads: “24. All dilatory pleas, and all motions and exceptions relating to a suit pending, which do not go to the merits of the case, shall be tried at the first term to which the attention of the court shall be called to the same, unless passed by agreement of parties with the consent of the court; and all such pleas and motions shall be first .called and disposed of before the main issue on the merits is tried.”

These pleas having been called to the attention of the trial court and passed by agreement of all parties, with the approval of the court, could not be held to have been waived because not again called to the trial court’s-attention at the next term of court. Plaintiffs in error had done all that was required of them under rule 24. Especially is this true where these pleas were taken up without objection and disposed of on their merits.

Defendant in error contends that this judgment should not be reversed as to I. & G. N. Wood & Coal Company, even though we hold that the insurance company was not properly a party to the suit. The record discloses that the pleas in abatement and the exceptions raising the misjoinder of causes of action and of parties were made on behalf of all defendants, and the action of the court in overruling same was excepted to on behalf of all defendants; we therefore think that the I. & G. N. Wood & Coal Company is entitled to assign 'as error this action and have the entire judgment remanded.

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


author: LATTIMORE, Judge.

text:
    Jesse FEATHERSTONE v. STATE.
    No. 15945.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    B. R. Reeves, of Palestine, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

•Conviction for driving an automobile on a public street while intoxicated; punishment, a fine of $100.

The record is here' without statement of facts or bills of exception. The judgment and sentenqe appear regular.

The judgment will be affirmed.


text:
    Miguel C. GARCIA v. STATE.
    No. 15769.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    C. C. Bryant and Fred J. Newland, both of Harlingen, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

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

The facts amply support the verdict of the jury. Deceased was engaged in tearing down a house upon which appellant made some claim, when appellant and another rode up to the place and at once shot and killed deceased. The defensive theory was that of a killing in self-defense, which was supported by appellant and some of his witnesses. The matter seems to have been submitted to the jury in a charge to which no exceptions were taken. We see no need for setting out the evidence at length.

We find in the transcript six bills of exception, none of which seem to present reversible error. Bill No. 1 presents the objection of appellant to a question, which objection was overruled, and the answer of the witness, if any, is not set out in the' bill. The same thing is true of bills of exception 2 and 3. Bill No. 4 complains that the state’s attorney forced a defense witness to hand over a slip of paper, to which action objection was made, but the bill wholly fails to show what became of' the paper, or what its contents were, or that same was used in any manner by the state’s attorney. Bill No. 5 complains of the admission of the testimony of a juvenile witness claimed to be too young and not possessed of sufficient intelligence. The bill is qualified 'by the court in a manner which shows that there is nothing in_ the objection. The remaining bill complains that a state witness-was allowed to testify where the body of deceased was found. There are some grounds of exception stated in the bill, but no certificate of the truth thereof, and no such facts stated as would enable us to know how the matter could be injurious.

Finding no error in the record, the judgment will be affirmed.


author: MORROW, Presiding Judge.

text:
    C. D. GREENE v. STATE.
    No. 16044.
    Court of Criminal Appeals of Texas.
    May 3, 1933.
    Harry Mason, Storey & Storey, and J. S. Cook, all of Vernon, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

Misapplication of public funds is the offense ; penalty assessed at confinement in the penitentiary for three years.

Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed.


author: CALHOUN, Judge.

text:
    Wiley B. HERVEY v. STATE.
    No. 15956.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    Joe V. Moore, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Aus>-tin, for the State.
   CALHOUN, Judge.

The offense, assault to murder; the punishment, fifteen years in the penitentiary.

The record is before us without a statement of facts or bills of exception. No defect either in the indictment or procedure has been pointed out or has been perceived. No question is presented for review.

Tbe judgment is affirmed.

PEE CUEIAM.

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


author: MOEEOW, Presiding Judge.

text:
    J. R. HURST v. STATE.
    No. 15846.
    Court of Criminal Appeals of Texas.
    April 19, 1933.
    E. H. Cocke, of Wellington, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MOEEOW, Presiding Judge.

Unlawfully transporting intoxicating liquor is the offense; penalty assessed at confinement in tbe penitentiary for one year and one day.

Tbe evidence shows without contradiction that 'an officer, having information that the •appellant was engaged in the liquor traffic and probably had intoxicating liquor in his ■car, saw the appellant upon the street. When the officer started in his direction, the appellant fled in his automobile and continued his flight until he was stopped by an obstruction in the road. Appellant then got out of the car and ran. Upon searching the ear the ■officer found therein a large quantity of whisky.

Appellant testified that he was hauling the whisky for another party in order to acquire some money to use for the benefit of his sick wife. He sought a suspended sentence and introduced testimony showing his good reputation.

The only charge requested was given to the jury by the court.

There is nothing in the motion for new trial requiring discussion.

The penalty assessed is confinement in the penitentiary for one year and one day. The judgment will be reformed in accord with article 775, O. C. P., as amended by Acts 1931, c. 207, §. 1 (Vernon’s Ann. O. O. P. art. 775), so as to show that the appellant shall be confined in the penitentiary for a period of not less than one year and not more than one year and one day.

As so reformed, the judgment is affirmed.


text:
    Ollie KING v. STATE.
    No. 15977.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    Chas. T. Banister, Burle D. Daviss, and Claude L. Milburn, all of Corsicana, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

The offense, murder; the punishment, ninety-nine years in the penitentiary.

• Affidavit in proper form has been filed by appellant asking this court to dismiss his appeal.

The motion is granted, and the appeal dismissed.

PEE CUEIAM.

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.


author: LATTIMOEE, Judge.

text:
    William (Bull) NEWSOM v. STATE.
    No. 15881.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    Rehearing Denied April 26, 1933.
    A. C. Chrisman, of Cleburne, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMOEE, Judge.

Conviction for burglary; punishment, two years in the penitentiary.

The record is here without a statement of facts or bill of .exception. The indictment, the charge of the court, the judgment, and sentence being regular, the judgment will be affirmed.


text:
    Earl W. SANDERS v. STATE.
    No. 15814.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    A. A. Dawson, of Canton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The offense is unlawfully receiving stolen property; penalty assessed at confinement in the penitentiary for two years.

The evidence is sufficient to justify the conclusion that appellant was in possession of a stolen automobile. His confession was introduced in evidence, from which the theory arises that he was ignorant of the fact that the automobile was stolen. Appellant did not testify, but introduced evidence supporting his reputation as a law-abiding citizen.

In his closing argument counsel for the state used the following language: “Gentlemen of the Jury, we cannot tell you whether this defendant knew that car was stolen or not; we cannot go 'over there where he sits and split his mind open with an axe and show it to you.”

Objection to the argument as a comment upon the appellant’s failure to testify was made, and the request to withdraw it from the consideration of the jury was overruled. This matter is presented for review. Counsel representing the state in this court concedes that the remarks offend against the statute (article 710, C. C. P.) in which it is said that the failure of the accused to testify shall not be alluded to or commented on.by counsel in the cause. Application of the statute has been made in many cases. See Thompson v. State, 113 Tex. Cr. R. 45, 19 S.W.(2d) 316; Ainsworth v. State, 115 Tex. Cr. R. 321, 30 S.W.(2d) 310; Green v. State, 119 Tex. Cr. R. 230, 44 S.W.(2d) 726; Sweet v. State, 114 Tex. Cr. R. 341, 23 S.W.(2d) 370.

The judgment is reversed, and the cause remanded.


text:
    Frank SHEPHERD v. STATE.
    No. 15973.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    C. D. Little, of Pelly, for appellant.
    Lloyd W. Davidson, State’s AtSy., of Austin, for the State.
   CALHOUN, Judge.

The offense, attempt at burglary; the punishment, three years in the penitentiary.

The record is before us without a statement of facts or bills of exception. No defect either in the indictment or procedure has been pointed out or has been perceived. No question is presented for review.

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:
    Will WALLACE v. STATE.
    No. 15944.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    B. R. Reeves, of Palestine, for appellant.
    Lloyd W. Davidson, State's Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The offense is the unlawful possession of intoxicating liquor for the purpose of sale; penalty assessed at confinement in the penitentiary for one year.

The evidence heard before the jury is not brought to this court for review. Neither are there any bills of exception complaining of the rulings of the trial court. No errors requiring discussion or calling for a reversal of the judgment have been perceived.

The judgment is affirmed.


text:
    Wade WARD v. STATE.
    No. 15943.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    Clay Cotton, of Palestine, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for driving an automobile on a public street while intoxicated; punishment, a fine of $75.

The record is here without statement of facts or bills of exception. The judgment and sentence appear regular.

The judgment will be affirmed.


text:
    Foy WORDEN v. STATE.
    No. 15946.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The offense is burglary; penalty assessed at confinement in the penitentiary for a period of two years.

The indictment appears regular and regularly presented. The evidence heard in the trial court is not brought up for review.

In the motion for new trial no questions are presented which demand discussion in the absence of the evidence that was before the jury.

Complaints of the charge of the court appearing for. the first time in the motion for new trial are not tenable. Moreover, in the absence of the facts upon .which the conviction is based, appraisement of the complaints of the charge of the court is impracticable.

The judgment is affirmed.


text:
    Berta DOMINGUEZ v. STATE.
    No. 15932.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    C. L. Patterson and H. H. Jones, both of San Antonio, and Jno. P. Ehlinger, of La-Grange, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

Theft is the offense; penalty assessed at confinement in the penitentiary for a period of two years.

The record discloses that the appellant was regularly indicted and tried before a jury. A verdict was rendered under a proper charge of the court. No error has been perceived in the proceeding; nor has our attention been drawn to any fault in the procedure or rulings of the trial judge which would warrant a reversal of the judgment.

There is a suggestion in the motion for new trial that the making of the plea of guilty was due to persuasion and fright. The complaint is not verified in any manner, and the motion for new trial does not,contain the affidavit of the appellant.

The judgment is affirmed.


author: McCLENDON, Chief Justice.

text:
    W. E. HANEY et al., Appellants, v. TEMPLE TRUST COMPANY, Appellee.
    No. 7805.
    Court of Civil Appeals of Texas. Austin.
    Nov. 30, 1932.
    On Appellee’s Motion for Rehearing April 19, 1933.
    Dibrell & Starnes,' of Coleman, for appellants.
    J. B. Daniel, of Temple, and Critz & Woodward, of Coleman, for appellee.
   McCLENDON, Chief Justice.

This cause is companion to cause No. 7804 (Tex. Civ. App.) 55 S.W.(2d) 891, of the same style this day decided. The only difference in the two causes requiring mention is that in the cause at bar the alleged usurious interest payments were not sufficient to discharge the entire principal of the notes in question. The undisputed balance, however, was upon notes which were not matured except under a clause which authorized accelerated maturity based upon default in the notes sought to be canceled. This difference in the two causes does not call for any difference in decision. The questions presented and propositions urged in the two appeals are identical, and call for identical holdings.

For the reasons stated in our opinion in cause No. 7804, the trial court’s judgment is reversed, and the cause is abated and dismissed without prejudice.

Reversed, and cause abated and dismissed.

On Appellee’s Motion for Rehearing.

For the reasons stated in the opinion on rehearing in cause No. 7804 (Tex. Civ. App.) 55 S.W.(2d) 891, our former judgment is modified so as hereafter to read:

The trial court’s judgment is reversed, and the cause is abated and remanded to the trial court with instructions to retain it suspended upon the docket until the Coleman county suit is determined, and thereupon to proceed in accordance with the final result of that suit. In all other respects the motion for rehearing is overruled.

Granted in part, and in part overruled.


text:
    W. E. HANEY et al., Appellants, v. TEMPLE TRUST COMPANY, Appellee.
    No. 7807.
    Court of Civil Appeals of Texas. Austin.
    Nov. 30, 1932.
    On Appellee’s Motion for Rehearing April 19, 1933.
    Dibrell & Starnes, of Coleman, for appellants.
    •Jno. B: Daniel, of Temple, and Critz & Woodward, of Coleman, for appellee.
   McCLENDON, Chief Justice.

This cause is companion to cause No. 7804 (Tex. Civ. App.) 55 S.W.(2d) 891, of the same style, this day decided. The questions presented and propositions urged in the two appeals are identical and call for identical holdings.

For the reasons stated in our opinion in cause No. 7804, the trial court’s judgment is reversed, and the cause is abated and dismissed without prejudice.

Reversed, and cause abated and dismissed.

On Appellee’s Motion for Rehearing.

For the reasons stated in the opinion on rehearing in cause No. 7804 (Tex. Civ. App.) 55 S.W.(2d) 891, our former judgment is modified so as hereafter to read:

The trial court’s judgment is reversed, and the cause is abated and remanded to the trial court with instructions to retain it suspended upon the docket until the Coleman county suit is determined, and thereupon to proceed in accordance with the final result of that suit. In all other respects the motion for rehearing is overruled.

Granted in part, and in part overruled.


text:
    W. E. HANEY et al., Appellants, v. TEMPLE TRUST COMPANY, Appellee.
    No. 7809.
    Court of Civil Appeals of Texas. Austin.
    Nov. 30, 1932.
    On Appellee’s Motion for Rehearing April 19, 1933.
    Dibrell & Starnes, of Coleman, for appellants.
    Jno. B. Daniel, of Temple, and Critz & Woodward, of Coleman, for appellee.
   McCLENDON, Chief Justice.

This cause is companion to cause No. 7S05 (Tex. Civ. App.) 59 S.W.(2d) 1117, this day decided. The questions presented and the propositions urged in the two appeals are identical, and call for identical holdings, which are set forth in the opinion in cause No. 7804 (Tex. Civ. App.) 55 S.W.(2d) 891, of the same style this day decided.

For the reasons stated in the latter opinion, .the trial court’s judgment is reversed, and the cause is abated and dismissed without prejudice.

Reversed, and cause abated and dismissed.

On Appellee’s Motion for Rehearing.

For the reasons stated in the opinion on rehearing in cause No. 7804 (Tex. Civ. App.) 55 S.W.(2d) 891, our former judgment is modified so as hereafter to read:

The trial court’s judgment is reversed, and the cause is abated and remanded to the trial court with instructions to retain it suspended upon the- docket until the Coleman county suit is determined, and thereupon to proceed in accordance with the final result of .that suit. In all other respects the motion for rehearing is overruled.

Granted in part, and in part overruled.


text:
    W. E. HANEY et al., Appellants, v. TEMPLE TRUST COMPANY, Appellee.
    No. 7810.
    Court of Civil Appeals of Texas. Austin.
    Nov. 30, 1932.
    On Appellee’s Motion for Rehearing April 19, 1933.
    Dibrell & Starnes, of Coleman, for appellants.^
    Jno. B. Daniel, of Temple, and Critz & Woodward, of Coleman, for appellee.
   McCLENDON, Chief Justice.

This cause is companion to cause No. 7805 (Tex. Civ. App.) 59 S.W.(2d) 1117, this day decided. The questions presented and the propositions urged in the two appeals are identical, and call for identical' holdings, which are set forth in the opinion in cause No. 7804 (Tex. Civ. App.) 55 S.W.(2d) 891, of the same style this day decided.

For the reasons stated in the latter opinion, the trial court’s judgment is reversed, and the cause is abated and dismissed without prejudice.

Reversed, and cause abated and dismissed.

On Appellee’s Motion for Rehearing.

For the reasons stated in the opinion on rehearing in cause No. 7804 (Tex. Civ. App.) 55 S.W.(2d) 891, our former judgment is .modified so as hereafter to read:

The trial court’s judgment is reversed, and the cause is abated and remanded to the trial court with instructions to retain it suspended upon the docket until the Coleman county suit is determined, and thereupon to proceed in accordance with the final result of that suit. In all other respects the motion for rehearing is overruled.

Granted in part, and in part overruled.


author: MURRAY, Justice.

text:
    Adolph SEABRIGHT, Plaintiff in Error, v. Estella G. DE PANSZA et al., Defendants in Error.
    No. 9056.
    Court of Civil Appeals of Texas. San Antonio.
    April 19, 1933.
    Rehearing Denied May 10, 1933.
    Isaac Orme and H. B. Cline, both of San Antonio, for plaintiff in error.
    G. O. Brown, of San Antonio, for defendants in error.
   MURRAY, Justice.

We will designate the parties as they were designated in the court below.

Adolph Seabright instituted this suit against defendants upon an alleged note and to foreclose a chattel mortgage.

We do not find an objection reserved either in the statement of facts or by formal bill of exception other than exception taken to the action of the trial court in overruling motion for a new trial. There was no objection made or exception taken to the court’s charge. There are no proper assignments of error in the record.

The cause was tried before a jury, who, upon sufficient evidence, resolved all issues of fact against the plaintiff and in favor of the defendants.’

There being no fundamental error disclosed by the record, the judgment is affirmed.