author: HABB, C. J.

text:
    PANHANDLE & S. F. RY. CO. v. WILSON.
    No. 3924.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 14, 1932.
    Madden, Adkins, Pipkin & Keffer, of Amarillo, and Wilson, Randal & Kilpatrick, of Bubbock, for appellant.
    Chas. Nordyke, of Bubbock, for appellee.
   HABB, C. J.

The appellee sued the railway company, alleging in substance that on or about July 15, 1931, he was employed by the defendant as a pumper at Bittlefield. That by the terms of the contract of employment he acquired a certain seniority as employee. That he was receiving a salary of $110 per month and was ■classified as a pumper under section 3 of the contract which fixed the seniority of employees. That the contract further provided that the senior men of a certain class in a seniority district should be retained upon the reduction of the force or the number of employees. That under the contract he had certain grievances against the defendant which defendant had under advisement and during that time he was unjustly dismissed from the services, although his seniority was greater than the employee who displaced him as a pumper. That by reason of the fact that he was wrongfully discharged, he sustained damages in the loss of two months’ salary aggregating $220 and during the time was required to pay $40 for house rent and the expense of moving. That he was again employed by the defendant on September 15, 1931, and that the loss sued for was incurred by reason of his wrongful discharge.

In its answer the defendant alleges substantially that the company employed plaintiff in 1920 as a fuel foreman at Dermott. That afterward, in 1926, it employed plaintiff at Littlefield as fuel foreman, and that on January 1, 1929, he was employed at Pyron as a pumper. That he was removed from Littlefield to Pyron because of his inability to perform the duties of a fuel foreman at Littlefield. That at the time of and during his employment there were certain rules of agreement under which he was employed, and by such rules the plaintiff acquired seniority as fuel foreman from the time he was employed at Dermott until he moved from Lit-tlefield to Pyron, at which latter place he was employed as a pumper. That when he moved to Pyron he lost his seniority as a fuel foreman and began to acquire seniority as a pumper. That in reduction of the number of employees on July 15, 1931, the plaintiff went out of the service by reason of the fact that he was the youngest pumper in so far as seniority was concerned, on the division where he worked. That after he went out of the service he selected R. K. Corkhill and G. C. Cor-rel under the said rules to present his claim to the company and seek re-employment. That he gave said parties full authority to protect his interest or make whatever agreement was necessary to secure re-employment. That his said representatives agreed with the company that if it would again employ the plaintiff, they would waive any claim for compensation to plaintiff during the time he was out of the service. That on September 15, 1931, in view of the agreement, plaintiff was again employed by the company and thereafter filed his claim for the amounts set out in his petition. That plaintiff accepted compensation as a fuel foreman from 1920 to January 1, 1929, ¿nd from that day was classified and paid as a pumper. That the company had a right to classify its employees. That the employee who took plaintiff’s place at the time plaintiff was discharged on account of a reduction in the force had more years of service as a pumper than the plaintiff, and that, in fact, the plaintiff was the youngest pumper on the division.

The rules of the company which constitute the contract under which the plaintiff was employed provide, in part, as follows:

•‘Article I. Sec. 1. Seniority in each class of service begins at the time the employee last enters the continuous service of the Company in that class on the seniority districts.”
“See. 3. Seniority is confined to the following separate classes and to the territory under the jurisdiction of one superintendent except as provided in Sec. 5 : * * *
“9. Pumpers and water treaters.
“10. Fuel foreman.
“Sec. 4. In reduction of force, the senior men of the class on the seniority district, capable of doing the work, shall be retained. In reduction of force, employees will displace those in their own class with the least seniority. The employees so displaced may in turn displace the employees in the next lower class with the least seniority.”

Article 3, sections 1 and 2, provide, in substance, that when an employee believes he has been unjustly dealt with, he may choose an employee to represent him and take his case to the roadmaster or general foreman, and if not satisfied with the decision of that official, he may appeal to higher officers of the company. Section 7 of article 3, provides: “If, after investigation, it is found that an employee has been unjustly suspended or dismissed from the service, such employee shall be reinstated with seniority rights unimpaired and compensated for the wage loss, if any, resulting from said suspension or dismissal.”

The case was submitted to the jury upon two issues, as follows:

“(1) Do you find from a preponderance of the evidence that the plaintiff W. R. Wilson was entitled to a seniority as a pumper in his employment by this defendant, Panhandle & Santa Fe Ry. Oo., on Sept. 15, 1931?”

This was answered in the affirmative.

(2) If answered in the affirmative, then “Do you find from a preponderance of the evidence that the witnesses Corkhill and Correl had authority from plaintiff W. R. Wilson, to waive the claim in the sum of $220.00 made by the plaintiff against the defendant company as the representatives of the said Wilson in a conference with the witness Mr. Dyer, who represented the defendant Panhandle & Santa Fe Ry. Co.?”

This was answered in the negative.

Based upon this verdict the court rendered judgment in favor of Wilson for $220 and interest.

The defendant requested two special issues as follows, which the court refused:

(1) “Was the plaintiff’s seniority as a pumper extended back to 1920 upon condition that he would not be entitled to the two months pay while out of the service of the defendant?”

(2) “Were Corkhill and Correl authorized as agents of the plaintiff to accept re-employ-merut of the plaintiff by the defendant upon condition, that plaintiff'would not be entitled to pay for time while out of the services of the defendant company?”

The first contention is that the court erred in refusing to direct a verdict for the appellant. This is overruled.

Appellant requested the court to submit the following issue, which should have been submitted: “Was the plaintiff’s seniority as a pumper extended back to 1920 upon the condition that he would not be entitled to the two months pay while out of the service of defendant?”

The appellant also objected to special issue No. 1 submitted by the court because: (1) It submits a question of law and fact; (2) which should have 'been determined by the court in the construction of the contract of employment in the light of the facts. We sustain both contentions.

It appears from the record that there is some sort of a written contract or agreement between the appellant railway company and a trade union composed of its employees. The agreement itself was not introduced in evidence and. we have no information as to its provisions further than as above set out and section 6 of article 3, which provides as follows: “Prior to the assertion of grievances as hereinafter provided and while questions of grievances are pending, there will neither be a shut down by the employer nor a suspension of work by the employees.”

The officials of the appellant railway company testified that under the agreement the company had the right to classify its employees. This testimony was admitted without objection and is not contradicted. The first issue submitted by the court asked the jury if they found from a preponderance of the evidence that Wilson was entitled to a seniority as a pumper in his employment by this defendant on September 15, 1931. As stated, this submitted to the jury a question of law without any finding as to the facts upon which their answer must necessarily be based, and, moreover, the answer is not supported by the evidence. The record shows that from1920 to 1929 he was classified as a fuel foreman. That he served in that capacity and accepted the wages which were paid to employees of that class. The fact that he served as a fuel foreman at some stations where he occasionally pumped waiter is immaterial. The act of pumping water occasionally would not operate to change his classification without the consent of the railway company which, as stated by its witnesses, had the right to fix his classification. He accepted employment as a fuel foreman from 1920 until 1929 and was paid the wages customarily paid to employees of that class. This testimony tends strongly to show that he was not classified as a pumper during that time. Again, on September 10, 1931, he wrote to W. B. Storey, president of the .appellant company, complaining that he was suspended, from service before he was given his seniority either as fuel foreman or pumper—“this position I held for eight years and pumper for two years.” In the face of his direct statement that he held the position of fuel foreman for eight years, it is difficult to understand how the jury could find that he was entitled to seniority as a pumper during that, period. The record shows without dispute-that he was discharged because it became necessary for the company to reduce the number of its employees. At the time of his discharge-he was serving as pumper, and under the seniority rule set out above as sections 1 and. t of article 1, he was properly discharged. For these reasons the answer of the jury in response to issue No. 1 is not supported by the-' evidence. It further appears from the record that plaintiff’s seniority as a pumper was dated back to 1920 at the request of Corkhill and Correl, who seem to hold some kind of an official position in the employees’ association. Whether their powers and authority are set out in the contract, and the extent of such authority, does not appear from the record. The-company claims that Wilson was reinstated as a pumper as of the year 1920 upon condition that he would waive his right to two months’ pay while out of the service after he had been discharged by the company in reducing its force. If his seniority rights were not violated when he was discharged, then the act of the company in reinstating him as a pumper dating his classification back to 1920 was purely a matter of grace and the company had the right to make the classification upon the-condition that Wilson would not be entitled to the two months’ pay which he claims in this suit. Therefore, the court should have submitted the first interrogatory requested by the appellant inquiring whether that condition was a part of the agreement to extend Wilson’s seniority back to 1920. If this issue had been submitted and the jury had answered it in the affirmative and had further found that Wilson accepted employment upon that condition or that Corkhill and Correl'were authorized to accept employment for him upon such condition, he would not have been entitled to recover. On the other hand, if the jury had answered the issue in the negative, then there was no contract between Wilson and the company, because the minds of the parties to the agreement had not met.

We think the court erred in refusing to give the second special issue requested by the appellant. If Corkhill and Correl, as officers of the employees’ association, were authorized by the contract to represent members of the association in the settlement of their grievances, then the appellee would be bound by the condition as stated. If the terms of the contract did not authorize Corkhill and Correl to accept employment for Wilson upon the conditions stated, then Wilson’s assent to the condition would be necessary to bind him.

The rule is that individual members of a labor union are not bound by contracts between the union and employers unless such agreements ai-e ratified by the members of the union as individuals, and that in the absence of evidence of such ratification by a member, no rights accrue to him which he can enforce against the employer. It has been pointed out that the ordinary function of a labor union is to induce employers to establish usages in respect to wages and working conditions which are fair, reasonable, and humane, leaving to each of its members to determine for himself whether and for what time he will contract with reference to such usages. It has, therefore, been decided that a ■labor union, in contracting with an employer with respect to wages and conditions of servive, does not establish contracts between its individual members and the employer, a breach of which will sustain actions by the individuals. 16 R. C. L. 425; 24 Cyc. 824; Hudson v. Railway Company, 152 Ky. 711, 154 S. W. 47, 45 D. R. A. (N. S.) 184, Ann. Cas. 1915B, 98, and note; Burnetta v. Marceline Coal Co., 180 Mo. 241, 79 S. W. 136.

While there is no direct testimony showing that Wilson as an individual ever assented to the contract made between the railway company and the employees’ association, the case was ¡tried upon that assumption in the lower court and is decided upon the same the- ' ory in this court.

The appellant insists that special issue No. 2 given by the court assumes that Corkhill and Correl did not have the right under article 3, § 7, of the agreement to find and agree with the representatives of the railway company that the plaintiff was not unjustly suspended or dismissed from the services of the railway company.

As stated above, the written agreement was not introduced in evidence. Section 7 of article 3 gives them no such authority, and in the absence of evidence and an express finding as to their authority, we are not prepared to express an opinion upon this contention.

Because of the errors discussed, the judgment is reversed, and the cause is remanded.


source: Caselaw Access Project

author: GALLAGHER, C. J.

license: Public Domain

text:
    STATE v. CARPENTER et al.
    No. 1282.
    Court of Civil Appeals of Texas. Waco.
    Nov. 25, 1932.
    Rehearing Denied Dec. 29, 1932.

      John McNamara, W. L. Eason, and Sam Hardline, all of Waco, for the State.
    Bryan & Maxwell, W. Y. Dunnam, Stansell Bryan, and Sleeper, Boynton & Kendall, all of Waco, for appellees.
   GALLAGHER, C. J.

This appeal is prosecuted from a judgment of the county court at law of McLennan county in favor of the state of Texas, acting by and through the commissioners’ court of said county, condemning 8¾00 acres of land for highway purposes and awarding to R. B. Carpenter and wife, Irene Carpenter, owners of the land, and the Union Central Life Insurance Company, the holder of a lien thereon,' the sum-of $803 as compensation for the land taken and the further sum of $3,477 as damages to the remainder of the tract of which the land so taken formed a part. Appellees admitted in open court that all the preliminary proceedings to and including the award of the commissioners were regular; that appellant had the right to condemn and take said land for highway purposes; that it had paid the amount of such award into the registry of the court; that it had filed its objections and exceptions to the award in due time and in the manner required by law; and that the 'only issue involved was the damages to be awarded them as compensation. The court, at the close of the testimony, submitted the case to the jury on special issues, which issues with the answers of the jury thereto were as follows:

“No. 1: What do you find, from a preponderance of the evidence, was the reasonable market value, per acre, of the 8¾00 acres of land on the right of way of the Carpenter farm on July 14th, 1931? Answer: $100.00 per acre.
■ “No. 2: Do you find, from a preponderance of the evidence, that the market value of the remainder of the R. B. Carpenter farm has been reduced by reason of the condemnation of the 8¾00 acres of said land? Answer: Yes.
“No. 3: What amount, in dollars and cents, do you find, from a preponderance of the evidence, that the remainder of the R. B. Carpenter farm will he reduced in market value by the condemnation of the 8¾00 acres of land, if any? Answer: $3,477.00.
“No. 4: Do you find from a preponderance of the evidence, if any, that the remainder of the said R. B. Carpenter farm not taken will sustain special benefits by reason of the condemnation of the 8%oo acres of said land? Answer: No.
“No. 5: From a preponderance of the evidence, what do you find will be the increased market value, in dollars and cents, of the remainder of the R. B. Carpenter farm not taken, if any, by reason of the condemnation of the S%00 acres of said land? Answer:

The court rendered judgment in accordance with said verdict. The state has appealed.

Opinion.

Appellant presents assignments in ¡which it contends that the court erred in defining “market value” as used in special issue No. 1 above quoted. Said definition was as follows: “In connection with special issue No. 1, you are instructed that the market value of the 8¾00 acres of land within the right of way is not the market value of said land taken for right of way purposes when considered by itself alone, but is its market value as a part of the entire tract of which it forms a part.”

Appellant objected to said definition on the ground that it erroneously permitted the court to consider the value of improvements on the entire tract in determining the market value of the strip of land taken. The testimony showed that appellee Carpenter owned a farm consisting of 240 acres; that 200 acres thereof were in cultivation and the remainder in pasture; that certain improvements were situated thereon, consisting of a ten-room residence, two tenant houses, and a number of other buildings appurtenant to said respective dwellings. The land taken consisted of a strip of irregular width running across said farm at an angle and dividing both the cultivated and pasture lands into two parts. A map showing the outline of the farm and the shape and location of the strip taken was introduced in evidence, but is not contained in the record. Some minor improvements were located on the strip taken but appellees were permitted to remove the same. The court in said issue properly invoked a finding by the jury of the market value of the strip of land actually taken. The market value of property includes its value for any use to which it may be put. Where it has a special value by reason of the use to which it is actually appropriated, such value may be shown and included in the compensation awarded the owner. Boyer & Lucas v. St. L. S. F. & T. Ry. Co., 97 Tex. 107, 109, 76 S. W. 441. The strip of land actually taken in this case constituted a part of a reasonably large and well-improved farm. If it had a greater value as a part of such farm than it would have, considering its size, shape, and location, if segregated therefrom and constituting an isolated tract of unimproved farming land, appellees were entitled to such enhanced value. Caruthers v. Johnson County (Tex. Civ. App.) 94 S. W. 912. The definition of “market value” given by the court in connection with such issue has been expressly approved by the courts in this state, and is in accord with the authorities elsewhere. Routh v. Texas Traction Co. (Tex. Civ. App.) 148 S. W. 1152, 1153, par. o; San Antonio, U. & G. R. Co. v. Bobo (Tex. Civ. App.) 163 S. W. 377, 379, par. 2; Illinois, I. & M. Ry. Co. v. Humiston, 208 Ill. 100, 69 N. E. 880, 882; Conness v. Indiana, I. & I. R. Co., 193 Ill. 464, 62 N. E. 221, 225. We do not agree with the contention urged by appellant in this connection that “market value” as so defined includes any part of the improvements situated on the land not taken, nor that the jury were authorized or required by the instruction so given to estimate the value of said strip of land by finding the value of the entire tract and allowing such proportionate part thereof as the number of acres in the strip bears to the acreage in the tract as a whole. San Antonio, U. & G. R. Co. v. Bobo, supra.

Appellant presents assignments in which it contends that the finding of the jury in response to said special issue No. 1 that the reasonable market value per acre of the land actually taken was $100 is without support in the evidence. Appellant, in its amended statement upon which the trial was had, alleged that “the reasonable market value of the land taken, at the time of the taking, was not in excess of $100.00 per acre.” The statement of facts is in question and answer form, and contains more than 300 pages. Apparently the whole of the same is with reference to the value of the land taken and supposed benefits resulting to the remainder of the tract or injuries inflicted thereon by such taking. No summary of the same is attempted by either party. Appellees introduced testimony with reference to the value of the entire tract with the improvements thereon and also with reference to the value of such improvements. From such testimony the jury could .estimate the value of the land taken when .considered as a part of the entire tract, though ho material improvements were located thereon. 'Illinois, I. & M. Ry. Co. v. Humiston, supra. The jury, under a proper instruction as to the meaning of the term “market value” as used in the issue submitted, found in response thereto that the market value of the strip so taken was $100 per acre. Such finding is within the range of the testimony introduced and within the limit of value alleged by appellant in its pleading.

Appellant presents assignments in which it contends that the court erred in giving a special instruction with reference to the particular matters or elements of damage which they might consider in answering special issues 2 and 3, as above quoted, which issues inquired whether the remainder of ap-pellees’ land was damaged by the taking of said strip, and, if so, the amount of such damage. Said special charge was as follows: “In connection with special issues Nos. 2 and 3, you are instructed that in determining the amount of damages, if any, sustained by defendants, to the remainder of said land, by reason of the taking of the S%00 acres of land of same, you may take into consideration the reasonable cost of the construction of fences made necessary by the construction of said road, if any (the increased cost and inconvenience to said defendants in the cultivation of said land, if any, the inconvenience arising from the division of the property, if any, and the increased difficulty of access thereto) if any, the reasonable cost and inconvenience, if any, of the construction of culverts made necessary by the construction of said highway, if any, the reasonable cost and inconvenience resulting from the relaying and reconstruction of water lines, if any, the reasonable cost of removing and re-establishing improvements from the right of way, if any, and you may consider any other fact in evidence before you, if any, which may affect the convenient use and future enjoyment of the defendants ■of their property, if any, hut these matters can only be considered by you as affecting the market value of the land, if they do affect it.”

Appellant’s objection thereto was as follows: “The plaintiff objects and excepts to the paragraph of the court’s charge following ■special issue No. 3, because it is on the weight of the evidence and because it emphasizes •certain evidence and certain issues of fact; and because it gives prominence to certain •evidence and certain issues, and because it is a comment on the weight of the evidence; and because it singles out a certain portion of the evidence and directs the jury’s attention thereto; and because same is an incorrect ■proposition of law as well as an incorrect application of law to the facts of this case.”

The measure of damage in a civil case is always a question of law, which it is proper for the court to explain or define in his charge or •embody in some effective form in the issues submitted to the jury. Speer’s Law of Special Issues, p. 179, § 129, and authorities cited in notes thereto. International G. N. R. Co. v. Casey (Tex. Com. App.) 46 S.W.(2d) 669, 671, pars. 12 and 13. In certain classes of cases it is proper for the court to instruct the jury what elements they may consider and ■what elements they must exclude from their -consideration in estimating damages. Speer’s Law of Special Issues, p. 179, § 128; 13 Tex. Jur. p. 459, § 267, and notes. Such rule is applicable in condemnation proceedings. Beaumont & G. N. R. R. v. Elliott (Tex. Civ. App.) 148 S. W. 1125, 1126, par. 4, and authorities there cited; City of San Antonio v. Fike (Tex. Civ. App.) 211 S. W. 639, 641, par. 4; Id. (Tex. Civ. App.) 224 S. W. 911, 912, par. 4. The charge complained of is not upon the weight of the evidence, as contended by appellant. That part of appellant’s objection which assails said charge as an incorrect proposition of law, and an incorrect application of the law to the facts is too general for consideration, and will not support assignments of error based thereon. Chase Bag Company v. Longoria (Tex. Civ. App.) 45 S.W.(2d) 242, 244, pars. 4 to 6, inclusive, and authorities there cited; Baker Company v. Turpin (Tex. Civ. App.) 53 S.W.(2d) 154, 157, par. 5; Scruggs v. Dean (Tex. Civ. App.) 47 S.W.(2d) 378, 379, par. 3.

Appellant presents assignments in which it contends that the court erred in giving a special instruction with reference to the particular matters or elements of damage which they should consider or exclude from consideration in answering special issues 4 and 5, which issues inquired whether the remainder of appellees’ land sustained special benefits by reason of the taking of said strip, and, if so, the amount or value of such benefits. Said special charge was as follows: “You are instructed, in connection with ¡Special Issues Nos. 4 and 5, that in determining the special benefits, if any, sustained by the defendants to the remainder of- said land not taken by reason of the condemnation of the 8¾00 acres of said land, you may take into consideration any benefits, if any, sustained to the owner of said land by reason of improved drainage of his property, if any, and any benefits, if any, which the owner may have sustained, or received, by reason of the enhancement in value of his farm by reason of said highway crossing the same, which enhancement, if any, would not be received, or sustained, in common with the community generally, but you will not take into consideration benefits, if any, on account of the mere convenience or accessibility, if any, of said highway as a mode of travel, which could be enjoyed and received in common with the community generally, but these matters can only be considered by you as affecting the market value of the land, if they do affect it.”

Appellant objected generally to said charge, ■and particularly to that part thereof which told the jury, “but you will not take into consideration benefits, if any, on account of the mere convenience or accessibility of said highway as a mode of travel,” on the ground that convenience and accessibility to the highway were benefits that could be considered in determining the increased market value, if any, of appellees’ land. We must, of course, in passing upon said objection, consider the charge as a whole. Such consideration discloses that the court told the jury in that connection, in substance, that they might consider, in determining' the issues submitted, benefits, if any, sustained by appellees in the way of enhancement of the value of the remaining tract by reason of the fact that the highway crossed the same, which enhancement, if any, was not received or sustained in common with the community generally, and •that he limited the clause complained of by appellant in said objection by adding thereto the words, “which could be enjoyed and received in common with the community generally.” Appellant relies in/ support of its contention upon the case of Goldforb v. Gulf, C. & S. F. Ry. Co. (Tex. Civ. App.) 243 S. W. 707, and other authorities of like import. In •that case the railroad laid a switch track up a street and equipped the same with spur tracks running within a few feet of the sidewalk in front of property abutting on both sides of the street, the effect of which was to render all such abutting property immediately accessible to railroad trackage and therefore available for various business purposes. Appellant owned one of such abutting tracts, and sued for damages which he claimed resulted to such property on account of the construction of such tracks. The court held that the enhanced value of his tract of land resulting from the construction of such tracks, which made the same available as trackage 'property, constituted a special benefit, which could be considered by the jury as an offset to any injury to such property thereby, notwithstanding a like benefit resulted to other property which in like manner abutted on said street. The opinion in that case contains excerpts from the text of both Corpus Juris and Ruling Case Law. Such excerpts both refer' to the benefits received by property abutting upon a street or highway as illustrations. The court, as recited above, told the jury that in estimating benefits they might take into consideration any enhancement in value of appellees’ land! by reason of the fact that the new highway crossed the same which was not received or sustained in common with the community generally. This was an express recognition of the rule announced in the authorities relied on by appellant, and such benefits are by such charge properly distinguished from the right or privilege of access to or travel over the highway when constructed such as was available to the public generally as well as to appellees as abutting property owners. The ultimate decision as to what constituted special and what constituted community benefits was by said charge left to the jury. 16 Tex. Jur. p. 1014, § 332, and authorities there cited. We do not think that an ordinary juror, considering said charge as a whole, would have any difficulty in understanding the rules to be applied in determining whether appellees’ land received an enhancement in value by reason of the laying out and construction of said highway across the same.

Appellant presents assignments of error in which it complains of other charges given in that immediate connection, as follows :

“You are further instructed that when only a portion of a person’s real estate is condemned, it is the duty of the jury trying the case to estimate the injuries sustained and benefits received thereby, by the owner, as to the remaining portion of such real estate, if any, whether such remaining portion is increased or diminished in value by such condemnation, and the extent of such increase, or diminution, and assess the damages accordingly.”
“In estimating either the injuries or benefits, as mentioned in the preceding paragraph, those injuries or benefits which the owner of such real estate sought to be condemned, sustains or receives, in common with the community generally, and which are not peculiar to him and connected with his ownership, use and enjoyment of the particular parcel of land, shall be altogether excluded from such estimate.”

Appellant objected to each of said charges on the ground that they were general, and therefore improper, the case being submitted on special issues, and because the same presented abstract propositions of law not applied to the facts of the case. The charges complained of appear to have been copied verbatim from the charge given by the trial court in Houston Lighting & Power Company v. Daily, 201 S. W. 317. The Court of Civil Appeals held in that case that the giving of said charges constituted no ground for reversal, and the Supreme Court dismissed an application for writ of error for want of jurisdiction. See, in this connection, Speer’s Law of Special Issues, p. 159, § 114, and authorities cited in notes thereto.

Appellant presents an assignment of error in which it contends that the county court at law never acquired jurisdiction to hear and determine the issues raised by the pleadings or render judgment herein. This contention is based on the fact that the special commissioners appointed to assess appel-lees’ damage filed the written decision or award made by them with the clerk of the court, instead of filing the same with the judge thereof. The statute (Rev. St. 1925, arts. 3265, subd. 5, 3266, subds. 6, 7) provides,, in substance, that such decision or award shall be filed with the judge, that either party dissatisfied therewith may, within ten days after the same has been filed with him, file objections thereto, and that thereupon the-adverse party shall be cited and the case tried and determined as other civil cases, but that, if no such objections are filed within ten days, the judge shall cause said decision or award to be recorded in the minutes of the court, render judgment thereon, and issue necessary process to enforce the same. Appellant was, of course, in effect, the plaintiff in instituting and prosecuting these proceedings. It might have waited until the award of the coihmissioners was filed with the county judge, and it would have had ten days thereafter in which to file its objections thereto. Sinclair v. City of Dallas (Tex. Civ. App.) 44 S.W.(2d) 465, 466. Such attitude, however, would have delayed further prosecution of the proceedings during such period of waiting. Appellant apparently elected to waive the irregularity in the filing of the award of the commissioners, because -within five days after such filing it filed also with said clerk its amended statement and objections to the award. Such proceedings having been given a number and entered upon the docket of the court as a civil case, the parties proceeded to trial thereof before the judge of said court, and he rendered therein the judgment presented for review by this appeal. :Such proceeding was in accord with the provisions of the statute above quoted, and no suggestion of irregularity on account of such filing was made prior to the judgment. Appellant’s objection appears to have been presented for the first time in its motion for a new trial. We agree with the holding of the trial court that the jurisdiction thereof over the subject-matter of this proceeding was not affected by such irregularity, that appellant has waived the same, and is estopped to'complain thereof.

Appellant presents an assignment in which it contends that the county court at law of McLennan county has no lawful jurisdiction over condemnation proceedings, and that the judgment rendered herein is therefore yoid. This identical question was before this court in Acree v. State, 47 S.W.(2d) 907, 908, pars. 1 and 2, and there decided adversely to such contention.

We have considered all the other assignments presented by appellant as ground for reversal, and have reached the conclusion that none of them justify or require such action. The judgment of the trial court is therefore affirmed.


author: LESLIE, J.

text:
    COMMUNITY NATURAL GAS CO. v. MOSS.
    No. 1020.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 25, 1932.
    Marshall Newcomb, of Dallas, and Conner & McRae, of Eastland, for appellant.
    Frank Judkins, of Eastland, for appellee.
   LESLIE, J.

The appellee, Moss, has not briefed this case and we are without the benefit of that aid in disposing of this appeal. The case appears to have been originally filed in the justice court for damages alleged to have been occasioned him by the defendant’s act in cutting off the natural gas from his residence. In the justice court the plaintiff obtained a judgment, and the cáse was appealed to the county court, where a trial was had resulting in a judgment in favor of plaintiff for the sum of $195, from which this appeal is prosecuted.

On March 24, 1931, the date the gas was cut off, the Community Natural Gas Company was a public service corporation, engaged in furnishing and distributing natural gas for fuel and other purposes to the city of Eastland and the citizens thereof. This service was rendered in compliance with franchise rights and in accordance with well-defined rules and regulations generally understood and uniformly applied and enforced . toward all the consumers of gas. The plaintiff Moss at such time was a regular consumer of gas under such rules and regulations, with the obligation resting upon him to pay at a defined date on each month for the gas consumed during a certain month prior thereto.

In the lower court the pleadings were oral, and in so far as material to the issues here involved, the plaintiff, among other things, alleged that, on March 24, 1931, when the gas was cut off, he (Moss) owed the gas company the sum of $3.38 for the month’s gas, and that on said date the gas company was indebted to him in the sum of $10 with 6 per cent, interest thereon since January 1, 1931. That, under these circumstances, and over his protest, the gas company, notwithstanding said deposit of $10, cut off the supply of gas at his residence which was equipped for using the same, and that as the result he and his family were left without fuel for any purpose. That he was unable to secure gas elsewhere since the’gas company had a monopoly on that business in the city of East-land, and that by reason of these circumstances he was damaged in the sum alleged.

In response to these pleadings and issues, the defendant gas company alleged that originally it had contracted with the plaintiff for the gas service, and had installed a meter at his residence and supplied gas to him under its rules and regulations which were known to the plaintiff at the time he contracted for the gas and gas service. That on the 5th of March, 1931, defendant presented to the plaintiff a regular monthly bill amounting to $3.38 for gas delivered to him between January 24 and February 24, 1931. That said bill was not paid when due, and that after repeatedly notifying plaintiff of that. fact, the defendant finally notified the plaintiff that it would become necessary for it to discontinue its gas service to him because of his failure to pay the bill. On March 24, 1931, the defendant did discontinue its gas service to the plaintiff and removed its meter from his premises. That immediately after discontinuing the gas service the defendant deducted from the sum of money ($19) which plaintiff had placed with the defendant to secure the payment of gas bills, the sum owing it for gas furnished to the plaintiff and for which he had failed to pay. That the balance of said security deposit, together with accrued interest on the full amount of the deposit at the rate of 6 per cent, was immediately returned to the plaintiff, Moss.

The defendant further alleged that, in all the acts and conduct in discharging its duties and obligations as a public service corporation to furnish gas to the plaintiff under its rules and regulations, it had acted in a reasonable manner, and that its acts were not intended or calculated to injure, harass, or inconvenience the plaintiff.

This case does not involve any dispute (1) over the amount of the bill, (2) any defect in the meter or correctness of its registration, (3) question .of overcharge by the company, or (4) waiver on its part of its right to disconnect its gas service because of plaintiff’s failure to pay said bill.

In fact, the plaintiff brings and prosecutes this suit solely on the fact and theory that, since his gas bill ($3.38) did not exceed the amount of his security deposit ($10), the defendant gas company therefore had no right to discontinue its gas service to his residence, but was obligated to continue to supply gas-to him until he had used a sufficient amount of the same to balance off the security deposit. This presents the sole contention, and in response thereto the appellant urges the proposition that, there being no testimony or evidence to show that the defendant had invaded plaintiff’s rights or had breached a duty owing to the plaintiff in cutting off his gas, and the plaintiff’s testimony having conclusively established that he had failed to pay his gas bill when due,'the trial court erred in refusing to grant the defendant’s motion for an instructed verdict.

The question presented by the above conflicting contentions is not a new one, and has long been settled by the decisions of this and other states. This conclusion is rested upon the following groups of authorities:

On the right of a gas company to discontinue service for nonpayment of a bill: Withers v. Ft. Worth Gas Go. (Tex. Civ. App.) 238 S. W. 324; Dallas Tel. Co. v. Oak. Cliff Transfer, etc., Co. (Tex. Civ. App.) 270 S. W. 577, 579; City of Mansfield v. Humphreys Mfg. Co., 82 Ohio St. 216, 92 N. E. 233, 31 L. R. A. (N. S.) 301, 19 Ann. Cas. 842; Southwestern Tel. & Tel. Co. v. Danaher, 238 U. S. 482, 35 S. Ct. 886, 59 L. Ed. 1419, L. R. A. 1916A, 1208; Gary Heat, Light & Water Co. v. Christ, Ind. Pub. Serv. Comm., P. U. R., 1921C, 355; Kentucky Utilities Co. v. Warren Ellison Cafe, 231 Ky. 658, 21 S.W.(2d) 976 (3-7); Annapolis Public Utilities Co. v. Martin, 131 Md. 393, 102 A. 465; Thornton’s Law of Oil & Gas (4th Ed.) § 623, p. 1300.

On the right of a gas company to discontinue service for nonpayment of a bill when customer’s security deposit exceeds the amount of the bill, see: Texas Power & Light Co. v. Taylor (Tex. Civ. App.) 201 S. W. 205, 206; Hewsey v. Queens Borough Gas & Electric Co., 47 Misc. 375, 93 N. Y. S. 1114; 28 C. J. p. 567.

In the case of Dallas Telephone Co. v. Oak Cliff Transfer, etc., Co., supra, the telephone company disconnected its service to the ap-pellee’s place of business because the monthly telephone charge.was unpaid after due demand therefor. The charge was correct and the usual one for the service. Loss of profits in business, resulting from the discontinuance of the phone service, formed the basis of the suit. In disposing of the case the court said: “As respects the appellant’s other contention, the evidence does affirmatively show that the appellees were in arrears for the monthly charge for the telephone service, and that it was not paid be-for the day of discontinuance of the service. The evidence is not capable of any other reasonable conclusion than that appellees actually and admittedly owed $9.50 for the monthly rental charge of March, 1922, and that, although demanded, it was not paid until July 23, 1922, after the telephone was discontinued. More extended comment on the evidence is unnecessary. A verdict to the contrary could not, in fact, be sustained. In this conclusion there was no wrongful breach of contract on appellant’s part, since it had the right to discontinue the service for the nonpayment of the charges, which were just and correct.”

As authority for the foregoing statement of the law, the court cited Withers v. Ft. Worth Gas Company (Tex. Civ. App.) 238 S. W. 324, 325. In that case the question arose as to the right of the gas company to cut off the gas from a delinquent consumer. The court said: “The conclusion stated that the rule established by the plaintiff to cut off the supply of gas to a consumer upon his refusal to pay for gas previously furnished is a reasonable one, is supported by practically all the authorities, speaking generally. 2 Thornton on Oil & Gas, § 623, and decisions there cited; also Irvin v. Rushville Telephone Co., 161 Ind. 524, 69 N. E. 258; Shiras v. Ewing, 48 Kan. 170, 29 P. 320; Commonwealth v. Philadelphia, 132 Pa. 288, 19 A. 136.”

In 28 C. J. p. 567, the rule is thus stated: “It.is a general rule, both under statute and apart from the statute, that a gas company may refuse to furnish a consumer with a further supply of gas because of the nonpayment of arrearages for gas already consumed, and this may be done, although the consumer is solvent or the deposit provided for has not been used up by charges for gas * *

In the consideration of the same question as that here involved, the Indiana Public Service Commission, in passing on the right of a gas utilities company to disconnect service for nonpayment of bills, said: “Petitioner is engaged in the business of producing, delivering and selling its gas service to its consumers or customers as a public utility. Its principal revenue is derived from its consumers, all of whom must be treated alike without discrimination of any kind or character. The utility has a right to establish reasonable rules for the payment of its bills, and to require all its consumers to abide by such rules. If certain consumers were permitted to pay for the service at their own convenience, or were permitted to avoid payment . altogether, it would be an unjust and unlawful discrimination against those consumers who do promptly meet their bills. A public utility has ample authority for disconnecting and refusing to serve a consumer who, after a reasonable opportunity has elapsed, has- failed, neglected, or refused to pay for the service already rendered to him. State ex rel. Goodwine v. Cadwallader, 172 Ind. 619, [87 N. E. 644, 89 N. E. 319]; Irvin v. Rushville Co-op. Telephone Co., 161 Ind. 524, 69 N. E. 258; Rushville Co-op. Telephone Co. v. Irvin, 27 Ind. App. 62, 59 N. E. 327; McCallister v. Shannondale Co-op. Telephone Co., 47 Ind. App. 517, 94 N. E. 910; Western U. Teleph. Co. v. McGuire, 104 Ind. 130, 2 N. E. 201, [54 Am. Rep. 296]; Southwestern Teleg. & Teleph. Co. v. Danaher, 238 U. S. 482, P. U. R. 1915D, 571, 35 S. a. 886, 59 L. Ed. 1419, L. R. A. 1916A, 1208; Mackin v. Portland Gas Co., 38 Or. 120, [61 P. 134, 62 P. 20], 49 L. R. A. 596.” P. U. R., 19210, 355.- - .

Upon the other phase of the contention, resting upon the legal effect of a customer’s deposit for security in .this character of cáse, attention is here directed to the opinion in Texas Power & Light Co. v. Taylor, supra. There, a deposit of $2.50, analogous to the deposit in the instant case, was required by the light company as a security from its patrons, and while operating under such a regulation, it cut off the service of a patron whose bill for $1.60 was not paid when due. Although at the time the service was withdrawn the bill actually amounted to more than the deposit, nevertheless that was deemed immaterial, and the court, in passing upon the light company’s rights in the premises, said: “Appellant did nothing but what it had a right to do under its contract, and as shown, even if the amount of $2.50 deposited by appellee had been sufficient to cover the amount of his bill due, it would not affect the status of the matter, as it was a mere security, and did not affect appellant in proceeding to collect its monthly bills.”

The Supreme Court of New York, in passing upon the same question and viewing it in the light of statutory provisions in that state, said, in Hewsey v. Queens Borough Gas & Electric Co., 47 Misc. 375, 93 N. Y. S. 1114: “Section 68 of the transportation corporations law (Laws 1890, p. 1149, c. 566) authorizes a gas or electric lighting company to cut off the supply of a customer if the latter shall neglect or refuse to pay the rent or remuneration due. It satisfactorily appears that there was a sum due from plaintiff, and that she neglected to pay, after due notification to and demand upon those whom she had left in charge of her house. The deposit provided for by section 66 (page 1148) of the same act is not provided for as prepayment of rent, nor is it required to be made for the benefit of the customer, but for that of the company, and the latter is entitled to require that it be kept intact during the continuance of the relation. There is no warrant in the statute for the proposition that the company is prohibited from cutting off the supply of gas until tbe amount of the deposit has been used up by charges for gas supplied. The defendant was, therefore, within its rights in cutting off plaintiff’s gas and no action will lie for damages therefor.”

The reasons which justify such legislative enactments equally warrant and justify rules and regulations to effectuate the same purpose. The reasonableness of the rule requiring a deposit of' $10 as security in the instant case is not questioned. The practice or rule itself is sanctioned by the statutes of this state (article 1440, Rev. St.), which requires that the public utility pay the depositor 6 per cent, per annum thereon from the 1st day of January. As said in Union Light, H. & P. Co. v. Mulligan, 177 Ky. 662, 197 S. W. 1081, the requirement that the company should pay interest upon the deposit is but the complement of the rule that it may require a deposit. One part of the rulé is for the protection of the company, the other for the protection of the consumer, and, we add, for the protection of consumers generally. The rule has legislative and judicial sanction generally. 28 C. J. p. 566, §§ 28 and 29; Municipal Corporations (Dillon) vol. 3, p. 2218, § 1321. Concerning it and its purpose, the opinion in Vanderberg v. Kansas City Missouri Gas Company, 126 Mo. App. 600, 105 S. W. 17, 20, says: “The company either would have to go out of business or else increase the rates charged to paying consumers to meet the loss of revenue from the failure of others to pay if it could not legally protect itself against such loss by requiring cash deposits and by stopping its service to delinquents.”

This is in harmony with the rule recognized and announced in the case of Texas Power & Light Company v. Taylor, supra.

In the light of the decisions it is obvious that, if the security deposit be applied to the current or recurring monthly bills and service until such deposit is exhausted, the consumer who pays his bills when due would be discriminated against. The result of such a practice would be that the consumer who «pays promptly would keep his deposit intact, and the one who did not would seldom have on deposit a sum in keeping with the rule, or in excess of the current bill. The application of the deposit to the’ bills would call for new and additional deposits from time to time, and since the law requires payment of interest on the same, much unnecessary bookkeeping and the expense incident thereto would be incurred. Ultimately these would be passed as an extra burden to the paying consumers, or the company would probably cease to do business. Finally, if the deposit amounted to nothing more than an advance payment of the gas bills, it would utterly fail of its purpose as a security. Certainly the deposit is not a prepayment of bills. While indirectly a deposit for security inures to the benefit of all consumers, primarily it is for the benefit of the company, which pays interest thereon, and the company is entitled to require that it be kept intact during the continuance of the relation. Hence, under the facts of this case there is no warrant in law for the proposition that the company is prohibited from cutting off the supply of gas until the amount of the deposit has been used up by charges for gas supplied. The relation of the parties was assumed in view of the company’s rules, the reasonableness of which is not attacked.

Upon the conclusive showing of fact, and under the foregoing authorities, the defendant’s proposition under consideration must be sustained.

For the reasons assigned it becomes necessary to reverse the judgment of the trial court and here render the same in favor of the defendant. It is so ordered.


author: WALTHALL, J.

text:
    DALLAS JOINT STOCK LAND BANK OF DALLAS v. ELLIS COUNTY LEVEE IMPROVEMENT DIST. NO. 3.
    No. 2749.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 15, 1932.

      Renfro, Ledbetter & McCombs, of Dallas, for appellant.
    Thompson, Knight, Baker & Harris, of Dallas, for appellee.
   WALTHALL, J.

This is a suit by appellee against appellant to recover delinquent taxes levied for tbe year 1929, together with penalty, interest, and foreclosure of lien upon tbe two tracts of land described in tbe petition, against which the taxes were levied. Judgment was .rendered in favor of the plaintiff, from which the defendant appeals.

The questions presented arise upon the action of the court in overruling demurrers to the petition and in sustaining demurrers to portions of the answer. A brief statement of the pleadings will suffice.

The plaintiff alleged it “was duly organized and created by virtue of an order of the Commissioners’ Court of Ellis county, Tex., duly made and entered on the 14th day of January, 1916, under authority conferred by the 1904 Amendment to section 52 of article 3, Texas Constitution, and chapter 146, General Laws passed by the 34th Legislature at its regular Session in 1915, and which order is of record in Book T, page 230, of the minutes of said Commissioners’ Court.” It then sets up the issuance of various bond issues by it; the issues extending over a period of time from April, 1916, to January, 1924. The allegation respecting the first issue is typical of those respecting the subsequent issues, and reads as follows: “That thereafter the said Commissioners’ Court in pursuance of an election duly called and held on the 29th day of April, 1916, did pass an order authorizing the issuance of bonds in the sum of $110,000.-00 and levied a tax on each $100.00 valuation of taxable property in said district in payment of said bonds, which order is of record in Book 1, page 406, of the Minutes of said Commissioners’ Court.”

The levy for the year 1929 by the commissioners’ court of Ellis county of a tax of $38.-20 on each $100 valuation of taxable property in the district for the purpose of paying interest and principal of said bonds; the valuation for 1929 of one of the tracts against which the taxes are assessed is $1,785, and the valuation of the other tract is $4,495. The approval of the bonds by the Attorney General, registration in the comptroller’s office, and sale of such bonds was alleged, together with other allegations usual in suits of this nature.

In addition to its demurrers and general denial, defendant pleaded that it was the owner of $21,000 of the bonds described in the petition, each bond being in the principal sum of $1,000; that interest is past due and unpaid on all of the bonds, and the principal of three of the bonds is past due and unpaid. The amount of the past-due interest and principal on the three matured bonds and the amount of attorney’s fees provided for therein was pleaded as a counterclaim and in set-off against the taxes sued for.

Section 52 of article 3 of the Constitution of this state authorizes a district such as the plaintiff to “issue bonds or otherwise lend its credit in any amount not to exceed one-fourth of the assessed valuation of the real property of such district.”

Appellant asserts that an assessment of taxes in a district such as appellee, in one year, in an amount more than one-third of the valuation of the real property therein, is void under the constitutional provision quoted; also that such a tax is confiscatory and in violation of the due process clause of the Eederal Constitution.

To this appellee replies that it has become a conservation and reclamation district under section 59 of article 16 of the Constitution, commonly known as the Conservation Amendment, adopted August 21, 1917, and as authorized by chapter 25, p. 40, Acts of 35th Legislature (1918), 4th C. S., and such amendment does not limit the indebtedness which may be created by districts organized under the authority thereof.

The ruling of the trial court upon defendant’s demurrer cannot be sustained upon this theory of appellee, for it is predicated upon an assumption which is not supported by the allegations of the petition. It is true chapter 25, Acts of the 35th Legislature (4th.Called Sess.), in its ninth section, authorized appel-lee to become a conservation and reclamation district under section 59, art. 16, of the Constitution, and prescribed the procedure for so doing. But there is no allegation that ap-pellee availed itself of the privilege conferred of becoming such a district under section 59, art. 16. It was left to the option of districts theretofore organized whether they would come under the operation of the Conservation Amendment and the said act of the Thirty-Fifth Legislature.

We have quoted the allegation of the petition showing it was organized in January, 1916, under the authority of section 52, art. 3, of the Constitution, and chapter 146, of the Acts of the 34th Legislature. In view of this allegation,' appellee cannot claim the benefit of the Conservation Amendment of 1917, without also alleging it had availed itself of the privilege so to do as conferred by the act of the Thirty-Fifth Legislature. In the state of the pleadings it cannot he assumed appellee has come under the operation of the constitutional amendment of 1917. ,

But the point made by appellant is untenable for the reason to be now stated. There is nothing ,in the petition from which it can be assumed that when the bonds were issued, they exceeded in amount one-fourth of the assessed valuation of the real property in the district. It must be assumed the authorized authorities inquired into that question at the time and found that the indebtedness created by the various issues did not exceed the constitutional limitation. The Attorney General would not have approved the issues unless the debt created thereby was within the constitutional limitation. Munson v. Looney, 107 Tex. 263, 172 S. W. 1102, 177 S. W. 1193. There is nothing to impeach the validity of the bonds when issued and sold. When they were so issued and sold, all of the taxable property in the district was in effect pledged for their payment.

A subsequent decline in the property valuation will not relieve the taxing authorities of the duty to annually levy a tax in an amount sufficient to pay interest upon the bonds and provide a sinking fund for their redemption at maturity. Such decline in the property valuation may necessitate. a heavy and burdensome levy, but that fact of itself does not invalidate such levy. Section 52 of article 3 simply places a limitation upon the amount of indebtedness which may be created. There is nothing therein, which can be construed as limiting, in subsequent years, the rate which may lawfully be assessed and levied to pay principal and interest upon bonds which at the time of their issuance did not exceed the constitutional limitation, and were otherwise valid obligations.

For these reasons we are of the opinion the defendant’s demurrers raising the question at issue were properly overruled.

Nor did the court err in sustaining the plaintiff’s exceptions to defendant’s plea of counterclaim and set-off. The tax sued for is to pay interest and provide a sinking fund to pay bonds, some of which are owned by defendant, but section 6, art. 11, of the Constitution has no application to a levee improvement district.

The general rule of law is that a claim against the state or municipality cannot be set off against a tax demand. Cooley on Taxation (2d Ed.) 17. A tax is not a debt in the usual and ordinary sense of the word. City of New Orleans v. Davidson, 30 La. Ann. 541, 31 Am. Rep. 228; Cooley on Taxation (2d Ed.) 15.

“The general rule, based on grounds of public policy, is well settled that no set-off is admissible against demands for taxes levied for general or local governmental purposes.” 24 R. C. L., p. 817.

In 57 C. J. at page 381, the, rule is stated as follows; “In an action for taxes set-off of an indebtedness of the state or municipality to the tax debtor will not be allowed, the statutes of set-off being construed in the light of public policy as not allowing the remedy in proceedings for this purpose, unless expressly authorized by statute.” Numerous authorities are cited in support of the text.

Under the authorities cited, plaintiff’s exception to the counterclaim pleaded by appellant was properly sustained.

Affirmed.


author: ELY, C. J.

text:
    AMERICAN LAND CO. OF TEXAS v. DALE et al.
    No. 8930.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 23, 1932.
    Rehearing Denied Dec. 21, 1932.

      Davenport, West & Ransome, of Brownsville, for appellant.
    Criss & Brown, of Harlingen, for appel-lees.
   ELY, C. J.

This cause was instituted by appellant against Isa H. Dale and Anna M. Dale in trespass to try title to lots 5 and 7, in survey 297, Stewart Place subdivision in Cameron county. The cause was tried by jury, and, upon the answer to special issues, judgment was rendered in favor of the Dales as to appellant and against them as to certain parties against whom they had filed a cross-action. Those impleaded in the case by appel-lees are not parties to this appeal. Appellees answered, setting up fraud in a sale to them of the lots by appellant, and prayed for a rescission of the sale and judgment for all sums paid by them on the land.

The jury found that the land was not suitable for the raising of a first-class citrus orchard, that the land which was waterlogged was not of a temporary nature, that the water-logging of the land was not due to persons over whom appellant had no control, and that the water-logging was not remedial at a reasonable expense. The question was not submitted affirmatively, and neither did the jury find that appellees had been induced by fraud to purchase the land. The verdict did not find any facts which tended to show that appellees had been fraudulently misled by statements made by appellant as to the character of the land.

The facts in this case show that Isa H. Dale came to Texas from Pennsylvania in November, 1928, and had an opportunity to Examine the land. He did not examine or inspect the land, but closed the deal for it after going on a lot adjacent to it. He paid $5,000 in cash and executed a note for $5,000. In 1929 appellees came from their Pennsylvania home and spent several months near or on the land purchased from appellant. They knew the conditions surrounding the land, and not one word of complaint was made.They afterwards sought to get a change in the payment of the note and an extension of time. That was refused except on certain conditions. Then the cry of fraud in the original transaction was heard. Then the suit was brought and fraud was pleaded, and a rescission was asked. They sought not only to avoid payment of the note, but demanded and recovered the money paid on the land. The court gave them all they wanted, except a judgment against parties not connected with the transaction. No one had heard of fraud on the part of appellant for at least a year after the sale had been made. Dale stayed six months in the vicinity, contracted with appellant to place citrus trees on the land, and saw the trees placed there. He had, in the early part of 1929, told appellant that he was dissatisfied with the land, aiid was told that anothef lot would be given him if he wanted it. He made no further remonstrance. He knew as much about the fraud, afterwards alleged, at that time as he did when the suit was brought. He acquiesced in the planting of the trees, agreeing to pay therefor, and permitted the expenditure by appellant on the land of more than $1,500, and sought to obtain an extension of the debt by executing other notes in lieu of .the original note. Those acts constituted acquiescence, and estopped appellees from setting up fraud and obtaining a rescission or cancellation of the contract. Pomeroy, Eq. Jur. § 897:

“Prompt Disaffirmance Necessary. — All these considerations as to the nature of misrepresentations require great punctuality and promptness of action by the deceived party upon his discovery of the fraud. The person who has been misled is required, as soon as he learns the truth, with all reasonable diligence to disaffirm the contract, or abandon the transaction, and give the other party an opportunity of rescinding it, and of restoring both of them to their original position. He is not allowed to go on and derive all possible benefits from the transaction, and then claim to be relieved from his own obligations by a rescission or a refusal to perform on his own part. If after discovering the untruth of the representations, he conducts himself with reference to the transaction as though it were still subsisting and binding, he thereby waives all benefit of and relief from the misrepresentations.”

Appellees, following rule 81, for District Courts, filed the following admission:

“American Land Company of Texas vs. Isa H. Dale and Anna M. Dale
“In the 103rd District Court Cameron County, Texas
“No. 9482.
“To the Honorable A. M. Kent, Judge of Said Court;
“Now comes Isa H. Dale and Anna M. Dale, both of the defendants as to the petition filed in the above entitled and numbered cause by the American Land Company of Texas, and acknowledge in open court, before their announcement of ready for trial in this cause, that the plaintiff’s, The American Land Company of Texas, cause of action as set out in its Original Petition on file herein, is good as to both of these defendants, except as the same may tend to he defeated by the matters set forth in the Second Amended Original Answer and Cross Action filed by these defend-; ants herein.
“Wherefore, they pray that they may be permitted to open and close this ease in the introduction of testimony and the argument before the jury.”

By that pleading appellees admitted the justice of the entire suit of appellant as shown by its pleading, and rendered nugatory and vain the plea of not guilty. Smith v. Bank, 74 Tex. 545, 12 S. W. 221, 222; Meade v. Logan (Tex. Civ. App.) 110 S. W. 188, 189; Smith v. Frost (Tex. Com. App.) 254 S. W. 926. The plea gave the right to appellees to proceed with their affirmative action against appellant, and gave them the right to open and conclude. In the Smith v. Bank Case, supra, the 'Supreme -Court, through Judge Gaines, states the rule, which this court follows. The court says: “The manifest purpose of this rule was to secure to a defendant the right to open and conclude when, upon the real issues in the case, the burden of proof rests upon him; that is to say, when his defense is in the nature of a confession and avoidance of the plaintiff’s action he is permitted to admit the prima facie case of the plaintiff, although it is denied by his pleadings, and to open the case by introducing evidence to establish the affirmative defense he has set up. The rule is intended to secure a valuable right, and is just, and it should have a reasonable and practicable application. To construe it so as to accomplish in a reasonable and practical manner its object, an admission made in the very language of the rule must be construed to mean that the defendant admits every fact alleged in the petition which it is necessary for the plaintiff to establish in the first instance to enable him to recover; but does not admit allegations in the petition which merely deny new matter alleged in the answer, the burden of proof of which is upon the defendant.”

We do not think the rule cuts the defendant off from any independent defenses offered by him not invading the allegations in the action of trespass to try title.

The second proposition is sustained. No question bearing on rescission was submitted to the jury, and it seems that appellees had abandoned all attempts to obtain a rescission. It follows that they had no right or authority to recover the money they had paid on the land, nor obtain a cancellation of the note. Winters v. Coward (Tex. Civ. App.) 174 S. W. 940; Hailwood Cash Register Co. v. Berry, 35 Tex. Civ. App. 554, 80 S. W. 857.

We reiterate the rulings in the Winters v. Coward Case, as follows:

“The equitable remedy of rescission or cancellation is sought in this case to set aside a sale of land made by appellant to appellees and to cancel certain promissory notes given for part of the purchase money of the land. The remedy is sought on the ground of fraud and misrepresentation on the part of appellant as to the quality of the land and the, capacity of a certain well thereon.
“If appellees were led into the purchase of the land through the fraud and misrepresentation of appellant, they could undoubtedly obtain relief through the remedy of rescission, unless they lost their right through laches or waiver on their part.
“The remedy of rescission and cancellation is no prime favorite of courts, and slight circumstances, tending to show a purpose or intent upon the part of the person -seeking a rescission to waive such right, will prevent the granting of the relief. The right of rescission is one that can be waived, and, when waived, the rights of the parties are placed upon-a new basis. * * *
“The mere lapse of time goes far to establish a waiver of the right of rescission, and when taken with other circumstances, tending to show that the purchaser had, after the fraud was discovered, treated the property as his own, and had negotiations with the vendor in connection with other circumstances, would be conclusive. Crutchfield v. Stanfield, 2 Posey, Unrep. Cas. 480.”

The third proposition is disposed of by what was said as to the first proposition, and it is unnecessary to further discuss the matters involved.

The judgment is not as clear as it might be, and it is therefore reversed, and judgment here rendered that appellant recover the land sued for as prayed in the petition, and that appellees take nothing by their cross-action and pay all costs of this and the" trial court.


author: PELPHREY, C. J.

text:
    REED v. STATE, for Benefit of Martin County.
    No. 2736.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 1, 1932.
    Woodward & Coffee, of Big Spring, for plaintiff in error.
    R. W. Hamilton, of Stanton, for defendant in error.
   PELPHREY, C. J.

Plaintiff in error was the county attorney of Martin county from January 5, 1927, to November 13, 1929, and while so acting executed three separate bonds. This suit was filed by the state of Texas, for the benefit of Martin county, seeking to recover from plaintiff in error and the sureties on his several bonds the sum of $811.70, alleged to be the balance due said Martin county on fines and trial fees collected by plaintiff in error during his tenure of office.

It appears that Jim Tom and W. A. Kaderli were sureties on the first -bond executed ¡by plaintiff in error, while Globe Indemnity Company was the surety on the latter two.

The case was submitted to a jury on special issues, and it found:

(1) That plaintiff in error, from October 10, 1927, to January 2, 1929, collected $202.93 for fines obtained in judgments rendered in the county court of Martin county, which he had not paid to the county treasurer; (2) that he had collected alike amount for trial fees during that period which he had not paid over; (3) that from January 2, 1929, to November 13, 1929, he had collected $202.93 for fines and a like amount for trial fees, which he had not paid to the county treasurer.

Upon these findings the court rendered judgment against plaintiff in error and Globe Indemnity Company, jointly and severally, for $811.70, and that defendant in error take nothing against Jim Tom and W. A. Kaderli, the sureties on the first bond.

Erom that judgment Allen Reed alone has prosecuted a writ of error.

Defendant in error has filed no -brief, but has filed a motion to strike the transcript and statement of facts from the record and to dismiss the appeal on the ground that the transcript and statement of facts were filed too late.

It appears that judgment was rendered November 12, 1931; that • on December 9, 1931, plaintiff in error filed his petition for writ of error; that Ms appeal bond was filed on December 12,1931; that on March 4,1932, plaintiff in error filed another petition for writ of error, and on the same day filed another appeal bond; ' and that on April 18, 1932, the transcript and statement of facts were filed in this court.

Under the holding of our Supreme Court in Scottish Union & National Insurance Company v. Clancey, 91 Tex. 467, 44 S. W. 482, the right of plaintiff in error to abandon his first writ of error and prosecute another was upheld. The motion cannot therefore be sustained.

Defendant in error’s petition contains the following allegations:

“That the defendant, Allen Reed, was County Attorney and acted as County Attorney of Martin County, Texas, from January 5th, A. D. 1927, until November 13th, A. D. 1929, during which time the State of Texas procured judgments in following numbered and styled cases in the County Court of Martin County, Texas, on the respective dates and in the respective amounts as indicated here following: (here follows a list of ease numbers, with the style thereof, dates at which judgments were rendered and the amounts of judgments.)
“That on or about the respective dates when the above and foregoing judgments were procured, defendant Allen Reed collected the fine in each of the said cases, the total amount of all fines so collected being $1,286.00. In addition thereto said defendant, Allen Reed, collected a trial fee of $5.00 for each of said cases as part of the costs in each of said eases, as the law provides, totalling $670.00. That each of the above fines were due and payable to the Martin County Treasurer within 30 days from date of collection, less 20% properly deductable as commission for the* County Attorney, the county clerk, and County Sheriff, the County Attorney being allowed 10% on fines collected, and the clerk and the sheriff each being allowed 5% of the fines collected. That the trial fee of $5.00 collected as aforesaid by the defendant Allen Reed in each of the above eases was due and payable to the Martin County Treasurer of Martin County, Texas, within 30 days after date of collection. That the total amount of fines collected by the defendant Allen Reed during said period from January 5th, A. D. 1927, to November 13th, A. D. 1929, less the said 20% commissions, is $1,028.80. That during the said period of January 5th, A. D. 1927, to November 13th, A. D. 1929, defendant Allen Reed became liable and due to pay to the Treasurer of Martin County, Texas, the sum of $1,698.80 by reason of the several amounts of money above mentioned coming into his hands as County Attorney of Martin County, Texas. That of said amount due Martin County defendant Allen Reed at various times during the said period of his tenure of office, turned in, to the Martin County Treasurer, $887.10, leaving a balance due Allen Reed of $811.70, on November 13th, A. D. 1929, at which time the defendant Allen Reed resigned the office of County Attorney of Martin County, Texas. * * *
“That in each of the above styled and numbered cases, the County Judge entered a judgment upon the Judge’s Criminal Docket, specifying therein the amount of the fine assessed to the defendant, and to each of which judgments the County Judge affixed his signature. That the defendant Allen Reed fraudulently concealed the true amount of money collected by him for Martin County, by erasing the amounts of fines originally entered upon the judge’s Criminal Docket as aforesaid, and by making false entries of lesser amounts, all of which was done over the County Judge’s signature and without his knowledge or consent. * * * ”

Plaintiff in error now complains of the trial court’s refusal to sustáin his general demurrer to the petition, contending that, there being no duty to collect judgments in criminal cases imposed by law upon the county attorney, each judgment collected by him and'not paid over by him to the county treasurer constitutes a separate obligation and cause of action; that the petition alleging the collection by plaintiff in error of a number of judgments, the payment by him to the treasurer of a certain amount on account thereof is equivalent to alleging that plaintiff in error is indebted to Martin county in the sum prayed for, and such allegations are insufficient to show any liability on his part on any particular judgment; and that, there being no allegations in the petition that judgments for costs and trial fees were rendered in the cases enumerated, no right of action for costs or trial fees is shown thereby, and, excluding the amount of trial fees sought to be recovered, the amount involved is less than $500 and the petition subject to general demurrer.

The first two contentions are evidently based upon the theory that plaintiff in error was not charged with the duty of collecting judgments in criminal cases, and therefore that, before a recovery could be had, it would be necessary to allege and prdve that each particular judgment had been collected by him and not paid into the treasury.

Article 783 of the Code of Criminal Procedure reads: “When the defendant is only fined the judgment shall be that the State of Texas recover of the defendant the amount of such fine and all costs of the prosecution, and that the defendant, if present, be committed to jail until such fine and costs are paid; or if the defendant be not present, that a ca-pias forthwith issue, commanding the sheriff to arrest the defendant and commit him to jail until such fine and costs are paid; also, that execution may issue against the property of such defendant for the amount of such fine and costs.”

Article 785, O. O. P., provides that, when a judgment against a defendant is for a fine and costs, he shall he discharged from the same when he pays the full amount thereof, when the judgment is remitted by the proper authority, or when he has remained in custody the time required by law to satisfy the judgment.

Article 787, O. O. P., further provides that, wnen a judgment has been rendered against a defendant for a pecuniary fine, if he is present, he shall bp imprisoned in jail until discharged according to law, and that a certified copy of the judgment shall be sufficient authority for his imprisonment.

It will be seen from the above that a defendant may escape imprisonment and the issuance of an execution against his property by paying the judgment in full; but these statutes are silent as to whose duty it is to collect the judgment or accept the money.

In articles 944, 945, and 946, of the same Code, are found provisions requiring all officers charged by law with collecting money in the name or for the use of the state to make sworn written reports to the district courts of their several counties on the first day of each term, and similar reports to the commissioners’ court for each county at each regular term of all moneys collected for the county.

The officers coming within the provisions of those articles are declared by article 947 to be district and county attorneys, clerks of the district and county courts, sheriffs, constables, and justices of the peace.

In McLennan County v. Boggess et al., 104 Tex. 311, 137 S. W. 346, 347, the Supreme Court said: “With regard to the collection of fines, forfeitures, or money due the state or county, while article 1013 [now article 947], Code of Criminal Procedure, charges justices of the peace with the duty of collecting money, within the meaning of articles 1010, 1011, and 1012 [now articles 944, 945, and 946] of the Code of Criminal Procedure, which relate to the collection of money in the name .of the state, and the report thereof to the respective district courts of their several counties, and of money collected for the county to the commissioners’ court for each county, and prescribing the nature of such report, it is clear that the exercise of such duty of collection means only their authority to receive the money from the person adjudged to pay, or from the officer by whom it is in fact collected, and pay over to the proper source.”

From the above statutes and holding, ■it appears that a county attorney is authorized to receive payment of judgments such as are here involved, and is charged with the duty of making reports as to such collections and paying same over to the proper officer.

If this be true, then all that would be required of the state in order to recover from him would be to allege and prove that he had collected certain amounts and that the amount accounted for by him was less than the sum of such amounts collected.

It is further alleged in the petition that plaintiff in error collected a trial fee of |5 in each of the cases enumerated. Our statutes require that in all convictions in misdemeanor cases judgment .shall be for the amount of the fine and for costs.

This being true, then, as against a general demurrer, we think the allegation sufficient to show that the judgments which it is alleged plaintiff in error collected included costs as well as fines.

The amount sought to be recovered was within the jurisdiction of the district court, and plaintiff in error’s proposition that the trial fees should be excluded from the amount in controversy on the theory that the allegations were insufficient to show that they were included in the judgments which it is alleged plaintiff in error collected, thereby leaving the amount in controversy below the jurisdiction of the district court, must be overruled.

Plaintiff in error also contends that he was entitled to an instructed verdict because of the failure of the evidence to show that valid judgments were rendered either for a fine or costs in the cases alleged, or that he had collected such judgments and failed to turn the fines and trial fees into the treasurer.

With the contention that the evidence fails to show that plaintiff in error collected the fines and trial fees in all the cases alleged, we must agree.

Plaintiff in error admitted that he had col-Tected some of the judgments, and there was an attempt on the part of defendant in error to show that other officers had not collected judgments in the county court during plaintiff in error’s tenure of office. The sheriffs who served with him were interrogated on this point, but we 'find their testimony quite unsatisfactory.

The witness Zimmerman, who served as sheriff during part of the time that plaintiff in error was county attorney, testified:

“Q. During the period in which you were sheriff of Martin County and Allen Reed was County Attorney, did you collect any of the fines from the criminal docket of the criminal court? Did you collect any 'fines from the county court? A. I expect I did.'
“Q. Did you make a report of it to the County? What did you do with it when you collected it? A. We generally turned it over to the County Attorney.
“Q. Do you know of any one you didn’t turn over to Mm and reported direct? A. I don’t know that I could say, Mr. Thomas. That got to be a habit, more so after Mr. Hamilton was in there. I would turn it over to Mr. Reed. I might not have done it every time.”

Under the provisions of the statutes heretofore quoted and referred to, we are of the opinion that the county clerk was also authorized to collect the judgments here sued upon, and yet there is no showing here that he did not do so.

Defendant in error in its petition alleged that plaintiff in error had accounted for certain moneys collected by him, and, there being evidence that Mr. Zimmerman might have collected some of the judgments and reported directly for them, and there being no evidence that the county clerk did not collect any of them, we have concluded that from the record before us the evidence fails to show that plaintiff in error had collected more than he had accounted for.

The evidence not being fully developed, the judgment of the trial court must be reversed, and the cause remanded; the reversal of the judgment, however, not to affect the judgment in favor of Jim Tom and W. A. Kaderli, sureties on plaintiff in error’s first bond.

In view of another trial, we- shall not discuss the further questions presented.

Reversed and remanded.