author: BLAIR, J.

text:
    REYNOLDS et al. v. PORTER et al.
    No. 7726.
    Court of Civil Appeals of Texas. Austin.
    Nov. 23, 1932.

      W. A. Wright, O. Gr. Russell, and C. H. Tapper, Jr., all of San Angelo, for appellants.
    James Cornell and Collins, Jackson & Snod-grass, all of San Angelo, for appellees.
   BLAIR, J.

This suit arose in the county court by an application to probate the will of Jerome Porter, deceased.

The estate of Jerome Porter consisted of a ranch, which he devised as follows: To Vernon Porter, a son, an undivided one-half interest; to Mary Myrtle Reynolds, a daughter, an undivided one-sixth interest; to George Romberg, John Romberg, Dora Romberg Dennis, and Margaret Romberg Young, children of Addie Bell Romberg, a daughter who predeceased testator, an undivided one-sixth interest; and to C. E. Davidson, a lifetime friend and benefactor of testator, an undivided one-sixth interest.

Mary Myrtle Reynolds and the Romberg children, appellants here, contested the will on the ground that Jerome Porter was mentally incompetent to execute it, and that its execution was induced by the undue influence of Vernon Porter over testator. Vernon Porter and C. E. Davidson joined the executors as proponents of the will, and these are appellees here.

The contest of the will was heard in the county court, and the will was ordered probated. Appellants appealed by certiorari to the district court, and on a trial de novo the jury found that testator was mentally competent to execute the will, and that its execution was not procured by the undue influence of Vernon Porter. Judgment was accordingly rendered for proponents of the will; hence this appeal.

Appellants contend, first, that the court erred in striking from their petition for cer-tiorari the pleadings of Vernon Porter, as next friend of his father, filed in a suit instituted before the will was executed, against the Texas Live Stock Loan & Commission Company, seeking to cancel his father’s contract to purchase certain shares of stock from said company, alleging, in substance, that his father was then over eighty years of age, very feeble in mind and body, incapable of attending to business matters, or of making contracts of any sort; and that, because of such condition, he (Vernon Porter) had been conducting for a number of years prior thereto all business matters for his father; and, second, that the court erred in refusing to permit the introduction in evidence of a certified copy of the pleadings for three purposes, as follows:

(1) As tending to impeach the testimony of Vernon Porter given on the trial of this case that his father was of sound mind when he executed the will.

(2) As being relevant and material evidence upon the issue of undue influence on the part of Vernon Porter over his father in the execution of the will.

(3) As tending as direct evidence to establish the mental incompetency of Jerome Porter to execute the will.

It was not error to strike from the petition for certiorari the pleadings of Vernon Porter in his suit as next friend of his father against the Live Stock Loan Company. If these pleadings were material to this case, they were only so as evidence tending to either impeach the testimony of Vernon Porter given in this case, or to establish his undue influence over testator, or the mental incompetency of testator to execute the will. It was not necessary to plead the evidence by which appellants intended to impeach the witness, or by which they intended to establish undue influence or mental incompetency of testator. The certified copy of these previous pleadings could have been introduced in evidence, if admissible, without pleading them; and we pass to a consideration of their admissibility.

The pleadings in the previous suit were filed by Vernon Porter as next friend of his father before his father executed the will giving him an undivided one-half interest in the property in controversy. The fundamental basis for the introduction in evidence of such pleadings is upon the theory of declarations or admissions against the interest of declar-ant. Under the facts stated, the rule as to their inadmissibility is well stated in 17 Tex. Jur. 554, § 229, as follows: “To be admissible the declarations or admissions must be against the proprietary or pecuniary interest of the person making them. He must have an interest in the subject matter of the declarations at the time when they are made, and, if he has no interest at that time, the declarations are not admissible against him though he subsequently acquires an interest. » * ⅞ _&ncj statements of a person claiming under a will to the effect that the testator is insane or incompetent to make a will, made before the will is executed, are not admissible against him on a contest of the will.”

The following authorities are cited by and support the text quoted: Stewart v. Miller (Tex. Civ. App.) 271 S. W. 311 (writ of error refused); Gay v. Jackman (Tex. Com. App.) 252 S. W. 1042; Id. (Tex. Com. App.) 254 S. W. 927, reversing (Tex. Civ. App.) 237 S. W. 315; Bell v. Preston, 19 Tex. Civ. App. 375, 47 S. W. 375, 753; Reed v. Phillips (Tex. Civ. App.) 33 S. W. 986; Prather v. McClel-land, 76 Tex. 574, 13 S. W. 543; Id. (Tex. Civ. App.,) 26 S. W. 657; Adams v. Adams (Tex. Civ. App.) 253 S. W. 605, writ of error dismissed for want of prosecution, 114 Tex. 582, 278 S. W. 1114. See, also, 22 C. J. 234.

Appellants insist, however, that Vernon Porter did have such an interest in his father’s property, one-half of which was later devised to him by the will, at the time he filed the suit to cancel the contract for the purchase of the loan company stock, either as next friend of his father or as managing partner; of his business, to admit the pleadings in evidence as declarations or admissions against interest, and as tending to impeach Vernon Porter, and to establish his undue influence over testator, or the mental ineompetency of testator.

The evidence does not disclose any interest Vernon Porter had in his father’s property when he brought the suit. His father could have disposed of it all by sale or as he later did by will without the consent of Vernon Porter, or without regard to the pending suit filed by Vernon Porter. The basis of the suit filed was to cancel an improvident contract of the father to purchase stock in the loan company. The only way the property in question could have been injured by the contract was that it might have been subjected to the payment of the improvident contract. There is nothing in the evidence to show how the act of bringing the suit was hostile to the father, or that such act constituted a threat, or undue influence by Vernon Porter over him. The charge that Vernon Porter brought the suit so that he might later acquire a larger interest in his father’s property is speculative, and has no foundation in the evidence. The suit was filed but) not tried. The pleadings were not sworn to by Vernon Porter; but he testified that he gave the facts or information upon which the attorneys drew the pleadings. So the pleadings were mere pleadings, and not testimony.

But, if Vernon Porter did have such an interest in the property of his father, which we do not concede, so as to admit in evidence the pleadings in his previous suit, the particular pleadings were properly excluded on the objection of appellees that the allegations were mere legal conclusions of the pleader, incompetent as evidence on the -issues involved in this suit, and therefore could not be considered on either of the three theories contended for by appellants. In substance, Vernon Porter alleged that his father was at that time feeble in mind and body, incapable of attending to business) matters of any sort, and for that reason he attended to all of his father’s business matters. The legal effect of these pleadings was to allege the ultimate fact or legal conclusion to be established in the case; that is, that Jerome Porter was incompetent to make the contract for the purchase of the stock. The authorities are uniform in holding that such a declaration or testimony is incompetent because a mere legal conclusion or opinion of the witness.

In the case of Curtis v. Adams (Tex. Civ. App.) 275 S. W. 206, 207 (writ of error refused), it was held as follows:

“In the trial of cases of this character it is permissible for a witness, who is qualified, ■to state whether in his opinion the mind of the testator is sound or unsound; but he cannot give his opinion as to the mental car pacity of the testator to perform the act then under investigation. In Brown v. Mitchell, 88 Tex. 350, 31 S. W. 621, 36 L. R. A. 64, the Supreme Court used this language:
“ ‘No witness, whether he be a subscribing witness, an expert, or a nonexpert, will be permitted, over proper objection, to state his opinion of the capacity of the testator, or the maker of any contract, to make such instrument, when such opinion assumes the shape and has the effect of being an opinion upon the legal capacity of the party in question.’ ”

In the case of Pickering v. Harris (Tex. Com. App.) 23 S.W.(2d) 316, 320, a suit to cáncel a deed because of mental incompetency of grantor to execute it, the trial court permitted the wife of grantor to testify that, at the time grantor executed the deed, he did not understand “the nature and extent of his property”; or that he “was transferring same”; or “the consideration for which the transfer was made.” In reversing the holding of the Court of Civil Appeals [12 S. W.(2d) 686] that this evidence was proper, the Commission of Appeals held as follows: “We cannot approve this holding. In our opinion, there is no difference between permitting a witness to testify to a number of legal conclusions the sum total of which make up the ultimate fact to be decided, and permitting such witness to testify to the ultimate fact to begin with. The testimony here under consideration certainly called for testimony on a number of legal conclusions, the sum total of which made up the one ultimate issue submitted to the jury.”

It is manifest that, if the allegations of Vernon Porter in his previous pleadings were themselves incompetent as evidence, because they were merely the legal conclusions of the ultimate fact to be decided by the court or jury, such incompetent matters or conclusions cannot furnish the predicate for impeaching the competent testimony given by Vernon Porter in this case, to the effect that his father was of sound mind when he executed the will; nor were these incompetent matters or conclusions admissible as tending to establish undue influence by Vernon Porter over testator, or that testator was mentally incompetent to make the will.

An additional reason why these pleadings were not admissible in evidence as admissions or declarations of Vernon Porter in this particular case is because they were opinions of Vernon Porter, a nonexpert witness as to the mental soundness of his father. A nonexpert witness is only qualified to testify as to the sanity or insanity of a testator after detailing what he saw or observed in the demeanor, words, acts, or conduct Of the testator as a basis for the conclusion of sanity or insanity. The pleadings did not allege any such predicate or basis upon which the legal conclusions that testator was of unsound mind when he executed the contract to purchase the loan company stock. The following cases sustain this conclusion: Scalf v. Collin Co., 80 Tex. 514, 16 S. W. 314; Williams v. Livingston, 52 Tex. Civ. App. 275, 113 S. W. 786; Daley v. Whitacre (Tex. Civ. App.) 207 S. W. 350; Brown v. Mitchell, 88 Tex. 350, 31 S, W. 621, 36 L. R. A. 64; Lamb v. Lippincott, 115 Mich. 611, 73 N. W. 887; Sutton v. Reagan, 5 Blackf. (Ind.) 217, 33 Am. Dec. 466; Burkhart v. Gladish, 123 Ind. 337, 24 N. E. 118; Louisville, N. A. & C. Ry. Co. v. Miller, 141 Ind. 533, 37 N. E. 343; Rarick v. Ulmer, 144 Ind. 25, 42 N. E. 1099; Stutsman v. Sharpless, 125 Iowa 335, 101 N. W. 105; Chicago Union Traction Company v. Lawrence, 211 Ill. 373, 71 N, E. 1024; Brito v. Slack (Tex. Civ. App.) 25 S.W.(2d) 881.

We are also of the opinion that the pleadings in the previous suit were not admissible as direct evidence tending to establish the mental incompetency of testator to execute the will, and since, if competent for impeachment, or to establish undue influence of Vernon Porter over testator, the right to introduce the pleadings for such purposes was waived by appellants’ failure to request that they be so admitted and limited.

Appellants also contend that the court erred in admitting the testimony of C. E. Davidson, a devisee or legatee under the will, and a party to this suit, of transactions with the deceased testator, as being violative of article 3716. The specific objection in both the county and district courts was that “because Judge Davidson is a party to this suit, and under the statute a party to the suit can not testify.” The court admitted the testimony with the statement “that when you cross-examined him that waived the objection.”

Neither the bill of exception nor the assignment of error nor the statement of facts show that appellants at any time urged the specific objection to Davidson’s testimony that it involved transactions with testator. But it is apparent, as contended by appellants, that the court and counsel so understood the objection to be that the testimony involved transactions with the testator. However, the inhibition of article 3716 does' not apply under the rule announced by the following authorities, because appellants waived their objection to testimony given by Davidson on direct examination, by cross-examining him in the county court trial, not only» as to the transactions mentioned in his direct examination, but went much further and more in detail, and elicited mahy new and entirely different transactions between witness and testator not inquired about on direct examination: Cox v. McClave (Tex. Civ. App.) 22 S.W. (2d) 961; Reynolds v. Reynolds (Tex. Civ. App.) 224 S. W. 382; Wootton v. Jones (Tex. Civ. App.) 286 S. W. 680; Reyes v. Escalera (Tex. Civ. App.) 131 S. W. 627; Allen v. Pollard, 109 Tex. 536, 212 S. W. 468; Gilkey v. Peeler, 22 Tex. 663; Perdue v. Perdue, 110 Tex. 209, 217 S. W. 694, 220 S. W. 322.

In addition to appellants’ waiver of their objection to the testimony of Davidson, the objection thereto was too general, and failed to segregate the incompetent from competent testimony, under the rule that an objection to all the testimony of a witness will be disregarded, if any of it is competent. Wells v. Hobbs, 57 Tex. Civ. App. 375, 122 S. W. 451; Olschewske v. Priester (Tex. Com. App.) 276 S. W. 647; Dolan v. Meehan (Tex. Civ. App.) 80 S. W. 99, 101; International & G. N. Ry. Co. v. Cuneo, 47 Tex. Civ. App. 622, 108 S. W. 714, 718; Tuttle v. Robert Moody & Son, 100 Tex. 240, 97 S. W. 1037.

The remaining contentions of appellants relate to the instruction to the jury to consider the testimony of Z. D. Bonner and Walter S. Skinner as impeaching the testimony of Vernon Porter given on this trial that his father was of sound mind when he executed the will. Bonner and 'Skinner were officers of the Live Stock Loan Company, from which testator purchased certain shares of stock. They testified that Vernon Porter called upon them in San Antonio and told them that Jerome Porter was mentally incompetent and physically unable and too childish to handle his business affairs, and “that they tried to keep (him) from transacting any business, and did not consider he was capable of conducting business transactions.” This conversation was regarding a note for $í;875, which Jerome Porteh had given in part payment of the stock. The conversation tQok place about one year prior to the execution of the will in question. Appellants contend that this testimony was also admissible as tending to establish both undue influence by Vernon Porter over testator and the mental incompetency of testator to make the will.

It is manifest that the declarations or statements claimed to have been made by Vernon Porter to these two witnesses were made at a time when he had no interest in tlie properties involved, and the rule herein-above stated condemns them as declarations or admissions against interest on the issue of mental capacity. It is also manifest that the statements or declarations made were mere legal conclusions that in the opinion of Yernon Porter his father was mentail/ incompetent to make the contract in question. As • such, they were incompetent as direct evidence under the rule hereinabove stated either for impeaching purposes, or as tending to establish undue influence, or mental incapacity of testator. In other words, appellants are attempting to do indirectly the thing they cannot do directly, in that they seek to adduce in evidence the legal conclusion or opinion of Yernon Porter that his father was mentally incompetent to make a contract or will; and also without requiring him, a nonexpert witness, to state the facts, acts, or conduct of testator upon which he based his opinion or conclusion of incompetency or insanity. Appellants had the benefit of this incompetent evidence for impeachment purposes, and cannot complain in that regard.

The judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: O’QUINN, J.

license: Public Domain

text:
    BURROWS et ux. v. TEXAS & N. O. R. CO. et al.
    No. 2252.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 8, 1932.
    Behearing Denied Dec. 14, 1932.
    Adams & McAlister, of Nacogdoches, for appellants.
    Arterbury & Coolidge, of Houston, for ap-pellee.
   O’QUINN, J.

Appellants, Charlie Burrows and his wife, brought this suit against the Texas &• New Orleans Railroad Company and Nacogdoches county, jointly, and alleged that said railroad and county were operating a stock pen and dipping vat near their home in the city of Nacogdoches; that said stock pen and dipping vat were constructed together and were being operated conjunctively. They alleged that said stock pen and dipping vat constituted a nuisance, and prayed for an injunction against both defendants restraining them from operating same, and in the alternative, in the event the injunction was refused, for damages against said defendants, jointly and severally, for the depreciation in value of their property occasioned'by the'maintenance and operation of said nuisance. The facts which made said stock pen and dipping vat a nuisance and the result of their operation were fully pleaded.

The defendant railroad answered by general demurrer, general denial, admitted the erection of the stock pen and that in its operation the matters resulting therefrom alleged by appellant would arise, but denied that such things would be of such proportions as alleged by appellants. It further specially answered as to certain defensive matters which it is not necessary to set out, and denied that appellants were entitled to any judgment.

The defendant Nacogdoches county answered by general demurrer, and adopted the answer of the railroad company, and prayed that plaintiffs take nothing by their suit.

The case was tried to the court with the aid of a jury, but at the close of the evidence, the court announced that there was no fact issue relative to the application for an injunction to be submitted to the jury, and rendered judgment against appellants and in favor of appellees on said issue, and in all things denied the injunction. Whereupon the defendant Nacogdoches county again urged its general demurrer to that portion of appellants’ petition wherein it was sought to recover damages against said defendant, and the court sustained the general demurrer and dismissed appellants’ suit as against said defendant. Thereupon, the defendant Texas & New Orleans Railroad Company moved the court to instruct a verdict in its favor on the question of damages, which the court granted and instructed the jury to return a verdict against the appellants and in favor of the railroad company, which verdict was so returned and judgment accordingly entered. From all of said judgments appellants have appealed.

The judgment in full is as follows:

“Be it remembered, that upon the 24th day of September, A. D. 1981, came on to be heard the above styled and numbered cause, when appeared the plaintiffs in person and the defendant, Texas & New Orleans Railroad Company by its attorneys, and the County of Nac-ogdoches by its attorneys, and all parties announced ready for trial.
“Whereupon the defendant, the County of Nacogdoches, presented and urged to the Court its general demurrer and its special exceptions, and after hearing same the Court decided to overrule said general demurrer and special exceptions for the time being, and to take same along with the case. Whereupon a jury was duly impaneled and sworn, consisting of E. L. Mcllwain, and eleven others, and after the pleadings were read to the jury, the cause proceeded to trial. At the conclusion of the evidence, on the 25th .day of September, A. D. 1931, the Court, after considering the pleadings, evidence and argument of counsel, was of the opinion that in reference to plaintiffs’ application and petition for injunction, the law and facts were with the defendants, and that there was no issue of fact in reference to said application for injunction to be submitted to the jury.
“It is, therefore, ordered, adjudged and decreed by the Court that the prayer of the plaintiffs, Charlie Burrows and wife, Mrs. Charlie Burrows, for an injunction against the Texas & New Orleans Railroad Company, and the County of Nacogdoches, be and. the same is hereby in all things denied, to which. action of the Court the plaintiffs in open court excepted and gave notice of appeal to the Court of Civil Appeals for the Ninth Supreme Judicial District of Texas at Beaumont, Texas.
“Whereupon the County of Nacogdoches again urged its general demurrer and special exceptions to that part of the plaintiffs’ petition wherein they sought to recover damages against the County of Nacogdoches, the Court having considered said general demurrer and special exceptions in reference to plaintiffs’ claim for damages against the County of Nacogdoches, is of the opinion that the law and facts are with the defendant, the County of Nacogdoches. It is, therefore, ordered, adjudged and decreed by the Court that the general demurrer and special exceptions be and are hereby sustained, and the cause is dismissed; that the County of Nacogdoches recover of and from the plaintiffs, Chas. Burrows and Mrs. Chas. Burrows, all its costs in this behalf expended, and for which it may have its execution; to which action of the Court in sustaining and not overruling, the plaintiffs, then and there, in open court excepted and gave notice of appeal to the Court of Civil Appeals for the Ninth Supreme Judicial District of Texas at Beaumont, Texas. Whereupon the defendant, Texas & New Orleans Railroad Company, moved the Court to instruct a verdict in favor of the defendant, Texas & New Orleans Railroad Company, against plaintiffs’ claim for damages against said defendant, and the Court having considered said motion, pleadings and evidence and argument of counsel, submitted to the jury the following charge:
“ ‘Gentlemen of the Jury: Tou are instructed to return a verdict against the plaintiffs and in favor of the defendant, Texas & New Orleans Railroad Company.’
“And said charge having been submitted to the jury, the jury returned into open court its verdict as follows:
“ ‘We, the jury, in accordance with the instructions of the Court, return a verdict in favor of the defendant, Texas & New Orleans Railroad Company, and against the plaintiffs in this case.
“ ‘[Signed] E. L. Mcllwain, Foreman.’
“And the court having received said verdict in open court on the 25th day of September, A. D. 1931, and having considered same, is of the opinion that in accordance with said verdict judgment should be entered against the plaintiffs and in favor of the defendant, Texas & New Orleans Railroad Company.
“It is, therefore, ordered, adjudged and decreed by the Court that the plaintiff, Charlie Burrows, and wife, Mrs. Charlie Burrows, take nothing by their suit against the Texas & New Orleans Railroad Company, and that the Texas & New Orleans Railroad Company go hence without day and recover of and from the plaintiffs all its costs in this behalf expended, for which let execution issue. To which action of the Court in rendering judgment for the County of Nacogdoches and the defendant, Texas & New Orleans Railroad Company, the plaintiffs then and there in open court excepted to the action of the Court and give notice of appeal to the Court of Civil Appeals for the Ninth Supreme Judicial District of Texas at Beaumont, Texas, and plaintiffs are allowed 90 days in which to prepare, present, have approved and filed statement of facts and bill of exceptions, and appeal bond is fixed at $500.00.”

The judgment will have to be reversed for several reasons.

As grounds for the relief asked, appellants, among other things, alleged that said stock pen and dipping vat were located in a residential portion of the city of Nacogdoches and within 425 feet of their home; that the maintaining and operating of said stock peit and dipping vat would create and be a nuisance for,, in that:

“(a) That the maintaining and • holding open to the public the stock pen and dipping vat in connection therewith and the keeping ®f the above named animals in and around said pen before and after dipping will create and make divers and sundry obnoxious and offensive odors that will be emitted therefrom and be carried into the residence of the plaintiffs, rendering the same unfit for occupancy, in that the odors will arise from the pen, loading racks and dipping vat, leaving the plaintiffs’ home surrounded by the unpleasant and unbearable effects of such obnoxious and offensive odors.
“(b) That said stock pen and dipping vat will create and bring in and around plaintiffs’ house flies, gnats and other insects, as well as stray dogs, rats and other rodents that communicate disease, which will gather round the stock, filth and rubbish that will accumulate around said stock pen and dipping vat, and will in turn come into and around the plaintiffs’ home and carry such filth and disease into plaintiffs’ premises, thereby creating a constant fear in the minds of plaintiffs for their health and safety, and bringing about a condition that will be distressing, in which the plaintiffs will have to live, if the same be permitted to be maintained and operated as is now contemplated, and will tend to deteriorate the health of plaintiffs on account'of said worry of having said pen and dipping vat located as they are, and making plaintiffs more susceptible to disease and lessening their powers of resistance.
“(c) That by reason of the maintaining and operating of said stock pen and dipping vat, flies, gnats and other insects will gather in and around said stock pen and dipping vat and will be brought into said stock pen and around said stock pen and territory by the herding of said animals in and around said stock pen and dipping vat, and said insects, gnats, flies, will be thrown in and around plaintiffs’ premises and will there communicate to plaintiffs’ or liable to communicate communicable and contagious diseases, in that they will deposit dangerous germs and untold filth in and around premises of plaintiffs’ which will continually harass, annoy and keep in constant fear the plaintiffs, as well as injure the health and happiness of said occupants, in that there will be ever present flies, gnats and other insects and unpleasant odors in and around plaintiffs’ home and that will he a constant annoyance and will he present at all times and will be such a nuisance as to threaten the plaintiffs with disease of body and mind.
“(d) That if said stock pen and dipping vat be maintained and operated, same will gradually fill up with droppings from stock and thereby create and make obnoxious odors that will permeate the plaintiffs’ premises and will cause fumes and smells at all times about the premises, and will be a constant and ever maintained nuisance that will work harm and injury to the plaintiffs in the enjoyment of their home.
“(e) That if said stock pen and dipping vat are allowed to be maintained and operated, it will place the plaintiffs’ property and premises subject to be run over, trampled and torn up by stock so herded in and around said stock pen and dipping vat, in that if same he maintained and operated, there is no way to reach the stock pen unless all animals he driyen down Church Street, and along and by plaintiffs’ premises, 'and plaintiffs’ premises and inhabitants thereof will he subjected to the viciousness of all animals that are to be shipped and that there will he a constant fear, dread and uneasiness on the part of the plaintiffs, in that there will be likely to be a break of said animals that are being driven to stock pen and especially will it make present a dangerous condition to the young children in and around plaintiffs’ premises, and will he a constant source of fear to plaintiffs whenever they have visitors that the children and others as well as plaintiffs will receive serious injuries from wild and mad beasts in being driven to stock pen and dipping vat, in that said animals will be driven from their habitats and in attempting to return will run over and trample and injure plaintiffs’ premises.
“(f) That in the maintaining and operating > of said stock pen and dipping vat there will be those noises incident to driving, penning and dipping animals, and as plaintiffs’ premises are situated, being in 425 feet of said stock pen, and dipping vat, will molest and disturb plaintiffs in their use and occupancy of their home, in that said stock will be dipped and loaded at all times of the day and night and will be a constant and continual noise of hollering and driving of said cattle into dipping vat and loading on to cars, and will destroy the peace and quietude of plaintiffs’ premises, in that in the dipping and loading stock it is necessary to holler and create various and sundry noises in order to push the said stock along, and that the noises as will be incident to said dipping and loading will be of such á nature as to make plaintiffs’ home undesirable and unfit for residential purposes, in that there will at all times be noises, odors and filth present from said stock pen and dipping vat.
“(g) That if said stock pen and dipping vat are maintained and operated, there will be constantly penned and held in said stock pen and dipping vat, animals at all times, and as is customary in all animals when taken from their accustomed range, there will be neighing, bellowing, bleating and squealing from the animals therein confined, which will be a constant reminder of the troubled condition of the dumb brute taken from its natural habitat, and will cause persons of ordinary temperament to be constantly alarmed, in that they will be confronted with the noises as aforesaid, and will create in persons, such as the plaintiffs are, a state of mind as to cause grief and pain and will cause great mental anguish and anxiety, which will work harm to the health of their families, and the pease and quietude of plaintiffs’ premises will be impaired.
“(h) That if said stock pen and dipping vat are operated and maintained, they will be sprayed and charged with high disinfectants which will cause fumes and odors to arise therefrom and enter plaintiffs’ premises and make the same uninhabitable and unbearable on account of said odors.”

They further allege that they had selected their location for a permanent home; had expended $4,500 in erecting their residence, had beautified their grounds by planting and cultivating shrubs and flowers, and that if ap-pellees were permitted to operate said stock pen and dipping vat it would result in the practical. destruction of their property for residence purposes; that same would deteriorate in value $3,500; and that unless their prayer for injunction was granted they would suffer irreparable loss.

Upon full and proper allegations that the stock pen and dipping vat, where located, and the manner of their operation, and the matters and things resulting therefrom, constituted a nuisance, and evidence tending to support said allegations, the court refused to submit the issue to the jury and determined the question himself. The stock pen and dipping vat, being permitted 'by law, were not a nuisance per se. Whether they were a nuisance in fact was a question of fact to be determined by the evidence, and there being proper and sufficient allegations of such facts as would make them a nuisance, and the evidence strongly tending to support such allegations, it was a question for the jury, and the court erred in taking the issue as to the facts from the jury and determining it himself. The jury must find the facts, and the court apply the law to the facts found by the jury as to the existence of a nuisance. 46 C. J. p. 812, § 469; 21 A. & E. Eney. Law (2d Ed.) 691; 20 R. C. L. p. 484, § 97; Sherman Gas & Electric Co. v. Belden, 103 Tex. 59, 123 S. W. 119, 27 L. R. A. (N. S.) 237; City of Fort Worth v. Crawford, 74 Tex. 404, 12 S. W. 52, 15 Am. St. Rep. 840; Brewster v. City of Forney (Tex. Com. App.) 223 S. W. 175; Rainey v. Red River, T. & S, R. Co., 99 Tex, 276, S9 S. W. 768, 90 S. W. 1006, 3 L. R. A. (N. S.) 590, 122 Am. St. Rep. 622, 13 Ann. Cas. 580.

Appellants, in addition to their prayer for injunction, in the alternative, ask for damages. At the time the suit was instituted the erection of the stock pen by defendant railroad had been completed, but the construction of the dipping vat by the county was unfinished, hence the form and allegations of appellants; but at the time of the instant trial, both stock pen and dipping vat were completed and in operation, and much testimony was offered as to the effects of their operation along the lines of appellants’ allegations of nuisance, for injunction, and damages resulting to their property. Certainly the question of damages was one of fact to be found by the jury, and if the jury found in favor of appellants on the issue of facts constituting a nuisance, then they would be entitled to recover damages, and the court’s instruction to the jury to return a verdict against appellants on said issue was error.

We gain from the record and briefs of the parties that the court sustained the contention of defendant Nacogdoches county that appellants could not maintain their suit against it because they had not presented their claim for damages to the commissioners’ court and same had been denied before filing their suit to enforce same. We think this was error. It is our opinion that appellants’ claim for damages growing out .of an alleged nuisance created and maintained 'by the court is not such claim as must be presented to the commissioners’ court before suit can be maintained therefor. To successfully maintain their suit, appellants must show the stock pen and dipping vat, where located, as operated and the results flowing from same, constituted a nuisance. Undoubtedly appellants did not have to present their application to the commissioners’ court for an injunction to restrain the defendant from operating, either alone or in conjunction with another, a nuisance to the detriment of its citizens or any of them. The claim for damages was hut incidental to the existence of the nuisance, and so not such claim as the Legislature had in mind when it enacted article 1573, R. C. S. Montague County v. White (Tex. Civ. App.) 241 S. W. 740. See, also, Pierce v. Gibson County, 107 Tenn. 224, 64 S. W. 33, 36, 55 L. R. A. 477, 89 Am. St. Rep. 946.

Prom the record-, it may be that the court concluded that appellants were not entitled to relief because the stock pen and dipping vat, if under all the facts, constituted a nuisance, being authorized by law, were not subject to abatement and did not subject the ones operating same to damages, being what is called a legalized nuisance. If the court so concluded, it was error. While the law permits and requires railroads to erect and maintain stock pens, still the right to select the site of same is not an arbitrary one. The law gives to railroad companies the right to arbitrarily select its right of way as it may deem “most advantageous” to its interest (article 6318, R. S.), but such is not the case as to the location of its machine shops, stock pens, and the like. Rainey v. Red River, T. & S. R. Co., 99 Tex. 276, 283, 89 S. W. 768, 90 S. W. 1096, 3 L. R. A. (N. S.) 590, 122 Am. St Rep. 622, 13 Ann. Cas. 580. In reference to stock pens there is no express provision as in the case of right of way that they may make the selection for such purposes of “the most advantageous” location. Then before it can be held that the Legislature intended to legalize a nuisance, it must appear that the statute either pointed out the place where the objectionable structure or works were to be built and operated, or left to the corporation or person operating same the power to make arbitrary the selection. In relation to the location of stock pens the law authorizing them does neither. What is said applies equally to the location and operation of dipping vats by the county. It cannot be said that the Legislature, by authorizing the construction and operation of stock pens and -dipping vats, intended that they could be arbitrarily located in residential portions of a city. When a nuisance actually exists, it is not excused by the fact that it arises from a business which is of itself lawful, or that it is necessary to the operation of the business. 46 C. J. p. 658, § 23; 21 A. & E. Ency. Law (2d Ed.) 689; Rainey v. Red; River, T. & S. R. Co., 99 Tex. 276, 89 S. W. 768, 90 S. W. 1096, 3 L. R. A. (N. S.) 590, 122 Am. St. Rep. 622, 13 Am. St. Rep. 580; Gulf, C. & S. F. R. Co. v. Oakes, 94 Tex. 155, 58 S. W. 999, 1001, 52 L. R. A. 293, 86 Am. St. Rep. 835; Missouri, K. & T. R. Co. of Texas v. Anderson, 36 Tex. Civ. App. 121, 81 S. W. 781; Cohen & Co. v. Rittimann (Tex. Civ. App.) 139 S. W. 59. See, also, 21 A. & E. Ency. Law (2d Ed.) 736, 737.

Appellee Texas & New Orleans Railroad Company insists that the judgment should -be affirmed because appellants did not show how much of the alleged damages, if any, to their property was caused by the act of the railroad, and how much was caused by appellee Nacogdoches county — in other words, it is contended that appellants should by their pleadings and proof segregate the damages -by showing that caused by each of the defendants. We do not believe this contention sound. The acts complained against defendants constituted a tort, and if such, then defendants were joint tort-feasors, and would be jointly and severally liable for such damage as was occasioned by their acts. The dipping vat built by the county was in the stock pen of the railroad, and it was used for the purpose of preparing stock for shipment in the cars and over the line of defendant Texas & New Orleans Railroad Company, and the stock pen and dipping vat were conjunctively used and this with the knowledge and consent of both defendants. This constituted them joint tort-feasors if the stock pen and dipping vat, under all the facts, constituted a nuisance. All parties who co-operate to create and maintain a nuisance are jointly liable in damages. 46 C. J. p. 749, § 347; Comminge & Geisler v. Stevenson, 76 Tex. 642, 13 S. W. 556; Houston & T. C. Railroad Co. v. Lackey, 12 Tex. Civ. App. 229, 33 S. W. 768; Denison & P. S. Railway Co. v. O’Maley (Tex. Civ. App.) 45 S. W. 227.

The judgment is reversed, and the cause remanded.


author: JONES, C. J.

text:
    ROWE et al. v. MASSEY et. al.
    No. 11067.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 29, 1932.
    Rehearing Denied Dec. 19, 1932.

      Ross Huffmaster, of Kaufman, and Angus G. Wynne, of Longview, for appellants.
    W. H. Barnes and Thos. R. Bond, both of Terrell, and Seay, Seay, Malone & Lipscomb, of Dallas, for appellees.
   JONES, C. J.

Mrs. Sadie W. Lochhead, joined pro forma by her husband, Earl Lochhead, appellees, instituted this suit in the district court of Kaufman county against W. M. Massey, E. N. Boy-kin, O. P. Walton, and the O. P. Walton Lumber Company, a dissolved corporation, Herbert Corley, A. S. Waggoner, the American Investment Company, John S. Turner, R. J. Rowe, and W. R. Holton, to recover on two vendor lien notes, each for the principal sum of $987.50, together with interest at the rate of 8 per cent, per annum, 10 per cent, attorney’s fee, and to foreclose the vendor’s lien on 283 acres of land described in appellees’ petition. Rowe and Holton, appellants, have duly perfected an appeal from a judgment adverse to them. Judgment was also rendered against a number of the other defendants, but they have perfected no appeal. The issues on this appeal are between the Lochheads and Rowe and Holton, and also between Rowe and Hol-ton and Walton, who was awarded a judgment against appellants for the same recovery had by appellees against him. The following are the material facts:

On January 31, 1919, A. S. Waggoner, as owner, sold the 283 acres of land to W. M. Massey, and, as a part of the consideration, Massey, assumed to pay an $11,000 lien indebtedness then existing against the land in favor of the John Hancock Mutual Life Insurance Company, and also executed in favor of Waggoner, as payee, the two vendor lien notes, forming the basis of this suit. One of these notes,, by its terms, matured January 1, 1927, and the other January 1, 1928. A. Si Wag-goner, as payee and owner of the first of these notes, with his written indorsement thereon, sold and delivered same to O. E. Walton, who had succeeded to the business of the O. E. Walton Lumber Company, a dissolved corporation. Walton sold and transferred this note to John S. Turner, with Walton’s written indorsement thereon. John S. Turner, with his written indorsement thereon, sold and transferred the note and lien to H. C. Kreiling, the former deceased husband of ap-pellee Mrs. Lochhead. In this transaction, Kreiling was acting as agent for his wife, now Mrs. Lochhead, and the note and lien were purchased with her own separate means.

The second note in suit was transferred with his indorsement, without recourse, by A. S. Waggoner to F. H. Muckleroy, who, by in-dorsement without recourse, transferred same to Kreiling, purchasing it as agent for his wife and with her separate means. After the death of Kreiling, and prior to the institution of this suit, on September 24, 1930, Mrs. Kreiling and Earl Lochhead were duly married. The indorsers of note No. 1 were made parties defendant on their indorsements of such note.

On October 20, 1919, by warranty deed, W. M. Massey duly conveyed the 283 acres of land to appellants, Rowe and Holton. As a part of the consideration of this conveyance, it was duly recited in the deed that appellants assumed payment of the $11,000 lien indebtedness in favor of the John Hancock Mutual Life Insurance Company, and also assumed payment of the two notes in suit. On the recited date of October 13, 1919, Rowe and Holton, joined by their respective wives, conveyed this land to G. M. Couch, and as a part of the consideration of this conveyance, Couch assumed the said $11,000 indebtedness, and also the payment of the two notes in suit.

On January 4,1921, G. M. Couch, joined by his wife, reconveyed this land to Rowe and Holton, in consideration of the cancellation and surrender to Couch of certain additional notes that had been executed by him to appellants on his purchase of the land on October 13, 1919, and the conveyance was made subject to all of the other indebtedness existing against the land.

On October 27, 1922, appellants, joined by their respective wives, conveyed the land to E. N. Boykin, subject to the lien indebtedness in favor of the John Hancock Mutual Life Insurance Company, and subject to the lien indebtedness evidenced by the two notes in suit, and subject to other indebtedness that had been created subsequent to the Massey purchase of the land. Other consideration, not necessary herein to mention, was named in this deed.

E. N. Boykin, on December IS, 1923, executed a deed of trust to M. A. Taylor, trustee for the Chicago Joint-Stock Land Bank, to secure a loan of $13,000 extended by such bank to Boykin, which indebtedness was represented by a series of notes executed by Boykin and made payable annually from 1932 to 1957.

The two notes in suit were made secondary to this deed of trust lien for $13,000, by a subordination agreement entered into by ap-pellees. The $13,000 was a loan to Boykin to pay off and discharge the indebtedness to the John Hancock Mutual Life Insurance Company, in the principal sum of $11,000. Appellants were not parties to the subordination agreement of the lien securing the two notes in suit, nor did they have actual knowledge of such subordination agreement, though it was. placed of record.

Appellees agreed with the original payee and subsequent indorsers of the notes in suit to the extension of the time of maturity of each for a period of one year from the date named in the notes as maturity. Appellants were not parties to this extension and knew nothing of same until the suit was filed. Limitation had not run on either of the notes, under the original terms of maturity, when this suit was filed. The land had depreciated in market value from the time the two notes in suit were executed until the date of the trial, and at such latter date was not worth more than $13,000.

The case was tried to the court, without a jury, and judgment was rendered in favor of appellees against W. M. Massey, A. S. Wag-goner, O. F. Walton individually, and O. F. Walton Lumber Company, a dissolved corporation, John S. Turner, R. J. Rowe, and R. W. Holton, jointly and severally, for the principal, interest, and attorney fees, on the first note, with interest, except as to the attorney fee, at the rate of 8 per cent, per annum from date of the judgment. Judgment was also rendered against W. M. Massey, A. B. Wag-goner, R. J. Rowe, and R. W. Holton, jointly and severally, for the principal, interest, and attorney fee on the second note, with interest, except on the attorney fee, at the rate of 8 percent. per annum from date. The attorney’s fee recovered on each note bears interest from date of judgment at the rate of 6 per cent, per annum. The vendor’s lien in favor of appellees, as it existed on January 31,1919, was foreclosed on the said 2S3 acres. Judgment for the same amount as that recovered by appellees on the first note was rendered in favor of John S. Turner, against O. F. Walton individually, and the O. F. Walton Lumber'Company, a dissolved corporation, A. S. Waggoner, W. M. Massey, R. J. Rowe, and R. W. Holton. Judgment in a like amount on the first note was rendered in favor of O. F. Walton, against W. M. Massey, A. S. Waggoner, R. J. Rowe, and R. W. Holton. R. J. Rowe and R. W. Holton alone excepted to the judgment and perfected an appeal to this court.

As we understand the position of appellants, as reflected by their brief and assignments of error, no question is made as to the right of those codefendants awarded a judgment against them, provided the judgment in favor of appellees was correctly awarded against appellants.

Before discussing the contentions made by appellants, in respect to the judgment rendered against them, we deem it best to state the status of the parties interested in this appeal, under the facts as herein given. At the time the obligation entered into by appellant's was incurred, Massey "was the owner by purchase from Waggoner of the land described in appellees’ petition, and as part consideration for the conveyance to him had executed in favor of Waggoner the two notes in suit, and had made such notes a vendor’s lien on the land. At the time of this purchase, there already existed a valid lien on the land for the principal sum of $11,000 in favor of John Hancock Mutual Life Insurance Company, and as a further part of the consideration, Massey assumed the payment of this indebtedness. This lien for $11,000 was an older and necessarily a superior lien to the lien created by Massey to secure the payment of the two notes in suit. With these outstanding and existing liens against the land, appellants accepted a deed from Massey, conveying to them the land, in which a part of the consideration was the assumption of the payment of the first and superior lien for the principal sum of $11,000, and the second and inferior lien for the principal sum of $1,975, represented by the two notes in suit, each for the principal sum of $987.50. Appellants therefore became the owners of the land charged with the payment of the indebtedness due the John Hancock Mutual Life Insurance Company, and the indebtedness represented by the two notes due to Waggoner, with their personal obligation to pay each indebtedness. Appellee Mrs. Lochhead became the owner of the notes and the liens securing them, bearing the indorsement of the original payee of each of the former owners of the notes. Each maker of such indorsement, who did not stipulate that he indorsed the note without recourse, became liable for the payment of the note so indorsed, was made a party defendant in this suit, and judgment recovered against each. Appellants conveyed the land to one Couch, who assumed the indebtedness then existing against the land, and also created additional indebtedness by the execution of other vendor lien notes in favor of appellants, as a part of the consideration. Rater, appellants accepted a reconveyance of the land to them by Couch and, as a consideration for such conveyance, canceled all of the obligations in their favor created by the former conveyance of appellants to Couch. Later, appellants conveyed the land to Boykin by deed of conveyance, in u-hich it is recited that the land was purchased subject to the indebtedness due on the notes in suit, and due to the John Hancock Mutual Rife Insurance Company.

When Boykin, by virtue of appellants’ conveyance to him, became the owner of the land, he held same subject to the lien indebtedness above described. The primary obligation of appellants created by Massey’s deed to them, for both the $11,000 indebtedness in favor of the Rife Insurance Company, and the two notes in suit, remained unchanged. At this time the owners of the $11,000 indebtedness and the owners of the indebtedness evidenced by the two notes in suit could look to appellants as primary obligors for the payment of such indebtedness, subject of course to the right of appellants to have the land first subjected to such payments.

After appellees became the owners of the notes, the maturity date of each was extended one year, and this extension was agreed to by appellees, as the owners of the notes, by Massey as maker, and by those who had subsequently become liable for payment by reason of their respective indorsements. After Boykin became the owner of the land, he negotiated a loan with the Chicago Joint-Stock Land Bank for $13,000, upon the terms herein-before described, and with this money discharged the indebtedness due the John Hancock Mutual Rife Insurance Company. Appel-lees entered into a subordination agreement, ■by which the lien securing the two notes was made subordinate to the lien created in favor of said land bank.

Under such status of the parties and the indebtedness represented by the two notes in suit, appellants contend that appellees have released them from liability on the two notes. This contention is based on the alleged facts that: (a) The note obligation they assumed was changed by appellees in a material matter, without their consent, by the extension of the maturity date of each note, for which reason they are released from any obligation on the notes; (b) under the existing facts they occupy the status of sureties as to the payment of the notes, and their liability as sureties not having been fixed in the manner prescribed by the Negotiable Instruments Law, they are released; (c) when the indebtedness of the principal sum of $11,000 in favor of the John Hancock Mutual Life Insurance Company was discharged, the prior lien securing i< was necessarily discharged, and the lien securing the notes in suit would have become a first lien against the property, except for the subordination agreement entered into, without their knowledge or consent, by appellees, for which reason their obligation is released; and (d) that, in any event, the increase of thei first lien from the principal sum of $11,000 to the principal sum of $13,000, and extending for a long period of time the final maturity date of this indebtedness, over the maturity date of the $11,000 indebtedness, constitutes such a material change in the status of the lien securing the notes in suit as to release them from any obligation on the -notes.

We cannot agree to any of these contentions. The assumption by appellants of the payment of the two notes, according to their tenor and effect, as a part consideration of the purchase price of the land, as above stated, created a primary obligation on the part of appellants in favor of the -payee of the notes in suit, and this primary obligation existed at the time this suit was instituted. Caraway v. Fowler et al. (Tex. Com. App.) 207 S. W. 672; Hall et al. v. Conine et al. (Tex. Civ. App.) 230 S. W. 823; Hill v. Hoeldtke, 104 Tex. 594, 142 S. W. 871, 40 L. R. A. (N. S.) 672. This obligation of appellants was not changed by the extension of the maturity of the two notes without their knowledge or consent. If appellants occupied thei status of sureties, 'then their contention in this respect might be correct.

The lien on the land, securing the insurance company, being superior to the lien on the land securing payment of the two notes in suit, Boykin, the owner of the land, undoubtedly had the right, without the agree-inent or consent of appellants, to obtain an extension of the debt secured by the first lien in order to protect the land from forced sale to liquidate such indebtedness. The insurance company, -the owner of the debt secured by this first lien, had the right to transfer such-debt and lien to the land bank, under any terms that would protect and hold in existence the first lien on the land to secure payment. The conclusion is irresistible that, when the $11,000 indebtedness to the insurance company was discharged by funds secured as a loan for that purpose from the land bank, with the intention that the first lien on the land should continue in. force to secure the payment of t-he funds thus obtained, appellants cannot complain because such purpose was accomplished. In the instant case, it was accomplished by the subordination agreement of appellees. No new debt was actually created, for the transaction constituted merely a continuation of the old debt; no new lien against the land was actually brought into existence, but merely a continuance of the old lien for the identical purpose for which it was originally brought into existence. Instead of appellants being prejudiced by this transaction, they were benefited, for the reason that they were relieved by the transaction, with the land bank from their assumption to pay the original indebtedness of $11,000. The second lien on the land, to secure'payment of the two new notes in suit, still remains in existence, and such lien was foreclosed on the land by the judgment of the court.

This, in effect, disposes of all of appellants’ assignments of error, and it necessarily follows that, in our opinion, the judgment of the lower court should be affirmed, and it is so ordered.

Affirmed.


author: MARTIN, J.

text:
    DAGGETT et al. v. CORN.
    No. 3812.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 2, 1932.
    Rehearing Denied Dec. 14, 1932.
    Alfred M. Scott, of Lubbock, and Oliver W. Fannin and Rryan, Stone, Wade & Agerton, all of Fort Worth, for .appellants.
    Bledsoe, Crenshaw & Durpee and Wilson, Randal & Kilpatrick, all of Lubbock, for ap-pellee.
   MARTIN, J.

Appellee had on his ranch in Crosby county a large number of what is described as “Florida cattle.” One Brabham was feeding cattle at Idalou, in Lubbock county. On November 15,1928, appellee sold to Brabham 225 head of these cattle, for which Brabham executed a note for $14,437.50, secured by chattel mortgage on the cattle sold. On December 7, 1928, appellee sold Brabham 199 head more of these same cattle, for which Brabham executed Ms note for $12,258.40, secured also by chattel mortgage on the cattle sold. These notes evidenced the entire consideration for the cattle, no cash having been paid.

Each of these chattel mortgages contained the following stipulations:

“This number of steers representing the total of steers mortgagor purchased from Frank Corn and delivered to Idalou, Texas, on this day and to remain in feed lots on full feed during the terms of tMs mortgage. * * *
“That so long as the possession of said property is permitted to remain with mortgagor the same shall not he sold, mortgaged or removed from the place above named without the written consent of the mortgagee.”

Appellee filed suit upon the notes above described and for a foreclosure of his mortgage against Brabham, and joined as conversioners appellants and others, alleging that they had converted certain of said cattle with actual or constructive notice of his said mortgage and the terms thereof.'

Appellants filed an answer consisting of general and special exceptions, general denial, and specially pleaded:

(1) Express consent of appellee to the shipment and sale of the cattle;
(2) Implied consent to their shipment and sale;
(3) Batification of their sale by appellee.

Supported by proper findings of the jury, the court entered judgment against appellants for the value of some of the cattle alleged to have been converted, the total of which amounted to 118 head. Judgment was also taken against Brabham for the amount of ap-pellee’s debt, aggregating about $30,000, and for a foreclosure of his mortgages. Brabham has not appealed.

It is vigorously urged that a peremptory instruction should have been given for appellants because the evidence established all three of the defenses above pleaded.

That a chattel mortgagee may waive his mortgage lien, or be estopped to enforce it by conduct inconsistent with its existence, is too well established as a legal proposition to here require any discussion, and we content ourselves by merely citing some of the authorities. First Nat. Bank v. Railway Co., 97 Tex. 201, 77 S. W. 410; Kempner v. Huddleston, 90 Tex. 182, 37 S. W. 1066; Rusk County Lumber Co. v. Meyer (Tex. Civ. App.) 126 S. W. 317; 9 Tex. Jur. 184, § 78.

The dispute here is over the facts, rather than the existence of this well-recognized rule. Brabham testified positively to express consent and to a course of dealing from which consent would necessarily be implied. Appel-lee, however, testified positively in express contradiction to this. On cross-examination he became somewhat confused, due, it is alleged by appellee, to his deafness. He testified, in part: He was to let me know before he shipped any cattle and he never done that.” These cattle appear to have been shipped at various times by Brabham to different parties prior to January 22,1929. Appellants are either commission merchants to whom the cattle were consigned or are purchasers thereof. Corn testified he had no knowledge of these shipments, except as to 4 head, prior to January 22, 1929, when he was advised of the shipment of 93 head to Fort Worth. The testimony further shows that he was instructed by Brabham to draw on him for the proceeds of these and that he did so. The draft was turned down, and some ten or twelve days after receiving knowledge of the shipment he notified one of the appellants, a commission merchant in Fort Worth, of his mortgage. However, at this time he knew that the cattle had already been sold and the proceeds placed to the credit of Brabham. He never received any part of these from Brabham or appellants.

It may be admitted that appellee knew that the mortgagor would eventually have to sell the mortgaged property to discharge Ms debt, but it has been expressly decided that this does not necessarily show a waiver of his Hen. Weeks v. First State Bank (Tex. Civ. App.) 207 S. W. 973.

This court is bound by the findings ■of the jury if there is any evidence to support such, and mere conflicts or contradictions do not justify us in disregarding the testimony of a witness given in support of an issue. Wonderful Workers of the World v. Woods (Tex. Civ. App.) 297 S. W. 232; El Paso Street Ry. Co. v. Talamantes (Tex. Civ. App.) 40 S. W. 228. For other cases on tMs question, see Texas Employers’ Insurance Association v. Sloan (Tex. Civ. App.) 36 S.W.(2d) 319; Kuykendall v. Johnson Funeral Parlor (Tex. Civ. App.) 38 S.W.(2d) 601; Jones v. Jones (Tex. Civ. App.) 41 S.W.(2d) 496; Gonzales v. Word (Tex. Civ. App.) 45 S.W.(2d) 305.

Giving effect to the testimony of ap-pellee as a whole, we are of the opinion that it supports the jury’s finding that there was no cons'ent given Brabham by appellee to ship and sell the cattle.

A mortgage lien may be waived by either express, implied, or conditional consent.

With regard to conditional consent, the condition must be performed in order to render the consent a waiver of the mortgage lien as between the parties or in favor of the purchaser who was a party to the condition or had knowledge thereof; but the failure of the mortgagor to comply with the condition will not affect the rights of a purchaser who does not participate therein or have knowledge thereof. Rusk County Lumber Co. v. Meyer (Tex. Civ. App.) 126 S. W. 317; Oklahoma Cattle Loan Co. v. Wright et al., 219 Mo. App. 157, 268 S. W. 712; Tucker v. Mann, 124 Ga. 1003, 53 S. E. 504.

It is specially urged here that the evidence shows conditional consent to the sale, of which appellants had no knowledge. Some of the quoted evidence above is undoubtedly sufficient to show that the mortgagee was willing for the mortgagor to ship the cattle in controversy provided he notified him in advance of such purpose. To our minds this presents a materially different situation from the cases relied on by appellants in which the facts evidence consent of the mortgagee to ship and sell the mortgaged property. It must necessarily have been contemplated by the parties to this mortgage that the cattle would be shipped, but not that they would be shipped in the name of and sold by thé mortgagor. Notified in advance by the mortgagor of his intention to ship on a certain date, the mortgagee could have protected himself by consenting to the removal of the cattle in violation of the express terms of the mortgage:

(1) If the shipment was consigned to the commission company in his name; or,

(2) By notifying the consignee of his interest and of any conditions he agreed upon with the mortgagor regarding the disposition of the proceeds which enabled him to protect his mortgage.

We interpret the evidence claimed to prove a conditional consent as going no further than to show a condition precedent upon which the mortgagee was willing to give his consent to the sale of the cattle, but not as establishing the fact of consent upon a condition." Nor do we think the drawing of the draft under the recited circumstances, standing alone, either evidences implied consent or establishes a ratification as-a matter of law of the sale by mortgagor of the property in controversy. While the appellee delayed some ten or twelve days in notifying the commission company, delay alone does not ordinarily establish d ratification. G. E. Parks Grain Co. v. Townsend (Tex. Giv. App.) 267 S. W. 1011. It is merely evidence, along with other facts, from which, if the delay should be unreasonable, the jury tnay infer that there has been a ratification. 2 Tex. Jur. 491, '§ ’91.

It will ¡be noted that appellee did not receive any of the proceeds of the sale of the 93 cattle. He merely attempted to secure such proceeds, and appellants were not injured by any delay, since they had already paid the money over to Brabham at the time of the act of appellee in drawing the draft for the proceeds, which appellants argue shows a ratification. Plainly appellee’s delay neither misled nor injured any one. No estoppel could arise from it, and his effort to protect himself from loss could not be construed, as a matter of law, into a ratification of a previous unauthorized act of the mortgagor. The issue of ratification was submitted to and found by the jury against appellants. The submission of this issue was all appellants were entitled to, in our .opinion.

Appellants offered to prove certain conversations and statements made between appellee Corn and Brabham at the time the chattel mortgages in question were executed, the effect of which was to show that Brabham had the right to ship and sell the cattle when they got ready for market. This was excluded upon the theory that it contradicted the terms of the mortgages which we have quoted above. That such testimony did vary and contradict the terms of the chattel mortgages in question cannot be disputed, and that as between the parties to the instruments such testimony is inadmissible, is likewise not controverted by appellants. Their proposition, if we comprehend it, is that the consignees and purchasers of these cattle from Brabham, not being parties, but strangers to the instruments, were not bound by their terms and could introduce testimony in contradiction of them. In support of this contention appellants quote from Vander Stucken v. Willoughby et al. (Tex. Giv. App.) 242 S. W. 478, 479, as follows: “The rule as to the exclusion of oral testimony to contradict or vary the terms of a written contract is applicable only as between the parties to such contract. A stranger to such written instrument is not bound by its terms, and therefore he cannot hold other parties bound by the same. Johnson v. Portwood, 89 Tex. 249, 34 S. W. 596, 787; * * * 22 C. J. 1292, 1293; 10 R. C. L. 1020.”

This is not a full statement of the rule. It. is inaccurate, in that the rule as to the exclusion of parol testimony applies as well to the privies as to the parties to any contract. That is, neither the parties to a contract nor those in privity with them may introduce oral testimony to contradict or vary its terms. This is shown by the very authorities cited in the Yander Stucken Case, supra.

Johnson v. Portwood, 89 Tex. 235, 34 S. W. 596, 599, 787, is a Supreme Court case and is one of the leading cases which support the rule in question. In this ease a controversy arose between plaintiff and defendant having a written contract, and an intervener having only an oral contract with the plaintiff. It was there held that the defendant could not offer testimony in contradiction of such written contract, but intervener could; the court, however, observing: “But, had the intervener taken a mortgage from the defendant, he would, as to the right so acquired, have been in privity with the defendant, and would not be permitted to introduce parol evidence to vary the terms of the written memorandum.”

Concrete application of the principle of law here announced was given in the case of South Texas Implement & Machine Co. et al. v. Anahuae Canal Co., 280 S. W. 521, 523, by Judge Speer of the Supreme Court Gommission of Appeals. This was a contest between senior and junior chattel mortgagees. The junior mortgagee was not a party to the original mortgage, but with the senior mortgagee held a lien from a common source on the same property. It is there stated: “Evidence appears to have been admitted in this case which tended to show that' the crops upon the Chambers county land for 1920 were not within the contemplation of the parties, but this clearly contradicts what we have held to be the terms of the written instrument, and, even though admitted without objection, can have no effect to vary that instrument.”

See, also, Childress v. First State Bank of Barnhart (Tex. Civ. App.) 264 S. W. 350; Peyton v. Sturgis (Tex. Civ. App.) 202 S. W. 205; 22 C. J. 1292, and authorities there collated.

“Privity” has been said to mean, in its broadest sense, mutual or successive relationship to the same right of property; a successive relationship to or ownership of the same property from a common source. Thus it has been said that “privity” implies succession; that “privies” occupy that relationship to others because of derivative rights of property. 50 C. J. 404, 405.

Since in our opinion the recited relationship of appellants constituted them privies to the instrument in question, they were bound by its terms, and the court properly excluded the testimony in question.

Nor do we think the court erred in sustaining appellee’s special exception to appellants’ answer pleading custom as between mortgagees and mortgagors in the handling and shipment of cattle. A custom or usage is never admissible for the purpose of contradicting and varying the terms of a written contract. Baltimore Base Ball Club & Exhibition Co. v. Pickett, 78 Md. 375, 28 A. 279, 22 L. R. A. 690, 44 Am. St Rep. 304; Pennsylvania R. Co. v. Naive, 112 Tenn. 239, 79 S. W. 124, 64 L. R. A. 443. Such testimony is receivable, however, where the written instrument is ambiguous, to explain its meaning. Peet v. Peet, 229 Ill. 341, 82 N. E. 376, 13 L. R. A. (N. S.) 780, 11 Ann. Cas. 492.

The appellants’ eighth proposition is as follows:

“The Court erred in excluding from the jury upon objection of counsel for appellee, the following testimony of appellee Corn:
“ ‘Q. You testified as to two conversations that you had with Mr. Brabham after these steers were sold to him. What did you tell him or what did he tell you regarding the shipping of these cattle to market and the sending of the proceeds tó you?
“ ‘A. I don’t remember what was said.
“ ‘Q. Did you or not? Was there then some discussion between you and Brabham regarding that?
“ ‘A. About him sending me the money?
“ ‘Q. Yes, about him sending you the money?
“ ‘A. He (Brabham) wrote me to draw on him for the first cattle he sold besides the four •head. I drew on him for the 93 head and the • four head, all in one draft, that was his instructions.
“ ‘Q. And it was agreeable with you on that occasion for him to ship the cattle providing he did send you the proceeds, that was what you were after?
“ ‘A. That was all the interest that I had in them.
“ ‘Q. And it would have been agreeable with you, would it not, for him to have shipped the remainder of the cattle if he had sent you the proceeds?
“ ‘A. Yes, certainly. He could have given them away if he had wanted to, if he had paid me the money. I had title until he paid me for the cattle, that is what I am suing for now.
“ ‘Q. The first shipment of cattle that he told you to draw on him for had not been in the feed pens for the full length of time provided in the mortgage, had they?
“ ‘A. No, sir. It didn’t have to be. He could use his own discretion about that.
“ ‘Q. He could use his own discretion about that?
“ ‘A. Yes. He didn’t have to ask me whether he could ship them or not. It is conceded that a man when he sells anything that he is going to pay his debts with it, the man that had the mortgage.’
“Said evidence being admissions on the part of appellee Corn, and showing, or at least, tending to show, that mortgagee had consented for the mortgagor to ship and sell the cattle provided mortgagee received the proceeds.”

To this testimony the appellee, at the time it was offered, made the following objections: “Because it is immaterial and irrelevant, an attempt to vary and contradict the terms of the written instrument by parol testimony. The written agreement, presumable in lieu of all prior negotiations were merged into it and they cannot change or vary or add to it in any way by proof of any conversations. I want to object to it further on the ground that there is no pleading of fraud, accident or mistake, such as would authorize the introduction of parol testimony.”

What has already been said makes it plain that a mortgage may be waived either by express consent given after the execution of the mortgage, or by words, acts, or conduct giving rise to implied consent. Keeping in mind that Brabham had testified positively to express consent and to facts and circumstances occurring thereáfter showing implied consent given by appellee after .the execution of the mortgage, the above testimony plainly tended to corroborate Brabham and to show consent which amounted, in law, to a waiver of mortgagee’s lien on the cattle in controversy. The main objection urged, that it varied and contradicted the terms of the mortgage, would obviously have no application to statements made after the execution of the mortgage. Parties, of course, may make a new contract or may vary in part one already made. A multitude of cases could be cited to show that the terms of a mortgage may be waived subsequent to its execution, but we deem it unnecessary.

This’case, considering its complicated character, was well tried, and we have regretfully reached the conclusion that the above action of the court was such error as compels us, under our duty, to order a reversal.

Since we must reverse the case, we deem it appropriate to make the following additional observations:

In submitting the issue of consent, the court, in substance, asked the jury to find whether or not appellee consented to the shipment and sale of the cattle “in writing or otherwise.” It is insisted that the last phrases of this instruction should have been defined. The court did give the specially requested instruction defining “express” and “implied” consent; but since neither the terms “express” nor “implied” consent were used in the charge, appellants claim this did not cure the error. In connection with the issue of consent, it is suggested that an explanatory charge be given to the effect that consent might be either express or implied, coupling same with appropriate definitions of these terms. We are not impressed with the view that there is any merit in the contention of ■appellants that the different kinds of consent should be separately submitted. Consent is the ultimate fact to be found, and we think it would be confusing for the court to submit separately the varieties of consent recognized by law.

In submitting special issues, the court failed to place the burden of proof upon ap-pellee to establish the affirmative and negative answers to the issues relied upon by ap-pellee for recovery. This is assigned as error.

Confusion exists in the authorities of this state as to the necessity of giving such a charge. It would seem to serve no useful purpose for us to lengthen this opinion by a discussion of these, and wé pass this question with a quotation from a recent decision of the Supreme Court Commission by Judge Sharp in the following language: “Since this case will be reversed and remanded, we think it proper to state that, when plaintiff pleads and relies for recovery upon specific acts of negligence on the part of the defendant, and the case is submitted to the jury upon special issues, it is proper to instruct the jury as to those acts of negligence so charged and relied upon that the burden is upon the plaintiff to establish them by a preponderance of the evidence. When the defendant challenges the right of plaintiff to recover by reason of certain exceptions, and that by virtue of certain exceptions there is no liability on the part of the defendant, and special issues based upon such exceptions are submitted to the jury upon such special issues, it is proper to instruct the jury that the burden is upon the defendant to establish them by a preponderance of the evidence.” Houston & T. O. Ry. Oo. v. Stevenson, 29 S.W.(2d) 995, 999.

This authority appears to sustain appellants’ contention.

For the error discussed, the judgment is reversed, and the cause remanded.


author: WALKER, C. J.

text:
    ABSHIER et al. v. REAVIS et al.
    No. 2264.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 8, 1932.
    Rehearing Denied Dec. 21, 1932.

      David E. O’Eiel, of Beaumont, for plaintiffs in error.
    P. O. Matthews, of Liberty, for defendants in error.
   WALKER, C. J.

About 1880 or 1881 B. T. Moore made application to purchase from the state the northeast quarter of Washington County Railroad Company section survey No. 2 in Liberty county, Tex., and about the same time his son-in-law, J. P. Reavis, the appellee herein, made application to purchase the northwest quarter of this section. Both applications were granted, and both Mr. Moore and Mr. Reavis took immediate possession of the land awarded them. Soon after taking possession of his quarter section, appellee J. P. Reavis began improving it. He built his residence and barn on the northeast corner, and fenced a large tract of land on the eastern side of his quarter section. He began his fence at a stake in the north line of the section, and built south to a southeast corner. Later he extended this fence to a point in the south boundary line of the quarter sections. This fence was continuously maintained by appellee Reavis at the place where originally built from the time he built it in 1881 or 1882 to the date of the trial of this case in 1930. Appellee Reavis has been the owner of his quarter section continuously since it was awarded to him, making it his home and with most of it under fence. On, the 25th day of March, 1901, B. T. Moore sold a tract of 91.5 acres off the west side of his quarter section to John Welsh. Moore described the Welsh tract of land as beginning 363 vrs. west of his northeast corner and extending west with the north boundary line of the section 418 vrs. for the northwest corner. The patent call for Moore’s north boundary line was 799 vrs. from his northeast corner to his northwest corner. Thus it appears that Moore did not extend the Welsh tract to the northwest corner of his quarter section as located by the patent call for distance. By deed dated the 29th of October, 1901, Welsh, joined by his wife, sold his tract of land to Henry W. Pruter, and by deed of May 31, 1910, Pruter and wife sold the same tract of land to L. S. Boyd. By deed dated the 3d of May, 1917, Boyd and wife sold the same tract of land to appellant I. O. Abshier. About 1922 appellant Abshier filed this suit against Reavis and wife in trespass to try title on the theory that the fence built by appellee Reavis, as above described, encroached upon the land deeded by B. T. Moore to Welsh on March 25, 1901, and by his petition sought to recover against Reavis and wife the little strip of about 4½ acres lying west of Reavis’ fence and east of the west boundary line of the Welsh tract as located by the call for distance. B. T. Moore died in 1913, after the death of his wife. In 1928 his surviving children and their heirs, other than Mrs. Reavis, joined with Abshier in his suit against Rea-vis and wife on the theory that Reavis had not only inclosed a part of the land deeded by Moore to Welsh, but also a small' strip of about 5 acres off the west side of the Moore quarter section between the Welsh tract and the eastern boundary line of the Reavis tract. By their answers Reavis and wife raised the issues of ten years’ limitation and that they had agreed with B. T. Moore at the time they built their fence, as above described, upon the location of the boundary line between the two quarter sections, and that the line thus agreed upon by Reavis and Moore had been continuously recognized by all' interested parties up to a short while before this suit was filed. 'These two issues were submitted by the court to the jury by four distinct special issues, all of which were answered in favor of appellees. Issues 3 and 4 were as follows, answered as indicated:

“Question No. 3: Prior to the death of B. T. Moore, did he and the defendant, J. P. Rea-vis, agree as between themselves, as to the location of the boundary line between their respective tracts of land, owned by them at the time, in the north half of Washington County Railway Oompany Survey, Section No. 2!” Answer: “Tes.”
“Question No. 4: If you have answered the foregoing question No. 3, ‘yes,’ tben was the boundary line agreed upon by said parties, namely, B. T. Moore and J. P. Reavis, where the dividing fence is now located on the ground between said two tracts of land? ” Answer: “Tes.”

Upon the jury’s verdict judgment was entered in favor of appellees, fixing the boundary line between the two quarter sections as being the old fence erected by appellee Reavis in 1881 or 1882.

Opinion.

We overrule appellants’ assignments that the verdict of the jury answering questions 3 and 4 was against the great weight and preponderance of the evidence and without support in the evidence. J. P. Reavis testified in his own behalf that he helped survey both quarter sections, and that he knew the exact location upon the ground of the dividing line between the two quarter sections and of the location upon the ground of the northwest corner of the Moore quarter section, which was the northeast corner of his quarter section; in 1881 he built his dwelling house and barn in the northeast corner of his quarter section; he began at the northeast corner of his quarter section, being the northwest corner of the Moore quarter section, and built a rail- fence south on the dividing line between the two tracts, but not all the way to the south boundary line of the quarter sections ; within two or three years, however, he extended his fence to the south boundary line of the quarter sections, inclosing most of his tract of land; he continuously maintained the fence, as thus located from the time it was originally built up to the time this suit was tried; he built the fence under an agreement between him and B. T. Moore that it was built on the dividing line between the two quarter sections. Ho testified further that Welsh, holding under Moore, recognized his fence as being on the dividing line between his tract and the Welsh tract; after Pruter bought from Welsh, he also recognized the fence as being on the dividing line, as did Boyd, and even appellee Abshier, until a short while before this suit was filed; he testified further that none of his wife’s people, who are appellants herein, ever disputed the location of the fence. Welsh, Pruter, Boyd, and Abshier, holding under Moore, had joined to appellees’ fence, and used it as a part of the inclosure to their own premises lying immediately east of the fence. Mrs. Reavis’ testimony in the case corroborated, in all material respects, Mr. Reavis’ testimony. G. T. Ab-shier testified as follows in corroboration of appellees’ theory of the location of the fence:

“Q. I will ask you if you recall the occasion when Mr. Reavis was building a barn out there close to his home? A. Yes, sir.
“Q. And Mr. Moore (meaning B. T. Moore) was there and .you were there, and there was a discussion about where the dividing line was between them? A. I will tell you what I know about it now. Jim Reavis settled there and he .invited us to go help him raise a barn, and about the time we were getting the barn up, old Uncle Ben (meaning B. T. Moore) rode up. He was a cousin of mine. The children called him Uncle Ben like everybody calls me Uncle Gid. He rode up and he said, ‘Jim, .dad blame, if I don’t believe you are putting that barn on my land.’ He said, T believe you are.’ So we .went down to the corner and lined it up, and sure enough he had built the barn right over the line. A part' of the barn was right in Ben’s land. Jim came back and said, T will move it if you say,’ and he said, ‘No, it is all in the family ; just let it go.’
“Q. Did you all go up there and see how it was according to the stake? A. There was a corner, but I don’t remember what kind of a stake it was. They claimed that was the corner.
“Q. Who, both of them? A. Yes, sir.
“Q. At that time did Mr. Reavis have a fence north of the barn? A. He had an old rail fence there. He had what we always called a stake and rider fence up there at the time.
“Q. And when they went up there and sighted down the line, he was over the line? A. A little bit of the barn was on Uncle Ben’s land; and he said; T will move it,’ and he said ‘no, let it go; it is all in the family anyway.’
“Q. That fen'ee you are talking about, was it later extended on down to his barn; do you remember going there and seeing it? A. No, I don’t remember anything more about it. They kept that fence up there all the time.
“Q. And that is the only expression of either one of those men about that situation you ever heard of from that good day until now, isn’t that right? A. That is the only thing I ever heard disputed about it until Ivan sued for the land.
. “Q. You have no idea at all where that stake is now? A. No, I have never been back to it that I know of.
' “Q. And you don’t know whether that barn that is on the line fence has been moved in or anything of that kind from that time to this? A. No, but I know1 they recognized that as the line.
“Q. And that has been how many years ago? A. ’ That was in 1881 or 1882. Jim had just settled there and it was the first barn he had built. He just had it all ready, and Uncle Ben came up. * * *
“Q. You do further know that he and Mr. Moore that day went up to a stake that was right there about where that fence corner was? A. Yes, sir.
“Q. You do know that Mr. Moore considered that fence on the line? A. Yes, sir. * ⅝ *
“Q. That was in 1881? A. 1881 or 1882..
“Q. That was a stake and rider fence? A. Yes.”

Questions 3 and 4, copied above, were-not on the weight of the evidence, nor argumentative, nor did they give undue prominence to defendants’ theory of the case.

Appellants have a proposition to the effect that the testimony of Mr. Reavis as to the agreement between him and Moore locating the dividing line between the two-tracts was in violation of article 3716, R. S. 1925. As this objection was not made in the-lower court, the proposition presents nothing-for review.

As the judgment of the lower court should be affirmed, upon the jury’s verdict locating-the dividing line between the two quarter sections, we pretermit a discussion of appellants’ propositions of error in the submission of the issues of ten years’ limitation.

Affirmed.