author: FUNDERBURK, Justice.

text:
    STEELE et al. v. GLENN.
    No. 1034.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 13, 1933.
    Rehearing Denied March 10, 1933.

      J. B. Lewright, of San Antonio, and Cunningham & Oliver, of Abilene, for plaintiffs in error.
    Kirby, King & Overshiner and Prank Smith, all of Abilene, for defendant in error.
   FUNDERBURK, Justice.

Dr. R. P. Glenn commenced this suit June 23, 1930, against the Delaware Punch Com-' pany of America and Wallace Steele as its agent to recover damages for alleged fraudulent representations claimed to have induced the sale to plaintiff of certain stock in said company. The sales involved four separate transactions: The first on June 26,1926; the second on June 9, 1927; the third on September 8, 1927; and the fourth on November 20, 1927. Each transaction is construed to be a separate cause of action.

With reference to these several transactions, the jury to whom the case was submitted upon special issues made findings as follows:

First. As to the sale of June 26, 1926:

(a) That on June 26,1926, Glenn bought 10 shares of preferred stock of said company for $1,000, its par value, and that he did so on these representations on that date made to him by Steele as agent of said c&mpany, to wit': (1) That said company was going to build bottling .works in most every city in Texas, including Dallas and Abilene; (2) that said 10 shares of preferred stock were then worth $100 per share; (3) that s.aid company then had plans of which only the details remained to be worked out, whereby said company would place its stock for sale upon the New York curb market; (4) that said company on that date had as a part of its assets $350,000 cash in bank.

(b) That each of said representations was false, and that each was made as a material inducement to Glenn to buy such stock on June 26,1926, and that Glenn would not have bought said stock if said representations had not 'been made to him by Steele at that time.

(c) That said company did not then intend to build bottling works in most every city in Texas, including Dallas and Abilene. That the actual value 'of said 10 shares of stock on June 26, 1926, was only $45 per share. That said company did not then intend to place its stock for sale upon the New York curb market and did not have $350,000 cash in bank on that date.

Second. As to the sale of June 9,1927:

(a) That on February 3, 1927, Steele as agent for said company made to Glenn precisely the same four alleged representations that were made June 26, 1926, on the strength of which Glenn bought 45 shares of said preferred stock of said company on June 9, 1927.

(b) That said company did not on February 3,1927, intend to build bottling works in most every city in Texas, including Dallas and Abilene.

• (c) Thát each of said four representations was made as a material inducement to Glenn to buy said additional 45 shares of stock by him on June 9,1927.

(d) That Glenn would not have thus bought said 45 shares of stock on June 9, 1927, if each of said representations had not been made to him by Steele on February 3, 1927.

(e) And that said 45 shares of preferred stock were worth only $30 per share when so bought.

Third. As to the sale of September 8,1927:

(a) That said representations made by Steele to Glenn on February 3, 1927, that said company was going to build bottling works in most every city in Texas, including Dallas and Abilene, were made as a material inducement to Glenn to buy 100 shares of the common stock of said company, which Glenn bought on September 8, 1927.

(b) That Glenn would not have bought said 100 shares of common stock if said representations had not been made to him by Steele on February 3,1927.

(c) That Steele acted as an agent of said company in the sale of said 100 shares of common stock to Glenn on September 8,1927.

Fourth. As. to the sale of November 20, 1927:

(a) That the representation made by Steele to Glenn on February 3, 1927, that said company was going to build bottling works in most every city in Texas, including Dallas and Abilene, was made by Steele as agent of said company as

(b) A material inducement to Glenn to buy 200 additional shares of the common stock of said company which Glenn bought on November 20, 1927.

(c) That Glenn would not have bought said 200 shares of stock but for said representation of February 3, 1927.

(d) That Steele acted as agent of said company in the sale of said 200 shares of common stock to Glenn on November 20,1927.

The jury found in favor of Glenn all issues submitted with reference to falsity, materiality, reliance, etc., upon each and all of the representations above mentioned, and as to the promissory representations that same were made-without intention of the company to perform.

In answer to other special.issues, the jury found that. Glenn discovered the falsity of said representations about August 28, 1929, and that he exercised reasonable diligence to discover such falsity. It was also found that in all the transactions Steele was the, agent of said company. From- the judgment for plaintiff below the defendants have prosecuted writ of error.

The Delaware Punch Company of America, which for convenience will be referred to as “defendant company,” duly filed its brief herein. Wallace Steele tendered his briefs for filing on submission day, together with a motion for permission to file same, which, being contested, we overruled. An inspection of the brief tendered shows that for a part 'of same it adopted the assignments of error, propositions, and arguments of defendant company, and we are now of the opinion that we should have permitted the filing of the brief, but have limited consideration thereof to such of defendant company’s brief as was adopted and applicable to defendant Steele. Our former order should be modified to such extent, and it is accordingly so ordered.

The first assignment of error (urged by both of the defendants) presents the question of the right of defendants to an instructed verdict on the ground- that, as shown by the undisputed evidence, the plaintiff’s causes of action were, at the commencement of the suit, barred by limitation. Revised Statutes, art. 5526, in part reads: “There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description: * * * 4. Actions for debt where the indebtedness is not evidenced by a contract in writing.” This suit being an action for damages for deceit, the above is the applicable provision of the statutes of limitation. Gordon v. Rhodes & Daniel, 102 Tex. 300, 116 S. W. 40.

In view of the many decisions cited and relied upon by the parties to sustain their several contentions and their wide divergence of views, we deem it necessary to a proper understanding of our conclusions, and as conducive to brevity, to devote some space to a general consideration of the law of limitation as applied to cases involving causes of action based upon fraud. One material inquiry is: When did the several causes of action involved herein “accrue?” It will not be questioned, we take it, that they — four in number — accrued respectively on June 26, 1926, June 9, 1927, September 8, 1927, and November 20,1927,- unless, because of the fact that the causes of action are based upon fraud and plaintiff’s ignorance of the fraud, the time of such accrual was thereby postponed. “The general rule is that a right of action accrues whenever facts come into existence which give rise to a cause of action.” 1 Tex. Jur. 632; Western Wool Commission Co. v. Hart (Tex. Sup.) 20 S. W. 131. A cause of action based upon a consummated legal wrong accrues immediately, regardless of whether or not the injured party has knowledge of the wrong. Houston Water-Works v. Kennedy, 70 Tex. 233, 8 S. W. 36. Is a cause of action based upon fraud subject to any different rule? More concretely stated, the question is: When a cause of action is based upon fraud, does it accrue when the fraud is committed, or does it accrue when the fraud is discovered or the plaintiff acquires knowledge of such facts, as in the exercise 'of reasonable diligence would lead to a discovery of the fraud?

Numerous decisions declare, in substance and in effect, that, in cases of fraud, limitation does not begin to run until the fraud is discovered, or, in the exercise 'of reasonable diligence, would (or could or should) have been discovered. Bass v. James, 83 Tex. 110, 18 S. W. 336; Smith v. Fly, 24 Tex. 345, 76 Am. Dec. 109; Bremond v. McLean, 45 Tex. 10; Hudson v. Wheeler, 34 Tex. 356; Alston v. Richardson, 51 Tex. 1; Chicago, T. & M. C. Ry. Co. v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39; Emerson v. Navarro, 31 Tex. 335, 98 Am. Dec. 534; Mason v. Peterson (Tex. Com. App.) 250 S. W. 142; Martinez v. Gutierrez (Tex. Civ. App.) 172 S. W. 766; Sowell v. Huffman (Tex. Civ. App.) 182 S. W. 1152; Gulf Production Co. v. Palmer (Tex. Civ. App.) 230 S. W. 1017; Bain v. Lovejoy (Tex. Civ. App.) 215 S. W. 984; Gillispie v. Gray (Tex. Civ. App.) 214 S. W. 730; Howell v. Bank of Snyder (Tex. Civ. App.) 158 S. W. 574; Coleman v. Ebeling (Tex. CSv. App.) 138 S. W. 199. A few cases refer to the time of discovery as being the time when the cause of action accrued.

Other decisions declare, in effect, that fraud will only prevent the running of limitation until discovery or until, by the exercise of reasonable diligence, same would (or could or should) have been discovered. Port Arthur Rice Milling Co. v. Beaumont Rice Mills, 105 Tex. 514, 143 S. W. 926, 148 S. W. 283, 150 S. W. 884, 152 S. W. 629; Cooper v. Lee, 75 Tex. 114, 12 S. W. 483; Brown v. Brown, 61 Tex. 45; Kennedy v. Baker, 59 Tex. 150; Martinez v. Gutierrez (Tex. Civ. App.) 172 S. W. 766; Dunn v. Taylor, 42 Tex. Civ. App. 241, 94 S. W. 347; Boren v. Boren, 38 Tex. Civ. App. 139, 85 S. W. 48; Shuttleworth v. McGee, 47 Tex. Civ. App. 604, 105 S. W. 823. Many cases use the two forms of expression interchangeably as meaning the same thing.

There are many decisions which seem to hold or imply th'at, in order to prevent the bar of limitation within the statutory period, undiscovered fraud or mistake alone is not sufficient, but to have such effect there must exist, in addition thereto, subsequent acts of fraudulent concealment. McFaddin v. Prater (Tex. Sup.) 3 S. W. 306; Connoly v. Hammond, 58 Tex. 11; Kuhlman v. Baker, 50 Tex. 630; Rowe v. Horton, 65 Tex. 90; Hudson v. Wheeler, 34 Tex. 356; Tinnen v. Mebane, 10 Tex. 246, 60 Am. Dec. 205; Carver v. Moore (Tex. Com. App.) 288 S. W. 156; Standford v. Finks, 45 Tex. Civ. App. 30, 99 S. W. 449; Davis v. Howe (Tex. Com. App.) 213 S. W. 609; Prosser v. First National Bank (Tex. Civ. App.) 134 S. W. 781.

But, apparently to the contrary of the decisions of which the last named are examples, are other cases holding or necessarily implying that the original fraud upon which the cause of action is based, if undiscovered, and no facts are learned which would put a reasonably prudent person upon inquiry, will, until such discovery, or the learning of such facts, prevent the running of limitation. Ripley v. Withee, 27 Tex. 14; Anding v. Perkins, 29 Tex. 348; Emerson v. Navarro, 31 Tex. 335, 98 Am. Dee. 534; Calhoun v. Burton, 64 Tex. 510; Brown v. Brown, 61 Tex. 45; Smalley v. Vogt (Tex. Civ. App.) 166 S. W. 1; Wortman v. Young (Tex. Com. App.) 235 S. W. 559; Thomason v. Rogers (Tex. Civ. App.) 155 S. W. 1040; Young v. Barcroft (Tex. Civ. App.) 168 S. W. 392; Luginbyhl. v. Thompson (Tex. Civ. App.) 11 S.W.(2d) 380; Shuttleworth v. McGee, 47 Tex. Civ. App. 604, 105 S. W. 823; Coleman v. Ebeling (Tex. Civ. App.) 138 S. W. 199; Stone v. Burns (Tex. Civ. App.) 200 S. W. 1121.

Another important inquiry is the applicability, if any, and the effect of the principles of the law of negligence. Decisions are many which expressly hold or necessarily imply, or at least reasonably imply, the existence of a duty on the part of plaintiff to exercise diligence to discover the fraud. Rowe v. Horton, 65 Tex. 90; Texas & P. Ry. Co. v. Gay, 86 Tex. 571, 26 S. W. 599, 25 L. R. A. 52; Id., 88 Tex. 114, 30 S. W. 543; Alston v. Richardson, 51 Tex. 1; McFaddin v. Prater (Tex; Sup.) 3 S. W. 306; Calhoun v. Burton, 64 Tex. 510; Mason v. Peterson (Tex. Com. App.) 250 S. W. 142; Powell v. March (Tex. Civ. App.) 169 S. W. 936; Standford v. Finks, 45 Tex. Civ. App. 30, 99 S. W. 449; Boren v. Boren, 38 Tex. Civ. App. 139, 85 S. W. 48; Waters v. East, 23 Tex. Civ. App. 412, 56 S. W. 939; Prosser v. First National Bank (Tex. Civ. App.) 134 S. W. 787; Carver v. Moore (Tex. Com. App.) 288 S. W. 156; Griffin v. Linn (Tex. Civ. App.) 3 S.W.(2d) 148; McBurney v. Daughety (Tex. Civ. App.) 19 S.W.(2d) 113; Smalley v. Vogt (Tex. Civ. App.) 166 S. W. 1; Gulf Production Co. v. Palmer (Tex. Civ. App.) 230 S. W. 1017; Gillispie v. Gray (Tex. Civ. App.) 214 S. W. 730; Western Cottage Piano Co. v. Griffin, 41 Tex. Civ. App. 76, 90 S. W. 884;

-, But to the contrary, or at least as engraft-ing a qualification thereupon, are decisions; holding that the defrauded party is under no duty to make an investigation to discover the existence of fraud unless and until he acquires knowledge of facts to put a reasonably prudent person upon inquiry. Smalley v. Vogt (Tex. Civ. App.) 166 S. W, 1; Stone v. Burns (Tex. Civ. App.) 200 S. W. 1121; Wortman v. Young (Tex. Com. App.) 235 S. W. 559 ; Isaacks v. Wright, 50 Tex. Civ. App. 312, 110 S. W. 970; McBurney v. Daughety (Tex. Civ. App.) 19 S.W.(2d) 113; Harris v. Flowers, 21 Tex. Civ. App. 669, 52 S. W. 1046; Young v. Barcroft (Tex. Civ. App.) 168 S. W. 392; Luginbyhl v. Thompson (Tex. Civ. App.) 11 S.W.(2d) 380.

It is apparent that all these decisions cannot be given literal effect. That they call for interpretation is well illustrated by the fact that apparently contradictory declarations are often contained- in the same decision. Confused and apparently conflicting statements and expressions must be given such interpretation as to conform to principles which are unquestionably recognized as established. Manifestly it is impossible to review all of these cases by separate mention. From a consideration of the whole question we have reached certain conclusions which we state with such explanatory discussion as seems necessary, as follows:

First. That declarations to the effect that, in cases of fraud, limitation only begins to run when the fraud is discovered, or, in the exercise of reasonable diligence, would (or could or should) have been discovered, are properly to be interpreted as attempts to state the effect of an estoppel upon pleas of limitation rather than the time of accrual of such causes of action. We believe that due observance of principles undoubtedly established requires the holding that a cause of action based upon fraud accrues when the fraud is committed, and that in this particular respect there is no difference between causes of action based upon fraud and other causes of action. What is really meant is, not that limitation only begins to run’-upon discovery of.'the fraud, but that estoppel to prevent the running of limitation then ends. The distinction may,.in practical effect, -in most eases,.be. unimportant, but is .extremely important in some cases. If cáuses .of action based upon fraud constitute an actual exception to the provisions of the statutes of limitations, in that limitation really does not begin to’run until discovery of the fraud, then it would never be necessary for the plaintiff to allege facts to excuse delay in filing suit because there would be no delay to be excused. If the statutory; -time had not elapsed after discovery; there would simply be no question of limitation involved. . Plaintiff’s petition would never be5sut>ject to exception on the ground solely "that,, it showed the commission of the fraud to have been longer than the statutory period before commencement of suit. Another' necessary consequence would be that, where the' question of limitation could not be raised by' exception because of the failure of plaintiff’s petition - to show the necessary facts, a plea of limitation by the defendant would be insufficient which merely alleged facts to show- that the fraud was committed at a time longer than the statutory period prior to commencement of suit. In addition, it would be necessary, in order to make the plea of limitation good, for defendant to allege facts to show that, at a time such that tlie statutory period had thereafter elapsed before commencement of suit, the fraud was discovered or that plaintiff had knowledge of such facts as would have led a reasonably prudent person to discover it. We know that such is not the law, and are therefore impelled to the conclusion that the cause of action accrues when the fraud is consummated and the running of the statute of limitation thereafter is only avoided, if at all, by an estoppel. If plaintiff’s petition shows the lapse of the statutory period before commencement of suit, his petition is subject to exception, unless there is also alleged facts to show an estoppel.

Second. That expressions in decisions stating or implying that plaintiff in cases of fraud may be guilty of negligence, and thereby set in motion the statute of limitation, are inaccurate and misleading. It seems clear to us that the law and principles of negligence have no proper application to this phase of the law of limitations. The notion that they are applicable is apparently the result of an unnecessary arid unwarranted inference from the latter part of the statement of the rule that in cases of fraud limitation does not begin to run until fraud is discovered, or, in the exercise of reasonable diligence, would (or could or should) have been discovered. It is little short, of amazing how much confusion, inaccuracy of expression, and even contrariety of decision has resulted from this obvious error. It is fundamental that negligence implies the existence of a duty — no duty, no negligence. How it could be thought that the innocent victim of a concealed fraud owes a legal duty to the perpetrator of the fraud to discover same is beyond our power of understanding. Even when the defrauded party acquires knowledge of facts which would prompt an ordinarily prudent person from motives of .self-interest to make’an inquiry which would result in the discovery of the fraud, there is clearly no legal duty to prosecute such an inquiry or make such discovery. It is wholly immaterial whether he does so or not. What is really intended is to define what shall constitute an equivalent o.f actual discovery — a kind of constructive discovery. When facts, conditions, or circumstances are shown to have come to the knowledge of the defrauded party which, it can be said, would have caused a reasonably prudent person, under the circumstances, to suspect the existence of the fraud and to make such an investigation 'by the use of means available, as would have resulted in its discovery, such constitutes the full legal equivalent of discovery. To say "or imply that either with or without knowledge of such facts the defrauded party is under the duty of investigating, and because of his negligence (based upon violation of that duty) he loses the right to longer toll the running of limitations, is patently erroneous and confusing. If he has such knowledge, it is wholly immaterial, as said before, what he does about it. He then has in legal contemplation discovered the fraud, and his plea of estoppel cannot avail him to thereafter further prevent the operation of the statute of limitation. Of course, if the duty to make discovery be assumed to exist and in a given case it is found that the plaintiff has been guilty of negligence, there will necessarily be involved the existence of facts which, in themselves, would put a limit to further estoppel. This fact is the only explanation apparent to account for so many cases which seemingly dispose of the question of limitation by reference to the rules and principles of negligence. If the same result would be reached in all cases, as it is in most, the matter would be of little practical consequence. Unfortunately, however, such is not the case, but, on the contrary, as a result of this misapprehension of the real controlling principles, decisions are to be found wholly irreconcilable.

Third. If the plaintiffs petition, although showing that more than the statutory period has lapsed before commencement of the suit, alleges facts prima facie sufficient to show that, by reason of defendant’s fraud, whether fraud upon which the cause of action is based or fraud consisting of subsequent concealment of the cause of action, defendant ⅛ estopped to cláim the benefit of the running of limitation up to a time such that the running of limitation thereafter would not effect a bar, then the issue of limitation cannot he raised by exception to the pleadings. In such a ease, if it be a fact that plain'.tiff did discover the fraud or acquire knowledge of such facts as would have led a reasonably prudent person to make such discovery, at a time from which, by the running of limitation thereafter, the cause of action would be barred at the commencement of suit, then, in order to raise the issue of limitation, defendant should embody such allegations in his plea of limitations and assume the burden of making proof of same.

Fourth. If, however, plaintiff in attempting to allege facts to show estoppel, or, in any gther allegations of his pleading, discloses facts, conditions, or circumstances .from which the inference would arise that he discovered the fraud or had knowledge of such facts as that a reasonably prudent person would have made inquiry, and from same have discovered the fraud, in such case the pleading is still subject to exception on the ground that it shows the cause of action barred, unless plaintiff further allege facts sufficient to rebut and exclude any such inference or presumption.

It is believed that these conclusions are supported by the weight of authority and are sufficient to explain the reason for our action in sustaining the first assignment of error. •

While there are assignments complaining of the overruling of special exceptions to plaintiff’s pleadings, what we have said we think, sufficiently shows the disposition properly to be made of same if it were necessary to pass upon them. Assignment No. 1 under consideration is determined upon the assumption of the sufficiency of the pleadings.

The determinative question is, Does the undisputed evidence disclose that plaintiff, more than two years before the commencement of the suit, discovered the fraud constituting the alleged causes of action, or acquired knowledge of such facts as to put a reasonably prudent person upon inquiry, which, by the use of the means available, would have led to the discovery of the fraud? The jury found that plaintiff discovered the fraud on or about August 28, 1929, which was less than two years 'before commencement of the suit. If he did not make such discovery more than two years before the commencement of suit, it was a wholly immaterial issue when he actually made discovery. Therefore that finding of the jury can form no proper basis for the judgment. As to' whether he exercised reasonable diligence to discover the fraud was likewise wholly immaterial. The issue was, Did he have knowledge of such facts, conditions, or circumstances as that a reasonably prudent person so situated would have discovered the fraud? We are forced to the conclusion that even that issue, under the undisputed evidence, was not an issue of fact for the jury. By plaintiff’s own testimony it was shown that one of the alleged false representations which constituted a basis for each of the four causes of action was made on June 26, 1926, in part to the effect that defendant company would build bottling works in Dallas and Abilene. Plaintiff testified that he understood- by that statement that such bottling works Would be built within one year thereafter ; that he believed from-the representation that the bottling works would be built in that time, and, if he had not so believed, he would have had cáuse to doubt every representation made. His own testimony shows that about one year later he then knew that no bottling works had been built in Dallas or Abilene. In fact; his own pleadings show that more than a year later he claims to have relied upon the original representation in making further purchases of stock.

According to plaintiff’s own testimony, more than two years before the commencement of suit he was told by. Rogers, who had .been instrumental in making the sales of stock to him, that he (Rogers) wss ashamed of having sold him the stock; that the company had not performed its promises, and had falsely represented the fact that it owned bottling plants in the “Valley.” This representation was one of those upon which one or more of the causes of action was based. This circumstance alone, we think, under authority of the decisions, as a matter of law, put him upon inquiry, which all the evidence shows that, by means available, he could have' made full discovery of the alleged fraud.

Considerably more than two years before the commencement of suit the plaintiff went to San Antonio, the home office of defendant company, and undertook to make such an investigation of its assets, management, etc., as necessary to determine the desirability of making further purchases of the stock. It was on that occasion when he learned that the only bottling plant they had was one in San Antonio, and, while he testified to further representations made him, he does not testify to any statement or representation designed or sufficient to explain why the 'bottling plants had not already been built in other places, and particularly Abilene, as he understood the former representations to mean.

Some of the representations' claimed to have been relied upon were in the nature of a guaranty of dividends. More than two years prior to commencement of the suit plaintiff learned that no cash dividend was being paid or had even been considered.

Plaintiff testified that the information which first caused him to suspect the falsity of any of the representations was his discovery in the summer of 1929 that no bottling plant had been built in Dallas. It is inconceivable that he did not know all along that no bottling plant had been built in Abilene, his home town, and that fact, we think, as a matter of law, put him upon inquiry, not only that there was no such plant in Dallas, but of all of the other representations relied upon.

It is therefore our opinion that the court below erred in refusing a peremptory instruction for the defendants, by reason of which the judgment should be reversed and-judgment rendered for the defendants, which is accordingly so ordered.


source: Caselaw Access Project

author: SMITH, Justice.

license: Public Domain

text:
    PERKINS v. WELCH.
    No. 9010.
    Court of Civil Appeals of Texas. San Antonio.
    March 1, 1933.
    John Q. Henry, of Mission, for appellant.
    Cecil R. Pulton, of McAllen, for appellee.
   SMITH, Justice.

Pred Welch brought this action for libel and slander against Oscar S. Perkins, based upon a letter alleged to have been written and published by Perkins, and upon alleged slanderous oral statement made by him concerning Welch. The jury found that the alleged false statement was not made, thus eliminating from the case the question of slander. But the jury did find that Perkins was prompted by malice at the time he wrote the letter complained of and that Welch was thereby damaged in the sum of $500, for 'which amount judgment was thereupon rendered in his favor against Perkins, who has appealed.

Concerning the charge; of libel appellee alleged in his petition, “Plaintiff further avers that, on to-wit: the 5th day of July,-1929, the defendant did falsely and maliciously state of and concerning plaintiff that plaintiff was dishonest, meaning thereby that plaintiff had embezzled and appropriated to his, plaintiff’s own use and benefit property belonging to others without the knowledge and consent of the owners of said property, being a crime under the laws of this State. Said false and malicious charge so made by the defendant was contained in a letter written and signed by the defendant and addressed to one J. H. Hawthorne, and which letter was mailed to the said Hawthorne and was received by and communicated unto the said Hawthorne on said date.”

In the letter mentioned in the pleading, appellant stated, among other things, that “in my own dealings with Mr. Welch * * * I have found that he is * * * dishonest in business affairs.”

The petition did not set out, in hmc verba, the letter or the particular language complained of therein as constituting the alleged libel, and upon that ground appellant excepted to the petition and objected to the introduction of the letter in evidence. The exception and objection were overruled, and these rulings are assigned as error.

The assignment against these rulings seems to be well taken. It is now well set-tied that, in a civil action .for damages based npon libel, the petition must set out the alleged libelous utterances in hasc verba; that, in cases such as this, when the complaint is based upon language embraced in a letter, the letter in full, or at least the particular portion or portions thereof charged to be libelous, must be set out in hsec verba; otherwise the allegations of libel amount only to conclusions of the pleader, and are subject to special exceptions. Rio Grande Valley Gas Go. v. Caskey (Tex. Civ. App.) 33 S.W.(2d) 848, and authorities there cited.

This should be particularly true where the imputation complained of is in general terms, such as that the complaining party is “dishonest,” as in this ease. Such language does not of itself charge the subject thereof with any particular offense involving moral turpitude and subjecting him to infamous punishment, which is necessary to support an action for libel. In case of such generality, it is particularly essential for the complainant to set out the context of the alleged libelous matter, and support it with the claimed innuendo, so that the court may determine for itself if a case of libel is pleaded. Newel, Lib. and Sian. (4th Ed.) § 36.

The judgment is reversed, and the cause remanded.


author: BAUGH, Justice.

text:
    LANGENEGGER v. PURL.
    No. 7841.
    Court of Civil Appeals of Texas. Austin.
    Feb. 15, 1933.
    Rehearing Denied March 8, 1933.
    J. F. Taulbee, of Georgetown, for appellant.
    Wilcox & Graves, Sam Bumap, and Wood & Wood, all of Georgetown, for appellee.
   BAUGH, Justice.

This was a habeas corpus proceeding brought by appellant to secure the possession and custody of Maxine Langenegger, his six year old daughter. From a judgment awarding the custody of said child to Ray Purl, Langenegger has appealed. No findings of fact and conclusions of law were requested, and none filed.

The wives of appellant and appellee were sisters. Appellant and his wife lived on a farm about three miles from tie village of Jarrell in Williamson county. They had five children. Appellee and his wife lived in Georgetown. In 1926 the wife of appellant, mother of Maxine, died at the home of Purl and his wife in Georgetown, when Maxine was two months old. After some conversa^ tion and negotiations by Purl and his wife with appellant, the latter agreed that appellee and his wife should keep Maxine indefinitely, but declined to give them permission and authority to adopt her. She so remained with appellee and his wife until 1932, was cared for, nurtured, and reared by them, taught that appellant was her father, that.her mother was dead, and that appellant’s other children were her brothers and sisters, and the families visited each other. During this period appellant contributed $100 to her support and maintenance, which Purl accepted over protest. In February, 1932, Purl’s wife died, Whereupon this suit was filed. Immediately after the death of Mrs. Purl, Mrs. Wilson, another sister of Maxine’s mother and of Mrs. Purl, and her husband, who lived in the same block with. Purl at Georgetown, moved into the Purl home. Mrs. Wilson, a mature woman, mother of two girls, and whose character and competency to help care'for, rear, and educate Maxine is not questioned, and in whose home Maxine had frequently been sheltered, expressed an affection for the child and a willingnéss and desire to keep her and assist appellee in rearing and educating the child. Maxine had started to school in Georgetown, and has as her teacher Miss Mattie Purl, sister of appellee, a competent teacher of long experience, who also had a personal interest in Maxine, and expressed a desire to help see that she was properly cared for and educated. Purl owned his own home, had become affectionately attached to Maxine and she to him, and was shown to be a man of unquestioned reputation, high moral character, and in all respects competent and qualified to afford the child a comfortable home, a Christian environment and training, to rear her in a wholesome atmosphere, and to throw about her proper safeguards of her health, morals, and welfare.

On the other hand, her father owned his own farm, was a thrifty and successful farmer, good to his other four children, whom he had reared since their mother’s death. He had not married again. His oldest child, a girl, was at the time of the trial between 14 and 15 years of age, very bright, and in the seventh grade at school. They lived in a small farmhouse, without many conveniences, and walked more than two miles to school. The only maternal care Maxine would have in appellant’s home would be that of her fourteen year old sister. No question is raised as to the habits, character, or financial ability of appellant which would disqualify him to have the custody and care of his own child. The evidence was conflicting as to the sanitary conditions at appellant’s home, hardships of the children in attending school, and the capacity of the oldest sister, who was already helping to care for three other younger children, to properly care for Maxine in addition.

The trial court had before him all the parties, neighbors, and relatives of both Lan-genegger and Purl, and of Mrs. Purl and Maxine’s mother. Many of them testified at length. Numerous witnesses were heard, all of the children were before the court, who had opportunity to observe their demeanor and attitude towards the parties interested and towards each other, to evaluate the ties of affection, and the qualifications of the parties with respect to the proper custody and training of the child in controversy. After a full hearing elicited by able counsel, he concluded that the best interests of the child demanded that her custody be awarded to appellee, who with his wife had reared and cared for her from a helpless infancy of two months to six years of age. As we construe the decisions, we are not authorized to disturb the judgment.

Appellant earnestly insists that the best interests of the child, as a matter of law, will be subserved in awarding it to its father, its natural guardian, and charged-by law with the duty to support and maintain it, who is shown to be able and in no way disqualified to discharge that duty; as against an unmarried man, who is not related to it by blood, marriage, or adoption, and under no legal obligation for its support

We confess that appellant’s contention and the facts of this case present a strong appeal in his behalf. But the law in such cases now seems well settled. Where a natural parent has willingly surrendered his own child as a helpless infant into the care, keeping, and custody of foster parents, and such parties, in all respects qualified and competent to do so, have reared it for six years, and domestic and affectionate relationships have grown up between such child and its foster parents which it would be injurious to the child to destroy, the district court in the exercise of its equity jurisdiction is authorized to make such award as the best interests of. the child demand, even when such award denies the custody to the natural parent. And the fact that one of the foster parents dies does not change such rule. The general presumption of law does obtain that the child’s best interests will 'be subserved by awarding it to the natural parent, but this is a rebut-table presumption, and the ultimate issue in such cáse is what is best for the welfare of the child., That was a fact issue to be determined within the sound discretion of the trial court upon the evidence before him. And, when so determined, unless that discretion be abused, or unless contrary to the great preponderance of the evidence^ the appellate court is not authorized to set aside his judgment. White v. Richeson (Tex. Civ. App.) 94 S. W. 202; Joseph v. Puryear (Tex. Civ. App.) 273 S. W. 974; Legate v. Legate, 87 Tex. 248, 28 S. W. 281; Davis v. Sears (Tex. Com. App.) 35 S.W.(2d) 99; Tunnell v. Reeves (Tex. Com. App.) 35 S.W.(2d) 707; Duckworth v. Thompson (Tex. Com. App.) 37 S.W.(2d) 731; Williams v. Perry (Tex. Civ. App.) 40 S.W.(2d) 929; French v. Hux (Tex. Civ. App.) 54 SW. (2d) 539; Speer’s Law of Marital Rights (3d Ed.) § 100, p. 1362.

The trial court based his judgment upon his finding recited therein as to what was the best interest of the child under the then existing facts and circumstances. If conditions and circumstances materially change from what they were at the time said judgr ment was rendered, and the best welfare of the child will be served by so doing, the trial court has the power to change the terms of said judgment or set it aside as conditions may warrant. Hardy v. McCulloch (Tex. Civ. App.) 286 S. W. 629; Jones v. Warren (Tex. Civ. App.) 300 S. W. 146; French v. Hux, supra; Speer’s Law of Marital Rights (3d Ed.) § 636, p. 794.

Finding no error, the judgment of the trial court is affirmed.

Affirmed.


author: BLAIR, Justice.

text:
    COPE v. OIL WELL SUPPLY CO.
    No. 7839.
    Court of Civil Appeals of Texas. Austin.
    Feb. 8, 1933.
    Rehearing Denied March 1, 1933.
    James Cornell and R. G. Hughes, both of San Angelo, for. appellant.
    Kerr & Gayer, of San Angelo, for appellee.
   BLAIR, Justice.

This is an appeal from an order overruling appellant Cope’s motion to quash a writ of garnishment, and arose out of the following facts and proceedings: Appellee recovered a joint and several judgment against appellant, C. M. Cope, and P. N. Arnold, and caused a writ of garnishment to issue thereon to “Central National Bank of San Angelo, Tom Green County, Texas, a corporation with W. C. Blanks its president, who resides in Tom Green County, Texas, upon whom service of process may be had,” commanding the garnishee bank to answer “what, if anything, it is indebted to the said C. M. Cope and P. N. Arnold.” The sheriff’s return of the writ reads, in part: “Executed * * * by delivering to the within named Central National Bank by serving O. C. Cartwright, Cashier, a true copy of this writ.” The garnishee bank answered under oath that it had been served with the writ of garnishment-, and that it was indebted to O. M. Cope in the sum of $735.40. Cope moved to quash the writ upon three grounds, as follows:

(1) Because the officer’s return of the writ showed upon its face that the service was insufficient to give the court jurisdiction, in that it failed to show that the officer executing the 'writ delivered a copy to the garnishee.

(2) Because the affidavit for the writ directed that it be served upon the president of garnishee, and service of the writ upon another officer of garnishee was ineffectual.

(3) Because the writ required garnishee to answer “what, if anything,” it was indebted to C. M. Cope and P. N. Arnold-,” it did not authorize an answer showing that garnishee was indebted to C. M. Cope alone; but the garnishee should have shown- what, if anything, it was indebted to C. M. Cope and P. N. Arnold jointly. i .

Appellee filed a motion to amehd the sheriff’s return; and, on the hearing of these motions, it was agreed that O. C. Cartwright was the cashier of the garnishee -bank when the writ was served upon him. It'was also shown by the testimony of the deputy sheriff that he served the writ by delivering a true copy to the garnishee by serving O. C. Cartwright as, cashier of the garnishee bank with a true copy; and the .court ordered that the officers return on the writ be amended to read, in part: “Executed * *. * by delivering to the within named Central.National Bank of San Angelo, Texas, by delivering a true copy of this writ to O. O. Cartwright, its cashier, in person.”

The contention of appellant that the officer’s return of the writ of. garnishment was insufficient to give the court jurisdiction is not sustained. In the first place, by filing his motion to quash the service of the writ, appellant made “the garnishee a party to the proceedings to the extent of invoking the power of the court to pass upon the sufficiency of the return.” 20 Tex. Jur. § 73, p. 797. Upon appellant’s motion being filed, appellee was then authorized to plead and prove facts establishing proper service of the writ, and to have the same amended under the order and direction of the court. This was done as shown by the above-stated facts. First Nat. Bank v. Guaranty Bond State Bank (Tex. Com. App.) 23 S.W.(2d) 312; Kelsey v. Lietz (Tex. Civ. App.) 38 S.W.(2d) 108; Hunsaker v. Abbott (Tex. Civ. App.) 289 S. W. 127; Rosenberg v. First Nat. Bank (Tex. Civ. App.) 27 S. W. 897; Continental State Bank v. Turner (Tex. Civ. App.) 3 S.W.(2d) 503, 506; article 2044, R. S. 1925. And, since the evidence detailed shows proper service of the writ, it . will not be quashed because of the defective return of service which may have been shown upon the face of the original return. In the second place, the sufficiency of the return of a writ of garnishment becomes immaterial where the garnishee admits statutory service under oath, and particularly so where no rights of other creditors are involved. The record shows that O. O. Cartwright filed the answer of garnishee bank to the writ, stating that he was the cashier of the garnishee bank upon whom the writ had been served, and was authoifized and empowered to make the oath, and that the matters and things set forth in the answer were trae and correct. So, at the time the motion to quash was heard, there was before the court the answer of the garnishee that the writ had been served upon the garnishee, and the answer was signed and sworn to by O. O. Cartwright, cashier. In addition, it was shown by agreement that O. O. Cartwright was cashier of garnishee bank at the time the writ was delivered to him as cashier. Under this state of the record we think that no question could arise as to the sufficiency of the officer’s return, since the garnishee’s answer admits under oath statutory service, and the sufficiency of the officer’s return becomes immaterial. Hillis v. Wolfe (Tex. Civ. App.) 284 S. W. 227.

Nor do we sustain appellant’s second contention that, because the affidavit for the writ directed that it be served upon the president of garnishee, service upon any other officer of garnishee was ineffectual. The affidavit stating that service may be had upon W. 0. Blanks as president was merely directory, and the officer was requii’ed to execute the writ as required by law. Article 40S3, R. S. 1925, requires “that the sheriff or constable receiving the writ of garnishment shall immediately proceed to execute the same by delivering a copy thereof to garnishee, and shall make return thereof - as of other citations.” Article 2029, R. S. 1925, provides the manner of serving a citation upon a corporation, which is by service of the citation on the president, or upon the secretary, or upon the treasurer, or by service upon a local agent. The proof showed that O. C. Oai’twright was the local agent and cashier, and that service was duly had upon garnishee by delivering a true copy of the writ to O. O. Cartwright as its cashier. S,ueh service was in accordance with the statute. Kelsey v. Lietz (Tex. Civ. App.) 38 S.W.(2d) 108.

Nor do we sustain appellant’s third contention that the writ required garnishee to answer what, if anything, it was indebted to C. M. Cope and P. N. Arnold jointly. The affidavit for the writ showed that it was issued upon a joint and several judgment. The judgment likewise showed that it was joint and several. The writ was directed against the property of both Cope and Arnold, and authorized the impounding in the hands of garnishee the individual funds or property of either Cope or Arnold. Kleinsmith v. Kempner, 37 Tex. Civ. App. 246, 83 S. W. 409.

The order of the trial court refusing to quash the service of the writ of garnishment is affirmed.

Affirmed,


author: LESLIE, Justice.

text:
    MUTUAL PROTECTIVE ASS’N OF TEXAS v. WOODS.
    No. 1067.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 10, 1933.
    Rehearing Denied March 17, 1933.

      G. R. Lipscomb, of Fort Worth, for plaintiff in error.
    J. W. Birdwell and Bouldin & Zivley, all of Mineral Wells, for defendant in error.
   LESLIE, Justice.

This is a suit by Pearl Woods, a feme sole, against the Mutual Protective Association of Texas, on an insurance certificate. Judgment for $1,000, the maximum recoverable under the certificate, was awarded the plaintiff, and the defendant appeals. The parties will be referred to as in the trial court.

Under six propositions of law, the defendant contends the judgment is erroneous.

The plaintiff, Pearl Woods, is the granddaughter of the deceased, J. M. Jones, and the beneficiary under the certificate which obligated the association, under a specified plan, to pay the plaintiff, upon the death of Jones, the sum of $1 for each member in class No. 2, Comanche Branch of thé Association, who responded to an assessment upon said death, not to exceed $1,000. The plaintiff alleged the death of Jones, the maturity of the claim, and that the association had failed and refused to levy the assessment required by the certificate and deliver to her the funds derived therefrom. Based upon this alleged failure to make the assessment, etc., the plaintiff contends that she is entitled to a recovery against the association for damages in the sum of $1,000.

The defendant denied liability, and, in the alternative, sought to limit its liability, if any, to the sum of $67, alleged to have been the sole amount derived from an assessment made upon those who should contribute to the beneficiary upon the contingency of Jones’ death. This limitation of liability was based on the ground that, the constitution and by-laws of the association, referred to and made a part of the certificate, provided that the officers of the association, in the event of excessive death claims in the class to which Jones belonged, had the right to subdivide the class and to assign to the subdivisions thus created the duty of paying for an equal number of the death claims, and that the amount paid by such subdivision should be a full and complete discharge of the liability of the association, under the certificate, that, under such circumstances, the membership had been so divided, and that the assessment netted the sum of $67, which had been tendered to the plaintiff as the full amount due under the certificate. By supplemental petition the plaintiff contested the defendant’s asserted right to limit its liability, as above set out, further asserting that, upon the death of the said Jones, the beneficiary’s right became vested, and that the association had no authority to subdivide the membership of the class to which the defendant belonged after his death; also that such provisions in the constitution and by-laws were in conflict with the provisions in the certificate entitling the beneficiary to $1 per member obtained by assessment, etc.

We overrule the defendant’s contention to the effect that the officers of the association had the right, after Jones’ death, October 28, 1930, to divide, on February 5, 1931, the group or class to which the deceased belonged at his death into eleven distinct classes and assign to each such subdivision its pro rata share of the death claims then chargeable (February 5th) to the original (class No. 2) as a single group. Upon the death of Jones, the beneficiary’s interest in the insurance attached became vested and unalterable. Coleman v. Anderson, 98 Tex. 570, 86 S. W. 730; Thomas v. Leake, 67 Tex. 469, 3 S. W. 703; Wirtz v. Sovereign Camp, W. O. W., 114 Tex. 471, 268 S. W. 438; Richardson v.. Faithful (Tex. Civ. App.) 289 S. W. 1054; Supreme Home, A. O. P., v. Price (Tex. Civ. App.) 274 S. W. 1019; Id. (Tex. Com. App.) 285 S. W. 310; Supreme Lodge v. Price, 27 Cal. App. 607, 150 P. 803 (3); Ryan v. Boston, etc., Mut. Benev. Ass’n, 222 Mass. 237, 110 N. E. 281, L. R. A. 1916C, 1130; Fink v. Fink, 171 N. Y. 616, 64 N. E. 506; 45 C. J. p. 166, § 134; 6 Tex. Jur. p. 491, § 103. In other words, after the death of Jones, the officers of the association were' without authority to divide his class into eleven subdivisions and meet the obligations of the certificate in suit by an assessment on one-eleventh of the class.

We now come to a consideration of those propositions challenging the correctness of the judgment, in that the trial court granted a recovery for the maximum amount obtainable under the insurance certificate instead of limiting the saíne to such an amount as was collectible under the plan of assessment provided in the certificate. We do not think there is any error in this respect. The defendant is a mutual insurance association on the assé'ssmeht plan. • The plaintiff made a prima facie showing of her right 'to a recovery of the maximum amount specified in the insurance certificate, and it conclusively appears from "the record that the association, without "justification or lawful excuse, failed and refused to make, within a reasonable time, an assessment upon the membership of class 2, to which the deceased belonged at his death, and tender such amount to the plaintiff in satisfaction of the obligations of the certificate. If there was anything lacking to fix .any other sum as the proper amount for which the judgment should have been rendered, it is-chargeable to the default ■ of the association and its officers, and not ’to the plaintiff.- It would have been an easy matter for 'the -association to have made the -assessiaent and therefore the proof necessary to fix such -amount of the judgment, and, having failed to do so, the court correctly entered a judgment for the plaintiff in the possible-maximum amount warranted by the certificate. The correct amount due upon such a certificate being easily ascertainable by the association, and the knowledge of such ampunt. -being peculiarly -within its possession, the rule has been adopted which-relieves the -plaintiff from making proof of the amount which could be collected by an assessment, placing that burden upon the association, as held-by this court in Sweetwa-ter Progressive, etc., Ass’n v. Allison, 22 S.W. (2d) 1107,. and authorities therein cited, to which we -add Amarillo Mut. Benev. Ass’n v. Franklin (Tex. Com. App.) 50 S.W.(2d) 264; Texas Mutual Life Ins. Ass’n v. Wilson (Tex. Civ. App.) 19 S.W.(2d) 591; Ft. Worth Mutual Benev. Ass’n v. Haney (Tex. Civ. App.) 17 S.W.(2d) 104; American Citizens’ Labor & Protective Inst. v. Bandy (Tex. Civ. App.) 2 S.W.(2d) 977. Further, defendant in its answer nowhere alleges there were fewer than one thousand members in “class 2,” to which Jones.belonged at his death, nor does it allege that an assessment on his -class would have yielded less than the maximum of the certificate.

The defendant makes another contention that the judgment is unauthorized by the contract, the terms of which specifically exempt the association from all manner of liability. In brief, the contention is that the terms of the contract forbid any character of judgment “against the association.” The purpose of such stipulation is obvious, but there is found in the contract another provision at variance with the one defendant relies upon, and it is somewhat more equitable..in its nature. /It is .to the effect “that this certificate shall only bind said association to pay Miss Pearl Woods * * * beneficiary, the -sum of $1.00 for each member of this group who contributes to the settlement of this claim, such amount not to ."exceed $1,000.00.” If it be conceded that these provisions are at variance with, each other in their legal import on the question of the association’s "liability under the contract, then the rules of construction require that the contract, and especially said provisions, should "be so interpreted as to make the -contratít mean something in the interest of the insured who paid for the sup'posed protection.- That is, -the construction should be adopted which, would be most favorable to the insured, especially so, since the evidence discloses that it has not made the assessment provided for in the certificate upon group No. 2, to which the -deceased belonged.

/In 32 O. J. p. 1154, the rule to be applied in. cases where the provisions of an insurance contract are obscure and of' doubtful meaning is thus stated: “* * ⅜ It has been frequently held in cases in which the question arose that all ambiguities, and obscurities in the language of a contract of insurance, and "all doubts and uncertainties as to its meaning or construction," are to "be resolved against the company and in favor of insured; that, where the policy is so drawn as to require construction/ it will be construed in favor of insured; that the policy will be so construed as to permit a recovery by insured where it is fairly susceptible of such a construction, and that, where two 'interpretations equally fair may be madé, that which allows a greater indemnity will prevail.”

Multitudes of cases are cited from practically -all jurisdictions supporting "the rule as stated, among them many Texas eases. One of them, Missouri State Life Insurance Co. v. Hearne (Tex. Civ. App.) 226 S. W. 789, 794, quotes from our Supreme Court in Goddard v. Insurance Co., 67 Tex. 69, 1 S. W. 906, 60 Am. Rep. 1, the well-settled general rule “that the language of the policy being the language of the underwriters, if susceptible of two interpretations that must be adopted which will sustain the claim of the assured, and give him the indemnity it was his object to secure.” Hence, if the language of the certificate in the instant case be said to contain doubtful or equivocal provisions upon the question of the association’s liability, then we" are of the opinion that the facts disclosed by the record require the application of the . above rule, which no doubt was applied by the learned trial court. " See Supreme Home, A. O. P. v. "Price, supra.

The sixth proposition challenges the genuineness of J. M. Jones’ signature to the application for "insurance. There " "would seem to be some testimony to support the trial court’s conclusion on this issue, and, further,,the defendant did not tender back the membership fees, etc., in its effort to avoid liability. Also, the plaintiff, having made a prima facie showing of a right to recover, the same is not refuted merely by the fact, if it be one, that the deceased did not sign the application. If he directed his signature to .be attached by the agent of the association or any other person, it would be sufficient. Neither does the proposition raise the question that the answers in the application were not made by the deceased. The attack is specifically directed to the genuineness of the signature.

The foregoing conclusions ' necessarily overrule the major propositions upon which the appeal is predicated. The remaining ones, if not overruled, become immaterial. In fact, some of them relate to the sufficiency of testimony on certain issues. In such cases we think the judgment of the trial court amply supported by the evidence.

There is much confusion in the defendant’s testimony, and it runs through the development of its entire defense. The confusion relates to the class or subclass in which it alleges the deceased, Jones, was insured as a member of the association. However, there is no uncertainty in the plaintiff’s theory of recovery, for the suit is instituted upon a certificate of insurance designating said Jones as a member of class No. 2. The certificate is definite in this respect, and plaintiff’s testimony throughout is - consistent and warrants the judgment rendered.

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


author: BOND, Justice. JONES, Chief Justice.

text:
    PROTHRO et al. v. SMITH et al.

      No. 11238.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 18, 1933.
    Rehearing Denied March 11, 1933.
    Carey M. Abney and M. M.. O’Banion, both of Marshall, for appellants.
    Wynne & Wynne, of Wills Point, for ap-pellees.
   BOND, Justice.

This is an appeal from an interlocutory order of the district court of Kaufman county, overruling what appellants contend are pleas of privilege filed by appellant in a suit instituted by appellees, Irwin Smith and J. J. Parks, against appellants, Obie Prothro et al., in said court. Appellants’ pleas allege that the suit is an action of trespass to try title and to remove incumbrances from the title to land situated in Gregg county, and that the subject-matter of the suit is exclusively cognizable in the district court of Gregg county; and that the district court of Kaufman county is without jurisdiction to adjudicate the matter in controversy; that the suit does not come within any of the exceptions provided by law to be brought or maintained in Kaufman county, or elsewhere outside of Gregg, the county in which said land is located. The pleas do not raise the personal residential venue of any of the defendants in the suit, and in fact same could not be raised as none reside in Gregg county.

The pleas are filed in due order of pleading, sworn to, and are sufficient to raise the issue that the suit is not commenced in the proper county, in that, it is a suit for the recovery of land and damages thereto, and to remove incumbrances upon the title to land situated in Gregg county, and not in Kaufman county.

Appeals to this court do not lie from interlocutory orders of a lower court on pleas to the venue, which involve only the subject-matter of the suit. Pleas of privilege brought under article 2007, R. S., are personal, invoking only the issue of venue originating from the residence of the pleader. Where neither the domicile of the defendants nor the subject-matter of the suit are cognizable in the county where the suit is instituted, a plea of privilege, under the statute, is available, and the judgment of the court thereon is appealable; but, where the domicile of defendants is in one county, the subject-matter of the suit in another county, and the suit instituted in a third county, a plea to the venue, that the suit is not commenced in the county where the subject-matter of the suit is cognizable, is a plea in abatement. Action of a court on pleas in abatement, pleas in bar, pleas to the jurisdiction, and such like dilatory pleas, can only be reviewed by this court by assignments brought up on appeal in the original suit.

The pleas of appellants in this case are not available as pleas of privilege, and at the most are regarded as pleas in abatement, calling in question only that the venue of the suit is not commenced in the proper county, a suit concerning land located in another county. For reasons above stated, no appeal lies from the action of the court below, and this appeal is dismissed.

Dismissed.

On Motion for Rehearing.

JONES, Chief Justice.

In a motion for rehearing, appellants very earnestly contend that this court is in error ‘in dismissing this appeal for want of jurisdiction. We adhere to our original holding in this case, but because of the fact that the ground on which this court based the conclusion apparently has never been specifically passed upon in this state, we will write more fully on the question involved than was thought necessary in the original opinion.

It is claimed by appellants that the suit filed by appellees in the district court of Kaufman county is one to remove incum-brances upon the title to land, and to quiet the title to land, and hence it is controlled by the provisions of subdivision 14, art. 1995, R. C. S., which fixes venue of the suit in Gregg county, because the land is located in said county.

In pursuance of this theory, appellant M. M. O’Banion, in his answer to the suit, objected to venue in the district court of Kaufman county, by means of the following special exception: “* * * That the matter in controversy in this suit, as alleged in the plaintiff’s petition, is an action involving the title to land and is brought in the nature of a suit to try title as well as for damages to-lands situated in Gregg county, Texas, and that the subject matter of this suit is exclusively cognizable in the district court of Gregg county, Texas, and this court is without jurisdiction to adjudicate the matter in controversy.” The prayer following this exception is that the suit be transferred to the district court of Gregg county.

The other appellants, omitting the formal parts, filed the following plea to the venue of the suit in Kaufman county: “ * * * That this court should not take further action or cognizance of this suit other than to have the same transferred to the court having jurisdiction of the subject matter. The defendants allege that this is a suit involving the title to lands, and that the said lands are located in Gregg county, Texas, as is more fully shown' by plaintiff’s petition. That this suit does not come within any of the exceptions provided by law in such cases authorizing this suit to be brought or maintained in Kaufman county, Texas, or elsewhere outside of Gregg county, Texas, the county in which said lands are located.” These allegations are followed by the prayer that the suit be transferred to the district court of Gregg county, and the allegations in the plea are duly verified.

Obie Prothro, one of the defendants in the suit, resides in Kaufman county and presented no objection to the venue Of the suit in Kaufman county; none of the other defendants reside in either Kaufman or Gregg county. It will be observed that neither of the pleas to the venue of the suit in Kaufman county complains because of the fact • that the suit was not instituted in the county of the residence of any of the defendants. After a hearing on the pleas to the venue, the trial court entered an order, overruling the pleas to the venue of the suit in the Kaufman county district court. The appeal is from the interlocutory order.

It is elementary that no direct appeal will lie from an interlocutory order, unless an appeal therefrom be specifically authorized by statute. The specific question decided by this court in the original opinion is that article 2008, R. G. S., authorizing an appeal from an interlocutory judgment on a plea of privilege to be sued in the county of one’s res- • idence, does not include within its terms, and therefore does not authorize, an appeal from an interlocutory order, adjudicating the question raised by a plea to the venue, alleging that the suit is to “remove the incumbrances ■upon the title to land, or to quiet the title to land,” and is cognizable only in the county in which the land is located. In other words, holding that a review of the ruling of the court on the pleas to venue in the instant case must await. an appeal from the final judgment entered in the suit. This conclusion follows our construction of the following related statutes:

“Art. 2007. A plea of privilege to be sued in the county of one’s residence shall be sufficient if it be in writing and sworn to, and shall state that the party claiming such privilege was not, at the institution of such suit, nor at the time of the servic'e of process thereon, nor at the time of filing such plea, ■a resident of the county in which such suit was instituted and shall state the county of his residence at the time of such plea, and that ‘no'exception to exclusive venue in the county of one’s residence provided by law exists in said cause’; and such plea of privilege when filed shall be prima facie proof of the defendant’s right to change of venue. If the plaintiff desires to controvert the plea of privilege, he shall within, five days after appearance day file a controverting plea under oath, setting out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending.

“Art. 2008. Upon the filing of such controverting plea, the judge or justice of the peace shall note on same a time for a hearing on the plea of privilege. Such hearing unless the parties agree upon the date, shall not be had until a copy of such controverting plea, including a copy of such notation there'on, shall have been served on each defendant, or his attorney, for at least ten days exclusive of the day of service and the date of hearing, after which the court shall promptly hear such plea of privilege and enter judgment thereon. Either party may appeal from the judgment sustaining or over-ruling the plea of privilege, and if the judgment is one sustaining the plea of privilege and an appeal is taken, such appeal shall suspend the transfer of the venue and a trial of the cause pending the final determination of such appeal."

Article 1995 declares that, “No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the folio wing, cases:” (Here follows the exceptions authorizing a suit against a defendant in some county other than the county of his residence.) Subdivision 14 of article 1995, R. S., is one of these exceptions and reads: “Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”

It is the enforcement of this exception to the general venue law in this state that appellants seek by their pleas to the venue of this suit.

The subject dealt with by article 2007, supra, is that of “a plea of privilege to be sued in the county of one’s residence,” and there is prescribed therein the allegations to be contained in a plea to secure the purpose for which such a plea is filed. It is provided therein that, when a plea of privilege contains the prescribed allegations is filed in the cause, it shall be prima facie proof of defendant’s right to change of venue to the county of his residence. There is further prescribed in such statute the plea to be filed by the plaintiff, in order to make a contested issue of the allegations in the defendant’s plea. In other words, article 2007 deals only with a plea to the venue of a suit that is instituted in some county other than the county of defendant’s residence.

Article 2008 prescribes the- procedure to be followed in the -trial of the contested issue of venue, made by defendant’s plea of privilege, and the plaintiff’s controverting affidavit. The entire subject-matter of article 2007, supra, shows that the only issue to be tried on such hearing is whether the defendant has the statutory right to be sued in the county of his residence, or whether this right must be denied because of the existence of one or more -of the statutory exceptions to such exclusive venue. Article 2008, supra, authorizes either party to appeal from an adverse judgment entered on this preliminary hearing. This right of appeal is restricted to an appeal from a judgment on a plea of privilege to be sued in the county of the defendant’s residence, and the provisions of article 2008, supra, cannot be extended by construction to permit a separate appeal from an interlocutory judgment adjudicating any issue of venue than the one provided for in article 2007.

We are aware of the fact that, in the case of Knoles et al. v. Clark et al. (Tex. Civ. App.) 163 S. W. 369, and in other cases cited by appellants, Courts of Civil Appeals seemingly have taken jurisdiction of appeals from interlocutory judgments on questions of venue similar to the question in this case. The Knoles Case, however, was decided previous to the amending of the plea of privilege statute in 1917, for the first time specifically providing for an appeal from an interlocutory order, granting or denying a change of venue, to the county of defendant’s residence. The question here raised does not seem to have been called to the attention of the court deciding any of those eases, was not discussed, and hence we do not consider such cases as controlling authority on the question in this case.

The motion for rehearing is overruled.


author: GALLAGHER, Chief Justice.

text:
    STATE BANK & TRUST CO. OF SAN ANTONIO v. LOVE.
    No. 1321.
    Court of Civil Appeals of Texas. Waco.
    Feb. 9, 1933.
    Rehearing Denied March 16, 1933.
    C. S. Slatton, W. J. Rogers, and Spencer & Lewis, all of San Antonio, for appellant.
    Marcus W. Davis and P. E. Johnson, both of San Antonio, for appellee.
   GALLAGHER, Chief Justice.

.This suit was instituted by appellee, Love, to recover of appellant, State Bank & Trust Company of San Antonio, Tex., damages for the breach of its alleged agreement to lend him the sum of $50,000. Appellee’s original petition was filed June 8, 1918, and his second amended petition November 5, 1919. Appellant’s first amended original answer was filed April 21, 1927. Said amended answer contained a general demurrer and various special exceptions. On the 27th day of March, 1928, the court dismissed the cause for want of prosecution, reciting in his judgment of dismissal that the same had been duly called for trial and no announcement had been made therein. Said judgment was authenticated by the official signature of the judge and duly entered on the minutes of the court. The term of court at which the same was rendered and entered adjourned May 31,1928. No further action of any kind was taken by any of the parties at that term. On June 19, 1928, at the next succeeding term of the court, ap-pellee filed a motion for an order reinstating the cause. The affirmative averments of said motion were as follows:

“That, heretofore, to-wit, on the 27th day of March, A. D. 1928, this cause, being then held under advisement by the court upon the general demurrer and special exceptions, as shown by the pleadings, the same having theretofore been argued and presented to the court on the written briefs by counsel, was inadvertently and through mistake included by the court upon a list of cases to be dismissed for want of prosecution; that said case was and should have been taken from said list ; and that the order of dismissal first made was and should have been set aside as to this case; that, therefore, under all the facts and circumstances, the order of the court should be entered nunc pro tunc setting aside the said order of dismissal and reinstating this cause to the docket of the court for trial.”

No notice of said motion was served upon appellant. Neither did it or its counsel have actual notice thereof. The court on the same day said motion was filed, authenticated by his signature and caused to be entered upon the minutes the following order:

“On this day came on to be heard plaintiff’s motion to enter an order nunc pro tunc, reinstating this cause and setting aside the previous order of dismissal.

“The court, being fully advised in the premises and finding the facts set forth in said motion to be true, and that the dismissal of this cause was by mistake, is of -the opinion that said motion should be granted.

“It is, therefore, ordered that the previous order of dismissal herein, dated March 27, 1928, be and the same is hereby set aside, and that this cause be restored to the docket of this court for trial, and that this order be entered nunc pro tunc as of date March 27; 1928.”

The transcript does not contain any minute entry reciting the submission of appellant’s demurrer and exceptions.

The court, on January 29, 1929, signed and filed among the papers in the cause a statement that appellant’s general demurrer and special exceptions were overruled, and cited various authorities in support of such action. This instrument does not appear to have been copied in the minutes. Appellee, on January 3, 1931, filed a motion assailing the validity of the above recited order of the court reinstating the cause and ashing that the court refuse to exercise further jurisdiction therein and that the same be stricken from the docket, which was overruled.

The cause came on for tidal by jury on October 5, 1931, on the identical pleadings on file therein at the time the court entered the aforesaid order of dismissal. The judgment recites that appellee’s demurrers and exceptions were presented and overruled and that the cause was submitted to the jury on special issues. Said issues, with'the answers of the jury, are copied therein. The court, upon consideration thereof, awarded appellee a recovery against appellant in the sum of $20,-000, the amount of damages assessed by the jury in its verdict.

Opinion.

Appellant, by an appropriate assignment, assails the action of the court in reinstating the cause after the dismissal thereof at a prior term. The facts have been here-inbefore recited. The procedure in the trial court was governed by the general provisions of our Revised Statutes, and not by the special provisions of article 2092 thereof. A judgment of dismissal is a final judgment. It involves the exercise of judicial discretion and authority and cannot be set aside on motion after the adjournment of the term at which it was entered. First Nat. Bank v. Fox (Tex. Sup.) 39 S.W.(2d) 1085, 1086, pars. 1, 2, and 3, and authorities there cited; Coleman v. Zapp, 105 Tex. 491, 494, 151 S. W. 1040; Eddleman v. McGlathery, 74 Tex. 280 et seq., 11 S. W. 1100; Pierce Company v. Watkins, 114 Tex. 153, 159, 263 S. W. 905; Green v. Green (Tex. Com. App.) 288 S. W. 406, 407, pars. 1 to 3, inclusive; O’Neil v. Norton (Tex. Com. App.) 33 S.W.(2d) 733, 734; Oldham v. Heatherly (Tex. Civ. App.) 3 S.W. (2d) 484.

Appellee invokes the aid of Revised Statutes, art. 2228, to sustain the action of the trial court in reinstating the cause on motion at a subsequent term. Said article by its terms applies merely to mistakes in the entry of the judgment. It applies in eases involving nonjudicial mistakes, and does not authorize the correction of judicial errors. Coleman v. Zapp, supra; Nevitt v. Wilson, 116 Tex. 29, 285 S. W. 1079, 1082, pars. 3, 4, and 5, 48 A. L. R. 355, and authorities there cited; O’Neil v. Norton, supra.

Appellee also seeks to sustain the action of the court in attempting to reinstate the cause, on the ground that appellant’s demurrer and exceptions had theretofore been submitted to the court for determination and had been taken under advisement, and that the court wás without judicial power to order such dismissal until the same had been acted upon. He cites in support of his contention the case of Nevitt v. Wilson, supra, page 1083 of 285 S. W., 116 Tex. 29, 48 A. L. R. 355, pars. 6 et seq. In that case a jury verdict had been returned. A motion had been filed asking the court to render judgment on such verdict and a suggested form of the judgment desired was submitted therewith. The clerk, by mistake and without authority of the court, entered the suggested judgment on the minutes. The opposite party had filed a motion to set the verdict aside. Both said motions were filed in due time. They were not, however, presented within thirty days, nor determined within forty-five days after such filing. Neither had the court in fact rendered any judgment in the cause. The trial court, notwithstanding more than fortyrfive days had elapsed from the filing of such motions, ordered the purported judgment, which was wholly without judicial sanction, stricken from the minutes, set aside the verdict, and granted a new trial. A judicial construction of subdivisions 28 to 30 of Revised Statutes, article 2092, above cited, was invoked by such situation. Said subdivisions relate to the time of filing and acting upon motions for new trial and the time when judgments shall become final. One provision thereof is that all motions for new trial shall be determined within forty-five days after the filing of the original or amended motion, unless postponed by agreement of the parties to a later date. Another provision thereof is that a judgment shall become final after the expiration of thirty days from the date such judgment was rendered or motion for new trial was over*, ruled. The Supreme Court held that the effect of said provisions was to prevent a judgment from becoming final while such motions were pending, and that until disposed of, the trial court’s jurisdiction to act thereon continued. The action of the trial court was therefore sustained. We find no analogy between the continued jurisdiction of the trial court to act upon a motion for new trial under the special provisions of said article and the authority of the trial court in this case to dismiss the same from the docket without acting on appellant’s demurrer and exceptions, and said case furnishes no precedent to support appellee’s contention here under consideration.

We do not understand appellee to contend that his motion for reinstatement constituted in legal effect a bill of review or equitable proceeding to set the judgment of dismissal aside notwithstanding it was filed as a motion under the number and style of the original case and not as a new suit. Application of the rule that a motion for a new trial is in effect a bill of review when it contains all the allegations necessary to constitute it such, announced in Osborn v. Younger (Tex. Com. App.) 235 S. W. 558, par. 1, and the various cases citing and following the same, is therefore excluded. Since the trial court’s dismissal of appellee’s suit for lack of prosecution was a judicial act, it was without legal power or authority to set the same aside and reinstate the cause after the adjournment of the term at which the same was entered. The attempt to reinstate the cause was improper and void under the authorities above •cited.

.The judgment of the trial court is reversed and the cause remanded, with instructions to strike the same from the docket.


author: MARTIN, Justice.

text:
    DALHART GAS CO. v. STAFFORD.
    No. 3960.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 15, 1933.
    Rehearing Denied March 15, 1933.
    Madden, Adkins, Pipkin & Keffer, of Amarillo, and B. N. Richards, of Dalhart, for appellant.
    Tatum & Strong and Wilson Cowen, all of Dalhart, for appellee.
   MARTIN, Justice.

The following brief statement will, we think, sufficiently illustrate the law points ■discussed herein: Appellee operated a steami laundry in the town of Dalhart. He alleged •that one Brown secured a franchise from the city of Dalhart to furnish gas to its inhabitants and that a rate structure was agreed upon, paragraph 12, bracket 3 of which provided for a rate per month of 15 cents per 1,000 cubic feet of gas used. He further alleged that appellant as assignee and owner of said franchise had illegally collected from him 18 cents per 1,000 cubic feet of gas used by him from June, 1928, to October, 1931, or an excess of 3 cents per 1,000 cubic feet, aggregating the sum ofi $889.46.

Appellant pleaded that bracket 3, section 12, of Ordinance 52, which provided for a rate of 15 cents on its face, was a mutual mistake, and that the real and true agreement was for 18 cents, and that the insertion of the 15-cent rate was due to a mistake of the scrivener. It further pleaded that when such mistake was discovered s.ome three years later, Ordinance No. 53 was enacted reforming and correcting this bracket and making it conform to the original agreement of 18 cents per 1,000 cubic feet of gas.

The trial was before the court, who entered judgment for appellee for the full amount sued for.

The court filed findings of fact and conclusions of law. Among his findings of fact under attack is the following:

“That the city council of Dalhart, Texas, passed an ordinance amending the original franchise ordinance and changing the rate to be charged by the Dalhart Gas Company for all gas monthly consumed by any consumer in excess of the first 200,000 cubic feet of gas from 15 cents to 18 cents per thousand cubic feet, and provided that the rate to be charged on all gas consumed in excess of 2,-200,000 cubic feet and not in excess of 7,200,-000 cubic feet should be sold at a rate of 15 cents per thousand cubic feet.”

Ordinance No. 53, which is the one referred to in the above finding, was introduced in evidence, and we quote here some of its provisions:

“Whereas, the attention of the City Council of the City of Dalhart has been called to the error and mistake made in so enacting said Ordinance No. 52, and now desires to reform and correct said Ordinance No. 52, so as to make said Section ‘Twelfth’ thereof to read and provide a proper and correct schedule of rates as originally intended.”

“Whereas, through mutual mistake, inadvertence and oversight, said Section ‘Twelfth’ of said Ordinance No. 52 was erroneously made, passed and adopted to read as follows: (as to the third subdivision thereof): For the next 2,000,000 cubic feet, or fraction thereof, per month at the rate of fifteen cents (15⅜ per thousand cubic feet.”

“Whereas, it was the intention of the City Council and other parties interested that Section ‘Twelfth’ of said ordinance should read and provide as follows (as to the third subdivision of the rate structure thereof): For the next 2,000,000 cubic feet, or fraction thereof, per month, at the rate of eighteen cents (18.⅜) per thousand cubic feet.”

The effect of the trial court’s finding and his judgment was to abrogate that portion of the last contract represented by Ordinance No. 53 entered into by the city and appellant herein, correcting the rate in the third bracket, which is the one in controversy. We express some doubt of the right of a court to enter any judgment affecting a contract when the parties to same were not before it. In this case the municipal corporation was not made a party. Shawhan v. Zinn, 79 Ky. 309; Mount v. Radford Trust Co., 93 Va. 427, 25 S. E. 244. We say this in passing only, as no point is made of this apd it is not necessary to expressly decide it.

It seems clear to us that the parties to this contract might voluntarily do that which a court of equity would compel in an appropriate proceeding. If a mutual mistake existed originally in this contract in respect to the rate in question, equity would reform it to express the true agreement. In such a proceeding appellee herein would be neither a necessary nor a proper party. He was a beneficiary under, but not a party to, the contract. He had the right to,- but was not compelled to, use the gas at the agreed rate. His action in so doing was purely voluntary. In no sense has his position been involuntarily altered to his injury by the contract in question. Being only a beneficiary, he can claim no higher rights under the contract than the parties who made it. 10 Tex. Jur. 485, and authorities there collated. To give him, superior rights would be to exalt the creature above his creator. Could the city enforce a 15-cent rate in the face of its solemn contract agreeing to an 18-cent rate? Appellee must take this contract as he finds it. Not being a necessary party to its reformation in a suit in equity, and being therefore bound by any judgment reforming it, he is likewise bound by a voluntary reformation of it entered into in good faith, particularly in the absence of aiiy showing of collusion or fraud. There is no attempt here to show that the reformed contract was fraudulent. The rate charged appellee was the one immediately set up on the books of the gas company and collected for more than three years after the making of the original agreement. It is agreed between the parties who made the contract that 18 cents was the rate originally agreed upon. The party who wrote the original contract testified that the insertion of the 15-cent rate was a mistake of the scrivener. This is not disputed. “Except as to bona fide purchasers without notice and those standing in similar relations, upon the reformation of an instrument, the general rule is that it relates back to, and takes effect from, the time of its original execution.” Beckius v. Hahn, 114 Neb. 371, 207 N. W. 515, 517, 44 A. L. R. 73, See this case for exhaustive collation of authorities.

This instrument was reformed voluntarily in October, 1931, and appellee filed this suit the following year. His case stands as though the original contract provided for an 18-eent rate in the absence of some showing that the reformed contract was invalid. There is no evidence in this record to support such a conclusion. If the reformed contract is to be given effect from the date of the original one, which was 1927, manifestly the judgment of the trial court was erroneous.

Other questions pass out of the case under this holding and will not be discussed.

The judgment of the trial court is reversed, and the cause remanded.


author: PELPHREY, Chief Justice.

text:
    RANDOLPH et al. v. ARMSTRONG.
    No. 2794.
    Court of Civil Appeals of Texas. El Paso.
    March 2, 1933.
    N. R. Morgan, of Seminole, for plaintiffs in error.
    E. P. Veal, of Seagraves, for defendant in error.
   PELPHREY, Chief Justice.

This is a suit by defendant in error to recover on two promissory notes executed by Ed, W. R., and G. T. Randolph. Plaintiffs in e^ror pleaded duress and total failure of consideration.

The facts as adduced at the trial, as they appear in the record, are:

“That at the time the notes sued upon were executed the defendant Ed Randolph was under indictment found by the grand jury of Gaines county, Texas, charged with a felony. That the plaintiff O. M. Armstrong was a member of said grand jury and furnished the evidence upon which said indictment was based.
“That W. R. Randolph, defendant, is the father of the defendant, Ed Randolph, and that the defendant G. T. Randolph is the brother of the defendant, Ed Randolph.
“That the defendant Ed Randolph was indebted to the plaintiff O. M. Armstrong for the purchase of a Ford car, and that W. R. Randolph, defendant, and the defendant, G. T. Randolph, were neither indebted nor under any obligations whatever to the plaintiff, C. M. Armstrong.
“That when the district court of Gaines county, Texas, convened, and the defendant Ed Randolph was out of jail on bond and W. R. Randolph and G. T. Randolph were in attendance for the trial of Ed Randolph, that O. M. Herring, attorney for the plaintiff, 0. M. Armstrong, approved ^approached) the defendants, the Randolphs, and proposed and requested some arrangement and agreement for settlement of the matter of the indebtedness of the defendant, Ed Randolph, to the plaintiff, C. M. Armstrong.
“That after discussing the matter C. M. Armstrong came out of the grand jury room and it was agreed by and between the parties that if the defendants Ed Randolph and W. R. Randolph and G. T. Randolph would pay Fifty Dollars cash, and execute the two notes, then the indictment against Ed Randolph would be dismissed.
“That O. M. Herring had so arranged with Mr. Price, the district attorney, and that the plaintiff 0. M. Armstrong would use his best efforts and influence with said Price to have. said indictment dismissed.
“That said indictment has not been dismissed, but is still in full force. 0/ M. Armstrong, the plaintiff, testified, that at the time the notes sued upon were executed that neither of the defendants, W. R. Randolph and G. T. Randolph, were indebted to nor under any obligations whatever to said plaintiff. W. R. Randolph testified that at the time the notes sued upon were executed, he was not indebted to nor obligated in any manner whatever to the plaintiff O. M. Armstrong and that the sole and only consideration that moved him to execute said notes sued upon was the plain and distinct agreement with the plaintiff 0. M. Armstrong, that the indictment then pending against his son Ed Randolph would be dismissed.
“The defendant, G. T. Randolph, testified that at the time the notes sued upon were executed, he was not indebted nor in any manner whatever obligated to the plaintiff, C. M. Armstrong, and that the sole and only consideration that moved him to execute the notes sued upon, was the plain and distinct understanding and agreement with the plain-, tiff C. M. Armstrong would have the indictment then pending against his brother Ed Randolph dismissed.”

The pleadings of plaintiffs in error substantially set up these facts:

Contracts made in consideration of an agreement to dismiss a pending prosecution, are contrary to public policy, are forbidden by article 428, Penal Code, and therefore' unenforceable. 10 Tex. Jur. § 114, p. 198, and authorities there cited.

Upon the facts as above recited being shown, it became the duty of the trial court to instruct a verdict for plaintiffs in error, and his failure to do so constituted error.

The judgment in favor of defendant in error must be reversed, and judgment here rendered that he take nothing.